Y.B. Suryavanshi, J.

1. The orders passed in MA No. 228 of 1983 shall also govern disposal of MA Nos. 253,255 and 219 of 1983 because they arise out of a common award, dated 28.2.1983, by M.AC.T., Jabalpur, in respect of Claim Case Nos. 8,11,12 and 13 of 1979 relating to the death of four persons caused in the same accident, due to head-on collision of M.P.S.R.T.C. bus No. MPW 7953 and truck No. MPQ 3018, belonging to Surendra Singh. These four appeals are for enhancement of the compensations awarded in the claim cases. MA No. 238 of 1983 is also disposed of by these orders, since it relates to the compensation claimed by the owner of the truck, Surendra Singh, against M.P.S.R.T.C., its driver Shiv Kumar Shukla, and the insurance company in respect of repairs of truck and the pecuniary loss caused during the period when the truck was under repairs.

2. It is common ground that the bus No. MPW 7953 belongs to M.P.S.RT.C, on 11.12.1978, as an "express passenger bus", it plied between Rewa and Jabalpur. At about 1.45 noon, on its way to Jabalpur, it was approaching Sihora. To be precise, at the relevant time, it was in the vicinity of a petrol pump on Katni-Jabalpur road. The bus was driven by Shiv Kumar Shukla, who was a driver in the employment of M.P.S.RT.C. Being a bazar day, there were some pedestrians of the village Mansakra. It is also undisputed that the unladen truck No. MPQ 3018 was coming from the opposite direction, i.e., Sihora and was proceeding towards Katni. That truck was driven by Surjeet Singh, who had a licence to drive the truck. Surendra Singh is the owner of the truck and brother of Surjeet Singh. The truck was insured with the New India Assurance Co. Ltd. There was head-on collision between the bus and the truck. Thereafter, the truck went ahead and overturned on its side and accordingly, the wheels on the right side of the truck were facing the sky. The main road was blocked. At this stage, it is not disputed that this accident resulted in seven deaths and injuries to three persons. The deceased Chhagelal along with his brothers wife, Anhotibai, were standing by the side of the road, waiting for the bus when this accident occurred. After the collision, the truck went ahead and overturned, causing thereby the deaths of Chhagelal and Anhotibai. The legal heirs of Chhagelal and Anhotibai have filed separate claim cases, respectively, 8 of 1979 and 12 of 1979, and their corresponding appeals are, respectively, MA 228 of 1983 and 255 of 1983. Similarly, the said truck had also caused the death of Ramabai and Suniabai, who were on the left side of the kacha road, as pedestrians. Both were crushed and died when the truck overturned. The legal heirs of Ramabai filed Claim Case No. 11 of 1979, and their appeal for enhancement of compensation is MA 253 of 1983, and legal heirs of Suniabai filed Claim Case No. 13 of 1979 and their appeal for enhancement of compensation is MA 219 of 1983. The owner of the truck, Surendra Singh, filed Claim Case No. 49 of 1979 claiming total damages of Rs. 64,000/- for repairs and pecuniary loss. It was dismissed by the Tribunal. Hence, his appeal is MA No. 238 of 1983.

3. So far as Claim Case Nos. 8,11,12 and 13 of 1979 (respectively, MA Nos. 228, 253, 255 and 219 of 1983) are concerned, the particulars of the individual claims would be mentioned elsewhere. Broadly stated, these claimants alleged that on 11.12.1978, Shiv Kumar Shukla was driving M.P.S.R.T.C. bus at a high speed, without blowing horn; whereas the truck driven by Surjeet Singh was also coming from the opposite direction at a high speed. The tar road at the place of incident, broadly stated, was 60 to 80 feet in width, and was straight, giving a clear vision to both the drivers. The bus driver had encroached upon more than half of the tar road. None of the drivers was careful enough to leave the road while crossing each other. The truck, because of high speed, was also wavering and out of control. Both the drivers did not take any precautions and did not leave sufficient space for the other vehicle, when crossing each other, though the road was straight, clear and had no traffic. The collision, in these circumstances, was due to rash and negligent driving by both the drivers. It was alleged that the principle of res ipsa loquitur also applied in the case. The truck, after the impact, went ahead and overturned after going over some distance. The road was also blocked due to this accident. Passengers in the bus as also the pedestrians got injuries and some persons died. Since both the drivers were responsible for the accident, the claim is against M.P.S.R.T.C., the bus driver Shiv Kumar Shukla; Surjeet Singh and Surendra Singh, respectively, driver and owner of the truck; and also against the insurance company with whom the truck was insured.

