THE MUNICIPAL CORPORATION OF GREATER BOMBAYversusSHRI LAXMAN IYER AND ANR.

A       THE MUNICIPAL CORPORATION Of GREATER BOMBAY
                             v.
                  SHRI LAXMAN IYER AND ANR.

                              OCTOBER 27, 2003

B           [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

         Motor Vehicles Act, 1939: Sections 110-A and 110-B.

        Accident-Claims petition-Compensation-Fixing of-Contributory                 :
    Negligence-Effect of-Held: If contributory negligence is proved, Court       I


C   empowered to apportion loss between the parties appropriately.

         Compensation-Determination of-Age of the claimants-Relevancy
    of-Held : It is not the age of the deceased alone but the age oj the
    claimants as well, which are relevant factors in case parents or other
D   dependents are claimants.

         Compensation-Multiplier method of quantification of-Relevant
    factors-Held : (i) age of deceased, (ii) marital status of deceased, (iii)
    separate income ofclaimants and their education and (iv) loss ofpecuniary
    benefits.
E
         Words and Phrases :

         "Negligence" and "contributory negligence"-Meaning of-In the
    context of S. I 68 of the Motor Vehicles Act, I 939.

F        Doctrines :

         Doctrine of last opportunity-Explained.
                                                                ,
          The respondents-parents of the deceased, who was aged 18 years,
    filed a claims petition before the Motor Accidents Claims Tribunal.
G   The Tribunal found that the parents of the deceased came· form a
    respectable and educated family and adopting a m~ltiplier of 15 a
    certain sum was awarded as compensation under SeC:fions 110-A and
    110-B of the Motor Vehicles Act, 1939. The High Coult, in appeal, held
    that the compensation fixed was pr~per
                                                         1

                                      .   .
                                            but reducedf' the interest from
H   15% to 12% per. annum. Hence the appeal.
                                       984
      MUNICIPAL CORPN. OE GREATER BOMBAY v. LAXMAN !YER            985

     On behalf of the appellant, it was contended that the parents of A
the deceased being the claimants, the multiplier as adopted was not
proper; that this was a case where the accident occurred more on
account of deceased's negligence than that of the driver of th~
offending vehicle; that this was a clear case of contributory negligence;
and, therefore, th,e awarded amount could not be maintained.              B

     Allowing the appeal in part, the Court

     HELD : 1.l. Though there is no statutory definition, in common
parlance "negligence" is categorised as either composite or contributory. C
Negligence is omission of duty caused either by an omission to do
something, which a reasonable man guided upon those considerations
who ordinarily by reason of conduct of human affairs would do or be
obligated to, or by doing something which a prudent or a reasonable
man would not do. Negligence does not always mean absolute D
carelessness, but want of such a degree of care as is required in
particular circumstances. Negligence is failure to observe, for the
protection of the interests of another person, the degree of care,
precaution and vigilance which the circumstances justly demand,
whereby such other person suffers injury. The idea of negligence and
duty are strictly correlative. Negligence means either subjectively a E
careless state of mind, or objectively careless conduct. (990-E-G]

      1.2. Negligence is not an absolute term, but is a relative one; it
is rather a comparative term. No absolute standard can be fixed a~d
no mathematically exact formula can be laid down by which negligence F
or lack of it can be infallibly measured in a given case. What constitutes
negligence varies under different conditions and in determining wheth,er
negligence exists in a particular case or whether a mere act or course
of conduct amounts to negligence, all the attending and surroundihg
facts and circumstances have to be taken into account. It is absence G
of care according to circumstances. [990-G-H, 991-A-B]

     2.1. To determine whether an act would be or would not be
negligent, it is relevant to determine if any reasonable man would
foresee that the act would cause damage or not. The omission t'l do H
    986               SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A what the law obligates or even the failure to do anything in ~ manner,
    mode or method envisaged by law would equally and per se constitute
    negligence on the part of such a person. If the answer is in the
    affirmative, it is a negligent act. (991-B-Cf

B      2.2. Where an accident is due to negligence of both parties,
                                                                   1


  substantially there would be contributory negligence and both would
  be blamed. In a case of contributory negligence, the crucial question
  on which liability depends would be whether either party could, by
  exercise of reasonable care, have avoided the consequence of other's
  negligence. Whichever party could have avoided the consequence of
C other's negligence would be liable for the accident. If a person's
  negligent act or omission was the proximate and immediate cause of
  death, the fact that the person suffering injury was himself negligent
  and also contributed to the accident or other circumstances by which
  the injury was caused would not afford a defence to the other.
D Contributory negligence is applicable solely to the conduct of. a
  plaintiff. It means that there has been an act or omission on the part
  of the plaintiff which has materially contributed to the damage, the act
  or omission being of such a natur.e that it may property. be described
  as negligence, although negligence is not given its usual meaning.
E                                                              [991-C-F)
                                                                               •
          Charlesworth on Negligence : 3rd Edn. Para 328, referred to.

