JUDGMENT
A.L. Dave, J.
1. These two appeals arise out of a judgment and order rendered by Motor Accident Claims Tribunal (Aux.), Fast Track Court No. 2, Ahmedabad in Motor Accident Claims Petition No. 449 of 2002 on 29.12.2006.
1.1. The said claim petition was preferred by the heirs and legal representatives of one Gunvantbhai Natvarlal Thakkar who met with a vehicular accident on 3.4.2002 at about 8.00 p.m., near Sophia College Bus Stand on Peddar Road at Mumbai. The claimants are the widow, two minor children and the parents of deceased Gunvantbhai. As the accident involved two buses owned by Brihad Mumbai Electric Supply & Transport Undertaking, the claim was preferred against the said organization. For the sake of convenience, the original applicants – claimants are addressed to as the claimants and the original opponent is addressed to as BEST.
1.2. As per the case of the claimants, the deceased was working in the office of Registrar of Companies at Mumbai as Assistant Registrar of Companies. On 3.4.2002, deceased Gunvantbhai was passing as a pedestrian near Sophia College bus stand on Peddar Road at Mumbai from rear of a bus which was standing at the bus stand. He was crushed between two buses because of rolling back of the bus. He was taken to hospital in Mumbai by the conductor of the bus but he succumbed to the same. The deceased was aged 42 years at the time of the accident and was drawing a salary of Rs. 15,100/-. The claimants were staying at Ahmedabad and were being maintained by the deceased. Claimant No. 1 Neetaben was aged 38 at the time of accident and claimant Nos.2 and 3 were aged 16 and 12 respectively. Claimant Nos.4 and 5 were aged 65 and 62 respectively. The claimants claimed the compensation of Rs. 40 lacs before the Tribunal alleging that the accident occurred because of negligence on part of the driver of the bus which resulted into death of the deceased. The Tribunal, however, after considering the evidence on record came to a conclusion that the deceased himself was also responsible to some extent for the accident and assessed his contribution to the cause of accident to the extent of 20% and attributed 80% negligence to the driver of the bus and held BEST liable to pay compensation accordingly. The Tribunal awarded compensation of Rs. 20,45,780/- with proportionate costs and interest @ 6% p.a.
2. First Appeal No. 4494 of 2007 is preferred by the original claimants claiming enhancement of the award and are represented by learned advocate Mr.Hiren M Modi whereas First Appeal No. 5120 of 2007 is preferred by BEST and is represented by Mr.Vibhuti Nanavati. We have heard rival side advocates and have also examined R & P in context of their submissions.
3. Learned advocate Mr. Modi submitted that the claimants challenge the award of the Tribunal as being conservative. He submitted that not only in computation of compensation but the Tribunal has erred in attributing 20% negligence to the deceased.
3.1. Mr. Modi submitted that the deceased was trying to cross the road when the buses were parked on the bus stand and he was passing between the two buses. At that point of time, the bus parked in front suddenly rolled back and crushed the deceased between the rear of front bus and front of the rear bus resulting into fatal injuries. The driver of the bus ought to have taken care either before taking the bus in reverse or ought to have stopped the bus immediately the moment it rolled back. The pedestrian could not have anticipated the bus to come backward and, therefore, no negligence could have been attributed to the deceased who was a pedestrian. It was submitted that the gap between the two buses was 4 – 4 1/2 ft., and when the deceased got crushed between the buses, an inference can be drawn that the bus must have rolled back and the driver of the bus is not indicated to have taken any precaution to avoid collision between the buses and to rule out the possibility of such mishap.
3.2. On quantum, Mr. Modi submitted that the Tribunal has awarded the compensation by assessing the income of the deceased at Rs. 11,600/- which in no event, the Tribunal could have assessed for the reason that last salary slip of the deceased indicates gross salary of the deceased to be Rs. 15,100/-, the deductions of Rs. 2390/- and net salary of Rs. 12710/-. The Tribunal has only considered the Basic pay and D.A., as the income of the deceased. Mr. Modi, therefore, submitted that the appeal by the claimants may be allowed and award be enhanced appropriately.
