AMARJIT KAUR Vs. VANGUARD INSURANCE CO LIMITED

JUDGEMENT

(1.) These are cross appeals under Section 110-D of the Motor Vehicles Act, 1939 as amended by Act 100 of 1956 (hereinafter called 'the Act)' against the award of compensation given under Section 110-B thereof by the Motor Accidents Claims Tribunal, Delhi, (hereinafter called 'the Tribunal'). Appeal No. 89-D of 1965 is by the claimants for enhancing the compensation awarded by the Tribunal, while Appeal No. 89-D of 1965 is by the respondents for dismissing the claim for compensation altogether or for reduction of the amount of compensation.

(2.) On 13-6-1963 a motor truck belonging to M/s Gopal Singh Ghanshyam Dass in charge of the driver, Bakshi Ram, ran over and killed one Shri Ajit Singh on old Rohtak Road, Delhi. The truck was insured against third party risks with M/s Vanguard. Insurance Company Ltd. Smt. Amarjit Kaur widow of the deceased Ajit Singh, and their children applied to the Tribunal under Section 110-D of the Act for award of compensation for the death of Ajit Singh alleging that it was due to the rash and negligent driving of the motor truck. They said that the monthly income of Ajit Singh at the time of his death was Rs. 1,200.00 per month. The application was resisted by the truck owners and the Insurance Company, who denied that the death of Ajit Singh was caused by the negligence of the driver and alleged that the negligence or contributory negligence of Ajit Singh himself was the cause of his death. The tribunal found that the death of Ajit Singh was caused by the negligence of the truck driver. In assessing the amount of compensation, the Tribunal held that the net income of Ajit Singh at the time of his death was Rs. 750.00 per month. Out of this amount, Ajit Singh spent about Rs. 275.00 per month on himself and for his personal expenses. After the death of Shri Ajit Singh his legal representatives derived an income of Rs. 300.00 per month from his business, which has been inherited by the legal representatives. Deducting these amounts from the net income of Ajit Singh the net loss to the dependents by the death of Ajit Singh came to Rs. 175.00 per month. Ajit Singh probably would have lived far another 15 years if he had not been killed. The total amount of the net loss spread over 15 years would, therefore, come to Rs. 31,800.00 This amount, which the claimants would have got during the period of 15 years, if Ajit Singh had lived, was reduced by 10% as the compensation was immediately payable to the claimants. The amount so reduced came to Rs. 28,620.00. Out of this amount Rs. 14,000.00 were deducted as the insurance money paid to the widow of the deceased, Rs. 5,000.00 as the value of the membership and part purchase of the Industrial plot by the deceased and Rs. 1000.00 as the amount received by the widow of the deceased from the Chit Fund on the death of the deceased. Thus, a net compensation of Rs. 8,620.00 only was awarded to the claimants by the Tribunal.The various points for decision arising out of the argument of the learned counsels for both the sides may be dealt with broadly under two headings:-

(3.) The truck was going initially by the left side of the road as required by the rule of the road. It was found, however, that a bus was parked on the road in front of it. It has, therefore, to over take the bus by going to the right side of the road. While the truck was on the right side of the road, it struck the deceased Ajit Singh and killed him on the spot. It was argued for the respondents that the truck was compelled to go to the right side of the road to overtake the stationary bus, that it sounded the horn before doing so and that Ajit Singh was coming on its motor cycle so fast that he could not stop and, therefore, collided with the truck. This argument is not supported by evidence as discussed and appreciated by the Tribunal. Even if, however, this argument is assumed to be based on facts, it is not a sufficient defence in law. According to the elementary rule of driving, the motor truck going by the left side of the road was not entitled to go to the right side of the road except after ascertaining that it would not thereby obstruct the on-coming traffic. The driver is not entitled merely to sound the horn and to go to the right side of the road without caring whether the on-coming traffic would be blocked by his doing so. There is nothing to show that the truck driver took care to see that there was no on-coming traffic, which would be blocked by his going to the right side. On the respondents' own argument, Ajit Singh was already coming from the opposite side with the result that he collided with the truck when the truck went on the right side. This itself shows that the diversion of the truck to the right immediately blocked the on-coming traffic and that sufficient warning was not given to the on-coming traffic that the truck was going to he right side, so that the on-coming traffic should slow down. The spot of the accident was clearly on the right side of the road where the truck had no right to be. The right of way on that side of the road was of Ajit Singh even if he was coming fast from the opposite direction and was not sitting on stationary motor cycle as deposed by the claimants' witnesses. This right way of Ajit Singh could be modified if the truck had given him sufficient warning of going to the right side and given him sufficient time to slow down. There is no such evidence on record. The truck diverted to the right side abruptly giving no opportunity or time for Ajit Singh to slow down and to avoid collision with truck. The accident was thus caused by the unilateral negligence of the motor truck driver. There is no contributory negligence on the part of Ajit Singh. In fact, this sudden diversion of the truck to the right side of the road was so indefensible that Bakshi Ram did not have the courage to say that he took care to warn the on-coming traffic before diverting the truck to the right side. He, therefore, tried to escape from facing the situation by saying that he was not driving the truck at all and that one Madan Lal was driving it. Even Madan Lal has not been examined to say that he took care to warn the on-coming traffic before diverting the truck to the right side. When neither Bakshi Ram nor Madan Lal has come forward to say that the truck was not driven rashly and negligently, there is complete absence of evidence on the side of the respondents to show that the truck driver had taken any precaution to warn the on-coming traffic before diverting to the right side of the road. The only reliable evidence was, therefore, on the side of the claimants. The claimants' evidence is supported by the undoubted fact that the accident took place on the right side of the road where the truck was not entitled to be, except after warning the on-coming traffic. In the absence of any justification for the diversion of the truck to the right side of the road either pleaded by the respondents or proved by their witnesses, the maxim res ipsa lgouitur applies and the negligence of the truck driver is estabhshed beyond doubt. I find so.