1 ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 930 OF 1996 Maharashtra State Road Transport Corporation, ) having its office at Vahatuk Bhavan, ) Bellasis Road, Bombay Central, ) Bombay – 400 009. ).. Appellant (Org. Defendant No.1 ) Versus 1. Sindhubai Suryabhan Patil, ) Age 41 years, Occupation : Household, ) 2. Ms. Anita Suryabhan Patil, ) Age 16, ) 3. Master Manojkumar Suryabhan Patil, ) Age 15, ) 4. Ms Sulochana Suryabhan Patil, ) Age 13, ) 5. Ms Surekha Suryabhan Patil, ) Age 11 ) 6. Ms Sarla Suryabhan Patil, ) Age 9, ) 7. Ms Lalita Suryabhan Patil, ) Age 15, ) ( Nos. 2 to 7 minors by their guardian ) Mother Claimant No.1, ) All R/o. Sakora, Tal. Nandgaon, ) District – Nashik. ).. Respondents (Org.Claimants ) -- Shri G.S. Hegde along with Shri C.M. Lokesh for the Appellant. Shri Umesh R. Mankapure for Respondent Nos.1 to 7. -- 2 CORAM : A.S.OKA, J. DATE : 26TH MARCH, 2010 JUDGEMENT : . The Appellant - Maharashtra State Road Transport Corporation has taken an exception to the judgment and award made by the Learned Member of the Tribunal in a Claim Petition filed under Section 166 of the Motor Vehicles Act, 1988. With a view to appreciate the submissions, it will be necessary to briefly refer to the facts of the case. 2. The claim is based on account of demise of one Suryabhan who died in motor accident on 3rd May, 1992 at 8.15 p.m. The deceased was going by a bicycle from Nandgaon to Sakora. It is alleged that the bus owned by the Appellant bearing No. MWQ 6815 gave a dash to the said bicycle. As a result of the injuries sustained, the deceased lost his life. The allegation is that the accident occurred due to rash and negligent driving on the part of the driver of the bus owned by the Appellant. The driver of the bus died during the pendency of the Claim Petition. There is no written statement filed by the Appellant. 3. The learned counsel appearing for the Appellant has taken me through the notes of evidence and in particular the evidence of the alleged eye witnesses Deochand Yamaji Surse and Vasant Pandurang Surse. He 3 pointed out that the witness Deochand Surse stated that the deceased was plying the bicycle ahead of him at a distance of half a furlong. He pointed out that though the witness stated that he saw a bus owned by the Appellant coming in a high speed from opposite direction, the answer given in the cross-examination shows that he has actually not seen the accident. The learned counsel appearing for the Appellant pointed out that the witness admitted that he learnt about the accident only from the noise which he had heard. Inviting my attention to the deposition of the other eye witness Vasant, he submitted that even according to the said witness, he was ahead of the deceased. He invited my attention to his cross- examination in which he admitted that he has not actually seen the impact. The learned counsel appearing for the Appellant submitted that the bus has not given a dash to the alleged eye witness Vasant who was admittedly ahead of the deceased as well as to the other alleged eye witness Deochand who was following the deceased. He submitted that it cannot be accepted that the bus came on its wrong side and gave a dash to the deceased who was plying the bicycle in between the eye witnesses. He submitted that if the bus had gone on its wrong side, the said two witnesses could not have escaped considering the distance between them and the deceased. He submitted that both the eye witnesses have not seen the actual impact and, therefore, their evidence cannot be accepted. He invited my attention to the findings recorded in paragraph No.7 of the judgment. He pointed out that there is no material on record to show that the passengers from the bus shouted as soon as the accident occurred and that the passengers in the bus 4 suffered injuries. He submitted that the said findings are not borne out from the record. He submitted that there is nothing on record to show that the bus was involved in the accident. He submitted that the bus was not found on the spot and a panchanama has been drawn at the Police Station. He submitted that even the involvement of the bus was doubtful. He submitted that in any case the finding on negligence is perverse. The learned counsel appearing for the Claimants supported the impugned judgment and award. He submitted that the Appellant has not even filed the written statement and therefore, all these submissions are not open. He submitted that the Tribunal ought to have passed an award under Rule 5 of Order VIII of the Code of Civil Procedure, 1908. He submitted that no interference is called for. 4. I have carefully considered the submissions. As far as the concept of negligence is concerned, it will be necessary to consider the decision of the Apex Court in the Municipal Corporation of Greater Bombay v. Laxman Iyer & Anr., [ (2003)8 SCC 731 ]. In Paragraph 6 of the decision of the Apex Court, it has been held thus:- “6. The 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 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 reasonable 5 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 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 be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What 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 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 law 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......” (emphasis added) 6. In the light of the law laid down by the Apex Court, the submissions will have to be considered. At the outset, it must be stated that in a claim Petition filed by the Claimants, there are specific assertions regarding involvement of the bus bearing No. MWQ 6815 owned by the Appellant in the accident. There is no written statement to the Claim Petition denying involvement of the bus. Moreover, neither the Conductor or the passengers in the bus have been examined. If the defence of the 6 Appellant was that the bus was not involved, in such a case, written statement ought have been filed contesting the case made out by the Claimants regarding involvement of the bus in the accident. The Appellant was represented by an Advocate and the record shows that a pursis was filed by the Advocate at Exhibit-25 stating that the Appellant was not desirous of adducing any evidence. It must be stated here that the certified copy of the FIR is at Exhibit-17 which notes the bus number of the Appellant. The certified copy of the panchanama is at Exhibit-18 which shows that the bus was brought to the compound of the Police Station where the panchanama has been recorded and damage to the driver’s side of the bus has been noted. 