JUDGMENT
P.C. Naik, J.
1. By an award dated 16-12-1991 in Miscellaneous Case No. 61/140(C) of 1990/89, the Third Motor Accident Claims Tribunal, Balasore has awarded compensation in the sum of Rs. 45,000/- to the claimants/appellants. Being dis-satisfied with the quantum, the appellants have filed this appeal for enhancement of the compensation by a further sum of Rs. 55,000/-.
2. The facts giving rise to this appeal ace that on 16-9-1989, one Denudhar Das was travelling as a pillion rider on the cycle of Ratnakar Das. When they were near the factory gate, a police van being registration No. OIC 5379 which was coming from the opposite direction being driven rashly and negligently dashed against the cycle. It resulted in fatal injuries to the cyclist and also the pillion rider. The ease of the claimants (the widow and minor daughters) is that Shri Benudhar, was working as a Supervisor, he was aged about 32 years and he was drawing a salary of Rs. 700/- per month. Accordingly, a compensation amounting to Rs. 2,00,000/-was claimed.
3. In support of her ease, the claimant examined 3 witnesses and some documents, such as, copies of F.I.R., charge-sheet, postmortem report and seizure list we’re also produced and exhibited. No evidence in rebuttal was led by the opposite party State.
4. On consideration of evidence on record, the teamed Tribunal held that the accident was a result of rash and negligent driving of the police van it further held that the deceased, at the time of his death was aged about 37 years and was drawing a salary of Rs. 700/- per month. Determining the loss of dependency at Rs. 300/- and by applying 15 as the multiplier, the Tribunal assessed the compensation at Rs. 54,000/-. To this, the Tribunal also added a sum of Rs. 6,000/-towards ‘loss of life, consortium and pain’. However, by a very peculiar notion of the principle of contributory negligence, the learned Tribunal came to the conclusion that as the deceased was a pillion rider on a cycle, he was guilty of contributory negligence which was determined at 25% and from the compensation assessed, a sum of Rs. 15,000/-was deducted and an award of Rs. 45,000/-was passed in favour of the claimants.
5. The learned counsel for the appellants assails the award mainly on the ground that the Tribunal was wrong in determining the dependency at Rs. 300/-. It is contended that in view of the recent decision of the Supreme Court, in the absence of any evidence to the contrary, the normal principle is to deduct 1/3rd of the income for the personal expenses of the victim and the remaining of the income would be the amount available to the dependents. He further contends that looking to the age of the deceased, a multiplier of 15 was inappropriate and the appropriate multiplier under the circumstances of the case ought to have been fixed at 30. The learned counsel also contended that the Tribunal was wrong in deducting 25% of the assessed compensation towards contributory negligence of the deceased of which there is no evidence on record. He has also prayed that a higher rate of interest should have been awarded.
6. The learned Additional Standing Counsel vehemently argues that on the facts of the case, the award is proper and no case for enhancement has been made out. It is contended that the Tribunal has rightly assessed the dependency at Rs. 300/- per month and the multiplier adopted by the Tribunal cannot, in view of the decision of the Supreme Court reported in AIR 1994 SC 1631 be said to be erroneous. It is also contended that the deceased being a pillion rider, was guilty of contributory negligence in as much as a pillion rider disturb the balance of the cycle. The learned Addl. Standing Counsel submits that the Tribunal was right in deducting 25% of the amount because the negligence of the deceased was assessed at 25% and that of the driver of the vehicle at 75%.
7. In view of the fact that neither any appeal nor any cross-objection has been filed, by the owner of or the insurer of the vehicle, the finding that the accident was due to rash and negligence of the vehicle, that the deceased was 37 years old and was earning Rs. 700/ – per month are to be treated as final. The questions which arise for consideration are: whether a case for enhancement of compensation has been made out; whether the deceased was guilty of contributory negligence; whether the dependency assessed by the Tribunal is proper and whether the rate of interest needs to be raised.
8. It has been found as a fact that at the time of his death, the deceased was about 37 years old. Looking to the age of the deceased and in view of the judgment of the Supreme Court in the case of General Manager, Kerala State Road Transport Corporation, Trivandrum v. Mrs. Susamma Thomas, AIR 1994 SC 1631, a multiplier of 15 adopted by the Tribunal cannot be said to be erroneous. The contention of the counsel, therefore, that a multiplier of 30 ought to have been taken into consideration needs to be over-ruled. Indeed, the argument advanced in favour of adopting the multiplier of 30 was of the type advanced in the Supreme Court’s case which was repelled in para 11 of the judgment. The Tribunal was right in selecting a multiplier of 15. The finding is upheld.
