Sharifunnisa and Others vs Basappa Ramchandra Date and Others

P.B. Sawant, J.—This is an appeal by the claimants against the order of the Accidents Claims Tribunal, Solapur. The claimants are the heirs of one Farooq Ahmed Shaikh, who died in the accident in question. The claimant No. 1 is his widow and claimant Nos. 2 and 4 are his daughters and claimant No. 3 is his son. The claimant Nos. 3 and 4 are minors. The original opponent No. 1 is the driver of the tractor in question which was involved in the accident. The original opponent No. 2 is the owner of the tractor and the opponent No. 3 is the insurer.

At about 10.30 a.m. on November 16, 1981, the deceased Farooq was proceeding on his bicycle on the road leading from Solapur Railway Station towards Modi Square, i.e. from west to east. On his way and some distance before the spot where the accident took place, he greeted witness Abdul Jabbar (AW 5), who had his pan shop by the side of the road, and proceeded further. The opponent No. 1 was coming with his tractor No. MTZ 7465 with two trolleys attached to it, from the opposite direction i.e. from east to west. The trolleys were empty. According to the evidence brought on record by the Applicants, the tractor was being driven at a fast speed. The first trolley struck the deceased Farooq and as a result of it, firstly his bicycle got entangled in the trolley. The opponent No. 1 heard the sound of the dash, looked to his right and found that the first trolley had given a dash to the deceased. Thereafter, according to him, he took the tractor slightly to the left. He then heard shouts of the people. Being frightened, he jumped out of the tractor and ran to the police station. He does not know what happened to the tractor thereafter. However, the evidence on record shows that soon after the bicycle was entangled in the trolley, the deceased also got entangled in it. The trolley went first to the south, dragging with it both the bicycle and the deceased, and thereafter turned to the north and going across the road went below the road on the northern side and hit the neem tree by the side of the road and came to a halt. The photographs on record give us an indication of the journey of the tractor from the moment of the accident till its final halt. In the process both the bicycle as well as the cyclist, the deceased Farooq were smashed. The deceased was run over by a wheel and as a result his brain material came out and he died instantaneously. The attention of many was drawn towards this accident and amongst them were witness Maruti Shinde, who was running a cycle repair shop and Abdul Rehman, witness No. 4, who was running, as stated earlier, his pan shop on the northern side of the road where the tractor ultimately came to a stand-still.

The claimants thereafter filed the present application for compensation alleging negligence on the part of opponent No. 1, the tractor driver, and claiming compensation of Rs. 1,00,000/- for the loss of dependency and consortium. The deceased was in Central Railway, working as Guard-A and at the relevant time was drawing a salary of Rs. l,515/- p.m. He was aged 48 years. The defence was that there was contributory negligence on the part of the cyclist and that actually it is he who was riding his bicycle in the middle of the road and had dashed against the trolley while the trolley was on its right side.

The Tribunal framed the necessary issues and recorded a finding that there was contributory negligence on the part of the deceased. The Tribunal further held that the claimants were entitled to loss of dependency of Rs. 1,07,200/- and the first claimant, i.e. the widow, was entitled to consortium of Rs. 8,000/-. The Tribunal, however, held that from the amount of dependency, the family pension of Rs. 35,136/-, calculated at Rs. 244/- p.m. for the first eight years, and at Rs. 122/- p.m. for the next eight years, was liable to be deducted. So also, according to the Tribunal, the gratuity and provident fund, together amounting to Rs. 33,374.36, was deductible. The Tribunal therefore, deducted the said amounts from the amount of Rs. 1,07,200/-. The balance amount of Rs. 41,689.64 was thereafter rounded up by the Tribunal to the amount of Rs. 42,000/-. To this amount was added the consortium of Rs. 8,000/-. Since the Tribunal had come to a conclusion that there was contributory negligence on the part of the deceased, the Tribunal divided the liability between the parties and awarded only a sum of Rs. 25,000/- as compensation. The Tribunal further directed that this amount of Rs. 25,000/- be paid to the claimants with interest thereon at 6% p.a. from the date of the application for the claim. It is this order dated the 12th October, 1983, passed by the Tribunal, which is strongly assailed in this appeal on behalf of the claimants.

