1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.201 OF 2005 United India Insurance Co. Ltd., Mascarenhas Building, 2nd Floor, M.G. Road, Panaji-Goa. …. Appellant V/s 1. Smt. Jayashri Laxman Patil, @ Laxmi Laxman Patil, W/o. late Laxman Patil, R/o. Soccoro Bardez-Goa. Appointed as guardian ad litem for respondents nos.2,3 & 4. 2. Kumar Yallappa Laxman Patil, Son of Laxman Patil, Minor, represented by natural guardian Smt. Jayashri Laxman Patil, @ Laxmi Laxman Patil, W/o. late Laxman Patil, R/o. Soccoro Bardez-Goa. 3. Yogita Laxman Patil, Daughter of Laxman Patil, minor, represented by natural guardian Smt. Jayashri Laxman Patil, @ Laxmi Laxman Patil, W/o. late Laxman Patil, R/o. Soccoro Bardez-Goa. 4. Tejesh Laxman Patil, Son of Laxman Patil, Minor, represented by natural guardian Smt. Jayashri Laxman Patil, @ Laxmi Laxman Patil, W/o. late Laxman Patil, R/o. Soccoro Bardez-Goa. 5. Shri Machael S. Pires, 2 R/o. H.No.EF-T-5, Naikwado, Calangute, Bardez-Goa. …. Respondents Mr. E. Afonso, Advocate for the Appellant. Mr. D. Shirodkar, Advocate for the Respondent No.1. CORAM : F.M. REIS, J. DATE : 21st JANUARY, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 12/04/2005 passed in Claim Petition No.58/2002. 2. An application was filed by the respondents nos.1 to 4 for compensation in view of death of Laxman Patil, who expired in a motor vehicle accident on 12/01/2002 at Verem. The respondent no.1 was his widow and the respondents nos.2,3 & 4 were his children. It was the contention of the said respondents that on the relevant day the said Laxman was proceeding from Verem to Porvorim on his motorcycle bearing no.GA-01/H-4111. It is further their contention that when he had reached at Verem, a Maruti car bearing no.GA-01-C-6747 which was driven by the respondent no.1 in a rash and negligent manner came from the opposite direction at a very fast speed and dashed against the motorcycle of said Laxman Patil. On account of the said accident, 3 he sustained injuries which resulted in his death. The deceased was stated to be 35 years old and was working as labour contractor and was earning Rs.12,000/- per month. They accordingly claimed compensation to the tune of Rs.6,50,000/-. 3. The respondent no.5 disputed the said accident and claimed that his vehicle had not caused any accident as alleged by the said respondents. The appellants have filed written statement and stated that their liability is governed by the terms and conditions of the policy. After framing the issues and recording of evidence, the learned Presiding Officer came to the conclusion that the respondents nos.1 to 4 had established that the accident occurred on 12/01/2002 at Verem on account of the fault of the respondent no.5. The learned Judge further held that on account of the said accident the said Laxman Patil came to expire. Accordingly, the compensation was awarded to the tune of Rs.5,35,000/-. Being aggrieved by the said judgment, the appellants/Insurance Company have preferred the present appeal. 4. Shri E. Afonso, learned Counsel appearing for the appellants has assailed the impugned judgment and submitted that they had obtained necessary permission under Section 170 of the Motor 4 Vehicles Act to challenge the findings of rashness and negligence. He further pointed out that the evidence adduced by the appellants cannot establish that the accident occurred on account of rashness and negligence on the part of the respondent no.5. The learned Counsel further took me through the statements made before the Police Officer to point out that the conclusions drawn by the Investigating Officer were that there was no negligence on the part of respondent no.5. The learned Counsel further claimed that the deceased was overtaking a truck and was in fact the cause of the said accident. The learned Counsel further submitted that it was a self accident on the part of the deceased and, as such, respondents nos.1 to 4 were not entitled for any compensation. The learned Counsel in any event submitted that the compensation awarded is on the higher side and there is no justification for the Tribunal to come to the conclusion that the earnings of the deceased were Rs.4,000/- per month. The learned Counsel further submitted that evidence on record establishes that his earnings were much on the lower side and consequently the impugned judgment deserves to be quashed and set aside. 5. On the other hand, Shri D. Shirodkar, the learned Counsel appearing for respondents nos.1 to 4 has supported the impugned 5 judgment. He submitted that there is no infirmity committed by the learned Tribunal in coming to the conclusion that the accident occurred due to rash and negligent driving by the respondent no.5, the driver of Maruti Zen. Learned Counsel further submitted that the statement made before the Police Officer cannot be considered as evidence in this proceedings as in any event the persons have not been cross-examined. Learned Counsel further submitted that the appellants have failed to adduce any evidence to substantiate their contention that the accident occurred on account of rashness and negligence on the part of the deceased. As far as the claim for compensation is concerned, the learned Counsel pointed out that there is justification on the part of the Tribunal to come to the conclusion that monthly earnings of the deceased were Rs.4,000/-. Learned Counsel further submitted that there is no infirmity committed by the learned Tribunal and, as such, appeal deserves to be dismissed. 