4. Claim Case No. 8 of 1979 (M.A 228 of 1983): (a) Claimants in this case are Bisarti Bai, aged 25 years, widow of deceased Chhagelal; Govind Prasad and Pyari Bai, aged 52 and 48 years, respectively, are parents of Chhagelal; Kalloo Bai and Rambharose are daughter and son aged 5 and 3 years, respectively, of the deceased Chhagelal. They alleged that at the relevant time the deceased Chhagelal, along with his brothers wife Anhoti Bai was standing in front of petrol pump, on left side of the road, on the kacha portion of land, at a distance of about 30 feet from the petrol pump. That being a market day, they were waiting for the arrival of the bus for going to Salimnabad. After the collision, the truck left the road, crossed the kacha portion of the road called pavement and dashed Chhagelal, who died instantaneously.

(b) They stated that Chhagelal was the sole bread-winner in the family; he was aged 27 years and looking to his physique, his expectancy of life would be 60 years; he would have lived at least for another 33 years and more; his occupation was cultivation, blacksmithy and bidi-making; he earned about Rs. 150/-p.m. and the dependency was Rs. 75/- p.m. Hence, in the above circumstances, they claimed Rs. 30,000/- for dependency, Rs. 4,000/-for expenses on family members who came from various places and stayed at their village for the obsequies/ceremonies on the 10th and 13th day functions; Rs. 5,000/- for cremation; Rs. 5,000/- (Rs. 1,000/- each) for mental agony; Rs. 5,000/- for the marriage purpose of the minors; Rs. 6,000/- for loss of consortium claimed by the wife; Rs. 2,000/- each for loss of love and affection towards minors; Rs. 4,000/- (Rs. 2,000/- each) for loss of love of the deceased towards parents; Rs. 200/- for funeral expenses and Rs. 500/- as cremation expenses. Total Rs. 58,700/-. The total award is for Rs. 18,000/-.

(c) Claim Case No. 12 of 1979 (MA 255 of 1983): This relates to the death of Anhoti Bai. To recall, along with her brother-in-law (Chhagelal), she was standing on the side of the road when the truck went ahead and dashed her along with Chhagelal. The claimants in this case are: Tejilal aged 30 years, husband of the deceased and Ramkumar, Punia Bai and Jayanti all minors, respectively, aged 12, 9 and 4. The deceased was about 28 years of age and helped the family in cultivation and bidi-making. She was also rendering domestic services. Out of her earnings Rs. 100/- from bidi-making, she spent Rs. 50/- on the family. The Tribunal awarded Rs. 10,800/- as against the total claim of Rs. 35,700/-.

(d) Claim Case No. 11 of 1979 (MA 253 of 1983): The claimants Ghansoo Patel, aged 45 years, is the husband of deceased Ramabai, and Ram Prasad and Ramlal, aged 20 years and 18 years, are her sons. Ramabai, aged 40 years, had good health. Besides rendering domestic services, she used to sell vegetables, earning thereby approximately Rs. 300/- p.m. As against a total claim of Rs. 32,700/- the Tribunal has awarded Rs. 10,800/-.

(e) Claim Case No. 13 of 1979 (M.A 219 of 1983): This relates to the death of Suniabai. This deceased along with her neighbors had returned from the market and for going to their village they were standing in front of the petrol pump, on the left side of the road on the kacha portion, when the truck, after collision, crashed her, resulting in her instantaneous death. Amongst the claimants, Baisakhoo Patel is the husband, and claimant Nos. 2 to 5, Rajkumar, Prakash, Kaushaliya Bai and Ahiliya Bai, all minors, respectively, aged 15, 5, 12 and 8 years, are sons and daughters of the deceased. Suniabai looked after cultivation and sale of vegetables from their land. Her earnings were approximately Rs. 300/-p.m. and she would have lived for another ,36 years. The estimated expectancy of life is said to be 70 years. Similar to Claim Case No. 8 of 1979 [para 4 (b)] a total compensation of Rs. 63,700/- has been claimed. The Tribunal awarded Rs. 10,800/-.

5. (a) All the non-applicants denied the claims. The non-applicant Nos. 1 and 2, M.P.S.R.T.C. and its driver filed joint written statement in the claim cases and their main contentions were: that the bus stopped at the octroi barrier before proceeding to Sihora Basti. Then the driver noticed a bullock-cart ahead of the bus. He sounded horn to alert the cart to move aside. Meanwhile, the driver saw a truck coming from the opposite direction at a very high and uncontrollable speed, on the wrong side. The bus driver moved to his left and stopped the vehicle. The truck dashed the right front portion of the bus and went ahead. The truck was uncontrolled and it overturned and crushed some pedestrians and bystanders and also injured the persons who were in the truck. Thus, the bus driver was not at all rash or negligent. He denied that it is a case of composite negligence. The truck driver was solely responsible for this accident, since it was his rash and negligent driving which caused the accident. All other contentions relating to the compensation claimed were denied.

