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Dyer Meakin Breweries Ltd. And Another v. Smt. Bimla Gupta And Others
Factual and Procedural Background
On 12 January 1971 Ram Shanker Gupta was a passenger in a Roadways bus (No. UPI281) travelling from Tirwa (Farrukhabad) to Kanpur. At about 8 A.M. near river Esan at Bilhaur, a collision occurred between the right sides of the bus and an oncoming truck (No. USD7556). The bus driver was D.W.2 Ram Pal Singh and the truck driver was D.W.4 Yagya Dutt. The deceased sustained serious injuries and later died.
On 12 July 1971 the claimants (widow aged about 32, minor daughter aged about 8, and aged mother) filed a petition claiming Rs. 1,25,000 as compensation, detailing monthly income, dependency and other heads including marriage expenses and pain and suffering.
The Motor Accidents Claims Tribunal (Additional District Judge Court No. 1, Kanpur) by award dated 17 October 1977 allowed compensation of Rs. 75,000 with 6% interest from the date of the petition. Liability was apportioned equally: Rs. 37,500 on opposite party No.1 (owner/manager of bus) and Rs. 37,500 on opposite parties Nos. 2 and 3 (owners/drivers related to truck).
Two connected appeals were filed against that award. During the appeal, the U.P. State Road Transport Corporation (UP State RTC) was brought on record as respondent No.5 (management of Roadways buses having been entrusted to it). The present opinion is the appellate decision of the Division Bench (O.P. Saxena, J.) disposing of the two appeals.
Legal Issues Presented
- Whether the accident resulted from composite negligence of both vehicle drivers (bus and truck) as held by the Tribunal or whether the negligence was solely that of the bus driver.
- Whether the doctrine of res ipsa loquitur applied and, if so, what burden it placed on the defendants.
- Whether the truck driver's actions (slowing and swerving to the left) were reasonable and relieved him of liability under applicable driving regulations.
- Whether the Tribunal should have made a deduction from the award for lump-sum payment and uncertainties of life, and if so, the appropriate rate of deduction.
- Whether separate heads of compensation (such as loss of consortium or marriage expenses for the daughter) could properly be awarded in addition to pecuniary loss.
Arguments of the Parties
Opposite Party No. 1 (appellant in one appeal) — Principal contentions
- Contended that the accident occurred due to rash and negligent driving of the truck (No. USD7556) belonging to opposite party No.2.
- Denied negligence on the part of the bus driver.
- Relied on documents such as Exts. A-1 (accident report) and A-2 (site plan) prepared by D.W.1 Tulsi Ram to support factual position.
Opposite Parties Nos. 2 and 3 (appellants in the other appeal) — Principal contentions
- Maintained that the accident took place because of the rash and negligent driving of the bus driver (overtaking on the wrong side at reckless speed).
- Asserted that the truck driver did not drive rashly; the truck was proceeding slowly, swerved to the extreme left (kachcha/patri portion) and could not avoid the collision despite best efforts.
- Challenged the quantum of compensation awarded.
Claimants — (respondents to the appeals) — Principal contentions
- Maintained the Tribunal’s findings, including acceptance of annual dependency at Rs. 3,000 and assessment of pecuniary loss for 25 years.
- Asserted that the doctrine of res ipsa loquitur applied (the accident "speaks for itself").
- Contended that no lump-sum deduction was necessary in the facts of the case and sought to keep the Tribunal's award at Rs. 75,000; also sought allowance for loss of consortium and marriage expenses.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pushpa Bai v. Ranjit Ginning and Pressing Co. Ltd. (1977) 2 SCC 745 : AIR 1977 SC 1735 | Where res ipsa loquitur is applied, the burden shifts to the defendant to show either absence of negligence or that the accident could likely have happened without negligence; car must have been under defendant's management and accident such that it does not ordinarily occur with proper care. | The court noted that res ipsa loquitur applied in the present case and relied on the principle regarding the defendant's burden when the maxim is applied. |
| Minu B. Mehta v. Balkrishna (1977) 2 SCC 441 : AIR 1977 SC 1248 | Before a master (employer) can be made liable, it is necessary to prove that the servant was acting in the course of employment and that he was negligent. | Cited by appellants to support contention concerning master/servant liability; court considered this principle in assessing liability of the bus owner/manager and UP State RTC involvement. |
| Vidya Devi v. M.P. State Road Transport Corpn. 1974 Acc CJ 374 : AIR 1975 Madh Pra 89 | It is the duty of a driver to keep a good look-out for other traffic, especially at crossings, junctions and bends. | Referred to by counsel for respondent/appellants to underscore drivers' duties; Court used principles of look-out and care in analysing drivers' conduct. |
| M.P. State Road Transport Corporation v. Sudhakar (1977) 3 SCC 64 : AIR 1977 SC 1189 | In assessing damages, courts must take account of uncertainties of life and accelerated/lump-sum payment; allowance must be made for imponderables and the total reduced accordingly. | The court regarded this Supreme Court decision as controlling. It held that the Tribunal should have made a deduction for lump-sum payment and uncertainties and directed a 25% deduction in the present case. |
