Varada Reddy vs Suseelamma and Others

V. Sastry, J.—Second Respondent is the Appellant in this C.M.A. 429 of 1970, which arises out of M.A.C.P. No. 27 of 1966. The said petition was filed by the first Respondent herein claiming compensation of Rs. 27,000/- on account of the death of her husband Thambi Reddi in an accident, which took place on 11-9-1966 on Palamaner-Chittor road.

According to the case of the Petitioner in M.A.C.P. No. 27/66 the bus A.P.C. 2571 driven by R.W. 1 was going along the road at a High speed, when the husband of the Petitioner, Thambi Reddy, was sitting on the pillion seat of the motor cycle belonging to the Appellant herein. They were going to Mahasamudram and they took a turn to the Mahasamudram road from Palamaner-Chittoor Road. The bus was going behind the motor cycle. On some occasions on the road the bus happened to over take the motor cycle while on some other occasions the motor cycle happened to over take the bus. At the turning towards Mahasamudram road the accident took place and the bus actually ran over the motor-cycle resulting in the instantaneous death of the first Respondent''s husband and in causing serious injuries to the Appellant herein i.e. a fracture to his leg. He fell unconscious and his motor cycle got stuck up under the bus. The first Respondent therefore claimed the compensation amount from the owner of the bus A.P.C. 2571 and also from the Appellant herein on the ground that both of them were negligent in driving the vehicles, which caused the accident and the death of Thambi Reddi. The third Respondent in the C.M.A. 429 of 1970 is the General Assurance Society, Limited with whom the said bus was insured.

In the lower court the Petitioner examined herself as P.W. 1 and her father-in-law as P.W. 2. The Karnam of the Village was examined as P.W. 3. P.Ws. 4 and 5 were the eye witnesses to the occurrence as they were travelling in the same bus. P.W. 6 is the Circle Inspector of Police, who conducted the enquiry into the incident and P.W. 7 is the Brakes Inspector, who gave the report Ex. A. 9. The bus driver was examined as R.W. 1 while another Lakshmana Rao was examined as R.W. 2.

In M.A.C.P. 9 of 196 the Appellant herein (C.M.A. 429/79) (second Respondent in the other case M.A.C.P. 27 of 1966) claimed from the owner of the bus and the Insurance Company a sum of Rs. 5000/- towards compensation for the fracture of his leg caused by the negligence of the driver of the bus. Both the M.A.C.Ps. were tried together and evidence was recorded in M.A.C.P. 27 of 1966. In M.A.C.P. 9 of 1968 the motor Vehicles Inspector has been examined as P.W. 1 while the Appellant herein examined himself as P.W. 2.

The lower court after taking the entire evidence into consideration came to the conclusion that the accident took place exclusively due to the rashness and negligence of the Appellant herein and that the bus driver was not in any manner rash or negligent when the accident took place. The lower court was not even persuaded to hold that the bus driver was guilty of at least contributory negligence. As regards the compensation the lower court held that by the death of the husband, the family was deprived of monthly income of Rs. 90/- and he being a person aged about 21 years, had yet 34 years to run, calculating the annual savings of the deceased at Rs. 1,080/- by, 34 the total was arrived at Rs. 36,720/-. Out of the said sum the lower court deducted 1/3rd for the sustenance of the deceased another 1/3rd was deducted on account of the benefit of acceleration to the estate. Thus the net amount of Rs. 12,240/- was held to be reasonable compensation to be given to the first Respondent herein. The first Respondent claimed Rs. 2,000/-towards expenses for the obsequies. The lower court thought that it was excessive and therefore fixed the sum at Rs. 760/-. Thus in all a sum of Rs. 13,000/- was decreed to the first Respondent herein together with interest at 6% per annum from the date of the petition till payment.

Since the lower court found that the Appellant herein was negligent, it dismissed the petition filed by him M.A.C.P. 9 of 1968. But in case the said petition was to be decreed the lower court held that he was not entitled to anything more than Rs. 1,500/-as the total compensation against the Respondents in the said petition. Against the decision in M.A.C.P. 9 of 1968 the Petitioner in the lower court has preferred C.M.A. 233 of 1971. Both of them have been heard by me as they are connected with each other.

