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Smt. Raksha Bahen and ors. Vs. Delux Roadways and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Misc. Appeal No. 99 and 107 of 1972
Judge
Reported in1980WLN248
AppellantSmt. Raksha Bahen and ors.
RespondentDelux Roadways and ors.
Cases ReferredImmamudin and Ors. v. Khatoon and Ors.
Excerpt:
.....to support wife upto 65 years--held, compensation to wife be calculated at rs. 60/- p.m. for 37 years--compensation for mental agony and suffering to be added.;the claimant smt. raksha bahen was 20 years of age at the time of the unfortunate accident. the husband would have spent not less than rs. 60/ p.m. for her. the age of piyush kumar at the time of the 'accident was 23 years. he would have redied at the age of 58 years. in view of the medical evidence about his good health, he can be reasonably expected to have lived upto the age of at least 65 years. even after retirement, he would have maintained his wife out of the pensionary benefits consequently so far as the wife is concerned, the total period of expectancy of her life should be calculated, and it would not be proper to..........of the accident the air was covered with thick dust due to the passing of a truck neither the bus driver nor driver of the car stopped their respective vehicles and watted till the air was clear. head lights of the bus were not turned on it was held that both the drivers drove their respective vehicles in a rash and negligent manner.20. keeping the above principals in view, we turn to the facts and circumstances of the case before us we are inclined to hold that accident was caused on account of the rash and negligent driving by both the drivers. in view of this finding we do not agree with the finding of the learned member of the tribunal that the driver of bus no. rje 755 alone was rash and negligent and the owner of that bus only was liable to compensate the petitioners. it is.....
Judgment:

Miss Kanta Bhatnagar, J.

1. These two appeals are directed against the judgment and award dated' 25-2-1972 passed by the learned Member of the Motor Accident Claims Tribunal, Bhilwara In the proceedings on, the application filed by Smt. Raksha Bahen, and Shantilal under 'section 110 A of the Motor Vehicles-Act (hereinafter to be referred to as the Act') for damages to she tune of Rs. 60,000/ on account of the death of one Piyush Kumar Jain (husband of Smt. Raksha, Baben and son of bantilal), who met a fatal accident on 20-4-1968 at 2.45 p.m. on Ajmer-Bhilwara road near the Kothat river As the two appeals arise out of the, same judgment and award, we propose to decide them by one common judgment.

2. Briefly stated the, facts of the case giving rise to these appeals are that on 20-4-1968 decessed Piyush Kumar alongwith his wife, petitioner Smt. Raksha Bahen, &his; father Shantilal was travelling from Ajmer to Bhilwara in Bus No. RJE 755 belonging to 'M/s Delux Roadways (P) Ltd., Bhilwara and driver by Shambhu Singh (DP 1) When the Bus was at a distance of about 5 to 6 miles from Bhilwara, the driver over-took a truck standing on the left hand side of the road. When the bus covered half the distance of the side at the truck Bus No RJL 5905 belonging to nonpetitioners Ram Niwas and Shyam Sunder, and driver by ore Noor Mohammed came from the opposite direction and the two buses collided. The Wind screen, glass of bus No. RJE 755 got broken and the pieces of the glass plerced the body of Piyush Kumar resulting in his unconsciousness. He was taken to the Mahatma Gandhi Hospital where the succumbed to the injuries sustained by him at 5.50. a.m. Petitioners smt. Raksha Bahen, ' wife of the deceased and Shantilal his father filed the petition for damages on the ground of their dependency on the deceased as well as on, account of physical pain and mental agony suffered by the decease. The claim petition was filed against the owners of the two buses. It was mentioned in the petition that the, two buses were Insured with M/s 'Vulcan Insurence Co Ltd. The Insurance Company was not impleaded as a party. Notice was however issued to It by the court but nobody appeared on their behalf Separate Written replies were filed on behalf of the owners of the two vehicles' and the grounds, taken were, that it was the vehicle of the other party which was being driven rashly and negligent resulting in the collision on account of the curves on the road and the see the bus coming from the, oppsite direction. The amount of damages claimed was stated to be excessive. Both the petitioners, appeared in the witness box and examined three more witnesses. Shambhu Singh (DW 1) driver of the bus No. RJE 755 and three more witnesses were examined by opposite party No. 1. Only one witness, was examined by opposite parties Nos 2 and 3. On the' basis of the pleadings of the parties five, issues were framed which translated into English read as under:

1. Weather on 204 68 at 2.40 p.m. bus No. RJL 5905 and bus No. RJE 755 were driver rashly and negligently on account of which they collided With each other?

