MOHINDER KAUR v. MANPHOOL SINGH — 1973 DIGILAW 91 (DEL)

P. N. Khanna, J. ( 1 ) THIS first appeal, under section 110-D of the Motor Vehicles Act, 1939, is directed against the award dated October 1, 1965 of the Motor Accident Claims Tribunal, Delhi, dismissing the appellant s application under section 110-A of the Motor vehicles Act, for awarding a sum of Rs. 55,090. 00 as compensation on account of death of Sardar Niranjan Singh, husband of appellant No. 1, and father of appellants Nos. 2 to 5. The accident took place on February 11, 1963 at about 12. 30 p. m. , when according to the allegations in the application, the deceased was proceeding from Gole Market side towards Baird Road on his cycle. A D. T. U. bus, registered No. DLP 906, driven by Manphool Singh, respondent No. 1 and belonging to D. T. C. and the Delhi Municipal Corporation, respondents, Nos. 2 and 3, respectively, approached from behind and struck against the right hand side of his cycle from the rear. It is alleged that the bus was driven at a very fast speed rashly and in a negligent manner and could not be controlled. It was pleaded that the deceased was dragged towards the middle of the road and was finally knocked down mid way on the left half of the road side, resulting in serious injuries to him. The deceased became unconscious and was removed to the Willingdon Hospital, where he died on February 14, 1963. The deceased was said to be 54 years of age and was working as Assistant Postmaster, drawing a salary of Rs. 321. 60 per month. He was expected, according to the appellants, to live up to the age of 80 years, had he not met with the accident. ( 2 ) THE respondent in reply pleaded that the bus was proceeding on its correct side on Lady Hardinge Road at a moderate speed and it had slowed down when it reached near the crossing of Baird Road. The deceased going on a cycle was said to be on the left side of the bus on seeing which he tried to cross the road ahead of the bus from the left to the right side of the road in order to go to Bhagat Singh Market. The deceased going on a cycle was said to be on the left side of the bus on seeing which he tried to cross the road ahead of the bus from the left to the right side of the road in order to go to Bhagat Singh Market. In this attempt he struck against the left side of the bus and fell down receiving serious injuries as a result of the fall. The other allegations were denied. Seven issues were framed, but arguments in this court were confined to issues Nos. 2, 4 and 6 only, which read as follows : " (2) Whether the accident resulting into death of Niranjan Singh was caused due to rash and negligent driving of respondent no. 1 (4) Whether the deceased was guilty of of contributory negligence ? (6) To what amount if any as compensation are the petitioners entitled ? ( 3 ) THE motor Accident Claims Tribunal came to the conclusion that the deceased himself was solely responsible for his own death and that the appellants had failed to prove any rash and negligent driving on the part of the driver, respondent No. 1. The Tribunal also worked out a sum of Rs. 12,210. 00, which would have been payable to the appellants. Out of this, a sum of Rs. 7591. 75 was deducted on account of death-cum-retirement gratuity and provident fund already paid to the appellants, thereby leaving a balance of Rs. 5619. 00 which might have been awarded to the appellants, if the decision on issues Nos. 2 and 4 had been in their favour. But, as the responsibility of the respondent-driver had been negatived, the application under section 110a of the Act for compensation was dismissed, leaving the parties to bear their own costs. ( 4 ) THE main question, which has arisen in this appeal and on which the learned counsel for the parties, laid great stress during their arguments before me, is whether the driver of the offending bus had any responsibility in causing the accident or whether it was the result solely of the negligence and rashness of the deceased himself. The parties produced number of witnesses on both sides. To me, however, it appears that the statements of the two eye witnesses, viz. The parties produced number of witnesses on both sides. To me, however, it appears that the statements of the two eye witnesses, viz. Arjan Singh, AW4, and Inderjit Gupta, AW6, and that of Darshan Singh AW 10, who prepared the site plan, exhibit AW10/1, are relevant and most important for determining the responsibility for the accident. All the three of them appear to be disinterested. Arjan Singh, AW4, is a constable, who was on patrol duty of Baird Road on that fateful day and witnessed the accident. According to him, the deceased riding a cycle gave a signal to take a turn to his right for going towards Bhagat Singh Market. He had already turned on more than half of the road when front right side of the bus struck against him. The bus according to this witness, was coming at a very high speed. The cycle and the deceased were thrown away at a distance of about five to six feet. The bus stopped at a distance of 10 to 15 feet from the place of the impact and was left on the spot in the same direction and position in which it was at the time of the accident. He rang up the police station and the flying squad