-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 198 OF 2006 The New India Assurance Co. Ltd. Velho Building, 3rd Floor, Panaji-Goa. ... Appellant V e r s u s 1. Smt. Devyani Halarnkar alias Alornekar, w/o late Devrao Halarnkar alias Alornekar aged 38 years, housewife, Resident of G-1, Parnakutir, Near Municipal Dispensary, Daftary Road Extension, Malad(E), Mumbai. 2. Kum. Hema D. Halarnkar alias Alornekar, Minor, student, represented by natural guardian Smt.Devyani Halarnkar alias Alornekar, w/o late Devrao Halarnkar alias Alornekar, aged 38 years, housewife, Resident of G-1, Parnakutir, Near Municipal Dispensary Daftary Road Extension, Malad(E), Mumbai. 3. Kum. Geetanjali D. Halarnkar alias Alornekar, Minor, student, represented by natural guardian Smt. Devyani Halarnkar alias Alornekar, w/o late Devrao Halarnkar alias Alornekar aged 38 years, housewife, Resident of G-1, Parnakutir, Near Municipal Dispensary Daftary Road extension, Malad(E), Mumbai. 4. Mr. Chaman Mehaboob Mulla, resident of House No.219, Malbhat, Margao-Goa. -2- 5. Shri Santan Pedro Leitao resident of H. No.262, Tolieabano, Chinchinim, Salcete-Goa. ... Respondents Shri E. Afonso, Advocate for the Appellant. Shri J. J. Mulgaonkar, Advocate for Respondent Nos.1, 2 and 3. None for Respondent Nos. 4 and 5. CORAM : F. M. REIS, J. DATE : 5TH AUGUST, 2011. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 30.03.2005, passed by the learned Presiding Officer of the Motor Accident Claims Tribunal at Mapusa in Claim Petition no. 28 of 2003. 2. The Claim Petition came to be filed by the Respondent nos. 1 to 3 on the ground that Devrao, since deceased, was a businessman running a workshop in the name and style of M/s. Devraj Engineering Works at Malad, Mumbai, and earning an amount of Rs.15,000/- per month and that he was travelling to Goa as a passenger in the bus bearing registration no.GA-01/T-7866 from Mumbai on 23.11.2002. It is further their contention that since he wanted to get down at Kawaswada, he had requested the driver and the conductor of the said bus by coming to the cabin to halt the bus near Bandekar Petrol Pump at Karaswada but, however, the bus which was being driven by the Respondent no.4 in a rash and negligent manner, suddenly applied brakes which resulted with the door of the bus suddenly opened and the deceased standing near the cabin was thrown out of the -3- bus. The bus which was driven by the Respondent no.4 was owned by the Respondent no.5 and on account of the fact that the deceased died in view of a motor vehicle accident, the Claim Petition came to be filed praying, inter alia, for an amount of Rs.7,00,000/- as compensation. 3. The Respondent nos. 4 and 5 denied the claim of the Respondent nos. 1 to 3 and stated that the deceased had suddenly opened the door while the bus was in the slow motion and jumped out of the bus and that he was personally responsible for his own death. The Appellants claims that their liability, if any, arose only to the extent that the Respondent no.4 was driving the bus in a rash and negligent manner and that their liability was governed upon the terms of the policy. 4. The learned Presiding Officer, after framing the issues and recording of evidence, by the impugned Judgment and Award dated 30.03.2005, partly allowed the said Petition and directed the payment of a sum of Rs. 5,16,000/- to the Respondent nos. 1 to 3 together with interest at the rate of 9 percent per annum. 5. Being aggrieved by the said Judgment, the Appellants/Insurance Company have preferred the present Appeal. 6. Shri Afonso, the learned Counsel appearing for the Appellants has raised three contentions before this Court assailing the impugned Judgment and Award passed by the learned Presiding Officer at Mapusa in the said Claim Petition. The first contention raised by Shri Afonso, the learned Counsel appearing -4- for the Appellants, is that there was no rashness and negligence on the part of the driver of the bus which resulted in the death of the deceased-husband of the Respondent no.1. The learned Counsel has taken me through the evidence on record and pointed out that the evidence on record discloses that the deceased had on its own violation disembarked the bus without giving any notice to the driver and, consequently, he sustained head injuries which caused his death. He further pointed out that on the basis of the sketch produced on record, that the bus is standing on the left hand side of the road and the blood stains are found on the edge of the road which establishes that the driver was not even alerted about the fat that the deceased had tried to alight from the bus which was in a moving condition. The learned Counsel