1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 253 OF 2005 The New India Assurance Co. Ltd. Velho Building, 3rd Floor, Panaji Goa. ... Appellant V e r s u s 1. Miss Minal Arun Phadte 22 years of age, student r/o H.No.153, Dangui Colony, Mapusa, Bardez Goa. 2. Miss Sonal Arun Phadte 21 years of age, student, r/o H.No.153, Dangui Colony, Mapusa Bardez Goa. 3. Shri Vijay Ramchandra Mayekar, Driver, R/o H.No.147, Pawas, Ratnagiri, Maharashtra. 4. Shri Narendra S. Patade, (owner) R/o Walbhat-wadi, Mantri Chawl, Room No.1, Gokhale Road, Dadar, Bombay, Maharashtra – 400 025 ... Respondents Mr. E. Afonso, Advocate for the Appellant. Mr. V. Menezes with Ms. M. Conception, Advocates for the Respondent Nos. 1 & 2. 2 CORAM : A. S. OKA & F. M. REIS, JJ. DATED : 8TH JUNE, 2010. ORAL JUDGMENT ( Per A. S. OKA, J ) The Appellant is the insurer of the bus involved in the accident. The Appellant has taken an exception to the judgment and award passed by the Motor Accident Claims Tribunal, Mapusa Goa, in a Claim Petition filed by first and second Respondents under Section 166 of the Motor Vehicles Act, 1988 ( hereinafter referred to as the said Act of 1988 ). The first and second Respondents are the unmarried daughters of the deceased. The mother of the first and second Respondents was 52 years old at the time of the accident. The deceased was travelling from Mumbai to Goa in a bus on 19th November, 2002 and the bus reached Chiplun at 01.15 a.m. on 20th November, 2002. The allegation is that the driver of the bus was driving the same in a rash and negligent manner which resulted in an accident. The deceased died as a result of the injuries sustained in the accident. The Claim Petition was filed by the first and second Respondents against the driver, owner and 3 insurer ( the Appellant ) of the bus. It appears that the driver and the insurer did not contest the Claim Petition. On obtaining leave under Section 170 of the Act of 1988 the Appellant contested the Claim Petition. The main contention of the Appellant is that the tanker bearing registration No. GJ-6/W-9886 was involved in the alleged accident and, therefore, the driver, owner and insurer of the tanker were necessary parties to the Claim Petition. It was contended that the Claim Petition was not maintainable on account of non-joinder of necessary parties. The Appellant denied that the accident occurred due to the rash and negligent driving on the part of the driver of the bus. 2. The first and second Respondents adduced the evidence. The first Respondent stepped into the witness box. The first and second Respondents examined one Shri Anil Kambli, Assistant Accounts Officer of Government Polytechnic, Altinho. The said witness was examined to prove that the deceased was in employment of the Government Polytechnic. The first and second Respondents also examined one Shri Bhaskar Kashinath Mhatre who at the relevant time was attached to the Chiplun Police Station, District Ratnagiri, State of Maharashtra. No 4 evidence was adduced by the Appellant. 3. Learned Member of the Tribunal recorded a finding that the accident occurred due to the rash and negligent driving on the part of the driver of the bus. The Tribunal proceeded to award compensation of Rs. 11,04,608/- with interest at the rate of 9% per annum from the date of the filing of the Claim Petition till the payment of the amount. 4. The learned Counsel appearing for the Appellant taken us through the pleadings, notes of evidence and impugned judgment. His first submission is that the tanker was involved in the accident and the accident occurred due to the rash and negligent driving on the part of the driver of the tanker. He submitted that the Claim Petition was bad for non-joinder of owner, driver and insurer of the tanker. He submitted that in some other Claim Petitions arising out of the same accident, the owner and the driver of the tanker have been impleaded as parties and finding of composite negligence has been recorded by the Tribunal against the drivers of both the vehicles. He submitted that the entire burden to prove rashness and negligence on the part of the driver of the 5 bus was on the first and second Respondents who are the claimants. He submitted that the claimants have failed to discharge the burden. They have failed to examine eye witnesses. He submitted that third witness examined by the claimant was a police officer who had arrived at the scene after the accident and he had no personal knowledge about the manner in which the accident occurred. He submitted that the evidence of third witness examined by the first and second Respondents shows the involvement of the tanker in the accident. He submitted that merely because the driver of the bus was prosecuted, the Tribunal could not have come to the conclusion that there was negligence on the part of the driver of the bus. He submitted that it was for the first and second Respondents to examine the driver of the tanker and the other eye witnesses. He submitted that the Tribunal has committed an error by drawing an adverse inference against the Appellant for not examining the driver of the bus and in fact an adverse inference ought to have been drawn against the first and second Respondents on their failure to examine any eye witnesses. Coming to the quantum of compensation, the learned Counsel appearing for the Appellant submitted that the respective ages of the first and second Respondents on the date of the 6 accident were 22 and 21 years respectively and, therefore, their dependency can be considered only for a period of few years. He submitted that the first and second Respondents will be entitled to receive pensionery benefits on the death of the deceased. He submitted that the multiplier of 11 applied by the Tribunal is on the higher side considering the respective ages of the claimants. He submitted that the Tribunal had no jurisdiction to grant interest at the rate of 9% per annum. He submitted that grant of interest at the rate of 9% per annum is excessive and it amounts to grant of some sort of double benefit to the claimants. 5. We have given careful consideration to the submissions. We have perused the pleadings, notes of evidence and record of the Tribunal. Perusal of the written statement of the Appellant shows that the fact that the deceased was a passenger travelling in a bus and that the bus was involved in the accident are not disputed by the Appellant. A preliminary objection has been raised in the written statement that the Claim Petition was not maintainable on account of the non-joinder of the driver, owner and insurer of the tanker. Apart from raising preliminary 7 objection, the written statement consists of mere denial of various averments made in the Claim Petition. As pointed out earlier, the Appellant was granted leave under Section 170 of the Act of 1988 to defend the Claim Petition. 