1. This is an appeal under Section 110-D of the Motor Vehicles Act, 1939, against an award dated 30th April 1971 made by the Motor Accidents Claims Tribunal, Damoh, by which the claim of respondents 1 to 4 was allowed to the extent of Rs. 28,098/-.
2. On 17th July 1969 an unfortunate accident happened in which a passenger bus was swept away by the flood waters of the river Sunar as a result of which seven persons lost their lives. One Salyanarayan Rao, who was Block Extension Educator in Batia-garh, was among the seven persons who died in the accident. Respondents 1 to 4, wholaid the claim before the Tribunal, are respectively the widow, two minor sons andone minor daughter of the deceased Satya-narayan Rao. The passenger bus which wasinvolved in the accident belonged toM/s. Chaurasia and Company, a partnership firm, which is the appellant in this appeal. The bus was going from Chhatarpur to Damoh. It was driven by John Victor, a driver employed by the appellant. Whilegoing from Damoh to Chhatarpur Sunarriver has to be crossed after Batiagarh.There is no regular bridge over the river;there is only a cause-way which gets submerged during floods. The bus reachedSunar river between 1 and 2 p.m. Theriver was flowing over the cause-way. Thereis a dispute between the parties as to thelevel of the water on the cause-way. Thedriver, in spite of the water flowing overthe cause-way, drove the bus over it. Afterthe bus had crossed about one third of thecause-way, it skidded towards the left and one of its wheels got stuck up in the stonesembedded on the sides. The passengers remained inside the bus, but after sometime when they found the water risingthey climbed over the top of the bus. Afterone or two hours the bus was swept awayby the flood and it rolled over as a resultof which the passengers sitting on the topwere thrown in the surging waters. Someof them were rescued; but seven personsincluding Satyanarayan Rao died. The Tribunal held that the accident happened dueto the negligence of the driver in drivingthe bus and that the appellant was liable.
3. The first contention raised by the learned counsel for the appellant is that there was no negligence on the part of the driver. It is argued that the water over the cause-way was only four to six inches and it was not unreasonable to attempt to cross the cause-way. It is pointed out that a police vehicle had crossed the river before the bus attempted to cross it. It is also argued that the passengers including Satya-narayaa Rao were themselves negligent in remaining in the bus and they could and should have crossed the river by walking over the cause-way. It is then contended that the death of the passengers was caused by their own negligence and not by the negligent driving of the bus.
4. In our opinion, there is no substance in any of these contentions. Bhagi-rath (A. W. 5) was one of the passengers in the bus. He was also swept away but hecould be rescued. His evidence is that atthe time when the driver drove the bus overthe cause-way the stones embedded on thesides were under water and they were notvisible. According to him, there was abouttwo feet of water on the cause-way. He hasfurther stated that the strong current ofwater pushed the bus towards the left sideand one of the wheels got stuck up in thestones embedded on sides of the cause-way. The driver could not extricate the bus. The passengers then alighted from the bus on the cause-way, but they found that the water was upto waist-level. The passengers out of fright again went inside the bus. Slowly and slowly the water went on rising and when it started pouring in from the windows of the bus, the passengers climbed on the top of the bus. The bus, after some time was pushed outside the cause-way by the current and later it rolled over. It will be seen that according to the statement of this witness the water level on the cause-way at the time when the driver drove the bus over it was about two feet. This part of the statement gets support from the fact that because of the force of water the bus was pushed towards the left side and got stuck up in the stones. The appellant examined on this point three witnesses. They are Jamna Prasad (N. A. W. 3), Shankerlal (N. A. W. 4) and Pransingh (N. A. W. 5). According to the evidence of Jamna Prasad (N. A. W. 3), the water, when the bus entered the cause-way, was only about four to six inches. He stated that a person, who is sister's son of one Raghubir Prasad, came near the bus and asked the passengers to cross the cause-way on foot. The witness further stated that the passengers were willing to cross on foot, but the deceased Satya-narayan Rao dissuaded them by saying that the bus was quite heavy and it will not be swept away and that helicopter and boats will be coming to save the passengers. The evidence of this witness is quite unnatural. It is impossible to believe that Satyanarayan Rao would be telling the passengers to wait for helicopter and boat and the passengers would agree to it if it was possible to cross the cause-way on foot. The statement of this witness that there was only four to six inches of water on the cause-way itself appears to be false. Had the level of the water been so low, there would have been no difficulty in manoeuvring the bus and in crossing the cause-way. The very fact that the bus was pushed by the force of the water towards the left side and got stuck up shows that the water level on the causeway was much above four to six inches as deposed by the witness. Shankerlal (N. A. W. 4) was also one of the passengers. His statement is that he crossed the