          3.1. In the case of contributory negligence, courts have the power
    to apportion the loss between the parties as seems just and equitable.
F   Apportionm~nt in that context means that damages are reduced to
    such an extent as the court thinks just and equitable having regard to
    the claim shared in the responsibility for the damage. But in a case
    where there has been no contributory negligence on the part of the
    victim, the question of apportionment does not arise. Where a person
G   is injured without· any negligence on his part but as a result of the
    combined effect of the negligence of two other persons, it is not a case
    of contributory negligence in that sense. It is a case of injury by
    composite negligence. [991-F-HJ

          Pollock on Torts : 15th Edn. P. 361, referred to.
H
      MUNICIPAL CORPN. OF GREATER BOMBAY v. LAXMAN IYER            987
      3.2. The sample test is what was the cause or what were the causes A
of the damage. The act or omission amounting to want of ordinary care
or in defiance of duty or obligation on the part of the complaining
party which conjointly. with the order party's negligence was the
proximate cause of the· accident renders it one to be the result of
contributory negligence. (992-C-D]                                       B

      4.1. Though the driver of the vehicle may not have been in this
case wholly responsible for the accident, as contended, from the mere
fact that the victim acted in contravention of a traffic regulation alone,
complete immunity from liability of the driver or the appellant-' C
corporation for the accident so as to disown totally the responsibility·
to compensate the injured or dependants of the victim cannot be
accorded also. Merely because there may have been a breach of any
traffic regulation, in the absence of concrete, clinching, positive and,
legally acceptable material to fix sole responsibility for the accident
only on such injured/victim, which are conspicuously absent on the D
facts and circumstances of this case, the liability of the appellant~
corporation remains, though to what extent, remains to be considered
further. (992-D-F]

     4.2. The infirmities in the orders of the Tribunal and the High E
Court lay in rejecting the plea of contributory negligence completely.
The Tribunal as well as the High Court ought to have appropriately
apportioned the negligence keeping in view the materials placed on
record and properly balancing the rights of parties. [993-A-B)
                                                                         F
     5.1. At the time of accident, as revealed from the claim petition,
the claimants were 47 and 43 years respectively. It is not the age of
the deceased alone but the age of the claimants as well which are to
be the relevant factors, in case parents or other dependants are the
claimants. (993-C]                                                      G

     Lata Wadhwa v. State of Bihar, AIR (2001) SC 3218, MS. Grewal
v. Deep C1and Sood, AIR (2001) SC 3660 and General Manager, Kera/a
State Road Transport Corporation v. Susamma Thomas, AIR (1994) SC
1631, relied on.                                                   H
          988                SUPREME COURT REPORTS [2003] SUPP. 4 's.C.R.      -)



      A         Ia.ff Vale Railway Company v. Jenkins, (1913) AC 1, referred to._

               5.2. "Several other factors need to be taken note of. The decea'sed
          was unmarried. The contribution to t~e parents who had their separate
          earnings being employed and educated have relevance. The possibility
      B   of reduction in the contribution once a person gets married is a reality.
          The compensation is relatable to the loss of contribution or the
          pecuniary benefits. The multiplier adopted by the Tribunal and
          confirmed by the High Court is certainly on the higher side. Considering
          the age of the claimants it can never exceed t 0 even by the most liberal
      C   standards. (994-B-C]

·,•             6. The "doctrine of last opportunity" amounts to a rule th~t When
                                              ' .
          both parties are careless the party which has the last opportunity~~~-
          avoiding the results of the other's carelessness is alone liable. However,
          it is not a principle of law, but a test of causation. Though in some
      D   decisions the doctrine has been applied by courts, after the decisions
          of the House of Lords, it is no longer to be applied. (992-A-C)

              Davies v. Swan Motor Co. (Swansea) Ltd, (1949) 2 KB 291, The
          Volute (1922) 1 AC 129 and Swadling v. Cooper, (1931) AC 1, referred
      E   to.

               CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8424 of
          2003.

      F        From the Judgment and Order dated 29.11.2002 of the Bombay High
          Court in F.A. No, 1137 of 1991.

               Soli J. Sorabjee, Attorney General, P.H. Parekh, E.R.Kumar and
          Rajaram for the Appellant.

      G       Jayant Bhushan, Ms. Minakshi Nag, Abhimeet Sinha and Ejaz
          Maqbool for the Respondents.

                The Judgment of the Court was delivered by

      H         ARIJIT PASAYAT, J: Leave granted.
MUNICIPALCORPN. OFGREATERBOMBAYv. LAXMAN IYER [PASAYAT, J.]          989
      The Municipal Corporation of Greater Bombay (hereinafter referred A
to as the 'Corporation') questions legality of the judgment rendered by
learned Single Judge of the Bombay High Court in the appellate side. The
said appeal related to a judgment and award passed by the Motor Accidents
Claims Tribunal for Greater Bombay (for short the 'Tribunal') adjudicating
a claim petition under Section I 10-A of the Motor Vehicles Act, 1939 B
(in short the 'Act').

       One Kumar (hereinafter referred to a~ the 'deceased') lost life in a
vehicular accident which occurred on 15.8.1989. Vehicle No.MMK 6623,~
a· bus belonging to the Corporation was the offending vehicle. Claim of
rupees six lakhs was made by the parents of the deceased (respondents in C
this appeal). According to the claimants, when the deceased was going by
his bicycle suddenly the offending vehicle dashed against him. The impact
of the accident was so severe that the deceased was thrown to some distance
and sustained various serious injuries which resulted in his death. The
deceased was aged about 18 years at the time of accident. He was a good D-
student and would have entered to income earning services shortly. The
Corporation took the stand that the deceased had suddenly come from the
left side of the bus from Chembur Railway Station at a very high speed
and instead of taking left tum, took right tum in contravention of traffic
regulations. When the driver of the vehicle saw the cyclist coming on a E
wrong side, he immediately applied the brakes and halted the bus. Despite
this, the cyclist was unable to control the cyde and dashed against the bus
from the right comer of the bus, as a result he fell down. He was removed
to the hospital with the help of the conductor of the bus and other persons.
Witnesses were examined to show as to how the accident occurred and also
on the compensation aspect. The Tribunal noticed that as the case F
progressed, a significant change was made in the stand taken by the
Corporation. The driver was examined. He stated that he was driving the
vehicle at very slow speed. The deceased came from the side of Chembur
Station in the opposite direction and when he saw him at a distance of 30
ft., he immediately applied the brakes, and halted the bus. But the cyclist G
came and dashed against the front side of the bus. Since the cyclist came
from the wrong side of the bus, he sustained injuries which proved fatal.
The Tribunal held since the parents were claimants and came from a
respectable and educated family, it would not be improbable to conclude
that the deceased would have earned decently by taking an employment. H
     990                SUPREME COURT REPORTS (2003) SUPP. 4 S.C.R.
A By taking the expected earning of Rs.3,000 p.m. multiplier of 15 was
     adopted. Accordingly, the quantum was fixed at Rs.5,60,000 including loss
     of expectation of life. As a lump sum was being paid, deduction of 25%
     was made and finally a sum ofRs.4,01,250 was awarded as compensation,
     with interest at 15% P,.a. from the date of application. The matter was
B    carried in appeal to the Bombay High Court, which by the impugned
     judgment held that the quantum fixed was proper. However, interest was
     reduced from 15% to 12% p.a.

          In support of the appeal, learned Attorney General appearing for the
     Corporation submitted that the High Court's judgment is vulnerable on
C    more than one counts. Firstly it is submitted that the parents being the
     claimants, the multiplier as adopted is not proper. Secondly, this was a case
     where the accident occurred more on account of deceased's negligence
     than that of the driver of the offending vehicle. This is a clear case of
     conttibutory negligence. That being so, the awarded amount cannot be
·D   maintained.

          In response, learned counsel for the claimants submitted that the
     award made is just, fair and needs no interference.

