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PETITIONER: SMT SARLA DIXIT & ANR.

       Vs.

RESPONDENT: BALWANT YADAV & ORS.

DATE OF JUDGMENT:       29/02/1996

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) BHARUCHA S.P. (J)

CITATION:  1996 AIR 1274            1996 SCC  (3) 179  JT 1996 (3)   252        1996 SCALE  (2)802

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar, J.      The appellants,  who were  the  original  claimants  in Claim Petition  No.9 of  1976  before  the  Motor  Accidents Claims Tribunal,  Gwalior, have  felt aggrieved by the order passed by  the High  Court of Madhya Pradesh Jabalpur, Bench Gwalior in  Civil Misc.  Appeal No.174  of  1977  by  which, according to  the appellants, the High Court only marginally enhanced the compensation payable by respondents nos.1 and 2 to the  appellants. They  have  obtained  special  leave  to appeal under  Article 136  of the Constitution of India from this Court  and that is how this appeal was placed for final hearing before us. Introductory Facts ------------------      A few  relevant facts  leading to these proceedings may be noted at the outset. Appellant No. 1 is the widow of late Captain Rama  Kant Dixit  who died  on 16th  March 1975 in a road accident.  Appellant No.2  was the  minor  daughter  of appellant no.1  who by  now has become major as she was aged 14 years  in 1985  when Petition for Special Leave to Appeal was moved  in this  Court. It  is the case of the appellants that late  Capt. Rama  Kant Dixit  was hit  by the offending truck owned  by respondent  No. 1  which was  driven at  the relevant time  by respondent  no.2. The  truck  was  insured against third  party risk  by respondent  no.3. That  on the relevant date of the accident the deceased was aged 27 years and was  serving as  Captain in Indian Army. He was going on 16th March  1975 at  about 11.00  a.m. from  Chandra  Prasth Colony side  towards Mall  Road, Morar,  within the  city of Gwalior. That  at that  time respondent no.2 was driving the aforesaid truck  and was  coming from  the side  of Gola-Ka- Mandir and  was proceeding  towards a locality known as J&K. The said  road was a public road admeasuring 25 ft. in width and was  running from west to east. The truck was proceeding

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from west  to east going towards eastern side where locality J&K was  situated. On  the  said  roads  intersection  no.7, another public  road, was proceeding from north to south and it was  known as  Indraprastha Road.  The  deceased  at  the relevant time  was driving  a  scooter  carrying  a  pillion rider, appellants’  witness no.7 one Ramji Sharma. It is the case of  the appellants  that while  the scooter had entered the intersection  and was  proceeding southwards on the said road respondent no.2 driving the truck from the western side came in  high speed and dashed against the scooter resulting in  instantaneous   death  of   appellant  no.  1’s  husband Capt.Rama Kant  Dixit. On  account of  the said accident the appellants having  lost the  sole  bread  winner  filed  the aforesaid Claim  Petition before  the Gwalior Tribunal under Section 110A  of the  Motor Vehicles  Act, 1939- In the said Claim Petition  originally appellant  no.1’s  mother-in-law, that is,  mother of deceased Rama Kant Dixit was also joined as one  of the  claimants but  pending the  proceedings, she expired and the appellants continued the Claim Petition also as her  heirs with  the result  that thereafter  remained as claimants only the present two appellants. The claimants put forward total   claim  of  Rs.6,12,524/-  on  various  heads against  the   respondents  However,   the  Tribunal   after computing the  compensation payable to the appellants sliced it down  by 75%  on the  ground that  deceased Rama Kant was guilty of  contributory negligence  to the extent of 75% and the truck driver was negligent only to the extent of 25% and awarded in  all Rs.42,569/-  to the  appellants. Respondents nos.1 and  2 were  made liable to make good the said amount. Respondent no.3, the insurance company was exonerated by the Tribunal as  it was  found that  at the  relevant  time  the offending truck  was being driven by respondent no.2 who was not  having   any  driving  licence.  The  appellants  being aggrieved by  the said  award of  the Tribunal preferred the aforesaid appeal  before the  High Court  of Madhya Pradesh, Jabalpur, Bench  Gwalior. It  may be  noted that  so far  as respondents nos.1  and 2 were concerned they preferred Cross First Appeal  No.178 of  1977 challenging  the award  of the Tribunal against them and also to the extent respondent no.3 was exonerated  of its  liability to meet the awarded claim. Appellants did  not press  their challenge to the finding of the Tribunal  exonerating  respondent  no.3,  the  insurance company,  of   its  liability  to  meet  the  claim  of  the appellants.  So   far  as  respondents  nos.  1  and  2  are concerned, their  challenge to  the award  of  the  Tribunal exonerating respondent  no.3,  the  insurance  company,  was rejected by  the High  Court. Consequently, the only contest in appeal  before the High Court centered round the question about the  computation of  proper compensation to be awarded to the  appellants which  in   its turn  also  included  the question whether  any amount  could be  sliced down from the computed  compensation   on  the   ground  of   contributory negligence of deceased Rama Kant.      The High  Court, therefore,  addressed itself  on these two  main  issues  and  came  to  the  conclusion  that  the appellants  were  entitled  to  get  total  compensation  of Rs.54,000/- and  that nothing was required to be sliced down from the said amount as deceased Rama Kant was not guilty of any contributory negligence and the entire negligence rested on the shoulder of respondents no.2, driver of the truck and consequently respondent  no.2 and  the owner  of the  truck, respondent  no.   1  were   liable  to  meet  the  claim  of compensation awarded  to  the  appellants.  The  High  Court ordered that  Rs.54,000/ shall  carry simple  interest @  6% from the  date of the Claim Petition, that is 10th July 1975

