Pathak, C. J:
1. This appeal is directed against the judgment and award dated 3-10-1975 passed by the Member, Motor Accident Claims Tribunal Kamrup, Gauhati in Motor Accident Claims Case No.90 (K) of 1972.
2. The claimants' case is that one Umesh Chandra Das was proceeding on a bicycle by the left hand side of the road on 23rd October, 1971 at about 10.30 A. M. from his home towards Bhawanipur by the National High-way and the Bus No. ASX 2132 belonging to the Road Transport Corporation, Assam, which was driven by Abdul Gafur Khan at a very high speed, rashly and negligently knocked him down and fled away. As a result of the said accident Umesh Chandra Das sustained severe injuries. He was removed to Bhawanipur State Dispensary. He was given first aid and thereafter he was removed to Barpeta Civil Hospital where he was referred to Gauhati Medical College Hospital and on his way to Gauhati Umesh Chandra Das died on 24-10-1971. At the time of his death he was aged about 52 years and he was serving as Assistant Teacher in the Bhawanipur Government Aided High School. His monthly income was Rs. 450.00 at the relevant time.
3. On the above facts the claimants respondent filed an application under Section 110-A of the Motor Vehicles Act for compensation. The applicants were Smt. Mahamaya Das, widow of deceased Umesh Chandra Das, Hirannya Kumar Das, son of deceased Umesh Chandra Das and four other minor children of deceased Umesh Chandra Das represented by their uncle and natural guardian Chandra Mohan Das. In the petition the claimants claimed a lump sum compensation of Rupees 60,000/-. The opposite party-appellant before us, submitted a written statement wherein it contended that the claim petition was bad for non-joinder of parties and that the claim petition was not maintainable in law. It was stated that there was no rashness or negligence on the part of the driver of the vehicle No. ASX 2132 which was in perfect condition and it was driven by a duly licence holder driver. It was also stated by the opposite party that at the place of occurrence there were stacks of stone metals by the road side and the deceased while riding the bicycle by the side of the road, went over loose stones and lost control over the bicycle and dashed against the rear part of the body of the bus. According to the opposite party the accident was caused due to the loss of control by the deceased over his bicycle. The opposite party therefore prayed for dismissal of the claim petition.
4. On the pleadings of the parties the followings issues were framed:-
1. Is the application claiming compensation maintainable?
2. Is the application bad for non-joinder of parties?
3. Are the claimants the legal heirs of the deceased?
4. Did the driver of the vehicle ASX 2132 drive the said vehicle rashly and negligently causing death of the deceased?
5. Are the claimants entitled to the amount claimed in the application?
6. Is the opposite party liable to pay the compensation?
7. To what relief are the claimants entitled?
5. The claimants examined 8 P. Ws. and the contesting opposite party No. 1 the Assam State Road Transport Corporation declined to examine any witness.
6. The learned Tribunal has observed that Issue No. 3 was not pressed. Discussing Issue Nos. 1 and 2 the learned Tribunal held that the claim was not for non-joinder of parties and the claim was maintainable Regarding Issue No. 4 on consideration of the evidence on record the finding of the learned Tribunal is that the accident in question was the result of the rash and negligent act of the driver of the vehicle No. ASX 2132 and that there was not an iota of evidence to the effect that there was any contributory negligence on the part of the deceased. Issues Nos. 5, 6 and 7 were considered together by the learned Tribunal and after discussing the evidence on record he awarded a lump sum amount of Rs. 35,000/- to the claimants payable by the opposite party, the appellant in this appeal.
7. The learned Tribunal also held that the claimants were entitled to interest @ 6% per annum from the date of the claim petition till realisation of the same and an amount of Rs. 300/- was also granted as costs in favour of the claimants to be paid proportionately.
