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Khodabhai Bhagwanbhai and ors. Vs. Hirji Tapu and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 297 of 1974
Judge
Reported in1980ACJ237; AIR1980Guj25; (1980)0GLR187
ActsMotor Vehicles Act, 1939 - Sections 110-B
AppellantKhodabhai Bhagwanbhai and ors.
RespondentHirji Tapu and anr.
Appellant Advocate A.P. Ravani, Adv.
Respondent Advocate A.K. Shah, Adv.
Cases ReferredBerry v. Humm
Excerpt:
motor vehicles - contributory negligence - section 110-b of motor vehicles act, 1939 - claim petition preferred before claim tribunal - in case of contributory negligence defence does not depend on any duty owed by injured party to party sued - all that is necessary to establish such defence to prove satisfaction of injury that injured party did not in his own interest take reasonable care of himself and contributed to his own injury - in view of facts and circumstances deceased in present case contributed only 25 % of her own negligence and 75% was due to rash and negligent behavior of bus driver - claim of rs. 9000 passed after deducting 25 % towards contributory negligence of deceased. - - 3-13. x x x x 14. the aforesaid resume' of facts as established on the record of this case.....majmudar, j.1. this appeal is filed under s. 110-d) of the motor vehicles act by the original applicants in motor accident claim case no. 27 of 1970 filed before the motor accident claims tribunal, bhavnagar. their claim petition having been dismissed by the claims tribunal they have approached this court by way of the present appeal. the appellants, original applicants, preferred the aforesaid claim petition on account of the fatal accident caused to one bai ratan, who was the wife of original applicant no. i and mother of applicants nos. 2 to 9, that she died on account of an accident caused to her when she was traveling on foot on talaja palitana road on 8-7-70.2. the case of the original applicants is that at the relevant time deceased bai ratan was going on foot on the talaja.....
Judgment:

Majmudar, J.

1. This appeal is filed under S. 110-D) of the Motor Vehicles Act by the original applicants in Motor Accident Claim Case No. 27 of 1970 filed before the Motor Accident Claims Tribunal, Bhavnagar. Their Claim Petition having been dismissed by the Claims Tribunal they have approached this Court by way of the present appeal. The appellants, original applicants, preferred the aforesaid Claim Petition on account of the fatal accident caused to one Bai Ratan, who was the wife of original applicant No. I and mother of applicants Nos. 2 to 9, that she died on account of an accident caused to her when she was traveling on foot on Talaja Palitana Road on 8-7-70.

2. The case of the original applicants is that at the relevant time deceased Bai Ratan was going on foot on the Talaja Palitana Public Road, proceeding from Palitana to her village Mota pipaliya. She was walking an the extreme left side of the road. When she arrived near a Nala on the road known as 'Unda Nahere', an S. T. Bus being No. GTE 3409 belonging to respondent No. 2-State Transport Corporation and driven by its driver respondent No. 1 opponent No. 1, came from the opposite side i.e. from the side of Talaja and it was a passenger bus. According to the claimants, the bus was being driven on the wrong side of the road i.e. on the right hand side of the bus driver. It was alleged by the claimants that it was being driven at an excessive speed and the bus driver had not sounded the horn of the bus to warn Bai Ratan to give way. As a result of this, Bai Ratan was knocked down and was seriously injured and died on the spot, it was contended by the claimants that Ratan was aged 48 years at the time of her death and she was quite healthy. The claimants are a family of agriculturist and Bal Ratan was doing agricultural work as a labourer on daily wages and was earning Rs. 4/- per day. The applicants claimants themselves have their own agricultural lands (about 20 big has at the time of the filing of the application) and besides the work done by Bai Ratan on daily wages on the lands of others, she was also doing agricultural work on the claimants own land. Accordingly Bai Ratan's earnings per month were estimated at Rs. 100/- and on that basis, considering the life span of Ratan, an amount of Rs. 15,000/- was claimed as compensation by the claimants appellants in the Claim Petition preferred before the Claim Tribunal.

