JUDGMENT C.A. Rahim, J.
1. This is an appeal under Section 173 of Motor Vehicles Act, 1988, preferred by U.P. State Road Trans. Corpn. and one Satpal, driver of bus No. UME 9738.
2. There was an accident on 18.8.1992 at Dehradun-Delhi Road near Subhash Nagar tiraha leading to the death of Subhash Mathur, who was on the roadside after getting down from a taxi. The allegation is that the bus of U.P. State Road Trans. Corpn. was running at a high speed, dashed the deceased and fled away. The driver was apprehended at the check-post at a distance of 3 km. from the place of the accident being chased by the driver of the taxi No. UMT 8052. The contention of the opposite parties was that the accident was caused as the deceased was crossing the road in front of running bus and in spite of the application of emergency brake the driver could not stop the bus. The plea of contributory negligence was not advanced at the initial stage but was adopted later on. The learned Tribunal disbelieved the story of contributory negligence and held that the accident was caused due to rash and negligent driving by the driver of the bus No. UME 9738 and awarded Rs. 11,20,520/- to the claimants and that is the grievance of the appellants.
3. It has been argued on behalf of the U.P. State Road Transport Corporation that there was no negligence on the part of the driver of the bus. The accident was caused due to the act of negligence committed by the deceased and that the amount of compensation is excessive going through the judgment in this respect we find that the learned Tribunal has rightly disbelieved the version of the U.P. State Road Trans. Corpn. He has analysed the evidence of PW 1, Dr. A.K. Saxena, a co-traveller and PW 2, driver of the taxi No. UMT 8052. It appears that both witnesses were independent and not associated with the deceased or his family. From their evidence it appears that the bus did not blow any horn while crossing the tiraha at a high speed while knocking down the deceased, who after crossing the road was standing on the roadside. The driver of the bus has been examined as DW 1. His contention was that the bus was running at a slow speed at that time due to inclement weather and that he applied the emergency brake for which the bus was stopped within 1-2 feet. But in spite of that the accident occurred due to the negligence of the deceased. It is also in evidence that both the headlights were burning at that time. The statement of the driver with regard to the speed of the vehicle cannot be accepted from the fact that if the emergency brake was applied and if the bus was stopped within 1-2 feet the accident could not have occurred. There is no allegation that he was crossing the street, as they say, within 1-2 feet. Since the headlights of the bus were burning it is quite possible and probable that the deceased crossed the road keeping some distance. On the other hand, from the evidence of PW 1 and PW 2 it appears that the said bus was running at a high speed, it crossed the tiraha without blowing any horn and dashed the deceased, who was standing at the edge of the road after crossing the same.
4. After hearing both the sides and after
5. The learned Tribunal disbelieved the story of contributory negligence as the same was not pleaded in the written statement at the outset. From the facts and circumstances of the case it also appears to us that there was no contributory negligence on the part of the deceased.
6. With regard to the quantum learned advocate for the appellants has submitted that it is excessive. From the evidence it appears that the deceased was aged about 36 years at the time of the accident and he was posted as Manager of United Bank of India drawing salary of Rs. 6,400/- and his take home pay was Rs. 4,364/-. He had four dependants, i.e., parents, wife and minor son. After hearing both the parties we find that his contribution towards the family was Rs. 3,000/- per month and considering his age and service we find that it would meet the ends of justice if the multiplier of 16 is used in this case. The figure would be then Rs. 5,76,000/-. Learned Tribunal did not allow any amount towards loss of consortium, pain and agony on the ground that the wife did not appear as witness and that no prescription, etc., was produced to assess the ailments they suffered. We do not agree with the learned Tribunal that the claimants are not entitled to any compensation towards the loss of consortium and loss to estate. In the decision in National Insurance Co. Ltd. v. Swaranlata Das 1993 ACJ 748 (SC), Rs. 7,500/- each was awarded for the loss to the estate and for the loss of consortium. Considering the facts and circumstances we find that if Rs. 7,000/- is awarded on each count it would meet the ends of justice. No compensation is awarded for suffering, pain and agony in view of the decision reported in N. Sivammal v. Managing Director, Pandian Roadways Corporation 1985 ACJ 75 (SC). Accordingly, we find that the claimants are entitled to receive Rs. 6,00,000/- towards compensation on all these counts. Appellant No. 1 is directed to deposit the same before the learned Tribunal within two months from this date. The claimants are also entitled to receive the interest at the rate of 10 per cent per annum from the date of filing of the application under Section 166 of Motor Vehicles Act, 1988. Learned Tribunal shall pay Rs. 50,000/- to the claimants to defray expenditure, etc., as soon as deposit is made. The balance amount would be invested in a fixed deposit jointly in the name of all the claimants for three years. Liberty is given to the claimants to apply to the Tribunal if any necessity arises and the Tribunal after scrutinising the same shall pay the required amount to the claimants.
With these observations and directions, the appeal is allowed in part. There shall be no order as to costs.