Karnataka High Court
Rama Bai @ Meenakshi vs Mukunda Kamath on 14 November, 1985
Equivalent citations: II(1986)ACC455, ILR1986KAR48
JUDGMENT Kulkarni, J.
1. M.F.A. 1736/83 by respondent No. 1 (in the lower court) is directed against the judgment and award dated 21-6-83 passed by the Motor Accidents Claims Tribunal, Man galore in M. C. (M. V. C.) 155/80 awarding a compensation of Rs. 67.000/-
The claimant in M V.C 155/80 being dissatisfied with the quantum of the compensation, has preferred M.F.A. 22/84.
2. The Petitioner-claimant was working as a sub postmaster in Udupi on a gross salary of Rs. 901/- per month. On 13-4-80 the claimant after finishing his work in Mangalore was going to Udupi in the bus bearing No. MEG 4458 belonging to respondent No. 1-Smt. Rama Bai. The claimant was seated in the third row on the right side. When the bus reached Padapanambur, a lorry bearing No MEG 6280 belonging to respondent No. 3-Robert D'Souza and driven by Shekar Poojary came at a great speed and without giving any signal or horn from the opposite direction i.e. from Udupi direction to Mangalore. When the bus and the lorry were crossing each other both of them grazed each other. In the course of the accident, the claimant sustained injuries and fracture of the fore-arm. According to the Petitioner, the accident took place due to the composite negligence of both the vehicles. Thus, he filed a Petition claiming a compensation of Rs. 2,00,000/-
3. Respondents resisted the Petition.
4. The Trial Court on circumspection of the evidence held that the accident was due to the composite negligence of the drivers of both the vehicles and awarded a compensation of Rs. 67,000/-. It apportioned the compensation between the bus and the lorry at 50% each. It also limited the liability of R-2 insurance company to Rs. 5000/-.
5. The owner of the bus, being aggrieved, has come up with M.F.A. 1736/83. The claimant Petitioner being dissatisfied with the quantum of compensation has come up with M.F.A. 22/84.
6. The bus in which the claimant was travelling was going from Mangalore towards Udupi by the National Highway. When the bus reached Padapanambur, the lorry in question came from the opposite direction i.e. from Udupi direction towards Mangalore at a great speed.
7. The case of the lorry driver and its owner is that the bus driver tried to overtake the tempo which was going ahead of it and while so overtaking came to the right side of the tempo and thus the driver of the bus alone was responsible for the accident. According to the driver of the bus, the accident took place after the bus overtook the tempo. According to the owner of the lorry, the accident took place when the bus was just overtaking the tempo. On account of these inconsistencies and also on account of the fact that there is no mention about the tempo at all either in the F.I.R. or in the spot mahazar, the Court below rightly rejected the story of the lorry owner that the bus was overtaking the tempo and while so overtaking, the bus grazed against the lorry.
8. The tarred portion of the road in question is about 23 feet. There are kachcha portions of the road on either side of the tarred road, each measuring 7 feet and 7 inches. The width of the bus is 7 feet 10 inches and the width of the lorry is 7 feet 6 inches. Both of them together measure 15.4 feet. If both of them had been travelling by their extreme left side, the present accident would not have taken place at all. The mahazar and other documents produced would go to show that the accident has taken place at a distance of 11 feet from the western edge of the tarred road. Thus, it becomes crystal clear that both the vehicles were not going by the proper side of the road. The evidence of the claimant and other witnesses conclusively proves that both the vehicles were being driven at an abnormal speed and both of them were not giving any signal and were not sounding the horns. When two vehicles are moving in opposite directions, it is expected of each of them to leave reasonable distance between the vehicles, so that they could pass each other without coming in contact with each other. The very fact that both the vehicles grazed each other, would indicate that both the vehicles are guilty of composite negligence which resulted in the accident.