| Hinch Narain v. State of U.P. 1977 Acc CJ 165 (All) | Example authority where a deduction of 25% was allowed in assessing compensation. | Placed among authorities supporting a 25% deduction; relied on to justify the court's chosen rate of deduction. |
| Mahabir Prasad Goel v. Guru Saran Singh 1983 Acc CJ 99 : AIR 1983 All 20 | Authority where a deduction of 25% was allowed. | Cited as part of consistent practice of Division Benches allowing 25% deduction; used to support the court's conclusion. |
| Vinod Kumar v. Urmila Devi 1983 Acc CJ 354 : AIR 1983 All 112 | Authority where a deduction of 25% was allowed. | Used as supporting precedent for allowing 25% deduction. |
| Om Prakash v. Rukmini Devi 1983 Acc CJ 300 : AIR 1982 All 389 | Authority where a deduction of 25% was allowed. | Used in the court's survey of local High Court decisions supporting a 25% deduction. |
| Moti Lal Vishwakarma v. Guru Bachan Singh 1980 Acc CJ 462 : 1979 All LJ 222 | Authority where a deduction of 30% was allowed. | Listed among cases showing higher deductions (30%) in some instances; court noted range of deductions applied historically. |
| Kundan Bala v. State AIR 1983 All 409 | Case following Moti Lal Vishwakarma allowing 30% deduction. | Mentioned as part of the local practice survey on deduction percentages. |
| Brij Kala Devi v. Ramchand Bishan Singh 1979 Acc CJ 164 : AIR 1979 All 49 | Authority where a deduction of 33% was allowed. | Noted by the court as an example of higher deduction (33%) in the High Court decisions surveyed. |
| Krishna Sehgal v. U.P. State Road Transport Corpn. 1983 Acc CJ 619 : AIR 1983 All 159 | Authority where a deduction of 33% was allowed. | Noted in the court's review as another example permitting 33% deduction. |
| Hira Devi v. Bhabha Kanti Das 1977 Acc CJ 293 : AIR 1977 Gauhati 31 (FB) | Held that 10% deduction for lump-sum payment and 20% for uncertainties of life should be allowed. | Referred to in the discussion of varying approaches; court recorded this position among other High Court decisions. |
| Hayat Bi v. Nissar Ahmed 1979 Acc CJ 351 | Karnataka High Court authority allowing 25% deduction. | Referred to as supporting a 25% deduction practice. |
| Piyush Kanti Ghosh v. Maya Rani 1971 Acc CJ 267 : AIR 1971 Cal 229 | One of several authorities where 20% deduction was allowed. | Listed in the court's survey of cases that permitted a 20% deduction. |
| State of Haryana v. Balbir Singh Hooda 1975 Acc CJ 1 (Punj & Har) | Authority permitting 20% deduction. | Cited as part of authorities awarding 20% deduction. |
| S.H. Naik v. Gokul Chandra Naik 1980 Acc CJ 317 (Goa) | Authority permitting 20% deduction. | Included in the list of cases allowing 20% deduction. |
| General Assurance Society Ltd. v. Jayalakshmi Ammal 1975 Acc CJ 159 : AIR 1975 Mad 198 | Authority permitting 20% deduction. | Included in the list of cases allowing 20% deduction. |
| Sambhupada v. Sobrani Sen 1980 Acc CJ 180 (Cal) | Authority permitting 20% deduction. | Included in the list of cases allowing 20% deduction. |
| Maheshwari Transport Co. v. Pritam Kaur 1980 Acc CJ 157 (Madh Pra) | Authority permitting 20% deduction. | Included in the list of cases allowing 20% deduction. |
| Amarjit Kaur v. Vanguard Insurance Co. Ltd. 1981 Acc CJ 495 : AIR 1982 Delhi 1 | Authority permitting 15% deduction. | Noted by the court among authorities awarding lesser deductions (15%). |
| Laxmi Dhar Mohanty v. Bhanu Dei 1980 Acc CJ 510 (Orissa) | Authority permitting 15% deduction. | Listed among authorities permitting 15% deduction. |
| State of J & K v. Pushpa Devi 1979 Acc CJ 403 (J & K) | Authority permitting 15% deduction. | Listed among authorities permitting 15% deduction. |
| Oriental Fire & General Insurance Co. Ltd. v. Chunni Lal 1969 Acc CJ 237 (Punj & Har) | Authority permitting 15% deduction. | Listed among authorities permitting 15% deduction. |
| Punjab State v. Hardeep Kaur 1970 Acc CJ 150 (Punj & Har) | Held that there may be cases where no deduction is warranted; tribunal should determine just compensation under S. 110-B. | Cited to explain that tribunals have discretion and that deductions are not mandatory in every case; court nevertheless emphasised Supreme Court guidance requiring deduction in ordinary circumstances. |
| Kailashwati v. Haryana State 1974 Acc CJ 514 : AIR 1975 Him Pra 35 | Deduction refused where increase in future income was not taken into account in fixing compensation. | Noted among cases refusing deduction; court reviewed these decisions but found them inconsistent with the Supreme Court's guidance in Sudhakar. |
| Bhagwati Devi v. Ish Kumar 1975 Acc CJ 56 (Delhi) | Deduction refused on grounds of prolonged litigation and inflation reducing real value of award. | Referenced in the discussion of authorities refusing deduction; court considered but did not follow these reasons as overriding Sudhakar. |
| Ganga Devi v. Municipal Corpn. of Delhi 1980 Acc CJ 364 (Delhi) | Deduction refused because no allowance was made for increments. | Mentioned among refusals; court reviewed such decisions but concluded they do not displace the Sudhakar guideline. |
| Sudershan Puri v. Rajasthan State Road Transport Corpn. 1983 Acc CJ 489 (Raj) | Deduction refused as future prospects of the deceased were not taken into account. | Noted among decisions refusing deduction; court treated them as distinguishable and not controlling against Sudhakar. |