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till 13th October 1975 and then from 19th January 1976 until full realization.  The claimants’  rest of the claim against respondents nos.  1 and  2 was dismissed. Appellants’ appeal was also  dismissed with costs against respondent nos.3, the insurance company.  It was  also ordered that the appellants shall receive  one-half costs  of the  proceeding before the Claims Tribunal  and  one-half  costs  of  the  appeal  from respondents nos.  1 and  2 while they had to pay the cost of insurance company, respondent no.3, in proceeding before the Claims Tribunal.  Respondents nos. 1 and 2 had to bear their own costs throughout. Rival Contentions ------------------      Tn  the   present  appeal   learned  counsel   for  the appellant-claimants vehemently  contended that  the award of compensation as  granted by the High Court in appeal was too much on  the lower side. That the High Court had not applied the correct  principles in  computing compensation  in  such fatal accidents’  cases and  that once  it was held that the accident  was  caused  on  account  of  sole  negligence  of respondent no.2,  driver of  the truck, looking to the young age of  the deceased  and his  future prospects  in life the High Court  should have  granted appropriate compensation to the appellants.  That award  of Rs.  54,000/- was to say the least extremely  conservative and  was too low. On the other hand, learned  counsel for respondents nos. 1 and 2 tried to support the  award of  compensation as  granted by  the High Court and  while supporting the same learned counsel for the respondents also sought to challenge the finding of the High Court  that  deceased  Rama  Kant  was  not  guilty  of  any contributory negligence.  It was  tried to be submitted that the Tribunal was right in taking the view that deceased Rama Kant was  guilty of contributory negligence to the extent of 75% and  consequently in  any case the amount awarded by the High Court  was not  required to  be enhanced even though it may  not   be  reduced  as  there  is  no  cross  appeal  by respondents nos.  1 and  2. So  far as  the  exoneration  of respondent no.3,  the insurance  company, is  concerned, the said finding  reached by  the Tribunal  as well  as the High Court could  not be  assailed by respondents nos. 1 and 2 as they have  not filed  any cross  appeal  before  this  Court challenging that  part of the appellate decision rendered by the High Court against them.      In  view   of  the   aforesaid  rival  contentions  the following points arise for our determination : 1. What  is the proper amount of compensation payable to the appellants on  account of  the accidental  death of deceased Rama Kent Dixit caused by the offending truck. 2. Whether  deceased Rama  Kant had  contributed towards the said accident  by his  own negligence to any extent. 3. What final order.      We shall consider these aforesaid points seriatim ; Point No.1 ----------      On the  question of  computation of proper compensation to be  awarded to  the appellants  certain well  established facts on  the record  of this case are required to be noted. The deceased  was the only bread winner in the family of the appellants. He  was cut short in the prime period of life at the age  of 27  by the  accident caused  by the truck driver respondent no.2.  He had  put in  seven  years  of  military service by  that time.  He was  earlier a  Lieutenant in the Army. then  he was  promoted to the rank of  Captain and was fully qualified  for promotion to the rank of a major at the time of his death. The certificate issued by Dy. Comdt. & OC

