1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.424 OF 1995 WITH CROSS OBJECTION NO.28464A OF 1995 Executive Engineer, Satara & Ors. ..Appellants Vs. Jayashri w/o Ramchandra Maruti Choudhari & Ors. ..Respondents Smt. S. V. Sonawane, AGP for the Appellants Mr. R.N. Jawal for Respondent Nos.1 to 4 CORAM: A.S.OKA, J. DATED: 9th February, 2010 ORAL JUDGMENT 1. By this Appeal the Appellants, State of Maharashtra and two others have taken an exception to the Judgment and Award dated 30th July 1994 passed by the Learned Member of the Motor Accident Claim Tribunal in a claim Petition filed u/s 166 of the Motor Vehicle Act 1988. 2. The claim Petition is filed by the Respondents claiming 2 compensation on account of demise of one Ramchandra Choudhari in a motor accident on 5th July 1989. The vehicle involved in the accident is a Jeep owned by the State Government which was allotted to Appellant No.1 (Executive Engineer) at Koyana Nagar, District Satara. According to the case of the Claimants the deceased was travelling by the said Jeep. According to the Claimants, the jeep was being driven in the rash and negligent manner. The driver (2nd Appellant) lost the control over the vehicle and after travelling upto a distance of 42 ft., the jeep dashed a tree. The deceased sustained injuries as a result of the accident. He succumbed to the injuries. The claim petition was contested by the Appellants by filing a Written statement. In the Written Statement it was contended that the Jeep was being driven in normal speed with due care and caution and there was no negligence on the part of the driver. It was contended in the Written Statement that though the deceased requested the occupants of the jeep to allow him to travel by the jeep, the 3 request was turned down. The said request was made in the evening when the deceased met occupants of the jeep at Karad. A case is made out in the Written Statement that after completing work, the occupants of jeep started proceeding from Karad to Koyana Nagar. When the jeep came near Chiplun Phata near Karad, the deceased stopped the jeep. Though his request was turned down, the deceased forced the occupants of the jeep to take him to Koyana Nagar. It was contended that the deceased was not a gratuitous passenger. The case made out in the written statement is that a truck came from the opposite direction in high speed and gave a dash to the jeep, as a result of which the accident occurred. 3. The Tribunal, by the impugned Judgment and Award, granted compensation of Rs.1,85,000/­ with interest @ 12% p.a. from the date of filing of claim petition till realisation. 4. The Learned AGP in support of the Appeal stated that the Appellants have examined three witnesses, including Appellant No.2, who was the driver. She pointed out that all 4 the three witnesses are consistent in their version that the deceased was not a gratuitous passenger and in fact, he travelled by the jeep against the wishes of Appellant No.2 and other persons in the jeep. She submitted that the evidence of the said persons also discloses that it was the deceased who jumped out of the running jeep. She submitted that the case that a truck coming from the opposite direction gave a dash to the jeep is also established. She submitted that even if it is assumed that a truck gave dash from the rear side of the jeep, the panchnama shows that there is a damage to the tail lamp of the jeep. She, therefore, submitted that even assuming that the case of the Appellants was that there was no negligence on their part is not accepted, there was a negligence on the part of the deceased. She submitted that the case of the Claimants was that the deceased was earning income from the agriculture as well as by running a grocery shop. She submitted that the land held by the deceased must be cultivated by his heirs and, therefore, there is no loss of 5 income. She submitted that even as far as the business of shop is concerned, there is no major loss as the business must have been continued by employing servants. 5. The learned Counsel appearing for the Respondents in support of the cross objection submitted that the income taken for calculation of the multiplicand is on the lower side and even the multiplier applied is on the lower side. He prayed for the enhancement of the compensation. 6. I have given careful consideration to the submissions. I have perused the evidence, both oral and documentary. 7. All the three witnesses examined by the Appellants have made out a case that when the jeep was proceeding from Karad towards Koyana Nagar, near Chiplun Phata, the deceased stopped the jeep and requested for a lift. The driver (2nd Appellant) declined, but the deceased boarded the jeep and refused to get down. In the cross­examination, the 2nd Appellant admitted that when he had met the deceased at Karad, the deceased made a request to take him to Koyana 6 Nagar. He stated that the request was turned down by him. He stated that on the way back ,the deceased was standing at Chiplun Phata and he stopped the jeep. He stated that though he did not permit the deceased to travel by the jeep, he entered the jeep and declined to get down. The version of witness Narayan Kulkarni examined by the Appellants, is that the deceased had met them at Karad and requested them to give a lift up to Koyana Nagar, however, they refused. In the night when the