2. Whether at the' time of the accident Piyush Kumar, Husband of petitioner Smt. Raksha Bahen, travelling in bus No. RJE 755 was grievously injured and succumbed to those injuries at 7.00 p.m. that very day?

3. Whether Smt. Raksha Bahen is the married wife of the deceased and Shantilal is his father?

4. What is the financial lost suffered by the two petitioners on account of the death of Piyush Kumar?

4A. Whether the petition is within limitation?

4. What would be the adequate relief?

3. Issues Nos. 2 and 3 not being in dispute were decided in favour of the petitioners. The issue regarding limitation was also decided in favour of this petitioner. While deciding issue No. 1 the learned member of the Tribunal arrived at the conclusion that it was due to rash and negligent driving of bus No. RJE 755 that the accident took place. While deciding issue No. 4. in view of the income of the deceased being Rs. 230/- p.m. an amount of Rs. 20,000/ was fixed as general damages for the petitioners. Rs. 5000/- were allowed as damages for the mental agony and physical pain suffered by the deceased. The learned Member of the Tribunal therefore passed an award for a sum of Rs. 25,000/- with costs. In favour of the petitioners against opposite party No. 1 The petition against the opposite parties Nos. 2 and 3, owners of the bus No. RJL 5905 was dismissed.

4. Being aggrieved by the dismissal of the petition against the owners of bus No RJL 5905 and also dissatisfied by the amount awarded, the petitioners Smt. Raksha Bahen and Shantilal have preferred appeal No. 99 of 1972. Appellant M/s Delux Roadway (P) Ltd., also felt dissatisfied & preferred appeal No. 107 of 1972, on the ground that the collision was on account of the fault of the driver of the bus No RJL 5905 and therefore the petition against opposite parties Nos. 2 and 3 should not have been dismissed. The decision about quantum of compensation is also challenged as being excessive

5. The Insurance Company was not made a party in the appeal filed by the petitioners. In the appeal filed by M/s Delux Roadways, M/s Vulcan Insurance Company, Ltd., was impleaded as respondent and notice was issued to it. In the appeal by the petitioners, an application was filed for issuing notices to M/s Vulcan Insurance Company Ltd. The Advocate appearing on behalf of that Insurance Company filed an application on 31-1-1974 to the effect that the Company had merged in the United India Fire and General Insurance Co. Ltd. with effect from 1st January, 1974 and therefore the successor, company be substituted in place of the 'Vulcan Insurance Co. Ltd. In both the appeals amended cause title impleading the United India Fire and General Insurance Co. Bombay were filed.

6. We heard Mr. D.S. Shishodia, learned Counsel for the appellants and Mr. H.M. Parekh, learned Counsel for the rcspondents in appeal No. 99/ 1972 and both these counsel in reverse order in appeal No. 107/72, No body appeared on behalf of Ram Niwas and Shyam Sunder and the Insurance Company.

7. While advancing arguments in appeal No. 107/1972: Mr. Parekh has vehemently argued that it was the driver of the bus NO. RJL 5905 who was at fault in not taking the bus at its extreme left on seeing the appellant's bus coming from opposite direction. According to Mr. Parekh when the truck bad obstructed the left side of road there was no alternative left with the driver of the appellant's bus but to over take the truck and take the bus on the right side of the road. On the other hand Mr. D.S. Shishodia controverting this argument submitted that the drivers of both the buses were at fault & therefore the driver of the appellant's bus cannot be exonerated on the ground that the truck standing on the road obstructed the vision

8. We carefully examined the evidence on record, while overtaking the truck, the driver of appellants bus did not blow the horn and there is evidence about his not stopping the bus Immediately on seeing the bus coming from the opposite direction There is also no evidence to indicate that there was any opportunity for the driver of that bus to stop it. In these circumstances, the arguments, of Mr. Parekh that the driver of the bus No. RJE 755 was not at all at fault is devoid of force.

