IMPORTANT POINTS
1. For claimant parents aged 47 and 43 years for death of their 18 year old son in a motor accident claim petition, multiplier of 10 would be appropriate.
2. In a case of contributory negligence, crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided consequence of other s negligence.

Headnote:(i) Motor Vehicles Act, 1939-Section 110A-Negligence-It is failure to observe, for the protection of interest of another person, degree of care, precaution and vigilance which circumstances justly demand, whereby such other person suffers injury-It is not an absolute term but is relative one and it is rather a comparative term.
       Held : Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. (Para 6)
       (ii) Motor Accident Claim-Contributory negligence-Crucial question on which liability depends would be whether either party could by exercise of reasonable care, have avoided the consequence of other s negligence.
       Held : Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other s negligence. Whichever party could have avoided the consequence of other s negligence would be liable for the accident. If a person s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on Negligence, 3rd Edn. Para 328). It is now well settled that in the case of contributory negligence, courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage are reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim the question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence. (See Pollock on Torts, 15th Edn. P. 361). (Para 6)
       (iii) Motor Vehicles Act, 1939-Section 110A-Fatal accident claim-Defence plea of contributory negligence-Deceased was 18 years old boy riding a bicycle which collided with vehicle of appellant-Application of brakes and incident of collision between cycle and bus seemed almost simultaneous-Tribunal and High Court erred in rejecting plea of contributory negligence-Towards contributory negligence, award was liable to be deducted by 25%. (Para 8)
       (iv) Motor Vehicles Act, 1939-Section 110A-Fatal accident claim-Deceased was 18 years old boy and claimants were parents aged 47 and 43 years-Even if there was no actual pecuniary benefit derived by parents from deceased, prospective loss will found a valid claim provided parents established that they had a reasonable expectations of pecuniary benefit if child had lived-Compensation is relatable to loss of contribution or pecuniary benefits-Expected income of deceased at Rs. 3000/- p.m. taken by Tribunal and affirmed by High Court not disturbed-Multiplier of 15 applied was higher and reduced to 10-Compensation accordingly modified. (Para 12)

JUDGMENT

Arijit Pasayat, J.-Leave granted.

2. The Municipal Corporation of Greater Bombay (hereinafter referred to as the Corporation ) questions legality of the judgment rendered by learned Single Judge of the Bombay High Court in the appellate side. The said appeal related to a judgment and award passed by the Motor Accidents Claims Tribunal for Greater Bombay (for short the Tribunal ) adjudicating a claim petition under Section 110-A of the Motor Vehicles Act, 1939 (in short the Act ).

3. One Kumar (hereinafter referred to as the deceased ) lost live in a vehicular accident which occurred on 15.8.1989. Vehicle No. MMK 6623, a bus belonging to the Corporation was the offending vehicle. Claim of rupees six lakhs was made by the parents of the deceased (respondents in this appeal). According to the claimants, when the deceased was going by his bicycle suddenly the offending vehicle dashed against him. The impact of the accident was so severe that the deceased was thrown to some distance and sustained various serious injuries which resulted in his death. The deceased was aged about 18 years at the time of accident. He was a good student and would have entered to income earning services shortly. The Corporation took the stand that the deceased had suddenly come from the left side of the bus from Chembur Railway Station at a very high speed and instead of taking left turn, took right turn in contravention of traffic regulations. When the driver of the vehicle saw the cyclist coming on a wrong side, he immediately applied the brakes and halted the bus. Despite this, the cyclist was unable to control the cycle and dashed against the bus from the right corner of the bus, as a result he fell down. He was removed to the hospital with the help of the conductor of the bus and other persons. Witnesses were examined to show as to how the accident occurred and also on the compensation aspect. The Tribunal noticed that as the case progressed, a significant change was made in the stand taken by the Corporation. The driver was examined. He stated that he was driving the vehicle at very slow speed. The deceased came from the side of Chembur Station in the opposite direction and when he saw him at a distance of 30 ft., he immediately applied the brakes, and halted the bus. But the cyclist came and dashed against the front side of the bus. Since the cyclist came from the wrong side of the bus, he sustained injuries which proved fatal. The Tribunal held since the parents were claimants and came from a respectable and educated family, it would not be improbable to conclude that the deceased would have earned decently by taking an employment. By taking the expected earning of Rs. 3,000/- p.m. multiplier of 15 was adopted. Accordingly, the quantum was fixed at Rs.5,60,000/- including loss of expectation of life. As a lump sum was being paid, deduction of 25% was made and finally a sum of Rs. 4,01,250/- was awarded as compensation, with interest at 15% p.a. from the date of application. The matter was carried in appeal to the Bombay High Court, which by the impugned judgment held that the quantum fixed was proper. However, interest was reduced from 15% to 12% p.a.

4. In support of the appeal, learned Attorney General appearing for the Corporation submitted that the High Court s judgment is vulnerable on more than one counts. Firstly it is submitted that the parents being the claimants, the multiplier as adopted is not proper. Secondly, this was a case where the accident occurred more on account of deceased s negligence than that of the driver of the offending vehicle. This is a clear case of contributory negligence. That being so, the awarded amount cannot be maintained.

5. In response, learned counsel for the claimants submitted that the award made is just, fair and needs no interference.

6. A plea which was stressed strenuously related to alleged contributory negligence. Though there is no statutory definition, in common parlance negligence is cat

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2003 Supreme(SC) 1045

Cases Referred (3)