Full Judgment Text
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CASE NO.:
Appeal (civil) 8424 of 2003
PETITIONER:
The Municipal Corporation of Greater Bombay
RESPONDENT:
Shri Laxman Iyer and Anr.
DATE OF JUDGMENT: 27/10/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 5639 of 2003)
ARIJIT PASAYAT,J
Leave granted.
The Municipal Corporation of Greater Bombay (hereinafter referred
to as the ’Corporation’) questions legality of the judgment rendered by
learned Single Judge of the Bombay High Court in the appellate side. The
said appeal related to a judgment and award passed by the Motor
Accidents Claims Tribunal for Greater Bombay (for short the ’Tribunal’)
adjudicating a claim petition under Section
110-A of the Motor Vehicles Act, 1939 (in short the ’Act’).
One Kumar (hereinafter referred to as the ’deceased’) lost life in
a vehicular accident which occurred on 15.8.1989. Vehicle No.MMK 6623, a
bus belonging to the Corporation was the offending vehicle. Claim of
rupees six lakhs was made by the parents of the deceased (respondents in
this appeal). According to the claimants, when the deceased was going by
his bicycle suddenly the offending vehicle dashed against him. The
impact of the accident was so severe that the deceased was thrown to
some distance and sustained various serious injuries which resulted in
his death. The deceased was aged about 18 years at the time of accident.
He was a good student and would have entered to income earning services
shortly. The Corporation took the stand that the deceased had suddenly
come from the left side of the bus from Chembur Railway Station at a
very high speed and instead of taking left turn, took right turn in
contravention of traffic regulations. When the driver of the vehicle saw
the cyclist coming on a wrong side, he immediately applied the brakes
and halted the bus. Despite this, the cyclist was unable to control the
cycle and dashed against the bus from the right corner of the bus, as a
result he fell down. He was removed to the hospital with the help of the
conductor of the bus and other persons. Witnesses were examined to show
as to how the accident occurred and also on the compensation aspect. The
Tribunal noticed that as the case progressed, a significant change was
made in the stand taken by the Corporation. The driver was examined. He
stated that he was driving the vehicle at very slow speed. The deceased
came from the side of Chembur Station in the opposite direction and when
he saw him at a distance of 30 ft., he immediately applied the brakes,
and halted the bus. But the cyclist came and dashed against the front
side of the bus. Since the cyclist came from the wrong side of the bus,
he sustained injuries which proved fatal. The Tribunal held since the
parents were claimants and came from a respectable and educated family,
it would not be improbable to conclude that the deceased would have
earned decently by taking an employment. By taking the expected earning
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of Rs.3,000/-p.m. multiplier of 15 was adopted. Accordingly, the quantum
was fixed at Rs.5,60,000/- including loss of expectation of life. As a
lump sum was being paid, deduction of 25% was made and finally a sum of
Rs.4,01,250/- was awarded as compensation, with interest at 15% p.a.
from the date of application. The matter was carried in appeal to the
Bombay High Court, which by the impugned judgment held that the quantum
fixed was proper. However, interest was reduced from 15% to 12% p.a.
In support of the appeal, learned Attorney General appearing for
the Corporation submitted that the High Court’s judgment is vulnerable
on more than one counts. Firstly it is submitted that the parents being
the claimants, the multiplier as adopted is not proper. Secondly, this
was a case where the accident occurred more on account of deceased’s
negligence than that of the driver of the offending vehicle. This is a
clear case of contributory negligence. That being so, the awarded amount
cannot be maintained.
In response, learned counsel for the claimants submitted that the
award made is just, fair and needs no interference.
A plea which was stressed strenuously related to alleged
contributory negligence. Though there is no statutory definition, in
common parlance ’negligence’ is categorised as either composite or
contributory. It is first necessary to find out what is a negligent act.
Negligence is omission of duty caused either by an omission to do
something which a reasonable man guided upon those considerations who
ordinarily by reason of conduct of human affairs would do or obligated
to, or by doing something which a prudent or reasonable man would not
do. Negligence does not always mean absolute carelessness, but want of
such a degree of care as is required in particular circumstances.
