1. Negligence is writ large in a headon collision between two vehicles coming from opposite direction on a straight road. An accident of this kind so obviously attracts the doctrine of res ipsa loquiter as such happenings do not normally occur except on account of negligence of one or both the drivers. The accident in the present case was precisely of the type described yet the Tribunal held against the claimants on the issue of negligence. This is where it so gravely erred. The claimants here being the widow and children of Satish Kumar Sawhney deceased, a passenger in a taxi, which was one of the vehicles involved in the accident.
2. The accident here was between a Taxi DLT 5151 on its way to Delhi and the Haryana Roadways Bus HYA 2711 coming from the opposite direction. There was a head-on collision between these two vehicles almost in front of police station, Butana, on the Grand Trunk Road between Ambala and Karnal. This happened about 2.00 p.m. on March 1. 1978. The Taxi driver was killed at the spot while Satish Kumar Sawhney died in hospital the next day.
3. The Tribunal dismissed the claim for compensation filed by the complainants holding, 'it does not stand conclusively established on the record that the accident in question occurred on account of the rash and negligent driving of the Bus/Taxi or on account of the composite negligence or rashness of both the drivers'. The Tribunal also observed, 'it is also not clear on the record as to whether the accident in question could be averted by any circumspection or care on the part of either of the two drivers'.
4. There is no controversy in this case that there was indeed an accident between the bus and the taxi and that the accident occurred when the taxi was trying to overtake a truck with the bus coming from the opposite direction on its correct side of the road. Such being the situation, there was an apparent violation of the requirements of Regulation-4 of the 10th Schedule of the Motor Vehicles Act. This Regulation prohibits the over-taking of a vehicle by another travelling in the same direction, if this is likely to cause inconvenience or danger to other traffic on the road. In other words, it was incumbent upon the taxi-driver to have ensured that the road ahead was clear before proceeding to over-take the truck. Had he done so, he would have undoubtedly noticed the bus coming from the opposite direction and allowed it to pass before trying to over-take the truck. On the face of it, therefore, the taxi-driver cannot but be found to have been negligent in this accident.
5. As regard the bus-driver, his negligence or being free from blame would depend upon whether he had the opportunity to avoid the accident and if so, did he do all that a reasonable person could have done in the circumstances to avoid hitting into the taxi. There is no evidence forthcoming from the side of the claimants with regard to the manner in which the accident occurred. What is on record is merely the statement of the bus-driver R. W. 1--Piara Singh and R. W. 2--Mir Singh who deposed that he was travelling in the taxi involved in the accident.
6. According to the claimants, both the driver of the taxi as also that of the bus were negligent. The case pleaded being that the taxi was being driven rashly and negligently and that the accident occured when it was trying to over-take a truck going ahead. As regards the bus, it was stated that the bus-driver did not slow it down or take necessary safety precautions to avoid hitting into the taxi. The speed, of the bus was described as being very fast'.
7. The owner and insurer of the taxi, namely; the New India Insurance Company Limited attributed negligence to the bus-driver and blame this to be the cause of the accident. According to them, the bus was being driven in a zig-zag manner at a high speed when it came and hit into the taxi as the bus-driver was unable to control it.
8. Piara Singh, the bus-driver as also the Haryana Roadways and the State of Haryana laid the blame for the accident wholly upon the taxi-driver. As per their version, on seeing the taxi over-taking the truck in a rash and negligent manner, the bus was immediately stopped on its left side and it was then that the taxi came and hit into it.
9. Turning now to the evidence on record, no reliance deserves to be placed upon the testimony of R. W. 2. Mir Singh, as what he deposed to was not the case of any party, namely; that the accident occurred as one of the wheels of the taxi had slipped away.
10. As regards the bus-driver, R. W. 1--Piara Singh, it is apparent, on his own showing, that he had the time and opportunity to seek to avoid the accident, as he stated that he noticed the taxi for the first time when it was about 50/60 yards away, and seeing it, he took the bus off the road on to the kacha and stopped it there. He deposed that it was then that the taxi came and hit into the bus. It would be pertinent to note here that it was the front portion of both the bus and the taxi that were damaged in this accident. Such damage could only have been caused by head-on collision. A head-on collision would clearly be inconsistent with the taxi coming in the middle of the road as deposed to by the Bus-driver and the bus having been taken on to its left and stopped on the kacha portion of the road. The damage to the two vehicles thus negatives this claim of the bus-driver that he had taken the bus off the road. It rather shows that neither vehicle gave way to the other and this is where the fault must be imputed to the bus-driver too.
11. Counsel for the claimants cited in support here a case of head-on collision between a car and a lorry, this being, The United India Fire and General Insurance Co. Ltd. v. Maddali Suseela 1979 A. C. J. 110 (Andh Pra) wherein it was observed, 'In a case where a head-on collision took place between two vehicles in a broad-day light, on a high way and when any one of them could have, with little care and presence of mind, averted the happening of the accident and if that it found to have not taken place, the negligence cannot be fastened to only one of them'.
12. The bus-driver was, no doubt, coming on his correct side of the road and it was the taxi driver who was in the wrong in trying to over-take the truck with the bus coming from the opposite direction. To this extent, the bus-driver was undoubtedly in the right, but the privilege of so being in the right cannot extent to causing damage to life or property of others, if such damage is avoidable or can be prevented. It gives no licence to one on its correct side of the road to knock down with impunity one on the wrong side thereof. An accident may in a particular set of circumstance be rendered unavoidable, which would, of course, be a different matter, but the wrong of one provides no licence for harm for being caused to him by any other road user.