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Tps. Rampal  Singh showed that the deceased had obtained the following models  during active service in various operation areas : (a) Senya Seva Service Hedal. (b) Sangram Medal. (c) Poorvi Star. (d) 25th Indept.. Anniversary Medal. His gross  salary at  the time of his death was Rs.1543/p.m. He had passed his M.A. examination at the time of his death. He was  in the  time scale  of Rs.1000-50-1550. He had large number of years of military service ahead of him which would have certainly  taken him to higher echelons in the military career. The  evidence showed  that he  was a teetotaller. He did not smoke or drink. This is established by the testimony of appellant  no. 1. The Claims Tribunal on the basis of the aforesaid evidence  on record came to the conclusion that on account of  the untimely  death of  Rama Kant the appellants suffered   approximately    a   total   monetary   loss   of Rs.1,70.2BS/-. But  as the  Tribunal found that the deceased was 75%  responsible for  the accident  the appellants  were awarded only 25% of Rs.1,70,238/- which came to Rs.42,569/-. The High Court in appeal took the view that out of the gross salary of Rs.1543/- p.m. deceased Rama Kant would have spent on himself  Rs.900/and from this an amount of Rs.375/- would have been  spent on  the clothing  of the  deceased  leaving Rs.375/for  the   upkeep  of   the  claimants   per   month. Considering the  earning of the deceased from his salary and allowances from 1976 to 1996 the deceased would have spent a sum of  Rs.1,28,131/- being  25; of  the gross emoluments on Appellants nos.  1 and  2. The  average figure  for 20 years came to  Rs.6406/- per  annum. This  was taken as the annual dependency multiplicand  and adopting  the multiplier of ]5, figure of  Rs.96060/- was  arrived at.  It was  noticed that family pension  of Rs,200/-  p.m. was available to appellant no. 1,  widow of  the deceased.  On that  basis a  figure of Rs.36,000/- was  worked out  by adopting  multiplier  of  15 (that is  to say)  Rs.200/- multiplied by 12 which lead to a figure of  Rs.2,400/- multiplied  by 15.  These  Rs.364000/- were deducted  from Rs.96,090/-  and accordingly a figure of Rs.60,000/-  was   reached.  10%  deduction  was  thereafter effected from  the said  figure and accordingly an amount of compensation of  Rs.54,000/- was worked out. Learned counsel for the  appellants vehemently  submitted that the aforesaid methods adopted by the Tribunal as well as by the High Court for competition  of compensation  are not scientific at all. That both  for arriving  at proper figure of multiplicand as well as  multiplier  the  High  Court  had  adopted  a  very conservative  approach.  In  this  connection  reliance  was placed on two decisions of this Court. In the case of Hardeo kaur and  Ors. v.  Rajasthan State  Transport Corporation  & Anr. (1992)  2 SCC 567, for computing compensation available to  the   claimant-dependents  of   deceased  Major  in  the military, who  died at  the age  of 39  because of vehicular accident the Court adopted multiplier of 24. Strong reliance was  placed   on  the   said  decision   for  adopting  that multiplier. In  our view  on the peculiar facts of that case the Court  had adopted  multiplier of 24. In paragraph 10 of the Report  no special  reasons were  assigned for  adopting that multiplier. However, a scientific basis for arriving at proper multiplicand  and multiplier  is supplied by a latter decision of  this Court  in the  case  of  General  Manager, Kerala  State  Road  Transport  Corporation,  Trivandrum  v. Susamma Thomas  (Mrs.) &  Ors. (1994)  2 SCC 176. A Division Bench of  this Court  consisting of  M.N. Venkatachaliah, J. (as His  Lordship then  was) and  G.N. Ray, J. considered in

