S.B Sinha, J.:—This miscellaneous appeal arises out of a judgment and award dated 14th August, 1985 passed by Sri B.B Sharan, District Judge, Dhanbad, acting as Accident Claims Tribunal, Dhanbad, in Title Suit No. 66 of 1982, whereby and whereunder the said learned Court passed an award of Rs. 1,20,000/- in favour of claimants/respondents. It was further directed by the learned court below that out of the aforementioned amount of compensation a sum of Rs. 50,000/- is payable by the respondent no. 3, Oriental Fire and General Insurance Company Ltd., Rathaur Mansion, Dhanbad.
2. The fact of the case lie in a very narrow campass.
3. On 18.3.1982 one Rajkumar Agarwal (Loyalka) was riding on his motor cycle and near the village Ena Islampur he tried to save collision with some cows crossing the road but hit one of the cows and fell down from his motor cycle whence a truck bearing registration no. BHR, 7792 belonging to the appellant ran over him resulting in his death.
4. According to the respondents who are heirs and legal representatives of the aforementioned deceased, the deceased was earning about Rs. 1600/- per month by carrying out business in coal. It was further stated that the deceased at the time of his death was aged about 25 years.
5. In the said claim application the claimants/respondents prayed for an award for a sum of Rs. 1,50,000/-.
6. By reason of the impugned award the learned court below awarded a sum of Rs. 1,20,000/- against the defendants.
7. Mr. P.S Dayal, the learned counsel appearing on behalf of the appellant raised three contentions in support of this appeal.
8. He firstly, submitted that there is nothing on record to show that the truck in question was being driven rashly and negligently. According to the learned counsel the purported plea of rash and negligent driving on the part of the driver has been up-held by the learned Tribunal Court below by referring only to the first information report and the charge sheet (Ext. 3) which are inadmissible in evidence.
9. Secondly, the learned counsel contended that in any event as the deceased fell down from his motorcycle and the alleged rash and negligent driving on the part of the driver having no direct nexus with the accident in question, the principles of contributory negligence shall apply in the instant case and taking that view of the matter the award of Rs. 1,20,000/- in favour of the respondent cannot be sustained.
10. It was next submitted that in view of the fact that the motorcycle, on which the deceased was riding at the time when the accident took place was also insured, it was obligatory on the part of the claimants/respondents to implead the Insurance Company which was insurer of the motor cycle in question as a party in the application for claim and in its absence the application for compensation was not maintainable.
11. Re-Contention No. ‘1’
12. In this case, admittedly a criminal case was instituted. The first information report was marked as Ext-2 and the charge sheet submitted in the said criminal case was marked as Ext.-3 before the learned court below.
13. P.W 2 is an eye witness of the occurrence. He stated that when the deceased was riding in his motorcycle a few cows were crossing the road while the deceased in order to save the cows, fell down from his motor cycle. According to the said witness at that time the truck in question which was being driven in high speed came there and crushed the deceased. He further stated that the accident took place because of the rashness and negligence on the part of the driver of truck. He also stated that if the driver of the truck had slowed down the speed after seeing the cow and the motor cycle, the accident could have been averted. The said witness further stated that he stopped the truck after going ahead of him.
14. P.W 4 is another eye witness of the occurrence, who also stated that the truck in question came there in high speed and crushed the deceased. He also opined that the truck was being driven rashly and negligently.
15. On the face of this evidence the appellant did not examine any witness far less the driver of the truck.
16. In case of Pushpa Bai Purshottam Udeshi v. Manjit Ginning and Pressing Co. reported in 1977 Accident Claims Journal Page 344, the Supreme Court stated that in such circumstances the doctrine of ‘res ipsa loquitur’ may be made applicable. The Supreme Court laid down the law in the following terms:—
“The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but can not prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident “speaks for itself” or tells its own story. There are cases in which the accident speaks for itself, and that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Ed.) at p. 306 states at the maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury would find without further evidence that it was so caused”. In Halsbury's laws of England 3rd Ed., Vol.-28 at P. 77 the position is stated thus. “An exception to the general rule that the burden of proof of the alleged negligence is the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence or where the event charged as the negligence tells its own story’ of negligence on part of the defendant, the story so told be clear and unambiguous.” Where the maxim is applied the burden is on the dependent 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.”
17. In the instant case the learned court below came to the conclusion about the rashness and negligence on the part of the driver not only on the basis of Ext.-2 and 3 aforementioned, but also on the basis of the evidence of P.Ws 2 and 4.
18. In the instant case it is evident that at the relevant time several cattle were crossing the road.
19. In a case of this nature while driving a vehicle through the crowded village there is no doubt that the crossing of the road by the cattle should have attracted the attention of the driver and thus it was his duty to slow down the speed of the vehicle.
