JUDGMENT
A.M. Sapre, J.
1. This Letters Patent Appeal is preferred under Clause-10 of Letters Patent by the claimants against the Judgment rendered by learned Single Judge in M.A. No. 199/1985, arising out of Claim Case No. 5/1980 decided by M.A.C.T., Mandsaur. By impugned Judgment, the learned Single Judge was pleased to partly allow the appeal preferred by the claimants (appellants herein) by enhancing the amount of compensation awarded by Tribunal from Rs. 37,000/- to Rs. 42,700/-, basing its conclusion on the plea of contributory negligence. The appellants/claimants felt dissatisfied with the enhancement awarded by the learned Single Judge, have filed this appeal.
2. Facts emerging from the record of the case and found proved in the Courts below need mention to appreciate the grievance urged by the parties to the appeal.
3. Mohammad Hussain aged about 31 years was working as Manager in one Hotel, called Janta Lodge at Neemuch. On the fateful day (29.7.1979) at about 8.30 p.m. he was coming towards Khurshid Talkies in Neemuch Town on his Motorcycle when he was crushed by the truck bearing No. R.J.R. 8281. This truck at the relevant time, was owned by respondent No. 1 and was driver by respondent No. 2. The impact of the accident was so violent that Mohammad Hussain succumbed to injuries instantly on the spot. This incident led to lodging of First Information Report with concerned Police Station by one Section Sharma (A.W. 8), pursuant to which, the case was investigated; spot map as prepared, and, then, body of deceased Mohammad Hussain was sent for post-mortem. This resulted in filing of challan against the driver, the respondent No. 2 for his prosecution under Section 304-A of the Penal Code in competent Criminal Court.
4. A claim petition out of which this appeal arises, was, then, filed under the provisions of Motor Vehicles Act by the present appellants/claimants being the legal representatives of the deceased i.e. wife and children claiming a total sum of Rs. 90,000/- under various heads which are permissible under law. This claim petition was filed against the owner, driver and the Insurance Company with whom the truck in question was insured at the relevant time. The petition was founded on the allegations that the accident occurred solely as a result of rash and negligent driving of the truck driver.
5. It was inter alia alleged that the manner in which the accident occurred resulting in an instant death of deceased virtually crushing the body clearly demonstrates that it occurred as a result of share negligence of truck driver.
6. The claim petition was contested by the respondents essentially on the ground that deceased himself was responsible for his death. According to respondents, the truck driver was not at all responsible nor he was driving the truck rashly and negligently which could be attributed for the accident. It was alleged that deceased approached the main road from the side lane without taking any precaution which led to his death. They, therefore, prayed for the dismissal of claim petition attributing negligence of deceased.
7. The learned Tribunal after appreciation the oral as also the documentary evidence returned a finding of contributory negligence. In its opinion, both truck driver as well as deceased, were equally responsible for the accident. The learned Tribunal, then, proceeded to determine the compensation to the tune of Rs. 54,000/- and since, it had held that both were equally responsible for the cause, determined the compensation at Rs. 27,000/- proportionately reducing by 50%. The learned Tribunal was further pleased to award a sum of Rs. 10,000/- for loss of consortium, love and affection to the claimants/appellants.
8. The appellants, herein, were dissatisfied with the findings of contributory negligence, as also by inadequacy of compensation awarded by the learned Tribunal, preferred an appeal to this Court. No cross-appeal or cross-objection was filed by any of the respondents questioning the correctness and legality of finding of contributory negligence in so far as it had held them liable, as also the quantum of compensation. The learned Single Judge by impugned Judgment on evaluating the evidence led by the parties, proceeded to sustain the finding of contributory negligence as also the quantum of compensation. The learned Single Judge, however, interfered with the proportion of contributory negligence, as according to him, the truck driver was more negligent, than that of deceased. He, therefore, held deceased responsible to the extent of 1/3rd, whereas, the truck driver responsible to the extent of 2/3rd. As a result of this change in the proportion of negligence, the appellants/claimants were held entitled to an enhanced compensation to the tune of Rs. 42,700/- as against Rs. 37,000/- awarded by the Tribunal. Interest at the rate of 12% p.a. was also awarded on the sum awarded from the date of claim petition till its realisation. This is how, the learned Single Judge was pleased to partly allow the appeal by modifying the award.
