Shiv Dayal, J.:— This is an appeal under section 110-D of the Motor Vehicles Act from an award of the Claims Tribunal dated August 18, 1966.
2. On March 16, 1965, at about 7.30 P.M, a passenger bus (MPJ 3871), belonging to the M.P State Road Transport Corporation, dashed against a riskshaw at a place between Rewa and Mangawan on the Hirapur-Rewa road, four miles from Rewa Raghvendra Singh, who was trave ling the riskshaw, was killed as a result of the accident. His widow, Mrs. Suman Singh, lodged a claim before the Claims Tribunal, on the allegations that the Bus was being driven rashly and negligently by the driver, that Reghevendra Singh was a Forest Guard, that his age was 32 years, that he was drawing Rs. 125 per month, elusive of allowances; and that he is survived by his widow (applicant) and five children, the eldest being 10 years old, besides his old mother. She claimed Rs. 25,000 as the amount which the deceased would have earned upto the date of his retirement; Rs. 8,000 which he would have earned as Pension for 15 years after his retirement, and Rs. 20,000 as general damage, total Rs. 53,000. The claim was resisted by the General Manager, M.P.S.R.T.C, on the ground that the driver was not rash or negligent. The quantum of compensation claimed was also denied. The cause of the accident, as stated in the written statement, is that the rickshaw was running at a fast speed in the middle of the road. When the bus blew its horn, the riskshaw driver swerved it to his right. On this the driver of the bus, in order to avert an accident, turned the bus towards the right, but the rickshaw driver suddenly swerved the rickshaw to his left. Then the driver swerved the bus further to the right. In this process the rickshaw struck against the side of the bus.
3. The Claims Tribunal held that the driver of the bus was not rash or negligent, but the driver of the rickshaw was responsible for contributory negligence which resulted in the accident. In reaching that conclusion, the Tribunal found that the driver of the bus had blown the horn to warn the rickshaw driver that the lamps of the bus were lighted at the time of the alleged occurrence; that the speed of the motor bus at the time of the accident was not high; and that driver had applied brakes in order to stop it and to avert the accident. The Tribunal relied on the evidence of Mr. V.V Bakoray (D.W 1.), Deputy Collector, who was a passenger in the bus; Promod Kumar Sbrivastava (D.W 2.) another passenger in the bus; Gayaprasad Driver (D.W 4) and Aga Khan Conductor (D.W 3). In the result, the Tribunal dismissed the claim.
4. Learned counsel for the appellant contends that the Tribunal erred in not accepting the evidence of Wali Mohammed (P.W 1) and Ramsunder (P.W 2). It is further contended that even on the evidence adduced by the respondent, negligence of the driver is proved.
5. Wali Mohammed (P.W 1) stated that he was travelling in a rickshaw and Raghvendra Singh was travelling in another rickshaw, which met with the accident. The latter was about 15 cubits ahead of his. He says that the rickshaw, which met with the accident, was running on the left side of the road. As a result of the bus having dashed against the rickshaw, Raghvendra Singh died. In cross-examination he was asked whether that rickshaw-wala was running on the right side of the road when the bus swerved to its right to avert an accident but the rickshaw-wala also turned his rickshaw to his own left. The witness denied this suggestion as false. He says that as soon as the rickshaw driver saw the lights of the bus, he turned to the left side of the road. He was unable to state the speed of the bus at the time of the accident. There is nothing in his cross-examination for which he should be disbelieved. The Tribunal has disbelieved him because Mr. Bakoray a Deputy Collector (D.W 1), says that there was no other rickshaw behind the one which was run over by the bus. But this was not enough to disbelieve the positive evidence of Wall Mohammed. It is likely that in that tense situation, Mr. Bakoray may not have noticed the other rickshaw which was not within the ambit of the accident.
6. The version given by V.V Bakoray (D.W 1) is that he was travelling in the bus which became involved in the accident. He says that the bus was running on its correct side, while the rickshaw was on the wrong side when it was coming from the opposite direction. In order to avert an accident, the bus driver swerved the bus towards us right. Just then the rickshaw driver also swerved the rickshaw to the left. The driver wanted to go still further on the right side but could not because of standing trees. Consequently, the bus ran over the rickshaw. He says that if the rickshaw driver had not swerved the rickshaw to his left, or had stopped it, there would have been no accident. He admits that the rickshaw could not come to a halt instantaneously. Bakoray states that the driver did not slow down the bus; he merely swerved it to avert an accident.