3-13. x x x x

14. The aforesaid resume' of facts as established on the record of this case clearly indicates that the S. T. driver namely the original opponent No. I had driven the vehicle in a rash and negligent manner with the result that the on-coming pedestrian was fatally hit. It is pertinent to note that, at the relevant time, the Palatina Talaja Road was running straight Whatever curvatures were there on the road were at a long distance as deposed to by the witnesses. The S. T. bus was coming from Talaja side while Ratan was proceeding towards Talaja side. Thus the pedestrian in question was coming from the opposite direction. The evidence shows that she was walking on the left side of the road i.e. quite on her Correct Side Under these circumstances, when the S. T. bus was being driven from the oppose direction on a straight road and when the S. T. bus was a crowded bus and when there was drizzling of Rain falling at that time as deposed to by the witness, the duty of the driver of the vehicle especially in such circumstances was to be extra vigilant and more careful so as to see that the on coming pedestrians are not run over by his vehicle. The conductor of the S.T. bug has deposed that the driver of the S. T. bus had sounded the horn. But it should be appreciated that when there was drizzling of rain, Bai Ratan must have covered her head with a quilt to save her from the rain water. The driver should have, therefore, acted with more care and should have visualized that the horn may have not been heard by the pedestrian on account of the drizzling of the rain water as well as the fact that, her ears were covered by a quilt to serve as a protection from the rain water. Under these circumstances, he should, have driven the vehicle most carefully and if it were so this unfortunate accident would have been avoided and a precious life would not have. been lost. Save and except the sounding of horn, it appears, the S.T. bus driver felt no other duty on his part to take care and he seems to have driven the heavily loaded vehicle with passengers with lot of speed and that has insulted in this unfortunate accident. 'Even apart from the afore said fact which clearly emerges from the record, a further fact that is also well established is that even after the impact, the dead body is stated to have been lying 40 to 50 feet away from the bus as seen from the Panchnama. The Panchnama recited that there were wheel marks of the application which extended upto about 50 feet on the east of the place where the bus was standing at the time of preparation of the Panchnams. Mr. Shah submitted than in a heavy rain such wheel marks cannot remain after a couple of hours when the Panchnama was made and these recitals in the Panchnama appear to be false ones The Claims Tribunal was inclined to accept the aforesaid submission on be half of the respondent. if is not possible for us to accept the aforesaid submission of Mr. Shah for the simple reason that the case (of) the opponents as reflected in the trend of the cross examination of the claimants' witness Chhagan Khima Exh. 43 completely gives a go bye to this defence. In para 5 of the cross-examination of witness chhagan Exh, 43 a suggestion was made on behalf of the opponents themselves that the driver of the S. T. Bus had applied brakes twice or thrice before the collision. If that was the case it must necessarily follow that the application of brakes twice or thrice by the driver when the vehicle was in speed would necessarily result in the wheel marks being impressed on the surface of the road and that is actually what the Panchnama recites. Hence the recitals in the Panchnama cannot be said to be incorrect when the application of brakes even more than once is admitted by the other side. It is also pertinent to note that when the Panch witness Kanji Ramji was examinated at Exh. 37 for proving the panchnam he was shown the recitals in the panchnama and he admitted the recitals mentioned therein and that is how the panchnama was proved. Under the circumstances, it is crystal clear that the on-coming bus which was driven by the opponent No. I must have been driven in great speed even though it was raining on the road. The opponent No. 1 should have realised that when he was driving an over crowded bus and when it was heavily raining,' his visibility was likely to be affected. Under the circumstances it was much more important for him- to have driven the vehicle very cautiously and carefully. Mere sounding of horn in such a situation would not absolve him of such further duties towards the users of the road. In this case It appears that the origitial opponent No. I the bus driver seems to have thrown off all these consideration to brakes the wind and appears to have rested content only with sounding of the horn. The very fact that the bus driver after the impact drove the bus up to a distance of 50 feet shows that the bus must have been driven at the relevant time with lot of speed Even after the application of brakes twice or thrice by the driver the bus could not stop immediately but on the trary the bus went onwards up to 50 feet. This fact alone shows beyond any doubt that the bus in question must have been driven with a given speed at the time when this unfortunate accident was caused and the helpless pedestrian was killed. It is further pertinent to note that the evidence reveals that the dead body of the deceased was found lying by about 2 feet near about from' the' northern side of the tar road. That shows that the victim was proceeding on her correct side and at that stage the bus seems to have hit her. To that extent it would be clear that at the dine of the impact the bus must have gone on its wrong side. Thereafter the driver seems to have driven his vehicle to the left of the road having gone 50 feet ahead and seems to have stopped. Thus it appears that at the relevant time when the impact was caused the victim was dragged on her correct side while the bus must have come with its full speed and must have gone an wrong side that is the extreme right side of the bus and seems to have knocked down Bai Ratan and then the driver seems to have taken the bus ahead up to 50 feet. He ultimately could stop it after the application of brakes twice or thrice and ultimately stopped on the right side of the road clearly establishes the negligence an the part of driver. As stated by us the severe injuries caused to the deceased also establish the speed with which the on-coming S. T. Bus must have dashed with the victim. The result was that she' fell down first having the impact on the right leg and while she fell down she must have received injuries from the right near wheel of the bus, otherwise the bloodstains would not have been found on the rear right wheel of the bus. It is axiomatic to say that in the driving of a vehicle on a public way there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road May be either vehicular user or pedestrians The aforesaid circumstances enumerated by us fully establish the rashness and negligence on the part of the S.T driver and we have not the slightest doubt about the same. We, therefore hold that but for the rash and negligent driving on the part of the S.T Bus driver this unfortunate accident would not have occurred.

