JUDGMENT S.C. Mohapatra, J.
1. These three appeals under Section 110-D of the Motor Vehicles Act, 1939, (hereinafter referred to as 'the Act') are in respect of death of two persons in an accident while going on a motor cycle. Since the three appeals arise out of common judgment and involve same question they are heard together and are disposed of by this judgment.
2. On 19.4.1977 Nizam Ali, an employee of a Fertilizer store was going on his motor cycle with Ahmad Husain. Nizam Ali was driving the motor cycle and Ahmad Husain was pillion rider. Motorcycle collided with truck No. U.T.F. 1359 which was coming from the opposite direction. As a result of this accident Ahmad Husain the pillion rider died on the spot sustaining fatal injuries. Nizam Ali who also sustained severe injuries was removed to hospital for treatment where he died later.
3. Asserting that accident was on account of negligence in driving of the truck, widow of Nizam Ali and their minor daughter aged two years filed an application for compensation of Rs. 2 lakhs. Widow and four daughters of Ahmad Husain claimed compensation of Rs. two lakhs in a separate application. Mother and two sisters of Ahmad Husain were added as opposite parties. Claims were made against driver, owner and insurer of the truck. Both applications were heard together and one set of evidence was brought to record.
4. Claimants in a proceeding for compensation are required to satisfy the Tribunal that driver of the vehicle which caused the accident was negligent. Added to it claimant has to satisfy how compensation claimed is justified and who is liable to pay the compensation. Both sets of claimants alleged that truck belonged to respondent No. 2 which was driven negligently by respondent No. 1 for which he is primarily responsible to pay the compensation. Owner is vicariously liable for the same and insurer (respondent No. 3) having agreed under terms of the policy is to indemnify the owner towards his liability and as such is also liable to pay the compensation. In order to satisfy the Tribunal, claimants examined four witnesses and produced certified copies of First Information Report, Postmortem report, copies of statement of the Chaukidar and site plan. Opposite parties have examined the driver and produced certified copies of the judgment in appeal preferred by the driver against his conviction in the Trial Court, acquitting the driver of charges of negligent driving against him.
5. Since accident, ownership and insurance were not disputed, Tribunal considered the question of negligence and held by appreciating evidence of P.W. 4 and D.W. 1 that driver of the truck was not negligent and driver of the motor cycle was negligent for which there was accident. In view of this finding Tribunal did not consider the question of just compensation and held that it is redundant. Against this judgment all the three appeals have beer
6. Tribunal discarded documents on the question of negligence, considering evidence of P.W. 4 and D.W. 1 the driver of the truck. P.W. 4 was not given importance since he did not speak about rash and negligent driving of the truck in his evidence, and stated that collision took place from right side of the truck from which Tribunal drew inference that truck was on the left side of the road and truck driver was not negligent in driving the truck. Tribunal accepted evidence of the driver to be convincing and from his evidence accepted that the motor cycle was coming on middle of the road. D.W. 1 was continuously blowing horn. Driver the motor cycle was looking towards the station and all of a sudden had collision with the truck when the truck was slowly moving and it was not occasion to step the vehicle.
7. We are of the view that Tribunal was not correct. Nature of accident was such that there was spot death of a person and fatal injury was sustained by another to be hospitalised. Impact of the vehicles was thus, with great force. Evidence of P.W. 4 is that motor cyclists stopped near the railway station and requested him to carry some goods from city railway station at Bareilly. This part of evidence of P.W. 4 is not disbelieved. His statement that thereafter both deceased proceeded hardly 25 to 30 paces in the motor cycle when the accident took place. Any person knowing driving a motor cycle would appreciate that a motor cycle which was stopped moving cannot gather speed within 25 to 30 paces in normal circumstances, unless it is driven in a circus show or competition in driving. There is no such case. Therefore, on this part of evidence of P.W. 4 which was accepted by Tribunal we are satisfied that motor cycle was slow in its speed since no better evidence of conduct of deceased driver in driving the motor cycle is available. Once motor cycle is found to be slow in speed, the conclusion that truck was in speed, is reasonable taking note of the nature of impact which resulted in the fatal injuries.
8. Speed of a vehicle by itself would not lead to conclusion of negligence in driving. It would depend upon the place and circumstances where and under which the vehicle was moving. Similarly, it is not always true that a vehicle which is moving on its left cannot be said to be negligently driven. Nature of the vehicle space available to negotiate and normal behaviour of the traffic are some of the important circumstances to be taken note of. In this case the truck a heavy vehicle was moving near a railway station where the traffic would be congested. As D.W. 1 says motor cycle was coming on middle of the road. He saw this and continuously was blowing the horn. If, inspite of it, motor cycle was not moving to the side, any reasonable driver would stop the vehicle anticipating the unexpected. He would not be correct to move further. Even if a motor cyclist would be a wrong doer, it does not authorise driver of a heavy vehicle to create a situation which would result in an accident. Taking note of the nature of impact, injuries sustained which are fatal and answer of D.W. 1 that a vehicle is not required to be stopped when it is on its left and motor cyclist was on the middle of the road, we are satisfied that driver of the truck was negligent in driving the vehicle.