9. The question as to whether the negligence of which both the vehicles are guilty, is contributory or composite will have to be decided. The topic of contributory negligence has been dealt with by Charlesworth and Percy in their book on 'Negligence', 7th edition. The authors have said on page 3-02 as :
"The expression 'contributory negligence' is too firmly established to be disregarded, but unless properly understood it is apt to be misleading. It applies solely to the conduct of a plaintiff. It means that there has been some act or omission on the plaintiff's part, which has materially contributed to the damage caused and is of such a nature that it may properly be described as negligence, only in the sense of careless conduct and not given its usual meaning. Thus it is an expression meaning "negligence materially contributing to the injury, the word "contributory" being regarded "as expressing something which is a direct cause of the accident." As has been explained already in Chapter 1, negligence ordinarily means breach of a legal duty to take care, but when used in the expression "contributory negligence" it does not mean breach of any duty at all. It means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes, at least partially "the author of his own wrong."
The difference in the meaning of "negligence", when applied to a plaintiff, on the one hand, and to a defendant, on the other, is pointed out by Lord Simon, where he said : "When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove .... that the injured party did not in his own interest take reasonable care of himself and has contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff's claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full."
They have further stated at paragraph 3-23 as :
"Share of the blame, causing the damage, and the damages are to be apportioned on the basis of blameworthiness. This is expressed by Denning L. J. : 'Whilst causation is the decisive factor in determining whether there should be a reduced amount payable to the plaintiff, nevertheless, the amount of the reduction does not depend solely on the degree of causation. The amount of the reduction .... involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness."
In Salmond and Houston's Law of Torts, 18th edition the authors have observed on page 460 as :
"For if a third party is injured the negligence of each-both the plaintiff and the defendant is treated as a cause of the accident : each is liable to the thud party. Nor is the defence of contributory negligence an application of the maxim VOLENTI NON FIT INJURIA, although the two principles have often been confused. The defence of contributory negligence confesses and avoids a prima facie liability, it excludes the idea of deliberation, and relies upon the failure of the plaintiff to exercise reasonable care,"
"The rule of law", said Lord Blackburn, "is that if there is blame causing the accident on both sides, however small that blame may be on one side, the loss lies where it falls."
They further observe at page 494 as :
"When a Court has decided, according to the principles already discussed, that the case is one in which it is proper to apportion the loss between the parties, the result is that the claimant's damages are "reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."
In Clerk & Lindsell on Torts, 14th Edition, it is stated on page 99 :
"It has been mentioned earlier that where the sole cause of the damage is the plaintiff's own default he recovers nothing, but that where the fault lies on both the sides the damages are apportioned according to the degree of fault."
10. The contradictory views prevailing in English Courts were set at rest by the Law Reform (Contributory Negligence) Act 1945. Section 1 of the said Act reads :
"(1) Where any person suffers damage 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 damage, 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 damage : Provided that :
(a) this sub-section shall not operate to defeat any defence arising under a contract.
(b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this sub-section shall not exceed the maximum limit so applicable.
(2) Where damages are recoverable by any person by virtue of the foregoing sub-section subject to such reduction as is therein mentioned, the Court shall find and record the total damages which would have been recoverable if the claimant had not been at fault.
(3) Section six of the Law Reform (Married Women and Tortfeasors) Act, 1935 (which relates to proceedings against, and contribution between, joint and several tortfeasors), shall apply in any case where two or more persons are liable or would, if they had all been sued, be liable by virtue of Sub-section (i) of this section in respect of the damage suffered by any person.
(4) Where any person dies as the result partly of bis own fault and partly of the fault of any other person or persons, and accordingly if an action were brought for the benefit of the estate under the Law Reforms (Miscellaneous Provisions) Act, 1934, the damages recoverable would be reduced under Sub-section (1) of this Section, any damages recoverable in an action brought for the benefit of the dependants of that person under the Fatal Accidents Acts, 1846 to 1908, shall be reduced to a proportionate extent.
(5) Where, in any case to which Sub-section (i) of this section applies, one of the persons at fault avoids liability to any other such person or his personal representative by pleading the Limitation Act, 1939, or any other enactment limiting the time within which proceedings May be taken, he shall not be entitled to recover any damages or contributions from that other person or representative by virtue of the said sub-section.
