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Case Number

F.A.F.O No. 156 of 1977*

Attorney(S)

V.K. Gupta

Judges

K.C Agarwal
O.P Saxena, JJ.

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Smart Summary

Structured Summary of the Legal Opinion (O.P. Saxena, J.)

Factual and Procedural Background

This appeal is against the Motor Accident Claims Tribunal, Aligarh's order dated 13-01-1977 which dismissed a claim petition with costs. On 30-10-1970 at about 3:30 P.M., between furlongs 6 and 7 of miles 803-804 of the Khurja-Aligarh road (within the municipal limit of Aligarh near Swadeshi Bima Cotton Mills), an accident occurred in which Jawahar Vora was killed.

The deceased, aged about 32, was travelling in an Ambassador car (No. BRV 1666) driven by one Govind, coming from Khurja towards Aligarh. U.P. Roadways Bus No. UPB 4455, driven by Vijai Pratap Singh, was travelling from Aligarh to Khurja. As a result of the collision the car was thrown into a pit on the left side of the road and Jawahar Vora died.

The claim petition was filed by the deceased's widow Smt. Kundan Bala Vora and minor daughter Km. Rashmi for Rs. 80,000, alleging rash and negligent driving by the bus driver. The respondent opposed the claim, alleging the bus was driven carefully and blaming the car's driver. The Claims Tribunal accepted the respondent's version and dismissed the petition; this judgment is an appeal against that dismissal.

Witnesses for the claimants included P.W.1 Smt. Kundan Bala Vora, P.W.2 Yashpal Khurana and P.W.3 B.K. Sharma. For the opposite party, witnesses included D.W.1 A.P. Awasthi (Assistant General Manager), D.W.2 S.S. Seth (Foreman), D.W.3 Kanchan Singh (a passenger in the bus), D.W.4 Vijai Pratap Singh (bus driver) and D.W.5 Yogendra Pal Singh (Station In-charge). The Station In-charge made an on-the-spot enquiry and produced report Ex. A-1; the foreman examined the vehicle and submitted report Ex. A-2.

Legal Issues Presented

Whether the accident was caused due to composite negligence of the drivers of the car and the bus, and if so whether the claimants are entitled to compensation for the loss of their sole earning member.
What compensation the claimants are entitled to, and the proper method of calculation and apportionment (if any) among wrongdoers.

Arguments of the Parties

Claimants' (Appellants') Arguments

The accident was caused by the rash and negligent driving of the U.P. Roadways bus.
The deceased was the sole earning member; he earned Rs. 400 per month as Cashier-cum-Accountant and supported his family; claimants sought Rs. 80,000 as compensation.
The driver of the car disappeared after the accident; the car party (including the widow) testified that the bus was on the wrong side and moving at a very high speed.
Counsel for appellants relied on authorities to argue both apportionment principles in contributory negligence cases and the rule that in composite negligence there is joint and several liability.

