VARADAMMA v. H. MALLAPPA GOWDA — 1972 DIGILAW 181 (KAR)

JUDGMENT : 1. This is an appeal against the decision of the Motor Accidents Claims Tribunal; Shimoga, dated 20tli June, 1967, in Misc. Case No. 514/1963, dismissing the application of the Appellant filed u/s 110-A of the Motor Vehicles Act. 2. The Appellant is the mother of the victim of a motor accident which took place at 4 p.m., on 27-8-1963 on account of the bus, MYU 1678, belonging to the first Respondent, running over the deceased who was a boy of 4 years, by name Subbaraya. He was travelling with his elder brother, Ganapathi, having boarded the bus at Sagar at about 3.45 p.m., bound for his destination at Lingadahalli,. The bus reached Lingadahalli round about 4 p.m., and stopped at the recognised bus stop on the road. That stop oh the road is said to be an inclined plane sloping towards the front of the bus. When the bus-stopped some passengers got down from the bus. According to the case of the Appellant, the deceased boy was about to get down from the bus and was standing on the foot board and his elder brother, Ganpathi had already got down from the bus. When the boy was thus standing on the foot-board; the conductor of the bus is alleged to have signalled to the driver to start by calling cut the usual word 'right'. On such a signal, the driver is said to have started the vehicle and the boy who was on the point of alighting from the bus accidentally fell under the hind wheels of the bus and died on the spot. In the first instance only the first Respondent, the owner of the bus, was impleaded. He admitted that he was the owner of the bus in question but alleged that the bus was taken on hire by the second Respondent under an agreement dated 19-6-1960, to be inforce for a period of three months, and that the bus was under the control of the second Respondent at the time of the accident. He, therefore, contended that it is the second Respondent who is responsible, if at all, to pay the compensation claimed by the Appellant. The second Respondent, thereafter was impleaded as a party. The second Respondent in his objections, denied that he had taken the bus on hire from the first Respondent. He, therefore, contended that it is the second Respondent who is responsible, if at all, to pay the compensation claimed by the Appellant. The second Respondent, thereafter was impleaded as a party. The second Respondent in his objections, denied that he had taken the bus on hire from the first Respondent. The third Respondent is the Insurance Company with whom the vehicle was insured. 3. The tribunal held that the death of Subbarayya was due to the alleged accident which took place at 4 p.m., on 27-8-63. It has further held that it has not been proved that the second Respondent had taken the' vehicle on hire from the first Respondent at the time of the accident. It further held, on issue No. 3 that the Appellant had failed to establish that the accident was due to the rash and negligent driving of the vehicle, that Respondents are not liable to pay compensation and therefore dismissed the application. 4. P. Ws. 2 and 3 were passengers travelling in the bus on that day to Lingadahalli. They also got down from the bus at Lingadahalli. According to their evidence, Ganapathi got down from the bus and was trying to bring down Subbarayya. Ganapathi was standing below and asking Subbarayya to come down. When Subbarayya was getting down the Conductor gave the signal to start the bus by saying 'right'. The driver drove the bus forward and Subbaraya fell on his face on the ground and the hind wheel of the bus went over his head. 5. The conductor of the bus was examined as R. W. 1 on behalf of the first Respondent. According to his evidence, at the place where the bus was stopped the road was sloping towards the front of the bus and he prevented the bus from moving forward on the downward slope by placing a 'Katta' in front of the hind wheel. Some passengers got down from the bus including Ganapathi and " Subbaraya and about 5 minutes later he removed the 'Katta' or wedge and gave the signal to the driver to start the bus. When the bus went a distance of 8 or 10 mar us, he heard people shouting from behind, the bus was stopped and he found a boy lying down on the road. He has also stated that he had helped the boy Subbaraya to get down from the bus. 6. When the bus went a distance of 8 or 10 mar us, he heard people shouting from behind, the bus was stopped and he found a boy lying down on the road. He has also stated that he had helped the boy Subbaraya to get down from the bus. 6. On behalf of the Respondents, R. W. 2 was examined. According to his evidence he was also a passenger in the said bus on that day and he supported the evidence of R. W. ]. 