15. So far as the duty of a vehicle driver on a public read to take care is concerned, the same is now well settled by a series of judgments of various Courts. We may only mention one judgment on the point in the case Of London Passenger Transport Board v. Upson reported in (1949) 1 All ER 60. There the House of Lords was concerned with the duty of an omnibus driver when he drove near the crossing even controlled by lights. The implied duty to take care on the part of the omni bus driver in such a situation was very high. The Privy Council held that when the omnibus driver was prevented by the stationary taxi-car from -seeing that there was no foot passenger on the crossing, and, never the less, approached at such a speed that he could not stop before reaching the crossing, he was guilty certainly and he can be said to have violated Regulation No. 3 of the Pedestrian Crossing Places (Traffic) Regulations, 1941. But even apart from the breach of such statutory rule the duty of an omnibus driver has been laid down by the Privy Council. Lord Uthwatt in the concurring judgment in the aforesaid decision observed that he desired only to register his dissent from the, view expressed by Lord Green, M. R., (1947) 2 All ER 509 (512) that the drivers are entitled to drive on the assumption that other users of the road, whether drivers or pedestrians, would behave with reasonable care. Disagreeing with the said view of Lord . Greene, M. R., Lord Uthwatt observed that 'it is common experience that many do not. driver is not, of course, bound to anticipate folly in all its forms, but he is not, in His Lordship's opinion, entitle to put out of consideration the teachings of experience as to the form those follies commonly take.' Thus the drivers of motor vehicles have to be conscious of the common human experience that the users of the road, whether drivers or pedistrians do not always behave with reasonable care and keeping this possibility in view, sufficient care has to be taken by the concerned Bus Vehicle driver on a public way. On the facts and circumstances of the present case, the driver of the S. T. Bus should have been even much more careful as it was already raining on the way and as his own bus was crowded with passengers. When it was raining, the noise of the rain was likely to deafen the ears of the drivers of the on-coming vehicle or the pedestrians, whose visibility also would naturally be affected. 'to drive a vehicle during rains will not be as simple as to drive a vehicle in bright sun sunshine and the duty to take cue in the situation in which the vehicle in question was driven was much more and the driver could not have rested content with merely sounding of the horn. The driver of the S. T. Bus should have realised that mere sounding of the horn may not be of any avail as it may not be heard due to the incessantly falling ram on the road and when pedestrian on the other side was one who had covered her ears with a quit to prevent being drenched by rain water. Under such circumstances she may not hear the sound of the horn. The evidence of the Bus Conductor shows that Bai Ratan did hear the sound of the horn but very late and then she went helter skelter. If the bus was not driven with high speed she would not have been instantaneously killed by the impact, as we find In the present case. Thus it is apparent to us that the opponent No. 1, the driver of the S, T. Bus was not at all careful but on the contrary, both in a rash and negligent manner he drove his Vehicle on that fateful day.