(b) Non-applicant Nos. 3 and 4, the owner and driver of the truck, filed joint written statement. The New India Assurance Co. Ltd. filed a separate written statement. They mainly contended that it was the bus driver who was driving the bus at a high speed, without blowing horn. The truck driver left sufficient space to enable the bus to cross. But the bus had encroached upon more than half of the road. The truck driver took his vehicle to his left, almost on the edge of the road, whereas the bus, which was on the wrong side of the road, dashed the truck. The accident was solely due to the rash and negligent driving of the bus driver. All other averments relating to the compensation were also denied.

(c) Non-applicant No. 5, the insurance company, also opposed the claims and seems to have adopted the defences taken up by the truck driver. Accordingly, the accident is said to have occurred only because of the rash and negligent driving of the bus. It was further contended that the truck is insured with non-applicant No. 5. But in breach of the conditions of the policy, passengers were taken in the truck when it was insured to carry goods; and furthermore, the track driver did not have a valid driving licence, and therefore, the insurance company is not liable; that, in any case, its liability is limited to Rs. 50,000/- in respect of "any claim or series of claims arising out of one event". Pausing here, we may observe that the insurance company did not substantiate the facts amounting to breach of conditions of the policy. Similarly, it was found that at the relevant time, the truck driver had a valid driving licence.

6. Claim Case No. 49 of 1979 (MA 238 of 1983): In this claim petition, the owner of the truck Surendra Singh filed a claim for damages against the M.P.S.R.T.C. and its driver and insurance company alleging that the bus driver was rash and negligent, which caused serious injuries to the pedestrians when the truck fell over them. Even the truck driver sustained severe injuries. It seems that in this claim case initially the driver Surjeet Singh was also joined. But by a subsequent amendment his name and parts of the claim petition were deleted. Surendra Singh has claimed Rs. 40,000/- spent on repairs of the truck which was badly smashed; Rs. 18,000/-for the loss of income for 61 days when the truck was lying idle during repairs; and Rs. 100/- as notice charges. This claim for damages was dismissed by the Tribunal on 4th March, 1983. Non-applicants completely denied this claim on the grounds stated by them in the written statement in claim case.

7. In the above perspective, we have four Misc. AppealsNos. MA 228, M.A 253, MA 255 and M.A 219 of 1983 for enhancement of compensation; whereas MA. No. 238 of 1983 is by the truck owner whose claim for damages has been dismissed. In MA No. 255 of 1983, M.P.S.R.T.C. and its driver have preferred cross-objections against the findings of the Tribunal. Inter alia, it was contended that no award should have been made against them; and furthermore, the Tribunal has not properly determined the ratio of negligence and rashness between the two drivers, if at all such a finding could be borne out from the facts on record; that the award is entirely unsupportable in law and is liable to be set aside.

8. The learned counsel Mr. R.R. Jaiswal appearing for all the appellants in the Misc. Appeals and Mr. K.P. Verma, counsel appearing for the truck owner and the learned counsel Mr. Rajendra Tiwari for the M.P.S.R.T.C. and its driver and Mr. R.P. Verma for insurance company were heard. Records perused. Under Rule 293 (2) of Madhya Pradesh Motor Accidents Claims Tribunal Rules, 1914, the Tribunal had recorded the evidence on common issues; and that is why in some claim cases the original statements are on record and copies thereof have been filed and considered in other cases regarding the common issues relating to rash and negligent driving of the vehicles. In the common award (except Claim Case No. 49 of 1979: MA 238 of 1983) in paras 84 to 86, the Tribunal catalogued the witnesses examined in the claim cases which were consolidated. Then, in para 87 and onwards the Tribunal had considered the evidence of as many as 12 witnesses. Out of them, the statement of Surjeet Singh is that of truck driver, who had further examined Kamal Kumar, Dwarka Prasad and Sipahilal on his behalf. The awards given by the Tribunal have already been mentioned earlier. It may further be mentioned that the Tribunal had held that both the drivers were obstinate in not leaving sufficient space on the road for the other vehicle and drove the vehicles at high speed while crossing each other which resulted in the collision, causing thereby deaths of and injuries to various persons. The liability of both the drivers has been apportioned as 50 : 50.

9. The main points for consideration are as follows:

(1) Whether the accident was due to rash and negligent driving by the bus driver, as contended on behalf of the truck owner and the driver

(2) Whether the accident was due to rash and negligent driving by the truck driver, as contended by the M.P.S.R.T.C. and its driver

(3) Whether the accident was caused due to composite/contributory negligence and the drivers of both the vehicles were rash and negligent in driving

(4) Whether the compensation awarded by the Tribunal was just and proper, or is liable to be enhanced If so, to what extent

(5) Whether the truck owner is entitled to damages as claimed

Point Nos 1, 2 and 3

10. Amongst the eye-witnesses to the incident, witnesses Shiv Kumar and Ram Milan were at the petrol pump. Witnesses Ram-khilawan and Chanduram were passengers in the ill-fated bus, who had boarded it from Rewa, for onward journey upto Jabalpur. The witnesses Bhupendra Kumar Nayak, Kanta Nayak and Tara Devi belong to one family, and they were also passengers in the said bus. Shiv Kumar Shukla and Surjeet Singh are drivers of the bus and the truck, respectively. Dwarka Prasad was a passenger, who has been examined on behalf of Surjeet Singh, truck driver. Sipahilal had a tea shop in the vicinity of the incident.

