1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.882 OF 1992 1. Shivrani Shivling Bane Age : 45 years, Occupation : Nurse R/o.Wategaon, Taluka Walwa, District Sangli ..Appellants 2. Dr.Shivling Shankar Bane Age : 54 years, Occupation : Medical Practioner R/o.Wategaon, Taluka Walwa, District Sangli V/s. 1. Narayan Bhau Patil Age : 41 years , Occupation : driver R/o.Chikhalwad, Taluka Chikodi, District Belgaum deceased by his heirs 1-A Smt.Shantabai Patil w/o.Narayan Patil Age : 40 years, Occupation : Household 1-B Vijaykumar Narayan Patil Age : 21 years, Occupation : Education ..Respondents 1-C Ananda Narayan Patil Age : 19 years, Occupation : Education 1-A to 1-C R/o.Chikhalwad, Taluka Chikodi, District Belgaum (Karnataka State) 2. M/s.Tata Engineering and Locomotive Company Limited, Pimpari, Pune 3. The New India Insurance Company Ltd H.O.97, Mahatma Gandhi Road, Fort, Bombay 2 4. Goodwill Ex-serviceman Co-operative Society M.I.D.C.Bhosari, P.O.Poona Mr.V.B.Rajure, advocate, for the appellants Mr.S.R.Singh with Mr.D.R.Mahadik, advocate, for respondent No.3 Mrs.S.A.Mudbidri, advocate, for respondent No.4 CORAM : A.S.OKA, J. DATE : 27TH MARCH, 2008 JUDGMENT 1. The submissions of the learned advocates appearing for the parties were heard on the last date. The appellants are the original claimants in a Claim Petition filed under Section 110A of the Motor Vehicles Act, 1939. The appellants are the parents of the victim of the accident. The victim of the accident was one Sanjay who was a student of the first year M.B.B.S course. The age of the son of the appellants, was around 18 years. The finding of the Tribunal is that at the time of accident the said Sanjay had not attained majority. The claim for compensation was in the sum of Rs.1,00,000/-. 3 2. The deceased Sanjay was riding a motor cycle on 20th September, 1984. At about 7.30 A.M he was proceeding from Islampur to Wategaon. A truck- chassis gave a dash to the motor cycle. The said Sanjay was thrown at the distance of 25 feet. Within a couple of days, he succumbed to the injuries sustained in the accident. The original first respondent was the driver of the said truck- chassis which was owned by the second respondent. The third respondent is the insurer of the vehicle. The Tribunal held that the accident occurred due to the negligence on the part of the driver of the truck-chassis. However, the Tribunal found that on the date of the accident the said Sanjay was a minor and obviously, he was not holding any license. On that ground the Tribunal held that the deceased Sanjay had contributed to the cause of the accident. Though the Tribunal found that the appellants were entitled to compensation of Rs.1,00,000/-, 50% deduction was made by the Tribunal and compensation of Rs.50,000/- along with interest at 12% p.a was awarded. 4 3. The submission of the learned advocate for the appellants is that there is a clear finding recorded by the Tribunal that there was no negligence or rash and negligent driving on the part of the deceased Sanjay. In fact, the finding is that the accident occurred due to rash and negligent driving of the truck-chassis by the first respondent. He submitted that assuming that the deceased was not holding a valid license to drive the motor cycle it cannot be inferred there was contributory negligence on his part. He submitted that there was no justification for deducting 50% of compensation amount. 4. The learned advocates appearing for the respondent Nos.3 and 4 supported the impugned Award. The submission of the third respondent is that there was every justification for the Tribunal to infer that the deceased must have contributed to the accident as the deceased was not competent to drive the motor cycle. He submitted that even assuming that the Tribunal has committed an error in deducting 50% of the amount, this Court will 5 have to grant a reasonable amount considering that as the accident is of the year 1984 and the deceased was a minor, in no case the compensation could have exceeded Rs.50,000/-. 5. I have carefully considered the submissions. It will be necessary to refer to the finding recorded by the Tribunal on Issue No.1. The Tribunal has dealt with the case made out by the respondents that the accident occurred due to rash and negligent driving of the motor cycle by the deceased. In paragraph 8 the learned member of the Tribunal has recorded a finding which reads thus :- “In such circumstances, their say that the accident occurred due to the rash and negligent driving of the motor-cycle by the deceased Sanjay Bane himself cannot be accepted, as a gospel truth. Without any evidence to substantiate their plea drawn on the inference by Madhusudan Gokhale, it will not be safe to rely on the report Exhibit 117. In short, non convincing and reliable evidence has been led by the Respondents to