Mr. R.M. Agarwal, the learned Counsel appearing for the claimants, contended that the Tribunal had committed a grievous error in recording the finding that there was negligence on the part of the deceased Farooq. He pointed out that the evidence, on the contrary, showed that it was opponent No. 1, the driver of the tractor, who alone was rash and negligent in driving the tractor which had resulted in the accident in question. He, therefore, submitted that no amount could have been deducted from the amount of dependency on account of contributory negligence. He further assailed the deductions made by the Tribunal being contrary to the decision of the courts on the point and pointed out that several decisions of this Court had also held that the family pension, gratuity and provident fund, which the claimants, in any case, are entitled to, should not be deducted from the amount of dependency. The Tribunal had, therefore, acted illegally in deducting the said amounts. He also urged that the amount of consortium awarded to the widow, being Rs. 8,000/-, was too meagre and deserved enhancement. He further contended that the rate of interest awarded on the amount of compensation was inadequate and the proper rate should not be less than 12% p.a.

As against this, Mr. Dalvi, the learned Counsel appearing for opponent Nos. 1 and 2, viz. the driver and the owner of the tractor, submitted that the finding recorded by the learned Tribunal that the deceased was negligent in riding his bicycle, was correct and, therefore, the Tribunal was right in deducting 50% of the amount from the amount of compensation payable to the claimants. He did not dispute that the other deductions made by the Tribunal were contrary to law and did not also seriously contest the claim made by Mr. Agarwal for a higher rate of interest. He, however, contended that the amount granted to the widow towards consortium was proper and needed no increase.

Mr. Kudrolli for the third Respondent, viz. the insurance company, submitted to the) orders of the court.

The main dispute in the appeal is with regard to the finding recorded by the Tribunal about the contributory negligence on the part of the deceased. Hence, it has become necessary to scrutinise the evidence more closely. On this point, we have the evidence of only three witnesses viz. opponent No. 1 himself, who was the driver of the tractor; (ii) Maruti Shinde, the cycle shop owner (AW 3); and (iii) Abdul Rehman, the pan shop owner (AW 4). Taking first the evidence of opponent No. 1, according to him, on that day he had unloaded the sugar cane at Sidheshwar Co-operative Sugar Factory and was taking the tractor, with two trolleys attached to it, to the land of one Kulkarni for loading his sugar cane in the trolleys. He was, thus, travelling from east to west on the road in question. The trolleys were empty, except for some ropes and wooden poles required for tying sugar cane. He was driving the tractor slowly. There was none else either on the tractor or in the trolleys. He was driving by the left side of the road, with the left wheels of the tractor and trolleys on the kacha portion of the road and their right wheels on the tar road. He crossed an electric pole on the road and thereafter heard a sound of dash against one of the trolleys behind him. He took the tractor to his further left. It is best to quote in his own words what he did thereafter:

...People started shouting asking me to be caught. When I heard the sound of dash I looked back from my right hand side of the body of the trailer. The bicyclist was still outside the trailer. I then took the tractor to my left side. The shouting started thereafter. The cyclist swung towards the trailer and he fell down. Owing to the shouts, I jumped down the tractor though it was running and ran towards the police station....

He then goes on to say as follows:

...After hearing the sound of dash I had applied the brake to the tractor. There was traffic on the road then. My tractor did not dash against the bicyclist. The bicycle dashed against the trolley....

In the cross-examination he has stated as follows:

...I had not seen whether the bicyclist was driving his bicycle by his left side from the opposite direction. It is not true that I am falsely stating that it was the bicyclist who dashed against the trolley or the tractor itself gave a dash. After hearing the dash I felt that I should at once apply the brakes and stop the tractor. It is not true that even so I jumped down a running tractor and ran away. I jumped down the tractor 5 to 6 feet further from the point where I had heard the sound of dash. I do not know what happened to the tractor afterwards. Afterwards I learnt that the tractor had taken a turn to the right side and came to a halt being stopped by a road side tree on the right side. I had jumped by my left side....