The main question that arises in C.M.A. No. 429/70 is as to whether 1st Respondent or 2nd Respondent in the lower court or both were negligent in the driving of their vehicles at the time when the accident occurred. The Petitioner examined two eye witnesses to show that it was the driver of the vehicle that was actually negligent. P.W. 4 was one of the persons who was travelling in that bus. He states in his chief examination thus.

At the Mahasamudram cross road the motor cycle was 4 baras ahead of the bus. The bus coming with speed. The motor cycle turned towards right. The Palamner road runs from west to east. The bus swerved to the right. The bus foot board hit the motor cycle. The bus fell into the right side pit. One Varadareddi (Appellant herein) was driving the cycle. Thambireddi was sitting behind him. I know both of them. Thambireddi died. The motor cycle rider (R-2) showed the signal towards the right. The bus driver is putting the dip and dim the light. The driver did not apply the brake and stop the bus. It dashed.

In the cross examination of this witness, he was asked about some questions and portions of his statements given before the police u/s 162, Code of Criminal Procedure, have been marked for the purpose of contradiction as Exs. B. 1 to B. 4. Mr. Adinarayana Reddy, the learned Counsel for the Appellant, contends that it is doubtful whether really the 162 Code of Criminal Procedure statements which are inadmissible, can be put for cross examination for the purpose of contradiction. It is not the evidence given by the witnesses in that criminal case that was used for the purpose of contradiction, but it was only portions of his 162 Code of Criminal Procedure statement that were used. It is really doubtful whether such use can be made of 162 statements though they may be used for the purpose of contradiction in a criminal case, especially when those 162 statements have not been proved by the investigating officer who has been examined in this case. Apart from that, I also find that the contradictions are not so material as to make the evidence of this witness unworthy of credence. For instance, Ex. B. 1 has been marked to show that he was sitting behind the driver according to his 162 statement where as he has deposed in the court now that he was sitting in the long seat by the side of the driver, It is not made clear whether the long seat was by the side of, or behind the driver, because the long seat could be at both the places. Then coming to Ex. B. 2, it is only in relation to his omission to state before the police that the bus was running with over speed. If he has stated anything contrary, it can be marked for contradiction. This omission I think, is not really material. Then coming to Exs. B. 3 and B. 4 he deposed before the police that A. 1 showed different lights and the motor cyclist, who was going in front, gave side to the bus going to the extreme left. The bus driver, thinking that the motor cyclist gave side, was crossing Mahasamudram cross road. In the mean while, the motor cyclist who was on the left side, suddenly turned the motor cycle towards right to go to Mahasamudram village. In his evidence in the court, he has stated that he was not asked and so he did not state before the police that the motor cycle driver showed his hand towards right. He further states that the bus driver gave the signal of dip and dim with lights. In the chief examination itself, as extracted by me above, the witness has stated that the motor cycle rider swerved the cycle towards the right. So I do not find any contradiction between his present statement in the court in chief examination and his 162 statement, I am not, therefore, satisfied that the ground on which the evidence of this witness is discarded by the lower court, is correct. In the cross examination by the 2nd Respondent, Exs. B. 3 and B. 5 were relied upon for the purpose of contradiction. They do not in any way make his evidence unreliable.

P.W. 5 is another passenger in the same bus, who stated in the chief examination as follows:

The bus was going with over speed. I was sitting behind the driver and looking in front. The bus driver did not blow the horn. I got down and saw R2 and Tambireddi were injured. The police examined me. I was also examined in the 1st class court. The motor cycle was also damaged.

In the cross examination, he stated, "The motor cycle suddenly turned right. At that time the bus was 3 or 4 baras from the motor cycle. The motor cycle man did not raise his hand giving the direction." In his cross examination also, Exs. B. 7 to B. 9 were marked for the purpose of contradiction. But he stated in that court that the bus went with over-speed according to him. In his cross-examination by the 2nd Respondent, he stated that he did not observe whether Rule 2 gave a signal to take a turn and that he did not observe it as he was sitting behind the driver. That is how he explains his version in the cross examination by the 1st Respondent, that the motor cycle man did not raise his hand. According to him, as he was sitting behind the driver, it was not possible for him to see and know whether any hand was raised by the motor cycle man to give the direction. The lower court has very properly believed the evidence of this witness. I do not see any reason why his evidence should be rejected.

