Maharashtra State Road Transport Corporation v. Tulsabai Tukarara Kadave And Others

T.D. Sugla, J.

1. This appeal involves only two questions, namely, (i) whether the driver of the bus No. MTD 9212 was alone negligent or whether the deceased Tukaram Anant Kadave was also negligent; and (ii) whether the amount of compensation awarded was not too small and whether the brothers and sisters of the deceased were also entitled to any compensation.

2. The accident took place on September 25, 1981 in which the deceased Tukaram Anant Kadave was crushed between the two buses belonging to the Maharashtra State Road Transport Corporation bearing Nos. MTD 9212 and MTD 9797. It is common ground that both the buses were about to enter the premises of the State Road Transport Corporations depot near the railway station, Thane, one after the other. Bus No. MTD 9212 had, in fact, partly entered the gate of the depot but was not finding its way through. The second bus was also trying to enter the depot and was about 2 to 3 feet behind the first bus. When this was the position, the deceased Tukaram Anant Kadave tried to pass through between the two buses to the other side of the road. When he was so doing, the bus No. MTD 9212 which had partly entered the gate, all of a sudden took reverse turn and the late Tukaram Anant Kadave was crushed between the two buses. There is evidence of one Sitaram, an independent witness, at page 27 of the paperbook. He has stated that when the deceased Tukaram was proceeding between the two buses, he received a dash from the bus taking back and was run over. He received severe injury. The driver of the bus ran into the office. The said witness was cross-examined but nothing important came out from his cross-examination. There is also the evidence of one Madhukar, who was driving the other bus following the former bus. His evidence also supports the fact that the accident took place because the bus which had partly entered the depot took a reverse turn. On the face of the above evidence, the learned Member came to the conclusion that the bus driver was negligent and the accident took place because of his negligence.

3. Except for submitting that when two buses were trying to enter the bus depot one after the other and the distance between the two buses was of about 2 to 3 feet only, the deceased Tukaram had no business to cross the road through the buses, Mr. Hegde, the learned counsel for the Maharashtra State Road Transport Corporation, was not able to point out any evidence which could reasonably suggest that the bus driver was not at fault and/or negligent. It was put to him that assuming the deceased Tukaram was not justified in crossing the road through the buses, but did make an attempt to do so, was it or was it not the duty of the bus driver to take all possible care to see that while he was taking reverse turn, there was nobody in between the two buses and no accident caused thereby. Mr. Hegde fairly stated that that was, of course, the duty of the bus driver. However, according to him, on these facts, the accident, it would have to be held, was caused by the negligence of both the parties and not that of the bus driver alone. In this context, it may not be out of place to mention that whenever the buses take reverse turn, the drivers are supposed to be extra cautious, because it is common knowledge that the bus drivers would not be able to see the persons sitting or standing behind the bus. Such a care was admittedly not taken by the bus driver in this case. Moreover, the buses sometimes take a long time in entering the bus depot. Pedestrians cannot naturally wait for long hours to cross the road. In the circumstances, we are satisfied that the conclusion arrived at and/or inference drawn by the learned Member of the Motor Accidents Claims Tribunal that the accident was caused due to the negligence of the bus driver is justified.

4. Coming then to the second question as to whether the brothers and sisters of the deceased could or could not claim compensation as a result of the death of the deceased Tukaram Anant Kadave, it was pointed out by Mr. Hegde that Section 110-A of the Motor Vehicles Act provides that only legal representatives of the deceased or the injured persons have the right to claim the compensation. According to him, under Section 8 of the Hindu Succession Act, legal representatives are the persons, who fall in the first category of the heirs, namely, wife, sons, daughters and mother. If there are heirs falling in the first category of heirs, other heirs are excluded. According to him, this was the position obtaining under the Fatal Accidents Act, 1855 and the position would be the same as regards the Motor Vehicles Act. Mr. Kudrolli, the learned counsel for the claimants, on the other hand, invited our attention to the Supreme Court decision in the case of Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai : 1987 ACJ 561 [LQ/SC/1987/473] , for the proposition that brothers and sisters can also claim compensation in a given case. We have gone through the above decision. Relevant observations are found in paragraphs 10 and 12 of the judgment. The legal position as laid down by the Supreme Court is:

Persons for whose benefit such an application can be made and the manner in which the compensation awarded may be distributed amongst the persons for whose benefit the application is made are dealt with by Section 110-A and Section 110-B of the Motor Vehicles Act and to that extent the provisions of the Motor Vehicles Act do supersede the provisions of the Fatal Accidents Act, 1855 in so far as motor vehicle accidents are concerned. These provisions are not merely procedural provisions. They substantially affect the rights of the parties.