Respondent's (Opposite Party's) Arguments

The bus was being driven carefully and cautiously; there was no negligence on the part of the bus driver.
The accident was caused by reckless driving of the car; some witnesses (including the bus driver and a passenger in the bus) stated the car was on the wrong side and travelling at very high speed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Motilal Vishwakarma v. Guru Bachan Singh (1980 ACJ 462; 1979 All LJ 222)	Deduction of 30% from lump sum compensation (applied for lump-sum payment reduction).	The court applied the 30% deduction in calculating compensation: from Rs. 69,000 a deduction of Rs. 20,700 was made, leaving Rs. 48,300.
Manjula Devi Bhuta v. Manjusri Raha (1968 ACJ 1 (Madh Pra))	Cited by counsel in support of apportionment principles in contributory negligence (as relied upon by appellants).	Listed among authorities relied upon by appellants; the court noted the reliance but did not direct apportionment in this case.
Sushila Rani Sharma v. Somnath (1974 ACJ 505 (Punj))	Cited by counsel in the context of apportionment/contributory negligence.	Not applied to alter the outcome; cited by counsel and considered in submissions.
Golak Chandra Das v. Kausalya Nayak (1978 ACJ 48 (Orissa); 1977 All WC 629)	Cited by counsel on apportionment/contributory negligence principles.	Referred to as part of submitted authorities; court ultimately held joint and several liability in this case.
Smt. Devki Devi Tiwari v. Raghunath Sahai Chatroth (1980 ACJ 121 (Orissa))	Cited by counsel in support of apportionment/contributory negligence principles.	Not specifically applied to reduce respondent's liability; included among relied authorities.
Karunakar Pradhan v. Sarojini Mishra	Cited by counsel concerning apportionment issues.	Listed among authorities cited by counsel; the court did not adopt apportionment in this instance.
Ramadhin Singh v. Murari Lal Agarwal (1979 ACJ 198 (All))	Illustration where a tribunal apportioned liability between two drivers (discussed as authority on apportionment).	The court quoted the case and observed that in that instance apportionment had been made; notwithstanding, the present court held that where composite negligence exists, defendants are jointly and severally liable and apportionment need not limit the claimant's remedy against any one wrongdoer.

Court's Reasoning and Analysis

The appellate court reviewed the evidence and the findings of the Claims Tribunal and proceeded through the following analysis:

Credibility and witness assessment:
- The Claims Tribunal had drawn an adverse inference against the claimants for non-production of the car driver. The appellate court examined the circumstances: the claimants were residents of Hazaribagh (Bihar), the accident occurred in Aligarh, the driver had disappeared, and the claimants (widow and minor) were severely disadvantaged. The court held that it could not be concluded the driver was deliberately withheld; adverse inference on that ground was not justified.
- Specific criticisms of claimant witnesses (e.g., P.W.2's lapse calling an Ambassador a Fiat, P.W.3's alleged deficiencies) were found inadequate to wholly discredit them. The widow's evidence could not be dismissed merely because she was the victim's spouse.
- Some opposite-party witnesses (D.W.3 and D.W.4) were noted to have attempted to "put a gloss over the truth" according to the court; certain respondents' witnesses were not eyewitnesses (D.W.1, D.W.2, D.W.5).
Fact- and site-based analysis:
- Ex. A-1 and the sketch map showed the road was 16 feet wide with patries (shoulder/side tracks) of 10 and 12 feet, and that the car was thrown to the extreme left of the road after impact. The court observed that the road was wide enough for the bus and the car to pass conveniently.
- Given that both vehicles could have passed, the court concluded that the collision of that severity could not have occurred unless both drivers were negligent.
Legal standard of negligence:
- The court restated the ordinary-law test of negligence as omission to do what a reasonable and prudent person would do, or doing what such a person would not do, and whether the accident could have been averted by normal diligence and caution.
Conclusion on causation and liability:
- The appellate court disagreed with the Claims Tribunal's sole-attribution of negligence to the car driver. It held the accident was caused by composite negligence of both the bus driver and the car driver.
- On the issue of apportionment, the court analyzed authorities cited by counsel (including an example where a tribunal apportioned 50:50) but held that where composite negligence exists, the wrongdoers are jointly and severally liable for the whole loss. Consequently, the claimants were entitled to full compensation from the respondent; the respondent could seek contribution from the car driver separately.
Computation of compensation:
- The deceased's monthly salary was Rs. 400 (with bonus); P.W.1 stated Rs. 150 was for himself and Rs. 250 for the family, giving an annual loss to the family of Rs. 3,000.
- Loss was projected for 23 years (service up to age 55), totaling Rs. 69,000. Applying the 30% deduction for lump-sum payment (as per Motilal Vishwakarma v. Guru Bachan Singh), Rs. 20,700 was deducted, leaving Rs. 48,300 as the compensatory award.
- The court directed payment of Rs. 48,300 together with interest at 6% per annum from the date of petition until payment, and proportionate costs against the respondent.

