1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.13 OF 2005 1. Shri Rajendra Ramkripal Panday, H.No.151/A-1, Dangui Colony, Dhuler, Mapusa, Bardez, Goa. 2. M/s. Golden Plastics Industries, Shed No.3/9, Industrial Estate, Mapusa, Bardez, Goa. 3. United India Insurance Co. Ltd., Above Dena Bank, Mapusa, Bardez, Goa. …. Appellants V/s 1. Smt. Shalan Bhimrao Shinde, Major, widow of Bhimrao S. Shinde, Household, (H.No.not known). 2. Master Tanaji Bhimrao Shinde, Son of late Bhimrao Shinde, Minor, represented by his guardian, Paternal grandfather Sakharam Shinde. 3. Shri Sakharam Devrao Shinde, Major, (H.No. not known), All residents of Shial, Taluka Ashti, District Bid, Maharashtra (H.No. not known) .... Respondents Mr. A.R.S. Netravalkar, Advocate for the Appellants. Mr. J. Vaz, Advocate for the Respondents. CORAM : N.A. BRITTO, J. DATE : 23rd SEPTEMBER, 2010 JUDGMENT : This appeal is filed against the award dated 10/09/2004, of the learned MACT, Mapusa by which the claimants were granted 2 compensation of Rs.4,27,500/- with interest at the rate of 9% per year, on account of the death of Bhimrao S. Shinde Maharaj, aged about 27 years. 2. The parties hereto shall be referred to in the names as they appear in the cause title of the claim petition. 3. The claim petition was filed by the widow, the minor son and father of the deceased, under Section 163-A of the MV Act, 1988. It was the case of the claimants that the deceased was self employed carrying on the traditional profession of “Yatrekari Bhikshuk” with an elephant and was looking after his family and, on the date of the accident, the deceased was taking rest in the field adjacent to the scrap yard near the road leading from Mapusa to Parra near the Bodgeshwar temple when the driver of the truck having no.GA-01-V-7833 drove the same in a rash and negligent manner while taking reverse and dashed against the deceased who was taking rest, causing his death. 4. There is no dispute that the truck belonged to original respondent no.1 Rajendra R. Panday, who was examined as RW1. Respondent no.2 is not a legal entity but the name of business of 3 respondent no.1. There is no dispute that on account of this accident criminal case was filed against the said Rajendra Panday being Criminal Case No.81/2002/D under Sections 279, 304-A IPC, but the case was closed under Section 258 of Criminal Procedure Code by order dated 14/10/2002. 5. The scene of offence panchanama and the sketch show that there is a scrap yard near the said Mapusa-Parra road belonging to the said respondent no.1 and there is the Bodgeshwar temple at some distance from it. The truck GA-01-V-7833 was found near the said scrap yard. The claimants examined in all 5 witnesses. The evidence of AW2/Narayan Kerkar, who had reported the accident to Mapusa police station shows that it is the respondent no.1 himself who had informed him about the accident having taken place near the temple in the field in which one person was injured, whereupon the said AW2/Narayan Kerkar had told respondent no.1 to shift the injured to Bale Hospital at Porvorim and when he went to Bale’s hospital he found that the injured was lying on the rear seat of the car and then AW2/Narayan Kerkar proceeded to Goa Medical College, where respondent no.1 came with the deceased and the deceased was admitted to the casualty. AW2/Narayan Kerkar then filed a report, copy of which was 4 produced at Exhibit 29, whereupon AW5/ASI Pawar registered a MV accident case under no.35/2002 and went to the scene where he conducted the panchanama in the presence of AW3/Shri Rao and a sketch was also drawn where the truck involved was shown. Post mortem examination was conducted by AW4/Dr. Sapeco. That also gives history as to how the accident was caused. AW5/ASI Pawar stated that it is respondent no.1, who was driving the truck as he was present at the spot and, besides that, he had disclosed to him that he was driving the truck, when inquired. 6. The award of compensation, is contested by respondents nos.1 and 3 (appellants, herein) on two counts, (1) as regards involvement of the truck, as well as (2) the quantum of compensation awarded. 7. Shri Netravalkar, the learned Counsel appearing on behalf of the said respondents (appellants, herein) submits that AW2/Narayan Kerkar did not give any number of the vehicle to AW5/ASI Pawar. Referring to the evidence of RW1/Shri Panday, learned Counsel submits that he had stated that his truck was not at all involved in the accident. 