9. The next question arising for determination is whether the findings of the learned Member of the Tribunal that, the appellant's bus alone was responsible for the collision and for that reason dismissal of the petition against opposite parties Nos. 2 and 3 is justifiable Mr. Parekh also argued in the alternative that even if bus No RJE 755 is held responsible for the collision, bus No. RJL 5905 coming from the opposite direction which was being driven rashly and negligently was equally responsible for the accident and therefore it is a case of composite negligence. Mr. Shishodia has also endorsed the arguments of Mr. Parekh to the extent that both the buses were responsible for the collision.

10. The petitioners have come with a specific plea that the Accident was on account of the rash and negligent driving, by the drives of the buses. Shantilal (Pw 2) has stated in his deposition in the court that the accident was the result of the rashness of the drivers of, both the buses. According to him the speed of the appellant's bus was approximately 45 50 miles per hour. He was unable to tell the speed of the other bus. Smt. Raksha Bahen has stated that both the buses were at a high speed. Shambhu Singh has stated that he was driving bus NO RJE 755 at the speed of 20 miles per hour. Similar is the statement of Kalyan Singh (DW 2), the conductor of that bus. The driver of but No. RJL 5905 has not been examined by the opposite parties NOSection 2 and 3 Ramchandra the only witness examined from that side has stated that he was travelling in that bus on that day and the speed of that bus was 20 miles per hour. From his statement it is evident that he happens to be a relative of Shyam Sunder respondent.

11. On the face of it, may appear that the has of the appellant, being on the right side of the road and the other bus coming from the opposite direction being on its correct side, the former was responsible for the collision. But the matter is not so simple. There are circumstances to suggest that the doctrine of res ipsa loquitur cannot be applied in the present case. The appellant's bus, being on the right hand side of the road at the time of the collision, does not tell the correct story. The circumstances of a truck standing on the left side of the road while going from Ajmer to Bhilwara is an important factor to be considered in the matter. The evidence Regarding the position of the truck standing on the road shows the negligence, of its driver in keeping it standing on the Wrong side of the road. But as that driver has not been made a party to the proceedings that point loses importance. Because, of the obstcale on the left side of the road, there was no alternative for the, driver Shambhu Singh but to take the vehicle on the centre or the, right hand side of the road to pass by the side of the truck.

12. There is specific evidence on record that there were curves on the road obstructing the visibility of the vehicles coming from the opposite direction. The driver as well as other witnesses travelling in bus No. RJE 755 have stated that the bus coming from the opposite direction was not visible till the bus overtaking the truck had covered half the distance of the body of the truck. The accident had taken place on the side of the body of the truck If the drivers of the two buses coming from the opposite direction are unable to see each other, it is not possible for them to stop the vehicles immediately because even after applying the braken the vehicles are bound to cover some distance while in motion.

13. From the above discussion, it is evident that the main cause for the accident was the obstacle of truck and curves on account of which the vehicles coming from the opposite directions were not visible to the drivers till they reached almost near each other.

14. This being the position the pertinent question for determination is wheather it was a vis major or the rash and negligent driving by the drivers of the two buses that had caused the accident Regarding the speed of the two buses, in the absence of reliable specifec evidence, the surrounding circumstances will have to be examined. The damage caused to the buses is the breaking of the wind screen glasses, bending of the steering wheels & damage to the drivers of the two vehicles is also evident from the fact that none of them took note of the position of the road & the obstacle in the way & failed to blow the horn. Shambhu singh driver (DW 1) has not rebutted that contention. The driver of the other bus has not been examined. It is the duty 2 of the drivers of the vehicles to warn their approach by blowing the horn. This caution is all the more essential when the road is not clear and on account of curves the vehicles coming from the opposite direction are not visible till they come quite close to each others when there is collision of two vehicles on account of the negligence of drivers of both the vehicles it is a case of the composite negligence. In such a case the liability cannot be apportioned on the ground of contributory negligence.