Holding and Implications

Holding: APPEAL ALLOWED; CLAIMANTS ARE AWARDED RS. 48,300.

Direct consequences and orders imposed by the court:

The order of the Motor Accident Claims Tribunal dated 13-01-1977 dismissing the claim petition is set aside.
The claim is decreed for Rs. 48,300 in favour of the claimants, with interest at 6% per annum from the date of the petition until payment and proportionate costs to be paid by the respondent.
The liability of the bus-owner/respondent is joint and several with the car driver; the respondent may seek contribution from the car driver for the amount paid.

The opinion does not articulate any broader doctrinal change or a novel precedent; it applies existing principles (including deduction for lump-sum payment and the doctrine of joint and several liability in cases of composite negligence) to the facts and adjusts the tribunal's conclusion accordingly.

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Smt. Kundan Bala Vora And Another v. State Of U.P .

O.P Saxena, J.:— This is an appeal against the order dated 13-1-1977 passed by the learned Motor Accident Claims Tribunal, Aligarh dismissing a claim petition with costs on parties.

2. The facts giving rise to this appeal are that on 30-10-1970 at about 3.30 P.M between furlongs 6 and 7 of miles 803-804 of the Khurja-Aligarh road an accident took place in which Jawahar Vora was killed. Jawahar Vora, his wife Smt. Kundan Bala Vora and some others were on their way from Rajkot to Bukaro and were travelling in an Ambassador car No. BRV 1666. They were coming from the side of Khurja and were going to Aligarh. The car was being driven by one Govind. U.P Roadways Bus No. UPB 4455 was on its way from Aligarh to Khurja. It was being driven by Vijai Pratap Singh. As a result of the accident, the car was thrown away in a pit on the left side of the road. By the time people could come to the rescue of the victims of the accident and Jawahar Vora could be taken out, he was dead. He was 32 years old. He was Cashier-cum-Accountant with Chanchani Brothers (Contract) Pvt. Ltd., Dhanbad, Bihar on a salary of Rs. 400/- per mensum. The claim petition was filed by his widow Smt. Kundan Bala Vora and minor daughter Km. Rashmi for Rupees 80,000/- as compensation with the allegations that the accident was caused due to the rash and negligent driving of the bus.

3. The claim petition was contested by the respondent mainly with the allegations that the bus was being driven carefully and cautiously and there was no negligence on the part of the driver of the bus. It was said that the accident was caused due to the reckless driving of the car.

4. The learned Claims Tribunal believed the version of the opposite party and held that the accident was caused due to the negligence of the driver of the car. He consequently dismissed the claim petition. Hence this appeal.

5. The first point for determination in this appeal is as to whether the accident was caused due to the composite negligence of the drivers of the car and the bus and the petitioners are entitled to receive compensation for the loss of their sole earning member of the family.

6. P.W 1 Smt. Kundan Bala Vora, P.W 2 Yashpal Khurana and P.W 3 B.K Sharma were examined in support of the claimants' version.

7. D.W 1 A.P Awasthi, Assistant General Manager, Aligarh Region, D.W 2 S.S Seth, Foreman, D.W 3 Kanchan Singh, who was travelling in the bus, D.W 4 Vijai Pratap Singh, the driver of the bus, and D.W 5 Yogendra Pal Singh, the Station In-charge, Aligarh Roadways were examined in support of the opposite party's version.

8. The evidence shows that the accident took place on 30-10-1970 at 3.30 P.M within the Municipal limit of Aligarh town near Swadeshi Bima Cotton Mills. D.W 5 Yogendra Pal Singh, Station In-charge made on the spot enquiry and submitted report Ex. A-1 on 24-11-1970. D.W 2 S.S Seth, Foreman examined the vehicle and submitted report Ex. A-2. A report of the occurrence was also lodged by Vijai Pratap Singh but the same has not been duly proved.