11. According to Shiv Kumar, Ram Milan and Kamal Kumar, at the place of the incident the road was about 60/70 feet in width, and undisputedly, it was a bazar day. Moreover, there was Moharam festival. As admitted by truck drivers witness Kamal Kumar, some villagers, as pedestrians, were also present on the unmetalled part of the road. To recall, except the above, there was no other traffic on the main road, though bus driver Shiv Kumar Shukla says that he saw a bullock-cart and had sounded the horn. But then, the presence of the bullock-cart is not stated by other witnesses. The road being straight, both the drivers had seen the other vehicle approaching from the opposite direction from a long distance.

12. The bus driver Shiv Kumar Shukla had stated that the bus had stopped at the octroi-post. The conductor thereafter gave a signal and the bus proceeded. This story seems to have been introduced to support the contention that the bus could not have gained speed on a short distance where the accident occurred. The conductor of the bus (a material witness) had not been examined nor any official at octroi-post. Moreover, according to Sipahilal, who has a tea shop there, only the buses going towards Bahoriband stop at octroi-post and according to Shiv Kumar, the bus did not stop at chungi naka. Shiv Kumar and Sipahilal were witnesses from the locality. Therefore, we do not believe the bus drivers version that the bus was initially stopped at chungi naka. The bus drivers version "that a bullock-cart was going towards Sihora" also appears to be a cooked-up version.

13. This accident occurred opposite petrol pump on Katni-Sihora Road. According to Shiv Kumar and Ram Milan, the width at the place of the accident was 60 to 70; whereas according to Kamal Kumar, the total width was 45, which included 5 on either side of the road which was unmetalled part, near the place of the accident and almost adjoining according to the evidence but at some distance, there is a semi-circular road leading to the petrol pump. That is why it seems the width at that place is stated to be 60 to 70. According to the truck driver Surjeet Singh, the road was 35 in width, but the tarred portion was about 15, which seems reasonable also. Even Shiv Kumar Shukla, bus driver, says that the road was about 18 in width and on either side, the unmetalled part was 6 each. The point which is noteworthy is that the tarred portion of the road was about 15. Looking to the width of two heavy vehicles, which had to cross each other, the wheels on the left side, as a reasonable and prudent driver would do, had to be on the Unmetalled part of the road. In other words, to enable the other vehicle a safe passage while crossing, a portion of the vehicle had to be driven on the left side. But the entire evidence shows, as has been found by the Tribunal, that none of the drivers intended to take that precaution. On the contrary, both the drivers were hugging to remain almost on the middle of the road. There is absolutely no evidence that any of these drivers blew the horn, or gave any light signals or otherwise indicated the approaching vehicle to keep away more to the left while crossing. Shiv Kumar Shukla, bus driver, says that one-third of his vehicle was on the tar road and two-third was on the unmetalled road. Surjeet Singh had also made such self-serving statement. Thus, the accident occurred because of the negligence of both the drivers of the vehicles in keeping themselves on the main road, without leaving sufficient space for the other vehicle. (Also refer Driving Regulation No. 1, in Tenth Schedule under Motor Vehicles Act).

14. Now, as regards the speed, according to Shiv Kumar, both the vehicles were driven at a speed of 60 to 70 kmph. After the collision, the truck went ahead and overturned. Ram Milan says that after the collision, the truck went over a distance of 30 and then overturned. And furthermore, there were six pedestrians on the left side of the road on kacha part. Out of those, four were crushed to death by the truck driver.

15. The statements of Ramkhilawan and Chanduram who had boarded the bus from starting point at Rewa, are important. The departure time from Rewa was 6 a.m. for this long journey upto Jabalpur. But both these witnesses have stated that for reasons best known to the Roadways, the bus left at about 7 a.m., i.e., one hour late. When it arrived at Maihar, there was some mechanical defect and according to Ramkhilawan, it was further delayed for about one and a quarter hour. In this context, their statements seem quite sensible that the bus driver was trying to make up the time and therefore, it was driven at a high speed. It is in this context that Ramkhilawan said that after Katni, the passengers had shown reactions and there were some contemporaneous utterances by the passengers not to go so fast. According to Bhupendra Kumar Nayak, Kanta Nayak and Tara Devi, both the vehicles were at a high speed when the collision had occurred. Speed, in itself, is not always the decisive criterion. A driver may drive a vehicle as fast as he can, depending upon the traffic, the width of the road, the condition of the vehicle etc. But, when a driver of a heavy vehicle finds another heavy vehicle approaching from the opposite direction, he has to slow down the vehicle to a safer speed to keep it under control and has to leave sufficient space for the other vehicle for crossing. Both these aspects were callously ignored by both the drivers and therefore, they did not show the care which a reasonable man would show in similar circumstances. In other words, both were rash and negligent.