15. In the case of Manjula Devi Bhutan and Anr. v. Manjusti Rahu and Ors. 1908 A.C.J. there was head on collision between two vehicles. One vehicle was being driven in the middle of the road. Another vehicle came from the opposite direction keeping to the extreme left. It had to swerve a little to avoid attempt which was visible from a long distance. Neither of the accident and it was held that merely keeping to the extreme left did not exonerate the vehicle.

16. While discussing the principle to be applied in apportioning the liability of the vehicles Invoiced in the accident it was observed by this Court in the case of the United India Fire General Insurance Company Ltd. and Anr. v. Mrs. Sayar Kanwar and Ors. 1976 A.C.J. 426 that where there is collision between vehicles resulting in the death of and the liability for compensation is to be apportioned between the two drivers because it is a case of composite negligence and not of contributory negligence. It was a case of head on collision between a bus and jeep. The impact between the vehicles showed that both the vehicles were in good speed and therefore the drivers of both the vehicles were considered to be rash and negligent at the time of the accident.

17. In the case of Sushil Kumar etc. v. Binodini Rath and Ors. : AIR1977Ori112 when the drivers of a jeep and truck coming from the opposite directions were negoitating a blind curve, there was collision and the deceased was thrown out of the jeep and died of the injuries sustained by him. It was held that the accident took place due to the rash and negligent driving of the vehicles and bath the drivers were held responsible in equal proportion for the said accident.

18. In the present case, as we have discussed above when both the drivers were rash and negligent in driving the vehicles at a high speed the plea of poor visibility of the traffic on the opposite direction on account of the obstacle of the truck will not help any party for the reason that none of the drivers took caution by warring the approach of the vehicle by blowing the horn.

19. In the case of Hira Devi and Ors. v. Bhaba Kanti Das and Ors. 1977 A.C.J. 293 the Court was considering the plea of poor visibility. There was head-on collision between a bus and a car. At the time of the accident the air was covered with thick dust due to the passing of a truck Neither the bus driver nor driver of the car stopped their respective vehicles and watted till the air was clear. Head lights of the bus were not turned on It was held that both the drivers drove their respective vehicles in a rash and negligent manner.

20. Keeping the above principals in view, we turn to the facts and circumstances of the case before us we are inclined to hold that accident was caused on account of the rash and negligent driving by both the drivers. In view of this finding we do not agree with the finding of the learned Member of the Tribunal that the driver of bus No. RJE 755 alone was rash and negligent and the owner of that bus only was liable to compensate the petitioners. It is therefore, held that the owners of both the buses are liable to compensate the petitioners.

21. In appeal No. 99 of 72 the judgment & award have been assailed on two grounds only freshly, that despite both the buses being responsible for the accident, only bus No. RJE 755 has been held liable for the accident and for compensation, and secondly. The amount of compensation awarded is not adequate looking to the loss suffered by the petitioners on account of the death of Piyush Kumar.

22. So far a the first point is concerned, it Is covered by the above discussion as we have held that both the vehicles were responsible for the accident and are liable for the compensation.

23. In fixing the amount of compensation the learned Member has referred to the statement of P.W. 2 Shanti Lal petitioner, father of the deceased; who has deposed that Piyush Kumar was getting Rs. 230/- per month at the relevant time and out of that amount he was spending about Rs. 50/-for his food and Rs. 12/- to Rs. 15/- on clothes and Rs. 25/- as pocket money. Thus the amount left for the expenditure on the family was Rs. 140/-p.m. The learned Member held that age of the deceased was 28 years, at the time of the accident and if he had remained alive he would have been in service till the age of 58 years as he was working in post and Telegraph Department. The amount of Rs. 140/- multiplied by 30 years comes to Rs. 50 500/ for which the learned Counsel for the claimants bad pressed before the tribunal. The reason given by 'he tribunal for not allowing this full amount to the claimants was that it is not possible to believe that the deceased would have given to his parents Rs. 140/- p.m. throughout his life as out of his Income, he was bound to spend for the maintenance of his wife and children also Another factor that weighed with the tribunal was that the amount was being awarded In lump sum. In this view of the matter only Rs. 20,000/-were allowed to both the claimants by way of general damage and Rs. 5000/-on account of the mental agony physical pain suffered by the deceased.

