1. This appeal by the Karnataka State Road Transport Corporation (K.S.R.T.C.) arises out of and is directed against the award dated 18-12-1982, made in M.V.C. 163 of 1981, on the file of the Motor Accidents Claims Tribunal, Bangalore City, awarding a compensation of Rs. 60,000/- to the mother of the deceased-person in a fatal accident's action.
2. H.T. Suresh, aged 24 years, a Goldsmith by profession died as a result of the injuries in an accident that occurred at 12.30 P.M., on 24-6-1981 a few Kilometers from Bangalore on the Bangalore-Mysore road involving appellant's Bus MYF 847. It was alleged that, at the time of the accident, the bus, which was plying on Route No. 57, was on a down-gradient and while over-taking a bullock-cart dashed against the bullock-cart in the first-instance and also knocked down and ran-over Suresti, who was riding his bicycle ahead of the bullock-cart. Suresh died on the spot. He was un-married. Bhawani Bai, his mother, brought the present action for award of compensation.
3. In the enquiry, the claimant tendered evidence as P.W.I. A certain Manjunath, P.W.2, tendered an eye-witness account of the incident. H.T. Venkatesh, P.W. 3, an elder-brother of the deceased gave evidence. Exts. P.1 to P.11 were marked in evidence on the side of the claimant. On the side of the appellant, Chandpasha, the driver of the bus, was examined as R.W, 1.
4. On a consideration of the evidence, the Tribunal entered a finding that the accident was attributable to the actionable-negligence on the part of the driver of the bus In regard to the quantum of compensation the Tribunal, on some calculation of its own, estimated the loss-of dependency at Rs. 84,000/-. It however, proceeded to deduct l/3rd thereof towards the uncertainties and vicissitudes of life and scaled-down the award to Rs. 56,000/-. It also proceeded to deduct Rs. 5,000/- the value of two plots of land owned by the deceased and which, presumably, passed on to the claimant-mother by succession, as a benefit arising out of the death. We will have occasion to say something about the correctness of this deduction a little later.
5. To the resultant figure of Rs. 51,000 so arrived at by the Tribunal, were added awards in the sum of Rs. 5,000/- towards loss of expectation of life; Rs. 3,500/- for funeral expenses and obsequies and Rs. 250/- for damage to the Bicycle. The award was rounded of to Rs. 60,000/-.
6. We have heard Sri CM. Desai, Learned Counsel for the appellant and Sri N. Subramanya Sastry, Learned Counsel for the respondent-claimant. We have been taken through the award under appeal and the evidence on record.
7. On the contentions urged at the hearing, the points that fall the determination in the appeal are:
(a) Whether the finding of the Tribunal as to actionable-negligence on the part of the driver is un-supportable on the evidence on record and calls for interference in appeal ?
(b) If point (a) is held against the appellant, whether the quantum of the award is disproportionately high and requires to be scaled-down ?
8. Re: Point (a):
Sri CM. Desai, contended that the finding of the Tribunal as to negligence is not reached on a proper appreciation of the evidence on record; that the evidence of P. W. 2, the alleged eye-witness, on his own admissions, is not credit worthy and that the material on record does not probabalise, much less establish, that the Bus at all hit or collide against cyclist-Suresh. What emerges from the material on recoed, contends Counsel, is that the death of cyclist-Suresh was in all probability the result of a prior collision between the bullock-cart and the cyclist, even before there was collision of the bus with the bullock-cart.
9. Before going into the disputed matters, it appears appropriate to refer to certain admitted positions in the case. It is not disputed that the cyclist, the bullock-cart and the bus, in that order, were proceeding in the same direction on the road, one behind the other. It is also admitted that the bus in its attempt to over-take the bullock-cart hit the bullock-cart and that in front of the bullock-cart was found the body of Suresh, badly mutilated. After the collision the bus, it is not disputed, went on 150 feet further before it could be stopped. It is not also disputed that the bullock-cart was found 39 feet ahead of the spot of the impact. It is not disputed that the injuries that Suresh suffered included a crushing of the skull, side to side, and a collapse of the thorax by the crushing of the ribs on both sides. These matters are not disputed.
10. As to the cause of the death the post-mortem report, Exhibit P. 15, says that 'death was immediate and due to shock and haemorrhage as a result of injuries sustained (run-over)'.
