1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 945 OF 1995 FIRST APPEAL NO. 946 OF 1995 FIRST APPEAL NO. 947 OF 1995 FIRST APPEAL NO. 950 OF 1995 FIRST APPEAL NO. 953 OF 1995 & FIRST APPEAL NO. 535 OF 1997 FA No. 945 OF 1995 Maharashtra State Road Transport Corporation, ) having its office at Vahatuk Bhavan, ) Bombay Central, Bombay. ).. Appellant ( Org. Opponent ) Versus Kumari Tejashri Avinash Wagle. ).. Respondent ( Org. Applicant ) -- F.A. NO. 946 OF 1995 Maharashtra State Road Transport Corporation, ) having its office at Vahatuk Bhavan, ) Bombay Central, Bombay. ).. Appellant ( Org. Opponent ) Versus Smt. Madakini Ramkrishna Wagle, ) Age 60, Household, R/o. Plot No.71, ) Middle Class Co-op. Housing Society, ) At and Post, Panvel, Panvel. ) Since deceased through L.Rs: - ) 1A. Arvind R. Wagle. ) 1B. Tejashri Avinash Wagle. ).. Respondents (Org. Applicants ) 2 -- F.A. NO. 947 OF 1995 Maharashtra State Road Transport Corporation, ) having its office at Vahatuk Bhavan, ) Bombay Central, Bombay. ).. Appellant ( Org. Opponent ) Versus Kumari Tejashri Avinash Wagle, ) Age 10 years, Student minor through her ) natural guardian and next friend ) 1. Uncle Shri Arvind Ramkrishna Wagle. ) 2. Grand mother Smt. Mandakini ) Ramkrishna Wagle. ).. Respondents -- (Org. Applicants ) F.A. NO. 950 OF 1995 Maharashtra State Road Transport Corporation, ) having its office at Vahatuk Bhavan, ) Bombay Central, Bombay. ).. Appellant ( Org. Respondent ) Versus Kum. Tejashri Avinash Wagle, ) Now a major C/o. A.R. Wagle, ) R/o. Plot No.71, Middle Class Co-op. Housing ) Society, At and Post, Panvel, Panvel. ).. Respondent ( Org. Applicant ) -- F.A. NO. 953 OF 1995 Maharashtra State Road Transport Corporation, ) having its office at Vahatuk Bhavan, ) Bombay Central, Bombay. ).. Appellant ( Org. Respondent) 3 Versus Kumari Tejashri Avinash Wagle, Panvel. ).. Respondent ` (Org. Applicant ) -- F.A. NO. 535 OF 1997 Maharashtra State Road Transport Corporation, ) having its office at Vahatuk Bhavan, ) Bombay Central, Bombay. ).. Appellant ( Org. Opponent ) Versus Smt. Mandakini Ramkrishna Wagle, ) Age 67, R/o. Plot No.67, ) Middle Class Co-op. Housing Society, ) Panvel, Panvel. ) Since deceased through L.Rs. ) 1A. Arvind R. Wagle. ) 1B. Tejashri Avinash Wagle. ).. Respondents -- Shri G.S. Hegde for the Appellant. Smt. Teja Katdare for the Respondent. -- CORAM : A.S.OKA, J. DATE : 4TH MAY, 2010 ORAL JUDGMENT : . These First Appeals can be conveniently disposed of by a common judgment and order as the Appeals arise out of a common judgment and award passed by the learned Member of the Motor Accident 4 Claim Tribunal by which six Claim Petitions under Section 110-A of the Motor Vehicles Act, 1939 arising from the same accident were decided. One Shri Avinash Wagle who was an architect and government approved valuer was a resident of Panvel. He was residing with his wife Ranjana, daughters Tejashri, Shrividya and Deepshri. On 6th September, 1986, the said Avinash along with his family as well as his brother Arvind and his wife Asavari were proceeding by a jeep towards their village situated in Taluka – Rohe, District – Raigad on account of Ganapati festival. At about 4.15 p.m., when the jeep was approaching Irwadi Village, Taluka- Pen, on Bombay – Goa Highway, a bus owned by the Appellant -Maharashtra State Road Transport Corporation came in high speed from the opposite direction and gave a dash to the driver side portion of the jeep. In the said accident, the said Avinash, his wife Ranjana and two daughters Shrividya and Deepashree died on the spot. Third daughter Tejashree survived. The said Asawari who is the wife of the brother of Avinash sustained injuries due to the accident. The said surviving daughter filed claim Petitions through her grand-mother and uncle claiming compensation on account of death of her father, mother and two sisters. The said Asavari filed a claim petition claiming compensation on account of injuries sustained by her. It must be stated here that the mother Mandakini had also filed a separate claim petition claiming compensation on account of death of her son Avinash. The claim petitions were contested by the Appellant. The first contention was that it was the deceased Avinash who was negligent in driving the jeep and the accident occurred due to his negligent. The second contention was 5 that a separate claim petitions filed by Tejashri and her grand-mother Mandakini claiming compensation on account of death of Avinash were not maintainable. The Tribunal framed various issues. The Tribunal held that the accident occurred due to negligence on the part of the driver of the Appellant. The compensation was granted in the claim petitions with interest at the rate of 12% per annum. 