1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 232 OF 2004 1. Shri Krishna Tukaram Kalgutkar Son of Tukaram Kalgutkar Aged 65 years, Pensioner and his wife. 2. Smt. Sanjeevani Krishna Kalgutkar aged 59 years, housewife both residents of House No.402, Bhandarwadda, Majal, Karwar Uttar Kannada, Karnataka 581 345. ... Appellants versus 1. Shri Kashinath Gopal Khedekar r/o House No.292, Madhelwado, Savoi Verem, Ponda-Goa(Driver) Driver of Tempo No.GA-01/W/2491 (MDL No.GA-P-5762 valid upto 10-10-99). 2. Shri Sunil Dattaram Govekar resident of House No.Nil, Khariwado, Ponda Goa(owner). 3. The National Insurance Company Ltd., Ponda Goa Branch Code No.271202 Policy No./Receipt No.005912 upto 10-11-1997(Insurer). ... Respondents Shri S. S. Kakodkar, Advocate for the Appellants. Shri M. S. Joshi, Advocate for Respondent No.3. 2 CORAM : F. M. REIS, J. DATE : 29TH OCTOBER, 2010. ORAL JUDGMENT Heard learned Counsel for the appellants and learned Counsel for respondent no.3. 2. The above appeal challenges the Judgment and Award passed by the learned Presiding Officer of the Motor Accident Claims Tribunal, South Goa at Margao in Claim Petition No.103 of 1997. 3. In short, it is the case of the appellants that on 15-3-1997, at about 1.30 p.m., the son of the claimant Shekhar Krishna Kalgutker, since deceased, was proceeding along with one Shridhar Govind Kuvalekar to Karwar on his motorcycle bearing registration No.GA-01- D-8044. Whilst he was proceeding on the right side of the road at the relevant time, the offending vehicle driven by respondent no.1 in a rash and negligent manner dashed against the motorcycle of the said deceased and as a result of which the said Kalgutker and the pillion rider were thrown off on the kutcha road and the said rider of the motorcycle died 3 on the spot. Accordingly, the claimants filed a claim petition seeking compensation of Rs.3,00,000/- from the respondents. 4. The respondent nos.1 and 2 filed their written statement stating, inter alia, that the motorcycle had mechanical defects and as such its brakes were not in tact. It is further their case that the amount of compensation claimed by the appellants is excessive and without any legal basis. It is further denied that respondent no.1 saw the vehicle across the road and dashed the motorcycle. It was denied that there was any rash and negligence on the part of the said respondent. It is further their contention that the deceased was driving the motorcycle under the influence of alcohol and with high speed and was trying to overtake the vehicle of the said respondents, and after seeing another vehicle coming on the opposite direction he lost control and fell down on the trench. Respondent No.3/National Insurance Company Ltd. also filed a separate written statement stating that the motorcycle had a mechanical defect, and more or less filed their written statement on the same lines as that of respondent no.1. 4 5. The Claims Tribunal after recording of the evidence and hearing the parties came to the conclusion that the accident had occurred on account of the fault of respondent no.1 as well as on account of the fault of the deceased Shekhar Krishna Kalgutker. The Tribunal further came to the conclusion that in the said accident, the said Shekhar sustained damage to his head and the brain, which resulted to his death. The Tribunal further held that the total compensation which the appellants were entitled to were to the tune of Rs.60,000/-. The Tribunal further held that the accident had occurred on account of the fault of respondent no.1 as well as that of the said deceased. Being aggrieved by the said Judgment, the appellants had preferred the present appeal. 6. Shri S. S. Kakodkar, learned Counsel appearing for the appellants has assailed the impugned Judgment and has submitted that the Tribunal has erroneously awarded only a sum of Rs.63,000/- when there was sufficient evidence on record for the Tribunal to come to the conclusion that the appellants were entitled to a sum of Rs.2,00,000/-. Learned Counsel further submitted that the accident has occurred on account of rash and negligent driving on the part of respondent no.1, and as such the conclusion drawn by the Tribunal to the effect that there was 5 negligence on the part of the deceased does not arise at all. Learned Counsel took me through the sketch placed on record and pointed out that it was on account of the rashness and negligence on the part of respondent no.1 which was the sole cause of the accident. Learned Counsel further pointed out that the accident occurred at the site where there was a curve and the road at that point was quite broad, and as such, as the vehicle driven by respondent no.1 which was a pick-up was descending the Karmal Ghat, it was incumbent upon him to show more caution while negotiating the said curve. Learned Counsel further pointed out that the contention in the written statement raised by respondent no.1 to the effect that the motorcycle was overtaking the pick-up has not been established but on the contrary the evidence disclosed that the motorcycle was coming on the opposite direction. Learned Counsel further took me through