JUDGMENT
M.F. Saldanha, J.
1. We have heard learned Counsel representing the appellants who are the wife and three children of the deceased as also technically, respondent No. 2 who is the mother of the deceased all of whom were claimants before the M.A.C.T. We have also heard the learned Counsel who represents the respondent Corporation and we have perused the record of the case as we are required to do.
2. The deceased P. Balakrishna Reddy was working as a utility hand under Dredging Corporation of India at Panambur and at about 8.50 p.m. on the night of 28.1.90 he was supposed to have been proceeding towards Baikampady side from Panambur. The Corporation bus No. MEF 8488 came from Mangalore side and hit the cyclist from behind. The impact was rather serious because the deceased was thrown more than 20 ft. away or as per the eyewitness evidence he was dragged about 20 ft. away. The bus mounted the road divider and ultimately came to a halt on the opposite end of the road. The Tribunal on the basis of the evidence on record held that this was a case of contributory negligence. Even though the compensation awarded by the Tribunal was on the higher side, it deducted 50 per cent on the ground that the deceased was responsible to the extent of 50 per cent by way of contributory negligence. The aggrieved appellants have assailed the correctness of this order essentially on two main grounds, the first being that there is no direct evidence on record to justify the attribution of negligence to the deceased and secondly, while doing the computation the learned Judge has committed an error by applying the multiplier of 12 when in fact, according to the Schedule to the Act since the deceased was aged 40 years the multiplier of 15 should have been applied. We must add in defence of the learned Judge who has decided the case that he had relied on a decision of this Court wherein this High Court had followed the decision of the Apex Court in National Insurance Co. Ltd. v. Swaranlata Das .
3. Mr. Sripathy, learned Counsel who represents the appellants is justified when he points out to us that the subsequent changes in the law have now been held to be applicable even in respect of incidents that had taken place earlier and proceedings that are pending and that consequently, appellants are entitled to the enhanced benefit of applying the higher multiplier.
4. Respondent Corporations learned Counsel did submit that in the absence of the amendments specifically providing that they shall have retrospective application that they must be applied prospectively but, we are unable to uphold this submission in view of the well settled position in law.
5. The main contest in this case is whether the deceased Reddy was guilty of contributory negligence. As far as the bus driver is concerned the Tribunal has held that negligence on his part has been established and among the several reasons for this, the main ones are that the eyewitness has stated that the bus came at a very high speed and that it was being driven in a rash and negligent manner and that it was the bus which collided against the cyclist. Secondly, apart from the eyewitness evidence, the sketch is another document which very clearly indicates that this bus though it was travelling on a national highway had mounted the road divider and came to a halt almost on the extreme opposite end and Mr. Sripathy is perhaps justified when he points out to us that even though the vehicles are entitled to move at a speed of 60 kmph on the national highways, that this was a spot near the entrance to the NPMT gate and the gate of the other NPMT factory and that while driving at night the bus driver was obliged to observe due care and caution and drive at a reasonable speed because this was comparatively a busy area and the bus was driven at such a high speed that it had come to a halt at the opposite end of the road after the impact. Mr. Sripathy is fully justified in his submission that this is a case not only of negligence but of gross rashness.
6. On the other hand, the Corporations learned Counsel was quick to point out to us that this particular place is not within the town limits and that at the relevant point of evening it was getting close to 9 p.m., that the bus driver was perhaps justified in driving reasonably fast because there would have been very little traffic or movement at that time. What learned Counsel points out to us is that the facts speak for themselves, insofar as irrespective of the velocity of the bus it is very clear that the cyclist suddenly and violently emerged from the road leading to the NPMT gate and that the bus driver had no option except to take evasive action by swerving to the right in an effort to avoid the impact and that this was the reason why the bus mounted the road divider and ended up at the opposite end of the road.