7. Promod Kumar Shrivastava (D.W 3) also states that the rickshaw was on the wrong side of the road When the bus driver swerved the bus to his right in order to avert an accident, the rickshaw driver suddenly swerved the rickshaw to his left side. When the driver turned the bus more towards his right side, the accident occurred. This witness also says that the speed of the bus at that time was about 25 to 30 miles per hour. After dashing against the rickshaw, the bus ran for about 15 or 20 steps and then stopped. He reiterates that upto the moment of the impact, the speed of the bus was 25 to 30 miles per hour. When, after the impact, the bus went and struck against a tree, then the driver applied brakes. He says that the driver had blown the horn, and the lights were on. He also says that there was no other rickshaw. Almost to the same effect is the evidence of Aga Khan (D.W 3). He says that the bus driver had seen the rickshaw when it was about 100 yards away, and the speed of the bus was about 25 to 30 miles per hour. The driver had blown the horn 16 or 17 times.
8. Gaya Prasad (D.W 4) is the bus driver. He says that he was driving on the correct side. The rickshaw was coming from the opposite direction and was on the wrong side of the road. He had seen the rickshaw from about half a furlong. He blew the horn. Still the rickshaw driver was on the wrong side. When the bus came near the rickshaw and the rickshaw wala was still on the wrong side, he swerved the bus to the right side of the road. The left side of the bus struck against the rickshaw. The accident occurred because the rickshaw wala, all of a sudden, swerved it towards the correct side of the road. He clearly states that the impact was in the middle of the road. The bus then struck against a mango tree, which was about 25 to 30 feet away from the spot of impact. He says that he started applying brakes when the bus was about 10 to 15 feet from the tree. There is a suggestion that there were some female pedestrians about 60 to 70 feet behind the rickshaw. They were walking on the right side of the road, but not in the middle.
9. From the above evidence, it emerges clear that the rickshaw was not running on the correct side. But the driver of the bus had seen this when the bus was as far away as about half a furlong from the rickshaw. There was sufficient time for the driver to slow down and, in emergency, to stop the bus. This was all the more necessary, because, on the respondent's own showing, the rickshaw driver persisted on running the rickshaw in the middle of the road even when the driver blew the horn. But he continued to drive at 25 to 30 miles per hour. He did not apply brakes at all. He applied the brakes after the impact, when the bus was only 10 to 15 feet from the mango tree (while the impact was 25 to 30 feet from that tree). It is also clear that there was no traffic, nor any other obstruction between the bus and the rickshaw. The theory that there were some female pedestrians in between is not made out.
10. We are clearly of the opinion that although the driver was not expected to slow down the bus as soon as he saw the rickshaw, yet, he was duty bound to be alert and to start applying brakes when he was at such a distance that he could control the vehicle and avoid the impact. This care, which was only reasonable, he did not take. Having seen the rickshaw from such a long distance as half a furlong and further having noticed that the rickshaw persisted in running in the middle of the road towards the right side, it was the duty of the driver to slow down the bus to such a speed that the vehicle came under his complete control and he could stop it instantaneously in case of emergency. This care he did not take. It seems clear that the driver did not put his feet on the brakes and did not apply them at all until after the disaster. Above all the bus driver could not afford to swerve the bus to his right. It was only reasonable and prudent for him to expect and to foresee that the rickshaw driver would, at any moment, swerve the ricksaw to his own left either by an effort or by way of a reflex action. It is natural that at any point of time whenever the rickshaw driver would think of swerving the rickshaw to one side of the road, he would naturally turn it to his left, and this he would do even if he would be baffled at the last moment. The negligence of the driver primarily consists in not stopping or slowing down the bus, and his rashness in swerving it to his right. We do not find it proved that the driver could not swerve the bus to his left to avert the accident. For these reasons, we hold that the accident occurred because the bus driver was negligent in not slowing down and stopping the bus, and was rash in anticipating that the rickshaw would continue to run on its wrong side, while he swerved the bus forward to his own wrong side.