7. P. W. 2 has stated that after he got down from the bus at Lingadahalli, he was not present at the scene of accident when the police came there. It was also elicited in cross-examination that he was a distant relative of the Appellant, that he knew Ganapathi and the deceased, Subbaraya, since two years prior to the date of incident and that he is a native of Bhimanakone which is rbout 10 miles from the native place of the Appellant. Nothing is elicited in the cross-examination to show why he should be disbelieved and the fact that he is a distant relative of the Appellant is by itself not a ground to disbelieve his evidence, but, on the other hand, it supports his statement that he knew Ganapathi and the deceased Subbaraya who were also travelling in the bus with him. 8. P.W. 3 also has stated that he knew the deceased and his brother since 3 to 4 years prior to the date of the incident and that his native place is about 7-8 miles from Khandika, the native place of the Appellant. He has stated that about 4 to 6 persons got down from the bus at Lingadahalli. In cross-examination he was asked whether he knew the names of any of the passengers who got down at Lingadahalli. He gave the names of two passengers who got down from the bus at Lingadahalli. He has stated in his evidence that he was present at the scene of accident for sometime when the patel and others arrived there. He has also stated that be went to Lingadahalli to meet one Lingadahalli Thimmappa on that day. He is a resident of Kavalkodu which is about 8 miles from Lingadahalli. Nothing is elicited in his cross-examination to show that he is not a reliable witness. Merely because P. Ws. He has also stated that be went to Lingadahalli to meet one Lingadahalli Thimmappa on that day. He is a resident of Kavalkodu which is about 8 miles from Lingadahalli. Nothing is elicited in his cross-examination to show that he is not a reliable witness. Merely because P. Ws. 2 and 3 were not examined by the police and were also not examined as witnesses in the criminal case on the complaint filed by the police against the driver, it cannot be said that their evidence cannot be relied on. 9. R.W. 2 has stated that he went to Sagar to purchase some electrical equipments for his contract work, that he undertakes electrical work and that he purchased the material from one Srinivasa Rao. But he has admitted that he does not possess any licence to undertake electrical contract work and also stated that he did not get down at Lingadahalli bus stop. 10. According to P. Ws. 2 and 3, Ganapathi and Subbaraya were sitting in the ladies' seat which was in the middle portion of the bus and the conductor was sitting in the hind seat of the bus. According to R.W. 2, the conductor got down from the bus after it was stopped and opened the door of the ladies' seat and after the ladies got down from the bus, he again closed the door, came to the rear side and then helped the boy to get down from the bus. Even R.W. 1, the conductor, does not state that he opened the door of the ladies' seat and that he closed it after the lady passengers got down from the bus. Thus, this statement of R.W. 2 shows that he is anxious to help the Respondents. No such suggestion was made in the cross-examination of P. Ws. 2 and 3. R.W. 2's evidence cannot therefore be relied on. 11. The evidence of P. Ws. 2 and ?, therefore, establishes the fact that the conductor of the bus gave the signal to the driver to take the bus forward at the time when the deceased, Subbaraya; was still in the act of getting down from the bus. 2 and 3. R.W. 2's evidence cannot therefore be relied on. 11. The evidence of P. Ws. 2 and ?, therefore, establishes the fact that the conductor of the bus gave the signal to the driver to take the bus forward at the time when the deceased, Subbaraya; was still in the act of getting down from the bus. Due to the fact that the signal was given to the driver even before the deceased had got down from the bus, the deceased Subbaraya fell down from the bus, the deceased Subbaraya fell down having lost his balance and the hind wheel of the bus ran over him and caused his death. 12. The Tribunal has not disbelieved the evidence of P. Ws. 2 and 3 but has merely observed that they were neither examined by the police nor were their statements recorded u/s 161(3) Criminal Procedure Code. It was contended on behalf of the Respondents before the Tribunal that even if every one of the words of P. Ws. 2 and 3 is totally believed, there is no case of rashness or negligence on the part of the driver or the conductor. The Tribunal has observed thus: Even if it is conceded that the child was about to get down the bus and was on the foot-board and this unqualified conductor gave a wrong signal inadvertently, I am totally unable to infer how such a conduct on the part of the conductor amounts to negligence giving rise to civil liability for payment of compensation. It has held that in order to render the Respondents liable, the rashness of the driver must be established and that an inadvertant wrong signal given by the conductor does not amount to negligence which gives rise to civil liability. It is on this ground that the Tribunal has held that the Respondents are not liable. 13. The Tribunal has erred in holding that in order to make the Respondents liable, negligence on the part of the driver alone should be proved and that the negligence of the conductor in having given the signal to the driver would not constitute negligence on the part of the employees of the first Respondent. It cannot be denied that the driver was in control of the vehicle. According to the evidence, the driver moved the bus forward on account of the signal given by the conductor. It cannot be denied that the driver was in control of the vehicle. According to the evidence, the driver moved the bus forward on account of the signal given by the conductor. The conductor appears to have been under the impression that all the passengers had got down from the bus and therefore gave the signal to the driver to start the bus. To the extent that the movement of the bus by the driver depended upon the instructions given by the conductor to take the bus forward after some of the passengers alighted, the conductor was also in control of the vehicle. If due to the negligence of the conductor in giving the signal to the driver to move the bus forward even though one of the passengers was still in the act of getting down from the bus the accident took place, as it has done in this case, it cannot be said that the owner of the vehicle is not liable for the consequences of the negligent act of the conductor. 