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details  appropriate   method   for   arriving   at   proper multiplicand and  multiplier in  fatal accident cases in the light of decided cases in this country as well as in England and laid down principles for computing compensation in motor vehicle accident  cases. In  paragraphs 12  and  13  of  the Report the following pertinent observations were made :      "There were two methods adopted for      determination and  for  calculation      of compensation  in fatal  accident      actions, the  first the  multiplier      mentioned in  Davies case  and  the      second in Nance v. British Columbia      Electric Railway Co. Ltd.           The multiplier method involves      the ascertainment  of the  loss  of      dependency  or   the   multiplicand      having regard  to the circumstances      of the  case and  capitalizing  the      multiplicand  by   an   appropriate      multiplier.  The   choice  of   the      multiplier is determined by the age      of the  deceased (or  that  of  the      claimants whichever  is higher) and      by  the   calculation  as  to  what      capital sum,  if invested at a rate      of interest appropriate to a stable      economy,    would     yield     the      multiplicand  by   way  of   annual      interest.  In   ascertaining  this,      regard should  also be  had to  the      fact that  ultimately  the  capital      sum should also be consumed-up over      the period for which the dependency      is expected to last." Thereafter on  consideration of  cases  decided  by  English Courts and  also observations  found in  Halsbury’s Laws  of England in vol.34, para 98, the Court laid down the test for adopting the  multiplier in  such cases in paragraphs 16 and 17 of the Report as under :      "It is  necessary to reiterate that      the multiplier  method is logically      sound and legally well-established.      There are  some  cases  which  have      proceeded    to    determine    the      compensation  on   the   basis   of      aggregating   the   entire   future      earnings for  over the  period  the      life expectancy  was lost, deducted      a  percentage   therefrom   towards      uncertainties of  future  life  and      award   the    resulting   sum   as      compensation.   This   is   clearly      unscientific. For  instance, if the      deceased was,  say 25  years of age      at the  time of  death and the life      expectancy is 70 years, this method      would   multiply    the   loss   of      dependency for 45 years - virtually      adopting a  multiplier of  45 - and      even if  one-third or one-fourth is      deducted  therefrom   towards   the      uncertainties of  future  life  and      for immediate lump sum payment, the      effective   multiplier   would   be      between 30  and 34.  This is wholly

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    impermissible. We  are, aware  that      some decisions  of the  High Courts      and of  this  Court  as  well  have      arrived  at  compensation  on  some      such basis.  These decisions cannot      be said to have laid down a settled      principle.    They    are    merely      instances of  particular awards  in      individual cases. The proper method      of computation  is the  multiplier-      method.  A   departure,  except  in      exceptional    and    extraordinary      cases,       would        introduce      inconsistency of principle, lack of      uniformity  and   an   element   of      unpredictability for the assessment      of compensation.  Some judgments of      the High  Courts have  justified  a      departure   from   the   multiplier      method on  the ground  that Section      110-B of  the Motor  Vehicles  Act,      1935 insofar  as it  envisages  the      compensation  to   be  ’just’,  the      statutory determination of a ’just’      compensation  would  unshackle  the      exercise from any rigid formula. It      must be  borne  in  mind  that  the      multiplier method  is the  accepted      method   of   ensuring   a   ’just’      compensation which  will  make  for      uniformity  and  certainty  of  the      awards.   We    disapprove    these      decisions of  the High Courts which      have  taken  a  contrary  view.  We      indicate that the multiplier method      is  the   appropriate   method,   a      departure from  which can  only  be      justified in rare and extraordinary      circumstances and  very exceptional      cases .           The multiplier  represents the      number of  years’ purchase on which      the   loss    of   dependency    is      capitalized. Take  for  instance  a      case   where    annual   loss    of      dependency is  Rs. 10,000. If a sum      of Rs.  1,00,000 is invested at 10%      annual interest,  the interest will      take  care   of   the   dependency,      perpetually. The multiplier in this      case works  out to  10. If the rate      of interest is 5% per annum and not      10% then  the multiplier  needed to      capitalize the  loss of  the annula      dependency at  Rs. 10,000  would be      20. Then  the multiplier, i.e., the      number of  years’  purchase  of  20      will yield  the  annual  dependency      perpetually.  Then   allowance   to      scale down he multiplier would have      to be  made taking into account the      uncertainties of  the  future,  the      allowances for  immediate lump  sum      payment, the  period over which the      dependency is to last being shorter