16. That leaves the further question whether the S. T. Bus driver should be blamed entirely or whether the unfortunate victim also contributed her own mite towards the unfortunate accident. As the conductor of the S. T. Bus has deposed, it appears, that the deceased Ratan before the impact had covered her ears by a quilt to save her from the rain water. Consequently the sounding of the horn may not . have immediately been heard by her and she may not have noticed the oncoming S. T. vehicle immediately. She was a rustic villager and she would naturally have been frightened when she was placed in such a predicament being all of a sudden confronted by a speeding vehicle from the opposite side. Thus, being panicky, she must have gone helter-skelter on the road to that extent, she also seems to have contributed her own calamity. Thus, Mr. Shah is right when he submission that the pedestrian also would be guilty of contributory negligence. We are inclined to accept this submission of Mr. Shah. But in the facts and circumstances of the case, we find that the piajor rashness and negligence rested on the shoulders , of the S. T. driver. As the pedestrian Bai Ratan may be negligent to certain extent, her contributory negligence cannot. be more than 25%. and 76% of negligence would rest on the shoulders of the S. T Bus driver.

17. The Privy Council in the case of Nance. v. British Columbia Electric Railway Co. Ltd. reported in (1951) 2 All ER 448 had an occasion to consider the question of contributory negligence on the part of the pedestrians who an faced with a situation in which the motor vehicles dash against such pedestrians. It was observed in the aforesaid decision of the Privy Council that when contributory negligence is set up as. a defence, its existence does not depend on any duty owed by the injured party to the party sued and all that is necessary to establish such a defence is to prove to the satisfaction of the injury that the injured party did not in his own interest take reasonable care of himself and contributed by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiffs claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full. This, however, is not to say that in all cases the plaintiff who is guilty of contributory negligence owes to the defendant no duty to act carefully indeed, it would appear that in cases relating to running down accidents such a duty exists. The Proposition can be put even more broadly Generally speaking, when two parties are so moving in relation to one another as to involve risk of collision, each owes to the other a duty to move with due care, and tins is true whether they an both in control of vehicles, or both Proceeding on foot, or whether one is on foot and the other controlling a moving, vehicle.

18. Thus, the duty to take care is not a one sided affair. All the users of the road are such that in case it is found that a pedestrian by a particular behaviour, has contributed to his own misery resulting from the impact of a vehicle on the road, he would also be liable for contributory negligence, the extent of which will of course depend upon the facts of each case in the aforesaid decision of the Privy Council the earlier view of Denning, L. J. in the case of Davies v. Swan Motor Co. Ltd. reported in (1949) 1 All ER 620 (631) is not endorsed in full. Denning, L. J. in Davies v. Swan Motor Co. Ltd's. Case has observed as under:

'When a man steps into the road he owes a duty to himself to take care for his own safety, but be does not owe to, a motorist who is going at an excessive speed any duty to avoid being run down.'

This view of Denning, L J. was not approved by the Privy Council in Name's case (supra) wherein the Privy Council disapproved the view that when a man steps into the road he owes a duty to himself to take cam for his own safety, but he does not owe any duty to a motorist who is going at an excessive speed, and could not agree with it Under the circumstances, it is well established that the pedestrian using the public road has also some duty towards himself as well as to the other users of the road has if that duty is not property carried out, the question of contributory negligence an the part of such a pedestrian would have been giving in the agricultural immediately arise.

19. On the facts and circumstances of this case , as we have already observe d, we And that Bai Ratan who went helter skelter on the road by getting panicky an the sudden eningence of a speeding vehicle has also contributed a small extent at least (to the extent of 25% by her own negligence) to the unfortunate accident which cost her lift. As a result of the aforesaid discussion, we hold that the finding arrived at by the Claim Tribunal on issue No. I cannot be a justified one in this case and it must be held that the claimants have proved that the accident of in question which took place on the 18th July, 1970 an Palatina Talaja Road Was mostly due to the rash and negligent driving on the part of the driver of, the S. T. vehicle and to that accident deceased Ratan had contributed to the extent of 25% being the part of contributory negligence,