14. It is contended by Mr. Tirumale, learned Counsel appearing on behalf of the third Respondent, that the accident did not arise out of the use of the motor vehicle as contemplated u/s 110 of the Motor Vehicles Act and that the Respondents are not liable. This contention was rejected by the Tribunal and, in our opinion, rightly. The deceased Subbaraya was a passenger travelling in the bus. He was still in the act of getting down from the bus at the bus stop at Lingadahalli and it was due to the negligence of the conductor in giving the signal to the driver that the deceased fell down and got crushed under the hind wheel of the bus. It cannot be said that the accident was not due to the use of the motor venicle. The findings of the Tribunal on issue No. 3, are, therefore, wholly unsustainable. 15. Since the Tribunal held that the accident was not due to the negligence of the driver, it did not determine the amount of compensation payable to the Appellant. 16. The deceased was a boy of four years at the time of his death. The findings of the Tribunal on issue No. 3, are, therefore, wholly unsustainable. 15. Since the Tribunal held that the accident was not due to the negligence of the driver, it did not determine the amount of compensation payable to the Appellant. 16. The deceased was a boy of four years at the time of his death. According to the evidence of the Appellant, the mother of the deceased, Subbaraya, was of a sharp intellect and was able to write all the letters of the alphabet though he had not been admitted to the school. According to her evidence, Subbaraya would have earned Rs. 200/- to Rs. 300/- per year by the time he attained the age of-10 years. Though the Appellant claimed compensation of Rs. 10,000/- before the Tribunal, the appeal is restricted to Rs. 2,000/-. 17. In C.K. Subramania Iyer and Others Vs. T. Kunhikuttan Nair and Others, the deceased was a boy of 8 years at the time of the accident. The damages of Rs. 5000/- awarded by the High Court u/s 1A of the Fatal Accidents Act, and a sum of Rs. 1,000/- awarded u/s 2 of the Act, was confirmed by the Supreme Court. The following observations of Mc. Cardie, J. in 1921 (2) KB 461 [Barnett v. Cohen) was referred to with approval: The basis is not what has been called solatium that is to say, damges given for injured feelings or on the ground of sentiment, but damages based on compensation for a pecuniary loss. But then loss may be prospective and it is quite clear that prospective loss may be taken into account. It has been said that this is qualified by the proposition that the child must be shown to have been earning something before any damages can be assessed. I know of no foundation in principle for that proposition either in the statute or in any doctrine of law which is applicable; nor do I think it is really established by the authorities when you examine them....I have already indicated that in my view the real question is that which Willes J., defines in one of the cases quoted to us, Dalton v. South Eastern Rly. Co. (1858) 4 CB (NS) 296, Aye or no, was there a reasonable expectation of pecuniary advantage ? Co. (1858) 4 CB (NS) 296, Aye or no, was there a reasonable expectation of pecuniary advantage ? It was further observed in that case as follows: Compulsory damages u/s 1A of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries and that u/s 2, the measure of damages is to the economic loss sustained by the estate. There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. 18. In the present case also, how the deceased would have turned out in life later is at best a guess. The accident in the case referred to above took place in the year 1956 and the amount of compensation of Rs. 1,000/- towards the loss of expectation of life was confirmed by the Supreme Court. Due to the fall of the value of the rupee since then and since the accident in the present case took place on 27-8-1963, we consider that a sum of Rs. 3,000/- would be a reasonable amount of compensation towards loss of expectation of life. As the appeal is confined to the sum of Rs. 3,000/-, it is unnecessary for us to consider whether the Appellant would be entitled to any compensation towards loss of pecuniary benefits due to the death of the deceased. 19. The appeal is therefore allowed against Respondents 1 and 3 only, the order of the Tribunal is reserved and there will be a direction to the third Respondent to pay a sum of Rs. 2,000/- to the Appellant, since the liability of the insurer is limited to the said sum u/s 96(2)(b) of the Motor Vehicles Act, and the balance of Rs. 1,000/- shall be paid by the first Respondent. Both the above said amounts will carry interest at the rate of 6 per cent from the date of application to the dates of payment. 20. The Appellant will get the costs from Respondents 1 and 3 in proportion to their liability. Advocate's fee Rs. 100/-.