2. The learned counsel appearing for the Appellant submitted that the evidence on record does not justify the finding of negligence on the part of the driver of the bus. He submitted that the panchanama of the spot of accident indicates that the jeep driven by Avinash was either at center of the road or on its wrong side. He submitted that the version of the witness examined by the claimants is completely falsified by the spot panchanama which shows the locations of both the vehicles after the accident. He submitted that the evidence of Arvind will have to be discarded as the same is inconsistent with the spot panchanama. He submitted this was a case of no evidence against the appellant. Inviting my attention to the findings recorded on the quantum of compensation, he submitted that the compensation is excessive. He pointed out that the interest at the rate of 12% per annum is excessive as the hearing of the claim petitions was prolonged due to default on the part of the claimants. He submitted that considering the repeated absence of claimants before the Tribunal, the interest cannot exceed 6 or 7 percent per annum. The learned counsel appearing for the Respondents supported the impugned judgments 6 and awards. She submitted that the evidence of Arvind was sufficient to prove the negligence on the part of the driver of the bus. She pointed out that the evidence of the driver of the bus has been considered and a finding has been recorded that the driver lost his control over the bus. As far as the interest is concerned, the learned counsel stated that though no case is made out for interference, by way of settlement, the original claimants are willing to accept the interest at the rate of 8% per annum. 3. I have carefully considered the submissions. As stated earlier, the claimants examined Shri Arvind, brother of the deceased Avinash, who was travelling by the jeep. The Appellant examined driver by name Ganpat Narayan Kadam. The Tribunal referred to the FIR registered against the driver of the Appellant. The learned Judge has referred to the spot panchanama and damage caused to the jeep as well as the bus which is recorded in the panchanama. 4. The Appellant’s driver stated that there was one small culvert on the road at Irwadi village. When the bus was crossing the culvert, he saw the jeep ascending and he gave signal to the driver of the jeep to slow down his jeep. He stated that the jeep gave a dash to the bus though he applied brakes. He stated that thereafter the bus went on to the right side of the road. In the cross examination, he admitted that the bus was having vacuum brakes and on applying brakes even with the speed of 50 to 60 kms per hour, the bus used to stop within a range of 2 metres. He admitted that 7 from the place of impact, the bus stopped at a distance of 75 feet. He stated that when he heard the noise of rubbing a portion of the jeep, he applied the brakes immediately. The Tribunal found that the statements in the cross-examination of the driver completely defeat the case that he was driving the vehicle in a moderate speed. The learned Judge observed that if the bus driver was driving the bus in a moderate speed and the driver had a control over the same, after immediately applying the vacuum brakes, the bus could not have travelled upto the distance of 75 feet. The Tribunal dealt with the evidence of one Gajanan Desai examined by the Appellant. However, the witness stated that he was unable to tell as to on account of whose fault the accident occurred. The learned Judge has noted that there was no damage to the rear side or the side of the bus and therefore, the theory of the Appellant that the jeep gave a dash to the side of the bus will have to be disbelieved. The learned Judge referred to the evidence of witness Gajanan Desai, who admitted that the road had sufficient width and sufficient space was open. Considering the evidence of the driver and the other witness examined by the appellant, the finding recorded by the Tribunal is that the case that the bus was driven in a moderate speed has to be rejected considering the fact that the bus went ahead at a distance of 75 feet after applying vacuum brakes. That is why the finding of negligent was recorded against the driver of the appellant. Moreover, the driver admitted that he had seen the jeep approaching from the opposite side and therefore he had given a signal. Therefore, the driver of the appellant had an opportunity to avoid the accident. There is no reason to disturb the 8 finding on the issue of negligence. 