8. The present appeal has been filed under Section 110-D of the Motor Vehicles Act, 1939.
9. Mr. B. Sarma, the learned Counsel appearing for the appellant has raised mainly two points, namely,
(1) that the claimants have not been able to establish that the accident took place due to the rash and negligent driving of the driver of the vehicle in question. On the other hand, there was contributory negligence on the part of the deceased and as such no compensation was payable in the instant case;
(2) that the quantum of compensation has been determined by the learned Tribunal without considering the relevant factors that are necessary to be considered in awarding the lump sum compensation and that in view of the matter the quantum of the lump sum compensation awarded in the instant case, is not sustainable in law.
10. Let us first consider the first submission of the learned Counsel for the appellant.
11. P. W. 1 is Dr. Kiron Chandra Choudhury, who was the attending Medical Officer at Bhawanipur State Dispensary on 23-10-1971 on which date Umesh Chandra Das was taken there following the motor accident. P. W. 1 has stated that after giving first aid, he directed the injured to be taken to Barpeta. He further stated that the back side of the head of the injured had been fractured. The wound was bleeding and he was unconscious and not in a position to talk or make any sound. The injured was taken to Barpeta Civil Hospital and at the Bhawanipur State Dispensary he was only for about 10 minutes. At the time of occurrence the injured was about 50 years old and he was in good health. The witness was not cross-examined by the opposite party.
12. P. W. 2 is Dr. Karuna Kumar Duara, who was on the date of deposition, the Sub-Divisional Medical and Health Officer, Barpeta Civil Hospital. He deposed from the record of autopsy and stated that autopsy was done on the dead body of Umesh Chandra Das by Dr. Hazarika, who made a note in a book and from that note it was found that the man died on 24-10-1971 and from the note he deposed about the following injuries:-
1. Back head injury, fracture of occipital bone in linear way, across skull with slight exposure of brain matter.
2. Scalp lacerated and skull fractured in the posterior region.
3. Head membrance slightly lacerated at the fractured portion.
4. The length of head injury exposing brain matter is 4."
13. The witness stated that except the said injuries there was no other injury noticed, external or internal. The person died due to shock and haemorrhage as a result of the injuries mentioned above. Ext. 1 is the note of the autopsy and Ext. 1 (1) is the signature of Dr. Hazarika. This witness was also not cross-examined by the opposite party.
14. From the evidence of the two doctors it is quite clear that Umesh Chandra Das died of the injuries sustained on 23rd October, 1971.
15. P. W. 5 is Hangshadhar Sarma, who is the Headmaster of L. P. School. His evidence is that on 23-10-1971 (Saturday) he was going to school on a bicycle and Umesh Chandra Das also was following him on another bicycle. Both of them were going by the left side of the road when the Dhubri Express bus came at a great speed from behind them. That vehicle hit Umesh on the side of the road. Umesh fell down. Hearing the sound he looked back and found that Umesh had fallen and there was bleeding through his mouth. The vehicle left without stopping. At the place of occurrence water was poured on Umesh's head and at that time Hiralal Choudhury (P. W. 6) and Bhubaneswar Das (P. W. 7) were present there. Umesh was silent. From there he was taken to Bhawanipur State Dispensary in a jeep. As a result of the accident he died later. That Umesh was a very famous man in their locality.
16. P. W. 6, Hiralal Choudhury, who is also L. P. School teacher, deposed that on the day of occurrence he was going to school on a bicycle while from the opposite direction, Umesh Das and Hangshadhar Sarma (P. W. 5) were coming. At that moment, the Dhubri Express bus came at great speed from the opposite direction. The bus did not blow horn. Umesh was on the left hand side of the road. The vehicle, leaving its own side, hit Umesh, who fell down and sustained head injuries. The witness shouted at the vehicle to stop but it did not Hangsha Sarma (P. W. 5), the witness and others held Umesh and poured water on his head. Umesh did not make any sound. Umesh sustained head injuries and he was taken to Bhawanipur State Dispensary in a jeep from where he was taken to Barpeta Civil Hospital, and subsequently he died. The occurrence took place because of the vehicle's fault. Umesh was going along his side and the vehicle hit him on the unsurfaced part of the road. Nothing else had stood on the way of the vehicle. The road was wide and the vehicle had considerably gone over the unsurfaced portion leaving the surfaced portion.