6. The third witness examined by the claimant Mr. Bhaskar Mhatre was at the relevant time posted as a Police Inspector attached to Chiplun Police Station in whose jurisdiction the accident occurred. In examination in chief, he stated that the “bus was lying overturned on the wrong side of the road”. He stated that the tanker was at a distance of 200 feet from the bus which had dashed against the hillside. He stated that he recorded inquest panchanama and he has also drawn the scene of offence panchanama. He produced the inquest panchanama and scene of offence panchanama on record. He stated that the charge-sheet was filed by him against the driver of the bus as he found that the driver of the bus was negligent. The witness was cross examined by the Appellant. In cross examination, he stated that the road at the accident spot was straight up to a distance of 250 metres and there was downward slope for a distance of half kilometer towards the side of Goa from the 8 spot of accident. He stated that the width of the road was 25 feet and two vehicles could easily pass at a time on the said road. He stated that there was a katcha road of the width of 10 feet on one side and 7 feet on the other side. In the cross examination, the witness further stated as under : “ The bus had tilted on the driver side. The tanker was on its side of the road and after the impact by the bus on the driver's side”. There is no specific statement either in examination in chief or in cross examination of the said witness that there was head on collision between the tanker and the bus. What is brought on record in examination in chief is that the bus was lying overturned on the wrong side of the road. To that statement in examination in chief, there is no specific challenge. On the contrary, it is brought on record in cross examination that the bus had tilted on the driver's side. The statements made by the said witness are supported by the panchanama at Exhibit 45. 9 7. It appears from the record that no efforts were made by the Appellant to examine the driver or conductor of the bus or any other passengers travelling in the bus. In the written statement, the Appellant did not dispute the involvement of the bus in the accident. It was the case of the Appellant that the tanker was involved in the accident and it was alleged that the driver of the tanker was responsible for the accident. On the other hand, there is evidence of Mr. Mhatre adduced by the claimants who stated that the bus was lying overturned on the wrong side of the road. In the context of the defence taken by the Appellant and in the light of the evidence of the witness Mr. Mhatre, the learned Member of the Tribunal has found fault with the Appellant for not examining the driver of the bus. What is held by the Tribunal is supported by the evidence on record. On the failure of the Appellant to prove the involvement of the tanker, a finding has been recorded against the driver of the bus that the accident occurred due to the rash and negligent driving of the bus. Examination of the driver was necessary especially in the light of the fact that the bus had overturned on the driver's side and it was found on its wrong side of the road. The Tribunal has considered the entire oral and documentary evidence in the 10 context of the stand taken by the Appellant in the written statement. We are of the view that the Tribunal was justified in drawing an adverse inference against the Appellant for not making any efforts to examine the driver or conductor of the bus or other passengers travelling in the bus. The Tribunal has correctly appreciated the oral and documentary evidence on record and has recorded a correct findings against the driver of the bus on the issue of negligence on the part of the driver of the bus which was admittedly involved in the accident. 8. The learned Counsel appearing for the Appellant has taken us through the finding recorded on the quantum of compensation. The second witness examined by the first and second Respondents was Assistant Accounts Officer, Government Polytechnic, Altinho Goa. He produced the salary certificate which was admitted in evidence and marked as Exhibit 39. He stated that the last drawn salary of the deceased was Rs. 12,478/- per month. He stated that the deceased was in the employment of the Government Polytechnic from the year 1972. In view of this evidence the Tribunal has taken income of the deceased as Rs.12,478/- per month for the purpose of calculating multiplicand. 11 Moreover, the Tribunal has made deduction of 1/3rd towards personal expenditure of the deceased. The Tribunal has applied multiplier of 11 after taking into consideration the age of the deceased was 52 years. 9. As far as application of appropriate multiplier is concerned, now law has been crystalised in the form of judgment of the Apex Court in the case of Smt. Sarla Verma & Ors V/s Delhi Transport Corporation & Another, in Civil Appeal No. 3483 of 2008 decided in 2009. After considering the entire law on the subject, the Apex Court has decided as to what shall be the appropriate multiplier. For the age group of 51 to 55 years, the multiplier specified is 11. The deduction of 1/3rd made by the Tribunal is consistent as per the view taken by the Apex Court in Sarla Verma's case ( supra ). In our view multiplicand has been properly calculated in terms of the said decision of the Apex Court and the multiplier applied is correct. The accident had occurred in the year 2002 and the Claim Petition is of the year 2003. Considering the then prevailing rates of interest, the interest granted by the Tribunal at the rate of 9% per annum is reasonable. The operative part of the award clarifies that the total amount of Rs.11,04,608/- is inclusive of the 12 amount paid under no fault liability. 10. As per the interim order passed by this Court, 50% of the compensation amount deposited by the Appellant has been withdrawn by the first and second Respondents. The balance amount has been invested in the fixed deposit. The first and second Respondents will be entitled to withdraw the balance amount together with interest accrued thereon. The first and second Respondents will be entitled to withdraw half share each in the aforesaid amount. 11. We find that there is no merit in the Appeal and the same is accordingly dismissed with no order as to costs. A. S. OKA, J F. M. REIS, J. at*