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Judgment
Kailasam, J.—The appellant was the first respondent in Claim Petition No. 13 of 1967 on the file of the Motor Accidents Claims Tribunal
(Principal Subordinate Judge), Tirunelveli. The petition was filed by the wife and the children of one Periaswamy who died in a motor accident at 7
p.m. on 12th October, 1966 when he was knocked down by lorry MDT 5729 belonging to the appellant herein. The seventh respondent herein,
namely, M/s. New India Assurance Company, Tirunelveli, was the second respondent in the claim petition. The case put forward by respondents
1 to 6 was that the lorry MDT 5729 belonging to the appellant was driven in a rash and negligent manner from north to south along Tuticorin
Tiruchendur Road and while it was running to the south of Athithanar College at Tiruchendur, it knocked down Periaswamy and crushed him to
death on the spot. Periaswamy at the time of his death was the Principal of the Industrial Training Institute, Tiruchendur, aged forty and was
drawing a salary of Rs. 431/- per month. He had another eighteen years of service with prospects of promotion, etc. The appellant and the seventh
respondent contended that the accident was not due to the negligent driving on the part of the driver of the lorry. On the date of the occurrence, it
was submitted that the deceased Periaswamy was coming from south towards north on his cycle without light, that Periaswamy hit a brick heap
which was on the western side of the road and fell on the eastern side and hit the rear portion of the lorry which resulted in his death.
The trial Court after a discussion of the evidence adduced on both sides, came to the conclusion that it was on account of the rash and negligent
drive on the part of the driver of the lorry at the time of the accident the victim Periaswamy was crushed by the rear right wheel of the lorry on the
western edge of the road. Taking into account the pay of Periaswamy, his prospects of promotion and the loss to the dependants, the trial court
fixed the compensation which respondents 1 to 6 are entitled to at Rs. 50,000/- and directed the Insurance Company, the seventh respondent
herein, to pay a sum of Rs. 20,000.- and the appellant herein to pay the balance of Rs. 30,000/-. Hence this appeal by the first Respondent in the
petition.
Mr. K.K. Venugopal, learned counsel for the appellant submitted that on the facts of the case, there is no material for holding that the driver of
the lorry was guilty of any rashness or negligence. In any event, he submitted that the deceased Periaswamy was guilty of contributory negligence,
and therefore, the liability of the appellant should be proportionately reduced. Lastly, he submitted that the compensation decreed is excessive.
On behalf of respondents 1 to 6, four witnesses were examined. P.W. 1 is the Assistant Motor Vehicles Inspector attached to the office of the
Regional Transport Officer, Tirunelveli, at the time of the occurrence. On receipt of a request from the Sub-Inspector of Police on 13th October
1966 to inspect lorry MDT 5729, he inspected it and prepared the report Exhibit A. 1. He found the efficiency of the footbrake of the lorry at 40
per cent with load. If after applying the footbrake, the vehicle had stopped at a distance of eighty feet, the vehicle ought to have been run at a
speed of more than thirty miles per hour. According to the witness, the normal speed for lorry is twenty-five miles per hour. In cross examination
he admitted that the speed at which the lorry was driven at the time of the occurrence would have been thirty miles an hour or a little more or a little
less, and a difference of five miles may be allowed. P.W. 1 also stated that at the place of occurrence the width of the tar road was twelve feet
with mud road on either side with a width of six feet.
P.W. 3 is a watchman in the Athithanar College, Tiruchendur. At 7 P.M. on the date of occurrence, he was about to be relieved from his duty,
and he along with the person who came to relieve him, was standing near the gate adjoining Tiruchendur-Tuticorin Road. The lorry in question was
proceeding from north to south along the road. It proceeded about fifty yards south of the place where he was standing when he heard a noise.
The lorry was moved a little to the east of the road. Then he and the other person went to the place and saw the injured. He was lying on the
western edge of the road. He head was crushed and he was dead on the spot. His cycle was then lying to the west of his body. There was an
electric post twenty feet east of the place where his dead body was lying. This witness did not see the lorry knocking the cyclist.
