JUDGMENT
P.N. Khanna, J.
(1) Appeal under Clause 10 of the Letters Patent is directed against the judgment and decree dated February 8, 1966 of S. B. Capoor, J., who allowed the appeal of respondents Nos. 1 to 3 against the order dated March 2, 1964 of the Motor Accident Claims Tribunal and setting aside the same, decreed against the appellant and respondent No. 4 and 5 the said respondents claim in the sum of Rs. 48,804.00 as against their original claim for Rs. 66,000.00 with proportionate costs throughout. Respondent No. 1 is the husband, while respondents Nos. 2 and 3 are the children of Smt. D. Bhandari, who died as a result of injuries sustained by her in a fatal accident which took place on January 16, 1962 at about 6.00 p.m. on Faiz Bazar Road (Netaji Subhas Marg), Darya Ganj, Delhi.
(2) The deceased was 36 years of age at the time of her death, her date of birth being September 25, 1925. She was a Graduate and was employed as a teacher in a recognised Government aided School, viz. Rai Kidar Nath Jajja Wati Memorial Girls Higher Secondary School (Desh Bandhu Gupta Road) Karol Bagh New Delhi. Besides her teaching duties, she used to take part in various extra curricular activities, such as Girls Guide, (Auxiliary Cadet Corps, and Red Cross. On the fateful evening the deceased had gone to collect Girl Guides equipment from the Bharat Scouts and Guides H.Q. situated on Ansari Road. On her way back home. she came to the Darya Ganj bus stand where bus No. Dlp 658 (herein referred to as ‘stationary bus’) had already halted and bus No. Dlp 133 (herein referred to as ‘the offending bus’) also stopped five to six feet behind it. The deceased boarded the offending bus and was still on its foot-board when it was started. Unmindful of the insufficient space for its clearance ahead the driver tried to pass along the stationary bus, when the foot board of the offending bus struck against the hind portion of the stationary bus and the deceased was caught up and sandwitched between the two buses as a result of which she received serious grievous injuries and was thrown on the road. Her pelvis and vagina were torn. She was rushed to the Irwin Hospital in a precarious condition, were she succumbed to her injuries within about two hours. This accident is stated to have occurred on account of the negligence and rashness on the part of the driver and conductor responds 4 and 5 respectively of the offending bus, which was owned by the appellant.
(3) Respondents Nos. 1 to 3 filed a petition under section 110A of the Motor Vehicles Act claiming compensation from the appellant and respondent No. 4 (the driver) and respondent No. 5 (the conductor) on the allegation that the accident resulting in the death of Mrs. Bhandari was caused by the recklessness and rashness on the part of the respondents Nos. 4 and 5, who were the employees of the appellant. It was prayed that a sum of Rs. 66,000.00 be awarded as compensation. This claim was resisted by the appellant and the two respondents Nos. 4 and 5, who alleged that the accident was not caused due to any negligence or carelessness on their part but was the result of the negligence on the part of the deceased herself, who attempted to board the bus while it was in motion. The bus, said the appellant and respondents Nos. 4 and 5 was overloaded, and the deceased was not able to make her way in and was standing on the foot-board leaving major portion of her body outside the bus. She was struck against the stationary bus and sustained the’ fatal injuries. Contributory negligence on the part of the deceased was alleged.
(4) The learned Motor Accidents Claims Tribunal found that the proximate cause of the accident was negligence of the deceased herself. The deceased at the time of her death was getting -Rs. 246.32 in the scale of Rs. 160-8-300, but her basic salary at that time was Rs. 184.00. With the health that the deceased possessed, the Tribunal was of the opinion, her life span was cut by about 12 years. After calculations on the basis of her earnings less her personal expenses, he came to a figure of Rs. 25,920.00 as the amount of compensation which could have been awarded to respondents Nos. 1 to 3 had they been found entitled to it. But, due to the contributory negligence of the deceased, herself, he dismissed the petition, without any order as to costs. Being aggrieved by this, order, respondents Nos. 1 to 3 filed a first appeal in the Circuit Bench of the Punjab High Court Delhi, (FAO 144-D of 1964). S. B. Capoor J., who heard the appeal came to the conclusion that the recklessness and negligence of the conductor as well as the driver of the offending bus was proved. He, therefore, reversed the finding of the Tribunal and held that Mrs. Bhandari died of the accident caused by the rashness and negligence of respondents Nos. 4 and 5, the employees of the appellant, and that there was no contributory negligence of the deceased. On the question of damages, the learned Judge was of the opinion that the deceased would have lived up to the age of 55 years. Her span of life was, thus, cut short by about 19 years. He calculated her total earnings during this period at Rs. 64,764.00. Deducting a sum of Rs. 15,960.00 for her personal expenses during the said period, he concluded that the balance of Rs. 48,804.00 was the financial benefit which would have accrued to her husband and children if she had continued to live and earn normally. He. therefore, allowed the appeal, set aside the order of the Motor Accidents Claims Tribunal and decreed the claim of respondents Nos. 1 to 3 for Rs. 48,804.00. The Mumicipal Corporation of Delhi, through the General Manager, Delhi Transport Undertaking, has come up in appeal against the said judgment and decree of the learned single Judge.