9. There is a sketch map attached to the accident report Ex. A-1. It shows that the road was 16 feet wide. The patri towards the north was 10 feet wide. The patri towards the south was 12 feet wide. The car is said to have been thrown away in a pit towards the left of the patri on its way from Khurja to Aligarh. The road was wide enough for the bus and the car to pass conveniently. The witnesses examined by both the sides have tried to underscore the responsibility of the driver of the car or the bus.

10. The evidence of P.W 1 Smt. Kundan Bala Vora shows that the party consisted of others as well and it stopped at the Octroi Post of Aligarh at about 1-30 or 2-00 P.M, that they took their lunch there and that they had proceeded hardly 2 or 3 furlongs when the accident took place. She, of course claimed that the car was moving towards the left side of the road and the bus was coming at a very fast speed on the wrong side. Her version is that the driver of the car tried to swerve the car on the patri towards the left but in the meanwhile the bus dashed against the car.

11. P.W 2 Yashpal Khurana was sitting at the shop of Dr. Goel and was facing towards Aligarh side of the road when the accident took place. His version is that the bus was coming at a fast speed while the car was moving at a slow speed when the accident took place. The place where the accident took place was towards the right of the centre of the road from Aligarh side-The bus could stop after 5 or 7 spaces. He had a wrong impression that the car was a Fiat car while it was an Ambassador car.

12. P.W 3 B.K Sharma lives in the building of Swadeshi Bima Cotton Mills. He was also sitting at the shop of Dr. Goel and was facing towards the road coming from the side of Aligarh when the accident took place. He also stated that the bus was moving on the wrong side of the road at a fast speed while the car was coming at a slow speed. He did not, however, see the car driver and his version regarding the speed of the car could not be accepted. He gave the speed of the bus at 40 Kms. per hour. He stated that both the wheels of bus were on the metal road at the time of the accident.

13. D.W 1 R.P Awasthi, D.W 2 S.S Seth and D.W 5 Yogendra Pal Singh were not eye-witnesses.

14. D.W 3 Kanchan Singh claimed that he was travelling in the same bus and the car was coming at a very fast speed almost waving on the road that the driver of the bus brought the bus on the patri of the left side and applied the brake and stopped it and that after the bus had stooped the accident took place.

15. D.W 4 Vijai Pratap Singh stated that the car was coming at a very fast speed on the wrong side of the road, that he brought the bus on the kacchi patri and tried, to stop it and that the car struck against the right side of the bus.

16. Ex. A-1 shows the place where the car was thrown away on the extreme left of the road on its way from Khurja.

17. The learned Claims Tribunal has drawn adverse inference against the claimants on account of the non-production of the driver. The claimants are residents of district Hazaribagh, Bihar. The accident took place at Aligarh. The sole earning member of the family is dead. The claimants were severely handi-caped. The driver of the car had disappeared after the accident. In these circumstances it cannot be said that the driver was deliberately withheld by the claimants. There is no evidence in support of the observation made the learned Claim Tribunal that the driver of the car was possibly not an expert driver. The evidence of P.W 1 Smt. Kundan Bala Vora shows that the driver had taken the car all the way from Dhanbad to Rajkot and was bringing it back from Rajkot on way to Dhanbad. An inexperienced driver could not have made such a long journey. The learned Claims Tribunal has disbelieved the witness examined by the claimants and has preferred the evidence adduced by the opposite party. The mere fact that P.W 2 Yashpal Khurana forgot that it was an Ambassador car and said that it was a Fiat car could not be a sufficient ground for disbelieving him. It could be a lapse of memory on his part. The reason given by the learned Claims Tribunal for disbelieving the statement of P.W 3 B.K Sharma is also inadequate. Smt. Kundal Bala Vora was also travelling in the car and her evidence could not be brushed aside merely because she is the widow of the victim. D.W 3 Kanchan Singh and D.W 4 Vijai Pratap Singh have tried to put a gloss over the truth. Negligence is the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the human affairs, would do or do something which a prudent and reasonable man would not do. The test is whether the driver could by exercising normal diligence and caution, avert the accident. In view of the fact that the road was 16 feet wide and it had patries of 10 feet and 12 feet, we are of the opinion that the bus and the car could easily cross each other and the accident of the nature could not take place except when both the drivers were negligent. It was due to the negligence of the drivers of the bus and the car that the bus struck against the car and there was such a violent impact that the car was thrown away in a pit on the extreme left of the road. The accident took place due to the composite negligence of both the drivers. We are unable to agree with the learned Claims Tribunal that the accident took place solely due to the negligence of the driver of the car. There was no negligence on the part of the deceased and as the accident was caused due to composite negligence of both the drivers, the claimants are entitled to compensation.