11. The version of the Driver (R.W. 1) is that at the time he was about to over-take the bullock-cart, the bullocks went berserk on the road, frightened by a bus approaching from the opposite-side and that the brakes of his own bus failed and the bus hit the bullock-cart owing to the bullocks having strayed into the course of the bus. This theory of mechanical failure, it must be noticed, is not suggested in the statement of objections.
12. It is true that in an action for negligence, as indeed in every other action, the burden of proof, as a matter of law, falls upon the party alleging it. It is for the party that incurs the evidentiary risk of non-persuasion, to give evidence of the facts, on which he bases its claim for damages. Its evidence must consist of facts, either proved or admitted, or reasonable inferences therefrom, on the basis of which negligence may reasonably be inferred. The standard of proof is not proof beyond reasonable doubt; it is on a balance of probabilities, what is to be established is actionable-negligence; not culpable negligence or rashness.
13. In the present case, the evidence of P.W. 2 is that he was coming on the same road from the opposite direction and saw the bus coming down at great speed and colliding against the bullock-cart in the first instance and thereafter hitting the cyclist. Sri CM. Desai, invited our attention to some answers of this witness in the cross examination to contend that it was improbable that this witness was-not anywhere near the scene of occurrence. The portions of the cross-examination referred to are:
I had not cited the cycle prior to accident, but however, I had seen the bus. I went there only after the accident. The bus after dashing the cycle went to a distance of about 120 feet... .
14. But in the course of his examination-in-chief this witness had stated:
I noticed B.T.S. bus MYF 847, plying over route No. 57 proceeding over Mysore Road from City Market side towards Mysore road side, moving in a high speed in a rash and negligent manner, it was moving over down gradient, the said bus on account of its high speed dashed against the bullock cart, which cart was moving in its extreme left side of the road, the said bus after dashing the bullock cart and dashed against the cycle and cycle rider, on account of which, the cycle rider sustained severe injuries over his head and other parts of his body, and succumbed to the same on the spot.
15. We agree with Sri Subramanya Sastry that the portion in the cross examination should not be taken shorn of its context and this part of the evidence, if properly read, would mean nothing more than that P.W. 2 saw the accident from a distance and then came to the actual spot after the accident. In the circumstances, we think that the criticism that P.W.2 was a got-up witness and was not on the spot at all may not be justified. The witness it is not disputed, is otherwise disinterested. It is also relevant to note that he had been cited as a witness for the prosecution in the chargesheet, Ext. P.3, also.
16. There is also intrinsic material to sustain the conclusion that the injuries sustained by the cyclist was the result of the impact of the collision by the bus. The collision of the bus with the bullock-cart is not disputed. Attempting to explain the injury to the cyclist, the statement of objection says:. It is further submitted that the deceased H.T. Suresh met with the unfortunate accident which was inevitable in the circumstances. The accident occurred inspite of all the care taken by the driver of the bus: but unfortunately the bullock-cart having come in the way because of the frightened bullocks, the unfortunate accident occurred in the manner explained hereafter and as such, the driver of the bus alone could not be held responsible for the accident.
(under-lining supplied). The driver of the bus sounded the horn and gave caution to the cart driver who tried to take the cart to his left to enable the driver of the bus to overtake and proceed further and accordingly while the driver was trying to overtake the cart after giving the necessary and sufficient caution, the bullocks probably having scared/frightened started going helter-skelter, with the result, the cyclist was dashed by the cart and the cart also having come in contact with the bus in the said process, and the bullocks going helter-skelter, the bus had to be stopped with great difficulty and in the meanwhile, the deceased bad sustained the injuries and subsequently died. Under these circumstances, it is submitted that it cannot be said that the accident occurred as a result of rash and negligent driving of the bus by the driver of the Corporation.
17. This suggests a theory of multiple accident. Even if the cart hit the cyclist-that is not the probability and what is probable being that Bus hit the cyclist-the initial cause is the driver's negligence. In such cases it is the duty of the Court to ascertain whether the inference from facts proved or admitted are consistent with R.W. 1's negligence rather than any other cause. i
18. Charlesworth & Percy on 'Negligence', (Seventh Edition at para 5-18) say:
There is evidence of negligence if the facts proved and the inference to be drawn from them are more consistent with negligence on the part of the defendant than with other causes. Negligence may be reasonably inferred from facts, which make it more probable that it was negligence on the part of the defendant, that caused the damage in question, rather than any other cause.
