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Judgment
K.P. Sivasubramaniam, J.—This appeal is directed against the award of the Motor Accident Claims Tribunal, Madurai in O.P. No. 721 of
1992. The State Transport Corporation is the appellant in the above appeal. According to the claimants, the accident took place on 28.2.1992 at
about 8.20 p.m. in Vikramangalam to Kosavapatli Road, Usilampatti Taluk. At that time, the deceased harvested paddy in his land and stored the
paddy and straw on the right side of the road and he was keeping a watch over the paddy and the straw during the said night. The respondent''s
bus bearing registration No. TML.6484 was proceeding from South to North to go to Periyar Bus Stand, Madurai. The driver of the bus was
proceeding on the wrong side of the road and he rashly and negligently drove the bus, as a result of which at about 8.20.p.m., the bus ran over the
deceased and caused multiple bleeding injuries. The injured was taken to Government Hospital, Sholavandan and on the way to the hospital he
died due to the injuries caused by the accident. The accident was purely due to the rash and negligent driving of the driver of the bus which ran
over the deceased. The deceased was a landlord, aged about 35 years and he was hale and healthy at the time of the accident and he was earning
an annual income of Rs. 60,000/-, The first petitioner is his wife and petitioners 2 and 3 are his minor daughters while the fourth petitioner is the
minor son. The deceased was the sole breadwinner of the family and except the deceased, there was no other male member to look after the
petitioners. The first petitioner was aged only about 27 years and all the children were minors and therefore helpless. The first petitioner could not
recover from the shock and mental agony. As a result of a sudden demise, the entire family lost its status. But for the accident, the deceased would
have lived up 75 to 80 years and would have supported the petitioners. The petitioners made a total claim of Rs. 3.1akhs.
In the counter filed by the respondent, the manner of the accident as stated in the claim petition was denied. According to the respondent, the
bus was proceeding from Kosavapatti to Periyar bus stand. The driver was driving the vehicle at a very moderate speed by observing the traffic
rules and regulations and as it was proceeding near Vikramangalam at Usilampatti Road Junction, paddy straw was spread over the road for
drying purpose and the deceased was sleeping inside the straw which was spread over the road. The straw had fully covered the deceased and as
the bus ran over the straw, the rear left wheel of the bus ran over the deceased. The accident had therefore happened only on account of the
disorderly behaviour of the deceased and the respondent was not liable to pay any compensation. The quantum of compensation as claimed by the
claimants was also disputed and termed as imaginary.
On a consideration of the said pleadings and evidence, the Tribunal held that the accident had occurred purely due to the negligence and
rashness on the part of the driver of the bus with reference to the quantum of compensation, the Tribunal awarded a total compensation of Rs.
2,80,000/-. Hence the present appeal by the Transport corporation.
As regards negligence, learned counsel for the appellants contends that the F.I.R. given by P.W.2 himself, being the brother of the deceased,
disclosed that the deceased was lying on the road where the paddy straw was spread over and hence according to the learned counsel, the
claimants have no right to claim compensation from the transport corporation. Per contra, learned counsel for the respondent contends that the
P.W.2 has positively stated that he and the deceased were sitting on the mud portion of the road that the vehicle was coming rashly and without
sounding; the horn and without one of the head lights of the vehicle burning. Learned counsel would also contend vehemently that even assuming
that the deceased was lying on the road, the driver of the vehicle had a duty to be careful and was liable to compensate for the accident.
I have considered the mutual submissions as well as the evidence on record. P.W.I being the brother of the deceased who alleges to have been
sitting with the deceased had given the First Information Report and the following is the exact statement as made and signed by him.
But in the oral evidence, he has stated that both of them were sitting on the mud road after keeping the paddy bags on the margin of the road
and that the bus came fast without sounding horn and one of the head lights was not burning. The attempt on the part of the witnesses to shape the
facts to sustain the petition is very obvious. In contrast, the clear statement in the F.I.R. is that the deceased was lying down on the road on the
western side of the road. In the oral evidence he would state that both of them when sitting on the edge of the road. In the F.I.R., there is also no
mention of only one of the head lights of the vehicle burning.