arrived. A constable was posted to keep guard on the site. The injured was removed to the Hospital by the respondent-driver. The traffic point was about 10 to 12 feet from the site. The cyclist, according to this witness, was going ahead of the bus at a distance of about 20 to 25 and had a bundle of turbans in one hand. There is a bus stop at a distance of 50 from the place of the impact. There was absolutely no other traffic on the road when the cyclist was going ahead of the bus. The cyclist, said the witness, had fallen on the right side of the bus. The bus was in centre of the road, where it stopped. Inderjit Gupta, AW6, stated that the bus was being driven at a high speed and the deceased was going on a cycle ahead of it towards Baird Road. He gave signal by his right hand in order to turn to his right towards Bhagat Singh Market. He was struck by the bus when he started turning towards the right. Inderjit Gupta, AW6, stated that the bus was being driven at a high speed and the deceased was going on a cycle ahead of it towards Baird Road. He gave signal by his right hand in order to turn to his right towards Bhagat Singh Market. He was struck by the bus when he started turning towards the right. The deceased fell down at a distance of about four or five feet. The cyclist was in the middle of the road before taking the turn. There was no traffic except the cyclist ahead of the bus at the time of the accident. The cyclist was at a distance of 10 or 15 feet from the bus, when the witness saw the bus first. According to this witness, the cyclist had nothing in his hand and was struck by the front right side of the bus which hit at the rear wheel of the cycle. The cycle fell towards the right side of the bus after the impact. The cyclist also fell towards the right side. Constable Darshan Singh, AW 10, on being informed by the control room about the accident, went to the spot. The deceased had been removed to the Hospital, while the bus and the cycle were lying on the road. He prepared the correct site plan, AW 10/1. He had reached the spot ten minutes after being informed about the accident. There was no turbans found at the spot. The cycle, according to this witness, was lying two paces (about five feet) in front of the bus. Its frame was bent below its right peddle. He did not notice the damage caused to the bus. The road was 17 paces in width. The left wheel of the bus was seven paces from the left foot-path. ( 5 ) THE respondent produced several witnesses in rebuttal, almost all of whom stated that when the bus was nearing the Baird Road crossing, the deceased going ahead of it on his cycle on the left side of the bus took a sudden turn towards the right, when the bus reached near him. The driver applied the brake and the bus stopped but its left corner struck against the cycle, as a result of which the cyclist fell towards the right side of the bus on the road. The respondent driver and the conductor also supported this version. The driver applied the brake and the bus stopped but its left corner struck against the cycle, as a result of which the cyclist fell towards the right side of the bus on the road. The respondent driver and the conductor also supported this version. According to Sarup Singh, RW4, Traffic Superintendent, the bus was standing in the middle of the road towards its left side and the cyclist was lying in front of the bus towards his correct side, while one pagri and one dubba were lying near the cycle. According to this witness, the skid marks on the road were 6 in length and the deceased was 9 from the place from where the skid marks started. ( 6 ) A careful reading of the entire evidence shows that the cyclist, who was going ahead of the bus on the left of the centre of the road, suddenly started taking a turn towards his right, in order to cross the road. The bus too was almost at his heels. The deceased hoping that he would be able to clear away from the path of the on-coming bus in time, took the risk of taking asharp turn rather than waiting for the bus to pass. This was indeed a rash and extremely negligent act recklessly taken by him unmindful of the consequences. If the bus was going at the speed and was just at his heels, as it, in fact was, it was the duty of the deceased, as a prudent man, to have allowed it to pass. The Tribunal, was, therefore, right in holding that the deceased was himself guilty of a rash and negligent act. But, the respondent driver cannot be completely absolved of his responsibility. AW10, who prepared the plan has shown the bus in exhibit AW 10/1, a little towards the right of the centre of the road. He has also stated on oath that the width of the road was 17 paces. , which would be about 42 feet. The left wheel of the bus, according to him, was 7 paces from the left foot-path, which would be about 17 feet from the left side. If the width of the bus is taken to be about 11 feet, it left only about 14 feet of road towards the right of the bus. , which would be about 42 feet. The left wheel of the bus, according to him, was 7 paces from the left foot-path, which would be about 17 feet from the left side. If the width of the bus is taken to be about 11 feet, it left only about 14 feet of road towards the right of the bus. Although