In an Indian family brothers, sisters and brothers children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of Fatal Accidents Act.

The legal position is, thus, well settled in favour of the claimants and, therefore, Mr. Hegdes contention in this regard requires to be and is hereby rejected.

5. As regards the quantum of compensation which comes to Rs. 91,000/- in all, it is stated by Mr. Hegde that the learned Member of the Tribunal had taken the income of the deceased at Rs. 750/- per month without proper evidence. According to him, the income of the deceased should have been taken at Rs. 550/-per month. For this purpose, he relied on the certificate issued by the employer of the deceased which indicated that the net amount available to the deceased for taking home was about Rs. 550/- per month even though his gross salary was Rs. 750/- per month. As regards the claim that he was doing part-time tuition and was earning a sum of Rs. 200/- per month, Mr. Hegde pointed out that there was no evidence on record whatsoever in support of the claim. As against this, the argument on behalf of the applicants was that the salary income of the deceased from the bank had to be taken, at least, at Rs. 700/- per month as a sum of Rs. 160/- and odd was deducted on account of refund of loan taken by him in some other connection. Therefore, the take home pay of the deceased was Rs. 700/- per month. As regards the absence of the evidence in support of the claim of income by way of part-time tuition, the counsel stated that in the nature of things the direct evidence was not possible. The widow was examined and had made a statement that the deceased was earning that much of the income by way of part-time tuition. It is true that the evidence as regards part-time tuition was not very sound. However, what is required to be remembered in such cases is that there were as many as 9 dependants in the family, namely, his wife, three children, three sisters, one brother and mother. In these hard days, it is not unlikely that a person at the age of 29 years would try to supplement his income to support the family. In any event, even assuming that his income cannot be taken, in the absence of the direct evidence at more than Rs. 700/- per month, the dependency would have to be estimated at a higher figure, say at least a sum of Rs. 500/- per month, when the deceased had to maintain 9 persons other than himself. Even if we look at the quantum from this angle, the dependency being Rs. 500/- per month, the dependency would work out to Rs. 6,000/- per year. The deceased having died at the age of 29, the multiplier of 15 would not at all be unreasonable. Just as some deduction out of the amount so computed would be justified on account of lump sum payment, some further amount would require to be awarded for loss of consortium, mental pain, shock and suffering by the family as a result of untimely death of the deceased. Thus, taking an overall view of the matter, the amount of compensation awarded at Rs. 91,000/- would be more than justified. There being no dispute amongst the applicants about the distribution of the amount of compensation, we do not consider it necessary to consider that aspect in the appeal filed by the Maharashtra State Road Transport Corporation.

6. Before concluding, it will be desirable to refer to Mr. Hegdes another argument about determination of quantum of compensation. It was pointed out that after the death of the deceased his wife, i.e., widow was employed by the bank on compassionate grounds and was getting a salary of Rs. 600/- per month. To our mind, this is an event subsequent to the death of the deceased. In any event, this amount she is getting not as a result of the death, but as a result of her working in the bank. We do not think that subsequent event like this can or should be taken into account for determination of the quantum of compensation.

7. Having regard to the above discussion, we are in full agreement with the order of the Motor Accidents Claims Tribunal. The appeal is, therefore, dismissed and the decree passed by the trial court is confirmed.

8. The appellant shall pay the costs to the claimants.

9. It is understood that the entire decretal amount of Rs. 91,000/- with interest has been deposited in this court. The same shall be transferred forthwith to the Motor Accidents Claims Tribunal to be dealt with in accordance with the impugned order dated 10th July, 1984.