the panchanama as well as to the sketch and pointed out that the point of impact was on the front side of the pick-up which itself negates the contention raised by respondent no.1 that the motorcyclist was overtaking the pick-up. Learned Counsel further pointed out that respondent no.1 has not established in what circumstances the motorcyclist was found fallen in the middle of the road and pointed out that there is no evidence on record that respondent 6 no.1 took any measures to avoid the accident though he was descending the slope. Learned Counsel further pointed out that the appellants are also entitled for compensation on account of the loss of estate to the tune of Rs.2,500/-, besides the multiplier ought to have been 9 instead of 5, considering the age of the dependents. 7. On the other hand, Shri M. S. Joshi, learned Counsel appearing for respondent no.3 has supported the impugned Judgment. He submitted that the evidence on record establishes the contributory negligence on the part of the deceased motorcyclist. Learned Counsel further submitted that there is no infirmity committed by the learned Tribunal and as such no interference is called for in the impugned Judgment and Award. Respondent Nos.1 and 2, though served, failed to appear. 8. On perusal of the evidence on record, I find that appellant no.1 has been examined as CW1, and has stated that his son died in a motorcycle accident and he was 30 years old at the time of accident. He further stated that his son was giving them Rs.4000/- per month and that he gets a pension of Rs.700/- per month. He has further stated that after 7 he was informed about the accident he came to know that the pick-up driven by respondent no.1 was involved in the accident. In the cross- examination, he has stated that he has not seen the accident. 9. The next witness examined as CW2 is Shridhar Kuvalekar who has stated that he was sitting as a pillion on the motorcycle which the deceased Shekhar was driving. He has further stated that they were proceeding from Margao to Karwar and the accident occurred at Karmal Ghat and that he was proceeding on the left of the road and climbing the slope. The pick-up was coming on the front side. It came towards their side that is to say the right hand side and dashed against them. He further stated that he fell down unconscious and he did not know what had happened to the said Shekhar. In cross-examination, he stated that Shekhar was driving at a speed of 40 to 45 kms. per hour. He denied the suggestion that the accident occurred when Shekhar was overtaking a bus. 10. The next witness examined as CW3 is Silvano Dias Sapeco who is a Forensic expert who had conducted the autopsy. The next 8 witness examined as CW4 is Rajendra Prabhu who was one of the panch witnesses and who has identified his sketch at Exh.32. 11. Respondent No.1 was examined as RW1. He has stated that he was driving the pick-up belonging to Sunil Govekar and was going down the slope at Karmal Ghat. He has further stated that there was a bus coming from opposite direction and two persons were on a motorcycle and were overtaking the bus and in the process of overtaking the said motorcycle came and hit the right hand headlight of his pick-up. In cross-examination, he has stated that the motorcycle was overtaking a private passenger bus. To a pointed question as to whether he had stated the said fact in the written statement he answered in the affirmative but was confronted with his written statement where nothing to that effect was mentioned therein. He has further admitted that the motorcyclist was climbing the slope. 12. The learned Tribunal while appreciating the evidence on record has come to a conclusion that on the basis of the evidence on record produced by the appellants it was not possible to ascertain as to whether the accident occurred on account of the fault of respondent no.1 9 or on account of the deceased Shekhar but, however, the Tribunal held that there was a dash between the motorcycle driven by the deceased and the pick-up driven by respondent no.1. The Tribunal further held on perusal of RW2 who was the Investigating Officer that the point of impact was point 'B' as shown in the sketch and on the basis of the position shown in the sketch the Tribunal held that the impact was more or less in the middle of the road. The Tribunal further held that the accident occurred on account of the fault of the deceased as well as on account of the fault of respondent no.1. The Tribunal further held that as the age of the deceased was 59 years, the multiplier to be applied was 5 and as there was no sufficient evidence to establish about the income of the deceased and as the deceased was holding a diploma in Computer Management, the Tribunal came to a conclusion that his income should be considered as Rs.3000/- per month. The Tribunal as such came to a conclusion that the amount works out to Rs.1,80,000/-, and after deducting 1/3rd on account of personal expenses of the deceased, the total loss was assessed at Rs.1,20,000/-. The Tribunal further held that the contributory negligence of the deceased was 50% and as such awarded a sum of Rs.60,000/- besides a sum of Rs.2000/- for funeral expenses and Rs.1,500/- on account of transportation expenses. 