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CASE NO.: Appeal (civil)  8424 of 2003

PETITIONER: The Municipal Corporation of Greater Bombay                                                 

RESPONDENT: Shri Laxman Iyer and Anr.                                  

DATE OF JUDGMENT: 27/10/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T (Arising out of SLP (C)  No. 5639 of 2003)

ARIJIT PASAYAT,J

       Leave granted.

       The Municipal Corporation of Greater Bombay (hereinafter referred  to as the ’Corporation’) questions legality of the judgment rendered by  learned Single Judge of the Bombay High Court in the appellate side. The  said appeal related to a judgment and award passed by the Motor  Accidents Claims Tribunal for Greater Bombay (for short the ’Tribunal’)   adjudicating  a  claim  petition  under Section  110-A of the Motor Vehicles Act, 1939 (in short the ’Act’).  

       One Kumar (hereinafter referred to as the ’deceased’) lost life in  a vehicular accident which occurred on 15.8.1989. Vehicle No.MMK 6623, a  bus belonging to the Corporation was the offending vehicle. Claim of  rupees six lakhs was made by the parents of the deceased (respondents in  this appeal). According to the claimants, when the deceased was going by  his bicycle suddenly the offending vehicle dashed against him. The  impact of the accident was so severe that the deceased was thrown to  some distance and sustained various serious injuries which resulted in  his death. The deceased was aged about 18 years at the time of accident.  He was a good student and would have entered to income earning services  shortly. The Corporation took the stand that the deceased had suddenly  come from the left side of the bus from Chembur Railway Station at a  very high speed and instead of taking left turn, took right turn in  contravention of traffic regulations. When the driver of the vehicle saw  the cyclist coming on a wrong side, he immediately applied the brakes  and halted the bus. Despite this, the cyclist was unable to control the  cycle and dashed against the bus from the right corner of the bus, as a  result he fell down. He was removed to the hospital with the help of the  conductor of the bus and other persons. Witnesses were examined to show  as to how the accident occurred and also on the compensation aspect. The  Tribunal noticed that as the case progressed, a significant change was  made in the stand  taken by the Corporation. The driver was examined. He  stated that he was driving the vehicle at very slow speed. The deceased  came from the side of Chembur Station in the opposite direction and when  he saw him at a distance of 30 ft., he immediately applied the brakes,  and halted the bus. But the cyclist came and dashed against the front  side of the bus. Since the cyclist came from the wrong side of the bus,  he sustained injuries which proved fatal.  The Tribunal held since the  parents were claimants and came from a respectable and educated family,  it would not be improbable to conclude that the deceased would have  earned decently by taking an employment. By taking the expected  earning

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of Rs.3,000/-p.m. multiplier of 15 was adopted. Accordingly, the quantum  was fixed at Rs.5,60,000/- including loss of expectation of life. As a  lump sum was being paid, deduction of 25% was made and finally a sum of  Rs.4,01,250/- was awarded as compensation, with interest at 15% p.a.  from the date of application. The matter was carried in appeal to the  Bombay High Court, which by the impugned judgment held that the quantum  fixed was proper. However, interest was reduced from 15% to 12% p.a.

       In support of the appeal, learned Attorney General appearing for  the Corporation submitted that the High Court’s judgment is vulnerable  on more than one counts. Firstly it is submitted that the parents being  the claimants, the multiplier as adopted is not proper. Secondly, this  was a case where the accident occurred more on account of deceased’s  negligence than that of the driver of the offending vehicle. This is a  clear case of contributory negligence. That being so, the awarded amount  cannot be maintained.

       In response, learned counsel for the claimants submitted that the  award made is just, fair and needs no interference.  

