GOODWILL EXPORTS Vs. JAYAMMAL

JUDGEMENT

(1.) RESPONDENTS 1 and 2 in O.P. No. 742 of 1980 on the file of the Motor Accident Claims Tribunal, Madras are the appellants in this appeal. The respondents herein are the petitioners/claimants in the said petition. The respondents filed a petition under Section 110-A of the Motor Vehicles Act for compensation of Rs. 50,000/-for the death of the deceased Krishnan who died in the motor vehicle accident on 2-10-1980 at about 9.45 p.m. at Anna Salai, Madras.

(2.) BEFORE the Tribunal PW 2 was examined. He was an eye witness to this accident. Apart from him RW 1 driver of the car was also examined. According to PW 2 on 2-10-80 at about 9.45 p m. the deceased crossed Anna Salai near P. Orr Sons and stood at the yellow line and a car came from Anna Statute side and knocked down the deceased. After knocking down the deceased the car did not stop and therefore the public had stopped the car and sent the injured in the same car to the hospital. It is the case of the respondents/claimants that RW 1 driver of the car had driven the vehicle in a rash and negligent manner. As against this evidence the driver as RW 1 gave evidence to the effect that when he was driving the car opposite to P. Orr sons, he saw a person standing on the yellow line and a lorry came from the opposite direction and on seeing that lorry the deceased got frightened and retraced his steps and fell on the car. Apart from the evidence of PW 2 and RW 1 no other materials have been placed before the Tribunal to prove the manner in which the accident had taken place. RW 1 being an interested witness in this case much reliance cannot be placed on his interested testimony. Therefore, we are left with only the evidence of PW 2 who is an independent witness in this case. The learned Counsel for the appellants submits that the deceased had also contributed to the accident by crossing the Mount Road near P. Orr sons. According to him admittedly the deceased was standing on the yellow line at the time of the accident and it is corroborated by the evidence of PW 2 also. According to the driver RW 1 the deceased on seeing the car had retraced his steps and hit against the taxi, while PW 2 would state that when the deceased was standing on the yellow line the taxi came and hit against him. In considering this evidence the Tribunal came to the conclusion that since the sub way near the place of the accident must have been closed after 9.00 p.m. it is probable that the deceased was crossing the road at th" time of the accident and was standing on the yellow line and at that time the taxi came to that place. It is only on that presumption the Tribunal did not accept the plea of contributory negligence and it came to the conclusion that it was only RW 1 who has driven the car in a rash and negligent manner. Whatever may be the oial evidence available on this aspect one thing is clear that, in this case, admittedly when the deceased was crossing the road and standing on the yellow line the taxi came in the road. In such a circumstance, it is not possible to overrule the possibility of the deceased also having contributed to the negligence of the driver of the Taxi, RW 1. In the course of his driving RW 1 could not have anticipated a man standing in the yellow line and it is possible that the deceased could have made some attempts to retrace his steps after seeing the taxi suddenly coming near him. On a consideration of the evidence we are inclined to come to the conclusion that the deceased must have contributed to some extent to the unfortunate accident in which the deceased was killed.

(3.) IN so far as the quantum of compensation is concerned the Tribunal took into consideration the normal earning of the deceased and fixed the daily earning of the deceased at Rs. 15/- per day and on that basis the monthly earning was fixed at Rs. 450/-. After giving allowance for personal expenses Rs. 300/- was taken to be the monthly income which must have been available for the members of his family. It is in evidence that the deceased was 43 years old at the time of the accident and in the normal course he would have lived upto the age of 55 years i.e. 12 years more. Calculating on that basis the total loss of earning comes to Rs. 43,200/-. Apart from that the claimants are also entitled to a sum of Rs. 5000/-towards compensation for the loss of expectation of life of the deceased. Including the said amount the total compensation comes to Rs. 48,200/-. Deducting 10 per cent for the contributory negligence on the part of the deceased the balance 90 per cent comes to 43,380/-.