| Satyawati Pathak v. Hari Ram 1983 Acc CJ 424 : AIR 1984 Delhi 106 | Deduction considered unjustified because rising prices made lump-sum payment benefits negligible. | Referred to in the survey of decisions; the court acknowledged such decisions but reaffirmed adherence to the Sudhakar guideline. |
| National Insurance Co. Ltd. v. Pushpa Kunwar 1983 Acc CJ 629 (Madh Pra) | Deduction refused as prospects of promotion, future earnings and purchasing power depreciation were not considered. | Noted among decisions refusing deductions; court considered these reasons but held the Sudhakar approach must be followed. |
| P. Somarjyam v. Andhra Pradesh Road Transport Corporation AIR 1983 Andh Pra 407 | Awarded a separate sum (Rs. 5,000) for loss of consortium in that case. | Cited by claimants to support an award for loss of consortium; the court observed the case but held no separate compensation for loss of consortium or marriage expenses is warranted under applicable principles. |
| Sheikhpura Transport Co. Ltd. v. Northern India Transporter's Insurance Co. Ltd. 1971 Acc CJ 206 : (1971) 1 SCC 785 : AIR 1971 SC 1624 | Under provisions analogous to those requiring the tribunal to fix just compensation, the pecuniary loss assessment involves estimates and some conjecture. | Relied upon to support the proposition that tribunals have wide discretion in fixing just compensation but that conjecture is inherent; court used this to reject claims for additional heads without proper basis. |
Court's Reasoning and Analysis
The court proceeded in two main strands of analysis: (A) causation and liability; and (B) quantum (deductions and heads of compensation).
A. Causation and Liability
- The court accepted that the doctrine of res ipsa loquitur applied ("the accident spoke for itself") and recited the legal consequence (burden on defendant to show absence of negligence) as articulated in Pushpa Bai.
- The Tribunal had originally found composite negligence by both drivers. The appellate court reviewed primary evidence: accident report (Ext. A-1), site plan (Ext. A-2), and witness statements by the two drivers and a passenger.
- The site plan and testimony showed that the truck was going ahead of the bus, the bus attempted to overtake and during overtaking the right sides collided; both drivers and the site plan indicated the bend at the spot was nominal and both could see up to about one furlong.
- The court found that statements and the written report lodged by the bus driver suppressed the true circumstances (specifically, that the bus was overtaking while the truck was in the middle of the road). The Tribunal had disbelieved certain parts of the bus driver's account; the appellate court accepted that disbelief as justified.
- The court considered Regulation 6 of the Driving Regulations under Ss. 77 and 78 of the Motor Vehicles Act, which imposes a duty to slow down when approaching a corner and not enter unless safe. The court held that the truck driver, who could see the bus approaching and who swerved to the extreme left and slowed to 10–15 km/h, acted reasonably and prudently in compliance with that duty.
- The court found the bus driver's account of speed unreliable (claiming similar speeds for both vehicles) and noted common-sense observations about overtaking requiring a speed differential, concluding the bus driver minimised his speed in testimony to evade responsibility.
- On balance, the appellate court concluded the Tribunal erred in finding the truck driver negligent. The evidence, the site plan, Regulation 6, and the concealment in earlier reports supported the conclusion that the bus driver alone was wholly negligent; the truck driver took appropriate evasive action but could not avert collision.
- Consequently the court held that opposite parties Nos. 2 and 3 (truck owners/drivers) were not liable and that the entire damages must be borne by the bus owner/operator (U.P. State Road Transport Corporation, which had taken over management).
B. Quantum: Deductions for Lump Sum and Uncertainties; Other Heads
- The court undertook a detailed survey of High Court and Supreme Court decisions concerning whether and how much deduction should be made from a lump-sum award for uncertainties of life and accelerated/lump-sum payment.
- Relying on the Supreme Court decision in M.P. State RTC v. Sudhakar, the court accepted the principle that allowance must be made for uncertainties of life and for the fact that payment is by lump sum; such imponderables require a reduction in the total assessed figure.
- The court reviewed a range of authorities showing a spectrum of deductions (15% to 33%), observed a consistent practice in this Court of allowing between 25% and 33%, and concluded that in the circumstances of this case a 25% deduction was appropriate.
- The Tribunal's failure to make any such deduction was regarded as erroneous. The court therefore reduced the compensation by 25% from Rs. 75,000 to Rs. 56,250.
- On the contention for separate awards for loss of consortium and marriage expenses of the daughter, the court noted precedent (P. Somarjyam allowed Rs.5,000 for loss of consortium) but concluded there is no authority to require separate awards for those heads in addition to pecuniary loss under the guidelines laid down by the Supreme Court; further, claimants had not appealed against quantum and therefore could not seek an increase by way of resistance to deductions raised by appellants.