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    and the  capital feed  also  to  be      spent  away   over  the  period  of      dependency is  to last etc. Usually      in  English  Courts  the  operative      multiplier  rarely  exceeds  16  as      maximum.  This   will   come   down      accordingly as  the age of deceased      person (or  that of the dependents,      whichever is higher) goes up." So  far   as  the  adoption  of  the  proper  multiplier  is concerned, it  was observed  that the  future  prospects  of advancement in  life and  career should  also be  sounded in terms of money to augment the multiplicand. While the chance of the  multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the  deceased or of the claimant whichever is higher, the ascertainment  of  the  multiplicand  is  a  more  difficult exercise. Indeed,  many factors  have to  be  put  into  the scales to  evaluate the  contingencies of  the  future.  All contingencies of the future need not necessarily be baneful. Applying these  principles to  the facts  of the case before this Court  in the  aforesaid case  it was observed that the deceased in that case was of 39 years of age. His income was Rs.1,032/- per  month. He  was more  or less on a stable job and considering  the  prospects  of  advancement  in  future career the  proper higher  estimate  of  monthly  income  of Rs.2,000/- as  gross income  to be  taken as  average  gross future income  of the  deceased and deducting at least 1/3rd therefrom  by  way  of  personal  living  expenses,  had  he survived the  loss of  dependency, could  be capitalized  by adopting  the   multiplicand  of  Rs.1,400/-  per  month  or Rs.17,000/- per year and that figure could be capitalized by adopting multiplier  of 12  which was appropriate to the age of deceased  being 39  and to  that  amount  was  added  the conventional  figure  of  Rs.15,000/-  by  way  of  loss  of consortium and  loss of estate. Adopting the same scientific yardstick as  laid  down  in  the  aforesaid  judgment,  the computation of  compensation in  the present case can almost be  subjected   to  a  well  settled  mathematical  formula. Deceased in  the present  case, as  seen above,  was earning gross salary  of Rs.1,543/-  per  month.  Rounding  it  upto figure of  Rs.1,500/- and  keeping in  view all  the  future prospects which  the deceased had in stable military service in  the   light  of   his  brilliant   academic  record  and performance in the military service spread over 7 years, and also keeping in view the other imponderables like accidental death while  discharging military  duties and the hazards of military service,  it will  not be unreasonable to predicate that his gross monthly income would have shot up to at least double than  what he  was earning  at the time of his death, i.e., upto  Rs.3,000/- per month had he survived in life and had successfully  completed his  future military career till the time of superannuation. The average gross future monthly income could be arrived at by adding the actual gross income at the  time of  death, namely,  Rs.1,500/- per month to the maximum which  he would have otherwise got had he not died a premature death,  i.e., Rs  3,000/- per  month and  dividing that figure  by two.  Thus the  average gross monthly income spread over his entire future career, had it been available, would work out to Rs.4,500/- divided by 2, i.e., Rs.2,200/-. Rs.2,200/- per  month would  have  been  the  gross  monthly average income  available to  the family of the deceased had he survived  as a  bread winner.  From  that  gross  monthly income at least 1/3rd will have to be deducted by way of his personal expenses  and other  liabilities  like  payment  of