It is therefore, very clear that the witness is not speaking the truth and had chosen to depose falsely to sustain the claim petition being the brother
of the deceased. Apart from the glaring contradiction on the vital aspect as pointed above and the intentional inclusion of the allegation about the
head light of the vehicle, the F.I.R. shows that they had spread the paddy straw over the entire portion, but in the evidence, he would state that
they have spread the straw only on the mud portion of the road. This is again an attempt to mitigate the irresponsible conduct on their part. There is
also no explanation as to why neither Rajangamtior Virumaodi who are said to have witnessed the accident had been examined as witnesses, being
independent persons. In cross examinations, P.W.2 states that he was sitting six feet away from the deceased and that as soon as the deceased
was hit by the bus, the witness claims to have jumped away. This again is again an attempt to explain the impossible situation of the witness not
having sustained any injury. If really both of them were sitting together close to each other, the claim that he immediately jumped away as soon as
the deceased was hit by the bus, is unbelievable. The witness had therefore, rendered himself unbelievable and the First Information Report before
the police being earlier in point of time, may be taken as reflecting the correct facts. Even though there is no proof of the driver''s statement that the
body of the deceased was covered by the straw, it is admitted in the evidence of P.W.2 that the straw was kept spread over the road including the
mud portion and that P.W.I and 2 and the deceased were sitting on the mud portion of the road. Therefore, it is clear from the F.I.R. given by
P.W.2 himself that the deceased was lying on the straw spread over the road.
The question which therefore arises is, as to how far a person who chose to lie down on the public road is entitled to complain of about the
accident.
It is true that the death of a person is tragic and deserves all the sympathetic consideration in the matter of claim for the assessment of
compensation. But the right of a person to claim compensation should be based on accepted principles, which should be necessary to fasten the
liability on the alleged wrong-doer who also has a right not to be mulcted with unfair liability. While a citizen has a right to claim compensation, it is
equally imperative that there are certain basic duties and atleast minimal discipline which are expected of him. It would be utterly irresponsible to
squat or lie down on a highway and to claim that the speeding heavy vehicles must be careful enough to notice and avoid him and that too during
dark hours when visibility is bound to be poor. Highways, roads and streets are intended for vehicular and pedestrian traffic and not a place for
either resting or sleeping. Therefore, in the present case, I am inclined to hold that the deceased is liable at least for contributory negligence if not
absolute negligence. This is a typical case for which the maxim ""voluntary non fit injuria"" would apply. To quote Lord Herschell, the maxim is
founded on good sense and justice and one who has invited or assented to an act being done towards him cannot, when he suffers from it,
complaint of it as a wrong, vide Smith v, Baskar and Sons - 1981 Appeal Cases 325. In the present case, there is a breach of duty of care and
caution which a road user owes to himself to avoid the accident in a highway.
As far as quantum of compensation is concerned, the Tribunal had adopted an erroneous method of calculation. A multiplier of 25 has been
adopted and deducting 1/5th of the amount. A sum of Rs. 10,000/- has been granted towards loss of service which cannot also be upheld, having
regard to the fact that separate amount has been earmarked towards loss of income. The following calculation would represent just and fair
compensation. Considering the age of the deceased being 35 years and considering that the evidence discloses that the deceased being not only
owning 4-1/2 acres, but was also cultivating 5 acres of wet land taken on lease, it would be reasonable to assume that he would have been
contributing to the family Rs. 1500/- per month, as against a sum of Rs. 1,000/-, as fixed by the Tribunal.
The amount of Rs. 3,46,000/- would represent the total compensation by adopting the most liberal possible calculation. Though on a proper
assessment, a higher proportion of contributory negligence should be fixed on the deceased, if not absolute negligence on his part for his
irresponsible behaviour, yet by adopting a liberal approach, 40% of deduction towards contributory negligence would be fair. In the result, the
claimants would be entitled to receive Rs. 2,07,600/- after deducting 40% of the total compensation, as the amount receivable by the claimants
with interest at the rate of 12% per annum from the date of petition. The appeal is allowed in the above terms. No costs.