P.W. 6 is the Sub Inspector of police who made the investigation. He filed the sketch Ex. A. 7. According to him, the motor cycle was underneath the bus towards the rear. There were no skid marks there. His investigation disclosed that the driver of the motor vehicle and the motor cyclist were both negligent. He had filed tbe postmortem certificate which was marked as Ex. A. 8 and the report of the Motor Vehicles Inspector which was marked as Ex. A. 9. In the cross examination, it was elicited from him that the motor cycle was completely under the rear portion of the bus and that he had not found any skid or drag marks.

The Motor Vehicles Inspector, J. Venkataratnam was examined as P.W. 7. He also stated in the chief examination as follows:-

I did not find any skid marks either for the bus or for the motor cycle. The right side of the bus is involved in the accident. Absence of skid marks is an indication that no brakes were suddenly applied. The brakes of the bus were in order. I could not test the brake efficiency of the motor cycle as it could not be tested on road.

In his cross examination, it was elicited that he has not stated in his report that he found the motor cycle underneath the bus. But that fact cannot be doubted because not only Ex. A. 7 sketch shows it but also the investigating officer examined as P.W. 6 has testified to it. It was also elicited from him in cross-examination by Rule 2 that he did not find any damage to the rear foot board of the bus.

The driver of the bus has been examined as R.W. 1. In his chief examination, he stated as follows:-

I was driving the bus with head lights on. I was going behind the motor cycle at a distance of 8 yards. The motor cycle was going along the centre of the road. We were going one behind the other keeping the distance for over a furlong. I asked for side by dimming the lights. The motor cyclist swerved to the extreme left and gave me side. I was about to overtake the cyclist, suddenly near the Mahasamudram cross road, the motor cyclist swerved to the right across road, towards south Mahasamudram cross road is to the south of the road. He did not show any signal. At that point of time the bus was behind the motor cyclist at a distance of two yards. To avert the accident, I swerved the bus towards south and landed in the pit to the south of the main road and east of the Mahasamudram cross road.

In the cross examination by the 2nd Respondent, he stated he had inferred from the sound he heard, that the motor cycle must have hit against the foot board on the rear side of the bus. At this stage, it may be noted that the evidence of the Motor Vehicles Inspector is contrary to this statement, because no damage has been found to rear foot board of the bus. If the bus had hit the motor cycle with such a great impact on the rear foot board, it is unthinkable that there would not have been any damage to it. It was suggested to him in cross examination, that the 2nd Respondent Appellant herein gave an indication that he was turning towards south from the time when the bus was behind the motor cycle at a distance of 30 to 40 yards, that he did not dim and bright the lights and that he hit against the motor cycle while driving the bus with speed. He, no doubt, denied the suggestion. He has also denied the suggestion that he drove the bus over the motor cycle. In the cross examination by the Petitioner, it was suggested that he was negligent and that he lost control over the steering and landed the bus in the pit.

The 2nd Respondent in this case has been examined as R.W. 2. He says in his evidence that he had showed his right hand indicating that he intended to take a turn towards south, that he took the turn towards south and crossed the width of the tar road and entered the southern road margin and then the bus dashed against him. In the cross-examination, he denied the suggestion that first he gave side to the bus and that he took a sudden turn towards south and dashed against the foot board when the bus swerved towards south to avoid the impact. He has also stated that the bus was coming behind with speed. He could not say exactly the speed but he said that it might be about 50 miles. In the cross- examination of this witness, he stated that he looked back before he took a turn towards south and noticed the bus at a distance of about 100 yards, that he was coming with a uniform speed of 20 or 25 miles, that he did not notice the bus before he took a turn towards the south and that when he looked back he saw the bus lights but the light was not falling on him. He denied the suggestion that the bus driver did not give a signal to overtake him, that he first gave him way and then turned towards south towards Mahasamudram without giving any signal. He was not certain as to which part of the bus dashed against his vehicle. He lost conciousness the moment the impact took place. In the cross examination, the only effective answer elicited from him was, "It do not remember if in my claim I alleged negligence on the part of the bus driver or that he was coming at a speed of 50 miles."

