VITTOBAI v. RAGHAVAN S. — 1978 DIGILAW 107 (KAR)

SABHAHIT, J. ( 1 ) THIS appeal is instituted under Sec. 110-D of the Motor Vehicles Act, 1839, by the original claimants in MVC NO. 182 of 1975 and is directed against the Judgment and Award dated 14th September, 1977, passed by the Motor Accidents Claims Tribunal, Bangalore, dismissing the petition instituted under Sec. 110-A of the Motor Vehicles Act, for compensation ( 2 ) THE petition was instituted by the present appellants claiming compensation for the death of K. S. Balaram who was the husband of the first petitioner and father of petitioners 2 to 7. It is the case of the claimants that Balaram was going on his Suvega bearing No. MEV. 6735 on 29-6-1975 at 6 p. m. on Margosa Road, near 10th Cross, malleswaram, when respondent-1 who was riding the scooter in a rash and negligent manner came across and hit Suvega which resulted in severe injuries to Balaram and Balaram succumbed to the injuries in. the hospital on 7-7-1975. Balaram was 52 years of age at the time of death by injuries sustained in the accident. According to the claimants, he was earning rs. 600 per month and he was the main bread winner of the family. Since the accident was the result of rash and negligent driving of the scooter, the petitioners claimed Rs. 50,000 as compensation from respondents. The claim was resisted by the 1st respondent who filed statement of objections on 13-9-1977. He contended that the accident was the result of the rash and negligent driving of Suvega by the deceased. He denied his liabilities. Alternatively, he contended that the compensation claimed was excessive and exaggerated. Respondent-2 who is the owner of the scooter contended similarly. Respondent-3 is the insurer, who adopted the statement of objections filed by respondent-1. On these pleadings, the following issues were raised for decision by the Tribunal. (1) Whether the petitioners prove that deceased K. S. Balaram died due to the negligence of the rider of the scooter bearing No. MEW 1566? (2) What was the age of the deceased; what was the income of the deceased at the time of his death and what amount he was contributing for the maintenance of his family? (3) Whether the petitioners are entitled to any compensation? If so, what amount and from whom? (2) What was the age of the deceased; what was the income of the deceased at the time of his death and what amount he was contributing for the maintenance of his family? (3) Whether the petitioners are entitled to any compensation? If so, what amount and from whom? ( 3 ) IN the course of the hearing, the petitioners examined five witnesses including the 2nd petitioner as PW. 2. They produced five documents Exht. P1 to P5. Against that, respondents examined only RW. 1 who is the 1st respondent. The Tribunal appreciating the evidence on record, held that the petitioners failed to establish that the" accident was the result of rash and negligent driving of the scooter by the 1st respondent. In that view, it held that the petitioners were not entitled to any compensation and by its Judgment and Award dated, 14th September, 1977, dismissed the petition. Aggrieved by the 'said order, the claimants have come up in Appeal before this Court. ( 4 ) THE learned Advocate appearing for the appellants vehemently contended that the Tribunal was not justified in holding that the accident was not the result of the rash and negligent driving of the scooter by original respondent-1. He further submitted that the Tribunal ought to have awarded the compensation as claimed in the petition. As against that, the learned Counsel appearing for the respondents, argued supporting the findings and reasoning of the Tribunal. ( 5 ) THE points that arise for our consideration are: (1) Whether the Tribunal was justified in holding that the petitioners failed to establish that the accident was the result of rash and negligent driving of the scooter by respondent-1. (2) If not to what compensation the petitioners or any of them are entitled to and from whom. Apart from the evidence of RW. 1 who was the rider of the scooter, there is no oral evidence adduced on record on the aspect of cause of accident. Ext.-p2 is got marked, and it is a sketch of scene of occurrence and it was got proved through the IO who submitted a charge-sheet in the criminal Court. Apart from the evidence of RW. 1 who was the rider of the scooter, there is no oral evidence adduced on record on the aspect of cause of accident. Ext.-p2 is got marked, and it is a sketch of scene of occurrence and it was got proved through the IO who submitted a charge-sheet in the criminal Court. The 1st respondent in his evidence speaking about the cause of accident has stated thus:"at the time of the accident I was proceeding on my scooter from north to south and the injured was coming on his Suvega from south to North and the accident took place when the injured suddenly took a right turn to enter into the 10th cross without giving any signal. I was proceeding on the Margosa Road on the left side of the road with reference to my vehicle at a distance of 2 feet from the edge of the left foot-path. The accident occurred at the centre of the road. Both the vehicles fell down after the collision. " ( 6 ) RELYING on the testimony of RW. 1, learned Advocate appearing for the appellants, argued that this is a case of res ipsa loquitur and that the scooter driver has not explained the circumstances as to why the accident occurred in the middle of the road. The learned Advocate appearing for the respondents tried to explain that since the rider of Suveg, the deceased, took a sudden turn to the right side to enter the 10th Cross road, rw. 1, scooter rider, who was going on proper side slightly swerved to the right to avoid any collision with the Suvega and the two vehicles collided in the middle of the road. Thus, what becomes established is that the two vehicles collided in the middle of the road. We take judicial notice of the fact that the Margosa road near the 10th Cross in Malleswaram is nearly 18 feet wide, and normally if two vehicles go on their proper side, there