(6) Where any case to which Sub-section (i) of this section applies is tried with a jury, the jury shall determine the total damages which would have been recoverable if the claimant had not been at fault and the extent to which those damages are to be reduced."
11. Mr. Ramaswamy Iyer in his Law of Torts (5th edition) advances convincing plea why the principles of apportionment involved in the English Legislation of 1945 should be made applicable to India. According to him, "An additional reason for this course is that the Maritime Convention Act of 1911 is applicable to India and if the rule of division of loss is in law applicable to Maritime collisions, there is far less reason for following a different rule in land collisions or any other cases of contributory negligence. The difficulties experienced by English Courts in applying those rules in cases of contributory negligence and the confict and confusion in the case law on the subject are a sufficient ground for rejecting them and adopting the similar course of division of loss among the parties according to their respective fault." Learned author Sabhahit in his book, 'Claims Tribunals and Compensation', II edition, at page 147 has said :
"It is proper to explain the doctrine of contributory negligence in the common law with reference to some of the leading cases which developed the doctrine. "The Rule of Law" said Lord Blackburn ''is that where there is blame causing the accident on both sides, however small that blame may be on the one side, the loss lies where it falls."
12. Thus, it becomes clear that 'contributory negligence' as understood by law of Torts means that the plaintiff also must have contributed something towards the negligence which ultimately resulted in the accident.
13. In the case of two vehicles grazing each other, the question of contributory negligence, so far as the claimant is concerned, does not arise at all. Composite negligence means concurrent negligence of the drivers of both the vehicles. In Beaudry v. Kiess, 1968 ACJ 34 the Supreme Court of British Columbia, Canada held that if as a result of two vehicles dashing against each other a third party sustains the accident, it will not be a case of contributory negligence, but, it would be a case of composite negligence. It has been made clear in the said case that if the collision is a result of concurrent negligence of two vehicles it would be a case of composite negligence to which the victim will not be a party at all. Similar is the decision laid down in Krishnaswamy v. Narayanan, AIR 1939 Madras 261 = ILR 1939 Madras 306, A. Shivarudrappa v. General Manager, Mysore Road Transport Corporation Mysore, 1973 ACJ 302, Manjula Devi Bhuta v. Manjusri Raha, 1968 ACJ 1, Sushila Rani Sharma v. Somnath, Punjab & Haryana, 1973 ACJ 505 and Parsan Devi v. State of Haryana, Punjab and Haryana, 1973 ACJ 531.
14. Learned Author Shri. Pollock in his book on Torts 15th edition has stated at page 362 as :
"Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled, of course, within the limits set by the general rules as to remoteness of damage to sue all or any one of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between those persons though in any case he cannot recover in the whole more than his whole damage."
15. In Manjula Devi Bhuta v. Manjusri Raha, 1968 ACJ 1 it is held :
"It will be clearly seen that the case was one where the principle of contributory negligence was applied. That expression, although too firmly established to be disregarded, is apt to be misleading, unless properly understood. 'It applies solely to the conduct of a plaintiff. It means that there has been an act or omission on the pact 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 meaning'. (See CHARLESWORTH ON NEGLIGENCE, 3rd Edition, para 828). 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 damages 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 the 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 stayed by Pollock as "injury by composite negligence". (Torts, 15th Edition, p.361). If due to negligence of A and B, Z has been injured, A cannot avail himself as against B of the so called contributory negligence of 'B' and say : "It is true you were injured by my negligence, but it would not have happened if 'B' had not been negligent also". What is open to A to answer Z is : "You were not injured by my negligence at all, but only and wholly by B's". If the conclusion arrived at is that Z was injured as a result of the negligence on the part of both A and B, Z can sue both A and B."
In State of Punjab v. Phool Kumari, it is held :
"Where by the fault of two or more persons damage is caused, the liability to make good the damage or loss shall be proportionate to the degree to which each person was at fault. The apportionment made by the Tribunal, in my opinion, appears to be reasonable and 1 have no reason to differ from this conclusion."