has further submitted that there is no rashness and negligence of any kind established by the Respondent nos. 1, 2 and 3 for the Tribunal to come to the conclusion that the Respondent nos. 1, 2 and 3 were entitled for the compensation as awarded by the Tribunal in the impugned Judgment. The next contention of the learned Counsel is that Respondent nos. 1, 2 and 3 failed to establish the income of the deceased and, as such, the Tribunal arbitrarily accepted that the income of the deceased was Rs.8,000/- per month and applied the multiplier of 8. The learned Counsel further submitted that the multiplier applied is not justified in the facts and circumstances of the case. The third contention advanced by the learned Counsel appearing for the Appellants is that the interest awarded by the Tribunal is exorbitant considering the facts and circumstances of the case and taking note of the prevailing interest rates in respect of the deposits in the Nationalised Bank and, as such, the interest ought to have been at the rate of 6 percent per annum. The said contentions were advanced -5- without prejudice to his first contention that there was no rashness and negligence established by the Respondent nos. 1, 2 and 3 to seek the compensation from the Appellants. The learned Counsel, as such, submitted that the impugned Judgment and Award deserves to be quashed and set aside. 7. Per contra, Shri J. J. Mulgaonkar, the learned Counsel appearing for Respondent nos. 1 to 3,have supported the impugned Judgment. The learned Counsel has pointed out that the Appellants have not led any evidence to establish the manner in which the accident occurred considering that the burden shifted on the Appellants to establish the accident. In support of his submission he has relied upon the Judgment of the Apex Court reported in 2009(13) S.C.C. 530 in the case of Bimla Devi v. Himachal Road Transport Corporation. The learned Counsel further pointed out that the burden of proof was on the Appellants and the Respondent nos. 4 and 5 to establish the manner in which the accident had occurred. The learned Counsel has submitted that the driver had deliberately not entered the witness box and, as such, adverse inference should be taken against the driver under the provisions of the Evidence Act. The learned Counsel has taken me through the evidence on record and pointed out that the claimants have produced evidence of two passengers who were in the bus at the relevant time and who have deposed the fact that the deceased was trying to alight from the bus and was on the foot board and had requested Respondent no.4 to enable him to alight from the said bus. He further pointed out that in such process, the Respondent no.4 had applied the brakes forcefully which resulted in the door of the bus to open and the deceased fell off from the bus on account of which, he sustained head -6- injuries and thereafter succumbed to such injuries. The learned Counsel has further pointed out that the position of the bus itself discloses that the bus was on the left side of the road and that the body of the deceased was also found on the left hand side of the road which itself discloses the fact that the driver of the bus was int he process of stopping the said bus at the relevant time. The learned Counsel further submitted that there is sufficient material on record to establish the income of the deceased as the deceased was performing different type of work as owner of the small scale industry in the vicinity of the industrial estate. The learned Counsel further pointed out that the Appellants as well as Respondent nos. 4 and 5 have not even cross examined the witnesses on the aspect about the nature of the work carried out by the deceased. The learned Counsel further submitted that the Respondent nos. 1 to 3 have submitted the bills which are in respect of the amount received by the deceased for the work carried out by him at the industrial estate. The learned Counsel further submitted that in any event, considering the Judgment reported in 2009 (6) S.C.C.121 in the case of Sarla Verma (Smt) and Ors. vs. Delhi Transport Corporation & anr. the multiplier applied in the present case would be 11 and, as such, the Respondent nos. 1, 2 and 3 would be entitled to much higher amount than the one awarded by the Tribunal in the impugned Judgment. The learned Counsel further submitted that they had not filed any Cross Appeal or objections to claim any excess amount of compensation and, as such, there is no case made out by the Appellants for any interference in the impugned Judgment. The learned Counsel further submitted that as far as the rate of interest is concerned, the Court can exercise discretion in accordance with law and award any just and appropriate rate of interest. -7- 8. Having heard the learned Counsel and on perusal of the record, the following points for determination arise in the present Appeal : 1. Whether the Tribunal is justified to come to the conclusion that there was rashness and negligence on the part of Respondent no.4 which resulted in the accident. 