1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.87/1991 1] Life Insurance Corporation of India, through Divisional Manager, Divisional Office, Aurangabad. 2] Shri M.S.Shukla, Divisional Manager, Life Insurance Corpn. Of India, Aurangabad. 3] The Oriental Fire and General Insurance Company Ltd. Bansilal Nagar, Aurangabad. .. APPELLANTS [ORIG.RESPONDENTS] VERSUS 1] Dudhaji s/o Genaji Thorat age : 59 yrs. Occ-Labourer r/o Neknoor, Tq. & Dist.Beed 2] Dhondabai w/o Dudhaji Thorat age 53 years, occ-Labourer R/o As above. The legal heirs of the respondents no.1 and 2. 2 2A] Bhanudas s/o Dudhaji Thorat Age 40 years, 2B] Baban s/o Dudhaji Thorat Age 45 years, Occ-teacher 2C] Manohar s/o Dudhaji Thorat Age 35 years, Occ-Service Now all are residing at Neknoor Tq. & Dist.Beed. 3] The Oriental Fire & General Insurance Co.Ltd. Bansilal Nagar,Aurangabad .. RESPONDENTS [ORIG.PETITIONERS] .... Shri Anil A. Joshi, Advocate for appellants Shri Milind Patil(Beedkar), Adv.for Respondents 2A to 2C. .... CORAM : R.K.DESHPANDE,J. DATE : 28/07/2009 ORAL JUDGMENT : 1] This appeal challenges the judgment and Award dated 3 29/11/1990 passed by the Member, Motor Accident Claims Tribunal, Beed in M.A.C.No.87/1987 holding the appellants and respondent no.3 the Insurance Company jointly and severally liable to pay compensation of Rs.4 Lakhs plus interest at the rate of 12% p.a. to the respondents-claimants 1 and 2 on account of the death of their son Atul in the motor accident, which took place on 2/5/1987. The facts leading to the case are as under : 2] Original claimants who were the original respondents 1 and 2 to the instant Appeal (since now expired) were the father and mother respectively of the deceased Atul and they had filed M.A.C.No.76/1987 before M.A.C.T. Beed, claiming compensation to the tune of Rs.4 Lakhs on account of the death of their son Atul in the accident which took place on 2/5/1987. The case of the claimants was that on 2/5/1987, the deceased Atul was going on his motor cycle from Manjarsumba to Neknoor and while he was on his way at about 7.30 p.m. the Fiat Car of white colour bearing No.MXR-7157 coming from the opposite direction from Neknoor dashed his motor cycle, as a result of which, he died on the spot. The Fiat Car bearing No.MXR-7157 was owned by appellant no.1 Life Insurance Corporation of India and the appellant no.2 Shri M.S.Shukla, the Divisional 4 Manager of L.I.C. of India was at the relevant time driving the said Fiat Car. The spot panchanama was made vide Exh.43 and FIR for rash and negligent driving was also lodged against the appellant no.1. Suffice it to state at this stage that the appellant no.2 was acquitted. It was the case of the claimants before the Tribunal that it was because of rash and negligent driving of the appellant no.2 that their son met with an accident and died on the spot. The vehicle i.e. the Fiat car was insured with the Oriental Fire and General Insurance Company. The Life Insurance Corporation of India as well as the Divisional Manager Shri Shukla who was driving the vehicle were joined as opponent nos.1 and 2 to the claim petition, whereas the Oriental Fire and General Insurance Company was arrayed as opponent no.3. 3] The respondent no.3 Oriental Fire and General Insurance Company filed its written statement in response to the claim petition. Although the appellants before this Court were the respondents to the claim petition, did not file their separate written statement but adopted the written statement filed by the respondent no.3 Insurance Company. The claimants in support of their plea of rash and negligent driving by appellant, relied upon the evidence of P.W.5 Sudhakar Balaji Pawar as an eye witness who was also attesting witness on the spot panchanama at Exh.43. In support of the contention about age of the 5 deceased and his income as well as the ownership of the motor cycle involved in the accident, claimant no.1 examined himself as P.W.1. Apart from the claimant, P.W.2 Suresh Thorat the Compounder in the dispensary of the deceased was examined as P.W.2. P.W.3 Satish Bare -Pigmi agent was also examined and one Vishwanath Pasange – Proprietor of medical shop was also examined as P.W.4. In support of their plea that the deceased was a medical practitioner, Exh.37 the certificate of registration for practice was produced alongwith a Diploma certificate in B.A.M.S. as Exh.38. In support of the income of the deceased, the bank cards at Exh.47 to 52 and the Pharmacy Bills at Exhs.55/1 to 55/65 were produced. The appellant no.2 Shukla examined himself in defence. 