16. Thus, where a person is injured without any negligence on his part hut as a combined effect of the negligence, of two other persons, it is not a case of contributory negligence but is a case of compose negligence. The question of contributory negligence would arise where the plaintiff by his own conduct also had contributed to the negligence. But, if the claimant is injured as the result of the negligence of two wrongdoers B&C, it is a case of composite negligence but not a case of contributory negligence. In composite negligence, wrongdoers are other than the injured or the deceased person and he does not contribute to the events leading to the accident which results in injuries or even death.
16A. The material on record clearly establishes that the accident took place only on account of the rash and negligent driving of the bus and the lorry by their respective drivers and that the claimant did not contribute anything to the accident.
17. It was next urged by Learned Counsel Mallikarjun for the owner of the bus that the claimant was resting his hand on the window sill and, therefore, he contributed to the negligence. There is no material on record to indicate that the claimant was resting his hand on the sill of the window. Even assuming for a moment that he was resting his hand on the sill of the window, can it be said that the claimant contributed anything towards the accident in question. It has been laid down in Sushma Mitra v. M.P. State Road Transport Corporation & Ors., 1974 ACJ 87 (MP) that if the appellant while travelling in a bus was resting her elbow on the window sill and if a truck came from the opposite direction and while crossing the bus hit the right hand elbow it cannot be said that the appellant was guilty of any contributory negligence. Perhaps the Court held so because it is the common habit of passengers sitting near the windows to rest their elbow on the window sill. When the road is narrow and the vehicles are moving in opposite directions the drivers of both the vehicles must leave reasonable distance between them, knowing fully well that the passengers sitting near the windows will be normally keeping their elbow on the window sill. Merely because the passenger is resting his elbow on the window sill, it does cot mean that the vehicle coming from the opposite direction can hit the window sill. Further, there is no evidence adduced by the respondents to show that the claimant was keeping his elbow on the window sill. There is also no evidence to show that the passengers were fore-warned not to keep their elbow on the window sill. Therefore, viewed from any angle, it cannot be said that the claimant contributed anything towards the accident. Therefore, the claimant cannot be said to have been guilty of any contributory negligence.
18. Another victim Upendra Bhat, who was also travelling in the same bus, was also injured and he was awarded compensation in M.V.C. 162/80. It was held in the said case that both the vehicles were guilty of composite negligence and compensation was awarded to him. The owner of the bus, being aggrieved by the said judgment, had come up in M.F.A. 1737/83 and this Court has dismissed the said appeal on 15-9-81. Therefore, it is now not open to the owner of the bus to contend that he was not guilty of negligence which ultimately resulted in the accident.
19. Now the next question is one of quantum of compensation to be awarded to the claimant. It is undisputed that the petitioner was working as a Sub-Post Master at Udupi on a gross salary of Rs. 901/-. The evidence of Orthopaedic Surgeon-P.W. 1 is that on the date of accident i.e. 13-4-80 at about 5 p.m. the claimant who was injured in the accident was brought to his Nursing Home known as Vijaya Clinic in Mangalore. His evidence and the X rays and the Medical Certificate issued by him go to show that the petitioner had sustained fracture of the right humerus lower part and fracture of the radius of the right fore-arm. His evidence shows that the operation had to be carried out immediately as there was danger to life and limb of the injured. His evidence clearly establishes that the injured survived because he carried out the operation immediately. A metal plate had been inserted in the arm to fix the fragment of the bones. A piece of the humerus was missing. The case sheet Ex. P1 also shows the same. He was an in patient from 13-4-80 to 7-5-80. After 7-5-80 he treated him as an out-patient almost till he (Orthopaedic Surgeon) deposed in Court. He has clearly stated that on account of the fracture there was shortening of the right elbow and the elbow has become useless and he has got weakness in the wrist. He has made it clear that though the limb is alive, it does not at all function. According to him, it has lost its mobility. The petitioner is not in a position to write or do any work with his right hand. Thus, the right hand is dead for all practical purposes. The claimant is not able to make use of the right hand at all. According to Dr. Ballal, the disability is 100%. He has also stated that there is no movement of the right elbow. He has stated that the union in the fragment is not good and proper. According to him, the disability is permanent.
