1 fa-1016.10 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1016 OF 2010 Union of India. .. Appellant Vs Smt. Durgawati Gharbharan Das & Ors. .. Respondents -- Shri Sureshkumar for the Appellant. ShriU.S. Pandey i/by Shri S.R. Gupta for Respondents. -- CORAM : A.S.OKA, J. DATE : 14TH DECEMBER, 2010 P.C: . Submissions of the learned counsel appearing for the parties were heard on the earlier date. The Appellant – Union of India has taken an exception to the judgment and award dated 29th August, 2009 passed by the Learned Member of the Motor Accident Claims Tribunal in a Claim Petition filed by the Respondents. The Claim Petition was filed under Section 166 of the Motor Vehicles Act, 1988 ( hereinafter referred to as “the said Act” ). The Claim Petition was filed claiming compensation on account of death of one Gharbharan Sahdeo Das in a motor accident. The 1st Respondent is the widow of the deceased and the 2nd to 5th Respondents are the children of the deceased. 2 fa-1016.10 2. The case made out in the claim petition is that the deceased was travelling by his Bolero motor vehicle on 15th December, 2005 which was being driven by his driver Niyaz Khan. He was proceeding from village Basti via Faizabad by Lucknow-Faizabad National Highway. According to the case of the Respondents, when the vehicle reached near the Primary School at village Jaganpur, one motor truck owned by the Appellant came in a rash and negligent manner from the opposite direction and gave a dash to the Bolero vehicle. As a result, the said vehicle turned turtle. The deceased and other occupants sustained injuries. The deceased was hospitalised and ultimately he succumbed to the injuries in the hospital on 20th December, 2005. 3. The claim was contested by the Appellant. It was submitted that the claim petition was not maintainable on account of non-joinder of necessary party and in fact, the General Manager of the Northern Railways was a necessary party. The second contention raised was that the Tribunal did not have territorial jurisdiction. It was urged that there was no negligence on the part of the driver of the truck. 4. Learned counsel appearing for the Appellant submitted that in fact the Claim Petition ought to have been filed against the General Manager of the Northern Railways and as the General Manager of the Northern Railways is not made a party, the claim petition was not maintainable on account of non-joinder of a necessary party. He submitted 3 fa-1016.10 that as the accident occurred in the State of Uttar Pradesh, the Claims Tribunal at Thane had no jurisdiction to entertain the claim petition. He submitted that the Tribunal has not correctly appreciated the evidence of the witnesses examined by the parties and in fact, there was no reason to disbelieve the sketch map of the scene of offence at Exhibit -20 which was placed on record. He submitted that as the claimants did not discharge the burden, failure to examine the driver on the part of the Appellant was not fatal. He submitted that the compensation granted is excessive. 5. I have given careful consideration to the submissions. It must be noted here that the Union of India is the Opponent to the claim petition. The claim petition was contested by adducing the evidence. As the Union of India was Opponent, the General Manager of the Northern Railways was not at all a necessary party. There is no dispute that the truck was owned by the Union of India. 6. As far as the territorial jurisdiction is concerned, in view of Sub-section (2) of Section 166 of the said Act, the Respondents-claimants have filed the claim petition before the Tribunal in the local limits of whose jurisdiction they are residing and, therefore, the objection regarding jurisdiction has no merit. 7. Since the submissions were made on the issue of negligence, I have perused the notes of evidence and other material documents on 4 fa-1016.10 record. The claimants examined one eye witness Virendra Devnarayan Yadav who, at the relevant time, was sitting on front of seat of the vehicle by which the deceased was travelling. He has deposed the manner in which the accident took place. He has stated that the said truck had come from the opposite direction in a high speed and dashed against the Bolero vehicle and the impact was so forceful that the said vehicle turned turtle. The witness was cross-examined by the Appellant. The Advocate for the Appellant gave a suggestion in the cross-examination that the vehicle in which the deceased was travelling was being driven on the wrong side. The correctness of the suggestion was denied by the witness. A suggestion was even not given that the truck was not in a high speed. In fact, he has not been cross-examined on the case made out by him in the examination- in-chief as regards the rash and negligent driving by the driver of the truck. In fact, the presence of the said witness was not challenged by the Appellant and that is the precise finding recorded by the Tribunal. It must be stated here that instead of examining the driver, the Appellant examined one Krusnamohan Biharilal Yadav as a witness. He claimed to be travelling by truck at the relevant time. He came out with the version that as a wheel of the truck was punctured, the driver took the truck towards left side of the road when the Bolero vehicle came from the opposite direction and gave a dash to the truck. However, the said witness admitted that his statement was not recorded by the Police during the investigation. He also admitted that he had stood surety for the driver of the truck. The Tribunal found that the presence of the said witness was not pleaded in the said 5 fa-1016.10 Written Statement. Therefore, the Tribunal has disbelieved the version of the said witness especially in the context of the fact that the Appellant did not examine the driver of the truck. The Tribunal found that the police had charge sheeted the driver of the truck. The Tribunal has discarded the map at Exhibit – 20 on the ground that the spot panchanama was not placed on record. The Tribunal has also considered the fact that the impact was such that the Bolero turned turtle. This was a case where adverse inference ought to have been drawn against the Appellant on account of failure to examine the driver. Considering the evidence of the witness examined by the claimants and limited cross-examination of the said witness, the Tribunal was justified in holding that the driver of the truck was negligent. 8. As far as the quantum is concerned, the certified copies of the Income Tax Returns of the deceased were placed on record. Though, the income for the last year was disclosed as Rs.2,48,733/-, the Tribunal has taken the average income of three years at Rs.2,25,000/- per year as the basis for calculating the multiplicand. The Tribunal has not taken into consideration the future prospects of the increase in the earnings of the deceased. Relying upon the decision of the Apex Court in the case of Sarla Verma and Others v. Delhi Transport Corporation and Another (2009(6) SCC 121 ), 1/4th deduction was made on account of personal expenditure of the deceased considering that there were five dependents. Based on the said decision of the Apex Court, the multiplier 13 has been 6 fa-1016.10 correctly applied as the age of the deceased was 45 years. As stated earlier, the deceased remained admitted for a period of five days in the Intensive Care Unit of Mayo Medical Centre, Lucknow and, therefore, a sum of Rs.50,000/- has been granted on account of medical expenses. That is how the compensation amount of Rs.20,12,000/- has been determined by the Tribunal. The compensation amount is consistent with the evidence on record and the law laid down by the Apex Court in Sarla Verma case (supra). 9. Hence, there is no merit in the Appeal and the same is accordingly dismissed with no orders as to costs. 10. If any amount deposited by the Appellant is pending in this Court, the same shall be transferred to the concerned Tribunal and the Tribunal will pass appropriate orders regarding disbursement and/or withdrawal of the amount. (A.S.OKA, J)