9. Coming to question of contributory negligence of driver of motor cycle, only evidence on which such finding can be given is of D.W. 1. Dashing against rear front wheel of the truck would not by itself be sufficient to come to such conclusion. Once evidence of P.W. 4 is accepted in which inference is drawn that a motor cycle was slow in its speed and D.W. 1 states that a truck is not stopped in such circumstances when the driver finds a motor cycle on the middle of the road and it was enough to blow horn and move ahead, we are satisfied that driver of the truck was squarely responsible for the accident. Evidence of D.W. 1 is to be accepted with caution when he is the person who is negligent and may have to face civil consequences on account of his negligence. Normal human conduct in such circumstances would be to put responsibility on another and escape the civil consequences. It is not normal for a motor cyclist who was matured in age and owner of the vehicle to come to middle of the road when he finds a heavy vehicle was coming with speed blowing horn. Adjudicating authorities are required to take note of normal human conduct. In this view, we are satisfied that D.W. 1 has not given truthful version of the cause of accident. Uncorroborated testimony of D.W. 1 is not acceptable to this extent. Therefore, we come to the conclusion that driver of the motor cycle has no contributory negligence for the accident.
10. Once we come to the conclusion that driver of the truck was negligent, question of determination of just compensation gains importance. When an order is appealable, original adjudicating authority while considering merit of a dispute, should answer all issues and should not leave it from consideration stating that it is redundant. However, evidence being available the proceeding need not be remitted back for that purpose.
11. It is not disputed that Nizam Ali was getting Rs. 400/- monthly. There is no case that he had other source of income. He was aged about 28 years at the time of accident. Widow and minor daughter aged 2 years are his dependents who are claimants. In absence of any clear evidence, it will not be unreasonable to hold that Nizam Ali was contributing Rs. 200/- to the family each month. Thus, apart from deprivation of company, and protection widow's mental shock cannot be over-ruled. It is true that on account of her age, widow has a chance of remarriage. Taking all these facts and circumstances into consideration, we are inclined to hold that adoption of multiple of 16 to the annual loss of dependency with some more amount to make it a round figure of Rs. 40,000/- would be the just compensation.
12. Deceased Ahmad Husain is a man in forties. He is an agriculturist. He left behind his old mother aged 66 years, widow aged 40 years, four daughters whose age range from 17 1/2 years to 7 years. He has two sisters also. Mother, widow and daughters are dependents. They are entitled to compensation. Sisters are not dependents. They also did not file application claiming compensation. Although it is claimed that his monthly income from agriculture and business was Rs. 1000/-, there is no clear acceptable evidence to that effect. Taking into consideration the number of persons who lost the dependency, deprivation of company and taking note that the dependents would have some income from agriculture, we are inclined to determine Rs. 40,000/- to be the just compensation payable to them.
13. Primarily driver of the truck whose negligent act caused the accident is liable to pay the compensation to both sets. However, owner is vicariously liable and insurer has undertaken to indemnify the owner.
14. Accident is of the year 1977. Claimants have been deprived of the compensation for more than 17 years. In such circumstances, we direct that the awarded amount shall carry interest at the rate of 6% per annum from the dates of application till the date of payment.
15. Dependents of both deceased persons are ladies who belong to weaker section of the society/Beside some of them are old and some others are minors. Unless adjudicating authority protects their interest, they may be deprived of the compensation for all time to come in spite of their success. In such circumstances, it is just and proper to direct that 2/3rd of the total payments to dependents of each deceased shall be invested in fixed deposit in a nationalised bank or Gramya bank of the choice of the parties. Fixed deposit shall be in joint name of widow and minor daughters of Nizam Ali in the bank which shall be nearer to their residence. In case of dependents of Ahmad Husain, fixed deposit shall be in name of old mother and widow on behalf of all the claimants in similar bank. Each set will be entitled to get interest half yearly. Fixed deposit shall not be encumbered in any manner. However, claimants or any of them can move the Tribunal to direct the bank to release portion of the fixed deposit in case of necessity and Tribunal may considering the nature of necessity permit release. Balance 1/3rd in each case shall be paid to claimants so that they can adjust their litigation expenses and other expenses incurred during the period leaving some balance for meeting day to day expenses till they receive the interest from the fixed deposit.
16. In conclusion--
(i) Driver of the truck was negligent in driving resulting in death of both deceased persons.
(ii) Smt. Ansara Begum and his daughter are entitled to compensation of Rs. 40,000/- with interest at 6% per annum from date of application till payment is made.
(iii) Smt. Ageela Khatoon, her daughters Naushad Begum, Irshad Begum, Johara Jabeen, Meh Jabeen and Smt. Batoolan Nisa are jointly entitled to Rs. 40,000/ - with interest at 6% per annum from date of application till payment is made. Sisters are not entitled to any compensation.
(iv) Insurer, New India Assurance Co. is liable to pay the amounts.
(v) 2/3rd of total amount payable shall be invested in securities as directed.
17. In result, all the three appeals are allowed in part. No costs.