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income tax  etc. That would roughly work out to Rs.730/- per month but  even taking a higher figure of Rs.750/- per month and deducting  the same  by way of average personal expenses of the deceased from the average gross earning of Rs.2,200/- per month  balance of  Rs.1,450/- which can be rounded up to Rs.1,500/- per  month would  have been  the  average  amount available  to   the  family   of  the  deceased,  i.e.,  his dependents, namely,  appellants herein.  It is  this  figure which would  be the  datum figure  per month which on annual basis would work out to Rs.18,000/-. Rs.18,000/-, therefore, would be  the proper  multiplicand which  would be available for capitalization  for computing  the future  economic loss suffered by  the appellants  on account of untimely death of the bread  winner. As  the age  of the deceased was 27 years and a  few months,  at the  time of  his  death  the  proper multiplier in  the light  of the  aforesaid decision of this Court  in  General  Manager,  Kerala  State  Road  Transport Corporation, Trivandrum  (supra) would  be  15.  Rs.18,000/- multiplied by  15 will  work out  to Rs.2,70,000/-.  To this figure will  have to  be added  the conventional  figure  of Rs.15,000/- by  way of  loss of  estate and  consortium etc. That will  lead to  a total figure of Rs.2,85,000/-. This is the amount  which the appellants would be entitled to get by way of  compensation from respondents nos.1 and 2 subject to our decision on point no.2. Point No.2 ----------      So far  as the  question of  contributory negligence of deceased Rama  Kant is  concerned, the  photography  of  the place of  accident is  to be  kept  in  view.  The  accident occurred in the city of Gwalior, on the cross section of two roads. One  road was proceeding from Gola-Ka-Mandir situated on the  western  side  and  was  running  eastwards  towards another locality known as J&K. It was thus running from west to east.  It was  25 ft. broad. It was known as Road No.7. A narrow gauge  railway line  was running parallel to the said road on  its southern  side. At  one place  on the  northern border of road no.7 converged another public road from north to south.  The said  road  was  approaching  Chandra  Prasth Colony on  the southern  side. It is an admitted position on record that  the offending  truck driven  by respondent no.2 was plying  on road  no.7 and was coming from Gola-Ka-Mandir side  and  was  proceeding  towards  J&K  locality  situated towards eastern side. Thus the truck was coming on road no.7 from west  to east.  So far as the deceased was concerned he was coming  on a scooter along with the pillion rider on the north-south road  leading towards  Chandra Prasth Colony. It is also  on record  that at  the intersection  of the north- south road  on which the scooter was travelling the deceased was plying his scooter from north towards south. It has also been found  from the  record that  at  the  intersection  of northsouth road  with road no,7 the scooterist Rama Kant had already entered  the intersection  and had  come almost half way so  far as  the breadth  of road  no,7 was concerned, In other  words   the  scooterist   had  already   entered  the intersection and  was on the middle of the said intersection when the truck coming from the west dashed with the scooter, Evidence of  appellants-witness no.7 Ramji Sherma shows that after Rama  Kant had  crossed the  center of  road no.7  the offending truck coming from the western side came with speed and dashed  with the  scooter. The result was that the right side of the scooter dashed with the left side front wheel of the truck. Witness Ramji Sharma, appellants-witness no.7 was the pillion  rider on  the scooter, Therefore, he was in the best position  to depose as to what had actually happened on

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the spot,  Witness Ramji Sharma stated that while proceeding from north  to south  on  the  Chandra  Prasth  Colony  road deceased Rama  Kant had  already sounded  the horn  when  he entered the intersection and he had also given a hand signal to indicate  that he  intended to  go across  road no.7  for approaching the  southern side  of road no.7, having entered from the  northern side  of the  intersection. That  at  the relevant time  there was no other truck on road no.7 running from west  to east.  The exact  spot of  the accident on the intersection of  road  no.7  with  the  north-south  Chandra Prasth  Colony   road  3150   appears  to   have  been  well established on  the record  of the case. It has been brought out in evidence that Rama Kant’s scooter had a coat of green paint and it was the left side of the truck’s bumper and the truck’s left  front wheel  surface that  showed green  paint marks. The  left head-light  of the  truck  was  also  found damaged after the accident. There was no evidence that right side of  the bumper  of the truck bore any green paint marks or any damage as a result of the collision between the truck and the  scooter Witness Ramji Sharma did not appear to have received any  serious injuries.  This was  apparent from his statement that he had been in his senses right from the time he was lifted off the road upto the time he was removed in a car to  the hospital.  Dr Jain,  Appellants-witness no.3 who had performed  post-mortem on  the deceased had deposed that he had  found five ante-mortem external injuries on the dead body of  the deceased  and they  were all on his right side. There was abrasion on the right temple and the right side of the face.  There was  another abrasion  on the right side of the chest  and the right shoulder with fracture on the upper half of  the right  humerus. There  was an  abrasion on  the right side  of the  waist. There  was another  abrasion over right thigh  and right  knee. The  last abrasion  was on the right leg  and the  right ankle  with fracture  of the femur near the  knee joint, This clearly indicated that the impact of the  front left  wheel of the truck was on the right side of the  scooter driver,  Rama Kant. That clearly showed that Rama Kant  was travelling  inside the  intersection  on  the north-south road  from north  to south  when the truck which came from the western side dashed with the scooter and threw off the  scooter  driver  and  the  pillion  rider.  It  is, therefore,  clearly   established  that  while  Rame  Kant’s scooter had  crossed the  center of  road no.7 the offending truck coming  from the  western side  dashed with  the right side of  the scooter-  which was proceeding across that road and was  going towards the southern side of the intersection having entered  the same  on the northern side of road no.7. So far  as the  exact place of impact on the intersection is concerned we  may note that the photographs Ex.P/11, P/8 and P/7 indicated that the scooter lay at the distance of 11 ft. from the  northern border of road no. 7. As seen earlier the width of  the road  was 25  ft. The scooter was lying almost lengthwise on the road with its rear wheel towards the west, that it, towards the direction from which the truck had come and had  approached the  intersection. The  scooter’s  front portion was  towards the  west and its underside was towards the south. The photographs also showed that the dead body of Rama Kant  was lying slightly diagonally across the width of the road.  The head  was pointing slightly to the south-west of the  center of the road. The distance between the scooter and the  dead body  was 6 ft. In other words any one walking from west  to east  on road no. 7 would have first passed by the dead  body of  Rama Kant  and then would have approached the fallen  scooter. It  was, therefore, clearly established that the  collision between  he truck  and the  scooter  had