(5) The contentions urged by Mr. S. N. Chopra, the learned counsel for the appellant-Corporatioin, are twofold: (i) the death of Mrs. B. Bhandari was not caused by the rash and negligent act of the driver or the conductor of the offending bus. It was, on the other hand, the result of the contributory negligence on the part of the deceased herself, and (ii) the amount of compemsation assessed by the learned single Judge was excessive. In support of his first contention, Mr. Chopra pointed out that the only evidence on which the learned single Judge has based his judgment was the statement of AW7, Kanwal Kishore, who was an eye witness of the accident. The learned counsel did not dispute that he was a disinterested witness. He, however, submitted that the statement of this witness did not show that the accident was caused by any rash or negligent act of the driver or the conductor The witness stated that at about 6.00 p.m. he was at the bus stop of route No. 9 in Darya Ganj. The stationary bus came first and halted at the stop. There was a rush of passengers to get into that bus. Then came the offending bus and stopped five to six feet behind the stationary bus. Some passengers got into the offending bus and the last to get in was the deceased. She was actually on the foot-board when the conductor gave the bell. No portion of her body was outside the bus. The driver drove the bus so recklessly that its left part collided with the right hind part of the stationary bus, which was standing in front. The deceased was still on the footboard when the accident took place and was sandwitched in between the two buses and fell down. The offending bus stopped at a distance of 14 to 15 paces from the scene of the accident. The victim was taken in a car to the Hospital where the witness also accompanied. He came back along with the police who recorded his statement about half an. hour after the accident. The statement made before the Tribunal by this witness tallies with the said statement, which was the basis of the First Information Report.
(6) Mr. Chopra contended that the version of AW7 Kanwal Kishore to the effect that no part of the body of the deceased was outside the bus at the time o>f the accident cannot be believed as in that case, she would not have been hit by the other bus and received the injuries. The statement of the witness to the effect that the lady was standing on the second step when the conductor rang the bell for the bus to move is unbelievable as then she would have been safe inside the bus, and the impact would not have affected her. The learned counsel argued that the injuries to the deceased in themselves are proof positive of the fact that some part of the body of the deceased was hanging outside the offending bus at the time of the accident. This could have happened, according to him, only if the deceased had boarded the bus while it was in motion or having boarded. she took the hazard of keeping a portion of her body outside. In both eventualities, the deceased was guilty of negligence or contributory negligence for which the driver and the conductor could not be held liable. The learned counsel, therefore, submitted that the learned single Judge was in error when he held that Mrs. Bhandari died of the accident caused by the rashness and negligence of the driver and the conductor.
