1 fa812.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.812 OF 1999 1 Shubhangi Prashant Thorat 2 Kumar Anubhav Prashant Thorat ...Appellants vs. 1 Dundappa Yamanappa 2 The New India Assurance Co.Ltd. 3 Manohar Raoba Thorat 4 Sou.Pramila Manohar Thorat ...Respondents Mr.C.J.Sawant, Sr.Counsel i/b Mr.C.R.Sonawane for the appellants Mr.S.R.Singh for the respondent no.2 CORAM :A.S.OKA,J. DATE : OCTOBER 26, 2010 ORAL JUDGMENT : 1 Heard the learned senior counsel for the appellants and the learned counsel for the second respondent. 2 By this appeal under section 173 of the Motor Vehicles Act,1988 (hereinafter referred to as  the said Act ) the challenge is to the Judgment and Award dated 18 th May 1999 passed by the learned Member of the Motor Accident Claims Tribunal on a claim petition filed under section 110-A of the Motor Vehicles Act,1939.The claim petition was filed by the appellants and the third and fourth respondents on account of death of one Prashant in a motor accident. 3 The third and fourth respondents are the parents 2 fa812.sxw of the deceased Prashant. The first appellant is the widow of the deceased and the second appellant is the son of the deceased. The case made out in the claim petition is that on 3rd August 1986 the deceased was proceeding from Panchgani towards Pune. One Rajendra Yadav was travelling with the deceased who was the owner of the motor car. The said Rajendra requested the deceased to drive the car and drop him at Pune for the purposes of treatment. Accordingly, the deceased was driving the car. When the car came near the bridge on Nira river the deceased sounded the horn. After the car crossed the village, a truck owned by the first respondent came from the opposite direction in a high and excessive speed. It is alleged that the driver of the truck lost his control. He came on the wrong side and dashed against the right front door of the car. The deceased sustained injuries. He was shifted to Jahangir Nursing Home at Pune and he succumbed to injuries on 18 th August 1986. The claim petition was filed claiming compensation of Rs.6,00,000/- The third respondent stepped into witness box on behalf of the claimants. No other evidence was adduced by the parties. The learned Member of the Tribunal recorded a finding that the driver of the truck was negligent and also held that the deceased himself had contributed to the accident by rash and negligent driving. Based on the admission of the third respondent, the learned Member of the Tribunal held that the first appellant widow has remarried and therefore, she is disentitled to any compensation. The learned Member recorded a finding that the claimants were entitled to compensation of Rs. 2,00,000/- but an amount of Rs.1,00,000/- was deducted being the 50% of the amount on the ground of contributory negligence on the part of the deceased. 4 The learned senior counsel for the appellants 3 fa812.sxw submitted that there was no evidence of any negligence on the part of the deceased. He submitted that F.I.R could not have been read in evidence as the same was not proved and the same was belatedly lodged. He submitted that the driver of the truck was not examined. He submitted that the remarriage of the widow was no ground to deny compensation to her. He submitted that the Tribunal committed an error by deducting 50% of the compensation amount. He urged that the compensation awarded is on the lower side. 5 The learned counsel for the second respondent, the insurer of the truck, contended that there was no independent evidence adduced to show that the driver of the truck was guilty of negligence. He submitted that in the F.I.R lodged, it was recorded that the accident occurred due to negligence on the part of the deceased and in absence of any evidence adduced by the appellants, the Tribunal has taken a reasonable view by holding that the deceased had contributed to the accident to the extent of 50%.He submitted that there was no evidence about the age of the deceased and income of the deceased and therefore, no interference is called for. 6 I have carefully considered the submissions. The first question to be decided is as regards the negligence alleged against the driver of the truck. It must be noted here that the accident occurred on 3 rd August 1986. The deceased succumbed to the injuries sustained in the accident on 18 th August 1986. F.I.R was belatedly registered on 21 st August 1986. The Tribunal has placed reliance on the F.I.R. Exh.42. As stated earlier, the F.I.R is belatedly registered on 21st August 1986 i.e. 18 days after the accident. A copy of the F.I.R