Negligence is failure to observe, for the protection of the interests of
another person, the degree of care, precaution and vigilance which the
circumstances justly demand, whereby such other person suffers injury.
The idea of negligence and duty are strictly correlative. Negligence
means either subjectively a careless state of mind, or objectively
careless conduct. Negligence is not an absolute term, but is a relative
one; it is rather a comparative term. No absolute standard can be fixed
and no mathematically exact formula can be laid down by which negligence
or lack of it can be infallibly measured in a given case. What
constitutes negligence varies under different conditions and in
determining whether negligence exists in a particular case, or whether
a mere act or course of conduct amounts to negligence, all the attending
and surrounding facts and circumstances have to be taken into account.
It is absence of care according to circumstances. To determine whether
an act would be or would not be negligent, it is relevant to determine
if any reasonable man would foresee that the act would cause damage or
not. The omission to do what the law obligates or even the failure to do
anything in a manner, mode or method envisaged by law would equally and
per se constitute negligence on the part of such person. If the answer
is in the affirmative, it is a negligent act. Where an accident is due
to negligence of both parties, substantially there would be contributory
negligence and both would be blamed. In a case of contributory
negligence, the crucial question on which liability depends would be
whether either party could, by exercise of reasonable care, have avoided
the consequence of other’s negligence. Whichever party could have
avoided the consequence of other’s negligence would be liable for the
accident. If a person’s negligent act or omission was the proximate and
immediate cause of death, the fact that the person suffering injury was
himself negligent and also contributed to the accident or other
circumstances by which the injury was caused would not afford a defence
to the other. Contributory negligence is applicable solely to the
conduct of a plaintiff. It means that there has been an act or omission
on the part of the plaintiff which has materially contributed to the
damage, the act or omission being of such a nature that it may properly
be described as negligence, although negligence is not given its usual
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meaning. (See Charlesworth on Negligence, 3rd Edn. Para 328). It is now
well settled that in the case of contributory negligence, courts have
power to apportion the loss between the parties as seems just and
equitable. Apportionment in that context means that damage are reduced
to such an extent as the court thinks just and equitable having regard
to the claim shared in the responsibility for the damage. But in a case
where there has been no contributory negligence on the part of the
victim, the question of apportionment does not arise. Where a person is
injured without any negligence on his part but as a result of combined
effect of the negligence of two other persons, it is not a case of
contributory negligence in that sense. It is a case of what has been
styled by Pollock as injury by composite negligence. (See Pollock on
Torts, 15th Edn. P.361).
At this juncture, it is necessary to refer to the ’doctrine of
last opportunity’. The said doctrine is said to have emanated from the
principle enunciated in Devies v. Mann (1842 (10) M&W 546) which has
often been explained as amounting to a rule that when both parties are
careless the party which has the last opportunity of avoiding the
results of the other’s carelessness is alone liable. However, according
to Lord Denning it is not a principle of law, but test of causation.
(See Davies v. Swan Motor Co. (Swansea) Ltd. (1949 (2) KB 291). Though
in some decisions, the doctrine has been applied by courts, after the
decisions of the House of Lords in The Volute (1922 (1) AC 129) and
Swadling v. Cooper (1931 AC 1), it is no longer to be applied. The
sample test is what was the cause or what were the causes of the damage.
The act or omission amounting to want of ordinary care or in defiance of
duty or obligation on the part of the complaining party which conjointly
with the other party’s negligence was the proximate cause of the
accident renders it one to be the result of contributory negligence.