- The court emphasised that where claimants wished a higher award they should have filed an appeal or cross-objection; they cannot meet appellants' deductions by seeking to raise the award now.
Holding and Implications
Holding:
- F.A.F.O. No. 112 of 1978 (appeal by opposite parties Nos. 2 and 3) is allowed: the award made by the Tribunal against opposite parties Nos. 2 and 3 is set aside and the application for compensation against those opposite parties is dismissed. (i.e., opposite parties Nos. 2 & 3 found not liable)
- F.A.F.O. No. 78 of 1978 is partly allowed: the Tribunal's award of Rs. 75,000 is modified by a deduction of 25%, fixing the compensation at Rs. 56,250. The entire amount of Rs. 56,250 with interest at 6% per annum from the date of the petition until payment is payable by the U.P. State Road Transport Corporation.
- Costs of the two appeals are ordered in the manner stated by the court (described as "easy").
Implications:
- Direct effect: Opposite parties Nos. 2 and 3 are relieved of liability; the full financial burden falls on the U.P. State Road Transport Corporation which must pay Rs. 56,250 plus 6% interest from the date of the petition.
- The Tribunal's finding of composite negligence was reversed in favour of a finding of sole negligence by the bus driver; the appellate court applied Driving Regulation 6 and the evidence (site plan and witness statements) to reach this conclusion.
- On quantum, the court applied the Supreme Court guideline in M.P. State RTC v. Sudhakar to require a deduction for lump-sum payment and uncertainties; the court specified a 25% deduction in the circumstances of this case. The opinion does not purport to create a new general rule beyond applying Supreme Court guidance and the court's assessment of precedents; it applied existing authority to the facts before it.
O.P Saxena, J.:— These are two connected appeals under S. 110D of the Motor Vehicles Act against the award dated 17th October 1977 made by the Motor Accidents Claims Tribunal (Additional District Judge Court No. 1) Kanpur allowing the petition for recovery of Rs. 75,000/- as compensation with interest at 6% from the date of the petition onwards till recovery. The liability of opposite party No. 1-Respondent No. 4 was fixed at Rs. 37,500/-. The liability of Opposite Parties Nos. 2 and 3 appellants was also fixed at a similar amount.
2. One Ram Shanker Gupta met with an accident on 12th Jan. 1971, at about 8 A.M at the Farrukhabad Kanpur Road, the accident took place near river Esan at Bilhaur, P.S Bilhaur, District Kanpur. Ram Shanker Gupta was travelling in a Roadways Bus No. UPI281 on his way from Tirwa in District Farrukhabad to Kanpur, A truck was going ahead of the Bus. D.W 2 Ram Pal Singh was the driver of the Bus. The driver of the Bus gave a horn for overtaking the truck which was going on the middle of the road. He ultimately tried to overtake the truck and came on the extreme right side. Truck No. USD7556 was coming from the side of Kanpur. D.W 4 Yagya Dutt was the driver of the truck. When the Bus had almost crossed half of the truck going ahead of it, the accident took place. The right side of the Bus collided with the right side of the truck coming from the side of Kanpur. All the occupants of the Bus were seriously injured. Ram Shanker Gupta later succumbed to the injuries and died as a result of the same. On 12th July 1971, the claimants filed an application for Rs. 1,25,000/- as compensation. Claimant No. 1 is the widow of the deceased aged about 32 years. Claimant No. 2 is the minor daughter of the deceased aged about 8 years. Claimant No. 3 is the aged mother of the deceased. The deceased carried on Sarafa business and his monthly income was given as Rs. 500/-. The life expectancy was alleged to be 35 years. The claimants expected that the deceased would have spent Rs. 250/- per mensem for them. The annual dependency was fixed at Rs. 3000/-. The pecuniary loss of Rs. 1,05,000/- was fixed by calculating the loss for 35 years. A sum of Rs. 15,000/- was claimed as the money which the deceased would have spent on his daughter's marriage. Rs. 5000/- was claimed for mental and bodily pain and agony.
3. The petition was contested by the opposite party No. 1 on the ground that the accident took place due to the rash and negligent driving of the Truck No. USD7556 belonging to opposite party No. 2. It was denied that there was any negligence on the part of the driver of the Bus. The amount of compensation claimed was disputed.
4. The petition was contested by opposite parties Nos. 2 and 3 with the allegations that the accident took place on account of the rash and negligent driving on the part of the driver of the Bus. It was said that the driver of the truck belonging to opposite party No. 2 did not drive in a rash or negligent manner, that the driver of the truck was proceeding at a slow speed, that the Bus came from the opposite direction at a reckless speed, that the driver of the Bus came on the wrong side of the road, that the driver of the truck swerved the truck to the extreme left and brought it on the kachcha portion of the road and that in spite of the best efforts of the driver of the truck, the driver of the Bus dashed against the truck and caused the accident. The amount of compensation claimed was also assailed.
5. P.W 1 Smt. Bimla Devi, her father P.W 2 Ram Nath and P.W 3 Ramesh Chandra were examined in support of the claimant's version.
6. D.W 1 Tulsi Ram, Station Incharge, Kannauj Roadways Bus Station, D.W 2 Ram Pal Singh, the driver of the Bus and D.W 3 Subhas Tewari, a passenger of the Bus were examined by opposite party No. 1.
