JUDGMENT
Dalvi Roshan, J.
1. This appeal challenges the judgment and order dated 6th November, 1990 of the Second Additional Motor Accidents Claims Tribunal for Greater Bombay granting compensation of Rs. 1,11,350/with 12% p.a. Interest thereon to the claimant.
2. The incident took place on 24th September, 1985 at about 5.10 p.m at J.P. Road and Daudbaug Road, Andheri (West) at Bombay. The deceased was a Commerce Graduate of 22 years. The claimants are his legal heirs. They have applied for compensation of Rs. 1,50,000/ on the ground of dependency, loss of estate etc. The opposite party is the BEST represented by the Municipality.
3. The accident is stated to have been committed when a motor cycle, an autorikshaw and other vehicles were going on one side of the road and the motor cyclist tried to overtake those vehicles at that time. The bus of the appellant collided with the motor cycle. The motor cyclist was fatally injured by an impact with the right (driver’s) side of the bus. The eye-witness is a hawker, who sold Panipuri close to the place of the impact. He is the first informant in the criminal prosecution also.
4. He has been examined as an eye-witness. The father of the deceased has examined himself to prove the loss of dependency and estate. A bus driver examined himself to show his speed and lack of negligence. The eye-witness has stated about the FIR filed with the police and the spot panchanama made.
5. The learned Judge has dealt with the evidence of the eye-witness and the bus driver, read alongside the FIR and spot panchanama to consider the impact of the accident and the negligence of the parties. The evidence of the father of the deceased shows the loss of dependency and estate. The learned Judge has concluded that the BEST Bus driver was negligent, but there was some extent of contributory negligence on the part of the deceased also which he has apportioned in the ratio of 15:85. He has taken the multiplier of 15 upon considering the age of the deceased and the earnings of the father as well as the deceased, to determine the amount of compensation.
6. It is contended on behalf of the appellants that since the motorcyclist was overtaking, his contributory negligence would be of a higher extent and that the multiplier of 15 was incorrect. The parents have relied upon judgments to show that the multiplier was incorrect.
7. To test the case of negligence of the bus driver on behalf of the appellants and/or the contributory negligence of the motorcyclist, the evidence of the eye-witness and the bus driver would be required to be considered.
8. It is deposed by the eyewitness that when the deceased was driving his motorcycle, an autorikshaw was coming from the station side. The BEST bus was going towards the Station. The bus was in speed. The motorcyclist got a dash by the driver’s side of the bus. The driver applied breaks after an impact. No horn was blown. After the impact he halted the bus by the left side of the road.
9. In his cross-examination he has deposed that there was no one near his handcart. He was just standing. He, therefore, could have a clear view of the accident. He has deposed that his attention was drawn to the incident/accident for the first time when he heard the sound of impact. Hence, he heard that impact before he heard any horn or the sound of any breaks. He saw and reported the bus number. Hence his evidence that no horn was blown and that the driver applied brakes after the accident is seen to be correct.
10. The FIR of this witness shows one motorcycle in moderate speed ahead of which one taxi autorikshaw and a tempo were going in the same direction. There was no vehicle coming from the other side. Consequently the motorcyclist swerved his motor cycle a little right to overtake the front vehicle. Overtaking per se is not illegal. Under the circumstances in which this incident is reported by the eye-witness legitimate overtaking could have been done, since there were no vehicles on the other side of the road.
11. The FIR further shows that at the same time the BEST bus came in fast speed from the opposite direction on the right side and in front of his hand-cart and hit the motor cyclist with its front right side. Hence, it caused injury to the motorcyclist. The FIR further specifically shows that the bus came in speed, could not apply breaks and hit the motorcyclist. The cross-examination of this witness has not upturned his evidence relating to the incident. The only aspect in cross-examination is that his attention was drawn to it upon hearing the sound of impact. All this would take, but a second to happen. Hence, his evidence cannot be discarded or rejected.
12. The spot panchanama brought on record shows that the right side of the bus near the bumper was bent and the right side head light was damaged. The front of the motorcycle was bent and the headlight was broken. There were blood patches on the road.
13. The evidence of the bus driver shows that he was not in speed. He was in second gear. The motorcycle was coming in speed. He swerved his bus to the left and applied breaks. The motor cyclist was hit near the right side. His cross examination shows that he had seen the motorcyclist from 70 to 80 ft. No vehicle was in front of his bus. The wheels of his bus were in front when he stopped his vehicle. Though this last portion of his evidence is not happily worded, it shows that he had not swerved the bus to the left and halted after applying breaks. The spot panchanama does not record any brake marks or wheel marks. Wheel marks were not diagonal as would happen if he swerved the vehicle to the left and stopped. The width of the road was 70 ft. Since there was no vehicle in front of him he had an ample opportunity to come in speed. His evidence that he was not in speed and that he was driving at 15 to 20 kms per hour in second gear cannot be believed. The evidence of the Bus driver is not corroborated by any eye-witness account. The learned Judge has rightly disbelieved him. The learned Judge has, therefore, correctly accepted the evidence of the accident on behalf of the claimant.