P.W. 4 was the Sub-Inspector of Police, Tiruchendur at the time of the occurrence. He received the complaint Exhibit A-13 and visited the
scene of occurrence at 9:30 P.M. on 12th October 1966. He prepared the observation mahazar Exhibit A-14 and drew the rough plan Exhibit A-
He held the inquest and examined witnesses during the inquest. He found the dead body of the victim lying on the western edge of the tar road.
The cycle was then lying to the west of the tar road, that is, on the western edge of the road. He also noticed type marks of the cycle to the left of
the road. The lorry was stationed on the eastern side of the road. There was no cycle light in the cycle when he recovered the cycle. There was no
bloodstains on the front wheel of the lorry and he found hair sticking to the exhaust pipe of the lorry. The dead body and the cycle were lying to the
east of brick stack.
On behalf of the appellant and the seventh respondent, the driver of the lorry was examined as R.W.1. R.W.1 stated that he was driving the
lorry from north to south, that there was no traffic near the scene of occurrence, that the road took a slight turn towards south-west at the scene of
occurrence and that then he was driving the lorry at 20 or 25 miles per hour sounding the horn. The witness would state that the victim was riding
on his cycle from south towards north along the left side of the road, that is, on the western side, that there was no light in the cycle, and that the
victim was then having a basket in one hand and was holding the handlebar of the cycle with the other hand. As the road turned south-west near
the place of occurrence, he turned the lorry a little towards west. There was a brick heap to the west of the road. According to the witness, the
deceased Periaswamy and his cycle knocked against the brick heap and his cycle went towards west and the deceased fell to the east of the brick
heap. He fell near the rear wheel of the lorry. According to the witness, the front wheel and the mudguard of the lorry did not touch the deceased.
On account of the accident, he heard some noise and hence he stopped the lorry at a distance of fifteen feet. According to him, when he turned the
lorry towards west along the road, the distance between the brick heap and the lorry was three feet. He stated that he was not responsible for the
accident.
In cross examination, R.W. 1 stated that the headlights of the lorry were quite all right, and he saw the deceased first on his cycle while he was
at a distance of ten feel in front of the lorry. He was all along driving the lorry only at twenty five miles per hour. He applied the brake only after the
accident and not before he beard the noise. He further stated that at the time of the accident, the lorry and the right wheels of the lorry were on the
western edge of the road. He did not see the brick heap near the place of accident before the accident took place.
It will be teen that there is no eye witness speaking to the impact of the lorry on the cycle. The only witness who was near about the scene of
occurrence is P.W. 3, the watchman of the Athithanar College, Tiruchendur. He also did not see the impact. He was standing in front of the
College and saw the lorry when it had proceeded about fifty yards from the place where he was standing. He then heard a noise and proceeded to
the scene. He found the victim lying on the western edge of the road with his head crushed. The burden of proving that the driver of the lorry was
guilty of rash or negligent driving is on the claimants.
Mr. K.K. Venugopal, learned counsel for the appellant, submitted that in the absence of direct evidence on the side of respondents 1 to 6, the
claim ought to have been straightaway dismissed. This contention cannot be accepted. Though there is no direct evidence as to how the accident
took place, it is admitted that at the time of the accident, the right wheels of the lorry were on the western edge of the road, that is, on the wrong
side of the road. The evidence of the Sub Inspector of Police is that the dead body of the victim was found lying on the western edge of the tar
road. The width of the tar road was twelve feet, and the mud portion of the road on either side is six feet each. The body was seen at the western
edge of the tar roads. Since at the time of the accident the right wheels of the lorry were on the western edge of the road and the body of the victim
was also found on the western edge of the road which is the wrong side of the road so far as the lorry is concerned, the driver of the lorry is bound
to explain as to how the lorry came to the extreme right of the road. The position of the lorry and the dead body at the time of the accident would
prima facie afford evidence of want of due care and caution on the part of the lorry driver. Under such circumstances, the doctrine of res-ipsa
loquitur could be invoked, as normally the lorry could not have been on its extreme right, and it affords reasonable evidence, in the absence of
explanation by the driver, that the accident arose for want of due care by the driver of the lorry.