20. That takes us to the point No. 2 for determination That pertains to the assessment of proper damages to be awarded to the claimants who claim to be the dependants of deceased Bal Ratan. The claims Tribunal had framed issue No. 2 regarding this question end in the alternative the Claims Tribunal considered that question and came to the conclusion that the agricultural holding of the claimants had not been affected in any manner by the exit of Ratan from the scene and consequently not much loss seems to have been caused to the claimants on account of the death of Bai Ratan and hence, in the view of the learned Judge nominal damages to the tune of Rs. 1,000/- to Rs. 2,000/- could have been awarded in case they had succeed ed on issue No. 1. In our view, the aforesaid reasoning of the Claims Tribunal is not at all justified on the facts of the present case as well as in the light of established legal position. The entire evidence of witness

khoda Bhagwan shows that he had a large extent of agricultural land, that the deceased Ratan used to help him in his agricultural operation as well as in the house-hold matters. They had 8 children. They would also naturally be looked after by the deceased. It is his further case that till the lifetime of Bai Ratan he had not engaged any Santhi whatsoever. That shows the extent of her help which Bai Ratan must operations apart from the work which she must be putting in for looking after the big house-hold consisting of 8children and the parents and the husband and herself. Mr. Shah seriously contended that the evidence of Khoda Bhagwan nowhere establishes the extent of earning of Bai Ratan as a labourer. He submitted that when the husband was holding agricultural lands to the extent of 90 Big has it is impossible to believe the case of the witness that Bai Ratan had worked as a Farm Labourer outside. This appears to be so. We are not inclined to accept the case the claim find that Ratan may be doing some work in the agricultural fields of others but that does not mean that she was not helping her family in the agricultural operations which she used to aid and the fact that she used to run a big household cannot be lightly treated. Anyhow, no amount of monetary compensation can ever redress the wrong done to such a householder when the cementing factor is gone for ever. It would remain irretrievable. No amount of compensation can meet the pain and suffering of those who are left behind. The extent of the house-hold work which the deceased used to do and the extent of the help which she used to render in the agricultural operations of her husband would be difficult to be compensated in terms of money. Still, however, an attempt has to be made to roughly estimate the extent of the economic loss suffered by the dependants when such a foundation-stone of the house-hold is gone for ever.

21. We may refer with advantage to the observations of Kemp & Kemp in their book 'the quantum of damages' in Vol. 1, 1975 Edition. In Chap. No. 26 the learned authors have dealt with claims for compensation arising out of death of wife. It has been observed in this context that the Court still has to take into account the prospects of the husband's remarriage' and a fortiori the fact of remarriage, if he has remarried by the date of the trial; whereas such factors are not to be taken into account in the case of a wife's claim for the death of her husband. Apart from this important difference of principle there is in theory no difference between a wife's claim under the Fatal Accidents Acts for the death of her husband and a husband's claim for the, death of his wife. But in practice there is a considerable difference, since the husband is usually the main, if not the sole, support of the house-hold. It follows that the pecuniary loss suffered by a husband through his wife's death is usually comprised of loss of the services which his wife had gratuitously rendered for him. The observation of Scrutton, J., in Berry v. Humm & Co. (1915) 1 KB 627 has been referred to by the learned authors. We may at this juncture refer to the aforesaid decision of the King Bench in the. case of Berry v. Humm & Co., (1915) 1 KB 67. Scrutton, J. in the aforesaid dession was concerned with the question of computation of compensation to be paid to a husband in the case of death of his wife. In Berry's case (supra), the plaintiff, a workman earning 38s, a week, sued the defendants to recover damages for the death of his wife, who was knocked down by a motor taxicab belonging to the defendants and instantly killed. The wife, had performed the ordinary household duties of a woman in her position, and in consequence of her death the plaintiff had to employ a housekeeper and to incurred extra expenses of management by the housekeeper instead of by his deceased wife. The jury assessed the plaintiff's damages of 50 Scrutton, J. while determining the claim of the plaintiff in the aforesaid case held that under the Fatal Accidents Act, 1846 (Lord Campbell's Act), the damages recoverable in such an action are not limited to the value of money lost, or the money value of things lost, but include the monetary loss incurred by replacing services rendered gratuitously by the deceased where there was a reasonable prospect of heir being rendered freely in future but for the death, and, therefore, held that the plaintiff was entitled to recover the damages assessed by the jury. The learned Judges while considering the question posed before him in Berry's case (supra) held that it is clear that at common law, in the present state of the authorities, the death of a human being could not be complained of as an injury. But that common law rule in