On the above evidence, it is very difficult to find, as the lower court has done, that the bus driver examined as R.W. 1 was not guilty of negligence. As a matter of fact, the lower court has given a finding that the entire blame for this accident cannot be rested on the bus driver; but having said that, the lower court ultimately holds that the accident took place exclusively due to rash and negligent driving of the 2nd Respondent and that the bus driver was not in any manner rash or negligent when the accident took place. It was not even prepared to be persuaded to hold that the bus driver was guilty of at least contributory negligence. On a perusal of the entire oral evidence considered by me as stated supra, and the sketch marked as Ex. A. 7, the post mortem certificate marked as Ex. A. 8 and the report of the Motor Vehicles Inspector, I am unable to agree with the conclusion arrived at by the lower court that the driver of the vehicle has to be completely exonerated in this case. On the other hand from the facts illustrated by the evidence in this case it is clear that the bus was going at a high speed, that the bus driver did not give any horn to the motor cycle owner (Appellant herein) though both of them were running for a distance of about a furlong close to each other, that at the time when the accident took plack, he attempted to over take the motor cycle when the distance between him and the motor cycle was only 3 or 4 yards, that he had given only the dip and dim light, if at all and not any horn and that the accident took place at cross roads when he could expect other vehicles coming in and therefore when he was bound to reduce the speed. The evidence given by P.Ws. 4 and 5 as discussed by me supra clearly shows that their was negligence on the part of the driver of the motor bus which was going at a high speed in not giving the horn, in not applying the brakes and in dashing against the motor cycle. I am inclined to believe the evidence of P.Ws. 4 and 5 in this respect. The evidence of P.W. 6 also supports my conclusion that the driver of the bus was responsible for the accident. The evidence of the Motor Vehicles Inspector clearly shows that there were no skidmarks for the bus and absence of the skidmarks is an indication that no brakes were suddenly applied. The brakes of the bus were in order and yet the bus driver did not even attempt to apply the brakes and avert the accident. In such a situation, the driver cannot escape his liability for his negligence in running the bus at such a high speed and in not even applying the brakes. Assuming that the motor cyclist swerved to right just in front of the bus and the brakes of the bus were in order, he should have applied the brakes and averted a catastrophic accident as in this case. I am, therefore, unable to agree with the finding of the learned Judge that the bus driver was not at all to be blamed and that he was not guilty of any negligence.

The next question is whether the Appellant herein also was guilty of contributory negligence in having swerved to the right without giving prior indication to the bus driver. It is the case of the Appellant herein that the had shown his right hand from a distance of about 100 yards indicating that he intended to turn towards the south and he took the turn and crossed the width of the tar road and it was only when he entered the southern road margin that the bus dashed against him. This story appears to be true because as seen from the sketch, the accident took place not any where on the road either on the left side or on the centre because R.W. 1 says that at the time when the motor cyclist took a turn to the right, the motor cycle was at the centre; if so, the accident should have occurred at the centre of the road or on the right side portion of the road. But I find from the sketch that is filed by P.W. 6 that the motor cycle was actually caught up under the wheels of the bus and the bus itself was thrown into a ditch or near the southern road margin. It was at any rate beyond the road or road margin. If really the accident had occurred at the cross roads where turn to Mahasamudram road has to take place, there was no reason as to how the motor cycle could come exactly under the wheels of the bus which was thrown far away into the ditch. The body of deceased Thambi reddi who was sitting on the pillion was also found away from the road and beyond the Mahasamudram road. This itself shows that the bus driver was negligent in driving the bus and it was due to his negligence that the accident had been caused which resulted in the death of Thambi reddi. The fact that the Appellant herein tried to cross the road when the bus was so near him, instead of swerving to the left and allowing the bus to overtake him, itself shows that there was contributory negligence on his part which resulted in this accident. I am, therefore, of opinion that both the driver of the bus and the Appellant herein should be held guilty of negligence in this case, the driver being held primarily negligent in causing the accident and the Appellant herein contributing his negligence for the said accident.

I will now take up the question about the quantm of compensation. The lower court has awarded a sum of Rs. 12,240/- as the compensation payable to the claimant. This figure was arrived at by taking the earning capacity of Thambi reddi, the deceased, to be Rs. 90/- per month and Rs. 1080/- per year and by multiplying the said figure by 34 years of his life of expectation. From the total amount of Rs. 36,720/- the lower court deducted one third of the amount which was required for sustenance of the deceased and also another one third towards the benefit of acceleration to the claim. It therefore awarded the balance one third. The Appellant has not shown now the measure arrived at by the commissioner is wrong. It may be stated at this juncture that it was admitted by the Appellant himself in cross examination that Thambireddi used to get an annual income of Rs. 1000/- or 1500/- from his lands. Mr. Adinayarana Reddy wanted to say that it related to the joint family lands. But his statement is not so clear. It is admitted that the joint family had some lands, and Thambireddi would have got some land towards his share. Besides that, he was an active person in the early years of his life and he would have been a wage-earner for the family. The amount of Rs. 90/- estimated by the lower Court as the proable income from him for the family cannot be said to be excessive. I am therefore satisfied that the amount of Rs. 12,240/- awarded towards compensation is not excessive. The amount of Rs. 760/- awarded towards funeral expenses is not excessive. I, therefore, confirm the figures granted by the lower court.