This deposition of opponent No. 1 would establish that the cyclist was on the right side of the tractor and the trolleys since either the trolley had hit the cyclist or the cyclist had hit the trolley on the right side of the trolley. This will mean further that the cyclist was driving his bicycle on the right side of the road. It further establishes that neither after hearing the sound of the dash on the right side of the trolley, nor after noticing that the bicycle had got entangled at the rear side of the first trolley, he cared to apply the brakes to the tractor. On the other hand, he took the tractor to his further left. The next thing established from his deposition is that there were people shouting at him after the collision between the trolley and the cyclist, but the only thing that he did after hearing the shouts was to jump out of the running tractor instead of stopping it. It is further established from this evidence that when after the dash, he had seen to his right, only the cycle was entangled and the cyclist was still outside the body of the trolley. This means that the deceased himself would not have been entangled in the trolley, had the opponent No. 1 stopped the trolley instead of moving it further to his left and leaving it thereafter in a running condition.

The undisputed facts on record further show that the tractor had first gone to the left, i.e. the southern side of the road, and on account of some obstruction had thereafter turned to the northern side of the road and after crossing the road had gone down it and hit the neem tree where the cycle and the pan shop of Maruti Shinde (AW 3) and Abdul Rehman (AW 4) respectively are located. The opponent No. l''s evidence further shows that he had not seen the approaching cyclist. This is probably because the cyclist was on the right side of the road and not on the middle of the road as is sought to be suggested by Mr. Dalvi. Par had he been driving his cycle on the middle of the road, the opponent No. 1 could not have helped seeing him.

One more thing, which emerges from his evidence, is that at the relevant time the trolleys were empty. It is common knowledge that if a tractor is driven at more than a moderate speed, the trolleys keep on swinging and moving sideways and the tractor driver is hardly in a position to control their movements. As is evidenced from the photographs on record, the first trolley was attached to the tractor by an iron rod of not more than 4 feet in length, whereas the second trolley was attached to the first trolley by a similar device. It is therefore, not improbable, that at the relevant time the trolleys were swinging sideways with the tractor being driven at the speed at which it was. It is true that opponent No. 1 has stated in his deposition that he was driving the tractor at a slow speed. But that statement will have to be taken with a pinch of salt, since his further conduct shows that he was unable to control it even after he found the cycle entangled in the trolley. On the other hand, he jumped out of it.

The panchnama of the scene of the accident shows that the deceased''s body was lying nearer the southern portion of the road, whereas his bicycle was lying on its northern portion on which the deceased was riding his bicycle. It, therefore, appears that the bicycle when it first dashed the trolley and got entangled in it, was damaged on the spot and the cyclist was dragged by the running tractor and thrown on the other side of the road.

We may now examine the evidence of witness Maruti Shinde. He is, admittedly, the owner of the cycle shop situate near the neem tree on the northern side of the road where the tractor ultimately came to a stand-still after its first trolley dashed against the tree. He knew the deceased Farooq because the deceased sometimes used to come to his shop for repairing his bicycle. In addition, it appears that this witness also resides in the Railway Porter Chawl. His presence at the spot was natural since he worked at his shop from 8.00 a.m. to 5/6.00 p.m. Nor is his presence disputed. According to him, at the relevant time Abdul Rehman, i.e. the other. witness, who is also known as Haji Panwalla, was standing near the neem tree. After talking to him, the witness was attending to his work when he heard a loud noise of the collision between the tractor and the bicycle little ahead of his shop. Before this collision, he had seen the deceased Farooq proceeding on bicycle by that road towards Modi Square, i.e. to the east with 2 to 3 sachets on the handle of the bicycle. Farooq had saluted Haji Panwalla at that time, and had passed them. He has further stated that the tractor was coming from the opposite direction, i.e. from the east to the west. When he saw the tractor, it was in motion and was on the southern portion of the road. The tractor had two trolleys and the bicycle had got entangled in the southern front wheel of the first trolley. The driver had already jumped out of the tractor and had run away. The engine of the tractor was running. The tractor then took a turn to the north and dashed against the neem tree and came to a halt. When he saw in the direction of the accident, the bicycle was being dragged along with the trolleys. He then tells us that Farooq was lying near the electric pole on the south side of the road. His head had been crushed.

All that has been suggested to this witness is that his father worked as a fitter in the loco shed of the Railways and, therefore, he knew the deceased for two to two-and-half years prior to his death. While examining his evidence, it has to be remembered that he had seen the accident only after the collision between the trolley and the deceased. It is, therefore, with reference to the situation subsequent to the collision that he has narrated the developments in question. No doubt, in his cross-examination, he was asked as to how the accident has occurred and to this question he had replied as follows:

...First the bicyclist was knocked in the front by the front small wheel of the driver''s left side. The big wheel of the tractor dragged the bicycle pushing it on the cross bar. The bicycle was disentangled having slipped from the big wheel and then the first left side wheel of the first trolley dashed against the head of the bicyclist and he fell down. The bicycle had come under the said wheel and was dragged and the bicycle frame broke down into two....