24. Mr. Shishodia strenuously contended that while deciding the case the learned Member has not taken into account the expected increments in the regular course and the promotions of the deceased in case of his retirement at superannuation age. He referred to the certificate Ex. 3 and also filed a chart copy of which was given to the learned Counsel for the other side. In that chart he has calculated Increments as well as provident which the deceased would have very likely got after 15 years of service as per certificate Ex. 3, as also the provident fund and Contribution and Gratuity bene fits including interest permissible under the rules. The total income till a attaining superannuation age is shown to be Rs. 2.29000/- To substantiate his contention, that future Increment, and chance of promotion as well the benefits derived at the time of retirement should be taken into consideration in filing the amount of compensation, Mr. Shishodia has referred to Smt. Manjushri Rahu and Ors. v. B.L. Gupta and Ors. : [1977]2SCR944 In that case the deceased was 37 years of age and was drawing Rs. 620/- P.m. at the time of his death in the grade of Rs. 590-30-830-35-900/-. The Cliams Tribunal had restricted the expectancy of life of the deceased only upto the age of 55years i.e. the age of superannuation that finding was interfered with on the ground that in the present economic condition life of an average indian has increased more then two fold, and it was held reasonable to expect the deceased to live atleast upto the age of 65 years not more in case he would not have been involved in the accident. For that reason it was held that the deceased would have had pensionary benefits for a period of about ten years after retirement. The finding of the Claims Tribunal and the High Court not taking into account the salary of the deceased which he would have reached while teaching the maximum grade long before his requirement was also repelled. The certificate of the Accountant General's Office, that the deceased would have drawn Rs. 1,88000/- including the increments and the maximum grade drawn, was taken into consideration and after reducing that amount to half Rs. 94,000/- was considered to be the actual income lost to the family and Rs. 90,000/. was held to represent the correct compensation so far as the salary part of the deceased was concerned. An amount of Rs. 13.500/-. being the death cum retirement gratuity which the dependent of the deceased would have get was also added to that amount of Rs. 90,000/-.

25. We may observe that there cannot be any hard and fast rule in fixing the amount of compensation and it depends on the circumstance of each case as to what would be the adequate amount of compensation for the claimant. But from the decisions of the various cases certain guide lines can be be spelled out.

26. In the case of Municipal Committee Jullundar v. Jagdish Kaur and Anr. 1978 A.C.J. 359 the deceased was aged 24 years & earning Rs. 300/- p.m. The chaiments were widow and the mother. The dependency of the wife was assessed at Rs. 125/- p.m. The Claims Tribunal awarded Rs. 25.000/- which amount in appeal was enhanced to Rs. 40 000/. The claimant's mother was awarded Rs. 3000/- in view of the fact that her dependency on the son could he fixed to the extent of Rs. 50/ only p.m. as she had three more sons to depend upon.

27. In the case of Mrs Brij Kali Devi and Ors. v. Ramchand Bishan Singh and Ors. 1979 A.C.J. 164 the deceased, aged 32 year's was earning Rs. 400/- p.m. The claimants were widow, and children. The family dependency was assessed at Rs. 200/- to Rs. 306/ p.m. and then life expectancy was fixed at 65 years. The award of Rs. 25,000/- by the tribunal was enhanced to Rs. 50,000/- as claimed.

28. Mr. Parekh has contended that whatever be the age of the deceased, the total period of superannuation or the expectancy of life should not be considered in awarding the compensation and the yearly loss should be multiplied by 15 or 18 years as the circumstances warrant. To substantiate his content he referred to the case of Immamudin and Ors. v. Khatoon and Ors. 1978 A.C.J. 103. In that case the deceased a labourer, aged 21 years was earning about Rs. 60/ p.m. The claimants were his widow and children. The trial court awarded Rs. 70,200/-. The appellate court reduced the award to 10,000/- by adopting 18 years multiplier.