7. D.W 4 Yagya Dutt, the driver of the truck was examined by opposite parties Nos. 2 and 3.
8. The Tribunal held that the accident took place due to the composite negligence of the drivers of the Bus and truck. It accepted the claimant's version regarding the annual dependency of Rs. 3,000/- and allowed pecuniary loss for a period of 25 years instead of 35 years claimed in the petition. The compensation was thus assessed at Rs. 75,000. Liability for payment of Rs. 37,500 was fixed on opposite party No. 1 and the liability for the payment of the balance was fixed on opposite parties Nos. 2 and 3. The claimants submitted to the award. The two sets of opposite parties have filed two separate appeals.
9. During the pendency of the appeals, the U.P State Road Transport Corporation was brought on the record as respondent No. 5. The U.P State Government owned and managed the Roadways Buses at the time of the accident. During the pendency of the case the management was entrusted to the U.P State Road Transport Corporation.
10. Sri Sudhir Chandra, Advocate appeared for the appellants in F.A.F.O No. 112 of 1978.
11. Sri S.K Sharma, Advocate appeared for the appellant in F.A.F.O No. 78 of 1978.
12. Sri S.N Agarwal, Advocate appeared for the claimants-respondents in both the appeals.
13. This was a case in which the doctrine of res ipsa loquitur applied. The accident spoke for itself and told its own story.
14. In Pushpa Bai v. Ranjit Ginning and Pressing Co. Ltd. (1977) 2 SCC 745 : AIR 1977 SC 1735, it was held that in a case where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle, it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care.
15. Sri Sudhir Chandra placed reliance on Minu B. Mehta v. Balkrishna, (1977) 2 SCC 441 : AIR 1977 SC 1248 in support of the contention that before the master could be made liable, it is necessary to prove that the servant was acting in the course of employment and that he was negligent.
16. Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do.
17. Sri Sudhir Chandra referred to Exts. A1 and A-2. Ext. A-1 is the accident report prepared by D.W 1 Sri Tulsi Ram, Station Incharge, Kannaunj Roadways Bus Station. Ext. A-2 is the site plan prepared by him. The evidence of D.W 1 Sri Tulsi Ram is that he went to the spot on 12th Jan. 1971 and prepared the site plan. The site plan shows that a truck was going ahead of the Bus, that the Bus tried to overtake the truck, that the truck was going on the middle of the road, that while overtaking the truck, the right side wheel of the Bus came on the right side patri of the road, that the truck coming from the opposite direction was almost on the left patri of the road at the time of the accident and that there was a collision between the right side of the Bus and the right side of the truck resulting in extensive damage to the right side. Sri Tulsi Ram reported that the accident was unavoidable.
18. Sri Sudhir Chandra submitted that the Tribunal has disbelieved the statement of D.W 2 Ram Pal Singh that he overtook the truck on receiving a signal from the driver of the truck which was moving ahead of the Bus or that at the time of the accident both the wheels of the Bus were on the road and none of the wheels was on the patri. The Tribunal believed the version of D.W 4 Yagya Dutt that he swerved the truck towards the extreme left and brought the truck on the patri of the road when the Bus collided with the truck D.W 2 Subhas Tewari stated that the road was about 10 feet wide. According to him the Bus had gone 15 paces ahead of the truck at the time the accident took place. The Tribunal referred to para 26 of the written statement filed by opposite party No. 1 in which it was said that the Bus was stopped behind the truck which was going ahead of it making way for the speeding truck coming from the opposite direction. Had this been done, there would have been no accident. The Tribunal did not believe this part of the version of D.W 3 Subhas Tewari and held that the accident took place while the Bus was trying to overtake the truck going ahead of it. Had the accident taken place after the Bus had overtaken the truck and gone about 10 or 15 paces, the said truck would have also been involved in the accident. In view of the location shown in the site plan the Tribunal was quite justified in holding that the driver of the Bus was negligent, that he made over zealous attempt to overtake a truck going ahead without getting a signal or pass that in doing so, the Bus went on the extreme right side and that it collided with the truck belonging to opposite party No. 2 which came from the opposite direction.
19. Sri Sudhir Chandra submitted that there was no negligence on the part of the driver of the truck belonging to opposite party No. 2 and after having recorded a specific and clearcut finding, the Tribunal erred in holding that the driver of the truck coming from the opposite direction was also negligent inasmuch as the reasonable conduct could have been to stop the truck on the extreme left side and thus avoid the accident.
20. Sri S.K Sharma did not dispute the finding of the Tribunal regarding the negligence of the driver of the Roadways Bus but submitted that the driver of the truck coming from the opposite direction was also negligent and supported the finding recorded by the Tribunal.
21. He referred to Regulation 6 of the Driving Regulations framed under Ss. 77 and 78 of the Motor Vehicles Act as referred to in the tenth schedule of the Act.
22. Regulation 6 provides as below:—
“The driver of a motor vehicle shall slow down when approaching a road inter-section, a road junction or a road corner, and shall not enter any such inter-section or junction until he has become aware that he may do so without endangering the safety of persons thereon.”