5. As far as the quantum of compensation is concerned, on account of death of her father, the surviving daughter has been granted compensation of Rs.2,98,000/-. On account of death of her mother, the compensation of Rs.64,000/- has been granted. On account of death of her sisters, compensation of Rs.35,000/- each has been awarded in the two claim petitions. The mother of Avinash has been granted compensation of Rs.58,000/-. As far as the claimant Asavari is concerned, compensation of Rs.10,000/- has been awarded by the Tribunal. The age of surviving daughter Tejashri was 10 years at the time of accident. The evidence of Arvind, brother of Avinash proved that Avinash was a Civil Engineer, Architect and Valuer and that he was carrying on his profession at Panvel from the year 1966. From the evidence of the advance payment of income tax, the Tribunal inferred that the monthly income of Avinash was not less than Rs.8,000/-. The dependency of Tejashri is taken at 30% of the income i.e. Rs.1,600/- per month. The dependency has been calculated after deducting 1/3rd of the income of Avinash on account of personal expenditure. The multiplier of 15 has been applied as the age of the deceased was 41 years. The deceased Avinash was an Architect and Government approved Valuer. His prospects of future increase in the earnings have not been considered. Therefore, compensation of Rs. 2,98,000/- to his daughter and compensation of Rs.58,000/- to the mother cannot be said to be unreasonable. On account of death of his sister, 9 compensation of Rs.35,000/- has been awarded. On account of death of mother, a reasonable amount of Rs.64,000/- has been granted. The Claimant Asawari has been granted compensation of Rs.10,000/- on account of abrasion on forehead and contusion on chest. Therefore, the compensation granted in each case is reasonable and no interference is called for. 6. That takes me to the controversy regarding interest. The claim petitions were filed in December, 1986. Perusal of the Roznama of the proceedings shows that from 17th October, 1989 till 26th November, 1991, the claimants were absent. About 30 dates were fixed in the said period. Roznama dated 24th January, 1992 does not record anything about presence or absence of the parties. Thereafter, on 27th March, 1992, 3rd July, 1992, 28th August, 1992, 16th October, 1992, 20th November, 1992 and 11th December, 1992, the claimants remained absent. In Roznama dated 6th January, 1993, there is no noting whether the claimants were present. On 2nd February, 1993, the claimants were absent. Thereafter, the claimants remained present on the subsequent dates. The matters were sent before the Lok Adalat where no compromise could be arrived at. Thus, perusal of Roznama shows that the issues were framed on 14th February, 1989 and from 22nd August, 1989 till 2nd February, 1993, practically on all the material dates fixed, the claimants remained absent. Considering these peculiar facts, the claimants will not be entitled to interest for the period for which they were absent. Instead of denying interest for the said span, the 10 interests of justice will be served if interest at the rate of 12% p.a. which was a reasonable rate of interest in the year 1994 is brought down. In my opinion, interest deserves to be awarded at the rate of 8% per annum instead of 12% per annum. 7. Hence, I pass the following order. (a) The findings of the Tribunal and the quantum of compensation fixed by the Tribunal under the impugned awards are confirmed. The impugned awards are modified only to the extent that the interest shall be payable by the Appellant on compensation amounts from 15th December, 1986 at the rate of 8% per annum till payment or realization thereof. Rest of the award is maintained. (b) If any amount deposited by the Appellant is pending in this Court, the same shall be transferred to the concerned Tribunal. The concerned Tribunal will pass appropriate order for disbursement and/or withdrawal after hearing the parties. (A.S.OKA, J)