and a copy of the final report under section 173 of the Code of 4 fa812.sxw Criminal Procedure,1973 were produced by the second respondent before the Tribunal along with a list at Exh. 37. On the said list, the Advocate for the claimants has made an endorsement that the documents were not admitted. Notwithstanding the said endorsement, the learned member of the Tribunal has exhibited the said documents and has read the same in evidence. As the claimants had not admitted the said documents, the same could not have been read in evidence. The said documents were required to be proved especially when the same were disputed and especially when there was a gross delay of 18 days in lodging the F.I.R. Even the panchnama was recorded on 21st August 1986. Another panchnama was recorded on 26th August 1986 recording the condition of the Maruti Car which was kept in a garage at the relevant time. 7 The third respondent was obviously not an eye witness. The second respondent made no efforts to examine the driver of the truck. A contention seems to be raised before the Tribunal that it was the Maruti Car which came on its wrong side. On this aspect, the Tribunal has observed thus : 6...Considering the fact mentioned in F.I.R. , it is revealed that the deceased was driving the car rashly and negligently and thereby the accident took place. But there is no such facts established by the spot panchanama to show really the situation on the spot panchanama was to the effect that the deceased went to the wrong side and gave dash to the truck. There is head on collusion between the car and goods truck. Considering the non-availability of the panchnama , nor the police cared to prepare the panchanama though they received the information 5 fa812.sxw about the accident in question... The finding of the Tribunal in the impugned judgment and award that the driver of the truck was also negligent has not been challenged by any of the respondents. On the ground that there was head on collision, a finding of contributory negligence was recorded against the deceased. There is no evidence to establish that the deceased had taken the car driven by him on its wrong side. The Tribunal has relied upon the F.I.R.. Apart from the fact that the F.I.R was not proved, on the basis of the F.I.R which is belatedly lodged after 18 days, a finding of contributory negligence could not have been recorded against the deceased and to that extent the impugned Award will have to be modified by holding that the accident occurred on account of rash and negligent driving on the part of the driver of the Truck. 8 The second question will be regarding quantum. The compensation has been awarded to third and fourth respondents and the second appellant who was born about four or five months after the accident. The third respondent examined himself. He has stated that the age of the deceased is 30 years without disclosing his date of birth. He admitted that he had not filed the age proof of his son on record. He also admitted that the degree certificate of the deceased son was not placed on record. It is the case of the claimants that initially the deceased was employed with M/s. Cox and Kings and was drawing a total salary of Rs.1,700/- per month. Certificate at Exh.45 of M/s.Cox and Kings which was admitted by the second respondent shows that the deceased was drawing a salary of Rs.1700/- from 1 st July 1985 and he resigned from the employment from 2 nd May 1986. The 6 fa812.sxw case made out by the third respondent is that after resigning, the deceased had started a Boarding School at Panchgani District Satara for children in need of special care. In fact, he came out with a case that the deceased would have earned Rs.10,000/- per month from the said business. There is absolutely no basis for the said claim. What is on record is that the deceased for a period of one year was employed with M/s. Cox and Kings and was drawing a salary of Rs.1700/- per month. The deceased had resigned on 2nd May 1986. In absence of any permanent employment or any evidence of the income earned by the deceased after the resignation, it is not possible to take into consideration the future prospects of the increase in the earnings of the deceased. Therefore, the multiplicand will have to be calculated by taking the earning capacity of the deceased at Rs.1700/- per month. The case summary of the Jahangir Nursing Home at Exh.48 records the age of the deceased as 30 years. Same is the case made out by the father of the deceased in his evidence. However, there is no proof of the age of the deceased and even the date of birth is not disclosed in his evidence by the father of the deceased. Considering the evidence on record, the age of the deceased can be taken between 31 to 35 years. In view of the decision of the Apex Court in case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another [(2009) 6 SCC 121], the multiplier of 16 will have to be applied. 