tort has been interfered -with by Lord Campbell's Act, which allows the executor of the deceased to bring an action for the benefit of the wife, husband, parent or child of the deceased, in which the jury may award them

damages proportioned to the injury resulting to them from the death. The learned Judge took the view that even gratuitous services rendered have got be evaluated in terms of money for the rendered of gratuitous services was snatched away by the accident in question.

22. In Kemp & Kemp in volume 1 on Quantum of Damages it is further observed in this connection by the learned authors that probably the best way of assessing the husband's, damages in such cases is to calculate his pecuniary loss upon an annual basis and then to apply a suitable multiplied to it. In determining the multiplier regard would be had to the respective ages of the husband and his deceased wife,

and of their children where part of the wife services was comprised of looking after them; regard would also be had to the husband's chances of remarriage and thereby acquiring an other wife to render these services for him, and also to the usual factors such as the uncertainties of life and the fact that the husband would be receiving a lump sum payment. Sometimes, however, it is possible to assess one particular item of damage separately with a considerable degree of accuracy, for instance, where the husband has to pay a baby-minder to look after his young child while he is out at work , and where this expense will last for only a limited period until-the child is old enough Togo to school. In such case it would be simpler to assess this as a separate item of damage and add it to the sin reached by applying a suitable multiplier. Thereafter the learned authors have given a catalogue of various items of pecuniary losses arising to the husband on the death of his wife and the items enumerated are asunder.

(1) Low of wife's contributions to household from her own earnings.

(2) Expenses of employing a housekeeper or servant to perform services which wife had rendered gratuitously;

(3) Expenses of providing board and lodging for such housekeeper or servant.

(4) Additional expenses caused by having household run by house-keeper or servant instead of wife.

(5) Expense of furnishing room and providing requisite amenities for housekeeper or servant.

(6) Expense of sending children away to boarding school.

(7) Expense of buying children's clothes instead of having them made by wife.

(8) Expense of having his own clothes, etc. mended instead of having them cared for and mended by wife

(9) Having to eat meals out instead of having them cooked by wife

(10) Loss of element of security where husband's employment was insecure or his health bad, and where wife had been accessioned to go out to work to keep the home going when husband was not working, etc.

23. Thus, all these facts have got to be kept in view while determining the damages on account of the untimely death of the wife and then the economic low is to be ascertained for those who are left behind. Under the circumstances, it is not as if that the accidental death of a non-making wife mean nothing to her dependants and other family members and the economic loss to them would be practically nil as assumed by the Tribunal in the present cam. If the deceased wife earning then her earning would certainly be considered for commuting the net economic loss to her family members. But, even it. She was not earning, the gratuitous services rendered by her would now be required to be substituted by other modes which will have their own economic importance and value and that the pecuniary benefit from these services in the domestic front as well as in the agricultural operations of the husband when the wife may have acted as a helpful hand will have to be assessed on the totality of all circumstances and a proper figure of multiplicand has to be arrived at, and having considered the relative age of the wife and the husband and the dependants a proper multiplier has to be adopted, As the Claims Tribunal did not adopt the aforesaid correct approach for assessing the damages in the instant case, we will have to make an attempt in the same direction afresh.