5 8. In my view, the finding of the learned MACT that the truck of original respondent no.1 was involved in the accident cannot be disputed. It is important to note that it was not the case of RW1/Shri Panday, when he informed AW2/Narayan Kerkar that a vehicular accident had taken place near the temple, that it was a hit and run case, and, that is what is now sought to be suggested on behalf of the said respondents. RW1/Shri Panday informed AW2/Narayan Kerkar, who was then probably working at Mapusa police station, but retired subsequently, that an accident had taken place near the temple in which a person was injured. RW1/Shri Panday did not tell him that it was a hit and run case. The fact that RW1/Shri Panday made efforts to provide medical treatment to the injured (since deceased) and then told about his involvement to AW5/Narayan Kerkar, was sufficient evidence to prove the involvement of the truck of RW1/Shri Panday in the accident. The learned MACT has particularly referred to the certificate Exhibit 19 which was a contemporaneous record prepared regarding the involvement of the truck of RW1/Shri Panday, which had gone unchallenged. The complaint lodged by AW5/ASI Pawar, the panchanama, the sketch clearly show the involvement of the respondent no.1 in the accident. 6 9. In my view, therefore, the conclusion as regards the involvement of the truck of original Respondent no.1, in the accident, cannot be faulted, notwithstanding that the criminal case filed against him did not make any progress. 10. The next aspect to be considered is the quantum of compensation. There is no dispute that the only evidence on this aspect was that of AW1/Sakharam Shinde, the father of the deceased, who had stated that the income of the deceased as “Yatrekari Bhikshuk” was Rs.3,000/- per month and besides that he was working as an agriculturist. It was a mere ipse dixit. He had also stated that his son was working as “Yatrekari Bhikshuk” with an elephant which was their traditional business and during monsoon season he was doing agriculture in the village. 11. Shri Netravalkar submits that the deceased was nothing more than a beggar and his income could not have been considered as Rs.100/- per day as has been done by the learned MACT and if at all his income was to be considered, it had to be Rs.15,000/- per year as a non earning person. Shri Netravalkar submits that in case the deceased was working as an agriculturist then during that time he would not have been able to work as a “bhikshuk” asking for 7 arms. In case the deceased had an elephant then naturally he did also require some expenditure to feed the elephant. However, it is important to note that there is no evidence at all to suggest that the elephant was anywhere near the scene of accident. The claimants had produced no other evidence to prove that the claimant no.2 as well as the deceased had their respective elephants and they were begging with the aid of the said elephants. 12. Shri Netravalkar has placed reliance on the case of Dhapu Bai and Ors. V/s. Antar Singh and Ors. (2006 ACJ 2556) and has submitted that when there is no cogent evidence about the income of the deceased, notional income of Rs.15,000/- has to be taken as the income of the deceased. 13. Considering the facts of the case and in the absence of any other evidence, in my view, this was a fit case to consider the income of the deceased as Rs.15,000/- per year; and if a deduction of 1/3rd is taken towards personal expenses that would be Rs.10,000/- per year. The multiplier applicable would be 18 as per the second schedule and that would work out compensation payable to Rs.1,80,000/-. To that, can be added as per the same schedule Rs.2,000/- for funeral expenses, Rs.5,000/- for loss of 8 consortium and Rs.2,500/- by way of loss of estate and that would come to a total sum of Rs.9,500/-. 14. Consequently, the appeal partly succeeds, the award dated 10/09/2004 is modified and the claimants are entitled to a sum of Rs.1,80,000/- plus Rs.9,500/- = Rs.1,89,500/-. The respondents shall pay the said amount to the claimants with the same interest and in the same proportion as ordered by the learned MACT, as that part of the award is not contested by either of the parties. The balance amount, if any, shall be refunded to the original respondent no.3. N.A. BRITTO, J. NH/-