7. The witness Deochand stated that the deceased was riding a bicycle ahead of him. In the examination-in-chief, he has stated that from the distance of 20-25 feet, he could see the bus coming in a high speed from opposite direction. He stated that the bus came on the wrong side and he heard the noise and he had seen the deceased lying on the ground at a distance about 15-20 feet from northern side of the road. Thus, in the examination in chief, the case made out by him that he saw the S.T. Bus coming from opposite direction in a high speed and it came on the wrong side and he stated that thereafter he found that the deceased was lying on the ground. In the cross-examination, he stated that he heard the noise and therefore he stated that the accident had occurred. The said statement is not inconsistent with what he has stated in the examination-in-chief. He 7 has stated that after he heard the noise, the bus passed away and went towards the S.T. Depot. Perusal of the cross-examination shows that the witness has denied the correctness of the suggestion that the bus was not coming from the opposite direction. The witness admitted that his statement was recorded by the police. Thus, the version of the witness is that he saw the bus coming from opposite direction. The bus came on its wrong side. Thereafter, he heard the noise and the bus passed away towards the ST Depot of Nandgaon. Even the witness Vasant Surse has deposed that he saw the bus of the Appellant coming from the opposite direction in a high speed and due to powerful head-light of the bus, he along with the others took their bicycles towards the extreme left of the road. He stated that thereafter he heard a noise and the bus passed away. He found that the deceased was lying about 15 feet towards the northern side of the road. He noticed that by that time, the witness Deochand and two others reached the spot. In the cross-examination, he stated that he heard the noise and, therefore, he learnt about the accident. He stated that the bus had passed him and thereafter he heard the noise. Thus, the witness Vasant stated that he was plying his bicycle ahead of the deceased. He saw a bus which came from the opposite direction in a high speed. The version is that the bus had put on powerful headlights and therefore he marked towards his left side. After the bus passed away, he heard the noise and found that the deceased was lying at a distance of 15 feet towards northern side. The version of the witness Deochand, who was following the deceased, is consistent with the version of the witness Vasant. 8 He has stated that he saw a bus coming from the opposite direction in a high speed and the bus came on the wrong side. The witness Vasant has stated that after noticing the bus, he took his bicycle towards the extreme left side of the road. That is how he was not hit by the bus. The evidence of the witness Deochand is that he saw the bus coming from the opposite direction with a high speed which came on its wrong side and thereafter he heard the noise and found that the deceased was lying 15 to 20 feet away on the northern side of the road. This evidence clearly proves the fact that a bus of the Appellant came from the opposite direction and gave a dash to the bicycle of the deceased. It is not possible to accept the argument made by the learned counsel appearing for the Appellant that the evidence of the witnesses has been nullified in their cross-examination. All these aspects have been considered in the context of the failure of the Appellant to file a written statement and the failure to lead evidence especially in the light of the certified copy of the FIR and the panchanama on record. As stated earlier, the Advocate who was representing the Appellant filed a pursis that the Appellant was not leading the evidence. 8. As held by the Apex Court in the aforesaid decision in the case of Municipal Corporation of Greater Bombay v. Laxman Iyer (supra), the negligence is not an absolute term. It is a relative term and no absolute standard can be fixed and no mathematically exact formula can be laid down as to how the negligence can be measured in a given case. Considering the evidence of the two witnesses and the fact that the 9 Appellant failed to contest the claim by filing the written statement and considering that no witness was examined by the Appellant, it is not possible to find fault with the findings recorded by the Tribunal. It is true that a part of Paragraph 7 of the impugned judgment refers to the injuries to the passengers in the bus and the allegation that the passengers shouted unless the accident occurred. No witness has deposed to that effect. I find that after independently examining the evidence adduced by the claimants and the material on record, the ultimate conclusion drawn by the Tribunal that the negligent on the part of the Driver of the bus owned by the Appellant has been established cannot be faulted with. 9. As far as the quantum is concerned, the deceased has been employed as a teacher in a Primary School. The certificate of the income is placed on record of the Tribunal. The certificate issued by the Panchayat Samiti shows that the deceased was employed with the Zilla Parishad School as a Primary Teacher. The certificate shows that inclusive of dearness allowance and the house rent allowance, he was drawing a sum of Rs.2,836/- per month. His date of birth is 16th November, 1947. Therefore, on the date of the accident, i.e. 3rd May, 1992, his age was 45 years. The Tribunal has taken the income at Rs.2,800/-. The Tribunal has not taken into consideration the future prospects of the increase in the earnings especially when the evidence was brought on record to show that he was in the regular employment as a Primary Teacher in a Zilla Parishad School. Moreover, the multiplier adopted ought to have been 14 instead 10 of 13. If the future prospects of the earnings of the deceased are taken into consideration in the light of the decision of the Apex Court in the case of Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., [ (2009)6 SCC 121 ], the compensation will be much more than Rs.2,95,000/-. Therefore, even if the argument that there was some negligence on the part of the deceased is accepted, the compensation awarded is on the lower side. Following the decision in the case of Sarla Verma (supra), 30% of the amount will have to be added towards the future prospects of earnings, therefore, deduction of 1/3rd will have to be made on account of personal expenditure of the deceased. If the calculation in terms of the decision of the Apex Court in the case of Sarla Verma (supra) is made, it will exceed the sum of Rs.4 lakhs. In the circumstances, no fault can be found with the final award passed by the Tribunal. 10. The appeal is accordingly dismissed. No order as to costs. If any amount deposited by the Appellant is pending in this Court, the same shall be transferred to the concerned Tribunal. The Tribunal will pass appropriate order regarding withdrawal and/or disbursement of the amount. (A.S.OKA, J)