4. On the other hand, learned advocate Mr. Nanavati appearing for BEST submitted that the Tribunal has committed an error in fixing the liability of the driver of the bus at 80%. In fact, the claimants have not joined drivers of either of the buses as respondent and drivers, therefore, did not have any opportunity to oppose the claim and to indicate that there was no negligence on their part. Mr. Nanavati relied on the decisions in the case of Minu B. Mehta and Anr. v. Balkrishna Ramchandra Nayan and Anr. , Oriental Insurance Co. Ltd. v. Meena Variyal and Ors. .
4.1. Mr. Nanavati submitted further that even if non-joining of driver is considered as non-fatal to the claimants’ case, the Tribunal ought not to have held the driver of the bus responsible to the extent of 80%. for the accident. According to Mr. Nanavati, the accident occurred because the bus in the front rolled back. At that point of time, the deceased was just behind the bus and the driver could not have seen the deceased standing behind the bus. Mr. Nanavati submitted that admittedly, the deceased was trying to cross the road when the accident occurred. At that place, there is no zebra crossing and the driver of the bus could not have anticipated the presence of any pedestrian behind the bus. Therefore, if at all the driver of the bus is responsible for the accident, its liability could not have been fixed for more than 50%. Mr. Nanavati submitted further that the accident has occurred on the bus stand and the deceased ought not to have hurried into crossing the road by passing between two buses standing at the bus stand. He ought to have let the buses pass and then attempted to cross the road. Mr.Nanavati submitted that negligence has to be pleaded and established and it cannot be presumed. In the instant case, in absence of the drivers, such inference could not have been drawn by the Tribunal.
4.2. As regards quantum, Mr. Nanavati submitted that there is no evidence as to the post on which the deceased was working nor is there evidence to show what were the prospects of the deceased in the job. He also submitted that it has come in evidence that claimant No. 1 as widow of the deceased is getting pension and was also given appointment on compassionate ground and was drawing salary. All these factors ought to have been considered by the Tribunal while awarding compensation. Mr. Nanavati also submitted that the Tribunal has adopted a multiplier of 14 which is on higher side.
4.3. Mr. Nanavati submitted that the Tribunal has awarded compensation of Rs. 5,48,426/- towards actual medical expenditure whereas claimant No. 1 in her cross-examination admitted that the medical expenditure was to the tune of Rs. 4,50,000/-. Mr.Nanavati, therefore, submitted that having regard to all these aspects, the award of the Tribunal is on higher side and may appropriately be pruned down.
5. Mr. Modi in rejoinder submitted that the compassionate appointment given to claimant No. 1 is only temporary and is for a fixed pay and in fact, she is now out of job. He also submitted that the pension that is received by claimant No. 1 is an amount which she otherwise would have received even if the deceased had met with a natural death or had expired after superannuation and the respondent cannot benefit out of it. Mr. Modi submitted that the multiplier is adopted by the Tribunal appropriate if the second schedule of the Motor Vehicles Act is taken into consideration. Mr. Modi submitted that so far as compensation under the head of medical expenditure is concerned, it is awarded on the basis of medical bills produced on the record and duly exhibited at Exh.48. The admission on part of the claimant No. 1 during cross-examination may be only a slip and, therefore, the Tribunal is justified in awarding compensation of Rs. 5,48,426/- which is as per medical bills.
6. We have taken into consideration rival side submissions. We have also examined R & P.
7. What emerges from the record is an undisputed fact that the deceased got crushed between two buses owned by BEST on 3.4.2002 at about 8.00 p.m., near Sophia College, Peddar Road at Mumbai and that he succumbed to the injuries on 23.4.2002. It is not in dispute that there is an upward slope of the road at the bus stand. It is also not in dispute that at the place where the incident occurred, there is no zebra crossing. With this background, if the evidence is examined, we find that the driver of the rear bus is examined by BEST at Exh.168 and he says that the bus was standing at the Sophia College bus stand. He took his bus and stopped it behind that bus keeping gap of about 4-4 1/2 ft. That a passenger got down from his bus i.e., the rear bus and came in front of his bus and stopped on the road in front right corner as he could not go further to cross the road because of traffic. The bus in the front suddenly came backwards and dashed against his bus and the person who had got down from his bus and was standing in front of his bus got crushed between the two buses. That passenger was deceased Gunvantbhai. The conductor of the front bus took the deceased to the hospital. This almost matches the case of the claimants that the deceased got crushed between the two buses when the bus in the front came backwards. The driver of the bus which came backward has not been examined though his statement before the police produced on record but not exhibited and cannot be looked into.