23. Sri S.K Sharma referred to the case of Vidya Devi v. M.P State Road Transport Corpn. 1974 Acc CJ 374 : (AIR 1975 Madh Pra 89). It was held that it is the duty of a driver of a vehicle to keep a good look out for other traffic specially on road crossings, junctions and bends.
24. The statement of D.W 4 Yagya Dutt is to the effect that he could see the truck coming 5 or 10 paces ahead of the Bus from a distance of one furlong.
25. D.W 2 Ram Pal Singh stated that he was about 200 or 300 paces behind the truck when he demanded a pass by blowing the horn, that at the time he demanded the pass he could see the road up to one furlong, that when he was overtaking the truck he could see the road up to about one furlong, that there was no obstruction in front of him and that the bend near the place of the accident was nominal.
26. The site plan Ex. A-2 also shows that the bend at the place of the accident was nominal. The Tribunal observed as below:—
“If there was bend and the on coming vehicle was not in sight, it was proper for the driver to have slowed the speed of his truck and cautioned by blowing a horn.”
27. The reasoning of the Tribunal appears to be based on the erroneous premise that the on-coming vehicle was not in sight on account of the bend. The bend was nominal and both the Bus driver and the truck driver could see the vehicles coming from the other direction.
28. P.W 2 Ram Pal Singh suppressed the truth in the report lodged by him on 12-1-71 at 1.30 P.M Ex. A-4 as copy of the report. The truth was also suppressed in para 26 of the written statement filed by opposite party No. 1. It was not disclosed that the accident took place while the driver of the Bus was trying to overtake the truck which was going ahead on the middle of the road. It was in fact said that the driver of the Bus stopped the Bus behind the truck and made way for the speeding truck coming from the opposite direction to pass by. In the written statements filed by opposite parties Nos. 2 and 3 it was clearly alleged in para 24 that the Roadways Bus came from the opposite direction at a reckless speed, that the driver of the Bus lost control over the Bus and came to the wrong side of the road and that the driver of the truck swerved the truck towards the left and brought it on the patri of the road and that in spite of the best efforts of the driver of the truck, the Bus came on the wrong side and collided with the truck.
29. It would thus appear that there was a deliberate attempt to suppress the truth on the part of the driver of the Bus and the opposite party No. 1. The bend was only nominal. Both the drivers stated that they could see up to about a furlong. Regulation No. 6 referred to above casts a duty on the driver of a truck to slow down when approaching a road corner and he could not enter the road without having become aware that he could do so without endangering the safety of persons thereon. The driver of the truck could see the road up to a furlong and he could enter the bend as he could do so without endangering the safety of persons on the road. On seeing the Bus coming at a reckless speed and overtaking the truck going ahead of it, he swerved the truck towards extreme left and came on the patri of the road. There was nothing more which he could do as a reasonable and prudent person. The driver of the Bus was recklessly negligent.
30. D.W 2 Ram Pal Singh stated that the truck ahead of him was going at a speed of 30 or 35 Km. per hour and the speed of the Bus at the time of overtaking the truck was 35 or 30 Km. per hour. It is a matter of common experience that for overtaking a vehicle moving about 35 Km. per hour, one has to drive at a speed of about 50 Km. per hour. There has to be difference between the speed of the vehicle which is being overtaken and the speed of the vehicle which is overtaking as without this there can be no overtaking. The statement of D.W 2 Ram Pal Singh regarding the speed of the Bus being only 35 or 40 Km. per hour is not reliable. He has tried to minimise the speed in order to avoid the charge that he was driving at a reckless speed while overtaking the Bus. He could go to the extent of saying that he applied foot brake at the time of the accident and the Bus stopped after 2 or 3 feet. Had this been true, such a severe accident could not have taken place.
31. We find substance in the contention of Sri Sudhir Chandra that D.W 4 Yagya Dutt could do nothing more than move his truck to the extreme left and he could not avoid the accident when the Bus driver drove the Bus at a reckless speed while taking over the truck which was going ahead on the middle of the road, and which was not prepared to give a pass. The driver of the Bus ought to have seen that this could involve the Bus in an accident with the truck coming from the opposite direction. If the driver of a vehicle throws all caution to the winds and meets with an accident, there can be no justification for blaming the driver of a vehicle coming from the opposite direction who took care to swerve the vehicle to the left patri of the road and in spite of this the Bus dashed against the truck and the accident took place.
32. On a careful consideration of the submissions made before us and the statements of the two drivers, we are of the opinion that the Tribunal erred in holding that the driver of the truck coming from the opposite direction was also negligent. We are satisfied that this was a case in which the entire negligence was of the driver of the Bus. We are further satisfied that the driver of the truck did take all care and precaution expected of a reasonable and prudent person when he moved his vehicle on the left patri of the road and slowed it down to 10 or 15 Km. per hour.
33. We accept the contention of Sri Sudhir Chandra and hold that the driver of the Bus was wholly responsible for the accident and there was no negligence of the driver of the truck. The entire damages have, therefore, to be borne by the U.P State Road Transport Corporation and opposite parties Nos. 2 and 3 are not liable to pay any damages.
34. Sri Sudhir Candra and Sri S.K Sharma assailed the award on the ground that no deduction for lump sum payment and uncertainties of life has been allowed. Sri S.N Agarwal submitted that it is not necessary that lump sum deduction should be made in every case. In this case the deceased was only 32 years old and he left behind a young widow aged 26 years, a minor daughter aged 8 years and an old mother. The family needs money not only for its maintenance but also for the daughter's marriage. It was said that the Tribunal rightly did not allow any deductions.