20. It may, be true that driving of vehicle at a high speed may not itself constitute rashness or negligence. The question as to whether the driving at a high speed itself constitutes negligence or not depends upon the facts of each case. A vehicle driven at a speed of 10 miles per hour on a crowded road may constitute negligence whereas driving of a vehicle at a speed of 50 miles per hour on a highway where there is little or no traffic may not constitute rashness or negligence.
21. However, it is a well settled law that ordinarily a person who drives a vehicle has a duty to take reasonable precaution in the use of the vehicle and failure to observe such precaution may give rise to cause of action to any person, who suffers injury arising out of such failure on his part.
22. In terms of section 110B of the Motor Vehicles Act, compensation may also be awarded as against the driver of the vehicle.
23. It has not been suggested before the learned court below or before this court that the driver at the time of hearing of the case was not under the control of the appellant and as such there was no reason whatsoever as to why the driver of the truck in question was not examined. Examination of such a competent witness, who could explain the situation and particularly a person, who is also liable to pay compensation under the Motor Vehicles Act, was necessary. In a case involving accident arising out of the negligence on the part of the driver it was incumbent upon the owner to examine the driver of the vehicle. Thus an adverse inference has to be drawn for non-examination of the said driver.
24. It is the duty of the driver to give his attention when another user of the road which may result in any danger caused by his negligence.
25. In the instant case it is evident that the driver could have saved the accident if he had used his skill and had taken precaution in slowing down the vehicle after having seen the cows crossing through the road and also falling down of the deceased from his motorcycle. Apart from the fact that in this case the doctrine of res-ipsa-loquitur is applicable, the rashness and negligence on the part of the driver has been well proved from the evidence on records.
26. In this view of the matter there is no merit in the first contention raised on behalf of the appellant.
27. Re-contention no. 2—
28. So far as a case of contributory negligence is concerned the same has to be carefully distinguished from composite negligence.
29. Salmond in his classic law of Torts 11th Ed. observed that when an accident happens through the combined negligence of two persons he alone is liable to the other, who had the last opportunity of averting the accident by reasonable care.
30. It is however correct that the test of last opportunity should not be made to apply thoughtlessly.
31. However, it is well known that the burden of proof of contributory negligence is on the defendant and it is not up to plaintiff to prove it.
32. Reference in this connection will be made in the case of Master Arjun Fatchand Gobindlal v. Balshi Gulotri, reported in 1979 Accident Claims Journal, Page 92. In a case of contributory negligence, the facts and circumstances of the each case may decide the quantum of compensation, taking into consideration the negligence of each party to be the causes of accident.
33. In this case it has not been shown that the deceased was driving his motorcycle in an uncontrollable spead. It has further not come on record as to what was the time gap between the falling down of the deceased from his motorcycle and his coming under the wheel of the truck in question.
34. Had the driver been examined, it would have been possible for the court to judge the plea of the contributory negligence raised on behalf of the defendant. Thus the appellant having not been able to prove contributory negligence on the part of the deceased, the second contention raised on behalf of the appellant also fails.
35. Re-contention no. 3:—
36. In this case the Tribunal has found on the basis of income tax returns filed on behalf of the applicants/respondents that the deceased had been earning a sum of Rs. 15,000/- per annum. According to the learned court below the applicants/respondents were thus entitled to compensation of Rs. 1,20,000/- taking into consideration the fact that the deceased was not married and his father and mother are claimants-respondents and that at the relevant time they were aged about 46 and 42 years respectively and further taking into consideration the fact that the amount is being paid in lump sum.
37. It is now well settled that in terms of section 110(B) of the Motor Vehicles Act, the Accident Claims Tribunal has been conferred with the power to assess damages, in respect of a death or bodily injury caused in an accident by reason of use of motor vehicle and the appellate courts are slow to interfere with the quantum of compensation unless the principles in computing the same have not been followed.
38. In the instant case the learned Tribunal below has computed the quantum of compensation payable to the applicants/respondents in accordance with law and I do not find any infirmity therein nor any infirmity has been pointed out by the learned counsel appearing on behalf of the appellant.
39. Recently, the Supreme Court in Rajendra Kumari v. Sri Shanti Tribedi reported in (1989) 2 SCC 140 directed payment of a sum of Rs. 1,00,000/- in a case where the deceased was earning a sum of Rs. 1000/- per month and was found to be in a position to spend Rs. 6000/- per annum on his family, upon taking into consideration that the deceased at the time of his death was aged about 25 years.
40. In this view of the matter no case for interference with the impugned award has been made out by the appellant.
41. In the result this appeal is dismissed. In the facts and circumstances of the case the parties shall bear and pay their respective costs.