11. Learned counsel for the respondent strenuously and vehemently contended that the cause of the accident was negligence of the rickshaw driver. If he had not run his rickshaw along the middle of the road, or, if, as soon as he saw the lights of the bus or as soon as the horn was blown, he had taken his rickshaw on the correct side of the road, the accident would have been averted. In our opinion this contention cannot be accepted, so as to absolve the driver of the vehicle from liability. Where a motor vehicle dashes against a rickshaw, if, in a situation of imminent peril, after the danger became apparent or should have become apparent, there was time during which either or both might avert the impending disaster and if in spite of the difficulties which such situation presented the driver's due efforts to avoid the accident could have been successful, his negligence would be the decisive cause. The decision of such a case turns not merely on any causation but on the principle of responsibility. Even if negligence of the rickshaw driver is causa sine qua non, yet, if the driver of the motor vehicle, acting reasonably, could and ought to have avoided the casualty, he is liable.
12. In British Columbia Electric Rail Co. Ltd. v. Loach . 1914-1915 All E.R 426., two persons drove a laden cart and horses on to a level crossing without taking reasonable precaution to see that the line was clear. They became aware of a tram-car owned by the appellant-company approaching them, 150 yards away but they were then unable to do anything to prevent an accident. The driver of the tram-car saw the cart when he was 400 yards away from the crossing and at once applied his brakes, but they were defective and inefficient, and he could not stop the tram-car in time and overran the crossing some distance knocking over the cart and killing one of the men. The brakes of the tram-car had been in a defective condition when the tram-car came out in the morning. The Jury found that the tram-car was travelling at an excessive speed but could have stopped in time to prevent an accident if the brakes had been in working order. It was held that the negligence of the tram-car driver was the sole cause of the accident and, therefore, the company was liable notwithstanding the contributory negligence of the deceased. In that case, Lord Sumner observed thus;
“The whole law of negligence in accident cases is now very well settled, and beyond the difficulty of explaining it to a jury in terms of the decided cases, its application is plain enough. Many persons are apt to think that, in a case of contributory negligence like the present, the injured man deserved to be hurt, but the question is not one of desert or the lack of it, but of the cause legally responsible for the injury. However, when once the steps are followed the jury can see what they have to do for the good sense of the rules is apparent. The inquiry is a judicial inquiry. It does not always follow the historical method, and begin at beginning. Very often it is more convenient to begin at the end, that is at the accident, and work back along the line of events which led up to it. The object of the inquiry is to fix upon some wrongdoer the responsibility for the wrongful act which has caused the damage it is in search not merely of a causal agency but of the responsible agent. When that has been done, it is not necessary to pursue the matter into its origins; for judicial purposes they are remote. Till that has been done there may be a considerable sequence of physical events, and even of acts of responsible human beings, between the damage done and the conduct, which is tortious and is its cause. It is surprising how many epithets eminent judges have applied to the cause, which has to be ascertained for his judicial purpose of determining liability and how many more to other acts and incidents, which for this purpose are not the cause at all. “Efficient or effective cause”, “real cause”, “proximate cause”, “direct cause”, “decisive cause”, “immediate cause”, “causa causans”, on the one hand, as against, on the other, “cause sine qua non”, “occasional cause”, “remote cause”, “contributory cause”, “inducing cause” “condition”, and so on. No doubt in the particular cases in which they occur they were thought to be useful or they would not have been used, but the repetition of terms without examination in other cases has often led to confusion, and it might be better, after pointing out that the inquiry is an investigation into responsibility, to be content with speaking of the cause of the injury simply and without qualification.”
13. The Privy Council referred to the valuable judgment of Anglin, J., in Bremer v. Toronto Rail Co.
“If, notwithstanding the difficulties of the situation, efforts to avoid injury duly made would have been successful but for some self-created incapacity, which rendered such efforts inefficacious, the negligence that produced such a state of disability is not merely part of the inducing causes—a remote cause or a causa sine qua non—it is in very truth the efficient, the proximate, the decisive cause of the incapacity, and, therefore, of the mischief…… Negligence of a defendant incapacitating him from taking due care-to avoid the consequences of the plaintiff's negligence may in some cases, though anterior in point of time to the plaintiff's-negligence, constitute ultimate negligency rendering the defendant liable notwithstanding a finding of contributory negligence of the plaintiff……”
14. In Melean v. Bell . 1932 All E.R 421. the House of Lords laid down that in a running down case, if it is established that although the plaintiff was negligent, the defendant could have avoided the collision by the exercise of reasonable care, then it is the defendant's failure to take that reasonable care to which the resulting damage is due, and the plaintiff is entitled to recover. The decision of the case must turn, not simply on causation, but on responsibility.