2. Whether the Tribunal was justified to fix the compensation on the basis that the income of the deceased was Rs.8,000/- by applying the multiplier of 8 ? 3. Whether the Tribunal was justified to award interest at the rate of 9 percent per annum ? 9. Dealing with the first point for determination, it is not disputed that besides the evidence of the Respondent nos. 1 to 3, there were two witnesses examined in support of the claim of the said Respondents. On minute examination of the evidence, I find that the Tribunal was justified to come to the conclusion that the deceased was trying to call upon the Respondent no.4 to stop the bus so as to enable him to disembark at Karaswada and in the said process, as the Respondent no.4 applied the brakes forcefully, the door opened and the deceased was flung out from the bus. The sketch on record further discloses that the bus was on the left hand side of the road. In case the contention of learned Counsel appearing for the Appellants to the affect that the bus was in normal speed and the Respondent no.4 was not even aware that the deceased was alighting from the bus is to be accepted, the bus would not have stopped on the extreme left had side of the road -8- as in the normal circumstances, the buses move more or less in the middle of the road as it is normal practice for buses to ply towards the middle of the road. As such, in case the version put forward by the Appellants is to be accepted, the bus would have stopped somewhere towards the middle of the road and not on the extreme left hand side of the road as is the situation in the present case. Apart from that, the spot of the blood stains show that the same were found at a distance of 2.10 metres on the left hand side of the road. This also infers that the bus was trying to stop at the relevant time to enable the deceased to alight from the said bus. The version given by the witnesses examined by the Respondent nos. 1, 2 and 3 is in consonance with the aforesaid inferences that the driver had applied brakes which resulted in the door of the bus being opened and the deceased was flung out from the bus resulting in the head injuries. Considering that the Respondent no.4 chose not to enter the witness box, I find that adverse inference would have to be drawn against the said Respondent for his failure to enter the witness box. 10. The Apex Court in another Judgment reported in (1991) 1 S.C.C. 298 in the case of Basthi Kasim Saheb v. Mysore State Road Transport Corpn., has held at para 8 thus : “8. The evidence in the case indicates that there was no traffic on the road at the time of the accident. No untoward incident took place like sudden failure of the brakes or an unexpected stray cattle coming in front of the bus and still the vehicle got into trouble. In -9- absence of any unexpected development it was for the driver to have explained how this happened and there is no such explanation forthcoming. In such a situation the principle of res ipsa loquitur applies. The petitioner, in the circumstances, could not have proved the actual cause of the accident, and on the face of it, it was so improbable that such an accident could have happened without the negligence of the driver, that the court should presume such negligence without further evidence. The burden in such a situation is on the defendant to show that the driver was not negligent and that the accident might, more probably, have happened in a manner which did not connote negligence on his part, but the defence has failed to produce any evidence to support such a possibility. We, therefore, agree with the finding of the trial court on this issue and set aside the judgment of the High Court.” 11. The Apex Court in the said Judgment of Bimla Devi v. Himachal Road Transport Corporation, (supra) has held at Para 11, 13 and 15 thus : “11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an -10- accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post-mortem report vis-à-vis the averments made in a claim petition. 12. … 13. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate Respondents 2 and 3. The claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the first information report had been lodged in relation to an accident could not have been ignored. 14 ... 