7. We have carefully applied our minds to the facts of the case and we have virtually recreated the incident. We have taken note of the fact that the point of impact was on the grill of the front left radiator which is practically the centre of the bus. The sketch also shows that the point of impact was some distance away from the left extreme corner of the NH 17. It was also towards the centre of the road. What we need to take note of is that at the point of impact the cyclist was well into the highway and this is really the point we note, where he ought not to have been at all. Going by this direction of movement had he been cautious and not negligent in the first instance the rules obliged him to have stopped when he reached the junction between the road divider and the road. At the highest he should have looked in both directions and should have proceeded only when the highway was clear because the bus had the right of way on the highway. The second aspect of the matter is that the cyclist was obliged to have taken a turn to the left and to have kept to the left extreme comer of the road since this was a highway and he was operating a bicycle which is a slow moving vehicle. From the facts of the case and the evidence on record it is clear to us that the cyclist had overlooked both these requirements and that we have no doubt in holding that as is characteristic with cyclists and those who operate two-wheelers particularly in this State, that he has not tried to keep out of the way of the oncoming traffic. From the sketch it is very clear to us that the cyclist was also in the wrong to a considerable extent and consequently, we confirm the view or the finding of the Tribunal that the deceased was guilty of contributory negligence. Having regard to the manner in which the bus was being driven we hold that a greater degree of negligence is attributable to the bus driver and we accordingly apportion the negligence in the proportion of 60:40. By virtue of this modification the claimants would be entitled to a slightly higher share of compensation to the extent of 10 per cent. We have already held that the multiplier would have to be 15 in which case the aggregate would work out to Rs. 5,47,290 and 60 per cent of this would work out to Rs. 3,28,374. The Tribunal had awarded a sum of Rs. 2,18,916 under this head and the Corporation will accordingly have to deposit the enhanced compensation along with interest. We make it clear that we have not interfered with any of the other heads even though Mr. Sripathy did make a fervent plea that there was sufficient ground for doing this. One of the heads which he argues vehemently is with regard to future prospects but, having regard to the enhancement under the main head that we have granted, we are not inclined to interfere with the decision of the Tribunal with regard to any of the other heads. That is the reason why we have worked out the figures as far as enhancement is concerned which comes to Rs. 1,09,374 to which, the Corporation will have to add on the interest at 6 per cent per annum from the date of application up to the date of payment. We assume that the earlier award has been fully satisfied and consequently, the Corporation would be liable to deposit only the enhanced amount as computed by us, with the Tribunal within an outer limit of three months from today. If the amount of the earlier award is still pending, the Tribunal will recover that amount in keeping with the original award.
8. On deposit of the amount in question, the Tribunal shall make two equal divisions of the compensation the first half shall go to the wife of the deceased and as far as the second half is concerned, it shall be divided into three equal shares, the first of the shares shall go to the elder son who appears to have attained majority by now and as far as he is concerned the investment that we direct shall ensure that the principal in question shall be received by him 5 years after he has attained majority. As far as the other two sons are concerned, the investment and reinvestment shall continue until a period of 5 years after they have attained majority when the principal amount shall be released to them. The amount due to the respondent No. 2 shall be released to her and it is open to her to decide how she desires to invest it, but, as far as the children shares are concerned, the same shall be invested with a nationalised bank at the best yielding rate of interest available in the name of the respective child and the investment shall be renewed until 5 years after the concerned child has attained the majority then the amount shall be released to the child in question. The interest on each of the amount shall be paid quarterly to the mother of the children who shall be entitled to receive the same. We make it clear that the bank shall not permit premature withdrawal nor shall it permit any drawings against these investments.
9. The respondents learned Counsel did advance the argument before us that the negligence as far as the bus driver is concerned must be totally wiped out because the criminal court has acquitted him in the prosecution. It is well settled that the Tribunal is not bound by the decision recorded in a criminal case as this is an independent proceeding and we have already indicated our reasons why we have held the bus driver liable to the extent of 60 per cent.
10. In view of the above position the appeal partly succeeds and stands disposed of. No order as to costs.