16. (a) From the statement of Kamal Kumar, we find that the pedestrians were on the unmetalled road, and therefore, at that particular juncture, the truck driver may not have driven the truck more on its left side. But then, the vision was clear and he should have foreseen the situation and slowed down the vehicle. That is why, in those circumstances, more or less, the right sides of the vehicles collided and the truck crushed the pedestrians, as described earlier.

(b) To reiterate, the pedestrians were not alerted by sounding the horn. They were innocently waiting at safer places on the extreme end of the road. Therefore, it had been rightly urged that the evidence apart, the rule of res ipsa loquitur is also attracted. In General Manager, Kamataka State Road Trans. Corpn. v. Krishnan : 1981 ACJ 273 (Karnataka), two buses coming from opposite directions brushed each other resulting in injuries to the passengers. It was held that "both the drivers were rash and negligent, and the doctrine came into operation." We, therefore, concur with the findings of the Tribunal, viz., that both the drivers were rash and negligent in driving. We may refer to the cases of Baker v. Market Harborough Industrial Co-operative Society 1953 (1) WLR 1472 and Wallace v. Richards (Leicester) Ltd., referred in Binghams Motor Claims Cases, 7th Edition, by Taylor, at page 50, wherein it was held:

The inference was that both the drivers were negligent in not keeping a proper look-out and hugging the centre of the road. In the absence of evidence that one was more to blame than the other, the blame should be apportioned equally. Assuming that one vehicle was over the centre line a few inches, and thus to blame, why did not the other one pull in more to its near side The absence of any avoiding action makes that vehicle also to blame. It was not necessary to prove that the other vehicle was over the cats eyes. It was sufficient to show that the defendant should have taken avoiding action.

We may further refer to Bishamber Sahai v. State of U.P. : 1975 ACJ 154 (Allahabad), Subhash Chander v. State of Haryana : 1975 ACJ 164 (P&H) and New Great Ins. Co. Ltd. v. Baladeb Gahir : 1975 ACJ 498 (Orissa), in which the liability of the drivers of the two vehicles involved in collision was fixed at 50 : 50. Therefore, our findings on point Nos. 1 to 3 are: that both the drivers were negligent; that this is a case of composite negligence and their liability for the accident was 50 : 50.

Point No. 4

17. M.A 228 of 1983, arising out of Claim Case No. 8 of 1979: The deceased Chhagelal Vishwakarma was aged 27 years. His occupation was cultivation, blacksmithy and bidi-making. The particulars about the claim have already been referred in para 4 (a) and (b) supra. We have gone through the relevant evidence of the widow of the deceased Bisarti Bai and deceaseds father Govind Prasad. Bisarti Bai had been formally examined. But her statement is very cryptic. All that she says is that now the expenses of the family, which is joint, are met by the earnings of herself and her mother-in-law, who are labourers. The other witness Govind Prasad too had deposed about the other members of the family. According to him, their mess was joint; the deceased was the sole bread-winner in the family whose earnings were about Rs. 300/-p.m. The Tribunal, in paras 136 and 137, found that the monthly income was Rs. 100/-to Rs. 150/- p.m. Therefore, the final finding is: that the monthly earning was Rs. 100/- and dependency was Rs. 75/-. Accordingly, the annual earnings are held to be Rs. 1,200/-. In fact, on this finding, the amount of annual dependency would be (75 X 12) = Rs. 900/-as calculated by the Tribunal. The Tribunal has accepted 20 years multiplier. Thus, according to these findings, the amount is Rs. 18,000/-.

18. Adverting to certain details about the claim referred in para 4 (b), we find that the statements of both the witnesses are not very satisfactory. Damages are not awarded "by way of solatium" and therefore, the damages claimed on that count cannot be awarded. In para 6, Govind Prasad stated that he has claimed Rs. 6,000/- for obsequies. But then further details are missing. True, certain obsequies are performed on the 10th and 13th day; even relations from different places gather together; but, in absence of other data, this expenditure seems to be exaggerated, and even otherwise, vague. Moreover, such a huge or disproportionate expenditure, even if incurred, does not seem reasonable, though the custom and traditions-ridden society sometimes sticks to it. However, the total amount of Rs. 700/- is claimed as funeral expenses also. The dead body was first taken to the hospital at Sihora and subsequently brought for funeral. Then, in para 4 Govind Prasad states that the ashes were taken to Gangaji. For those reasons, an amount of Rs. 700/- under the head funeral/cremation expenses seems quite reasonable and should be allowed. Looking to the young age of the deceased, we are not inclined to interfere in the multiplier of 20 years, adopted by the Tribunal.