9. The next question that arises for consideration whether the loss of dependency assessed by the Tribunal is proper. On the basis of its finding that deceased Benudhar Das was drawing a salary of Rs.700/- per month, the Tribunal assessed the loss of dependency at Rs. 300/- only. On the case of Generla Manager, Kerala State Road Transport Corporation (AIR 1994 SC 1631) (supra), it has been held by the Apex Court that in the absence of any evidence to the contrary, loss of dependency should normally be taken as 2/3rd of the income of the deceased. In view of this decision, the learned Tribunal ought to have determined the dependency at Rs. 466/- or say, Rs. 450/- per month. The contention of the learned counsel for the claimants appellants that the loss of dependency assessed of Rs. 300/- per month is low is correct. Taking the dependency at Rs. 450/ – per month and by adopting a multiplier of 15 which was appropriately adopted by the Tribunal, the dependency works out to (450 x 12 x 15) Rs. 81,000/-. To this, an amount of Rs. 6,000/- which has been granted by the Tribunal towards loss of consortium should be added. The compensation payable thus works out to Rupees 87,000/-. In my opinion, this is a just compensation to which the claimants are entitled.
10. The learned counsel for the appellants also contended that the grant of interest at the rate of 6% per annum is low. Though the direction in the award is that on failure to satisfy the award within 3 months, interest would be payable at the rate of 9% cannot be sustained as has been held by the Court in a number of cases that rate of interest at 6% can be accepted as it does not appear to be unreasonable. In the opinion of this Court, rate of interest at 6% is rather low. The reasonable rate would be 9%. Accordingly, the appellant is held entitled to interest of 9% per annum.
11. The question that now needs consideration is whether on not the Tribunal was justified in deducting an mount of Rupees 25,000/- from set of the compensation assessed on the ground that the deceased was guilty of contributory negligence or in other words, the finding that the deceased was guilty of contributory negligence can be sustained. On going through the pleadings, I find that the defence of contributory negligence was not taken by the appellant. The order of the Tribunal also does not contain any discussion from which contributory negligence of the deceased can be spelled out. On going through the record, I find that the only basic on which the Tribunal arrived at a finding that the deceased was guilty of contributory negligence is the fact that he was a pillion rider on the cycle. In other words, the fact of being a pillion rider on the cycle has been taken as contributory negligence of the deceased and for this, his negligence for the accident has been assessed at 25%. It is really surprising as to how such a finding could be given. There seems some confusion on the part of the learned Tribunal in understanding what exactly is contributory negligence. But, while dealing with this question, I think it appropriate to touch the question of negligence also because negligence or failure to take care on the part of the defendant is the basis of a claim for damages.
12. “Negligence” according to Winfield,” as a tort, is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plainitff”. The definition of negeligence, therefore, consists of (a) a Legal duty to exercise care on the part of the party complained of towards the party complaining the former” conduct within the scope of the duty; (2) Breach of the said duty; and (3) consequential damage. So before a person can be held liable for negligence, it has to be established that he owed a duty to take care. In course of time, the concept of duty to take care has gradually expanded and new duty situations have come to be recognised, one such being road accident where a person using the road owes a duty to other users of the road. The concept of duty to take care was accepted in view of large number of vehicles both heavy, medium and light which are used and because road accidents were on the increase. The provisions of Section 10A (now Section 166) were incorporated in the M.V. Act, 1939 to give relief to the injured or dependent of victims of accidents caused due to rash and negligence of others and who failed to take care as a reasonable and prudent man would. This provision recognised the principle that a person using the road owed a duty to take care, so that his needless or careless conduct would not cause any loss or damage to another. Therefore, to succeed in the claim, it became necessary for the claimant to prove that the injury or death was because of breach of duty to take care i.e. negligence on the part of the person against whom the claim was lodged. If he succeeded in proving the negligence, established that the defendant owed a duty to take care; a breach of that duty and that such breach was the proximate cause of the loss or injury to him, he was entitled to damages.
12-A. A claim for damages lodged can be resisted on the grounds that (a) The death or injury was not on account of any negligence on the part of the defendantt; (b) The death or injury was solely on account of negligence of the plaintiff or the deceased; (c) The death or injury was because of negligence of both the parties i.e. the claimant or deceased and, the defendant(s). If the defendant was able to prove that the death or injury was not on account of his negligence, the claim would be negatived. And if it was proved that the death or injury was because of the negligence of the defendant alone, the plaintiff would be entitled to the damages. However, where the negligence of both the parties was the cause of death or injury, the claim would not fall, but would depend upon the degree of negligence of the plaintiff. In otherwise, if the plaintiff or the deceased contributed in some degree to the death or the injury, the court should determine the extent of negligence of the palintiff or the deceased and work out the damages accordingly. This type of negligence is known as “contributory negligence.”