15. Apart from all this, it cannot be said that contributory negligence of the rickshaw driver was also contributory negligence of the passenger in the rickshaw. In Hills v. Armstrong . 1886-90 All E.R 823. a passenger in, and a member of the crew (who was not on duty) of, a ship were killed in a collision with another ship the collision was caused by the negligence of the masters and crew of both ships, but the deceased persons were not responsible for that negligence in action, under the Fatal Accidents Act, 1846, by their personal representatives against the owners of the other ship, it was held that the deceased persons were not identified with the negligence of those navigating the ship in which they were travelling, and, therefore, their personal representatives were entitled to recover damages under the Act.
16. Our attention was drawn to an order of reference to the Full Bench made in Miscellaneous First Appeal No. 53 of 1965, on the question whether it is not necessary to prove negligence in claims arising out of motor accident. In our opinion, that reference need not detain the present case. Firstly because the question referred to the Full Bench arose where the motor vehicle was insured against third party risks, and secondly, in the present case negligence of the driver is established.
17. This brings us to the question of damages. The deceased, at the time of the accident, was drawing Rs. 125 per month, as stated by the appellant and not rebutted by the respondent. He would have naturally got annual increments. The age of the deceased was 32 years. Thus, he would have earned his salary for 23 years and thereafter he would have earned pension for some years at least. As he had a wife and five children, it would only be fair to say that he would have spent Rs. 40 per month on himself; Rs. 40 on his wife; and Rs. 45 on his children. The loss to the wife would, therefore come to about Rs. 11,040. The loss to the children on an average of 12 years would come to Rs. 6,480. The total on this calculation comes to Rs. 17,520. Since the appellant would get a lump sum which she can deposit in the Bank and earn interest until she requires large sums either for marriage or education of the children, we think that Rs. 15,000 will be reasonable compensation to be awarded. See the principles laid down in Gobald Motor Service v. Veluswami.
18. Learned counsel for the respondent urged that while assessing the amount of compensation, no consideration could be given to the loss sustained by the children inasmuch as they did not lay any claim before the Tribunal. They were not made party to the proceeding. The only person whose loss is to be assessed is the appellant, who was the applicant before the Tribunal. In our opinion, this contention must be rejected. A claim under section 110-A of the Motor Vehicles Act has a representative character and is essentially on behalf of all the representatives of the deceased. It is enacted in section 1-A of the Fatal Accidents Act, 1855:
“……Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased……”
19. In Northern India Transporters Ins. Co. Ltd. v. Amra Wati, the widow of the deceased filed an application for compensation for the death of her husband under section 110-A of the Act. The names of the daughters were not mentioned in the application. Later on, an application was made to introduce their names, but the Tribunal rejected it on the ground of delay. A Division Bench of the Punjab High Court, which decided the appeal, held that in view of the provisions of the Fatal Accident Act, the application filed by the widow was essentially a claim on behalf of all the representatives of the deceased and that there was no justification to exclude the compensation payable to the daughters merely because their names were brought into the proceeding at a later stage. It was further held that it was a fit case for condoning the delay admitting the claim. The same view was taken in The State of Rajasthan v. Parwati Devis. The last mentioned case was referred to with approval in a recent decision of this court in Chuharmal Issardas v. Haji Wali Mohmmed . 1968 A.C.J 391, where the question of abatement of the appeal arose. The appeal is partly allowed. The judgment and award of the Claims Tnbunal are set aside. A decree for Rs. 15,000 (Fifteen thousand rupees) shall be passed against the respondents jointly and severally. The appellant shall get Rs. 200 as costs here and like amount as costs in the Tribunal.
20. Claim allowed.