Though the driver may not have been in this case wholly
responsible for the accident, as contended, from the mere fact that the
victim acted in contravention or a traffic regulation alone complete
immunity from liability of the driver or the appellant corporation for
the accident so as to disown totally responsibility to compensate the
injured or dependants of the victim cannot be accorded also. Merely
because there may have been breach of any traffic regulation, in the
absence of concrete, clinching, positive and legally acceptable material
to fix sole responsibility for the accident only on such injured/victim,
which are conspicuously absent on the facts and circumstances of this
case, the liability of the appellant-corporation remains, though to what
extent remains to be considered further. Even according to the stand
of the Corporation, the victim was seen by the driver from a distance of
about 30ft and the vehicle was moving at a snail’s pace. If that be so,
it is not understood as to how it became totally impossible for the
driver to avoid the accident has not been substantiated by proper
evidence. In fact the High Court has noticed that there was ample scope
for avoiding the collision between the cycle and the bus. The evidence
on record also establishes that the bicycle was thrown to a distance of
4-5 ft. Before taking the turn, horn was found not blown by the driver.
The application of the brakes and the incident of collision between the
cycle and the bus seem to have been almost simultaneous. The stand of
the Corporation that the bus had come to a halt much prior to the
incident of the collision is not acceptable and though has been rightly
rejected by the Tribunal and the High Court, the infirmity in their
orders also lay in rejecting the plea of contributory negligence
completely. The Tribunal as well as the High Court ought to have
appropriately apportioned the negligence keeping in view the materials
placed on records and properly balancing rights of parties.
So far as the quantum of compensation is concerned we find that at
the time of accident, as revealed from the claim petition, the claimants
were 47 years and 43 years respectively. It is not the age of the
deceased alone but the age of the claimants as well which are to be the
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relevant factors, in case parents or other dependants are claimants.
In Lata Wadhwa and Ors. v. State of Bihar and Ors. (AIR 2001 SC
3218) and M.S. Grewal and Anr. v. Deep Chand Sood and Ors. (AIR 2001 SC
3660) law on the principles of assessment of compensation was
elaborated. In Lata Wadhwa’s case (supra) this Court while dealing with
the issue in relation to the compensation to be paid in relation to the
death of children, placing reliance upon the decision of Lord Atkinson
in Taff Vale Railway Company v. Jenkins (1913 AC 1) has ruled that "In
cases of death of an infant, there may have been no actual pecuniary
benefit derived by its parents during the child’s lifetime. But this
will not necessarily bar the parents claim and prospective loss will
found a valid claim provided that the parents establish that they had a
reasonable expectation of pecuciary benefit if the child had lived."
This Court in M.S. Grewal’s case (supra) has clearly observed that
the decision in Lata Wadhwa’s case (supra) is definitely a guiding
factor in the matter of award of compensation wherein children die under
an unfortunate accident. The said observation was made after taking into
consideration the conclusions arrived in Lata Wadhwa’s (supra) regarding
the compensation which was to be paid and the multiplier which was to be
applied in relation to the death of a child. This Court in General
Manager, Kerala State Road Transport Corporation v. Susamma Thomas and
Ors. (AIR 1994 SC 1631) held that the proper method of compensation is
the multiplier method, and the same view was re-iterated in M.S.
Grewal’s case (supra) observing that "needless to say that the
multiplier method stands accepted by this Court in the said decision".
Keeping in view the observations made by this Court in various
cases, several other factors need to be taken note of. The deceased was
unmarried. The contribution to the parents who had their separate
earnings being employed and educated have relevance. The possibility of
reduction in contribution once a person gets married is a reality. The
compensation is relatable to the loss of contribution or the pecuniary
benefits. The multiplier adopted by the Tribunal and confirmed by the
High Court is certainly on the higher side. Considering the age of the
claimants it can never exceed 10 even by the most liberal standards.
Worked out on that basis amount comes to Rs.3.6 lakhs at the monthly
expected income fixed by the Tribunal and confirmed by the High Court.
Looking into the nature of the contributory negligence of the deceased
after making an appropriate deduction which can reasonably be fixed at
25%, the compensation amount payable by the Corporation can be fixed at
Rupees 3 lakhs including the amount awarded by the Tribunal and
confirmed by the High Court for loss of expectation of life. Interest at
the rate as awarded by the High Court is maintained from the date of
application for compensation.
The appeal is partly allowed to the extent indicated above. There
will be no order as to costs.
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