17. P. W. 5 Hangshadhar Sarma was not cross-examined by the opposite party. P. W. 6 Hiralal Choudhury was however cross-examined and in his cross-examination he has stated as follows:-
"I knew the deceased well. He had land, house etc. The deceased and Hangshadhar Sarma were coming on cycles. Hangshadhar Sarma was ahead while the deceased was following behind. I was going from Gauhati side along my left hand and they were coming from my opposite side along their left hand side. I saw the accident. It is not a fact that I could not see what happened on the opposite side of the road as the vehicle was between us. I saw the accident from a distance of about 20 yards. It is not a fact that I did not see the deceased being hit as the bus was between us. It is not a fact that there were P. W. D. gravel stacks by the side of the road. Umesh and Hengsha were coming in a line one behind the other. They were coming along the side track used by pedestrians. At the place of occurrence. the foot-path was 10 or 12 feet wide. The front wheel of the bus had hit him. I do not know how much land etc. the deceased had."
18. P. W. 7 is Bhubaneswar Das, who is a cultivator. His evidence is that on the day of occurrence he went to bazar and on the way he saw Umesh Das going to school on a bicycle along the left hand side of the road. That the road was wide and he was going along the unsurfaced portion. The Dhubri Express bus came up from behind at great speed and the vehicle went over the unsurfaced portion of the road and hit Umesh Das, who fell down and suffered head injuries. The vehicle did not stop. The witness and others poured water on Umesh's head. But he could say nothing. Later a jeep came and in that jeep he was taken to Bhawanipur State Dispensary. That as a result of the occurrence he died subsequently. That the accident occurred because of the vehicle's fault. P. W. 7 also has not been cross-examined by the opposite party.
19. Scanning the evidence of the eye witnesses, namely, P. Ws. 5, 6 and 7, it is quite clear that Umesh Chandra Das was going on a bicycle over the unsurfaced portion of the National Highway and he was going by his left hand side when the bus in question came from behind at a great speed and without blowing horn struck Umesh Chandra Das from behind and as a result he fell down, sustained head injuries and expired in consequence thereof. All the eye-witnesses have stated categorically that the bus came at a speed and P. W. 6 has categorically stated that the bus did not blow horn. Though this witness (P. W. 6) was cross-examined, there was no cross-examination on this point.
20. If a man goes on his bicycle by the left hand side of the road over the unsurfaced portion of the National Highway and a vehicle coming from behind and running at a great speed without blowing horn dashes against the cyclist by going over the unsurfaced portion leaving the surfaced portion, it is simply reasonable to hold that the accident in such a case takes place because of the rash and negligent driving of the vehicle.
21. The opposite party pleaded that there was contributory negligence on the part of the deceased, inasmuch as, there were stacks of gravels on the road and Umesh Chandra Das running over the loose gravels lost control over his bicycle and he fell on the rear portion of the bus and thus the accident took place because of the contributory negligence. There is not an iota of evidence to support the theory of the opposite party that the accident took place due to contributory negligence on the part of the deceased. No witness has stated that at the place of occurrence on the road there were stacks of gravels and that the deceased going on his bicycle over the loose gravels lost control of the bicycle which as a result hit the rear of the bus. No evidence is coming forth from the side of the opposite party to substantiate this plea. On the other hand, on being cross-examined, P. W. 6 has categorically stated that there were no P. W. D. gravel stacks by the side of the road where the accident took place. That being so, we find that the evidence on record has clearly established that the accident in the instant case took place due to rash and negligent driving of the vehicle No. ASX 2132 and as a result of that accident Umesh Chandra Das sustained injuries due to which he met with his death.
22. It may also be observed here that no witness on behalf of the opposite party was examined to establish the plea of contributory negligence, not even the driver who was driving the vehicle No. ASX 2132 at the time of occurrence.