29. In our opinion, it is not in all cases that the multiplier method should be adopted. In cases where there is fixed income and the period of earning can be calculated there is no reason why compensation for the whole period of earning capacity should not be allowed.

30. In the present case out of Rs. 230/, Rs. 90/- were said to be required for the expenses of the deceased and Rs. 140/- remained to be spent for the family. The tribunal has only discussed as to what be could have given to the parents. The case of the wife has been left untouched on the point as to what she could have claimed independently from the husband. The learned Member has not bifurcated the amount among the claimants & fixed lump sum of Rs. 25,000/- in all for both the claimants. In cur opinion, in cases of this type when one of the claimants is father aged 58 years, at the time of the accident, having three more sons to lock after him, his case should be bealt with separately from that of the young wife aged 20 years, who is expected to have longer span of life. With that consideration in view, we will now see as to whether the amount fixed by the tribunal is adequate or not & in what way it should be bifurcated between the two claimants. The age of the father at the time of the accident was 58 years. The claimants ran claim to be compensated upto the period of expectancy of their lives and not that of the deceased. In view of the income of the deceased as well as of the fact that Shantilal has three mare sons to depend upon, the responsibility of the deceased for the father can fairly be fixed only to an amount of Rs. 40/-p.m. The age of the father in year 1963 when the accident took place was 58 years and we consider it proper to adopt 15 years multiplier in fixing the amount of compensation to be awarded to him. The amount Rs. 40/-p.m thus comes to Rs. 7200/- in all.

31. The argument of Mr, Parekh is that the deceased became unconscious instantaneously and therefore there was no question of any mental agony or physical pain entitling the claimants to any compensation on that count. The accident took place at 2. 45 p.m. Piyush Kumar died at 5.55 p.m. He became unconscious instantaneously. In such circumstances, the amount of compensation of Rs. 5,000/- on this ground is excessive. We, there reduce this amount to Rs. 3000/- only for both the claimants and out of that amount the father is entitled to Rs. 1500/- only. Thus the total amount which the father is held entitled to is fixed to Rs. 8700/- only.

32. The claimant Smt. Raksha Bahen was 20 years of age at the time of the unfortunate accident. The husband would have spent not less than Rs. 60/- p.m. for her. The age of Piyush Kumar at the time of the accident was 28 years. He would have retired at the age of 58 years. In view of the medical evidence about his good health, he can be reasonably expected to have lived upto the age of at least 65 years. Even after retiurement, he would have maintained his wife out of the pensionary benefits. Consequently, so far as the wife is concerned, the total period of expectancy of her life should be calculated, and it would not be proper to adopt multiplier method in her case for her maintenancy by the husband. Calculating the amount of Rs. 60/- p.m. for a period of 37 years, when Piyush Kumar would have been 65 years old, the amount comes to Rs. 26,640/- To this amount, Rs. 1500/- for mental and physical agony suffered by the deceased may be added which comes to Rs. 28,140/-.

33. In calculating the amount of compensation increase in the income on account of future Increments and promotions should be taken Into consideration. But at the same time it should also be taken note of that in the present case in the natural course of events the deceased would have begotten children, and expenditure for them would have been unavoidable For that reason we have taken into consideration only the wife irrespective of increase or decrease in his income. As the maximum period of expectancy of the claiments dependency on the deceased has been taken into consideration, the benefits on account of pension cum gratuity need not be taken into consideration. Because the amount has been considered on the lOW side of the expenditure the husband would have Incurred on the wife, we do not consider it proper to deduct any amount on the ground of uncertainty of life or the amount being given in lump sum.

34. Consequently, the appeal No. 107/1972 is party accepted and the appellant as well as the respondents Nos. 3, 4 and 5 are held responsible for the compensation awarded to the claimants. Appeal No. 99 of 1972 is also partly accepted and all the respondents in that appeal are held liable for the compensation. The award is also modified to the extent that Shantilal will get Rs. 8700/-and Smt. Raksha Bahen will get Rs. 28,140/-. Both of them will also be entitled to one set of costs which we fix at Rs. 300/-.


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