7.1. The fact remains that the deceased was trying to cross the road by passing through the narrow passage between the two buses standing at the bus stand and in the process, the bus in the front came backwards and the accident occurred. There is no other evidence to show as to why and how the bus came backwards. The evidence to show exact location of the deceased at the time when he got between the two buses is in form of a map Exh.38 which shows the place of incident at a distance of 6 ft., from the footpath. The width of the bus would be approximately 8 ft. The bus could not have been parked touching the edge of the footpath and can reasonably be expected to have parked at a distance of 2 ft., from the footpath. This would bring location of the deceased in the centre of the width of the buses.
7.2. In the above factual situation, it can be accepted, as contended by learned advocate Mr. Nanavati, that the driver of the front bus could not have seen the deceased standing behind the bus or passing by the bus from rear portion. The fact remains that the accident occurred because the bus came backwards. If the bus was taken in reverse, it was the duty of the driver to have verified that there was no one behind the bus. It was also the duty of the driver of the bus to keep some distance between rear end of his bus and front of the rear bus. Had that been done, probably, deceased would not have got crushed. If the bus was not taken in reverse but rolled back because of slope, then it was the duty of the driver of the front bus to immediately apply the brakes and stop the bus from rolling back so that collision with the bus standing behind could have been avoided. There also the driver has failed to stop the bus and factually two buses collided with each other and the deceased got crushed between the two. Admittedly, the gap between the two buses was 4 – 4 1/2 ft., and collision between the buses must have occurred after the front bus came backward by that distance. As discussed earlier, the deceased was in the centre of the bus and probably had no chance to escape either by running forward or by going backward. Examining third possibility which is canvassed by the driver of the rear bus in his deposition that the deceased was standing on the right front corner of the bus when the front bus came backward and the accident occurred, we do not find the same to be acceptable in light of Exh.38 – map and secondly if that was so, the deceased would not have got crushed. It is also to be noted that if the deceased was standing at that location, the driver of the front bus could have seen him from the rear view mirror and if still the accident has occurred, the liability of the driver of the bus would still be greater. We may, even at the cost of repetition, state the driver of the front bus has not been examined by BEST to explain the backward movement of the bus and resultant accident. The arguments by Mr. Nanavati are merely arguments – not supported by evidence.
7.3. It has also to be noted that Peddar Road in Mumbai is one of major roads with heavy traffic and the deceased ought not to have taken a chance of trying to rush across the road by taking a narrow passage between the two buses when they were at the bus stop for brief hault and could have started any moment. Even other traffic could not have anticipated emerging of the deceased from between two buses. There was absence of an authentic zebra crossing. The deceased ought to have waited at least till the buses left the bus stand and there was clear view available to him to check up if there was vehicle coming while crossing the road. The deceased too, therefore, has violated the rules of road safety and has acted in a negligent manner.
7.4. So far as the apportionment of negligence is concerned, in light of foregoing discussion, we are of the view that the Tribunal cannot be said to have committed any error but has assessed the negligence judicially. We may state that there cannot be golden scale to assess the negligence in such cases but fact remains that the driver of the bus was in charge of a large vehicle being plied on a major road of the city with heavy traffic both vehicular and pedestrian. He failed in ensuring that there is no one behind the bus if he was taking the bus in reverse. He also failed to stop the bus maintaining a safe distance from the bus standing at the rear. Had he taken these precautions, the accident would not have occurred. The driver of the bus owes greater duty of care not only because he is in charge of a larger vehicle, but because he carries number of lives in his vehicle and the vehicle is so big that it may cost lives of number of people even out side the bus and, therefore, in our view the Tribunal was justified in attributing negligence in the ratio of 80% to the driver of the bus and 20% to the deceased.