23. Let us now consider the quantum of compensation.
24. P. W. 8 Chandra Mohan Das is a Professor of Bongaigaon College and younger brother of deceased Umesh Chandra Das. He has stated that deceased Umesh Chandra Das has one son, four daughters and a widowed wife at the time of his death by the accident. Of the children three younger daughters are still minors. Umesh Chandra Das was a teacher in the Bhawanipur High School and he managed his own land. At the time of his death he was 51/52 years old. That a sum of Rs. 750/- has been claimed on account of medical and conveyance expenses for raking Umesh Chandra Das to Barpeta and from there to Gauhati Medical College for treatment and also for taking him back to Barpeta for post mortem examination on his dead body. P. W. 8 represents the minor claimants as guardian. This witness was cross-examined and in his cross-examination he has stated as follows:-
"I did not see the accident myself. He had about 60 Bighas of land. He did not cultivate the land himself. He had given adhi settlement of the same. I do not know how much paddy he used to get."
25. P.W. 4 Phatik Chandra Baishya is the Headmaster of Bhawanipur High School. His evidence is that deceased Umesh Chandra Das was an Assistant Teacher of Bhawanipur High School when the motor accident took place on 23-10-1971. He died in that accident. Deceased Umesh Chandra Das used to get his salary @ Rs. 355/- per month. He used to get Rs. 19.91 (p) per month also from the Provident Fund. At that time he was 51 years 7 months 21 days old. That he could have served upto the age of 60 years. His pay scale was Rs. 175-10-275-E. B.-10-375-E. B.-12.-50-400/. At this rate he would have earned Rs. 43,453/- till retirement. From the Provident Fund he would have received Rs. 2,093.76 (p). Exts. 3 and 4 are the certificates given by the witnesses. That Umesh Das's health was very good and in their locality he was a very important man and his dead body was cremated with great honour. P. W. 4 was not cross-examined by the opposite party.
26. Ext. 3 is to the following effect :-
"This is to certify that the total income of late Umesh Chandra Das, Assistant teacher, Bhawanipur Govt. Aided High School from the date of his death (24th October' 71) upto his date of retirement (1.3.80) will be Rs. 43,456.00 (Rupees Forty-three thousand four hundred and fifty six) only."
Sd. P. C. Baishya,
Headmaster, Bhawanipur Govt.
Aided High School."
27. Ext. 4 is to the following effect:-
"This is to certify that Late Umesh Chandra Das was an Assistant Teacher of my school. He died on 24th October, 1971; and according to his service record his age was 51 years 7 months and 23 days on 24th October, 1971.
Sd. P. C. Baishya,
Headmaster, Bhawanipur Govt. Aided
28. The learned Tribunal considered the evidence on record regarding the quantum of compensation and observed that the deceased, at the relevant time was drawing salary @ Rs. 345/- per month and he could have served upto 60 years and taking his age at the time of his death into consideration, the learned Tribunal concluded that the deceased could have earned about Rs. 33,000/- approximately upto the date of his retirement. The learned Tribunal also considered that this salary of Rs. 345/- per month have been increased had he been alive. There is no evidence to show what was his personal expenses. In the circumstances the learned Tribunal concluded that whatever might be his personal expenses, he could have spent at least Rs. 300/- per month for maintenance of his family, that is, the present claimants. Thus calculating @ Rs. 300/- per month for 8 years the amount comes to Rs. 28,800/- and having regard to his chances of promotion and all the circumstances, the learned Tribunal held that the compensation of Rs. 35,000/- as a lump sum amount would be a proper and very reasonable compensation in the instant case.
29. The above finding of the learned Tribunal has been challenged by the learned Counsel for the appellant on the ground that the learned Tribunal was not correct in his finding that out of Rs. 345/- per month, the deceased could invest Rs. 300/- per month for the maintenance of the members of his family, that is the present claimants. It has been submitted by the learned Counsel that the deceased must have spent more than Rs. 45/- per month, in any view of the matter, towards his personal expenses out of the salary received by him. That being the position, the learned Counsel submits that the basis of the calculation itself is wrong.