19. In N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal and Ors. 1980 ACJ 435 observed thus:. Accidents Claims Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable.
20. The version of the driver in the evidence that there was mechanical-failure in that the breaking-system gave way, appears a clear afterthought. Even then, the mere evidence of mechanical failure is not sufficient. It must be shown that appellant had taken all reasonable step to maintain the vehicle in a road-worthy condition.
21. The question, in the final analysis, boils down to this: Whether the fatal-injuries to Suresh were caused by collision of the bus or whether they were caused by the bullock-cart independently of and apart from any negligence on the part of the driver of the bus. Having regard to the admitted circumstances attending the accident; the nature and severity of the injuries sustained by the victim; and the circumstances and conditions made manifest by the evidence, the theory that cyclist-Suresh died of injuries sustained by an independent and prior collision with the bullock-cart is highly artificial and is irreconcilable with the probabilities of the matter. It is reasonable to hold that the injuries were caused by the speeding-bus hitting the cyclist. We, therefore, see no justification to interfere with the finding recorded by the Tribunal on this point. Point (a) is held and answered against the appellant.
22. Re: Point (b):
In regard to quantum of compensation the Tribunal took note of the circumstance that even at a fairly early age of 24 deceased-Suresh was engaged as a licenced-goldsmith. Ext. P. 9 is the licence. He is shown to have purchased some sites under Exts. P. 1 and P. 2. It is also in evidence that he was paying a rent of Rs. 160/- for his shop; and Rs. 150/- for his residence. The material on record indicates that he was an up and coming craftsman and would, perhaps, have made substantial progress in his avocation in the years to come if his life had not been so tragically and prematurely snuffed-out.
23. The Tribunal estimated the loss of dependency of the claimant-mother at Rs. 700/- per month and capitalised that on 5 years purchase in the first-instance. The Tribunal predicated; that Suresh, had he lived, would have married by about that period with the attendant diminution in the quantum of his financial contribution to his mother. Tribunal therefore, estimated the dependency at Rs. 350/- per month for the subsequent period and capitalised it on 10 years purchase. The multiplier employed would cumulatively, be '15'. But then, the Tribunal scaled-down the award for uncertainties of life, for lumpsum payment and other consideration by l/3rd. That process, in effect, brings down the multiplier to '10' This method of calculation, in effect, results in the assumption of a flat rate of dependency of about Rs 5,000/- per year if a multiplier of '11' is considered apposite. However, having regard to all the circumstances of this case, we think, we would not be in error in estimating the loss of dependency, so far as the mother is concerned, at Rs. 4,200/- per year which if capitalised on the multiplier of 11 appropriate to the age of the mother, would yield Rs. 46,200/-. To this is to be added a sum of Rs. 6,000/- towards loss of expectation of life; Rs. 3,500/- towards funeral expenses and obsequies and Rs 250/-towards damage to the cycle. The total would be Rs. 55,050/-, which is rounded off to Rs. 56,000/-.
24. Before parting with the case, there is one conceptual error in the award which, we think, should not be left uncorrected. The Tribunal is of the view that the value of the property which the deceased leaves behind to his heirs is a benefit arising out of death to the dependants and in a fatal accident's action and should require to be deducted in the compensation.
25. The general principle is that in awarding compensation the pecuniary loss to the dependants can only be ascertained by balancing the loss of them of the future pecuniary advantage against the gain, from whatever source, which comes to them by reason of the death. The balance of loss and gain by the death must, of course, be ascertained. However, this concept of deductibility of collateral benefits accruing to the dependants by reason of the death, to lessen damages, has lent itself to some controversies. In the practical application of the principle in the varied and diverse contexts in which the question arises there have been some peculiar difficulties. The views taken by the Courts are, sometimes, difficult of reconciliation with the principle, particularly in the area of deductibility of the benefit in cases of inheritance of the estate of the deceased-person. There might, perhaps, be exceptional cases-which is not necessary to identify here--where acceleration of the inheritance or the accelerated devolution of the deceased's estate might have to be put into the scales.