(7) The crucial question that arises for determination in the circumstances of this case is whether the offending bus was stationary when Mrs. Bhandari boarded it. The statement of the witnesses for the appellant, viz. Rw 1 Jug Lal, RW2 Kallu Ram, and RW3 Jaipal Singh, cannot be accepted. RW3 Jaipal Singh was the conductor of the offending bus at the time of the accident. His statement in the criminal trial under section 342 of the Code of Criminal Procedure is entirely different from the statement before the Tribunal. At the criminal trial his defense was that no passenger had offered to get down at the Darya Ganj bus stop. The offending bus, therefore, did not stop at all at that stand. The deceased, according to Jaipal Singh’s statement at the criminal trial, got into the bus while it was in motion and was trying to pass the stationary bus. Before the Tribunal, he changed his stand altogether and stated that the offending bus did halt at the Darya Ganj bus stop and discharged a few passengers. After three or four passengers had been. taken in he rang the bell and the bus got into motion. While it had moved four to five paces, the deceased tried to board the bus and came on to the foot-board with her body still hanging outside. He rang the bell for stopping it, but the vehicle continued to move, as a result of which the body of the deceased hanging outside the bus struck against the right hind corner of the stationary bus and she fell down. The two buses, according to him, did not collide. When confronted by his aforesaid earlier statement at the criminal trial, he was unable to explain the discrepancies. The statement of the conductor that the bus had already moved four or five paces when the lady tried to board the bus is otherwise hardly believable, in view of the fact that the deceased who was holding ‘a bagfull of uniforms for the children. would not have normally run after the bus to board it when it had got into motion. RW3 Jaipal Singh. however, stated that lie could not say if the buses collided with eacl- other but he did hear the “sound”. Jug Lal and Kallu Ram were not summoned witnesses and had not appeared at the criminal trial. They made their statements for the first time before the Tribunal nearly two years after the accident. They were unable, to say what clothes Salwar Kameez or sari, the deceased was wearing at the time of title accident. One of them, viz. Rwi Jug Lal, stated that some people who had collected at the time of the accident said that it was the fault of the driver, although some people, according to him, said that it was the fault of the lady. Their statements are so unconvincing that the observations of the learned single Judge that the statements of these three witnesses cannot be relief upon, is unassailable. AW7 Kanwal Kishore then is the only eye witness. whose statement is available for examination. He is a student and has no relationship or other connection with the heirs of the deceased. His statement forming the basis of the First Information Report tallies so much with his statement before the Tribunal that it inspires confidence. Nothing has been shown to cast any doubt that he did not see the accident. His statement was recorded for .the first time hardly half an hour after the accident. He is positive that the unfortunate lady had boarded the bus before the conductor. rang the bell. And there is nothing to disbelieve his disinterested testimony.
(8) According to the statement of AW7 Kanwal Kishore, which is not contradicted by RW3 Jaipal Singh, the conductor, the bus at that time had only 10 or 15 passengers inside, while a number of the remaining seats was lying vacant. The fact that the lady was caught up in the accident, before she could move away from the foot-board and gain a safe position, shows that the bus was started immediately after the lady had gone on to the footboard. The conductor had given the signal bell suddenly without caring for the consequences. Insimilar circumstances a Division Bench of this court consisting of I. D. Dua C.J., as he then was, and Tatachari J. in Ishwari Devi v. Union of India, 1968 Acj 1410. observed: “when the conductor saw that the deceased, Shamlal, was boarding the bus and was yet on the foot-board, he should not have given the bell for the starting of the bus, but should have waited till Shamlal got inside the bus. To have given the bell and thus signalled the driver to start the bus, is nothing but rashness and negligence on the part of the conductor.” In that case there was no collision of the two buses. although the offending bus had been driven very close to the stationary bus. The driver was still held guilty of negligence and rashness. In the instant case, apart from what the conductor did, the conduct of the driver is wholly indefensible, when it is seen that the offending bus actually banged into the stationary bus; and inspite of this the driver dragged on the bus rubbing and scratching past the stationary bus and came to a stop only some paces ahead of the stationary bus.
(9) The offending bus was hardly five to six feet behind the stationary bus thereby leaving insufficient clearance to enable it to move on in order to pass along the stationary bus. This fact is further borne out by the impact between the two buses. The two sub inspectors of Police, AW2 Sarup Singh, Sub-Inspector, Accident Squad, and AW9 Kabul Singh, Sub-Inspector, Police, Station Kotwali, have stated that the damage on the stationary bus consisted of denting of its right rear corner about two feet above the lower edge and scratching of the right end of the bumper and right side rear corner. They also found several scratch marks on the left rear portion of the body of the offending bus, near the entrance gate, five inches below the rear window glass. AW2 Sarup Singh also stated that the dent and scratches were fresh, i.e. of 24 hours duration, when he inspected the vehicle on January 17, 1962. The two buses had. thus, collided, proving beyond doubt that there was insufficient clearance for the offending bus to move. The driver neither waited for the stationary bus to move on nor did he back his own bus a little to create sufficient clearance ahead of him to move on safely, in order to pass across the stationary bus. He not having done so and having suddenly started the bus, took a great risk unmindful of the consequences and his action was clearly rash, reckless and negligent.