19. So far as Bisarti Bai is concerned, she was about 20 years when examined before the Tribunal. The deceased had a good physique. The sudden death of her husband had put an end to the long period of marital life ordinarily expected to last for another 20 years or more. In cross-examination, Bisarti Bai admitted that second marriage in their caste is not forbidden. But then, with two minor children, the prospects of second marriage have to be ordinarily ruled out. She has claimed Rs. 6,000/- for loss of consortium. In Srisailam Devastanam v. Bhavani Pramilamma : 1983 ACJ 580 (AP), the age of the deceased was 35 years, the widow, besides other compensation, was awarded a sum of Rs. 6,500/- for loss of consortium. In Polavarapu Somarajyam v. Andhra Pradesh State Road Thans. Corpn. 1984 ACJ 18 (AP), the husband was 30 years old, the widow was awarded Rs. 5,000/- for loss of consortium to her. Therefore, in these circumstances, the widow Bisarti Bai is awarded Rs. 5,000/- on account of loss of consortium. Thus, the total amount of compensation would be (Rs. 18,000/- plus Rs. 700/- for funeral expenses, plus Rs. 5,000/- for loss of consortium) total Rs. 23,700/-.

20. M.A No. 253 of 1983 (M.AC.C. No. 11 of 1979): The deceased is Ramabai, aged 39 years. Claimant No. 1 Ghansoo is the husband of the deceased and claimant Nos. 2 and 3 are sons, respectively, aged 20 and 18 years. To reiterate, the deceased rendered domestic services and helped in selling vegetables and earned thereby approximately Rs. 300/- p.m. The claim was under various heads totalling Rs. 32,700/-. The award is for Rs. 10,800/-. The only statement is that of Ghansoo, who in para 4 had deposed that the deceased helped them in taking vegetables to the market. As in the other case referred above, no damages could be awarded by way of solatium to the claimant Nos. 2 and 3; similarly, they have claimed for damages on account of loss of love of mother and under the head mental agony Rs. 1,000/- each, which has to be disallowed. However, the death of a relation entails funeral expenses and certain ceremonies which are absolutely necessary in the society. The claim for Rs. 700/- on this account, therefore, deserves to be allowed. On basis of the materials placed before the Tribunal, here contribution to the earnings has been determined between Rs. 90/- to Rs. 100/- p.m. It has been assessed that she was spending Rs. 25/- on herself and contributed Rs. 75/- p.m. towards the expenses of the family. Thus, the annual dependency is Rs. 75 X 12 = Rs. 900/-. Looking to the deceaseds age, being 40 years, with a multiplier of 12 years, Rs. 10,800/- have been awarded. Deceaseds sons are adults. But, the deceaseds husband Ghansoo is entitled to damages for loss of consortium. In C. Venkatesham v. General Manager, Andhra Pradesh State Road Transport Corpn. : 1977 ACJ 536 (AP), the husband was the claimant and the deceased was a household wife, aged 21 years; the dependency was assessed at Rs. 100/- per month with a multiplier of 15 years. The net award was for Rs. 18,000/-.In K. Narayana Reddiar v. P. Venugopala Reddiar : 1976 ACJ 474 (AP), the age of the deceased who was a housewife, was 50 years and the husband was 56 years old. Damages awarded for loss of consortium were for Rs. 4,000/-. In the instant case, therefore, Rs. 5,000/- could be awarded for damages for loss of consortium. Accordingly, the award would be for Rs. 10,800/- plus Rs. 5,000/- plus Rs. 700/- = total Rs. 16,500/-.

21. M.A No. 255 of 1983 (MAC.C. No. 12 of 1979): This relates to the death of Anhotibai, aged 28 years. The claimants are the husband Tejilal, aged 30 years and their son and daughter Ramkumar and Punia Bai respectively aged 12 years and 9 years. In the claim petition, Rs. 19,000/- have been claimed on the ground that the monthly income of the deceased was Rs. 100/- p.m. and the contribution would have been upto the age of 60 years; the total claim under various heads is for Rs. 35,700/-. On a consideration of the statement of Tejilal, the claim only to the extent of Rs. 700/- as total expenses for funeral/cremation, seems to be proper. The claim in respect of damages by way of solatium has rightly not been considered by the Tribunal. According to Tejilal, out of Rs. 100/- his wife spent Rs. 50/- on herself and contribution to the family was for Rs. 50/- p.m. Thus, the annual dependency is Rs. 50 X 12 = Rs. 600/-. With this assessment of dependency and a multiplier of 18 years, the award is for Rs. 10,800/-. In view of the state of evidence, we are inclined to add Rs. 5,000/- as damages for loss of consortium plus Rs. 700/- as cremation expenses. Therefore, the total award would be for Rs. 10,800/- plus Rs. 5,000/- plus Rs. 700/- = Rs. 16,500/-. Apropos this discussion, cross-objections filed by M.P.S.R.T.C. are dismissed.