8. One more point that is raised by learned advocate for the BEST is that driver was not made a party to the claim petition before the Tribunal. In this regard, we may note that the undisputed facts are that the bus was being driven by an employee of BEST. The ownership of the bus is not disputed by BEST and both the buses are of the ownership of BEST. The manner in which the accident has occurred is also not in dispute. In fact, the driver of the rear bus who has seen the incident has deposed before the Tribunal and tried to explain how the accident occurred. BEST could have examined the driver of the front bus because of whose lapse the accident occurred. He would have been the best person to explain how and why the accident occurred, what steps did he take to avoid accident and why it could not be avoided, but this is not done. When occurrence is not in dispute, when employer-employee relationship is not in dispute and the manner in which the accident occurred is also not in dispute, no prejudice can be said to have been caused to BEST by non-joinder of driver of the bus as opponent before the Tribunal. In this set of circumstances, we are of the view that non-joining of the driver of bus in the claim petition as party opponent would not be fatal to the claimants’ claim. We may add that in the written statement filed by BEST, no plea regarding non-joinder of necessary party is taken.
9. Now, coming to the quantum aspect, we may state that one Mr. Mistry from the office of Registrar of Companies at Mumbai was summoned as a witness and he has produced documents with list Exh.52 which range from Exh.143 to 151. These documents include salary slip of the deceased Gunwantbhai Thakkar Exh.143/B, Form No. 18 Exh.144, Exh.145 to show that he was working as Assistant Registrar of Companies, Exh.147 to show that he joined as Technical Assistant at Mumbai in 1991, Exh.149 to show that he got promotion with effect from 9.9.1999 as Assistant Registrar of Companies and Exh.164 to show that his date of birth is 3.6.1960. There are several other documents produced relating to family pension, last pay certificate, appointment and posting letters etc.
9.1. These documents go to show that the deceased was formerly working with Small Savings Organization at Gujarat and then got into the office of the Registrar of Companies at Mumbai in 1991. He was officiating the post and was in regular pay scale. He also got promotion in the year 1999. These factors would show that he had a permanent employment and has reasonably good prospects of at least a rise in income.
10. The salary slip Exh.143/B would go to show that his gross salary was Rs. 15100/- comprising of basic pay, dearness allowance, house rent allowance, city compensatory allowance and travel allowance. He contributed Rs. 2000/- per month to Provident Fund, Rs. 70/- towards CGHAS, Rs. 120/- towards CGEGIS and Rs. 200/- towards professional tax. The Tribunal while computing the dependency loss has totalled up the basic pay and dearness allowance and has neglected house rent allowance, city compensatory allowance, travel allowance etc. which in our view was an error on the part of the Tribunal. (See National Insu.Co.Ltd. v. Indira Srivastava and Ors. ). These allowances ultimately added to the benefit of the family. If these allowances were not given to the deceased, he would have been required to spend more on this and, therefore, the same could not have been ignored by the Tribunal while assessing the income of the deceased. In our view, therefore, the income of the deceased at the time of accident has to be assessed at Rs. 15100/-. The deductions made therefrom are more or less in the nature of savings or contribution to insurance except professional tax of Rs. 200/- per month which is not required to be deducted from the income and the same would be taken care of when the deduction is made under the head of expenditure on self while computing the dependency loss.
11. A point which is raised by learned advocate Mr. Nanavati appearing for BEST is that admittedly, the deceased was working at Mumbai and the claimants were staying at Ahmedabad. The deceased was, therefore, running two establishments. He would be required to spend more on self and the deduction, therefore, under the head of expenditure on self may be on a higher side.
11.1. We find some persuasive force in the argument advanced by learned advocate Mr. Nanavati but we may state that this plea is not taken before the Tribunal and is being taken for the first time before us. Apart from that, there is no cross examination of the claimants on this aspect. We may also note that net take home salary of the deceased was Rs. 12710/- and he had two minor children and a wife to support. In absence of any specific material before us, we would be required to apply Rule of Thumb and that would take care of the situation when we deduct 1/3rd from the prospective income of the deceased. We are, therefore, not in favour of accepting the plea of Mr. Nanavati and we turn it down.