is no chance of collision in the middle of the road. ( 7 ) IT is not in dispute that the scooter was approaching the road inter-section of 10th Cross road to Margosa Read It was the duty of the scooter rider to check the speed when he approached the' road inter-section so that he could stop his vehicle on Margosa Road in. an exigency. ( 7 ) IT is not in dispute that the scooter was approaching the road inter-section of 10th Cross road to Margosa Read It was the duty of the scooter rider to check the speed when he approached the' road inter-section so that he could stop his vehicle on Margosa Road in. an exigency. It was equally the duty of the Suvega rider to look for other vehicles going on the road before he took a sudden right turn. The fact that the accident has happened in the middle of the road shows that both these riders were rash and negligent in riding their vehicles. The Suvega rider was negligent because he should have observed the scooter going on 'the main road on, its left side. The Scooter rider was negligent because he should have slowed down the speed and halted his vehicle when he saw that the Suvega rider took a turn to the right as he had sufficient opportunity to observe it because the Suvega rider had to cover nearly 11 feet of the road before he came to the middle of the road. Even if the scooter driver had gone ahead with speed without going to the right, chances of collision were the least, and instead of halting his scooter, the scooter drive has taken turn to the right. That only shows that the scooter rider was not in a position to control his vehicle immediately because of the speed. Thus, we have no hesitation to hold that the collision of these two vehicles in the middle of the road happened bec'ause of negligence on the part of both the vehicle riders, and since the collision is in the middle of the road, we deem it proper to fix the degree of negligence at 50 per sent each. Thus, we are constrained to set aside the finding of the Tribunal that the accident was not the result of the negligence On the part of the scooter driver. We sub-Stitute the above finding in its place that the accident was the result of the rash and negligent driving of both the vehicles, the scooter driver contributing 50 per cent of the cause of accident. ( 8 ) THE next point that arises for our consideration is the quantum of compensation to, which the petitioners are entitled. We sub-Stitute the above finding in its place that the accident was the result of the rash and negligent driving of both the vehicles, the scooter driver contributing 50 per cent of the cause of accident. ( 8 ) THE next point that arises for our consideration is the quantum of compensation to, which the petitioners are entitled. It is in evidence that balaram was 52 years of age at the time of death due to injuries sustained in the accident. The same is not challenged before us. The learned advocate appearing for the appellants urged that Balaram was earning Rs. 300 from cloth shop and Rs. 300 from stamp vending business. As against this, the learned Advocate appearing for respondents, submitted that the shop still remains and it was run by his son and the stamp vending also was not lost to the family. But the fact remains that the family has lost the services of an experienced business man. His services will have to be rendered in terms of money. Having regard to the business that Balaram was doing namely, cloth business and the stamp vending, it will be safe to take his monthly earnings at Rs. 300 which represent the services of an experienced business man. From out of this, allowance has to be made for his personal living and maintenance. Deducting Rs. 150 from out of this, we get. Rs. 150 as monthly loss of the dependency and Rs. 15 x 12=1800 annually. Having regard to the fact that the mother of Balaram is alive, it is safe to take his longevity of working life at 65 years. Hence, the annual loss of dependency multiplied by 13 gives the total figure of Rupees 23,400. This has to be scaled down for the reason of lumpsum grant and uncertainties of life, by 20 per cent; that represents Rs. 4,760 deducting the same from the total figure, we get Rs. 19,040 towards total loss of dependency. ( 9 ) BALARAM has lost prospects of his future happy life and under this head, it is conventional to award Rs. 5,000 towards the loss to the estate of the deceased. In addition, it is in evidence that Balaram suffered 8 days in the hospital, and the petitioners had to spend on him. Balaram suffered pain and agony. For this, the petitioners have claimed Rs. 2500. 5,000 towards the loss to the estate of the deceased. In addition, it is in evidence that Balaram suffered 8 days in the hospital, and the petitioners had to spend on him. Balaram suffered pain and agony. For this, the petitioners have claimed Rs. 2500. The same has to be awarded, being reasonable. Thus, the total figure would be rs. 19,040 plus 5000 plus 2500=rs. 26,540. We have held above, that the deceased contributed 50 per cent to the cause of the accident. Hence, while awarding compensation, this has to be reduced to half which comes to rs. 13. 270. That, in our opinion, represents the proper and adequate compensation to the petitioners on the facts of this case. ( 10 ) PETITIONER-2 is a major. He has started earning even before the death of his father and no compensation will be awarded to him. Compensation has to be awarded to petitioner-1 the wife of the deceased as well as her minor children who are petitioners 3 to 6. ( 11 ) IN the result, the appeal is allowed. The order of dismissal passed by the Tribunal is set aside. Petitioners 1 and 3 to 6 are awarded rs. 13,270 as compensation along with interest thereon at 6 per cent per annum from the date of petition till the date of payment as also the costs of this proceeding. Respondents shall pay the same under S. 110 B of the motor Vehicles Act, we further direct that the entire amount of compensation awarded with costs and interest shall be paid over by the 3rd respondent, the Insurance Company. Respondents shall bear their own costs. --- *** --- .