A plea which was stressed strenuously related to alleged  contributory negligence. Though there is no statutory definition, in  common parlance ’negligence’ is categorised as either  composite or  contributory. It is first necessary to find out what is a negligent act.  Negligence is omission of duty caused either by an omission to do  something which a reasonable man guided upon those considerations who  ordinarily by reason of conduct of human affairs would do or obligated  to, or by doing something which a prudent or reasonable man would not  do. Negligence does not always mean absolute carelessness, but want of  such a degree of care as is required in particular circumstances.  Negligence is failure to observe, for the protection of the interests of  another person, the degree of care, precaution and vigilance which the  circumstances justly demand, whereby such other person suffers injury.  The idea of negligence and duty are strictly correlative. Negligence  means either subjectively a careless state of mind, or objectively  careless conduct. Negligence is not an absolute term, but is a relative  one; it is rather a comparative term. No absolute standard can be fixed  and no mathematically exact formula can be laid down by which negligence  or lack of it can be infallibly measured in a given case. What  constitutes negligence varies under different conditions and in  determining  whether negligence exists in a particular case, or whether  a mere act or course of conduct amounts to negligence, all the attending  and surrounding facts and circumstances have to be taken into account.  It is absence of care according to circumstances. To determine whether  an act would be or would not be negligent, it is relevant to determine  if any reasonable man would foresee that the act would cause damage or  not. The omission to do what the law obligates or even the failure to do  anything in a manner, mode or method envisaged by law would equally and  per se constitute negligence on the part of such person. If the answer  is in the affirmative, it is a negligent act. Where an accident is due  to negligence of both parties, substantially there would be contributory  negligence and both would be blamed. In a case of contributory  negligence, the crucial question on which liability depends would be  whether either party could, by exercise of reasonable care, have avoided  the consequence of other’s negligence. Whichever party could have  avoided the consequence of other’s negligence would be liable for the  accident. If a person’s negligent act or omission was the proximate and  immediate cause of death, the fact that the person suffering injury was  himself negligent and also contributed to the accident or other  circumstances by which the injury was caused would not afford a defence  to the other. Contributory negligence is applicable solely to the  conduct of a plaintiff. It means that there has been an act or omission  on the part of the plaintiff which has materially contributed to the  damage, the act or omission being of such a nature that it may properly  be described as negligence, although negligence is not given its usual

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meaning. (See Charlesworth on Negligence, 3rd Edn. Para 328). It is now  well settled that in the case of contributory negligence, courts have  power to apportion the loss between the parties as seems just and  equitable. Apportionment in that context means that damage are reduced  to such an extent as the court thinks just and equitable having regard  to the claim shared in the responsibility for the damage. But in a case  where there has been no contributory negligence on the part of the  victim, the question of apportionment does not arise. Where a person is  injured without any negligence on his part but as a result of combined  effect of the negligence of two other persons, it is not a case of  contributory negligence in that sense. It is a case of what has been  styled by Pollock as injury by composite negligence. (See Pollock on  Torts, 15th Edn. P.361).  

At this juncture, it is necessary to refer to the ’doctrine of  last opportunity’. The said doctrine is said to have emanated from the  principle enunciated in Devies v. Mann (1842 (10) M&W 546) which has  often been explained as amounting to a rule that when both parties are  careless the party which has the last opportunity of avoiding the  results of the other’s carelessness is alone liable. However, according  to Lord Denning it is not a principle of law, but test of causation.  (See Davies v. Swan Motor Co. (Swansea) Ltd. (1949 (2) KB 291). Though  in some decisions, the doctrine has been applied by courts, after the  decisions of the House of Lords in The Volute (1922 (1) AC 129) and  Swadling v. Cooper (1931 AC 1), it is no longer to be applied. The  sample test is what was the cause or what were the causes of the damage.   The act or omission amounting to want of ordinary care or in defiance of  duty or obligation on the part of the complaining party which conjointly  with the other party’s negligence was the proximate cause of the  accident renders it one to be the result of contributory negligence.    