6. Having heard the learned Counsel and on perusal of record, following point for determination arises in the present appeal: POINT FOR DETERMINATION (i) Whether the Tribunal was justified to come to the conclusion that the accident occurred on 6 account of the rashness and negligence on the part of the respondent no.5. (ii) Whether the Tribunal was justified to fix the compensation to the tune of Rs.5,35,000/- 7. Dealing with the first point for determination, on the basis of the material on record, the Tribunal has relied upon the evidence of CW2 and CW4 who are the eye witnesses. On perusal of the evidence it is apparent that the same demonstrates that the deceased Laxman was proceeding towards Porvorim and that when he had reached Verem, the Maruti Zen which was coming in the opposite direction had dashed against the motorcycle. The evidence further discloses that the vehicle of respondent no.5 was involved in the accident. On perusal of the cross-examination of the said witnesses, there is no denial to the said facts as narrated by them. CW2 has clearly stated that the deceased was riding his motorcycle on the left side of the road. He has further stated that the truck was parked on the right of the road. He has further stated that Maruti Zen was coming very fast from the opposite direction and as it was in the process of overtaking the said parked truck and the Maruti Zen vehicle dashed on the motorcycle. He further sated that he has seen the accident at a distance of 50 to 60 metres. The 7 facts about existence of the truck in the said position and the manner in which the said Laxman Patil was riding his motorcycle has not been disputed in the cross-examination. So also CW4 has also stated that the said Laxman Patil was riding his motorcycle on the left side of the road and that on the right hand side of the road there was a truck which was parked on the road proceeding to Pilerne and facing Verem Village. He has further stated that the Maruti Zen came in the opposite direction and while overtaking the truck dashed against the motorcycle. He denied the suggestion that he had not witnessed the accident. The learned Tribunal has considered that in the written statement of the respondent no.5, the manner in which the accident had occurred had not been disclosed nor had he stepped into the witness box. On the basis of such material, the learned Judge came to the conclusion that while overtaking the parked truck, the Maruti Zen driven by the respondent no.5 came in a rash and negligent manner and dashed against the motorcycle. The learned Judge also considered Exhibit 42 which is the site panchanama and found that on the basis of the position of the vehicles, the Maruti Zen had come on the wrong side of the road and dashed against the motorcycle. I find that there is no infirmity committed by the Tribunal to come to the conclusion that the accident occurred on account of rashness and 8 negligence on the part of the driver of the Maruti Zen. The position of the vehicle conclusively establishes that the motorcycle was on the left side of the road and the Maruti Zen was on the right side of the road trying to overtake the truck which was parked. The contention of the learned Counsel Shri Afonso that the deceased had lost control of the vehicle while overtaking the truck cannot be borne from the records of the case. The motorcycle was on the left side and as such the question of trying to overtake any vehicle would not arise. The contention of the learned Counsel that the deceased had fallen on the road as he lost control cannot be borne out from the records of the case. Even assuming the contention of learned Counsel for the appellants is to be accepted, there is no evidence on record to establish that any precaution or necessary care was taken by the driver of the Maruti Zen to avoid the accident. In fact, the evidence discloses that there is no reaction of the driver to show that he had slowed down on account of the fact that the motorcycle was proceeding on the opposite direction. The Tribunal, as such, was justified to come to the conclusion that the accident occurred on account of the rashness and negligence on the part of the driver of the Maruti Zen. The question of relying upon the statement under Section 173 of the Cr.P.C., in the present proceedings cannot be accepted. The said 9 statements per se cannot be read in evidence. Admittedly, the persons who have given the said statements have not been examined before the Tribunal and, as such, the question of relying on such statements cannot be accepted. The point for determination is answered accordingly. 8. As far as the second point for determination is concerned, I find that though the statement of accounts produced by the respondents nos.1 to 4 has not been signed by the deceased, nevertheless when the same were produced on record and marked as an exhibit no objection was raised by any of the parties including the appellants. Even in the cross-examination of AW1, the correctness and/or authenticity of the said statements was not being disputed by the appellants. As such, I find that there is no reason to doubt the correctness and/or authenticity of the said statement of accounts for the purpose of fixing the compensation payable to the respondents nos.1 to 4. On perusal of the said statement of accounts, I find that the net yearly income of the deceased for the relevant year was Rs.45,000/-. The Tribunal was as such not justified to fix the monthly income of the deceased at Rs.4,000/- when there was no substantial material on record to establish the said amount. To that extent, the impugned judgment 10 deserves to be modified. 9. I find that on the basis of material on record, the yearly income of the deceased is to be fixed at Rs.45,000/-. This amount has been arrived at on the basis of assessment orders for 1996-97 produced by the respondents nos.1 to 4 as well as the subsequent statement of accounts produced by them. After making a standard deduction of one third on account of personal expenses the amount works out to Rs.30,000/-. Considering the age of the deceased, the multiplier to be applied is 16. The amount, as such, works out to Rs.4,80,000/-. Apart from that the Tribunal has also awarded a sum of Rs.2,000/- towards funeral expenses, besides a sum of Rs.5,000/- towards loss of consortium and a further sum of Rs.15,000/- towards loss of estate and love and affection and a further sum of Rs.1,000/- towards transport expenses. The said amounts awarded by the Tribunal cannot be faulted. The amount, as such, works out to Rs.5,03,000/-. The said amount will carry interest at the rate as awarded in the impugned award. The point for determination is answered accordingly. 10. In view of the above, I pass the following order: 11 O R D E R (a) The appeal is partly allowed. (b) The impugned judgment and award is modified and the compensation payable to the respondents nos.1 to 4 is fixed at Rs.5,03,000/-. (c) Rest of the award is confirmed. (d) The Registry is directed to calculate the amount payable to the respondents nos.1 to 4, accordingly, and disburse the amount with accrued interest thereon. (e) The excess amount deposited by the appellants shall be refunded to the appellants along with accrued interest. (f) Appeal shall stand disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-