1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1117 OF 1994 Namdeo Krishnaji Tad ... Appellant v/s 1. Yasin Abdul Shaikh & ors. ... Respondents Mr.S.N.Deshpande for the appellant. Mr.S.S.Shah for the respondent Nos.1 to 4. CORAM: SMT.NISHITA MHATRE, J. DATED: 31ST JULY, 2009 ORAL JUDGMENT: 1. The appeal has been filed against the award passed by the Motor Accident Claims Tribunal (in short “the M.A.C.T.”), Solapur. By this award the Tribunal has held that the opponent Nos.1 and 2 i.e. the appellant herein as well as the respondent No.5, are jointly and severally liable to pay the applicants i.e. respondent Nos.2 to 4, an amount of Rs.1,05,000/- together with interest at the rate of 12% per annum from the date of the application till 2 realization. 2. An accident occurred on 16.6.1989 when the deceased Chand was sleeping on the top of the driver’s cabin of a truck being driven by respondent No.5. The deceased was employed as a driver with the appellant. He had completed one trip for transporting sand from Shirdhon to Bhalwani. On the way back on his second trip, Respondent No.5 drove the truck while the deceased was sitting on the top of the driver’s cabin. It appears that the truck abruptly swerved and the deceased was thrown off the truck. He fell under the rear wheel of the truck and sustained multiple injuries. The deceased succumbed to the injuries instantaneously. 3. The applicants i.e. respondent Nos.1 to 4 filed an application for compensation before the M.A.C.T. Respondent Nos.1 and 2 are the parents of the deceased and respondent No.3 is his widow. Respondent No.4 is the son of the deceased. They claimed an amount of Rs.1,50,000/- as compensation on the basis that the deceased was drawing a monthly salary of Rs.700/-. 3 4. A common written statement was filed by the appellant and respondent No.5 herein, contending that the truck which was driven by the respondent No.5 was insured with respondent No.6 and, therefore, it is the liability of the Insurance Company to pay the damages to the claimants. 5. The Insurance Company, on the other hand, filed a written statement contending that it was not liable to pay any compensation as the cover-note was for the period from 1.1.1988 to 31.12.1988, whereas the accident had occurred on 16.6.1989. 6. Evidence was led before the Tribunal by both parties. Both respondent Nos.5 and 9 and the appellant examined themselves. Respondent No.5 described the accident and admitted that he was driving the truck at the material time. According to him, a jeep which was driven in high speed suddenly turned on to the main road where the truck was being driven and suddenly halted. He stated that he therefore had no alternative but to swerve the truck to the left side of the road which resulted in the front wheel of the truck going into a ditch. As a 4 result of the jerk, the deceased was thrown off the truck and died. 7. The appellant has stated in his evidence that the truck had been insured with respondent No.6 and, therefore, it was liable for payment of compensation. 8. The Tribunal has concluded that the Insurance Company was not liable to pay the compensation. It was held that, since the provisions of Section 123 of the Motor Vehicles Act had been contravened, the Insurance Company was not liable for making any payment to the claimants. As regards the liability of the owner of the truck i.e. the appellant herein, the Tribunal found that the accident had occurred on account of negligence of the driver. It was further held that, it was undoubtedly because of the rash driving of the truck driver that the accident had occurred and the deceased was thrown out of the truck. Accordingly, the Tribunal was of the view that the death of the deceased had occurred due to rash and negligent driving of respondent No.5. The Tribunal has also held that there was no contributory negligence on the part of the deceased. 5 9. As regards the claim for compensation, the Tribunal has considered the monthly income received by the deceased to be Rs.700/-. The monthly dependency has been calculated after deducting 1/3 from that amount for personal expenses of the deceased. The Tribunal has taken 20 years as the multiplier since the deceased was hardly 30 years of age when the accident occurred. On this basis, the Tribunal has held that the claimants would have been entitled to Rs.1,20,000/-. The Tribunal has added an amount of Rs.5000/- each, as consortium and the loss to the estate. The claimants have been held to be entitled to receive Rs.1,30,000/-. Out of this amount, Rs.25,000/- had already been received by the claimants under the no fault liability. The Tribunal therefore held that the claimants were entitled to Rs.1,05,000/- together with 12% interest per annum from the date of the application till realization. Both the appellant and the respondent No.5 were held to be jointly and severally liable. 