11.2. Coming back to the question of quantum of compensation under the head of dependency loss, the evidence Exh.143/B shows that the income of the deceased was Rs. 15100/- per month. He had reasonably good prospects in life and, therefore, if the usual principle of adding double the amount to the said amount and dividing it by two is applied, the prospective income of the deceased would be Rs. 22,650/-. (Rs.15100/- + Rs. 30,200/- = Rs. 45,300/2 = Rs. 22,650/-). Applying Rule of Thumb, if 1/3rd of the said amount i.e. Rs. 7550/- is deducted out of it, the dependency loss would be Rs. 15100/- to the family per month and annual dependency loss would be Rs. 1,81,200/-.
11.3. The age of the deceased, though claimed to be 40 years, in fact, it is found to be 42 years (he was born on 3.6.1960 and expired on 23.4.2002). He was, therefore, aged 42 at the time of accident or death. The Tribunal has adopted multiplier of 14 which in our view is on a higher side keeping in light the decision in case of Tamilnadu State Road Transport Corporation v. S. Rajapriya and Ors. . In our view, a multiplier of 12 would be just to be adopted. This would fetch an amount of Rs. 21,74,400/- as compensation under the head of dependency loss. Added to this would be Rs. 5,48,426/- as compensation under the head of medical expenditure.
11.3.1. Here a point is raised that claimant No. 1 has admitted that medical expenditure was Rs. 4.50 lacs. In our view, it seems to be a bona fide mistake on part of the claimant as actual bills to the tune of Rs. 5,48,426/- have been produced and exhibited. We are, therefore, not able to accept this contention.
11.4. The claimants would further be entitled to a compensation of Rs. 20,000/- as expectation of life, Rs. 15,000/- towards loss of consortium, Rs. 20,000/- towards pain, shock and suffering and Rs. 5,000/- for special diet, transportation as awarded by the Tribunal. The Tribunal has not awarded any amount for funeral and obsequies ceremonies. In our view, an amount of Rs. 5,000/- if awarded under that head, the ends of justice would be met. The claimants, therefore, would be entitled to total compensation of Rs. 27,87,826/- computed as under:
Rs. 21,74,400/- Dependency Loss Rs. 5,48,426/- For medical expenses Rs. 20,000/- For loss of expectation of life Rs. 15,000/- For loss of consortium Rs. 20,000/- For pain, shock and suffering Rs. 5,000/- For special diet and transportation etc. Rs. 5,000/- For funeral and obsequies ceremonies Rs. 27,87,826/- Total 12. As discussed earlier, in this judgment, the deceased himself is held to be responsible to the extent of 20% for the accident. An amount of Rs. 5,57,565/- will have to be deducted from the said amount of compensation and the claimants, therefore, would be entitled to a compensation of Rs. 22,30,260.80 ps., which can be rounded off to Rs. 22,30,261/- as against Rs. 20,45,780/- awarded by the Tribunal. 12.1. The claimants would be entitled to proportionate costs on the above amount. 12.2. The claimants would also be entitled to interest on the said amount. The Tribunal has awarded interest @ 6% p.a.
12.2.1. Learned advocate for the claimants submitted that interest may be awarded at a higher rate considering the current bank rate. Award of interest is a matter of discretion and unless it is found to have been used either arbitrarily or in a perverse manner, an Appellate Court would be slow in interfering with the same. The grant of interest will have a bearing on the income that the claimants would get from the corpus of compensation and, therefore, the request by the claimants to enhance the rate of interest is not required to be accepted. The claimants, therefore, would be entitled to compensation of Rs. 22,30,261/- with proportionate costs and interest @6% p.a., from the date of the application till realization and BEST would be entitled to credit for the amount that may have been deposited during the pendency of the appeal. Rs. 25,000/- deposited with the Registry of this Court be transmitted to the Tribunal forthwith. The disbursement of compensation would be in the same ratio as directed by the Tribunal in the judgment impugned. Awards accordingly.
13. Both the appeals thus stand partly allowed.