35. In M.P State Road Transport Corporation v. Sudhakar 1977 Acc CJ 290 : ((1977) 3 SCC 64 : AIR 1977 SC 1189), the Supreme Court held:
“But in assessing damages certain other factors have to be taken note of which the High Court overlooked, such as the uncertainties of life and the fact of accelerated payment, that the husband would be getting a lump sum payment which but for his wife's death would have been available to him in driblets for a number of years. Allowance must be made for uncertainties and the total figure sealed down accordingly. The deceased might not have been able to earn till the age of retirement for some reason or the other like illness or for having to spend more time to look after the family which was likely to grow. Thus the amount assessed has to be reduced taking into account these imponderable factors. Some element of conjecture is inevitable in assessing damages.”
36. The total compensation assessed was Rs. 19,000/-. It was reduced to Rs. 15,000/-. The deduction allowed was about 21%.
37. In Hinch Narain v. State of U.P, 1977 Acc CJ 165 (All), Mahabir Prasad Goel v. Guru Saran Singh, 1983 Acc CJ 99 : (AIR 1983 All 20), Vinod Kumar v. Urmila Devi, 1983 Acc CJ 354 : (AIR 1983 All 112) and Om Prakash v. Rukmini Devi, 1983 Acc CJ 300 : (AIR 1982 All 389), this Court allowed a deduction of 25%.
38. In Moti Lal Vishwakarma v. Guru Bachan Singh, 1980 Acc CJ 462 : (1979 All LJ 222), which was followed in Kundan Bala v. State, AIR 1983 All 409, this Court allowed a deduction of 30%.
39. In Brij Kala Devi v. Ramchand Bishan Singh, 1979 Acc CJ 164 : (AIR 1979 All 49) and Krishna Sehgal v. U.P State Road Transport Corpn. 1983 Acc CJ 619 : (AIR 1983 All 159), this Court allowed a deduction of 33%.
40. This Court has thus consistently allowed a deduction between 25% and 33%. The higher the amount, the higher the rate of deduction appears to have been the underlying principle.
41. In Hira Devi v. Bhabha Kanti Das, 1977 Acc CJ 293 : (AIR 1977 Gauhati 31) (FB) it was held that 10% deduction for lump sum payment and 20% deduction for uncertainties of life should be allowed.
42. In Hayat Bi v. Nissar Ahmed, 1979 Acc CJ 351, the Karnataka High Court allowed deduction of 25%.
43. In Piyush Kanti Ghosh v. Maya Rani, 1971 Acc CJ 267 : (AIR 1971 Cal 229), State of Haryana v. Balbir Singh Hooda, 1975 Acc CJ 1 (Punj and Har), S.H Naik v. Gokul Chandra Naik, 1980 Acc CJ 317 (Goa), General Assurance Society Ltd. v. Jayalakshmi Ammal, 1975 Acc CJ 159 : (AIR 1975 Mad 198), Sambhupada v. Sobrani Sen, 1980 Acc CJ 180 (Cal) and Maheshwari Transport Co. v. Pritam Kaur, 1980 Acc CJ 157 (Madh Pra), deduction of 20% was allowed.
44. In Amarjit Kaur v. Vanguard Insurance Co. Ltd., 1981 Acc CJ 495 : (AIR 1982 Delhi 1), Laxmi Dhar Mohanty v. Bhanu Dei, 1980 Acc CJ 510 (Orissa), State of J and K v. Pushpa Devi, 1979 Acc CJ 403 (J and K) and Oriental Fire and General Insurance Co. Ltd. v. Chunni Lal, 1969 Acc CJ 237 (Punj and Har) 15% deduction was allowed.
45. In Punjab State v. Hardeep Kaur 1970 Acc CJ 150 (Punj and Har), it was held that there may be cases where justice demands that there be no deduction. Under S. 110-B of the Motor Vehicles Act, the Tribunal has to determine compensation which appears to it to be just. If there are circumstances, the Tribunal may award a higher amount as compensation. The said circumstances can be of no relevance in not allowing deduction which is done for entirely different reasons i.e on account of the imponderables and uncertainties of life.
46. In Kailashwati v. Haryana State, 1974 Acc CJ 514 : (AIR 1975 Him Pra 35) deduction was refused on the ground that increase in future income was not taken into account in fixing compensation. As pointed out by the Supreme Court, there is an element of conjecture in determining compensation. An attempt is made to compensate the claimants for the pecuniary loss suffered by them on account of the death of their bread winner. The amount which the deceased could spend on them per annum multiplied by the number of years the deceased could have lived taking into consideration the longevity in the family is the norm for determining compensation. The imponderables are:—
(1) the claimants or some of them could have died in the lifetime of the deceased,
(2) the deceased could have died before reaching the age of longevity taken for assessing the compensation,
(3) the deceased could have been disabled due to serious illness and could have stopped earning,
(4) the deceased could have lost his employment,
(5) the deceased could have suffered severe loss in his profession or business and so on.