In view of may finding that the Appellant herein also was guilty of contributory negligence in causing this accident, the question that arises in this case is in what manner the liability has to be apportioned between the owner of the bus and the Appellant herein. Mr. Innayya Reddy, the learned Counsel for the 1st Respondent, has brought to my notice the decision of Federal Court of Malaysia in Joginder Kaur v. Malayan Banking Ltd. (1972) A.C.J. 6, wherein in such a situation, the liability was distributed in the proportion of 4:1. In Ramoo v. Gan Soo Swee (1972) A.C.J. 85, a decision of the Privy Council, the amount was distributed in the proportion of 3:1. The Appellant in the present case also received injuries and sustained fracture of his leg. He had to under go treatment in the hospital of Chittoor and Vellore. Even though he has been in a way responsible for the accident, he himself suffered very much. I am, therefore, of opinion that in this case the liability to pay the amount of compensation awarded to the claimant 1st Respondent herein should be apportioned between the Appellant and the 2nd Respondent in the proportion of 1:3 i.e., the Appellant would be liable to pay one fourth of the amount while the 2nd Respondent would be liable to pay three fourth of the amount. Since the vehicle was insured with the 3rd Respondent, the 3rd Respondent would pay the amount due by the 2nd Respondent to the 1st Respondent.

After the arguments were over and the judgment was being dictated, Mr. T. Venkataramana appearing for the 2nd Respondent appeared before me and wanted to advance his arguments and I gave him the liberty. He raised two points. Firstly he contended that because the motor cycle of the Appellant herein was not insured, neither the motor cycle owner nor the claimant is entitled to any compensation in this case. He has relied upon Section 94 of Motor Vehicles Act. I am not shown as to how that section would help him in this contention. Moreover, it is seen that this contention is not raised by him in the lower court. That section merely speaks of the necessity for insurance against third party risk. The claimant herein is claiming this amount from the persons who have caused the death of her husband, viz., the bus driver and the motor cycle owner whose contributory negligence has caused this accident. The fact that the motor cycle was insured or not, is immaterial so far as claimant is concerned. If the bus has been insured, the liability would be passed on to the insurance company so far as the proportional liability of the bus owner is concerned. In so far as the motor cycle owner is concerned if he has not insured the vehicle against third party risk with any insurance company, he would have to shell down the amount from his pocket. I am not shown any authority that in case the vehicle is not insured, the claimant is not entitled to any amount. The next point raised by him in this case is that there is no driver''s licence obtained by the Appellant herein. He has admitted that the Appellant herein has a learner''s licence. According to Rule 33 of the Andhra Pradesh Motor Vehicles Rules, the Appellant is entitled to drive a vehicle with a learner''s licence. It is also clear from the facts of this case that he has applied for renewal of that licence on 2-9-1966 and actually the renewal was granted to him on 30-9-66. The accident occured on 11-9-66. It was held in The Public Prosecutor Vs. Dhanuskodia Pillai and Another, : by Govinda Menon, J. as his Lordship (then was), that if a person, who already had a licence and had applied for renewal of the same before the expiry of the term mentioned there in and bona fide expected to get it renewed in due course retrospectively from the date of its expiry, drives a vehicle after the expiry of the licence but before the renewed licence is actually received, he cannot be said to have driven the vehicle without a licence. That case, no doubt related to a permanent licence but not a learner''s licence, but the same principle, I thing would apply to the case of a learner''s licence. The lower court also has negatived this point in paragraph 5 of its judgment. In any event, the lack of any proper licence on the part of the Appellant on the date of the occurrence would not in any event, affect the right of the claimant to compensation.

In the result, C.M.A. No. 429/70 is partly allowed. It is declared that the Appellant herein is liable for one-fourth share in the compensation payable to the Petitioner while the Respondents 2 and 3 are liable for the rest. The parties will pay and receive proportionate costs in both the court.