The question now is whether the driver of the lorry has offered any explanation, and if so, whether that explanation could be accepted. The
explanation offered by the driver is that the deceased Periaswamy and the cycle knocked against the brickheap and the cycle went towards west
and the deceased fell on the eastern side and near the rear wheel of the lorry. The case of the driver is that the road was clearly visible and that his
headlights were in good order. If so, the driver of the lorry could have seen the cyclist at some distance. The explanation of the driver that when the
lorry was about to pass the cyclist, he knocked himself against a brick heap and fell near the rear wheel of the lorry resulting in his being run over
by the year wheels of the lorry is too artificial to be accepted. The theory of the cyclist knocking himself against the brick heap find falling down
just at the time when the lorry passed the cyclist cannot be accepted. The driver of the lorry had no right to occupy the entire tar portion of the
road and the cyclist cannot be found guilty of any negligence for travelling on the tar portion of the road, especially when there was obstruction on
the left side of the road. The plea of the driver that the accident was due to the fact that the victim knocked himself against the heap of bricks on
the western side of the road and fell on the eastern side near the rear wheels of the lorry is puerile and has to be rejected. The result is that it has to
be found that the driver has not discharged the burden which has been shifted on him on the doctrine of res ipsa loquitur.
It was contended by Mr. K. K. Venugopal that there was no sign of the front portion of the lorry having hit the cyclist and that the recovery of
hair sticking to the exhaust pipe would indicate that the deceased was crushed by the rear wheel of the lorry. It is difficult to say which part of the
lorry hit the cyclist, for even if the front portion of the lorry hit the cyclist, the lorry would not have any dent. The fact that there was no damage to
the cycle was also relied on. But here again, if the impact was on the cyclist, the cycle would have been thrown out and there would not be any
damage to the cycle. From the circumstances, we are unable to accept the theory that the accident was due to the cyclist himself falling near the
rear portion of the lorry. Whether it was the front portion of the lorry or the rear portion of it that knocked the cyclist is immaterial, for, the driver
of the lorry had no justification for going to the western extremity of the road at the time of the accident.
It was next contended by Mr. Venugopal that even if it is held that the driver of the lorry was negligent in driving, the deceased cyclist also
contributed towards the accident and therefore, the compensation payable should be proportionately reduced. This argument is based on the fact
that the police officer, when he came to the spot at 9:30 p.m. did not see any cycle light. From this it is submitted that the cyclist was riding the
cycle without a light. From the mere fact that no cycle light was recovered, it cannot be positively asserted that the cyclist was riding without a
cycle light. The accident was at 7 p.m. and the Police officer came to the spot only at 9:30 p.m. and the possibility of somebody taking away the
cycle light cannot be ruled out. Even assuming that the cyclist did not have a light in his cycle at the time of the accident, it cannot advance the case
of the appellant. The plea put forward by the learned counsel for the appellant is that the conduct of the cyclist in riding a cycle without a lamp
would prima facie amount to negligence. In support of his contention, the learned counsel relied on the decision in Hill-Venning v. Besant (1950) 2
A.E.R. 1151 and submitted that the presence of an unlighted vehicle at night on a dark road where there was no street light was held to be prima
facie evidence of negligence on the part of the person responsible for the vehicle. Two of the three Lord Justices took the view that the presence of
an unlighted vehicle on the road is prima facie evidence of negligence on the part of the driver, and it is for him to explain how it came to be
unlighted and why he could not move it out of the way or give warning to oncoming traffic. In the case referred to, the facts are that the plaintiff,
who had his headlight dipped, failed to observe the defendant''s motor cycle in time to avoid it, and he came into collision with it. In the
circumstances, the Court found that the defendant, by failing to remove his motor cycle off. The highway, was also negligent. On facts, the present
case is different from the ruling cited, as the evidence of the driver is that his headlights were properly working. He could have seen the cyclist at a
very safe distance. It is not the plea of the driver that he dipped his light and he was not able to see the cycle before the impact. The decision,
therefore, cannot be relied on in support of the contention of the learned counsel for the appellant.