9 The Tribunal has denied compensation to the widow of the deceased on the ground that she has remarried. The finding on this aspect is found in paragraph 9 the Judgment of the Tribunal which vaguely records that the widow has remarried three to four years back. The subsequent re-marriage is no ground to deny the 7 fa812.sxw compensation. The occasion for the remarriage arose as a consequence of the unfortunate death of her husband in the accident and it cannot be said that the subsequent remarriage will compensate the widow on account of loss suffered by her due to untimely death of her husband. In the circumstances, the Tribunal has committed an error by denying the compensation to the widow only on the ground that she has remarried during the pendency of the claim petition. The dependency of the widow cannot be brushed aside on the ground of remarriage. 10 Coming back to the calculation of the multiplicand, on the basis of the monthly income of the deceased at Rs.1700/- p.m, yearly income will be Rs.20,400/-, from that 1/3 rd amount will have to be deducted on account of the personal expenditure of the deceased. After deducting 1/3 rd amount,the yearly dependency will be Rs. 13,600/-. Multiplier of 16 will have to be applied. Applying multiplier of 16, compensation will be Rs. 2,17,600/-. The Tribunal rightly granted a sum of Rs. 35,000/- towards reimbursement of the medical and hospital charges of the deceased. The Tribunal has separately awarded a sum of Rs.8,000/- towards loss of love and affection to the third and fourth respondents and Rs.5000/- for loss of love and affection to the second appellant and a sum of Rs.2000/- as funeral expenses. In fact, on account of loss consortium to the widow and for funeral expenses etc, usual amount of Rs. 20,000/- ought to have to be awarded instead of the aforesaid amounts of Rs.8000/-,Rs5000 and Rs 2000/- respectively. Thus, adding a sum of Rs.20,000/- and Rs. 35,000/- to the compensation amount, the total compensation payable will be Rs.272600/-. The Tribunal has granted interest at the rate of 9% p.a. The claim petition was filed in the year 1986 and was decided in 8 fa812.sxw the year 1989 and therefore, interest at the rate of 12% was awarded. However, during the last few years, interest rates have been considerably reduced. Hence, interest at the rate of 9% will have to be granted on the enhanced amount. 11 Under the impugned Award, a sum of Rs.1 lac with interest at the rate of 9% inclusive of no fault liability has been granted. The appellants will be entitled to additional compensation of Rs.1,72,600/- together with interest thereon at the rate of 9% p.a from the date of accident till the deposit with the Tribunal. 12 It is made clear that notwithstanding the re- marriage, the first appellant will be entitled to compensation. The third and fourth respondents have not challenged the award and have not claimed enhanced compensation. In fact they have not appeared in this appeal after service of notice. Therefore, the entire additional compensation will be payable to the appellants. The compensation already received by the third and fourth respondents is not disturbed. As far as disbursement/distribution and /or the investment of the additional compensation is concerned, that aspect will have to be taken care of by the Tribunal after the additional amount is deposited. Hence, the appeal must succeed in part. 13 Hence, I pass the following order: i) In addition to the compensation under the impugned Judgment and Award, the appellants shall be entitled to additional compensation of Rs.1,72,600/- with interest thereon at the rate of 9% p.a. From 15th December 1986 till the date of deposit of the amount 9 fa812.sxw with the Tribunal. ii)Time of three months is granted to the second respondent to deposit the amount. iii)The appellants will be entitled to proportionate costs of the Appeal. iv)After the additional compensation amount is deposited with the Tribunal, appropriate order regarding disbursement/distribution and/or investment of the amount shall be passed by the Tribunal after hearing the appellants. v) If any, amount is deposited in this Court, the same shall be transmitted to the concerned Tribunal. vi) The appeal is partly allowed on above terms. JUDGE