13. The concept of contributory negligence was introduced in England by Legislation by enacting the Law Reform (Contributory Negligence) Act, 1945. Section 1(i) of the Act provides:
“Where any person suffers damages as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damages, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damages.”
This reform was introduced with the object of removing the regour of the common law rule under which if the negligence of the plaintiff or the deceased contributed in some degree to the injury or death, the action for damages failed. Of course, there is no such legislation in our Country, but the principle of contributory negligence enacted in England in 1945 being more in consonance with justice, equity and good conscience has been adopted in preference to the defence of contributory negeligence under the common law rule, where under a plaintiff who is only partly to be blamed for the accident would not recover any damages.
14. It is to be borne in mind that the standard of reasonable man is as relevant in the case of contributory negligence of the plaintiff or the deceased) as in the case of defendant’s negligence. In the words of Denning L.J.
“A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himelf, and in his reckonings he must take into account the possibility of others being careless.”
(1973) 3 All ER 184 (HL) pp 192, 193.
It follows that the terms “contributory negligence” applies solely to the conduct of the plaintiff. It meant that there has been an act of omission on his part which has materially contributed to the damages. Therefore, where each of the two parties to an accident has contributed to it by its negligence, party, though itself negligence, is entitled to claim damages from the other party. The extent of damages will be in proportion to the negligence of the other party with respect to the combined negligence of both parties. In other words, in cases where the negligence of both the parties contributes to the damage for which damages are claimed, the court can now apportion the negligent value and reduces the damages to the extent of the claimants’ share in the responsibility for the damage. The defence of contributory negligence has to be pleaded and established by the defendant and it is only then the plea is established that the Court can order reduction of the damages by way of apportionment of the blame between the plaintiff and the defendant. (Ref. Ratanlal and Dhirajlal The Law of Torts, 22nd Edn. 1992 by Justice G.P. Singh).
15. Reverting to the case in hand, can it be said that the deceased is guilty of contributory negligence? The facts on record indicate that the claimant was a pillion rider on a cycle. In the claim petition it is stated that the Cyclist was on the left side of the road and was knocked down by the offending vehicle which was coming from the opposite direction in a rash and negligence manner. Opposite parties 1 and 2 did not appear and were set ex parte. Opposite parties 3 filed its written statement stating that the accident was not due to rashness or negligence of the person driving the police vehicle. The opposite party No. 3 alleged that in fact, the cycle which was “being driven in an abnormal speed, hit against the said truck as the cyclist could not control the speed of the cycle and consequently both the persons coming on the cycle were injured. Therefore, the question of the police vehicle dashing against the cyclist or running over them does not arise.”
16. One Mayadhar Road, who had seen the accident was examined by the claimants as P.W. 3. He states that a police van which was coming from Baripada side at a high speed dashed against the cyclist and as a result of the impact both persons (i.e. the cyclist and the pillion rider) sustained injuries. No evidence was adduced by the opposite party No. 3 to substantiate its plea that the accident was due to negligence of the cyclist and not due to any rashness or negligence on the part of the police vehicle. Thus, even the faint plea of negligence of the deceased has not been establsihed. On the contrary, the finding that the accident was due to rash and negligent driving of the offending vehicle itself indicates that the defence of contributory negligence has been negatived. The only grounds for holding the deceased guilty of contributory negligence is the fact that he was a pillion rider on the cycle. In the words of the Tribunal since it is admitted that the deceased was a pillion rider in the cycle, it is apparent that he was also negligent to certain extent. It is always unsafe to carry a second man in a cycle on the public read. Therefore, I hold that the extent of contribution to the cause of accident by the police driver was 75% and that of the deceased was 25%.
17. To say the least, the reasoning of the learned Tribunal is beyond conprehension. It is really surprising as to how the mere fact of being a pillion rider has been considered by the Tribunal to be act of contributory negligence of the deceased. Can it be said that by being a pillion rider, the deceased in some manner brought about the accident, or, in other words, had he not been a pillion rider the accident would have been averted. Indeed no. The learned Tribunal seems to have no idea about the conditions in our Country where travelling double and a pillion rider on a cycle or a moter cycle or a scooter is not unusual. Indeed, it is the accepted mode of travel. In every day life we see people travelling as pillion riders on cycles, scooters or motor cycles. This is a common sight. Under no stretch of imagination can riding pillion by itself be an act of contributory negligence. The Tribunal was wrong in holding the deceased guilty of contributory negligence. The said finding cannot be sustained and is accordingly, set aside. It follows that the Tribunal was in error in deducting Rs. 25,000/- from the compensation assessed by it.
18. In view of the discussions aforesaid, the appeal is partly allowed with costs. The compensation is enhanced to Rs. 87,000/-. The enhanced amount of Rs. 42,000/- will carry interest at the rate of 9% from the date of claim to the date of payment.