4] The learned Member of the M.A.C.T. recorded a finding that the claimants have proved that death of Atul was due rash and negligent driving of Fiat Car bearing No.MXR-7157 by the appellant no.2. It was a finding recorded that the deceased was aged about 26 years and his monthly income was assessed at Rs.2000/-. The life expectancy of the deceased was determined at atleast 50 years. The trial Court awarded compensation of Rs.4 Lakhs to the claimants alongwith costs and at the rate of 12% p.a. w.e.f. 28/9/1987. This award is under challenge at the instance of the appellant Life Insurance Corporation of India and by 6 said Shukla who was driving the vehicle. 5] The learned counsel appearing for the appellants contended that the learned Judge of the Reference Court has failed to consider that it was a case of no fault on the part of the appellants. At any rate, according to the learned counsel for the appellants, the Reference Court ought to have considered the plea of contributory negligence. It is further urged that the finding recorded by the trial Court about monthly income of the deceased to the extent of Rs.2000/- was without any basis and that the Reference Court failed to apply proper multiplier and ignored the relevant factors viz. the marriageable age of the deceased and the age of the parents of the deceased while assessing the total amount of compensation. The appellants relied upon the judgment of the Apex Court reported in 2004 (1) T.A.C.3 (S.C.) of which equivalent Citation is (2003) 8 S.C.C.731 - Municipal Corporation of Greater Bombay V/s Shri Laxman Iyer and Another, in support of his plea regarding contributory negligence and the negligence of the relevant factors in assessing compensation. 6] The learned counsel for respondents 1 and 2 opposed the appeal and urged that the learned Member of the Tribunal has taken into consideration all the relevant aspects and has properly 7 appreciated the evidence and recorded the finding which is well supported by oral as well as documentary evidence. He further states that the appreciation of evidence being just and proper, needs no interference. The learned counsel for the respondents submits that the Provisions of Section 163-A by which IInd Schedule laying down the method of multiplier, was introduced w.e.f. 14/11/1994 was not in existence when the Tribunal passed an order dated 29/11/1990. 7] So far as the finding of the Tribunal regarding the age of the deceased to be of 26 years is concerned, the Tribunal has relied upon the evidence of the claimant i.e. P.W.1 Dudhaji who is the father of the deceased. Documentary evidence relied upon was the spot panchanama which indicate the age of the deceased as 26 years and the S.S.C. Certificate produced on record indicated his date of birth as 22/3/1961. The accident occurred on 2/5/1987. The learned Member of the Tribunal has on the basis of all these oral and documentary evidence recorded a finding that at the time of the death, deceased Atul was of 26 years of age. The finding is thus based upon the evidence available on record and no illegality or perversity of any kind has been brought to my notice or urged by the learned counsel for the appellants. The said finding therefore, stands confirmed. 8 8] So far as question of rash and negligent driving by the appellant no.2 is concerned, the learned counsel for the appellant relying upon the evidence of eye witness Sudhakar Balaji Pawar pointed out that the spot panchanama indicates that the bumper, bonnet and the radiator of the Car were seen to be in pressed condition, which is indicative of the fact that it was the impact of the motor cycle on the Fiat Car. The learned counsel therefore, submits that it was the negligence on the part of the deceased, who dashed with his motor cycle on the car and there was no negligence on the part of the appellant no.2. The learned Member of the Tribunal has relied upon the evidence of P.W.5 Sudhakar Pawar the eye witness. With the assistance of the learned counsel for the parties, I have also gone through the evidence of P.W.5 Sudhakar, who has in categorical terms, stated that on 2/5/1987, when he was sitting infront of his house at 7.30 p.m. he saw at a distance of 50 ft. a Car running in a high speed from the direction of Neknoor, which was being run in oblique manner. He has further stated that the car was in high speed and gave dash to the motor cycle, which