cause-way on foot. His evidence is that when the bus stopped on the cause-way after it got stuck up in the stones and he and the other passengers alighted, the water on the cause-way was upto knee-level. Even if we accept the evidence of this witness that he could cross the cause-way and return back to Batiagarh side of the river on foot, it is clear that at the time when the bus stopped on the cause-way the water was about knee-deep and it was quite risky to cross the cause-way on foot, May be that the witness Shankerlal was fortunate in successfully returning on foot to Batiagarh side,but it cannot be said that it was not a lisky step to take and other passengers should have taken that risk. Pransingh (N. A. W. 5) states that when the bus entered the cause-way the water over it was only three to five inches. He also states that when the passengers wanted to cross the cause-way on foot, they were persuaded by the deceased Satyanarayan Rao not to do so by stating that they would be rescued by helicopter. The evidence of this witness, like that of Jamna Prasad (N. A. W. 3), is wholly unnatural and cannot be believed. Another witness, which may here be mentioned, is Raghuwar Prasad (N. A. W. 2). He is a bus contractor. He lives in Narsinghgarh which is at a distance of one mile from Sunar river. His statement is that when he came to know that a passenger bus was stranded in the river, he came to the bus after crossing the cause-way on foot. According to his evidence, the water on the cause-way was at that time only six inches. He further stated that he had requested the passengers to cross the cause-way on foot, but they replied that they would not do so and that they will remain inside the bus. In his cross-examination this witness has admitted that the water level on the cause-way was knee-deep at the time when he was talking to the passengers. The statement of this witness in the examination-in-chief that the water on cause-way was only six inches or so appears to be false. In our opinion, the witness who is a bus operator has tried to help by his evidence the appellant. It may here be mentioned that according to the evidence of Shankerlal (N. A. W. 4), Raghuwar Prasad did not come to the bus and only his nephew came. Even if we believe the evidence of Raghuwar Prasad (N. A. W. 2) that he went up to the bus, we are not prepared to believe that the water level was only six inches over the cause-way.
5. Having considered the evidence as a whole, we agree with the Tribunal that the evidence of Bhagirath (A. W. 5) should be preferred as against the evidence given by the appellant's witnesses. Our conclusion is that the water was at least two feet over the cause-way when the driver drove the bus over it. The water was continuously rising and it was risky for the passengers to cross the cause-way on foot. The fact that the current was sufficiently strong is shown by the circumstance that the bus was forced towards the left side as a result of which one of the wheels got entangled in the stones and the driver could not extricate the bus to put it on the right course. The story that the deceased Satyanarayan Rao gave assurance to the passengers that they would be rescued by helicopter and boats is entirely false; no such assurance was given. In the situation in which the passengers were placed there were two alternatives before them. One was to take the risk of crossing the river on foot by walking over the causeway and the other was of remaining in thebus in the hope that the water after some time will recede, Both the alternatives involved risk to their lives. The passengers except one preferred the alternative of remaining in the bus. Their hope that the water will recede proved to be wrong. The water continued to rise as a result of which the bus was swept away.
6. The question then is whether the driver was negligent and whether his negligence caused the death of the passengers. It cannot be doubted that the driver owed a duty of care for the safety of the passengers. It is a matter of common experience that when a cause-way or a bridge gets submerged it is very risky to cross it on a motor vehicle. In the instant case the water over the cause-way was about two feet; even the stones embedded on the sides were completely submerged and were not visible. Further, the water was rising. In such a situation, it was extremely dangerous for the safety of the passengers to drive the bus over the cause-way. The driver should have waited till the water receded and he should not have attempted to cross the cause-way. The driver was clearly in breach of his duty which he owed to the passengers and was, therefore, negligent. Learned counsel for the appellant pointed out that a police van had earlier crossed the cause-way some minutes before the bus was driven over the cause-way. Even if we assume that a police van was successful in crossing the cause-way before the driver of the bus attempted to cross it, it cannot be held that the driver of the bus was not negligent. If one person is negligent and takes a risk and luckily avoids damage, others do not get a right to commit a similar negligent act. The cause-way was not at all visible and even the stones on the sides were wholly under water. The force of the current was sufficiently strong and the water was rising. It was reasonably foreseeable that in an attempt to cross the cause-way in such a situation the bus w as likely to get stuck up or swept away endangering the life of the passengers. The death of the passengers must, therefore, be taken to have been caused by the negligence ot the driver.