E        A plea which was stressed strenuously related to alleged contributory
  negligence. Though there is no statutory definition, in common parlance
   'negligence' is categorised as either composite or contributory. It is first
   necessary to find out what is a negligent act. Negligence is omission of
                                                                a
   duty caused either by an omission to do something which reasonable man
F 1guided upon those considerations who ordinarily by reason of conduct of
   human affairs would do or obligated to, or by doing something which a
  prudent or reasonable man would not do. Negligence does not always mean
   absolute carelessness, but want of such a degree of care as is required in
   particular circumstances. Negligence is failure to observe, for the protection
   of the interests of another person, the degree of care, precaution and
G vigilance which the circumstances justly demand, whereby such other
  person suffers injury. The idea of negligence and duty are strictly
  correlative. Negligence means either subjectively a careless state of mind,
  or objectively careless conduct. Negligence is not an absolute term, but is
  a 'relative one; it is rather a comparative term. No absolute standard can
H be fixed and no mathematically exact formula can be laid down by which
    MUNICIPAL CORPN. OF GREATER BOMBAY v. LAXMAN IYER [PASA YAT, J.]       991

    negligence or lack of it can be infallibly measured in a given case. What A
    constitutes negligence varies under different conditions and in determining
    whether negligence exists in a particular case, or whether a mere act or
    course of conduct amounts to negligence, all the attending and surrounding
    facts and circumstances have to be taken into account. It is absence of care
    according to circumstances. To determine whether an act would be or B
                                                                             1




    would not be negligent, it is relevant to determine if any reasonable man
    would foresee that the act would cause damage or not. The omission to
    do what the Jaw obligates or even the failure to do anything in a manner,
    mode or method envisaged by law would equally and per se constitute
    negligence on the part of such person. If the answer is in the affirmative,
    it is a negligent act. Where an accident is due to negligence of both parti~s, C
    substantially there would be contributory negligence and both would be
r
    blamed. In a case of contributory negligence, the crucial question on which
    liability depends would be whether either party could, by exercise of
    reasonable care, have avoided the consequence of other's negligence.
    Whichever party could have avoided the consequence of other's negligence D
    would be liable for the accident. If a person's negligent act or omissi~n
    was the proximate and immediate cause of death, the fact that the person
    suffering injury was himself negligent and also contributed to the accident
    or other circumstances by which the injury was caused would not afford
    a defence to the other. Contributory negligence is applicable solely to the E
    conduct of a plaintiff. It means that there has been an act or omission on
    the part of the plaintiff which has materially contributed to the dama~e,
    the act or omission being of such a nature that it may properly be described
    as negligence, although negligence is not given its usual meaning. (See
     Charlesworth on Negligence, 3rd Edn. Para 328). It is now well settled that F
     in the case of contributory negligence, courts have power to apportion the
     loss between the parties as seems just and equitable. Apportionment in that
    context means that damage are reduced to such an extent as the court thinks
    just and equitable having regard to the claim shared in the responsibility
    for the damage. But in a case where there has been no contributory
    negligence on the part of the victim, the question of apportionment does G
    not arise. Where a person is injured without any negligence on his part but
    as a result of combined effect of the negligence of two other persons, it
     is not a case of contributory negligence in that sense. It is a case of what
    has been styled by Pollock as injury by composite negligenc,e. (See Pollook
    on Torts, 15th Edn. P.361).                                                    H
                                                        "
    992                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A         At this juncture, it is necessary to refer to the· 'doctrine of last
    opportunity'. The said doctrine is said to have emanated from the principle -
    enunciated in Devies v. Mann (1842 (10) M&W 546) which has often been
    explained as amounting to a rule that when both parties are careless the
    party which has the last opportunity of avoiding the results of the other's
B   carelessness is alone liable. However, according to Lord Denning it is not
    a principle of law, but test of causation. (See Davies v. Swan Motor Co.
    (Swansea) Ltd., [1949] 2 KB 291. Though in some decisions, the doctrine
    has been applied by courts, after the decisions of the House of Lords in
    The Volute (1922 (1) AC 129) and Swadling v. Cooper, [1931] AC 1, it
C   is no longer to be applied. The sample test is what was the cause or what
    were the causes of the damage. Tiie act or omission amounting to want
    of ordinary care or in defiance of duty or obligation on the part of the
    complaining party which conjointly with the other party's negligence was
    the proximate cause of the accident renders it one to be the result of
    contributory negligence.
D
        Though the driver may not have been in this case wholly responsible
  for the accident, as contended, :from the mere fact that the victim acted in
  contravention or a traffic regulation alone complete immunity from
  liability of the driver or the appellant corporation for the accident so as to
E disown totally responsibility to compensate the injured or dependants of
  the victim cannot be accorded also. Merely because there may have been
  breach of any traffic regulation, in the absence of concrete, clinching,
  positive and legally acceptable material to fix sole responsibility for the
  accident only on such injured/victim, which are conspicuously absent on
  the facts and circumstances of this case, the liability of the appellant-         I•
                                                                                    •.
F corporation remains, though to what extent remains to be considered               "
  further. Even according to the stand of the Corporation, the victim was
  seen by the driver from a distance of about 30ft and the vehicle was moving
  at a snail's pace. If that be so, it is not understood as to how it became
  totally impossible for the driver to avoid the accident has not been
G substantiated by proper evidence. In fact the High Court has noticed that
  there was ample scope for avoiding the collision between the cycle and the
  bus. The evidence on record also establishes that the bicycle was thrown
  to a distance of 4-5 ft. Before taking the tum, horn was found not blown
  by the driver. The application of the brakes and the incident of collision
H between the cycle and the bus seem to have been almost simultaneous. The
MUNICIPAL CORPN. OF GREATER BOMBAY v. LAXMAN IYER (PASAYA T,J.]      993
stand of the Corporation that the bus had come to a halt much prior to the A
incident of the collision is not acceptable and though has been rightly
rejected by the Tribunal and the High Court, the infirmity in their orders
also lay in rejecting the plea of contributory negligence completely. The
Tribunal as well as the High Court ought to have appropriately apportioned
the negligence keeping in view the materials piaced on records and B
properly balancing rights of parties.