13. Mr. B. S. Pawar, Assistant Advocate General, Haryana, on his part laid great stress upon the statement exhibit, R. W. 4/1, said to have been made by Satish Kumar Sawhney, deceased, just before his death, absolving the bus-driver for all blame for the accident. This statement is said to have been recorded by R. W. 4. A. S. I Sewa Singh on March 2, 1978. As per this statement, the accident had occurred when the taxi was trying to over-take the bus and it was specifically mentioned therein that there was no fault of the bus-driver in this accident, as it had occurred purely by chance. The precise word used being 'Itfaqia' and it was stated that no legal action was desired.
14. A strong attack was launched upon the genuineness of the statement of R. W. 4/1 by the counsel for the claimant and on very valid grounds too. According to A. S. I. Sewa Singh, this statement had been taken on March 2, 1978 but without recording the statement of any doctor that the deceased was fit to make a statement, nor was this statement witnessed by any doctor or any other person. What is more, the statement does not contain the signatures of the deceased. This was, however, sought to be explained by the fact that the deceased was being given glucose and was thus unable to sign. Be that as it may, it stands established on record that Mrs. Pushpa Sawhney-the wife of the deceased had reached Karnal the evening before, that is, on March 1, 1978 and she remained with her husband until he died the next day. She stated that she found her husband to be in agony with multiple injuries and his condition was deteriorating when she saw him on March 1, 1978. There was no improvement in his condition the next day despite blood transfusion and the doctor therefore, advised her to take him to some other hospital with better medical facilities. She accordingly took him to the All India Medical Institute at New Delhi, where he died. Seen in this context, grave suspicions are indeed aroused regarding the genuineness of the statement exhibit R. W. 4/1 with there being no opinion of any doctor that the deceased was fit to make a statement nor there being any witness to it. It is pertinent to note here that according to A. S. I. Sewa Singh, there was a lady sitting beside the deceased when he recorded this statement. This lady was presumably his wife and yet no question was asked from Mrs. Pushpa Sawhney regarding this matter when she came to the witness box. No reliance upon the statement Exhibit R. W. 4/1 can thus at all be justified.
15. Taking an overall view of the circumstances of the case in the light of the evidence on record, there can be no escape from the conclusion that this was a case of composite negligence with both the taxi-driver and the bus-driver being at fault. Considering, however, the manner in which the accident had occurred particularly that the taxi-driver was over-taking a vehicle at that time in violation of Regulation 4 of the 10th Schedule of the Motor Vehicles Act, negligence deserves to be apportioned at 25 per cent as that of the bus-driver and 75 per cent of the taxi-driver.
16. Turning now to the issue relating to the quantum of compensation payable to the claimants, the evidence on record show that Satish Kumar Sawhney was about 42 years of age at the time of his death. He died leaving behind his young widow Mrs. Pushpa Sawhney who was only 36 years old and their three minor children, the eldest of whom was only four years old. Satish Kumar Sawhney deceased was running a travel agency with an office both a Chandigarh as also in Delhi Mrs. Pushpa Sawhney stated that he paid Rs. 1000/- per month as rent for the office at Chandigarh and Rs. 350/- per month for the one at Delhi. Besides this, he also had a Manager, Receptionist and a Typist working for him in his office at Chandigarh and he maintained a car and telephone. Further, it was stated that the deceased lived in a rented house at Chandigarh, the rent of which was Rs. 500/- per month and two of their three children were studying in Carmel Convent School and third one in another school, Manav Mangal. These matters were highlighted by the counsel for the claimants with a view to show the standard of living of the deceased.
17. As regard the earning of Satish Kumar Sawhney deceased from his business, reference deserves to be made to the income assessment order. Ex. P.2 which pertains to the year 1975-76 to the year 1978-79. A reading of this order would show that unexplained cash to the extent of over Rs. 3 lacs was recovered from the residential premises of the deceased and it was after taking this into account that the income tax authorities had assessed his income if for the years in question as also imposed penalties under the relevant provisions of the Income-tax Act. It was on this basis that the counsel for the claimants now sought to establish the income of the deceased. It will be seen that the income as mentioned in the order Ex. P. 2 was as assessed by the income tax authorities and not that as claimed by the deceased or his heirs to be his income. In this behalf it is pertinent to note that the income-tax authorities fixed the income of the deceased without any books or vouchers being produced before them. In this situation, it would not be safe to accept, for the purposes of the present case that the income of the deceased was, in fact, as mentioned in the order Ex. P. 2.
18. The manner and style in which the deceased and the claimant were living and the business that he was engaged in, do indeed give an idea of what the earnings of the deceased must have been. Considered in the totality of the circumstances of this case in the light of the principles laid down by the Full Bench in Lachhman Singh v. Gurmit Kaur 81 Pun LR 1: (AIR 1979 Punj & Har 50), it could be a fair assessment to compute the dependency of the claimants at Rs. 10,000/- per annum. Sixteen would clearly be the appropriate multiplier here. So computed compensation payable would work out to Rs. 1,60,000/-.
19. The claimants are accordingly hereby awarded Rs. 1,60,000/- which they shall be entitled to along with interest at the rate of 12 per cent per annum from the date of the application to the date of payment of the amount awarded. Out of the amount awarded a sum of Rs. 40,000/- each shall be payable to the children of the deceased and the balance to his widow. The amount payable to the minor claimants shall be paid to them in such manner as the Tribunal deems to be in their best interest.
20. All the respondents shall be jointly and severally liable to the claimants for the compensation awarded except that the liability of the New India Assurance Company shall be limited to Rs. 10,000/-. The respondent shall be entitled to contribution inter se to the extent of their liability.
21. This appeal is accordingly accepted with costs. Counsel's fee Rs. 300/-
22. Appeal allowed.