7. There is no merit in the argument that the death of the passengers was a result of their own decision to remain in the bus, and that they should have crossed the cause-way on foot and saved themselves as was done by one of the passengers. In deciding whether a particular damage was caused by a negligent act it has to be seen whether it was a direct consequence of the negligent act and whether it was foreseeable. If the persons affected by the negligent act of the defendant are exposed to risk of mis-judgment or accident which would not have otherwise arisen, further damage from the materialisation of this risk may be recoverable. A reasonable act done by the persons affected by the negligence in a dilemmacreated by the negligent act cannot be held to be novus actus interveniens which breaks the chain of causation; [See Munkman, Damages for Personal Injuries and Death, 5th edition, p. 31; Clerk & Lindsell on Torts, 13th edition, Pp. 194 508, 509]. In the City of Lincoln, 1889 PD 15 a collision took place between a steamer and a barque in which the steamer alone was to be blamed. The steering compass, charts and other instuments of the barque were lost in the collision. The captain of the barque made for a port of safety, navigating his ship by a compass which he found on board. The barque, without any negligence on the part of the Captain or crew, and owing to the loss of the requisites for navigation, grounded and was abandoned. The Court of Appeal held that grounding of the barque was a natural and reasonable consequence of the collision and the owners of the steamer were liable. It will be seen that in this case the captain of the barque was placed in the difficulty of taking a decision for the safety of the barque as a result of the collision. He may have decided to remain where the barque was in the hope that the vessel would be picked up. The other alternative, which was chosen by the captain, was to make for a port of safety. Neither of these actions could be called unreasonable. As the captain's decision in the circumstances created by the collision was a reasonable one, it did not constitute an intervening act breaking the chain of causation. Another case which may be mentioned is Lord v. Pacific Steam Navigation Co., Ltd., the Oropesa (1943) 1 All ER 211 (CA). The facts of this case, as briefly stated in the head-note, were that a collision occurred between the Oropesa and the Manchester Regiment as a result of which the latter vessel was so seriously damaged that the captain ordered the majority of the crew to take to lifeboats. He then decided to go with 14 of the crew to the Oropesa in another lifeboat. He hoped to persuade the captain of the Oropesa to take the Manchester Regiment in town or to arrange for salvage assistance and, in any event, to arrange for messages for help to be sent out and to obtain valuable advice. This lifeboat capsized and nine of the crew lost their lives. The question before the Court was whether the death ot the crew was a direct consequence of the negligent act of the Oropesa in running down the Manchester Regiment. The contention was that the chain of causation had been broken by the act of the captain in attempting to go to Oropesa with the crew in a lifeboat. In rejecting this contention it was held that the action taken by the captain was a natural consequence of emergency in which he was placed by the negligence of the Oropesa and there was no break in the chain of causation, and that the death of the seaman was a direct consequence of the negligent act of the Oropesa.The principles of these cases apply to the instant case. The passengers that were marooned by the negligent act of the driver were faced with an emergency. There were two alternatives before them. One was of taking the risk of crossing the river by foot over the cause-way; and the other was of remaining in the bus in the hope that the water would recede. Considering the circumstances of the case, the decision taken by the passengers to remain in the bus cannot be said to be an unreasonable one and so their remaining in the bus cannot be held to be an event which broke the chain of causation. In our opinion, the death of the seven passengers including Satyanarayan Rao was a foreseeable damage and was caused -by the negligent act of the driver. The appellant who is the owner of the bus is clearly vicariously liable for the negligent act of his driver.
8. Learned counsel for the appellant next argued that the Claims Tribunal had no jurisdiction to entertain the claim of the respondents, because the accident did not arise out of the use of the motor vehicle. Reference in this connection was made to Section 110 of the Act. The Claims Tribunals are constituted under this section 'for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising or both.' The argument that the accident in the instant case did not arise out of the use of motor vehicle must be rejected. We have already held that the death of the seven passengers was caused by the negligent act of the driver in driving the motor vehicle over the flooded cause-way, It was the use of the motor vehicle by the driver in a negligent manner that caused the accident. There was no break in causation. The accident, therefore, arose out of the use of the motor vehicle and the Claims Tribunal had jurisdiction to entertain the claim.