20. Now, it is undisputed that the petitioner, on account of this disability, had to take voluntary retirement. That he has been retired on account of this disability, is not disputed before us. The various certificates produced at Exs. P17, P20, P25 and P26 show that the petitioner has spent Rs. 3405-89 towards charges of Dr. Ballal and nursing home and medicine charges. Ex. P22 shows that the petitioner along with his family members had to come down to Udupi from Mangalore atleast 3 times and atleast Rs. 525/- were paid towards taxi charges. The evidence on record shows that the petitioner spent about Rs. 1000/-over nourishing food and over the food for his family members who had come to attend on him. The petitioner has produced the air ticket to show that later on he went to Bombay to consult an Orthopaedic Surgeon. The air passage cost him Rs. 446/-. But the Trial Court thought that because he went to Bombay a few months after the accident, he could have gone by bus or rail. The Trial Court appears to have forgotten the fact that the petitioner was put to a good deal of pain and suffering and he could not dare go to any place by bus and train, the travelling by which would have been another hazard to his life. Therefore the Trial Court should have awarded the entire amount of air passage. The Trial Court has awarded only Rs. 105/-as the bus charges for going from Udupi to Bombay. It has also awarded another sum of Rs. 105/- for the return journey. Therefore, in our opinion, the Trial Court ought to have awarded Rs. 446/- as the air passage and Rs. 105/-for the return journey, which the petitioner did by bus. Therefore, we are inclined to award Rs. 5481.80 as special damages. It erred in awarding only Rs. 5140.89.
21. So far as the general damages are concerned, the Court will have to take into consideration the pain and suffering and the nature of the fracture and the resultant disability. The Court will have to consider also whether the resultant disability is a permanent one or not. In this case, as already shown above, his right hard is just hanging. It has no mobility at all. The right hand is dead for all purposes. He cannot write with his right hand. He cannot do anything with his right hand. It is not the case of the respondent that the petitioner is a left hander. He must have been using his right band to take his food and do all other things. Therefore, taking into consideration the nature of the fracturs of the right humerus, right elbow joint and the right radius and taking into consideration the permanent disability and pain and suffering and all other said factors and taking into consideration that he was an in-patient for few months in the Nursing Home and taking into consideration that he even had to go to Bombay to consult Mr. Laud, an expert orthopaedic surgeon, we are inclined to award Rs. 30,000/ as general damages. Therefore, the claimant is entitled to Rs. 30,000/- under the heading of general damages.
22. The certificate Ex. P 14 has been issued by Superintendent of Post Office, Udupi. It goes to show that the petitioner would have earned Rs. 91,557-60 from the date of accident till he retired on 31-8-1987. That the petitioner has retired immediately after the accident, is not questioned before us. The petitioner himself has stated that he would get a pension of Rs. 425/-. The amount which he would get till 31-8 87, at this rate, would be Rs. 32,725-00. If that amount is deducted the claimant can be said to have lost Rs. 58,832.60. This much amount also he is entitled to get under the heading of loss of earning capacity. Even after retirement, with the grossly low pension of Rs. 425/- he would not have been able to maintain himself. his wife and three children. Even after retirement, he would have been required to struggle hard and earn some money, The petitioner claims that he would have taken up a private job and earned about Rs. 600/- per month. There appears to be a slight exaggeration. On a modest calculation we can take that he would have earned Rs. 250/- per month by working in private concerns, till he reached the age of 65 years. At this rate from 31-8-87 till he reached the age of 65 years, it would come to Rs. 21000/. Therefore, this much amount also he is entitled to get as compensation.
