Jagannatha Shetty, J.
1. This appeal under S. 110-D of the Motor Vehicles Aci has been preferred against the judgment and Award dated Nov. 17, 1977 made by the District Judge - Member of the Motor Accidents Claims Tribunal, Shimoga, in Miscellaneous No. 31 of 1976.
2. On Dec. 30, 1975 at about 12-45 p. m. there was an accident at B. H. Road, Bhadravathi resulting in the death of one Visveswaraiah who was an employee of the Visveswaraya Industrial and Steel Ltd., Bhadravathi. He was caught underneath the hind wheel of a stage carriage belonging to the Karnataka State Road Transport Corporation ('the Corporation'). The driver of the bus was one Shivanna Gowda. Visveswaraiah was then riding a motor cycle and coming in the opposite direction.
3. The claimants respondents 1 to 3 who are none other than the widow and two minor daughters of the deceased moved the Tribunal with an application under S. 110-A of the Motor Vehicles Act, They have alleged inter alia that the bus was driven rashly and negligently and the motor cyclist who was coming from the opposite direction, when trying to avoid a stray cow, was knocked off and crushed to death under the wheels of the bus. The driver of the bus resisted the claim denying the said allegations and per contra contending that the bus was being driven at a somewhat moderately low speed, but the motor cyclist was heading towards the bus from the opposite direction at a high speed and at that time a stray cow suddenly cut across the road. The Motor cyclist then dashed against the cow and tumbled on the path of the moving bus. The bus was, however stopped instantaneously, but unfortunately the motor cyclist was caught under the right hind wheel of the bus. He has also stated that the bus did not touch the motor cycle at all and there' was no damage either to the motor cycle or to the bus which by itself indicates that there was no collision between the two.
4. Upon the pleadings, the parties went to trial upon the following principal issue:
'Whether the death of M. N. Visveswara. Foreman, V. L S. L., Bhadravathi, on 30-12_ 1975 at about 12-45 p.m., as a result of the collision between the motor cycle No. MYG 285 on which he was riding and the bus bearing registration No. MYF 6506 was due to the rash and negligent driving of the said bus by the 2nd respondent?'
'Was it due to the rash and negligent driving of the motor cycle by the deceased?'
5. Before the Tribunal, on behalf of the claimants, four witnesses including the widow of the deceased were examined. Devasenadhipathi P. W. 1 and Mariyappa P. W. 2 were alleged to be the eyewitnesses to the accident. Suryanarayana Bhatta P. W. 3 who was a Clerk of V. I. S. Ltd., was examined to prove the last salary drawn by the motor cyclist.
On behalf of the Corporation, Shivanna Gowda - the Driver of the vehicle -has given evidence as R. W. 1.
In the criminal case registered against the driver for an offence of rash and negligent driving under S. 304-A I. P. C. the police sent a W report stating that there was no negligence on his part and the death was due to the negligence of the motor cyclist himself. The driver of the bus has produced a certified copy of that 'B' report as Ext. D-1. The claimants have produced the salary certificate (Ext. P-1) and the post mortem report Ex. P2) sketch of the scene of occurrence (Ext. P3), and photographs of the bus and the motor cycle (Ext. P-4 and P-5) which were taken immediately after the accident.
6. The learned District Judge found himself unable to accept the oral evidence of the parties and the eye-witnesses. He was of the opinion that the alleged eyewitnesses could not have seen the accident. He relied upon the sketch and the photographs produced in the case. He found that the motor cycle lying on the road was away from the bus and there was no damage, He also found that there was no mark of collision between the motor cycle and the bus except some scratches. He then continued:
'12. Per contra, the theory that the motor cyclist hit the cow and because of the impact, thrown off the motor-cycle and came underneath the moving stage carriage appears to be 'probably true. Otherwise, there is no way of explaining how he could have been caught underneath the wheel of the bus, if the bus knocking down the motor-cyclist is ruled out.'