9. It was lastly argued that in awarding damages the Tribunal has not taken into account the fact that the dependants of the deceased are being paid and will be paid a family pension of Rs. 120/-per month by the Government for five years. It is also argued that correct principles have not been applied in computing the amount of compensation.
10. The principles on which damages are assessed in a case of fatal accident have been discussed by a Division Bench of this Court in Kamla Devi v. Kishanchand, AIR 1970 Madh Pra 168. After referring to the relevant Indian and English authorities it was pointed out that the assessment of damages in ordinary cases resolves into estimating the proper annual dependency, the multiplicand and selecting the number of years' purchase, the multiplier. Thismethod of arriving at the amount of dama-ges has again been approved by the House of Lords in Taylor v. O'Connor, 1871 AC 115. The object is to estimate what amount should be awarded so that its income supple-mented by drawings on capital may yield the amount of annual dependency during the remaining period of dependency or the estimated remainder of the working life of the deceased which ever may be shorter. The multiplier selected is not equal to the number of years of dependency or to the remainder of the working life of the deceased; it is much less, for it takes into account that instead of yearly payments a lumpsum is being awarded and that contingencies may arise in future to cut short the period of dependency. Growing inflation has led to the caution of emphasising that the sum to be awarded should be assumed to be invested in 'growth' stocks carrying a low rate of dividend; (Taylor v. O'Connor 1871 AC 115 (supra)). This, in effect, is the same thing as saying that valuation should be made of an annuity on the basis of low interest rates such as 4 to 5% which assume that the money values are steady but involve a higher number of years' purchase; [See Munkman, Damages for Personal Injuries and Death 5th edition, p. 157]. Notice has also to be taken of the pecuniary benefits which become available to the dependants as a result of the death of the deceased and which would not have been available to them had the deceased lived. In England, under the Fatal Accidents Act, 1959, 'any insurance money, benefit, pension or gratuity which has been or will or may be paid in respect of the death' has to be disregarded in computing damages. There is no such corresponding Taw in India and, therefore, these benefits must be brought into account in the award of damages as was previously done in England; [See for example a case of pension, O'Neill v. S. J. Smith & Co. (Bidford Ltd.), (1957) 3 AH ER 255.
11. The relevant facts found in the instant case are that the deceased was 44 years of age and he was earning Rs. 312/- p. m. in Government service. He would have continued in service till the age of 58 years and may have got re-employment for a year or two. The estimated remainder of the working life of the deceased thus comes to 16. The claimants are the deceased's widow of nearly the same age, two minor sons aged 10 and 6 and one minor daughter aged 2. The dependency would have thus lasted for the whole of the remaining working life of the deceased. The Tribunal has estimated that the deceased must have been spending Rs. 200/- per month for the maintenance of the dependants. So the annual dependency comes to Rs. 2400/-. Applying a multiplier of 11, the amount that would compensate for the loss of dependency works out to Rs. 26,400/-. The present value off an annuity of Rs. 2400/- for 16 years on the basis of interest rate at 5% also comes near-ly to the same amount; [See Archer's Loan Repayment and Compound Interest Tables, 10th edition, p. 366]. The claimants are and will be getting a family pension of Rs. 120/- per month for a total period of five years which they would not have got had the deceased been alive, The benefit flowing from this pension must be deducted from the amount of compensation to be awarded for loss of dependency. The total amount received or to be received as pension works out to Rs. 7,200/-. But as this amount has not been received in a lumpsum but in monthly instalments, it would be proper to deduct only Rs. 6,000/- on this account. The compensation payable after this deduction works out to Rs. 20,400/-. The claimants have also been paid a gratuity of Rs. 2,800/- which they would not have received but for the death of the deceased. It has, however, come in evidence that the deceased on retirement would have got a gratuity of Rs. 4,680/- and a pension of Rs. 100/- per month. The claimants would have certainly got some benefit out of this amount of gratuity and pension had the deceased been alive and this loss has also to be taken into consideration. Speaking roughtly, the loss on this account can be taken to have squared up the gain of the amount of gratuity received by the claimants. So the total amount of compensation payable to the claimants works out to Rs. 20,400/-. The Tribunal in making its award did not take into consideration the amount of pension received by the claimants and did not apply correct principles. The award must, therefore, be modified.
12. The appeal is partly allowed. The amount of compensation awarded against the appellant is reduced to Rupees 20,400/-. Out of this amount the Insurance Company will pay Rs. 2,000/- as already directed by the Tribunal. In all other respects the appeal fails. Parties shall bear their own costs of this appeal.