24. The evidence which we have discussed above, clearly shows that the deceased Bai Ratan was of great help to the large house-hold of which she was a member. She looked after the house-hold and also helped the husband in his agricultural operations. Considering the gratuitous services rendered by her as well as the economic losses which her husband suffered on account of the untimely death of his wife, it would be reasonable to assess the net economic losses to the dependants at least at the figure of Rs. 75/- per month which would be a global figure and which will take care of all the relevant factors enumerated by us above. This, In our view, is a most conservative estimate of the economic loss suffered by the claimants on account of the untimely death of Ratan. We are conscious of the fact that Rupees 75/- per month would really be no substitute for the void created in the house-hold of the claimants on account of the exit of Ratan but it would be only an incomplete but modest substitute for the losses suffered by the claimants on account of the untimely death of Ratan. If Rs. 75/- per month is taken as the net economic loss suffered by the claimants on account of the unfortunate accident which snatched away Ratan from their midst. This would be the multiplier and which can be taken as a datum figure and on that basis the economic loss per annum would be Rs. 900/-. Now remains the question of finding out a suitable multiplier. As observed earlier, multiplier will depend upon the relative age of the deceased at the time of her death and the age of those who are left behind. Mr. Shah contended with emphasis that the evidence on the 'record shows that Ratan was a very old lady at the time, of her death. Refinance was placed on the evidence of Dr, Harjivan Madhavji Ghelani. At the, time of the post-mortem her age was shown to be 60 as seen from the post-mortem notes Exh. 50 but he immediately corrected himself by saying that this age was given to him by the relatives of the deceased. Thus the Doctor made it clear that he stated about the age of the deceased from what he was told by the relatives of the deceased. Consequently, mere mentioning of the age of the deceased at 60 years an the basis of hearsay will be neither a conclusive . evidence nor a positive evidence regarding her correct age. Nobody knows who gave the Doctor the said age. On' the contrary we have got positive evidence on the record when the claimant No. I Khoda Bhagwan, the husband of the deceased, had deposed that she was 48 years at the t1me of her death. The very fact that the first son of the deceased was aged 35 years in 1973 when Khoda Bhagwan had . deposed . at Exh. 36, the said son Bachubhai must be aged 32 'years at the time of the accident which took place in July, 1970. As Bai Ratan was a rustic belonging to the rural society she must have married quite young. Thus. if her first son was aged 32 years in 1970 she could have reasonably been aged 50 years at the time of the accident. The Claims Tribunal on the basis of the aforesaid positive evidence has taken the view that the deceased must have been aged 50 years at the time of her death. We see no reason to differ from the said conclusion reached by the Claims Tribunal. Thus, we can safely take the age of the deceased as 50 years when she met with the unfortunate accident. Looking to the advanced age at the time of her death, we feel that a multiplier of 8 will meet with the ends of justice We are conscious of the fact that In the case of victims of the age group between 20 to 35 years, the usual multiplier taken is 15 but, because of the advanced age of .50 years, we, think it safe to take the multiplier of 8 which 'will take into consideration of all the imponderables and uncertainties underlying the assessment of the damages. We have already arrived. at the multiplicand at the annual figure of Rs. 900/- and with the multiplier of' 8 for-the purpose of capitalisation we come to the total of Rs. 7200/-. Thus, the claimants will be entitled to Rs. 7200/- towards the economic loss suffered by them on account of the untimely death of Bai Ratan. To this we will have to add conventional figure of loss of expectation of life. We find that this conventional figure was usually taken at Rs. 3,000/- but subsequently with the passage of time, this conventional figure is raised to Rs. 5,000/- on account of the fall in the purchasing power of money. A Division Bench of 'this Court consisting of Justices M. P. Thakkar and N. H. Bhatt in First Appeal No. 524 of 1976 decided -on 21st August, 1978 had an occasion to consider this question. M.P. Thakkar J. speaking for the Division Bench in the aforesaid case, took the view that on account of the rise in prices and the fall in the purchasing power of money the conventional figure of Its. 3,000/- has got to be now substituted with the figure of Rs. 5,000/- We will, therefore, add Rs. 5000/- this amount of Rs. 7200/- being compensation for the loss of expectation of life and for pain and suffering. Thus the total figure when worked out comes to Rs. 12,200/-. We can take the. global figure of Rs. 12,000/- as proper compensation which can be awarded to the claimants. But, as we have found that Ratan must have contributed by her negligence to the unfortunate accident to the extent of 25%, and as the claimants claimed amount on account of her death, we will have to slice down this figure to 75% and consequently we arrive at the figure out Rs. 9,000/- after deducting 25% towards the contributory negligence of the deceased.

25. Appeal allowed.


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