His conclusion as summarized runs as follows:-
'13. It seems to me that this is a case in which both sides are to be blamed
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The bus could not, in the very nature of things, have picked up any speed beyond an ambling pace. At such speed, it was not impossible for the driver to have brought the vehicle to a stop the moment he saw the cow. Likewise, the motor cyclist if he had the sense to stop the motor cycle when he sighted the cow, this accident could well have been avoided. The fact that, probably, he had hit the cow indicates that he must have been riding the motor cycle somewhat rashly and at some speed which made it impossible for him to avoid hitting the cow. Even so, I must point out, if only the bus had been stopped, there was little danger of the motor cyclist getting caught underneath the bus and meeting his death, and whether he would have died due to bare fall on the road is a moot point on which I do not wish to deliberate. The fault of the driver of the bus lies in not stopping the vehicle. In fact, he appears to have had the last opportunity to avoid the mishap seeing the cow before him.'
After reaching this conclusion, the learned District Judge apportioned the negligence in between the motor cyclist and the bus driver in the rate of 60 : 40 i. e., 60 per cent to the motor cyclist and 40 per cent to the stage carriage driver and awarded compensation of Rs. 39,000 calculated on the basis of the last pay drawn by the deceased.
7. Aggrieved by the Award, the Corporation has appealed to this Court and the claimants have preferred Cross-Objections.
8. The question for consideration is, who was between the driver and the motor cyclist was rash and negligent, and if so both, to what extent each would be liable
9. It is not in dispute that the driver has stopped the bus immediately after the cow passed across the road and that is also evident from the sketch produced in that case. The motor cycle remained almost unscathed and it was lying at a few feet away from the back of the bus. The learned Judge, in our opinion, was perfectly justified in drawing the conclusion that the motor cyclist's negligence was of a high order. He was probably at a speed which he could not easily control. He must have tried to avoid the cow cutting across the road and in the process he must have tumbled over his motor cycle and came directly under the hind wheel of the moving bus.
The cow appears to be the target of both the persons not for dashing, but for avoiding. If the driver had stopped the bus with a little foresight when the cow was cutting across the road, the accident could have been avoided. The bus drive! may ask why he should have taken more care than the motor cyclist when he was already going at a slow speed? The best answer could be found from the observation of the Privy Council in London Passenger Transport Board v. Upson. (1949 AC 155 at p. 173). Lord Uthwatt observed:
'I desire only to register my dissent from the view expressed by the Master of, the Rolls that drivers 'are entitled to drive on the assumption that other users of the road, whether drivers or pedestrians. will behave with reasonable care.' It is common experience that many do not. A driver is not, of course. bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of -consideration the teachings of experience as to the form those follies commonly take.'
This Court in General Manager, Bangalore Transport Service, Bangalore v. N. Narasimhaiah, : AIR1977Kant6 observed that as between a cyclist and a driver of a bus, the latter's responsibility to use care and diligence would be greater and the duty to use care increases proportionately with the manager involved in dealing with a particular type of vehicle etc. We entirely agree with these observations. The public road is not the property of any individual. It has been dedicated to the public for common use. ,A person should not use the public road in such a way as to endanger the like ,use of others. A person who drives a vehicle which occupies a larger space on the road must necessarily take more care.
The driver in his evidence has stated that the accident occurred at the busy road where there was a heavy traffic at that time. When he saw the cow crossing the road, he also sighted the motor cyclist According to him, he saw the motor cyclist touching the cow and then he stopped the bus. But actually by the time he stopped the bus, the motor cyclist was already underneath the hind wheel. That means, he stopped the bus only after the accident and not before the accident. If he had stopped the bus a moment earlier, there was no chance for the motor cyclist coming under the wheel. Very clearly it indicates that the driver of the bus did not act with care and caution required at that time in a busy road. In the premises, the conclusion of the learned District Judge that there was contributory negligence by the bus driver cannot be said to be unreasonable.
10. The next question is to assess the ,respective fault of blameworthiness of the two parties. Section 110-B of the Motor Vehicles Act merely provides for the determination of the amount of com-1 sensation by the Claims 'Tribunal 'which' appears to it to be just'. The Tribunal, therefore, in a case where the contributory negligence on the part of the deceased is relevant must have regard to all the circumstances relating to the percentages of negligence. The Tribunal should apportion the loss between the parties as seems to it just and equitable and the apportionment in that context means that the damages are reduced to such an ex-1 tent as the Tribunal thinks just and equitable.