18. The second point for determination in this appeal is as to what compensation the claimants are entitled.

19. The statement of P.W 1 Smt. Kundan Bala Vora shows that her husband Jawahar Vora was about 32 years old. He was Cashier-cum-Accountant in a business firm at Dhanbad. Paper No. 56-Ka is the certificate given by the firm which shows that the deceased was getting Rs. 400/- per mensem along with bonus. He could have continued to serve up to the age of 55 years. Out of a sum of Rs. 400/- he could spend Rs. 150/- on himself and Rs. 250/- on his family. The annual loss suffered by the family was Rs. 3,000/- per annum. The total pecuniary loss suffered by the family for a period of 23 years would come to Rupees 69,000/-. In view of the case reported in 1980 ACJ 462 : (1979 All LJ 222), Motilal Vishwakarma v. Guru Bachan Singh, a deduction of 30 per cent has to be made for lump sum payment. On deducting Rs. 20,700/- the balance compensation would come to Rs. 48,300/-.

20. The learned counsel for the appellants placed reliance on cases reported in 1968 ACJ 1 (Madh Pra), Manjula Devi Bhuta v. Manjusri Raha, 1974 ACJ 505 (Punj), Sushila Rani Sharma v. Somnath, 1978 ACJ 48 (Orissa), Golak Chandra Das v. Kausalya Nayak, 1977 All WC 629, Smt. Devki Devi Tiwari v. Raghunath Sahai Chatroth and 1980 ACJ 121 (Orissa), Karunakar Pradhan v. Sarojini Mishra in support of the contention that the rule of apportionment of liability applies in a case of contributory negligence, i.e where the injured is himself also guilty of negligence. In a case of composite negligence, there is joint and several liabilities for the whole loss.

21. In the case reported in 1979 ACJ 198 (All), Ramadhin Singh v. Murari Lal Agarwal both the drivers had been impleaded and the learned Claims Tribunal apportioned the liability between the truck driver and the bus driver in the ratio of 50:50. On page 201 it was held:

“Where more than one person is concerned in the commission of a wrong, the person, who is wronged, has his remedy against all or any one or more of them at his choice. The wrongdoer is liable for the whole damage and it does not matter whether they acted between themselves as equals. In our judgment, it was necessary to apportion the degree of negligence between the drivers of the bus and the truck.”

22. We (are) thus unable to accept the contention of the learned counsel for the respondent that the damages should be apportioned between the two drivers and the liability of the respondent should be fixed accordingly. Both the drivers of the car and the Roadways bus are jointly and severally liable to pay the entire compensation to the claimants. The claimants are entitled to recover Rs. 48,300/- from the respondent. It will be for the respondent to seek contribution from the driver of the car.

23. We, therefore, hold that the claimants are entitled to a compensation of Rs. 48,300/-.

24. The appeal is allowed and the order passed by the learned Claims Tribunal is set aside. The claim is decreed for a sum or Rs. 48,300/- along with interest at the rate of 6 per cent per annum from the date of petition till the date of payment and proportionate costs against respondent.

25. The costs of the appeal shall be easy.

26. Appeal allowed.

Smt. Kundan Bala Vora And Another v. State Of U.P .

Structured Summary of the Legal Opinion (O.P. Saxena, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Claimants' (Appellants') Arguments

Respondent's (Opposite Party's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Smt. Kundan Bala Vora And Another v. State Of U.P .

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