Amloh Bus Service and Others vs Joginder Kaur and Others

S.S. Sodhi, J.—On September 4, 1974 at about 8,00 a.m. Inder Singh deceased was going on a cycle from village Sahauli towards village Bhadson on the Nabha-Amloh Road The left berm of this road had been dug up for the purpose of widening the road and for this purpose two drums had been placed on that side. The width of the metalled portion of the road, as would be apparent from the photographs taken in this case, permitted only one vehicle to travel thereon at one time. While the deceased was travelling on this road, a bus belonging to the Amloh Bus Service came from the opposite direction. According to the evidence led in this case, the bus was coming at a fast speed. An accident took place between the bus and the deceased, which resulted in the death of the deceased.

The Tribunal held the driver of the bus to be solely responsible for this accident attributing to him rash and negligent driving. A sum of Rs. 55,000/- was awarded as compensation to the claimants in this case. The claimants being his widow, three married daughters and one unmarried daughter.

In appeal Mr. V.P. Gandhi, counsel for the Appellants sought to challenge the finding of the Tribunal with regard to negligence on the plea that the accident in this case had taken place on a straight road in a broad day light. The approaching bus was clearly visible to the deceased from a considerable distance and there was thus ample time and opportunity available to him to have got off the road and out of the path of the bus and thus avoided the accident. In the circumstances, therefore, no negligence could be attributed to the bus driver for the accident.

The point canvassed against the deceased is equally applicable to the case of a bus driver. He too could have seen from a reasonable distance that a cyclist was coming ahead and there is no evidence to suggest that any measures were taken by him to avoid hitting into him. This obviously was a case of error of judgment or recklessness or negligence on the part of both the deceased as also the bus driver.

Looking at the case of the claimants, while it was no doubt sought to be established that the bus was travelling at a very fast speed and had come there without blowing any horn or giving any signal, there is no mention of any reason or circumstance to account for the deceased cyclist not having taken any steps to remove himself from the path of the on-coming bus. According to PW 2 Labh Singh, brother of the deceased, who was following Inder Singh deceased, at the time of accident, the bus was visible from a distance of 2 to 3 furlongs. He had brought his own cycle on to the kacha portion of the road on the left when he saw the bus. There is no explanation to account for the deceased not taking a similar precaution. Similar was the testimony of other eye witness PW 4 Ranjit Singh.

The Respondent bus driver RW 4 Chand Singh had sought to suggest that the accident took place as Inder Singh, deceased, suddenly turned towards his right when the bus was only a few (sic feet) away. This is indeed an implausible version. The deceased, must, obviously had been aware of the on-coming bus and it cannot be accepted that he would be foolhardy enough to seek to go across the road, when it had come so near and at such a fast speed.

In dealing with this aspect of the case, great stress was placed upon the position of the bus, the deceased and the cycle as shown in the photograph exhibit R 3 It was the contention of Mr. V.P. Gandhi, counsel for the Appellants that the fact that the deceased and the cycle were shown lying on the right side, of the road clearly corroborated the version of the bus driver. In dealing this matter, it would be pertinent to note that no explanation was sought from either of the eye witnesses examined by the claimants with regard to the deceased and the cycle being found on other side of the road when according to their version the deceased had been going on his correct side of the road. What is significant to note here is the fact that the damage to the bus as apparent in the photographs suggested that the place of impact with the cycle was the right front bumper thereof which would be in consonance with the version put forth by the claimants. At any rate it is to be noted that when an accident takes place, as in the present case, it is not necessary that the deceased and the cycle must have fallen exactly at the place where the impact took place. The position can and often shifts upon impact. It, thus, in the circumstances cannot be taken to either establish the version of the Respondent, bus driver or to create any doubt as to the evidence of the claimants'' witnesses.

Keeping in view the circumstances of the case in the light of the evidence on record, there is no escape from the conclusion that the accident here did indeed take place due to the rash and negligent driving of the bus driver, but at the same time some part of the blame must also be placed upon the deceased cyclist. As has been mentioned above, the width of the road did rot permit two vehicles on the metalled portion thereof and it was, therefore, incumbent upon the deceased to have got off the path of the bus which he obviously did not. In these circumstances, it would be reasonable to hold the deceased guilty of contributory negligence to the extent of one third. The finding of the Tribunal on negligence is modified accordingly.

Turning now to the issue relating to computation of compensation that the claimants are entitled, the Tribunal assessed the loss at the rate of Rs. 3,000/- per annum. There is no warrant to question this figure keeping in view the fact that the deceased was an agriculturist, who owned about 80 to 100 bighas of land which he was cultivating himself. The evidence on record suggests and rightly that the income from this land would have been to the tune of Rs. 6,000/- to Rs. 7,000/- per annum. The Tribunal took it that the deceased must have earned atleast Rs. 5,000/- per annum out of which, some amount he must have been spending upon himself. Rs. 3,000/- was thus taken to be the loss suffered by the claimants. It may be mentioned here that the claimants Mrs. Joginder Kaur, widow of the deceased is an invalid with neither her hands nor legs functioning. She has a son, but he is living separately from her. She is now left with 40 bighas of land which is being cultivated by servants. In these circumstances it is reasonable to assume the loss to be Rs. 3,000/- per annum as found by the Tribunal.

The claimants in this case besides the widow of the deceased are his four daughters, three of them being married. The unmarried daughter was 18/19 years of age which would mean that in normal course she would be expected to be married within the next 2/3 years and her period of dependency thus must be taken to be to that extent only. The widow herself, as has been mentioned above, is an invalid and in her case her life expectancy may be assumed to be less than normal. This would undoubtedly be relevant while considering the appropriate multiplier in this case on the principles set out by the Full Bench in Lachman Singh v. Gurmit Kaur 1979 A.C.J. 170 (P. and H.).

The next question to consider is with regard to the age of Inder Singh deceased. According to the claimant Joginder Kaur, his widow, he was 60 years of age at the time of death. The other evidence on record, including that of his brother PW 2 Labh Singh is to the effect that he was around 52 years of age. Even the doctor, who conducted the post mortem on the dead body of the deceased gave his age to be 52. Counsel for the Respondents, however, strongly urged that the age of the deceased should be taken as 60 in view of Joginder Kaur''s statement in this respect.

In dealing with the question of age, it is to be noted that no documentary evidence has been produced on record with regard thereto. It would not be correct to take the age to be as given by PW 8 Joginder Kaur in the face of the other evidence on record which was to the effect that he was only 52 years of age. Seen in the totality of the circumstances of the case and keeping in view also the fact that Joginder Kaur is an illiterate lady and an invalid the deceased must be taken to be 52 years of age at the time of death. The evidence to this effect clearly deserves reliance and must thus be accepted.

The question now arises as to the suitable multiplier to be applied in the present case. The normal multiplier in such cases is no doubt 16, but in view of the physical condition of the claimant PW 8 Joginder Kaur and the short span of dependency of her unmarried daughter it would be reasonable to apply a multiplier of 12 in the present case. So calculated, the compensation on this basis that the claimants are entitled to works out to Rs. 36,000/-. Out of this amount one third must be deducted on account of the contributory negligence of the deceased. The claimants are thus held entitled to and hereby awarded a sum of Rs. 24,000/- for the loss suffered by them on account of the death of the deceased. The claimants shall also be entitled to interest at the rate of 10 per cent per annum from the date of the application till the date of payment of the amount awarded. The award of the Tribunal is modified accordingly and this appeal is accepted to this extent. In the circumstances, however, there will be no order as to costs.