Reliance was also placed on the decision in Device v. Swan Motor Co. Ltd. (1949)-1. A. E. R. 620 wherein the Court held that though the
driver of the omnibus was guilty of negligence, the deceased man was guilty of contributory negligence as he was standing where he did on the
lorry in breach of a duty which he owed to the driver of the omnibus not to render more difficult the passing of the lorry by the omnibus and so
increased the risk of a collision. In discussing the rule, Evershed, L.J. observed that as a doctrine, the ""last opportunity"" rule has suffered a demise
independently altogether of the Act of 1945. Denning, L.J. commenting on the doctrine of ""last opportunity"" observed as follows:
I do not myself believe that there is any difference in kind between negligence after seeing the danger and negligence in not seeing it. Nor do I
believe that negligence in creating a dangerous obstruction ceases if the driver of the on coming vehicle sees it. Even when he sees it, it may still be
one of the causes of the accident. It all depends whether it is a significant factor in producing the damage or not.
With respect we adopt the test laid down, namely, that even when the driver sees the obstruction, the conduct of the defendant may be one of the
causes of the accident. The question will be whether the defendant''s conduct is a significant factor in producing the damage or not. As already
observed, on the facts of the present case, even assuming that the vehicle was ridden without a light which we do not however accept, the cycle
without the light was not the cause of the accident, as the driver of the lorry should have seen the cycle at a safe distance. This plea also cannot be
accepted and the submission that the compensation payable should proportionately be reduced has to be rejected.
The only other question that has to be considered is with regard to the quantum of compensation. Accepting the evidence of P. W. 2, the first
respondent herein, the lower Court found that the deceased Pariaswamy was a gazetted officer selected by the Tamil Nadu Public Service
Commission and was the Principal of the Industrial Training Institute, Tiruchendur, in the pay scale of Rs. 350-25-600. In September, 1966 he
was drawing a salary of Rs. 443/- and was aged 40 years. He would have retired in his 58th year and drawn pension thereafter. He had a good
record of service, and in his scale of pay, he would have reached the maximum of Rs. 650/- after thirteen years of service and would have
continued in that pay for five more years till his retirement. His promotion to a higher scale of pay could also be reasonably expected. The evidence
of P.W. 2, the first respondent herein, is that Periaswamy was sparing at least Rs. 250/- a month to her towards family expenses, and this was
accepted. As the scale of pay increased, the contribution to the family would also have increased. Taking all the circumstances into account, the
Court below fixed the compensation which the family would receive at Rs. 80,000/- and granted a compensation of Rs. 50,000/- taking into
account the fact that a lump sum payment is made. In Hindustan Ideal Insurance Co., Madras v. Kanakammal C.M.A. 83, 94, and 225 of 1968
and others, this Court considered at length the various decisions on the method of computing compensation payable. It is unnecessary to reiterate
the principles at length except to state that the Court will have to take into consideration the benefits which the dependants were getting from the
deceased, the number of years the deceased would have lived but for the accident the possibility of the deceased not living the normal expected
span of life, the dependants ceasing to be dependants in the course of time, etc. While awarding a lump sum compensation, the Court will also
have to take into consideration the interest that may accrue on the lump sum paid, and also the fact that the capital also has to be utilised for the
purpose of the compensation payable and not intended to be left in tact with the dependants at the end of the period of life expectancy of the
deceased. Bearing all these facts in mind, we are satisfied that the sum of Rs. 50,000/- awarded by the lower Court cannot be said to be
excessive. The order of the lower court is confirmed.
The liability of the Insurance company, the seventh respondent herein, is restricted to Rs. 20,000/- and the balance will be paid by the
appellant herein. The amount of Rs. 30,000/- will be deposited into the lower Court by the appellant within eight weeks from today. Out of the
total amount the first respondent will be permitted to withdraw Rs. 10,000/- towards her share. The balance of the amounts will be paid equally to
respondents 2 to 6. As respondents 2 of respondents 4, 5 and 6 will be deposited in one of the nationalised banks, separately in their names for
such period till each one of them attains majority. The interest accruing year after year on the amounts of the minors so deposited will be paid to
the and 3 have attained majority, their shares will be paid to them. The shares first respondent every year for the maintenance of the three minor
children. In the event of the marriage of respondent 5 and 6 before they attain majority, they can apply to the court for the withdrawal of the
amounts deposited in their names. The appeal is dismissed with costs.