When, therefore, he says in the aforesaid passage that the bicycle or the bicyclist had hit on the left side of the driver, i.e. the driver of the tractor, or that the bicycle had knocked in the front small wheel on the driver''s left side or that the bicycle had got entangled in the southern side front wheel of the first trolley it has a relation to what he had seen at a later stage. For on the admission of the opponent No. 1 himself, the cycle had hit on the right side ot the first trolley. It will, therefore, be not correct to contend, as is sought to be done by Mr. Dalvi, that since the deceased had hit the trolley on its left side, he was on the wrong side of the road. That is not even the case of the opponent No. 1.

That takes us to the deposition of the third and the last witness on the point, viz. Abdul Rehman, the pan shop owner. He states that at the relevant time he was standing near the first witness Maruti Shinde. He had seen the deceased Farooq going from station to Modi Square, i.e. from west to east on his bicycle. Farooq had saluted him while passing. At that time the tractor was coming from the opposite direction and was in speed. He was looking in that direction at the relevant time. The deceased was going by the left side of the road. When the deceased was hardly 20 to 25 feet away from this witness, the big wheel of the tractor on the right hand side of the driver dashed Farooq and tossed him. Farooq fell on the road on the driver''s right hand side. Thereafter the first wheel of the first trolley on the right side of the driver dragged both Farooq and his cycle towards the driver''s left side, i.e. south side of the road. The bicycle broke down and the wheel of the trolley went over the head of Farooq and the body of Farooq lay there. According to him, the tractor then went down the road and came towards Taj Hotel, which is on the northern side of the road near the neem tree. In the meanwhile, the driver had jumped out of the tractor, while it was still in motion and had run away. According to this witness, they were all asking the members of the public to get away from the tractor, because the tractor was in motion. This witness was cross-examined to show that he knew the deceased and he admitted that he knew him for five to six years prior to the accident since the deceased used to visit his pan shop.. However, on the occurrence of the accident itself nothing useful to the defence came out of his cross-examination.

A scrutiny of the panchnama on record (Exh. 79) makes clear that the tractor had moved first to the south and thereafter to the north and had come down the road on the north side and had halted there with its first trolley resting against the tree. The panchnama also shows the position of the cycle and the pan shop which are close in the vicinity of the said tree. The position of the bicycle and the dead body and of the other articles lying on the road also lend support to the version of the two witnesses.

In the face of this evidence on record, it was sought to be contended on behalf of opponent Nos. 1 and 2 that the deceased was also negligent in riding his bicycle, because, according to them he was riding in the middle of the road. In order to prove this case of the defence, a reliance was placed on two facts. In the first instance, it was contended that opponent No. 1 in his deposition had stated that the left side wheel of the tractor and the trolleys were on the kacha road, which according to the defence shows, that the tractor was being run very much on the right side of the road. The second fact on which reliance is placed is the statement made by witness Maruti Shinde in his cross-examination that when he had seen Farooq going towards Modi Square he was in the middle of the road.

As regards the statement of opponent No. 1 that at the relevant time the left wheels of the tractor and the trolleys were on the kacha road, what, has to be remembered is that there is nothing on record to show that the kacha road to which the reference is made by opponent No. 1 is not the collar of the road, but the kacha road beyond the road proper. In fact, he could not have driven the tractor on the kacha road beyond the road proper, because, admittedly it is not a part of the road and had he tried to drive the tractor on that portion, it would have been difficult for him to do so as is evident from the photographs on record. Assuming, therefore, that the left wheels of the tractor and the trolleys were on the collar portion of the road, the width of the road being 25 feet, a sizable portion of the road would be occupied by the trolleys. The trolleys being empty, even at the moderate speed they would sway side ways. According to the deposition of Abdul Rehman, the tractor was in speed. That the driver could not control the tractor is evident from the fact that instead of applying brakes, he jumped out of the tractor in a running condition and ran away. The tractor then ran helter skelter and ultimately dashed against the tree. This also shows that the tractor must have been driven at an uncontrollable speed. If this is so, the movement of the trolleys must have been sufficiently violent, hitting anyone coming in their sway. Hence, even if we accept the interested words of opponent No. 1 that the left wheels of both the tractor and the trolleys were on the kacha road (for which there is no evidence on record), it will not prove that the deceased was riding the bicycle on the wrong side of the road.