was being driven by the deceased from the left side of the road, as a result the deceased got jerked and was thrown in the air and then he fell down and died on spot. He is also attesting witness to the panchanama at Exh.43. This witness is an independent witness and his version has not been shattered in any way in the cross 9 examination. Simply because this witness states that bumper, bonnet and radiator of the car was seen in pressed condition that does not take this Court to the conclusion that it was because of the impact of rash and negligent driving on the part of the deceased driving the motor cycle. The learned Member of the Reference Court has rightly appreciated the evidence and has arrived at a conclusion that there was a rash and negligent driving on the part of the appellant no.2. 9] So far as the contention of the appellant regarding contributory negligence is concerned, the judgment of the Apex Court cited by the learned counsel for the appellants in the case of Municipal Corporation of Greater Bombay, cited supra, needs to be considered. The learned counsel for the appellant relied upon para 6 of the judgment, which is reproduced below : “6. A plea which was stressed strenuously related to alleged contributory negligence. Though there is no statutory definition, in common parlance ‘negligence’ is categorized as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something 10 which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly co- relative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be led down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in the manner, mode or method envisaged by law would equally and per-se constitute negligence on the part of such person. If the answer is in the affirmative, it is negligent act. Where an accident is due to negligence of both parties, 11 substantially there would be contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of others negligence. Whichever party could have avoided the consequence of others would be liable for the accident. If a person’s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See- Charlesworth on Negligence, 3 rd Edn. Para 328). It is now well settled that in the case of contributory negligence, Courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in the context means that damages are reduced to such an extent as the Court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Where a person is injured without any negligence of two other persons, it is not a case of contributory negligence in that sense. It is the case of what has been styled by Pollock as injury by composite negligence (See- 12 Pollock on Torts, 15 Edn. P.361).” 10] The question of contributory negligence is required to be pleaded and proved. The burden of proving this definitely laid upon the appellant and what is required to be established, is that the deceased could have avoided the consequence of accident or that he had failed to take due care and caution. It has to be established that there has been an act or omission on the part of the deceased which materially contributed to the damage. Except relying upon the statement of P.W.1 referred to above, the learned counsel for the appellant is unable to point out any act of contributory negligence or conduct of the deceased, which contributed to the negligence. The contention of the learned counsel for the appellant that there was a contributory negligence on the part of the deceased, therefore, not substantiated. The aforesaid judgment is of no help to the appellants. 11] On the question of monthly income of the deceased, the Tribunal has relied upon the evidence of P.W.1 Dudhaji the father of the deceased, P.W.2 Suresh the compounder working in the dispensary of the deceased, P.W.3 Satish who was Pigmi agent of the bank collecting daily amount for investment from deceased and the evidence of P.W.4 the Proprietor of the medical shop Shri Vishwanath. The 13 documents are placed on record which are the bank cards at Exhs.47 to 52 and pharmacy bills Exhs.55/1 to 55/65. All this evidence clearly established that the earning of the deceased was atleast an amount of Rs.2000/- p.m. The contention of the learned counsel for the appellants that the finding is without any basis is therefore, not accepted, as there is overwhelming evidence on record to substantiate the said finding. 