9. It is against this judgment, rendered by learned Single Judge, the claimants/appellants felt dissatisfied with the correctness of finding of contributory negligence and also the determination of compensation, have filed this appeal.
10. We have heard Mr. S.S. Samvatsar, learned Counsel for the appellants/claimants, Mr. Sunil Jain, learned Counsel for respondent Nos. 1 and 2 and Mr. Surjeetsingh, learned Counsel for the respondent No. 3.
11. Assailing the legality of findings recorded by the learned Single Judge, as also be the Tribunal, learned Counsel for the appellant Mr. Samvatsar argued, that on the facts found proved, no case of contributory negligence to the deceased could be attributed. He urged that even, otherwise, there was no evidence led by respondents (non-applicants) to sustain the plea of contributory negligence. He while elaborating the submissions, maintained that even according to learned Single Judge, it was held that the accident occurred due to defective brakes of the truck. He, therefore, submitted that in view of this categorical finding recorded by the learned Single Judge, a plea of contributory negligence was not sustainable and in any event on this finding, the Courts below should have held truck driver to be solely responsible for the accident. He also urged that evidence led by parties, if, examined in its correct perspective, would clearly show that no case of contributory negligence was made out at the instance of non-applicants/respondents. He further submitted, that both the Courts below should not have applied the multiplier of 15, as according to him, looking to the age of deceased, who was hardly 27 years of age, the compensation awarded was quite on a lower side.
12. Mr. Surjeetsingh, learned Counsel appearing for Insurance Company and Mr. Jain, learned Counsel, appearing for owner and driver, at the out-set, submitted, that this being a Letters Patent Appeal, this Court is precluded from examining or/and re-appreciating the oral as also documentary evidence. It was urged that only a question of law arising out of impugned judgment, can be examined to find out any error. It was, then, submitted, that finding recorded by the learned Single Judge is based on proper appreciation of evidence and hence does not call for any interference. The respondents, thus, supported the impugned judgment and prayed for dismissal of appeal.
13. Having heard the learned Counsel and having perused the entire record, we are of the considered view that this appeal deserves to be allowed. Before we embark upon the factual matrix of the case, the submissions raised by the respondents regarding scope of appellate powers must be dealt with. Indeed, this issue is no longer res-integra. The issue regarding power of a Division Bench hearing a Letters Patent Appeal under Clause-10 of Letters Patent (Patna) came up for consideration before Their Lordships of Supreme Court in a case Ashadevi v. Dukhi Sao, Their Lordships after examining the scope of Clause-10 of Letters Patent (Patna) which is analogous to Clause-10 of Letters Patent (Nagpur) held that the power of a Division Bench hearing a Letters Patent Appeal under Clause-10 from the judgment of Single Judge in first appeal, is not limited, only to a question of law under Section 100, C.P.C. but, it has the same power which the Single Judge has, as a first Appellate Court in respect of both questions of fact and law. It was further held that limitation on the power of Court imposed by Sections 100 and 101, C.P.C. cannot be made applicable to an Appellate Court, hearing a Letters Patent Appeal for the simple reason that Single Judge of High Court is not a Court subordinate to High Court. In view of this settled legal position, we have no hesitation in holding that this Court can in appropriate cases re-appreciate the evidence with a view to ascertain, whether the finding recorded by the learned Single Judge is based on correct appreciation of evidence or not.
14. This takes us to the next question, as to whether the finding attributing contributory negligence to both i.e. deceased and truck driver, is sustainable, on the evidence led by the non-applicants. Before we proceed to examine, the correctness of this finding, it is necessary to keep in mind the principles that govern the plea of contributory negligence.
15. A plea of contributory negligence is generally taken by way of defence in accident cases. Judicial decisions have evolved its pre-requisite to sustain such plea. Defence of contributory negligence means that the deceased or the plaintiff failed to take reasonable care of his own safety which was a contributory factor for his death or injury.