As regards the statement in the cross-examination of Maruti Shinde, that the deceased was in the middle of the road, we are afraid that the same is sought to be distorted out of context. A proper scrutiny of his deposition shows that the witness was referring to the situation much prior to the accident. When he said that the deceased was in the middle of the road, he was referring to the point of time when the deceased had greeted the other witness Abdul Rehman. Admittedly, that spot was atleast 20 to 25 feet away front the spot of the accident, if not more. The witness himself has stated that after he saw Farooq greeting the witness Abdul Rehman, he had turned his back and was attending to his work. Therefore, it is wrong to conclude from this sentence in his deposition that at the time of the accident the deceased was in the middle of the road. Since this was the only circumstance on which reliance was placed for coming to the conclusion that the deceased was driving his bicycle on the wrong side of the road and was, therefore, guilty of contributory negligence, we have no hesitation in holding that the Tribunal has committed a grave error in appreciating the evidence on record. It is for this reason again that we are unable to appreciate the relevant contention advanced on behalf of the opponents. We are, on the contrary, of the view that there is nothing on record to show that there was any negligence on the part of the deceased. According to us the evidence unmistakably shows rashness and negligence on the part of opponent No. 1, who on his own admission, jumped from the tractor leaving it in a running condition and did not even care to know what had happened to it thereafter. He has further accepted the position that he had heard a dash on the right side of the trolleys and at this time he had looked back when he found that the bicycle of the deceased was entangled in the rear of the first trolley. At that time he did not care to stop the tractor. On the other hand, he took it to the left and thereafter jumped from it. It is obvious that it is after this that the deceased got entangled in the wheels of the trolley and met with his death. Nothing further is necessary to prove the culpable negligence on the part of the opponent No. 1,

As regards the quantum of compensation, neither Mr. Dalvi nor Mr. Kudrolli had anything to say against the amount of dependency calculated by the Tribunal at Rs. 1,07,200/-. Since further both the counsel appearing for the opponents fairly conceded that the amount of family pension and gratuity and of the provident fund could not have been deducted from the amount of dependency, the claimants were entitled to the entire sum of Rs. 1,07,200/-. An argument was no doubt advanced on behalf of the claimants that the consortium of Rs. 8,000/- granted to the widow was too meagre. However, we find that the claimants have restricted their claim to Rs. 1,00,000/- in this appeal and even if the consortium, as given by the Tribunal, viz. Rs. 8,000/- is added to the amount of Rs. 1,07,200, it will exceed the claim made in the application by Rs. 15,200/-. We would, therefore, keep the amount of consortium as awarded by the Tribunal undisturbed and award to the claimants the sum of Rs. 1,15,200/-, i.e. Rs. 1,07,200/- being the amount of dependency and Rs. 8,000/- towards consortium. Although the claim is restricted to Rs. 1,00,000/- in the facts and circumstances of the case and on the calculation made by the Tribunal itself, the claimants would be entitled to the said sum of Rs. 1,15,200/-. The claimants, would, however, pay court fees on the additional sum of Rs. 15,200/- within four weeks, from today.

We further find a good deal of substance in the grievance made on behalf of the claimants that they have been awarded interest only at 6% p.a. instead of atleast 12% per annum. We feel that in such cases as these arising out of accidents, the proper rate of interest to be awarded should be atleast 12% p.a. There is usually a considerable lapse of time between the date of the accident and the ultimate realization of the amount and in the meanwhile the value of the rupee depreciates and the victims and their dependents in many cases have also to maintain themselves on borrowings which cannot be had at 6% p.a. Hence we also increase the rate of interest awarded by the Tribunal from 6% to 12% p.a. and direct that the Respondents will pay to the claimants compensation of Rs. 1,15,200/- with interest thereon at 12% p.a. from the date of application, i.e. 4th February, 1982 till payment. The liability of Respondent No. 3 being confined to Rs. 50,000/- by the insurance policy, the Respondent No. 3 will pay the amount of Rs. 50,000/- only with interest thereon at 12% p.a. and corresponding costs.

The appeal is, thus, allowed with costs throughout.