12. The next contention of the appellant is that the Tribunal has failed to allow deduction to the extent of 1/3 of the income of the deceased to be spent for personal expenses. It is based upon the provision in the ready reckoner i.e. IInd Schedule under Section 163-A of the Motor Vehicles Act. The learned counsel appearing for the respondents submitted that the provisions regarding the deductions of 1/3 amount was inapplicable as it was introduced in the year 1994 and the judgment in the instant case was delivered in the year 1990 and therefore, on the basis of this provision, there could not be the deductions to the extent of 1/3 amount of the monthly income determined by the Tribunal. 13] In order to arrive at just and reasonable amount of compensation, in my view, irrespective of the provisions under the IInd 14 Schedule regarding the deduction of the amount, the Tribunal is required to take into consideration this aspect also. After going through the judgment of the Tribunal, it does not seem that the Tribunal has taken into consideration this aspect of deduction of 1/3 amount for the personal expenses to be incurred by the deceased. Hence, in my opinion, the contention of the learned counsel for the appellant with regard to the deduction of 1/3 amount from the total monthly income of the deceased for applicability of the multiplier is correct. Hence, deducting 1/3 amount from the total annual income of Rs.24000/- which is determined by the Tribunal, the annual dependency would be to the extent of Rs.16,000/- (Rs.24000-Rs.8000). 14] After deducting this amount, the question would remain regarding the applicability of the multiplier. In this respect, the judgment of Apex Court reported in 1996 (4) S.C.C. 362, needs to be seen. This judgment takes into consideration the judgment of the Apex Court in General Manager, Kerala State Road Transport Corporation V/s Susamma Thomas and others reported in 1994 (2) S.C.C. 176 on which the learned counsel for the appellant has placed his reliance. In para 18 of this judgment, the Apex Court has held that the table in IInd Schedule of the Motor Vehicles Act, 1989 is merely a guideline. The judgment of the Apex Court in Municipal Corporation 15 Greater Bombay cited supra on which reliance was placed by the learned counsel for appellants, held in para 9 that it is not the age of the deceased alone but the age of the claimant as well which are to be the relevant factors, in case where parents or other dependents are claimants. In view this, the II Schedule to the Motor Vehicles Act has to be taken as a guide and it is not only the age of the deceased alone but the age of the claimants as well, which are the relevant factors, in case where the parents or other dependents are claimants. In the instant case, the Tribunal has determined the dependency of the parents to the extent of 20 years on the basis of evidence on record and the same is not challenged. In view of this, the judgment of the Tribunal cannot be faulted with. The total amount of compensation payable would be determinable at Rs.3,20,000/- (Rs.16000X20). The judgment and award passed by Motor Accident Claims Tribunal,Beed, on 29/11/1990 in M.A.C.No.87/1987 stands modified to the extent of Rs. 3,20,000/- payable to the claimants. 15] The claimant has been paid an amount of Rs.15,000/- towards no fault liability which they have withdrawn.The claimant has also received an amount of Rs.50,000/-. Thus total amount received by the claimant is Rs.65,000/-. The learned counsel for the appellants states that the appellant had deposited an amount of Rs.1,50,000/- in the trial 16 Court, out of which this Court by an order dated 25/6/1991, permitted the claimants to withdraw an amount of Rs.1 Lakh and accordingly the same has also been withdrawn. The learned counsel further states that an amount of Rs.25,000/- towards statutory requirement has also been deposited in this Court. 16] In view of above, the amount of deposit in this case, lying in this Court, shall be immediately remitted to the Motor Accident Claims Tribunal, Beed alongwith the entire record and proceedings of M.A.C.No.87/1987. The Motor Accidents Claims Tribunal, Beed, shall treat an amount of compensation payable to the claimants as Rs. 3,20,000/- (Rs.Three Lakhs Twenty Thousand only). The Tribunal shall accordingly calculate other entitlements and benefits if any payable to the claimants. After deducting the amount already paid to the claimants, pass appropriate orders in accordance with law, after hearing the parties. The appeal is thus partly allowed. No order as to costs. [R.K.DESHPANDE] JUDGE umg/fa87-1991 17