16. It is ruled that since defence based on contributory negligence enables the defendant to escape from his liability completely even when he was more at a fault, Courts should be slow to infer that the negligence of the deceased was a contributory factor. Courts have devised a rule of last opportunity which meant that the other party had the last opportunity to avoid the accident, resulting in injury, he should be held solely responsible for the injury inspite of the fact that the deceased was also negligent. (G.P. Singh on Law of Torts, 21st Edition-1987 page-436). This Court, speaking though G.P. Singh (as His Lordship then was) in the case of Sushtna Mitra v. M.P.S.R.T.C. AIR 1974 MP 68, while examining the plea of contributory negligence ruled that, “A defence of contributory negligence requires that the defendants must prove that the plaintiff failed to take reasonable care of his own safety which was a contributory factor to the accident which caused him damage.
17. Now keeping in mind, the aforementioned principles, we proceed to examine whether a plea of contributory negligence was successfully made-out on facts by the non-applicants/respondents. Sajansingh (A.W. 5) Head Constable’s evidence need mention. He had prepared the Inspection Report of the vehicle Ex. P16-C, immediately after the incident had taken place. This report in clear terms recites that brake system of the truck were not in order and were found defective. Sajansingh had also inspected the truck. He, in his statement, in clear terms admitted that the truck could not have been stopped by putting one pump on the brakes and that the brakes were found to be defective. Yet, another important witness to the accident is Subhash Sharma (A.W. 8). He deposed that he was sitting in the office of his lawyer Shri Jadhav, just near the window, when, he saw one truck coming with very high speed on the square and crushed one motor cyclist. He deposed that the speed of truck was so high that it did not stop but after crushing the cyclist, dashed with electric pole. He further deposed that on seeing this incident, he rushed to the spot and, then, made a report to police immediately.
18. Careful reading of aforesaid two statements of witnesses, the report Ex. P16-C and the road map completely falsify the plea of contributory negligence setup by the non-applicants. It was, in our considered opinion, a clear case of share negligence on the part of truck driver who did not take a reasonable care in keeping his vehicle in fit condition before it was put to use on public road. It was share negligence of truck driver in driving the vehicle. A plea of contributory negligence cannot be examined at the instance of a person who himself is at fault. Being the owner of vehicle, which was meant to be used on public road, it was the duty of the owner as also of the driver to ensure that the vehicle (truck) was in fit condition to be used on public roads. Reasonable care not only applies while driving the vehicle but it equally applies in ensuring the fitness of the vehicle before it is put to use on roads. When it was found by the learned Single Judge that the vehicle belonging to non-applicants itself was not in a fit condition to ply because of defective brakes, we fail to appreciate as to how the deceased could be held negligent in driving his motor-cycle. In the facts emerging from the evidence, it is difficult for us to hold that non-applicants were able to make out a case of contributory negligence of deceased. We are inclined to accept the testimony of Subhash Sharma (A.W. 8), the only eyewitness to the incident, when, he deposed about the speed of truck. The manner in which the truck went out of control of driver and actually dashed to electric pole unmistakably draws an inference that the accident was due to shere negligence of driver, who was driving the truck with excessive speed knowing fully well the defects in brakes–it being the most vital part of the vehicle. We are, therefore, of the considered view that both the Courts below were not justified in entertaining the plea of contributory negligence. We, therefore, set-aside the finding of contributory negligence.
19. The next submission of appellants regarding awarding of less compensation by applying the multiplier of 15 has no substance. In our opinion, the multiplier of 15 appears just and proper in the facts of this case. We, therefore, uphold the finding regarding grant of compensation by applying the multiplier of 15.
20. We, therefore, set-aside the impugned Judgment in so far as it deals with the findings of contributory negligence and allow the appeal with costs. As a consequence the appellants/claimants are held entitled for the entire amount awarded to them by the learned Tribunal i.e. a sum of Rs. 54,000/- together with interest @ 12% from the date of application till realisation. Since the vehicle was insured with respondent No. 3 and hence the Insurance Company will be liable to pay the sum awarded by us. We direct the Insurance Company to deposit the entire sum as awarded within a period of six months in the Court below after adjusting the amount if already paid to the appellants. In case, the amount as awarded is not deposited within the time mentioned above, the awarded sum i.e. Rs. 54,000/- would carry 18% interest from the date of application till it is deposited in Court. Counsel fees Rs. 1,000/- if, certified.