BHAGABATI PRASAD BANERJEE, J. - (1.) THIS is an appeal preferred under Section 110 -D of the Motor Vehicles Act, 1939 by the appellant who is admittedly the owner of the offending bus being No. WBY 1226. The appeal arises out of an award given by the learned Additional District Judge 13th Court, Alipore who discharged the function as Accidents Claims Tribunal for Calcutta and 24 Parganas at Alipore dated 11th November, 1987 passed in M.A.C.C. No. 421 of 1978.
(2.) THE relevant facts of this case are that on 31st July, 1978 at about 6.30 in the morning an accident took place in which the husband of the claimant -respondent was run over by the offending vehicle being No. WBY 1226. The facts that the accident took place and because of the accident the victim died are not in dispute. On behalf of the claimants eight witnesses were examined before the Motor Accidents Claims Tribunal and PW 5, Subhassis Roy, was the only eyewitness in respect of the accident that took place in which the victim died. PW 5 stated that on 31st July, 1978 he saw a motor accident on V.I.P. Road at about 6.30 a.m. when a school bus bearing No. WBY 1226 while making attempt to overtake a taxi from wrong side, i.e., left side dashed against the victim who was on the left side of the road adjacent to pucca rastha. The said witness also said that he had seen the said school bus carrying the school children from the vicinity. He knew the victim and he stated that after seeing the accident he went to the house of the victim to give information to the family and thereafter came back to the spot where he found that the victim was lying dead. The police was informed. After some investigation a case was started by the police. In the written statement filed on behalf of the appellant the only stand that was taken was that the driver of the offending vehicle had no occasion to drive the vehicle at the relevant time since the vehicle was in garage and as such the question of rash and negligent driving on the part of the driver did not arise. On behalf of the appellant three witnesses were examined including the driver of the vehicle in question. Mahadev Biswas, witness No. 3 for the appellant, stated in his deposition that his duty hours were from 6.45 a.m. so he went to garage to take out the bus at the time. It was further stated by him that he used to take out the vehicle from garage and then go towards South Calcutta, viz., Park Circus, Fern Road, Ballygunge Place and then come with girl students to Calcutta Girls School, Wellington Square. He stated that he never went to the area in question with the students. During cross -examination the driver of the bus could not say the premises number or holding number from where he used to take students for that school. A letter was produced from the Principal of the Calcutta Girls School dated 30th January, 1981 in which it was certified that the vehicle in question belonging to the appellant's garage was carrying the school children from South Calcutta to the said school from 1978. The said school begins at 8 a.m. and closes at 2 p.m. The learned Judge of the Claims Tribunal after considering the evidence, both oral and documentary, came to the conclusion that the garage register was not produced before the court with the result that the preliminary documentary evidence as to the movement of the vehicle on 31st July, 1978 on which date the accident took place was not there. The certificate granted by the school authority could be of little help to decide the issue and ultimately the Claims Tribunal found that the rash and negligent driving on the part of the said bus driver was self -evident inasmuch as it came upon the footpath portion of the road meant for the pedestrians while overtaking another vehicle from its left side which itself is a wrongful act and the negligence on the part of the driver being self -evident, the driver was entirely responsible for the said accident in which the victim was run over and killed.
(3.) AFTER deciding 'that the said accident took place because of the rash and negligent driving on the part of the driver of the said bus No. WBY 1226 the Tribunal awarded a compensation for a sum of Rs. 73,500/ -against the appellant out of which a sum of Rs. 50,000/ - was directed to be paid by the insurance company which is one of the respondents in this appeal who had not preferred any appeal against the judgment and award of the said Tribunal. The learned Judge while calculating the quantum of compensation took the salary of the victim on the basis of the records and documents produced before the court at the rate of Rs. 1902.40 per month and having regard to the size of the family of the deceased, namely, his wife and two sons and the expected life of the victim which was taken to be another seven years, assessed compensation at Rs. 98,000/ - out of which 25 per cent was deducted towards lump sum payment and the net compensation was determined as Rs. 73,500/ -.;