establish that the accident occurred due to the rash and negligent driving of the motor-cycle by the deceased himself.” In paragraph 9 of the Judgment the Tribunal has referred to a certified copy of the spot panchanama 6 which was exhibited without any objection by the parties. After referring to the certified copy of the spot panchanama, the Tribunal has recorded the following. “The left side front portion of the truck chassis MHP-547 was damaged. Therefore, it can be positively inferred that the truck chassis MHP-547, which came from behind the motor-cycle, gave a dash to the motor-cycle and due that, Sanjay Bane was thrown on the road and he sustained injuries to which he succumbed, later on. There is, however, no evidence on the record to make out that the deceased Sanjay Bane was attempting to overtake any chassis and that too from the wrong side and in that attempt, he dashed against the truck-chassis MHP-547.” The Issue Nos.1 and 2 framed by the learned member of the Tribunal and the findings on the said issues read thus :- ISSUES “(i) Do the Claimants prove that Respondent No.1 drove truck chassis in a rash and negligent manner and caused the accident ? (ii) Does Respondent No.1 prove that because of the negligence of deceased, that accident took place ? FINDINGS (i) Yes 7 (ii) Yes Thus, categorical finding recorded by the learned member of the Tribunal is that there is no evidence on record to prove that the deceased was attempting to overtake the truck chassis and that while doing so he dashed against the truck chassis. In fact, there is a clear finding that there was no rash and negligent driving on the part of the deceased. The only ground on which the learned Judge has made a deduction of 50% is that the deceased was not holding a valid license. In paragraph 10 of the Judgment the learned Judge has observed thus :- “To my knowledge, then there was no provision for granting learner's license to the person below the age of 18 years. Therefore, it is explicit that the deceased Sanjay Bane drove the motor-cycle MXD-9013 without any driving licence. We do not know whether he was properly knowing the driving of the motor-cycle. Therefore, we cannot rule out the possibility of he too contributing in the occurrence of the accident. To drive a vehicle without licence is a matter, which should be viewed seriously. That is why the liability for the accident of both the vehicles, i.e.the motor cycle MXD-9013 and the truck chassis MHP-547 is equal. Accordingly, I answer issue Nos.1 and 2.” 8 In my view, the finding recorded by the Tribunal in paragraph 10 is completely contrary to the earlier findings. Assuming that the deceased was not holding any valid license, it is no ground to hold that he was driving the motor cycle in a rash and negligent manner. It was established that it was the driver of the truck chassis who was guilty of rash and negligent driving. It was held that there was absolutely no material on record to show that the accident occurred while the deceased was trying to overtake the truck chassis. Therefore, the Tribunal committed an error in making a deduction of 50% of the compensation amount. 6. In a claim U/s.110A of the Motor Vehicles Act, 1939 the claimant is entitled to just and reasonable compensation. A claim for compensation cannot be looked upon as a bonanza. We are dealing with the case of the year 1984 when the deceased was a minor student. The learned member of the Tribunal has come to the figure of Rs.1,00,000/- only on the basis of surmises. In my view, the compensation of Rs.1,00,000/- fixed by the Tribunal 9 is certainly excessive and this is a fit case for exercising powers under Rule 33 of Order XLI of the Code of Civil Procedure, 1908 to reduce the compensation amount. Considering the fact that the accident has occurred in the year 1984 the compensation amount will have to be fixed at Rs.70,000/-. As already held earlier there cannot be any deduction made from the said amount. 7. The Award has been made in the year 1991 by granting interest at 12% p.a from the date of application. Subsequently, the interest rates have gone down. Therefore, on the additional amount of Rs.20,000/- interest payable will be at 9% p.a. Hence, I pass the following order. (i) The Appeal is partly allowed. (ii) In addition to the compensation of Rs.50,000/- with interest at the rate of 12% p.a awarded under the impugned Judgment and Award, the appellants will be entitled to additional compensation amount of Rs.20,000/- with interest thereon at 9% p.a from the date of filing of the claim application i.e.18th March, 1985 till the realisation of the amount. The appellants will be entitled to proportionate costs of the Claim Petition as well as this appeal. 10 (iii) Time of four months is granted to the third respondent to comply with the modified Award. (A.S.OKA, J.)