30. It is an admitted position that the deceased used to get on the date of his death by accident, a sum of Rs. 345/- per month as salary from the school in which he served. Now what were his personal expenses? There is no evidence to that effect. When the claimants have established that the salary of the deceased was Rs. 345/- per month, it would be the burden of the opposite party to establish either by adducing evidence of its own witness or by cross-examining the claimants' witnesses, what were the probable personal expenses of the deceased at the relevant time. On this point there is no evidence on record and the opposite party has not elicited any material on this point by cross-examining the claimants' witnesses. In the circumstances the learned Tribunal has observed :-
"There is no evidence to show what was his personal expense. But whatever his personal expense may be, he could have spent at least Rs. 300/- per month for the maintenance of his family, the present claimants."
Of course the learned Tribunal had to make some guess in the absence of any evidence on the point. But in any view of the matter, out of Rs. 345/-, taking Rs. 45/- per month only as the expenditure of the earning member appears to be low in our estimation. At least Rs. 100/- per month must have been spent by the earner out of Rs. 345/- and the balance must have been spent for the maintenance of the members of his family, that is, the present claimants. So, we find that the learned Tribunal should have held that out of Rs. 345/- per month, the deceased could spend Rs. 245/- per month for the maintenance of the claimants. In other words, the present claimants lost the benefit of Rs. 245/- per month by the accidental death of the deceased.
31. The next question is to which period this benefit would have been received by the present claimants.
32. The evidence on record goes to show that the deceased has a major son and a major daughter. So the daughter must be held to have attained marriageable age and the other three daughters are still minors, the widow is also there. The evidence on record is that upto the age of 60 years the deceased could have served in the school itself. It is nobody's case that after 60 years the man would have been incapable or remained idle or he could not have worked at all. The evidence of the witnesses goes to show that the deceased was a healthy person at the time of his death by accident. So he could have worked after retirement from school at least for 5 years more in other capacity if not in the same school. That being so, in calculating the compensation in lump sum, we find that the learned Tribunal should have taken his earning capacity upto 65 years at least, more particularly in the face of the fact that he has four daughters, one of whom has already attained marriageable age and the other three will also be attaining the marriageable age and the deceased would have to bear the
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expenses of all the marriageable daughters. So the deceased being about 52 years at the relevant time, he could have earned at least 13 years more upto the age of 65 years. So calculating @ Rs. 245/- per month for 13 years, the amount comes to Rs. 38,220/-. 33. The learned counsel for the appellant submits that since the learned Tribunal awarded a lump sum compensation, he ought to have legally deducted an amount at a certain percentage for the benefits that would accrue because of the lump sum amount awarded. In this connection he has referred several cases wherein it has been stated that when lump sum compensation is awarded, 10% to 20% should be deducted from the lump sum amount of compensation awarded. 34. Considering the materials on record and the relevant factors, we hold that in the instant case if 10% of the lump sum amount of compensation is deducted, it would be the just and fair deduction in the facts and circumstances of the case. So from Rs. 38,220/- if we deduct Rs. 3,822/-, the figure comes to Rs. 34,398/-. We accordingly hold that Rs. 34,398/- is the just and fair compensation in the facts and circumstances of the case. 35. In the circumstances we modify the award to the extent of Rs. 34,398/- as compensation to the claimants payable by the appellant-opposite party. Out of this sum of Rs. 34,398/- an amount of Rupees 10,000/- will be paid to the petitioner-claimant Smt. Mahamaya Das, widow of late Umesh Chandra Das and the balance amount of Rs. 24,398/- will be divided equally among the petitioner Nos. 2 to 6, We also direct, as directed by the learned Tribunal that the claimants will be entitled to interest @ 6% per annum from the date of the claim petition till realisation of the same. We further direct that the shares of the minor petitioners Nos. 4 to 6 will remain invested in any nationalised Bank so long as they continue to be minors and their natural guardian Chandra Mohan Das will be entitled to withdraw the interest from the amount invested in the names of the minors for the purpose of meeting the expenses of their maintenance. The order of costs of Rs. 300/- as made by the Tribunal in its award is also maintained. 36. In the result the appeal is dismissed with the above modification of the award. We leave the parties to bear the costs of this appeal. Ibotombi Singh, J.- I agree. Order accordingly.