V.V. Vaze, J.
1. On 24-6-1974 a scooter being driven by Kishore and having Uday as a pillion driver crossed the railway over bridge near Mal-Bungalow on Madhavnagar-Sangli road. Bus No. MHO-9780 owned by the Maharashtra State Road Transport Corporation and driven by Ghodake followed the scooter. Both the vehicles had to traverse the bridge running north-south of which 250 feet were on the upwards gradient and after the vehicles reached the top of the bridge, they had to descend a like length. Driver Ghodake saw the scooter ahead of him, blew the horn to warn the scooterist but it appears that the bus dashed against the scooter throwing the driver Kishore on the eastern side of the road while pillion driver Uday was thrown towards the western side. Kishore escaped with minor abrasions but Uday was not that lucky and died on the spot.
2. Uday's mother Shobhana and her three daughters filed a suit in the Court of the Civil Judge, Senior Division, Sangli at Sangli for damages and as the Court awarded damages of Rs. 2,00,000/- the Maharashtra State Road Transport Corporation appeals.
3. Though some defences regarding Kishore not having licence were raised in the lower court the licence having been since produced, this point does not acquire much importance. In the first place Mr. Hegde on behalf of the Corporation has argued that the scooterist was guilty of contributory negligence inasmuch as he was driving on the wrong side and inspite of due care and caution exercised by the driver, the bus dashed against the scooterist. Mr. Hegde relies on the evidence of the driver Ghodake as well as the narration in the panchnama Exh. 13 to the effect that the right side front bumper of the bus had scrapings of the green colour of the scooter. The panchnama also shows that the front tyres of the bus left a drag mark on the road indicating that the driver of the bus exercised immense presence of mind by applying the brakes. Mr. Hegde drew support from the evidence of the driver Ghodake, according to whom the scooter was on the wrong side of the road that he repeatedly blew the born twice or thrice and kept himself to left side of the road. Ghodake continues that inspite of these precautions taken by him the scooter surprisingly took a turn to the left to dash against the bumper of his bus on the right hand side.
4. As against this evidence of Ghodake, Kishore the driver of the scooter has explained that he was driving the scooter on the correct side of the road with moderate speed and they were on the sloping portion of the road after clearing the bridge. The S.T. bus coming from behind that is from south dashed against the scooter because the bus was being driven at high speed. As a result of the impact the scooter swerved towards the western side of the road and Kishore was thrown on the eastern side while Uday on the western side. On the question from the court Kishore explained that after the first impact the steering took a right turn and the scooter automatically dragged to the western side of the road.
5. The panchnama of the scene of offence shows that the right side of the bus had dashed against the scooter as is evident from the peelings of the paint of the scooter found on the body of the bumper. However, it does not follow from this impact that the scooter was all the time being driven on the wrong side of the road. Considering the fact that the road was an open one, there appears to be no earthly reason why scooterist should hazard his life by driving on the wrong side of the road and it seems to be more probable that the bus driver who admittedly was driving at higher speed than that of the scooter over-took the same, mis-judged the clearance and hit the scooterist. The unexpected impact caught the scooter driver unawares and his control over the handle of the scooter obviously could not remain that firm. Kishore has explained that as a result of the impact his handle-bar swung towards the right and the scooter propelled itself towards the west of the road when ultimately came the final impact of the front right side of the bus.
6. To a court question the driver has admitted that he had seen the scooter when he was on the slope of the before he had reached the highest portion of the bridge. That is to say, for some portion of their journey the scooter and the bus driver were climbing the gradient up the bridge and after both of them were on the down-ward slope, the bus picked up greater speed, overtook the scooter and in that process hit it.
7. After the scooter was hit by the bus, Kishore has been candid enough to admit that he lost control and that is how the scooter-a two-wheeler swung towards the right and ultimately was knocked down by the bus. When the first impact of the bus was wrongful the scooterist could not be blamed if he had lost control of the steering handle though it could as well have happened that the scooterist was thrown towards the left of the road avoiding the collision. Jn these premises we find that the bus driver was wholly guilty of the negligence which resulted in the accident and that there is no case for apportionment for contributory negligence.
8. Coming to the question of damages it appears that the deceased Uday who belongs to the family of traders was a partner or Dilip Trading Company and was also prosecuting his studies in the first year B. Com. class. Uday was admitted as a partner way back in 1971 with a capital investment of Rs. 9,000/- and used to do some petty jobs for the partnership business in addition to his studies like preparing gate pases and bills. Uday has been paying income-tax on the profits of the partnership firm and the successive figures for the Sanwat years 2027, 2028 and 2029 have been Rs. 1145-00, 1280-00 and 1500-00 respectively. In the Sanwat year 2029, one, fourth share in the partnership of Uday fetched a profit of Rs. 14,283-38 paise and even for the part of the following Sanwat year 2030 till 24-6-1974 i.e. the date of the accident the profits came to Rs. 6,411-70 paise. As an date of the death by accident an amount of Rs. 47,548-52 paise has been credited to Uday's account by way of profit. On the basis of this earning capacity of Uday as is evident by the account books the lower court found that the claim for Rs. 2,00,000/-could not be treated as exaggeration and the court believed in the statement of Shobhana that Uday would have earned Rs. 20,000/- per year for the family though the lower court has not worked out in detail the amount. Probably it was impressed by the fact that Uday, a young boy of 17 had already made his mark in the business world and was earning and was paying heavy amount of Rs. 1500/- as and by way of income-tax. As Uday was about 18 at the time of death he had a long innings ahead of at-least 40 years and taking a multiplier of 20 years purchase and contribution of Rs. 1000/- p.m. to the family it can be said that the claim of Rs. 2,00,000/- is justified.
9. Having confirmed all the findings of the trial court, we should have had no hesitation in dismissing the appeal but for the fact that the question whether any insurance had been taken out on the life of Uday and if so who the beneficiaries under the policy were remains unanswered. On going through the khata of Dilip Trading Company for the Sanwat years 2029 and 2030 we find that there is an entry of Rs. 1065-00 towards insurance premium for the former Sanwat and Rs. 1062-10 paise of towards the succeeding Sanwat year 2030. Neither of the learned Counsel appearing for the parties could throw any light on the implications of these premier; whether they really relate to the policy of Uday and whether the plaintiffs have received any amounts under the said policy as a result of the death of Uday. In these circumstances though we confirm the findings of the learned trial Judge that the death of Uday was caused on account of rash and negligent driving by defendent No. 2 that the plaintiffs are entitled to the damage to the tune of Rs. 2,00,000/- from defendants-that the claim is within limitation, we remand the case to the trial Court for the limited purpose of permitting both the parties to lead evidence both oral and documentary regarding the implication of the entries appearing in the khata Exh. 48 of Uday kumar in the account books of Dilip Trading Company regarding the payment of insurance premia and to decide the effect of receipt, if any. of the insurance policy amount on the quantum of damages in the light of full bench decision in Mjs. Hirjee Verjee and Co. v. Smt. Saroja Narayan Shetty and Ors. AIR 1982 Bom. 467. After deciding the said question the trial court shall pass appropriate orders in consonance with the decision of this Court in 1984 (2) Bombay Cases Reporter, P. 9, Nav Bharat Builders v. Smt, Pyarabai w/o Dadu Mane. Appellants to bear their own costs and to pay those of the respondents in this appeal. Appeal partly allowed.