In Vittobai v. Raghavan S. (1979 Acc CJ 32), this Court while considering an accment which had occurred by the collision of two vehicles at the middle of the road, determined the degree of negligence at fifty per cent each. Likewise in Mahadev Balappa Babshet v. Ramesh Narayan Nagwekar (1976-2 Kant LJ 324 at p. 326) this Court apportioned the blameworthiness equally between the parties where both the drivers of the collided vehicles suffered serious injuries. It was also a case where the accident occurred at the middle of a wide road.
11. Relying upon those two decisions it was urged that the body of the motor: cyclist was found almost at the middle of the road and the contributory negligence should have been therefore assessed at fifty-fifth. We do not think that we could accept this submission. The motor cyclist's negligence in the instant case was of a higher order in driving his vehicle too fast and he should have taken due precaution while driving in a busy road The bus on the other hand was just pick-', mg up speed. His only fault was that;, he did not immediately stop the vehicle.1 In our opinion, the learned Judge was!, perfectly justified in assessing the respective fault of blameworthiness of the parties in the ratio of 60% to 40 percentage we do not find any error of principle or misappreciation of the fact.
12. When the Tribunal has appreciated the evidence in a reasonable manner, it is not proper for an appellate authority to interfere with the apportionment of contributory negligence. Lord Wright in British Fame (Owners) v. Macgregor (Owners) (1943 AC 197) observed that it would requiring a very strong case. to justify review of or interference with the question of apportionment of the fault of blameworthiness and there should be no interference with the trial court's view where no error of principle is alleged and misappreciation of the fact on the part of the Judge is suggested.
13. The next question relates to the quantum of compensation to be awarded. From Ext. P-1 the date of birth of the deceased could be seen as May 25, 1948. He died in the accident on December 30, 1975. He was about 28 years old at the time of his death. Ext. P-I and the evidence of P. W. 3 show that the deceased was getting a basic pay of Rs. 469/- and D. A. of Rs. 137/- per month. The total emolument of the deceased per month works out at Rs. 606/-. Normally one third of the earnings is taken for personal expenses of the deceased. One third of the emolument would come to Rs. 202/-. However, for convenient calculation, we round it off to Rs. 206/-. If Rs. 206/- are deducted from Rs. 606/- the monthly dependency of the claimant works out at Rs. 4007 and the annual dependency would come to Rs, 4,800. The deceased would have continued in service for another 27 years. The total dependency at the rate of Rs. 4,800/- for 27 years would come to Rs. 1,29,600/-. Petitioner-1 is an young widow land she has lost her husband at the early age. The loss of consortium constitutes a separate head of damages. We award Rs. 5,000/- under the heading 'loss of consortium'.
14. As observed by this Court in Parvathamma v. Syed Ahmed (1976) 2 Kant LJ 372 in addition to the loss dependency, the claimants are entitled to Rs.5.000/- more under the heading loss of expectation of life.
15. The deceased was working as a Foreman in the Metallurgical section and a Diploma Holder. P. W. 3 has stated that the deceased was due for promotion as Shift Engineer. That being the undisputed position, the claimants are also entitled to compensation for the loss of promotional opportunities to the deceased, in addition to the amount already awarded above. The deceased had a bright future. Therefore, we think that in the circumstances of the case we will not be in error in adding a further sum of Rs. 60 per month to the value of dependency. At the rate of Rs. 50/- per month for 27 years, it comes to Rs. 16,200/-. The total amount of compensation thus comes to Rs. 1,55,800/-.
On account of awarding of lump sum and taking into consideration uncertainties of life, normally one-third of such amount is given deduction to one-third of the same comes to Rs. 51,933/-. If that is deducted the net amount of compensation comes to Rs. 1,03,867/-. It has to be reduced to 40 per cent which comes to Rs. 41,546/-. The claimants are thus entitled to Rs. 41,546/-.
16. Claimants 2 and 3 are minors. Taking into consideration their ages, we think it reasonable to award Rs. 10,000/- to each of them and the remaining amount to claimant-1. The amount awarded to the minors are ordered to be invested in a beneficial scheme of any nationalized Bank till they attain majority.
17. In the result, the appeal is dismissed and the cross-objection are allowed to the extent indicated above.
18. In the circumstances of the case, we make no order as to costs.
19. Order accordingly.