jeep was proceeding from Karad, the deceased stopped the jeep at Chiplun Phata and again requested for lift. The said request was turned down but the deceased sat in the jeep. The same is the version of third witness examined by the Appellants Narayan Shinde. If the versions are correct, the Appellant No.2 and two others were aware that at Karad a similar request was made by the deceased, which was turned down. The jeep reached near Chiplun phata in the night. The version of the witnesses is that the deceased stopped the jeep and forcibly entered the 7 jeep. If the 2nd Appellant had already declined to allow entry of the deceased in the jeep , it is not possible to believe that when the deceased was standing at Chiplun phata, the jeep was stopped at his instance and against the wishes of the 2nd Appellant, the deceased made entry in the jeep. This theory cannot be accepted for the obvious reason that if the intention of the 2nd Appellant was not to give lift to the deceased, there was no occasion for him to stop the jeep at chiplun phata. Hence the said version cannot be accepted. 8. As far as involvement of the truck is concerned, witnesses have stated that the truck came from the front side of the jeep and gave a dash. The second witness examined by the Claimants, Mr. Nalawade who was the first informer stated that the damage caused to the Jeep in the present case did not appear to have been caused by a dash given by a truck. Nothing is placed on record to show that the 2nd Appellant or any of the occupants of the jeep made any effort to lodge a complaint against the driver of the truck. Even assuming that 8 the truck gave dash from the rear side of the jeep, only damage on the rear side of the jeep is to the tail lamp. Therefore, the other version that the accident occurred due to dash given by the truck on the rear side of the jeep cannot be accepted and same has been rightly discarded. Hence, the case made out by the Appellants regarding involvement of the truck has been rightly discarded. The case made out by the Claimants that the accident occurred due to negligence of the driver of the jeep will have to be accepted. 9. For proving the claim for compensation, the Claimants have placed on record income­tax assessment order of deceased dated 11.12.1985, for the assessment year 1985­86 showing that the returned income was Rs.31,030/­. The document at Exhibit 48 shows that for the assessment year 1986­87, the returned income of the deceased was Rs.34.150/­ per year. After making necessary deduction, the income has been taken at Rs.30,000/­ per year by the Tribunal and the monthly income has been taken of Rs.2,500/­. Thus the 9 Tribunal has taken the income less than the income reflected from the income­tax assessment orders. The future prospects of increase in earnings have not been considered. Nothing has been brought on the cross examination of the widow to show that the income from the shop is being received after the death of the deceased. Therefore, his income will have to be treated at Rs,30,000/­ per year. The dependency of the Respondent Nos.1 to 4 will have to be considered. Therefore, 1/3rd amount will have to be deducted on account of personal expenditure of the deceased. After deducting 1/3rd amount, the yearly dependency comes to Rs.20,000/­. The records discloses that the date of birth of the deceased was 18th December 1946. Thus, the age of the deceased on the date of the accident was 43 years which will attract multiplier of 14 as held by the Apex Court in the case of Sarala Verma and other Vs. Delhi Transport Corporation Ltd. and other [2009 (6) SCC 121]. Taking the yearly dependency at Rs.20,000/­ and applying multiplier of 14 10 years, the compensation amount comes to Rs.2,80,000/­ to which an usual amount of Rs.15,000/­ will have to be added. Thus the total compensation will be Rs.2,95,000/­. Thus the claimants will be entitled to enhancement of Rs.1,10,000/­. Since the year 1994, the rates of interest on fixed deposits of the Nationalised banks have been considerably reduced, hence, on the enhanced amount, interest deserves to be granted @ 7.5% p.a. from the date of application. 10. Hence, I pass the following order: (i) The appeal is dismissed with no order as to costs. (ii) the cross objection is partly allowed . In addition to the compensation awarded under the impugned Judgment and Award, the Appellants are directed to pay additional compensation of Rs.1,10,000/­ to the 1st to 4th Claimants with interest thereon @ 7.5% p.a. from the date of the filing of the claim Petition till deposit of the amount with the concerned Tribunal. (iii) Time of four months is granted to the Appellants to 11 comply with the Award. (iv) It is made clear that only the Respondent Nos.1 to 4 will be entitled to the enhanced amount. (v) The rest of the award is not disturbed. (vi) After the enhanced amount is deposited, the Tribunal will pass an appropriate order regarding disbursement / withdrawal of the said amount after hearing the parties. (vii) In view of the disposal of the Appeal, Civil Application No.7840 of 1997 does not survive and the same is disposed of. (viii) If any amount deposited by the Appellants is pending in this Court, the same shall be transferred to the concerned Tribunal. The concerned Tribunal will pass appropriate order regarding withdrawal of the said amount. (A.S.OKA, J)