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occurred somewhere  near the center of road no. 7. It showed that the  scooter had  already entered the intersection from the northern border of road no. 7, had travelled upto 11 ft. across the  width of  the road  at the said intersection and but for  the accident  it would have travelled further south and would  have passed  through the  southern outlet  of the intersection. It,  therefore, becomes apparent that when the scooterist had  entered the  intersection from  the northern side and  had covered  almost half the distance of the width of that  intersection the  offending  truck  came  from  the western side and dashed against the scooter and threw it off along with  the driver and the pillion rider. That indicated how fast  the truck would have been driven from west to east on the  main road  and because  of that speed the scooterist who had  already crossed  half the  width of  the road,  was thrown off.  That also  indicated that  the  driver  of  the truck, respondent  no.2 had  not cared to ses the scooterist who had almost reached half way across his path while he was proceeding from west to east on road no.7 and without caring for the safety of the scooterist who would have been clearly visible to  him in  the broad  day light while he was coming from  the  western  side  of  the  road  and  without  least bothering for  the safety  of the  scooterist  crossing  the intersection. He  almost ran  over the  scooter and threw it off. It is true that the injuries noted by the doctor in the postmortem report did not indicate that the deceased was run over by  the wheel of the truck but the severe impact caused by the  accident all  on the  right side  of the body of the deceased indicated  the fierce collision between the scooter and the  front left  wheel of the truck. There would thus be two types of negligence on the part of the truck driver, (i) he was  proceeding with  very high  speed even though he was approaching an  intersection on  that  road;  and  (ii)  the driver did  not care  to look  out for  the  safety  of  the scooterist who  had already crossed half of the intersection and almost  come to  the middle  of the intersection and who would naturally  be very  much visible  to the  truck driver coming from  the western  side and  proceeding  towards  the east. The driver, respondent no.2, did not care even to slow down his  speed. If he had done so, the unfortunate accident would not  have taken  place. This showed that either he did not notice  the scooterist  who had  come  almost  half  way diagonally  across   the  breadth   of  the   road  at   the intersection or  that he might not have cared for the safety of the  scooterist shoo  had come  across his path. This was the  most   reckless  and  unsafe  driving  resorted  to  by respondent no.2.  The fact  that even  after the accident he bad not  slowed down  his vehicle  and went  on driving with great speed,  is fully  established by the further fact that even after  the accident,  his vehicle  could not stop there and then  but had travelled further and had gone upto 70 ft. further and  had then stopped near the south-eastern side of the road  after the collision. The conclusion is, therefore, inevitable that  respondent no.2 while driving the offending truck was  in a  position to see in them broad day light the scooterist  Rama   Kant  who   had   already   entered   the intersection and  was almost  half  way  in  it,  still  had continued to  drive recklessly in a totally careless manner. Because respondent no.2 was not having a driving licence, he was a  novice trying  to learn driving such heavy vehicle at the cost  of such  innocent victims  like Rama Kant. Being a novice  he   went  on   driving  fast   before   approaching intersection of  road no.7 and could not control his vehicle by stopping  it or  by  slowing  it  down  so  as  to  avoid collision with  the scooterist  who had come across his way.