Though the driver may not have been in this case wholly  responsible for the accident, as contended, from the mere fact that the  victim acted in contravention or a traffic regulation alone complete  immunity from liability of the driver or the appellant corporation for  the accident so as to disown totally responsibility to compensate the  injured or dependants of the victim cannot be accorded also. Merely  because there may have been breach of any traffic regulation, in the  absence of concrete, clinching, positive and legally acceptable material  to fix sole responsibility for the accident only on such injured/victim,  which are conspicuously absent on the facts and circumstances of this  case, the liability of the appellant-corporation remains, though to what  extent remains to be considered further.    Even according to the stand  of the Corporation, the victim was seen by the driver from a distance of  about 30ft and the vehicle was moving at a snail’s pace. If that be so,  it is not understood as to how it became totally impossible for the  driver to avoid the accident has not been substantiated by proper  evidence. In fact the High Court has noticed that there was ample scope  for avoiding the collision between the cycle and the bus. The evidence  on record also establishes that the bicycle was thrown to a distance of  4-5 ft. Before taking the turn, horn was found not blown by the driver.  The application of the brakes and the incident of collision between the  cycle and the bus seem to have been almost simultaneous. The stand of  the Corporation that the bus had come to a halt much prior to the  incident of the collision is not acceptable and though has been rightly  rejected by the Tribunal and the High Court, the infirmity in their  orders also lay in rejecting the plea of contributory negligence  completely.  The Tribunal as well as the High Court ought to have  appropriately apportioned the negligence keeping in view the materials  placed on records and properly balancing rights of parties.        

       So far as the quantum of compensation is concerned we find that at  the time of accident, as revealed from the claim petition, the claimants  were 47 years and 43 years respectively. It is not the age of the  deceased alone but the age of the claimants as well which are to be the

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relevant factors, in case parents or other dependants are claimants.  

       In Lata Wadhwa and Ors. v. State of Bihar and Ors. (AIR 2001 SC  3218) and M.S. Grewal and Anr. v. Deep Chand Sood and Ors. (AIR 2001 SC  3660) law on the principles of assessment of compensation was  elaborated. In Lata Wadhwa’s case (supra) this Court while dealing with  the issue in relation to the compensation to be paid in relation to the  death of children, placing reliance upon the decision of Lord Atkinson  in Taff Vale Railway Company v. Jenkins (1913 AC 1) has ruled that "In  cases of death of an infant, there may have been no actual pecuniary  benefit derived by its parents during the child’s lifetime. But this  will not necessarily bar the parents claim and prospective loss will  found a valid claim provided that the parents establish that they had a  reasonable expectation of pecuciary benefit if the child had lived."

       This Court in M.S. Grewal’s case (supra) has clearly observed that  the decision in Lata Wadhwa’s case (supra) is definitely a guiding  factor in the matter of award of compensation wherein children die under  an unfortunate accident. The said observation was made after taking into  consideration the conclusions arrived in Lata Wadhwa’s (supra) regarding  the compensation which was to be paid and the multiplier which was to be  applied in relation to the death of a child. This Court in General  Manager, Kerala State Road Transport Corporation v. Susamma Thomas and  Ors. (AIR 1994 SC 1631) held that the proper method of compensation is  the multiplier method, and the same view was re-iterated in M.S.  Grewal’s case (supra) observing that "needless to say that the  multiplier method stands accepted by this Court in the said decision".                   Keeping in view the observations made by this Court in various  cases, several other factors need to be taken note of. The deceased was  unmarried. The contribution to the parents who had their separate  earnings being employed and educated have relevance. The possibility of  reduction in contribution once a person gets married is a reality. The  compensation is relatable to the loss of contribution or the pecuniary  benefits. The multiplier adopted by the Tribunal and confirmed by the  High Court is certainly on the higher side. Considering the age of the  claimants it can never exceed 10 even by the most liberal standards.  Worked out on that basis amount comes to Rs.3.6 lakhs  at the monthly  expected income fixed by the Tribunal and confirmed by the High Court.  Looking into the nature of the contributory negligence of the deceased  after making an appropriate deduction which can reasonably be fixed at  25%, the compensation amount payable by the Corporation can be fixed at  Rupees 3 lakhs including the amount awarded by the Tribunal and  confirmed by the High Court for loss of expectation of life. Interest at  the rate as awarded by the High Court is maintained from the date of  application for compensation.  

       The appeal is partly allowed to the extent indicated above. There  will be no order as to costs.      

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