14. Therefore, it is seen that though the motorcyclist tried to overtake, it was a legitimate action. If bus was not in speed, the accident could have been avoided.
15. Nevertheless applying caution, and considering the admitted overtaking he has held that the deceased was also to blame for his contributory negligence which he had apportioned at 15:85 with the driver.
16. It is the case of the appellants that the fact of overtaking by the deceased shows his contributory negligence. It is argued on their behalf that had the deceased not attempted to overtake the vehicles which were before him, the accident could have been avoided. The evidence shows that there was traffic only on one side of the road. The deceased was behind three other vehicles. There was no traffic on the other side of the road. In the meantime the deceased sought to overtake the vehicles in front of him to go ahead, it was at that time the BEST bus came in speed and hit the deceased. In this scenario it is seen that if the BEST bus had also not come in a speed, the accident could have been avoided.
17. This is, therefore, a case for apportioning the extent of contributory negligence upon the driver overtaking and the other driver coming onto a clear road in speed. The learned Judge has apportioned this negligence in the ratio of 15:85. It has to be seen whether the ratio is sound.
18. In the case of Municipal Corporation of Greater Bombay v. Laxman Iyer the aspect of apportionment of contributory negligence has been considered and explained. The courts are required to appropriately apportion the negligence and determine the compensation accordingly. In this judgment the concept of negligence itself is explained. In that case a cyclist suddenly came from the left side of the bus in high speed and instead of taking a left turn he took a right turn in contravention of traffic regulations. The driver of the BEST Bus applied breaks and halted the bus. Yet the cyclist dashed against the front side of the bus and sustained fatal injuries. The facts of that case were rather converse of this case. The motor cyclist in this case was not in error in overtaking in the circumstances that he did. The cyclist was certainly in error in taking the wrong right turn. Such right turn could not have been contemplated by the other driver. In this case the BEST Bus driver on behalf of the appellants cannot be stated not to have contemplated that one vehicle would over take another vehicle whilst one side of the road was clear. The accident in that case, therefore, took place purely due to the wrong right turn in high speed. In this case though the accident may not have occurred had the deceased not tried to overtake on his motorcycle, the main cause of the accident was the high speed of the bus driver of the appellants, since the accident could never have happened if the BEST bus came onto the clear road at reasonable speed which could be controlled.
19. In the aforesaid judgment negligence has been held to be omission of duty to do something which a reasonable man would do if obligated to, or by doing something which a prudent or reasonable man would not do. It is observed that negligence does not always mean absolute carelessness. It is failure to observe the degree of care, precaution and vigilance demanded by circumstances whereby another person suffers injury. It is, therefore, a relative or a comparative term. The cause of negligence varies under different conditions. Consequently it is relevant to determine whether, in the facts of the case, a reasonable man would first see whether the act would cause the damage or not.
20. It is further held in that judgment that negligence may be contributory or composite. When the accident took place the negligence, if any, of both the parties would have to be considered. It would therefore, have to be seen whether either could have avoided the consequences of the other’s negligence by exercise of reasonable care. In that case contravention of traffic regulations by the deceased was held to be gross contributory negligence. The sole blame was fixed only on the injured. In this case the accident could have been averted if the deceased had not overtaken at all yet, even if when the deceased was overtaking the other vehicles, if the BEST Bus had not turned in speed and applied breaks the accident could have been avoided.
21. Under these circumstances the learned Judge’s apportionment of contributory negligence in the ratio of 15:85, is the correct apportionment. At best the contributory negligence of the deceased was only in trying to overtake. Had the bus driver not been in speed he could have successfully overtaken. The negligence of the bus driver is, therefore, to a far larger extent. The apportionment is seen to be reasonable and appropriate. There is no reason to interfere with the judgment with regard to the apportionment of the liability.
22. With regard to the quantum of compensation the learned Judge has considered the evidence of the father of the deceased showing the salary earned by the deceased who was 22 years at the time of the accident. The deceased earned Rs. 1000/per month as SBI employee. He was a Graduate, a Chess Champion and had appeared for the relevant Banking examination. He is stated to have contributed his salary for house hold expenses. The salary certificate produced on behalf of the applicant has been considered in view of the earlier admitted salary certificate. The learned Judge has considered Rs. 600/out of the sum earned by the applicant as available for contribution to family expenses.
23. The salary of the applicant himself, the father of the deceased, was then Rs. 5000/per month out of which he saved Rs. 3000/per month has also been considered by the learned trial Judge.
24. The learned Judge considered the length of service which lay before the deceased when he expired in the prime of his youth as also the earnings of his father. He, therefore, applied the multiplier of 15 years to arrive at the compensation payable to him.
25. The multiplier of 15 has essentially been challenged by the appellant. The precedents in that regard are, therefore, required to be considered.