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Resultantly he dashed with the scooter in the center of road no.7 with  the left  side front wheel of his truck which hit the right  hand side  of the  scooterist Rama  Kant and  his scooter. As  seen above having thrown off the scooterist and the pillion  rider respondent  no.2 could  not  control  his vehicle which  was in such speed that he could bring it to a halt after  travelling further  to the  extent of 70 ft. and then it  proceeded towards  the wrong  side of  the road and halted near  the  southern  side  of  road  no.7  after  the collision All  these tell-tale  facts unequivocally point to one and  only conclusion  that it was the rash and negligent driving by  respondent no.2,  a young boy aged 20, who was a novice driver without a licence to drive such heavy vehicle, that had  caused this  unfortunate accident.  Deceased  Rama Kant was not at all negligent and had not contributed to the accident save  and except to the extent of bringing his body for being subjected to the impact of the on-coming truck. If at all, his only contribution was that he became a victim of this accident  by being  on spot on that fateful morning. It is, therefore,  not  possible  for  us  to  agree  with  the contention of the learned counsel for respondents nos. 1 and 2 that deceased Rama Kant had contributed to the accident by his own  negligence to  the extent  of 75%  or even  to  the extent of  any lesser  percentage. On this evidence the High Court was  justified in  reversing the  finding of the Trial Court that  deceased Rama  Kant was  guilty of  contributory negligence to  the extent  of 75%.  It  must  be  held  that deceased Rama  Kant was  not at all negligent and the entire cent percent negligence rested on the shoulder of respondent no.2, driver  of the truck. It is also not possible to agree with the contention of learned counsel for respondents nos.1 and 2  that deceased  Rama Kant  was  guilty  of  breach  of Regulation (7)  of Tenth Schedule of the Motor Vehicles Act. 1939. That regulation read as under :      "7. The  driver of  a motor vehicle      shall,   on    entering   a    road      intersection, if  the road  enacted      is a  main road designated as such,      give way to the vehicles proceeding      along that  road, and  in any other      case  give   way  to   all  traffic      approaching the intersection on his      right hand." On the facts of the present case it is well established from the evidence  of pillion  rider  Ramji  Sharma,  appellants- witness no  7 that  while entering the intersection from the northern side  of road no.7 deceased had already sounded the horn and  had also  given a  hand signal to indicate that he intended to  go across  road no.7. There was no occasion for him to  halt and  give way  to the  truck  coming  from  the western side and proceeding towards the eastern side of road no.7 for  the simple  reason  that  Rama  Kant  had  already entered the  intersection and  had travelled almost half way across the  breadth  of  road  no.7.  In  the  meantime  the offending truck  came with great speed from the western side and dashed  against the  scooter Regulation  (7) could  have been pressed in service against deceased Rama Kant if it was shown that  while entering the intersection, having seen the on-coming truck  from his  right hand  side he had not taken due precaution.  Such a  situation,  on  the  facts  of  the present case,  is found  to be  absent. On  the  other  hand respondent no.2 driving the offending truck on the main road no.7 from  west to east is shown to have committed breach of Regulation (6)  of the  very same  Schedule  which  read  as under:

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    "6. The  driver of  a motor vehicle      shall slow  down when approaching a      road intersection,  a road junction      or a  road corner,  and  shall  not      enter  any   such  intersection  or      junction until  he has become aware      that   he   may   do   so   without      endangering the  safety of  persons      thereon." Respondent no.2  was required to slow down while approaching the road  intersection or junction and as he had not done so but went  on driving  with full  speed the  offending  truck which threw off the scooterist who was already in the middle of the  intersection, he  was guilty of breach of Regulation (6) of  Tenth Schedule  and had endangered the safety of the persons  crowing   the  said  road  at  the  relevant  time. Consequently the  recklessness and negligence in driving the offending truck  at the  relevant time  wholly rest  on  the shoulder of  respondent  no.2.  Point  No.2  is,  therefore, answered in  the negative.  Hence there  is no  question  of slicing down  any amount  from the compensation held payable to the claimants as per our findings on point no.1 above. Point No.3 ----------      Now is  the time  for us  to bring down the curtain. In view of  our findings on point nos. 1 and 2 above the appeal is allowed.  The judgment and order passed by the High Court as well  as the  Claims Tribunal  are set  aside. The  Claim Petition  filed   by  the   appellants  is  allowed  against respondent nos.  1 and  2 who  are ordered  to pay the total compensation of Rs.2,85,000/-. The Claim Petition will stand allowed to  that extent.  On  the  said  awarded  amount  of Rs.2,85,000/- the respondent nos. 1 and 2 shall also pay 12% interest from the date of the Claim Petition till payment of the aforesaid amount to the appellants or its realization by them.  The  Claim  Petition  will  stand  dismissed  against respondent no.3,  the insurance company. In view of the fact that the  success is  divided between the parties there will be no order as to costs all throughout.