1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.112 OF 2000 APPEAL NO.112 OF 2000 APPEAL NO.112 OF 2000 1. Smt.Farhat Muzaffar Mulla ] 2. Aiysha Muzaffar Mulla ] Appellant No.2 is minor, hence ] represented through Appellant No.1 ] as natural guardian ] (Original Opponents) ] Appellants. versus 1. Kantilal M. Patel (deleted as per ] Reg’s Judl.Order dt.1/8/02 ] 2. The New India Assurance Co.Ltd,Thane ] 3. Abdulla Mulla (deleted as per Ct’s ] order dated 11/7/02 ] 4. Smt.Aiysha Abdulla Mulla ] Respondents (Original Opponents) ] Mr.M.D.Modgi with Mr.Sagar Joshi i/by Mr.S.M.Oak for the appellants. None for the respondents. CORAM CORAM CORAM : S.S.SHINDE, J. : S.S.SHINDE, J. : S.S.SHINDE, J. 2 DATED DATED DATED : JUNE 06, 2008. : JUNE 06, 2008. : JUNE 06, 2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. This appeal is preferred by the appellants - original claimants challenging the judgment and order passed by the Member, Motor Accident Claims Tribunal, Thane in Motor Accident Claim No.650 of 1988 by which the application for compensation filed by the applicants was partly allowed and Opponent Nos.1 and 2 were directed to pay jointly and severally to the applicants the compensation of Rs.1,41,800/- inclusive of no fault liability together with interest at the rate of 12 per cent per annum from the date of the application till its realization with proportionate costs of the claim petition. 2. The brief facts of the case are as under :- . On 13th April 1988 deceased Muzaffa Mulla was travelling from Bhiwandi towards Kalyan on his scooter No.MMC-5605 along with his wife and child. When that scooter reached near Ranjoli village, the lorry No.GRQ-6915 travelling in the opposite direction suddenly came on the wrong side and dashed against the scooter throwing the occupants of the vehicle, as a 3 result of which the deceased received injuries on his skull which resulted in his instantaneous death. It is further pleaded before the tribunal that the driver of that motor lorry was rash and negligent in driving that motor lorry No.GRQ-6915. Respondent No.1 is the owner of the offended motor lorry. The accident took place during the employment of the driver of the offended motor lorry when he was in employment with the Respondent No.1. The Respondent No.2 is the insurer of the offended motor lorry No.GRQ-6915. Thus according to the appellants/original claimants, both these respondents are jointly and severally liable to pay to the applicants/claimants the amount of compensation on account of the death of the deceased. The applicants claimed compensation of Rs.3,84,600/- with interest at the rate of 12% p.a. from the date of application till actual realisation. They have accordingly prayed for grant of the compensation. 3. The learned Member of the tribunal issued notice to the respondents/opponents. Opponent No.1 - the owner of the lorry did not contest the application of the claimants. However, Respondent/Opponent No.2 - the Insurance Company has filed its written statement as per Exhibit 17 and resisted the claim. On the basis of the pleadings of the parties, the learned 4 Member of the tribunal framed the following issues :- 1. Whether Claimants prove that accident took place due to rash and negligent driving of lorry No.GRQ-6915? 2. Whether the accident took place due to negligence or rashness of drivers of both vehicles involved ? If so, what is contribution by each to the accident ? 3. Whether Claimants are entitled to compensation ? If so, how much and from which of the Opponents ? 4. What order and Award ? The findings recorded by the tribunal on the aforesaid issues are as under :- Yes. The accident took place due to rashness and negligence of drivers of offended truck. 5 Yes, as per final order. As per the final order. 4. While answering Issue Nos.1 and 2, it has been held by the tribunal that the burden to prove Issue No.1 is on the applicants/claimants whereas the burden to prove Issue No.2 is on the opponents. The tribunal took into account the deposition of witnesses examined on behalf of the applicants/claimants viz. Applicant No.1 Farhat Mulla - the widow of the deceased as P.W.1, Faridh Gulam Mohuddin - the employer of the deceased as P.W.2 and Soef Rafiuddin Pathan - the photographer who had taken photographs of the spot of accident as P.W.3. The opponent-Insurance company did not examine any witness. The tribunal appreciated the version of Applicant No.1 - Farhat, who is the widow of the deceased, that her husband Muzaffur died in an accident which took place on 13th April 1988 at about 10.30 a.m. near village Ranjoli on Bhiwandi Kalyan road by a truck. 5. After taking into consideration the evidence of applicant No.1 Farhat and other two witnesses examined by the applicants/claimants and the written statement filed on behalf of the Insurance Company, 6 the tribunal answered Issue No.1 in the affirmative and held that the claimants have proved that the accident took place due to rash and negligent driving of the driver of Lorry No.GRQ-6915. 