26. But the recent trend of judicial opinion is that, in the generality of cases, such a deduction towards the benefit of acceleration of devolution, let alone, as done in the present case, the entire value of the estate, cannot be considered permissible.
27. In the Court of Appeal, in Daniels v. Jones 1961 (3) AH. E.R. 24 at 31. Willmer, L.J. said.. But I do not at all assent to the proposition that, in the particular circumstances of this case, the value of the estate is to be set off pound for pound against the loss of income as a matter of precise arithmetical calculation. There has been considerable dispute as to the value of the deceased's estate. But whatever id value, the reality of the situation is that for all practical purposes the widow (and her family) were enjoying the benefits of it almost as much before the death of the deceased as they do now. The fact that the widow, under the deceased's will has now become absolutely entitled to what is left of the estate is in the circumstances a change of form rather than of substance... .
28. In Munkman: 'Damages for Personal Injuries and Death' (Fifth Edition, 1973), learned author says:
In general the facile practice which prevailed some years ago of making automatic deductions for the value of property inherited is falling into desuceude. The Courts are taking the common sense view that the family as a whole enjoyed the benefit of the father's property before the death and it is not some new and countervailing benefit which has come to them for the first time: while on the other hand they have lost completely the benefit of his earnings on which the claim is really based.
29. In Kassam v. Kampala Aerated Water Co. Ltd. (1965) 2 All. E R. 875 the facts were these: An Indian trader and his wife were both killed in the same accident so that all the property came to the children. On the question of set-off of the benefit of acceleration of devolution of the estate, Lord Guest declined any set-off and supplied an additional reason:
This is a highly speculative matter, and having regard to the anticipated savings which might reasonably have been expected to be made by the deceased if he had lived, no deduction ought to be made on the score of accelerated benefit, as these two figures very largely cancel out.
30. In the same case Holroyd Pearce L J. pointing out the anomalies that the position canvassed for would produce said:
If Mr. Chapman is right on all his contentions it is shown that the widow has lost nothing by her husband's death. If that be so, it is a strange result in this case. This was plainly a very happy marriage and the husband was a high-earning, frugal man who saved and provided very generously for his family. It is difficult to believe that the widow had sustained no loss when she found herself in possession of his capital of 40,000 (to take Mr. Chapman's figure) less upwards of 10,000/- death duties, and when his high earnings were no longer available for the family. If Mr. Chapman's arguments are correct and if arithmetically the conclusion must be that there is no loss in this case, arithmetic has failed to provide the answer which common sense demands... .
31. In another case it was stated that it was 'grisly way' of looking at things to say that a widow benefited from her husband's premature death because she received what he proposed to leave her.
32. Indeed, in England Section 4(1) of the Fatal Accidents Act, 1976 provides that 'In assessing damages in respect of a person's death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded.' As a result of this it follows that the substantial case law and such controversy as existed on the topic are now obsolete and can be safely consigned to 'the legal waste paper basket.' Even before the amendment the trend of decisions was not to allow set-off on account of acceleration of interest except in extreme cases. The categories of benefits which must not be taken into account to lessen damages were considerably widened.
33. A benefit which was pre-existent cannot be said to arise out of the death. What pre-existed and merely passed on the death cannot be said to arise out of the death. Referring to the position even in the absence of statutory-prescription McGregor On Damages, Fourteenth Edition, Para 1330 states:
Even in the absence of statutory prescription of various deductions, the Courts have found their way to holding, in relation to certain collateral benefits received by the dependants that, they did not have to be taken into account on the grounds that they did not result from the death although following upon it... .
34. In the present case the Tribunal has taken the entire value of the two sites as eligible for deduction to lessen damages. This is wholly incorrect. In a situation of this kind no deduction could be made even for the acceleration of the devolution of interest.
35. In the result, for the fore-going reasons this appeal is allowed in part and in modification of the award and decree under appeal the compensation is reduced from Rs. 60,000/- to Rs. 56,000/-, on which the claimant shall be entitled to interest at 6 per cent per annum from the date of petition till date of payment. Appeal is disposed of accordingly. Parties are left to pay find bear their own costs in this appeal.