(10) The question whether any part of the body of the deceased was still outside the bus or not is not of much significance as it has been established that the lady had stepped on to the foot-board when the bus had not yet moved and was offering to accept passengers. The direct cause of the accident and of the involvement of the deceased therein, was the grossly negligent and act of the driver in starting the bus while there was insufficient clearance ahead, for the bus to move. The lady was thrown off the bus when the driver unmindful of the consequences attempted to negotiate through the narrow clearance and banged the bus to the rear corner of the stationary bus. He did not stop even at that; but continued proceeding while the two buses kept rubbing and scratching each other; and this inspite of a signal bell to stop from the conductor, if we take the statement of the conductor to that effect to be correct. The whole thing appears to have happened in a matter of seconds from the time the lady stepped into the bus to the time when she was caught up in the accident. The conductor and the driver completely failed to exercise due, proper and normal care which a reasonable person would have taken to prevent the unfortunate accident. In fact, they knowingly rail a great risk in doing acts with complete indifference as to consequences. The learned single Judge, under these circumstances, was right in reversing the finding of the Tribunal on issues Nos. 2 and 4 and holding that Mrs. Bhandari died of the accident caused by the negligent conduct and rashness of the driver and the conductor of the offending bus belonging to the appellant and that the deceased was not liable for any contributory negligence.
(11) On the question of compensation, Mr. Chopra was unable to find fault with the finding of the learned single Judge that the deceased at the time of her death was drawing a basic salary of Rs.184.00 per mensem and her total emoluments were Rs. 246.32, in the scale of Rs. 160-8-265/EB-280-10-300, out of which Rs. 15.33 were deducted towards her provident fund to which an equal amount was being contributed by the school. The finding of the learned single Judge that the deceased possessed robust health and was expected to live up to the age of 55 years is also not un- reasonable. Her span of life was thus cut by about 19 years. She would, in the ordinary course, have earned an increment of Rs. 8.00 per year at least up to the efficiency bar of Rs. 265.00. The calculations by the learned single Judge to the effect that her total salary including the increments for this period would be Rs. 64,764.00 were not in dispute. The learned counsel contended that sufficient amount should have been deducted for her personal expenses. The deduction of Rs. 15,960.00 at the rate of Rs. 70.00 per month for 19 years towards personal expenses made by the learned single Judge, we are of the opinion, is not unreasonable. The balance amount of Rs. 48,804.00 has, therefore, been correctly assessed by the learned single Judge.
(12) Mr. S. N. Chopra, the learned counsel for the appellant, contended that even if this amount be taken to be the correct assessment of the pecuniary loss suffered by the beneficiaries on account of the death of Mrs. Bhandari. the same would have been received by them over a period of 19 years from month to month. Now that the said amount would become payable in lump-sum immediately, it is necessary to apply some scaling down. He submitted that it would be just that a deduction of about 3 3-1/3rd per cent is made especially in view of the fact that if deposited in Savings Bank, the amount would yield sufficient income even at the rate of 3″ per cent per annum. For support he relied on Amarjit Kaur v. Vanguard insurance Co. Ltd. 1969 Acj 286 where a learned single Judge of this court considered a deduction of 33-l/3rd per cent as a reasonable deduction for the purpose of scaling down the amount of compensation in view of the immediate lump-sum payment. The attention of the learned single Judge was not drawn to the deduction of 15 per cent considered just in lshwari Devi v. Union of India, 1968 Scj 141, where a similar question had been considered by the Division Bench of this court, and it was observed that since’ the payment was being made immediately in lump-sum, and also because of the uncertainties of life, such as the deceased of the claimants might die before the expiry of the normal span of life, some scaling down of the assessed compensation was called for. A deduction of 15 per cent was considered by that Bench to be fair and just, and which in our opinion also, is so. Making the deduction of Rs. 7,320.00, which is 15 per cent of Rs. 48,804.00 the amount of compensation as assessed above, the net compensation due to the beneficiaries works out to Rs. 41,840.00. which we award to respondents Nos. 1 to 3 against the appellant and respondents Nos. 4 and 5.
(13) In the result, the appeal is allowed to the extent that the claim of respondents Nos. 1 to 3 is decreed against the appellant and respondents Nos. 4 and 5 in the sum of Rs. 41,480.00 as against Rs. 48,804 as was originally decreed by the learned single Judge, whose decree would stand modified to that extent. Respondents Nos. 1 to 3 will have proportionate costs throughout.