1986 Supreme(MP) 761

IN THE HIGH COURT OF MADHYA PRADESH
V. D. Gyani, J.
Jayanti Prakash - Appellant
V.
M. P.S.R.T.C. - Respondent
M. A. No. 223 of 1979 (I)
Decided On : 09-10-1986

Headnote:(1) Motor Vehicles Act, 1939 – S. 110 – A – rashness – deceased thrown off to 10 feet – driver of bus was rash.

       (2) Motor Vehicles Act, 1939 – S. 110 – A – contributory negligence – means doing of such thing which ought not to have been done.

       (3) Motor Vehicles Act, 1939 – 110 B – quantum – deceased earning Rs. 200/ – p. m. – can be supposed to help parents paring Rs 100/ – p. m.

       (4) Motor Vehicles Act, 1939 – S. 110 – B – deductions for lumpsum payment – not rule of law – not desirable.

       (5) Motor Vehicles Act, 1939 – S. 110 – CC – interest on amount of compensation – enhanced from 6% to 12% p. a.

        Short Note

       This order shall also govern the disposal of Misc. Appeal No. 265 of 1979, M. P. S. R. T. C. Corporation & Anr. v. Jayantiprakash & Ors, as both arise out of the same judgment and award dated 7 – 7 – 1979, passed by the Motor Accident Claims Tribunal, Indore, in Claim Case No. 111 of 1977.

       2. Held: The fact that the deceased was thrown off upto a distance of about 10' is itself indicative of the speed of the bus and as no attempt was made to slow down the speed while crossing the place of accident, it is held that the bus driver was rash and negligent.

       3. So far as the question of contributory negligence on the part of the deceased is concerned, the case of his sudden appearance, as pleaded by the Corporation, has not been proved. The only witness examined by the respondent Corporation is the bus driver. In view of the categorical statement made by Jayant Dube (A.W. 3) that the deceased was knocked by the bus on the katchha side of the road unfailingly points to the fact that the bus – driver was rash and negligent in driving. The deceased having crossed that road and reached the katchi – patri, it cannot be said that he was in any manner contributory to the accident. Contributory negligence is a defence at common law if the defendant proved that the plaintiff by some negligence on his part directly contributed to the injury in the sense that his negligence formed a material part of the effective cause thereof. When this is proved, the plaintiff's negligence is said to be contributory. (See Halsbury's Laws of England, 3rd. Vol. 28 P.87) Contributory negligence consists of the absence of that ordinary care which a sentient being ought reasonably to have taken for his own safety, and which had if been exercised would have enabled him to avoid the injury of which he complains, or the doing of some act which he ought not to have done and but for which the calamity would not have occurred. [See Wakelin v London & South Western Rly. (1886) 12 AC. page 41)". Thus, the apportionment of liability made by the Tribunal cannot be accepted. There being no contributory negligence on the part of the deceased, the respondents are held to be wholly liable and not to the extent of 75 % as held by the Tribunal.

       4. On the question of quantum of compensation it is to be born in mind that the deceased, a young boy aged 22 years was on the threshold of his career and drawing Rs 200/ – per month and it was just in the beginning of his service career that the fatal accident occurred. The Tribunal has found that he would have helped, his parents by sparing Rs. 50/ – per month for them as against the statement of Jayant (P.W. 1) that the deceased was sending him Rs 150/ – per month by money order, although no such receipts were produced and as pointed out by Shri Samdhani, he had joined the service as a Supervisor in the Indian Hume Pipe Company just a mouth prior to the date of the accident, he could not have remitted the money to his father. The deceased bad passed his Higher Secondary School Certificate Examination and it cannot be said that he would have remained static in salary throughout his career. This proves beyond doubt that he had an earning capacity. Although Jayant (P.W. 1), his father bas stated that he was financially helped by his son, who used to send him Rs. 150/ – by money orders, although no money – order receipt is produced. It would be fair to assume that even if he had continued as a Superviser or as a clerk, be would have helped at least by Rs. 100/ – to his parents and not sparing only Rs. 50/ – as found by the Tribunal. In such matters, as has been propounded by the Supreme Court, a liberal approach should be adopted. Thus, the financial help which the deceased would have rendered to his parents comes to Rs. 1200/ – a Year and as has been rightly found by the tribunal the life expectancy being 70 Years (in the instant case the deceased's grand father is still alive), the parents would have got this help for at least another twenty years. The total amount which should be awarded comes to Rs. 24,000/ – . As bas been held above, there was no contributory negligence on the part of the deceased, there is no question of any deduction being made on this count. Deduction to be made on account of lumpsum payment is not statutorily provided nor it is desirable in view of the falling value of money. Therefore, the deduction of 20% made by the Tribunal on this count is also liable to be set aside and i8 accordingly set abide. The rate of interest awarded by the Tribunal is 6% per annum and the same is enhanced to Rs. 12% per annum on the amount of compensation. Appeal partly allowed.