47. With all these imponderables how can be there a certainty about future prospects of the deceased.
48. In Bhagwati Devi v. Ish Kumar 1975 Acc CJ 56 (Delhi), the deduction was refused on the grounds: Firstly, that litigation was likely to continue for a few years. Secondly, that runaway inflation and consequent devaluation has considerably reduced the quantum of compensation in its real worth. After the decision of a case by a High Court, the litigation reaches the end. It is rarely that in such cases the Supreme Court grants leave to appeal. As far as inflation is concerned, it would have also affected the money available to the family if the deceased had not met with the accident and had lived on. It has to be kept in mind that when a lump sum of money is invested in fixed deposits for a period more than 5 years, considerable amount is payable as interest. Quite often the interest is enough for day to day expenses while the principal amount remains intact.
49. In Ganga Devi v. Municipal Corpn. of Delhi, 1980 Acc CJ 364 (Delhi), deduction was refused as no allowance was made for the increments.
50. In Sudershan Puri v. Rajasthan State Road Transport Corpn. 1983 Acc CJ 489 (Raj) deduction was refused as future prospects of the deceased were not taken into account.
51. In Satyawati Pathak v. Hari Ram, 1983 Acc CJ 424 : (AIR 1984 Delhi 106), deduction was considered unjustified because on account of rising prices, benefits of lump sum payment became negligible.
52. In National Insurance Co. Ltd. v. Pushpa Kunwar, 1983 Acc CJ 629 (Madh Pra) deduction was refused as prospects of promotion, increase in future earning and general depreciation in purchasing power of money were not taken into consideration.
53. We have carefully considered the numerous decisions of other High Courts in which deduction was refused. Different sets of principles are applicable for determining compensation and allowing deduction on account of lump sum payment and uncertainties of life. The reasons given in these judgments may be taken into consideration while determining compensation but the same cannot justify refusal of deduction. We feel that in a judicial decision reason should prevail over sentiment. We are of the opinion that these decisions cannot be considered good law as the same do not follow the law laid down by the Supreme Court in M.P State Road Transport Corporation v. Sudhakar, ((1977) 3 SCC 64 : AIR 1977 SC 1189) (supra). We respectfully agree with the consistent view of the various Division Benches of this Court and hold that a deduction has to be made for lump sum payment and uncertainties of life. In the circumstances of this, the Tribunal should have allowed a deduction of 25%.
54. Sri S.N Agarwal, learned counsel for the claimants respondents submitted that the Tribunal did not award any compensation for loss of consortium and marriage expenses of the daughter. He placed reliance on the case of P. Somarjyam v. Andhra Pradesh Road Transport Corporation AIR 1983 Andh Pra 407. A sum of Rs. 5,000/- was allowed as loss of consortium. No authority was cited in support of the contention that the Tribunal should have also provided for the marriage expenses of the daughter while determining the compensation.
55. Sri S.K Sharma submitted that no separate compensation could be awarded for loss of consortium or for marriage expenses. The general principle is that the pecuniary loss suffered by the claimants should be made good. He placed reliance on Sheikhpura Transport Co. Ltd. v. Northern India Transporter's Insurance Co. Ltd., 1971 Acc CJ 206 : ((1971) 1 SCC 785 : AIR 1971 SC 1624). In para 6 the Supreme Court held:—
“Under section 110B of the Motor Vehicles Act, 1939 the tribunal is required to fix such compensation which appears to it to be just. The power given to the tribunal in the matter of fixing compensation under that provision is wide. Even if we assume (we do not propose to decide that question in this case) that compensation under that provision has to be fixed on the same basis as is required to be done under Fatal Accidents Act, 1855 (Act 13 of 1855), the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be as estimate or even partly a conjecture.”
56. Sri S.K Sharma also submitted that claimants did not file any appeal or cross-objection against the compensation awarded by the Tribunal and as such they are not entitled to challenge the amount of compensation awarded.
57. Sri S.N Agarwal, learned counsel for the claimants respondents submitted that the claimants are entitled to plead that the compensation should remain Rs. 75,000/- as determined by the Tribunal. If this Court allowed deduction of 25% as claimed by the appellants, the respondents are entitled to raise pleas which may enhance the compensation to the extent that the reduced amount does not exceed Rs. 75,000/-.
58. On a careful consideration of the submission made before us we are of the opinion that if the claimants respondents wanted a higher compensation, they should have filed an appeal or cross-objection. They cannot meet the contention of the appellants regarding deduction by saying that the compensation should be increased to the extent that the reduced amount does not exceed Rs. 75,000/- Even on merits there is no substance in this contention. The Supreme Court has laid down the guidelines for determining compensation and in view of the same, no additional compensation is payable for loss of consortium or marriage expenses.
59. No other point was pressed.
60. F.A.F.O No. 112 of 1978 is allowed and the award made by the Tribunal against opposite parties Nos. 2 and 3 appellants is set aside. The application for compensation against these opposite parties is dismissed.
61. F.A.F.O No. 78 of 1978 is partly allowed. The award is modified and the compensation is reduced by 25% and is fixed at Rs. 56,250/-.
62. It is further directed that the entire amount of Rs. 56,250/- with interest at 6% per annum from the date of the petition till the date of payment will be payable by the U.P State Road Transport Corporation.
63. In the circumstances of the case the costs of the two appeals will be easy.
64. Order accordingly.
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