6. While answering Issue No.2 i.e. whether the accident took place due to negligence or rashness of drivers of both vehicles involved, the tribunal held that the accident took place due to rashness and negligence of the offended truck to the extent of 100%. 7. While answering Issue No.3, whether the claimants are entitled to the compensation, the tribunal held that the claimants are entitled for compensation of Rs.1,41,800/- inclusive of no fault liability together with interest at the rate of 12 per cent per annum from the date of application till its realization with proportionate costs of the claim petition. The tribunal did not grant the entire amount of compensation of Rs.3,84,600/- claimed by the claimants/applicants. 8. Being aggrieved by that part of the order by which the claim of the claimants reduced by the tribunal, this first appeal is preferred by the 7 appellants/claimants. 9. When the matter was on board on 5th June 2008 for final hearing, nobody appeared for the respondents. I partly heard the advocate appearing for the appellants. Then the matter was directed to be placed for hearing on 6th June 2008. On 6th June 2008 also when the matter is called out, advocate for the appellants present but neither the respondents nor anybody from their side to represent them was present. Therefore, I heard the arguments of the learned advocate appearing for the appellants at length. 10. The learned advocate for the appellants submitted that the tribunal was not correct in taking into consideration Rs.1,200/- as monthly salary of the deceased. According to the him, the deceased was getting Rs.1,500/- per month from his employer. It is further argued by the advocate for the appellants that in the light of the evidence of the employer and on considering prospective income, the learned tribunal ought to have taken the monthly income of the deceased at Rs.2300/-. It is further submitted that the learned member of the tribunal erred in applying multiplier of 13. The age of the of decease was 27 years at the time of incident. Therefore as per 8 Schedule II of the Motor Vehicles Act, 1988, multiplier of 18 is ought to have been applied in the instant case by the tribunal. It is further argued by the learned advocate for the appellants/claimants that the member of tribunal ought to have considered the age of the deceased and the fact that the deceased left behind him the widow and minor child. 11. I have given my anxious consideration to the submissions made by the learned advocate for the appellants/claimants. I have perused the judgment and order of the Motor Accident Claims Tribunal, Thane so also the evidence produced on behalf of the appellants/applicants. The widow - applicant No.1 has stated in her evidence that her husband Muzaffur Mulla died in an accident which took place on 13.4.1988 at about 10.30 a.m. near village Ranjoli, Bhiwandi Kalyan Road by a truck lorry. She has stated that on that date, before the accident her husband, she herself and her two months daughter were going on the scooter from Bhiwandi towards Kalyan at about 10. a.m. Her husband was driving the scooter and the speed of the scooter was slow and he was keeping left to the side of road. She further stated that when their scooter reached near Ranjoli village, she saw that one motor lorry was coming from the side of 9 Kalyan at a high speed and, in process of overtaking one stationary motor lorry, that motor lorry came to the wrong direction and it gave dash to their scooter. She also stated that her husband had tried to save from the accident by taking the scooter to the left side on katcha portion of the road, but he could not avoid the dash of that motor lorry. She has stated that her husband died on the spot as he had sustained head injury and she and her daughter had fallen at a distance of 10 ft. due to which she as well as her daughter sustained injuries. Nothing fruitful was brought on record through the cross examination of this witness by the opponents which could serious affect the credibility of this witness. 12. The next witness examined by the applicants/claimants is Faridh Gulam Mohuddin the employer of the deceased. The applicants examined this witness to prove the monthly salary of the deceased. This witness has stated that the deceased Muzaffa Mulla was working in his workshop as an Assistant Helper and he was paying him a monthly salary of Rs.1,500/-. He issued salary certificate dated 27.12.1993. He further stated that the person who is working presently in place of deceased Muzaffa Mulla has been drawing monthly salary of Rs.2,300/-. 