26. In the case of U.P. State Road Transport Corporation v. Trilok Chandra for determining the just compensation and for bringing uniformity and certainty of the awards made all over the country, the Apex Court considered the formula in two English decisions namely the case of Davies and Nance and held, following Dairies, that the loss has to be ascertained by first determining the monthly income of the deceased, then deducting therefrom the amount spent on the deceased, and thus assessing the loss to the dependents of the deceased. It held that the annual dependency assessed in this manner has to be multiplied by the use of the appropriate multiplier. It concluded that the multiplier cannot exceed 16.
27. In the case of United India Insurance Co. Ltd. v. Patricia Jean Mahajan , it was held that the deviation from Schedule II multiplier in the Motor Vehicles Act, 1988 is permissible only in special cases. When the deceased was between the age of 45 to 50 a multiplier of 10 was applied.
28. In the case of Abati Bezbaruah v. Dy. Director General Geological Survey of India , it was held that the compensation amount should be fair and just in the facts and circumstances of each case, and that deviation from structured formula provided under Schedule II for determining the compensation, was not ordinarily permissible. In that case considering that the deceased was 40 years of age, the multiplier of 15 was applied.
29. In the case of New India Assurance Co. Ltd. v. Ranglal Panju Nikam in First Appeal No. 1252 of 2005, reported in 2007(6) Bom. C.R. (A.B.) 334 the Division Bench of this Court at Aurangabad applied a multiplier of 8 upon considering the age of the claimant which was 50 years at the time of the accident taking the Schedule II as a guideline.
30. In the case of New India Assurance Co. Ltd. v. Saroj 2007 A.C.J. 558, the Division Bench of the M.P. High Court at Gwalior applied a multiplier of 15 in case of a deceased aged 41 years.
31. In the case of Maharashtra State Road Transport v. Lalnipuii 2007(1) Bom. C.R. 847 a lumpsum amount of Rs. 5,00,000/in place of the awarded amount of Rs. 10,00,000/was granted taking into account the age of the claimant as well as the monthly income of the deceased and further taking into account the fact that she was not contributing to the household expenses as she was living separately from her parents. In that case the multiplier of 17 applied by the Tribunal, was accordingly modified though in that judgment specific multiplier to be applied has not been stated.
32. In the case of National Insurance Co. Ltd. v. Vinod Choudhary the income of the deceased at the time of his death was held to be relevant to be considered. In that case a multiplier of 17 has been applied upon the income of the deceased less 1/3rd deduction for personal expenditure to compute the net dependency for 17 years. In this case the Tribunal has considered the salary of the deceased which was shown to be Rs. 1000/per month as per the certificate issued by the State bank of India. Rs. 400/have been deducted from the salary. The father’s earning of Rs. 5000/per month and who spent Rs. 3000/per month for house hold expenses leaving Rs. 2000/ per month as his saving was considered. Consequently the loss to the estate and the loss of dependency was computed. A multiplier of 15 was applied for computing the total loss of estate at the rate of Rs. 600/per month after deducting Rs. 400/per month from Rs. 1000/from the salary of the deceased which was multiplied by 12 and 15. The multiplier of 15 to the deceased who died at the age of 22 years is, therefore, fair and reasonable. Though the learned Judge has observed that increase by way of increment and promotion could be reasonable for the deceased who was only 22 years old at the time of his death, the actual computation of the amount of compensation has been based only upon his net pay, at the time of his death after deducting the personal expenditure at Rs. 400/out of Rs. 1000/. Hence, the multiplier applied by the Apex Court of 15 for a deceased who was 40 years old at the time of his death in the case of Abati Benzabaruah has been amply complied.
33. Even the rate of interest at the rate of 12% per annum granted by the learned trial Judge has been disputed. It may be mentioned that the interest rates vary from judgment to judgment as it is discretionary. Interest at a particular rate would be payable only if the amount is legitimately due and payable and the amount adjudicated to be due and payable is not paid. The argument that interest should be at a lesser rate is, therefore, misconceived. Interest follows upon default. A defaulter cannot be made to dictate to the Court the rate at which compensating the rightful party for the default and delay can be made. The rate of 12% is neither unconscionable, nor uncommercial. It is seen that a boy of tender years has lost his life essentially due to the rash speed of the appellant’s driver. Yet his legitimate claim has been denied for an accident that took place 22 years before. The appellants have, therefore, grossly defaulted in payment, which is seen to be wrongful. They have consequently unreasonably delayed the compensation payable to his parents for the reasonable amount upon a reasonable multiplier granted by the trial Court. There is absolutely no case made out for using any discretion for payment of interest at any lesser rate than the 12% granted by the trial Court.
34. In the case of Municipal Corporation of Greater Bombay v. Laxman Iyer (supra) also interest at the rate of 12% p.a. granted by the High Court was not disturbed by the Apex Court. Such cases can be multiplied.
35. In the result there is no substance in the appeal. The appeal is dismissed with costs.