22. MA No. 219 of 1983 (M.AC.C. No. 13 of 1979): The age of the deceased Suniabai was 34 years. The husband Baisakhoo is aged 40 years. Other claimants are Rajkumar, Prakash, Kaushaliya Bai and Ahiliya Bai, respectively 16,5,12 and 8 years old. The total claim was for Rs. 63,700/-. The damages claimed for mental agony and by way of solatium (sentimental damages) cannot be awarded. The claim in respect of funeral/ cremation expenses Rs. 700/- about which the claimant Baisakhoo had deposed, seems to be quite reasonable. The pecuniary loss of contribution to the family has been assessed on a flat rate of Rs. 300/- p.m. upto the age of 70 years, i.e., for 36 years more from the time of death. Unfortunately, the amount claimed in the petition is just mechanically repeated in the statement. However, the only evidence is that the deceased helped in cultivation, rendered domestic services as a housewife and helped in selling the vegetables and thereby earned on an average Rs. 10/- per day. On basis of these materials, the Tribunal, for reasons given in paras 126 and 147 of the award, assessed her contribution/dependency at the rate of Rs. 90/- to Rs. 100/- p.m. and held that the deceased was spending Rs. 25/- on herself and Rs. 75/- on family members. Thus, the total annual dependency was for Rs. 75 X 12 = Rs. 900/- and with 12 years multiplier = Rs. 10,800/- have been awarded. In absence of clear and cogent evidence, we are of the view that this pecuniary loss of Rs. 10,800/-, as assessed in absence of other material, seems proper. To this, we would add Rs. 5,000/- as damages for loss of consortium to the husband and Rs. 700/- as cremation expenses. Thus, the total award would be for Rs. 16,500/-.

Point No. 5

23. M.A. No. 238 of 1983 (M.AC.C. No. 49 of 1979: This relates to the claim for damages by owner of the truck against M.P.S.R.T.C. and its driver, claiming Rs. 40,000/- on repairs of the truck and Rs. 18,000/- for loss of income for 61 days when the truck was lying idle under repairs. The non-applicants raised usual defences described earlier. The claim is based on the contention that the bus driver was rash and negligent and the owner of the truck suffered losses thereby. However, the question whether the accident was due to rash and negligent driving by the bus driver has already been discussed and with our finding that it is a case of composite negligence, no further discussion is called for.

24. The learned counsel for the appellant argued that the truck was smashed and the claimant Surendra Singh had proved damages. On the other hand, we find that the statements of Kamal Kumar, Dwarka Prasad and Sipahi-lal are not material, so far as this claim is concerned. Their evidence has also been considered which was in respect of the point regarding the rash and negligent driving. Similarly, even the statement of Surjeet Singh who is the truck driver is silent about the extent of damages claimed by his brother Surendra Singh. Only two statements survive for consideration. Surendra Singh has deposed that the entire body had broken down. He had replaced dashboard, radiator, buffer, mudguard which are on front side of the vehicle. He spent about Rs. 17,000/- to Rs. 18,000/- on body building and labour charges. Some accessories were replaced which cost him Rs. 25,000/-. Then, there was loss of income calculated at the rate of Rs. 300/- per day. The above evidence is lacking in many respects. The special damages are to be pleaded specifically in the claim petition. Specific particulars were not mentioned. Then, the statement of Surendra Singh is vague and omnibus. He said that dashboard etc. have been replaced. No receipts for purchases have been produced. It is easy to say that some old accessories were purchased from Allahabad and Kanpur. But this evidence is also vague. The persons from whom they were purchased, were also not examined. In para 8, he admits that some kacha and final bills are with him. But no such documentary evidence is adduced, though available. According to him, he had taken one Munna mistry to the spot; and there a list of parts broken and to be repaired was drawn up. On that basis, parts and accessories are said to have been purchased for replacement. Munna mistry has not been examined and that list has also not been produced. Only one witness has been examined who is Sahuram mistry. Along with another partner Mahendra Singh, he was doing the business of body-building in Katni. That Mahendra Singh could not have been examined because since some years he had left Katni. Sahuram says that the truck was lying with them for repairs for two months. Even the period has not been mentioned in the claim petition. Even the oral evidence is vague. According to Sahuram, they were paid Rs. 3,000/- as labour charges, and materials worth Rs. 15,000/- were supplied by the truck owner. A list of articles was drawn up and given to Surendra Singh before this work was done. This list is also not produced. Mahendra Singh used to pass on kacha receipts about labour charges. No such receipts have been produced to support the claim. According to the claimant, some second-hand accessories were purchased and others were new. In the claim petition it is said that the front and rear tyres were also rendered completely useless. For most of such accessories and parts, cash memos or bills could have been produced. It cannot be denied that in the head-on collision between two vehicles involving the front right side portion of the truck, there must have been damage caused to the light, buffer etc. and such damages could be claimed which are necessary to put the damaged vehicle in its original condition. The claimant has not said a word as to what was the condition of the vehicle at the time of the accident. In fact, it was a second-hand truck and this fact has come to surface only in cross-examination. The persons to whom the truck was given on hire could have been examined to show loss of income, particularly because the owner does not keep any account whatsoever about the income and expenditure which also is most unusual. For all these reasons, the claim has been rightly dismissed. The learned counsel for insurance company rightly argued that damage to vehicle was not covered under the policy.