10 10 10 13. The third witness examined by the applicants/claimants is the photographer (PW 3) Soef Pathan who had taken the photographs of the scene of occurrence of accident. He has stated that the lorry was facing towards Bhiwandi side. He further stated that the lorry was on the right side of the road while coming from the side of Kalyan and going towards Bhiwandi and that lorry was on the scooter. . Nothing adverse could be brought on record through the cross examination of these two witnesses which could affect the credence of these witnesses 14. From the evidence of these witnesses and the documents produced on record by the appellants/claimants, it is an admitted fact that the husband of Applicant No.1 died in an accident on 13.4.1988. In my opinion, while deciding Issue Nos.1 and 2, if the tribunal came to the conclusion that the accident took place due to rashness and negligence of drivers of offended truck to the extent of 100 per cent, then there was no reason for the tribunal to reduce the amount of compensation claimed by the claimants/appellants. The tribunal was not justified in not accepting the total claim of the appellants. 11 11 11 In fact the appellants/claimants have rightly claimed amount of Rs.3,84,600/- towards compensation. 15. Coming to the point of monthly income and applying multiplier, there is evidence on record in the form of P.W.2 to show that the deceased was getting monthly salary of Rs.1500/-. In my opinion, the tribunal was not correct in taking into consideration Rs.1200/- towards the monthly salary of the deceased, when admittedly he was getting Rs.1500/- per month at the time of accident. Apart from this, the applicant No.1 deposed before the tribunal that her father in law was running a flour mill and her husband was getting share of profit of Rs.900/-, but after the death of her husband her father in law stopped paying that share of Rs.900/- to her. 16. Apart from this, it is transpired from the record that the age of the deceased at the time of incident was about 27 years. The learned advocate for the appellants drew my attention to the xerox copies of the school leaving certificate of S.S.C. certificate in which the date of birth of the deceased is mentioned as 03.07.1960. Looking to the age of the deceased and the dependency of his wife and child at the time of accident, the tribunal was not justified 12 12 12 in reducing the claim of the appellants/claimants. The tribunal should have taken into consideration the the prospective income by taking monthly income of the deceased at Rs.2,300/-. The employer of the deceased (PW 2) has categorically stated before the tribunal that the person who is working presently in place of deceased has been drawing salary of Rs.2,300/-. It means that the deceased would have earned Rs.2,300/- if he would have been working with his employer. 17. So far as applying multiplier is concerned, the tribunal was not correct in applying multiplier of 13 in this case when the deceased was 27 or 28 years of age at the time of accident. Schedule II of the Motor Vehicles Act, 1988 provides multiplier of 18 if the age of victim is above 25 years but not exceeding 30 years. Therefore, in the instant case, looking the age of the deceased as 27 years, multiplier of 18 should have been applied by the tribunal instead of applying multiplier of 13. 18. Therefore considering the income of the deceased at Rs.2,300/- per month, after deducting 1/3 amount of Rs.765/-, the loss of dependency of the legal heirs comes to Rs.2,300 - Rs.765 = Rs.1,535. Hence the annual loss of dependency comes to 13 13 13 Rs.1,535/- x 12 = Rs.18,420/-. Applying the multiplier of 18, the amount of compensation comes to Rs.18,420/- x 18 = Rs.3,31,560/-. When the amount of no fault liability of Rs.25,000/- under Section 140 is added to this, the figure comes to Rs.3,31,560 + 25,000/- = Rs.3,56,560. The applicants are entitled to the loss of consortium to the tune of Rs.10,000/-, loss of estate to Rs.5,000/-, towards funeral charges Rs.2,000/- and towards pains sufferings Rs.10,000/-. 19. In view of the aforesaid discussions, I hold that the claimants are entitled for Rs.3,83,560/- as rightly claimed by them before the MACT, Thane. The tribunal awarded 12 per cent interest on the amount of compensation. Hence I pass the following order :- :ORDER: :ORDER: :ORDER: The appeal is allowed. The respondent Nos.1 and 2 jointly and severally shall pay to the Applicant Nos.1 and 2 and Respondent No.4 compensation of Rs.3,83,560/- - Rs.1,41,800 = Rs.2,41,760/- inclusive of no fault liability together with 14 14 14 interest at the rate of 12 per cent per annum from the date of application till its realization. All other findings of the tribunal are confirmed except the reduction of the amount of compensation claimed by the claimants. Appeal is disposed of accordingly. [S.S.SHINDE, [S.S.SHINDE, [S.S.SHINDE, J] J] J]