10 13. From the evidence on record and after perusing Exh.32, I find there is no infirmity committed by the Tribunal to come to a conclusion that there was contributory negligence on the part of the deceased which resulted in the accident. The point of impact is in the middle of the road which shows that the pick-up driver who is the respondent no.1 did not take the necessary caution to avoid the accident. The evidence on record further discloses that the pick-up driver was descending the slope and the motorcycle was ascending. No doubt as the pick-up was loaded it should exercise due care whilst descending the slope specially considering that the accident occurred at a place where there was a curve at Karmal Ghat. Contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person when means and opportunities are available to do so. The question of contributory negligence would arise only when both the parties are found to be negligent. 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 has suffered injury. There is always a co-relation between the idea of negligence and duty. Negligence is categorized either as composite or contributory. When the accident has 11 occurred on account of the negligence of both the parties, there would be contributory negligence and both of them would be blamed. In the present case, there is no doubt that respondent no.1 as well as the deceased Shekhar were negligent which resulted in the accident. On perusal of the sketch at Exh.32, the pick-up is found on the extreme left side whilst proceeding to Cuncolim and the motorcycle on the extreme right hand side of the said direction. It also shows the existence of a slight curve which the pick-up was in the process of negotiating considering the point of impact which is in the middle of the road. The said position of the vehicles show that both of them must have been relatively at a high speed which resulted in the accident. The pick-up driver/respondent no.1 who was descending the slope should have shown more caution and care which he has failed to do so, as can be ascertained from the material on record. Considering that the pick-up was being driven down the slope and the motorcycle was ascending the slope, I find that the evidence does not disclose that any attempt was made by respondent no.1 to avoid the accident as the road at the site was reasonably broad and as such the negligence on the part of the deceased should be fixed at 30% and that of respondent no.1 at 70%, in the circumstances of the present case. 12 14. The Tribunal whilst assessing the compensation has fixed the monthly income of the deceased at Rs.3000/-. Considering that there was no material on record to establish the exact amount drawn by the deceased, I find the said amount fixed by the Tribunal as monthly income is justified. The Tribunal has applied the multiplier of 5 for fixing the compensation. 15. The Apex Court in the case of Smt. Sarla Verma and others v. Delhi Transport Corporation and another(2009(4) ALL MR 429) has held that the multiplier in the cases in which the dependent is between 56 and 60 years of age, the multiplier to be applied is 9. The Tribunal has committed an error in fixing the multiplier as 5. The multiplier to be fixed in the facts and circumstances of the case considering the age of appellant no.1 as 58 years is 9. Besides that, the Tribunal has deducted 1/3rd towards personal expenses. The Apex Court in the said Judgment in the case of Smt. Sarla Verma and others v. Delhi Transport Corporation and another(supra) at para 15 held that in cases in which the deceased is a bachelor, 50% should be deducted on account of personal expenses. In the present case, since the deceased was 13 a bachelor the deduction on account of personal expenses ought to have been 50% instead of 1/3rd as done by the Tribunal. 16. Considering the income of the deceased was Rs.3000/- per month and after deducting 50% towards personal expenses, the amount works out to Rs.1,62,000/- applying the multiplier of 9. As the contributory negligence of the deceased is fixed at 30%, the amount after such deduction works out to Rs.1,13,400/-. Besides the said amount, the appellants would be entitled for a further sum of Rs.2,500/- on account of loss of the estate, and also the amount awarded by the Tribunal of Rs.1,500/- towards transportation expenses of the dead body and Rs.2000/- on account of funeral expenses. The total compensation as such works out to Rs.1,19,400/-. The figure has been worked out with the assistance of both the learned Counsel. To that extent the impugned Judgment deserves to be modified. 17. In view of the above, the appeal is partly allowed. The total compensation payable to the appellants is fixed at Rs.1,19,400/- together with interest thereon at the rate of 9% per annum from the date of filing the claim petition upto actual payment after deducting the amount paid 14 under Section 140 of the Motor Vehicles Act, 1988. To that extent, the impugned Judgment stands modified. The appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J. RD