      So far as the quantum of compensation is concerned we find that at
the time of accident, as revealed from the claim petition, the claimants were
47 years and 43 years respectively. It is not the age of the deceased alone C
but the age of the claimants as well which are to be the relevant factors,
in case parents or other dependants are claimants.

      In Lata Wadhwa and Ors. v. State of Bihar and Ors., AIR (2001) SC
3218 and M.S. Grewal and Anr. v. Deep Chand Sood and Ors., AIR (200 l)
SC 3660 law on the principles of assessment of compensation was D
elaborated. In Lata Wadhwa 's case (supra) this Court while dealing with
the issue in relation to the compensation to be paid in relation to the death
of children, placing reliance upon the decision of Lord Atkinson in Taff
Vale Railway Company v. Jenkins, (1913 AC 1) has ruled that "In cases
of death of an infant, there may have been no actual pecuniary benefit E
derived by its parents during the child's lifetime. But this will not
necessarily bar the parents claim and prospective loss will found a valid
claim provided that the parents establish that they had a reasonable
expectation of pecuciary benefit if the child had lived."

     This Court in MS. Grewal's case (supra) has clearly observed that F
the decision in Lata Wadhwa 's case (supra) is definitely a guiding factor
in the matter of award of compensation wherein children die under an
unfortunate accident. The said observation was made after taking into
consideration the conclusions arrived in Lata Wadhwa's (supra) regarding
the compensation which was to be paid and the multiplier which was to G
be applie.d in relation to the death of a child. This Court in General
Manager, Kera/a State Road Transport Corporation v. Susamma Thomas
and Ors., AIR ( 1994) SC 1631 held that the proper method of compensation
is the multiplier method, and the same view was re-iterated in MS.
Grewal's case (supra) observing that "needless to say that the multiplier H
    994                 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A method stands accepted by this Court in the said decision".
          Keeping in view the observations made by this Court in various cases,
    several other factors need to be taken note of. The deceased was unmarried.
    The contribution to the parents who had their separate earnings being
B   employed and educated have relevance. The possibility of reduction in
    contribution once a person gets married is a reality. The compensation is
    relatable to the loss of contribution or the pecuniary benefits. The multiplier
    adopted by the Tribunal and confirmed by the High Court is certainly on
    the higher side. Considering the age of the claimants it can never exceed
    10 even by the most liberal standruds. Worked out on that basis amount
C   comes to Rs.3.6 lakhs at the monthly expected income fixed by the
    Tribunal and confirmed by the High Court. Looking into the nature of the
    contributory negligence of the deceased after making an appropriate
    deduction which can reasonably be fixed at 25%, the compensation amount
    payable by the Corporation can be fixed at Rupees 3 lakhs including the
D   amount awarded by the Tribunal and confirmed by the High Court for loss
    of expectation of life. Interest at the rate as awarded by the High Court
    is maintained from the date of application for compensation.

          The appeal is partly allowed to the extent indicated above. There will
E be no order as to costs.
    V.S.S.                                                Appeal partly allowed.