1. A tragic accident took place at the inter-section of Lady Jamshedji Road and Dr. Ambedkar Road at 5.30 p.m. on 10th May 1971. Scooterist Pethe, a lecturer in a College at Baroda with his wife on the pillion seat was coming from Parsi Colony. Wanted to cross Ambedkar Road and proceed towards Hindu Colony. Ambedkar Road is a wide bisected road with each side having a width of 20 metres and the central reservation track is 4.5 meters wide.
2. A. B. E. S. T. double decker No. MRT 1967 was proceeding from King's Circle towards south. Pethe had traversed practically 2/3rd of the road when the front portion of the bus hit him. The bus driver tried to sweve his vehicle on the right and applied the brakes. The bus skidded a distance of 6 metres and came to a halt. Mrs. Pethe was killed and her husband the applicant Govind suffered injuries resulting in disabililty.
3. Govind Pethe filed two applications before the Additional Motor Accidents Claims Tribunal for Greater Bombay, which awarded Rs. 30,000/- as compensation arising out of the death of his wife and Rs. 18,255/- as damages for the injuries resulting to the applicant against which the present appears have been filed. These appeals have been consolidated and this judgment will govern and dispose of the appeals.
4. Mr. Pankaj Patel on behalf of the Undertaking has attacked the award on the ground that the learned Member of the Claims Tribunal was prejudiced against of the expressions 'to kill the pillion rider', and 'no regard for human life' used in the judgment under appeal. Simply because the learned Member has used superlatives and hyperboles, it would not be correct to surmise that he was in any manner prejudiced against the under taking According to Govind Pethe, he had given a signal when he came to the intersection of the two roads and the bus driver dashed against his scooter when the scooter had reached the central reservation track. Govind Pethe explains that he could not turn towards his left because of the raised portion of the central reservation track.
5. On the other hand, Jamiluddin, the driver of the bus, explains that the road was dug up on both sides and hence there was space for only two vehicles at a time instead of the usual four lanes of the road. He was following one lorry which was ahead of him and when he was about five feet away from the southern portion of the intersection, the applicant and his wife suddenly crossed from his left. To avert the collision be applied brakes and swerved the bus to the right and he could not have swerved to any other direction because there was a ditch to his left.
6. This theory of a ditch on the road to the left which prevented jamiluddin from taking a left turn from swerving his vehicle to the left and thereby averting the accident has been put in the box for the first time. A suggestion has been made by Jamiluddin that he had narrated the same to his officers immediately after the accident but no such evidence has been led. The panchanama of the scene of occurrence also does not make any reference to any freshly dug up ditch near the reservation track.
7. In matters of collision between motor vehicles, the common law rule which treated contributory negligence as a complete defence - as not only reducing the plaintiffs recovery but defeating it entirely - had to be modified by the last opportunity or the 'last clear chance' doctrine. It permitted full recovery to a rule of last clear chance with that of the apportionment of damages for contributory negligence, the approach now is to have regard to all the causes and apportion the damages accordingly, rather than select from a number causes which was the effective and predominant one and to reject the rest.
8. In the instant case, it appears that the applicant cannot be held negligent in any manner because he had already traversed practically the entire width of the road and could not even avert the accident as the abutting portion of the central reservation track prevented him from doing so. On the other hand, considering the width and straightness of the Ambedkar Road, it is clear that the bus driver had the scooter in full view when the was proceeding from north to south and could have easily averted the accident by slowing down the bus or turning it towards the left lane. In these premises, I find that the learned Member of the Tribunal was right in holding the driver as completely negligent and not apportioning any damages by way of contributory negligence.
9. Coming to the question of the quantum, it appears that the learned Member has awarded reasonable sum of Rs.30,000/- on account of the death of Mrs. Pethe who was gainfully employed and was also working as an insurance agent. The quantum of Rs. 18,255/- which is an aggregate of special and general damages is also reasonable.
10. In the result, both these appeals fail and the same are dismissed. The Appellants to bear their own costs and to pay those of the Respondent.
11. Appeals dismissed.