10. Mr. S. N. Deshpande, the learned advocate appearing for the owner-appellant submits that there was contributory negligence on the part of the 6 deceased. He submits that the deceased being a driver ought to have been aware of the consequences of sleeping on top of the driver’s cabin of the truck. He submits that the Tribunal had exonerated the Insurance Company on the basis that this was a case of contributory negligence as under Section 123 of the Motor Vehicles Act, no person is permitted to travel outside the body of a vehicle. According to the learned advocate, the Tribunal has erred in not applying the same yardstick while assessing the liability of the appellant. He also submits that respondent No.5 had no authority to drive the truck as he was not employed by the appellant. He then submits that the appellant had paid the claimants Rs.25,000/- when the accident occurred and that amount has not been deducted by the Tribunal from the compensation awarded. 11. Mr.Shah, on the other hand, appearing for the claimants submits that no error has been committed by the Tribunal while assessing the amount payable to the claimants. He submits that, on the basis of the evidence led before the Tribunal, it has taken a possible view which need not be interfered with in 7 the present appeal. 12. On perusal of the award of the Tribunal and the evidence led before it, I find that no error has been committed by the Tribunal in awarding the amount of Rs.1,30,000/- to the claimants, less the amount paid for the no fault liability. The evidence of the wife of the deceased clearly establishes the fact that the deceased was working with the appellant and that he was drawing an amount of Rs.700/- per month as salary. She has also deposed that he was giving an amount of Rs.500/- towards domestic expenses each month. This evidence has not been shaken in cross- examination. The driver of the vehicle i.e. the respondent No.5, herein has conceded that the appellant is his maternal uncle. He has further admitted that there were seven other persons sitting in the truck and that the cleaner of the truck was sitting in the driver’s cabin. He has also stated that the deceased fell because of the jeep suddenly obstructed the path of the truck. 13. The appellant has been examined. He has stated that, on humanitarian ground he has deposited an 8 amount of Rs.25,000/- in a bank in the name of the widow of the deceased after the accident occurred. He has, in his cross-examination, stated that the Insurance Company had issued a cover-note for the relevant period but the insurance policy for the year 1988-1989 was not issued to him. 14. Taking into consideration this evidence which has been marshalled well by the Trial Court, in my view, no error has been committed by the Trial Court. The submission that there was contributory negligence on the part of the deceased is not an issue raised in the written statement. The written statement does not bear any reference to any payment being made or deposited in the name of the claimants in any bank account. Therefore, in my opinion, the submission of the learned advocate that there was contributory negligence on the part of the deceased does not arise. Section 123 of the Motor Vehicles Act indicates that no person may carry another or permit another to be carried otherwise than within the body of the vehicle. However, in the present case, it is an admitted fact that the respondent No.5 who is the nephew of the owner of the truck agreed to let the 9 deceased sit on the top of the driver’s cabin while he drove the truck. The owner of the truck therefore would be vicariously liable for the accident which has occurred. 15. The learned advocate for the appellant has also made a grievance about the appellant not being permitted to lead evidence to prove that an amount of Rs.25,000/- had been deposited with the Nationalized Bank in the name of the claimants. It appears that an application was made for amending the written statement for incorporating these facts. That application was disallowed in 1993 itself. In these circumstances, in my opinion, it would not lie in the mouth of the appellant to criticize that order passed by the Trial Court. No steps were taken by the appellant to challenge that order and therefore it has attained finality. The appellant now cannot make a grievance about not being permitted to lead evidence with regard to the fixed deposit in a nationalized bank. The Trial Court has considered the evidence on record and has concluded that the appellant had not brought any material on record besides stating the fixed deposit receipts numbers to 10 establish that the amount of Rs.25,000/- was deposited in the nationalized bank. 16. The judgment cited in the case of Parle Products Pvt. Ltd. v/s C.S.Saraswati & anr., reported in 1981 (Vol.59) F.J.R. 130, does not carry the case of the appellant any further. Unless a fact is pleaded it cannot be proved. Merely because there is some material in the evidence on this issue, it would not mean that the deposition relating to that issue has to be accepted as the gospel truth without there being any pleading in the plaint. 17. The multiplier of 20 years used by the Tribunal, in my opinion, cannot be faulted. This decision was delivered before the Act was amended and Schedule II was inserted by Act 1954 of 1994 on 14.11.1994. 18. In my opinion, therefore, the appeal must be dismissed. 19. Accordingly, the appeal stands dismissed. No order as to costs. ..... 11