the bus was approaching the Baird Road crossing, its speed had not been slowed down to any great extent, as it evident from the 6 long skid mark on the road. The cycle was found to be lying about 5 ahead of the bus, which stopped after travelling about 6 from the point where its brakes had been applied. The cycle had not fallen on the left side of the road. Rather it was more towards the right side in front of the bus, as can be seen from the plan, exhibit AW 10/1. This shows that the deceased was trying hard to cross the road as quickly as possible. If the driver had kept a controllable speed on the approach of the crossing and had kept to the left side of the road, the accident might have been avoided. But, the driver, without controlling the speed of the bus appreciably appears to have moved a little towards the right side of the centre of the road in his attempt to quickly overtake the cycle, hoping that he would be able to move away, leaving the cyclist on his left. The driver, therefore, cannot be totally absolved of his responsibility. The deceased, because of his having taken a rash and reckless act of suddenly turning towards his right oblivious of the approaching bus was clearly guilty of contributory negligence. Rather his responsibility for the accident was more than that of the respondent driver. There cannot be any hard and fast rules in apportioning the negligence of the parties. Looking to the circumstances of this case. I think, 2/3rd of the responsibility can be fastened to the deceased himself, while the responsibility of the respondent driver for the accident was to the extent of l/3rd only. ( 7 ) THE deceased at the time of his death was 54 years of age. The Tribunal considered his life expectancy to be 62 years. I think, 2/3rd of the responsibility can be fastened to the deceased himself, while the responsibility of the respondent driver for the accident was to the extent of l/3rd only. ( 7 ) THE deceased at the time of his death was 54 years of age. The Tribunal considered his life expectancy to be 62 years. The learned counsel for the appellants contended that in view of the present age of his father, who is still alive and is of about 80 years, the life expectancy of the deceased should be computed at a much higher figure. I think, that in view of the age of his father, the deceased can safely be expected to have lived up to 70 years of age. In other words, he was yet to live for another 16 years. He would have retired on August 3, 1968, i. e. 66 months after the date of his death. The total income was fixed by the Tribunal at Rs. 325. 00 per month for 66 months during which the deceased was expected to draw full salary, the total being Rs. 21,450. 00. The Tribunal assessed Rs 140. 00 towards personal expenses of the deceased himself. Looking at the travelling which the deceased used to indulge in, for going to his village at Phagwara. I do not see that this assessment is in any way excessive. During the aforesaid 66 months the deceased would have spent on himself Rs. 9,240. 00 The amount thus available to the appellants from the deceased during the period he remained in service would have been Rs. 12,210. 00. During the remaining 10 years and 6 months of his life after retirement, the deceased would have earned a pension of Rs 138. 00 per month. Considering his personal expenses, the Tribunal was of the opinion that nothing would have remained with the deceased to contribute towards the family income, I, however, think that the deceased would then have reduced his personal expense and would still have contributed at least Rs. 50. 00 per month for his family, which works out to Rs 6,300. 00 for the said ten years and six months. The total amount, which the appellants could expect to get from the deceased if he had not met with the accident would be Rs. 18,510. 00. The widow of the deceased has received a sum of Rs. 3,000. 50. 00 per month for his family, which works out to Rs 6,300. 00 for the said ten years and six months. The total amount, which the appellants could expect to get from the deceased if he had not met with the accident would be Rs. 18,510. 00. The widow of the deceased has received a sum of Rs. 3,000. 00 towards pension from 15. 2. 1963 to 3. 8. 1968 at Rs. 45. 15 p. m. , which she would not have received if the deceased had lived his normal life. Deducting this sum, the balance is Rs. 15,510. 00. As the responsibility of the driver has been limited to l/3rd only, the appellants would be entitled to Rs 5,170. 00. The appellants would now be getting this amount in a lump-sum rather being spread over a period of years, which would have happened if the deceased had lived his normal life. If for this accelerated payment, 30% of the total amount, i. e. 1551. 00 is deducted, the balance would be Rs 3,619. 00. As the appellants have been deprived of this sum over the many years during the pendency of the appeal, they would get 4% per annum interest on this sum (Rs. 3,619. 00.) from October 1,1965, the date when the award was made, till actual payment. The appellants have been allowed interest 4% per annum and not 6% per annum, because the respondents cannot be said to be responsible for the delay. The appellants shall, however, have their costs.