23. The evidence of the petitioner and the country bone-setter's certificates go to show that the petitioner went to Puttur in Andhra Pradesh for treatment and visited him (the bone setter) on many occasions. The petitioner had to necessarily spend some money in order to go to Puttur and Bangalore. Therefore, his claim under the heading of charges incurred in connection with the treatment got from Kannayaraju, the country bone-setter, appears to be reasonable. The Trial Court erred in not granting Rs. 2000/- under this head. We are inclined to grant this amount of Rs. 2,000/- also.
24. The Trial Court has given further deduction of Rs. 8,805/- alleging that the petitioner was on leave with full pay from 14-4-80 to 10-10-80. The value of leave on full pay comes to Rs. 6,038/-. It has come in the evidence that the petitioner was on half-pay leave from 11-10-80 to 25-3-81 and the salary for this period comes to Rs. 2,767/-, The total comes to Rs. 8,805/-. The Trial Court has given deduction to this amount on the ground that the claimant has got this amount also during the period of service itself. If he had retired at the fag end of the service he could have encashed the leave and he would have got the benefit of the same in cash. The tortfeasors cannot be allowed to take the benefit of the earning of the E.L. by the claimant. Therefore, the Trial Court has erred in giving deduction to this amount of Rs.8.805/-. Thus, the Petitioner on the whole, is entitled to get Rs. 30,000/- as general damages, Rs. 58,832-60 under the heading of loss of earning till the date of retirement, Rs. 21,000/- under the beading of loss of earning after retirement till he became 65 years old, Rs. 5,481-89 towards special damages and Rs. 2,000/- under the heading of charges paid to the country bone-setter. Thus the total comes to Rs. 1,17,314-49 and we round it off to Rs. 1.17.400/-.
25. Learned Advocates appearing for the Respondents submitted that in view of the award of lumpsum payment, some amount must be given deduction to. But, however, we would like to make it clear that we have not taken into consideration his earnings if he had been promoted. We have not taken into consideration the increase in the H.R.A and D.A. which are being increased from time to time. We have not taken into consideration the bonus and the other things, which the people working in the Postal Department have been getting. Therefore, we are not inclined to give any deduction as claimed by the Counsel for the Respondents. The Trial Court committed an error in deducting 20% on this count. Therefore, on the whole, the claimant is entitled to get Rs. 1,17,400/- as compensation.
26. In the result, M.F.A. 22/84 filed by the claimant is allowed in part. M.F.A. 1736/83 filed by Respondent No. 1 is dismissed.
27. Learned Counsel Andrade who appears for the insurer of the bus, contended that the liability of Respondent-2 is limited to Rs. 5,000/. As per the policy Ex. D6 which contains an endorsement Ex. P13(b). it is clear that the liability of the Insurance Company of the bus is limited to Rs. 5,000/-per passenger. Therefore, the Trial Court was justified in limiting the liability of Respondent-2 to Rs. 5,000/- only. So far as regards the Oriental Insurance Company which has insured the lorry is concerned, the liability is unlimited. As it is a case of composite negligence every vehicle would be liable to pay the entire amount of compensation. Therefore there is no question of contribution or apportionment between them at all (vide Manjula Devi Bhuta-v,-Manjusri Raha, 1968 ACJ 1 paras 49 & 50. The Trial Court, in our opinion committed an error in apportioning the amount at 50:50 between the bus and the lorry- Claimant is at liberty to recover the amount of compensation from the owner and the driver insurer of the bus and from the owner and the driver of the lorry and the Insurance Company of the lorry or from any one of them. But, however, we would like to make it clear that the liability of Respondent 2 United India Insurance Company, which has insured the bus. is limited only to Rs. 5000/-. The liability of Oriental Insurance Company is unlimited in this case.
28. We would like to make it clear that the claimant is entitled to get the said compensation amount with future interest thereon at the rate of 6% per annum from the date of petition till its recovery from the respondents, as stated above. The respondents should pay the costs of The claimant - petitioner in the Trial Court and both appeals and should bear their own throughout. The lawyer's fee is fixed at Rs. 200/-.