15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both -11- the parties.” 12. Considering the said Judgments of the Apex Court and taking note of the fact that the Respondent no.4 failed to enter the witness box to disclose the manner in which the accident had occurred, I find that the Tribunal was justified to come to the conclusion that there was rashness and negligence on the part of the Respondent no.4 which resulted in the death of the husband of the Respondent no.1 on account of the motor accident. No doubt, the initial burden was on the Respondent nos. 1, 2 and 3 to establish rashness and negligence and considering the evidence adduced by the said Respondents especially the corroborative evidence of those witnesses, I find such initial burden was discharged by the Respondent nos. 1, 2 and 3 and considering that the Respondent nos. 4 and 5 failed to enter the witness box nor adduced any evidence such evidence adduced by the Respondent nos. 1, 2 and 3 stands unchallenged and deserves to be accepted. The contentions put forward by the said Respondents to the effect that the deceased jumped from the bus ought to have been established by them by entering in the witness box. Apart from that, it cannot be accepted that the deceased would try to jump from a moving bus whilst coming from Mumbai without carrying his belongings. The conductor of the bus has also not been examined who is otherwise in charge in maintaining the movement of the passengers through the door of the bus. Respondent nos. 4 and 5 and the Appellants have miserably failed to establish the aforesaid contentions in view of the fact that they have failed to enter the witness box. A such, on the basis of the evidence on record and the evidence adduced by the Respondent nos. 1 and 3, I find that they have -12- established that the accident occurred on account of the rashness and negligence of the Respondent no.4. The first point for determination is answered accordingly. 13. Dealing with the second point for determination, though there was no sufficient evidence on record to substantiate the claim of the Respondent nos. 1 to 3 that the deceased was earning Rs.8,000/- per month, nevertheless, it is to be noted that the Apex Court has held that if a person does not draw any income, it is safe to accept an income of Rs.3,000/- per month. But, however, in the present case, the evidence discloses that the deceased was employed and that he was carrying out different types of work at the Industrial Estate at Mapusa. The contention of the learned Counsel that income of the deceased ought to have been reduced considering that the person would be without any income is assumed to earn a sum of Rs.2,000/- per month, cannot be accepted in the facts and circumstances of the case. Even assuming the income of the deceased was to be fixed at the rate of Rs.6,000/- per month, considering the Judgment of the Apex Court in Sarla Verma (Smt) and Ors. vs. Delhi Transport Corporation & anr. (supra) and applying the multiplier of 11 which ought to have been applied in the present case, the amount of compensation would work out to Rs.5,28,000/-. The Tribunal whilst fixing the income of the deceased as Rs.8,000/-, has fixed the multiplier as 8 and not 11. No Cross Appeal has been filed by the Respondent nos. 1 to 3. As such, considering that the deceased was a skillful person and coming from Mumbai to carry out mechanical work at the Industrial Estate, the amount awarded by the learned Presiding Officer cannot be said to be unjustified. The Appellants have failed to rebut the evidence adduced by the Respondent nos. 1 -13- and 3 on that count. Considering the facts and circumstances of the case and the nature of the work performed by the deceased at the relevant time, I find that the compensation awarded by the Tribunal of Rs.5,16,000/- cannot be said to be unjust or unreasonable. The second point for determination is answered accordingly. 14. Dealing with the third point for determination, I find that considering the interest rates prevailing with regard to fixed deposits in nationalised bank and the amount has been fixed on the basis of the income which would be earned by the deceased in the future the rate of interest at the rate of 7% per annum would be just and appropriate. The third point for determination is answered accordingly. 15. In view of the above, I pass the following : ORDER i) The Appeal is partly allowed. ii) The impugned Judgment and Award is modified to the extent that the interest of 9 percent is substituted by 7 percent per annum. The remaining part of the Award stands confirmed. iii) The Appeal stands disposed of accordingly with no Order as to costs. F .M. REIS, J. arp/*