25. In the result: (i) M.A. No. 238 of 1983 (M.A.C.C. No. 49 of 1979) Surendra Singh v. M.P.S.R.T.C. is dismissed. In the circumstances, the parties to bear their own costs throughout as incurred.

(ii) The four appeals M.A. No. 228 of 1983, Bisarti Bai v. M.P.S.R.T.C.; M.A. No. 253 of 1983, Ghansoo Patel v. M.P.S.R.T.C.; M.A No. 255 of 1983, Tejilal Vishwakarma v. M.P.S.R.T.C. and M.A No. 219 of 1983, Baisakhoo Patel v. M.P.S.R.T.C., are partly allowed. The compensation in each of those four appeals would be as under:



Appeal No./ Amount Tribunals Award in Apportionment

MA.CC.No. claimed award appeal

Rs. Rs. Rs.

M.A. No. 228 of 1983/ 58,700/- 18,000/- 23,700/- Govind Prasad (52

yrs./father)

M.A.C.C. No. 8 of 1979 (2,000/- + 700/-) 2,700/-

Pyari Bai (48 yrs.

/mother) 2,000/-

Kalloo Bai (5 yrs./

daughter) 7,000/-

Rambharose (3 yrs./

son) 7,000/-

Bisarti Bai (25 yrs./

widow) 5,000/-

and costs and interest

thereon

at the rate of 9 per

cent per-annum from the

date of application till

realisation.

Total 23,700/-

M.A. No. 253 of 1983/ 32,700/- 10,800/- 16,500/- Ghansoo Patel

M.A.C.C. No. 11 of 1979 (45 yrs./husband) 13,500/-

Ram Prasad (20 yrs.

/son) 1,500/-

Ramlal (18 yrs./son) 1,500/-

and costs and interest

thereon

at the rate of 9 per

cent per

annum from the date of

application till

realisation.

Total 16,500/-

MA No. 255 of 1983/ 35,700/- 10,800/- 16,500/- Tejilal (30 yrs./

MAC.C. No. 12 of 1979 husband) 6,500/-

Ramkumar (12 yrs./son) 2,000/-

Punia Bai (9 yrs./

daughter) 4,000/-

Jayanti (4 yrs./

daughter) 4,000/-

and costs and interest

thereon

at the rate of 9 per

cent per

annum from the date of

application till realisation.

Total 16,500/-

MA No. 219 of 1983/ 63,700/- 10,800/- 16,500/- Baisakhoo Patel

MAC.C. No. 13 of 1979 (40 yrs./husband) 9,000/-

Rajkumar (16 yrs./son) 1,500/-

Kaushaliya (12 yrs./

daughter) 2,000/-

Ahiliya (8 yrs./

daughter) 2,000/-

Prakash (5 yrs./son) 2,000/-

and costs and interest

thereon at the rate of

9 per cent per annum from

the date of application

till realisation.

Total 16,500/-

(iii) Since it is a case of composite negligence on the part of the drivers of both the vehicles, the liability to pay the amount of compensation, together with costs and interest thereon, is apportioned as fifty-fifty. Accordingly, the M.P.S.R.T.C. and its driver would be jointly and severally liable to pay half of the amount of compensation and costs and interest thereon, to the claimants in the four appeals above said and the remaining half of the compensation, costs and interest thereon would be paid by the second set of defendants/ non-applicants, Surendra Singh, owner of the truck and its driver Surjeet Singh and New India Assurance Co. Ltd., whose liability also will be joint and several. It is further clarified that in view of the decision in Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi : 1981 ACJ 507 (SC), the liability of the insurance company would extend to the extent of Rs. 50,000/- in each claim case. The amount of compensation awarded in each of these four appeals, above said, will be apportioned as directed above. In cases of those claimants who are still minors, the amount specified to them shall be deposited in some scheduled bank in the joint names of the minors concerned and the natural guardian, till the minor(s) attain(s) majority. Guardian will be entitled to draw the interest for the benefit of the minors and in case of any urgency or contingency, even the principal amount deposited could be withdrawn with the permission of the Tribunal. If any amount has already been paid, the same be adjusted in view of the directions. Counsels fees in each of the four appeals as per schedule, if certified.