ash 1 fa-1678.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1678 OF 2010 Maharashtra State Road Transport Corporation. .. Appellant Vs Smt. Smita Changdeo Bhalerao & Ors. .. Respondents -- Shri G.S. Hegde along with Shri C.M. Lokesh i/by M/s. G.S. Hegde & Associates for the Appellant. Shri R.N. Sanghavi for Respondent No.1. -- CORAM : A.S. OKA, J SUBMISSIONS WERE HEARD ON : 26TH AUGUST, 2011 JUDGMENT PRONOUNCED ON : 16TH SEPTEMBER, 2011 JUDGMENT: . Heard learned counsel appearing for the Appellant and the learned counsel appearing for the Respondents. The learned counsel appearing for the Respondents on instructions states that though the Respondents do not desire to claim enhancement in compensation granted by the Tribunal, the Respondents be permitted to make all submissions for supporting the impugned judgment and order. ash 2 fa-1678.10.sxw 2. The Appellant–Maharashtra State Road Transport Corporation has challenged the judgment and award passed by the Learned Member of the Motor Accident Claims Tribunal at Pune in a Claim Petition filed by the Respondents under Section 166 of the Motor Vehicles Act. The first Respondent is the widow of the deceased Changdeo Bhalerao. The second Respondent is the minor son of the deceased and the third Respondent is the mother of the deceased. The deceased was employed as a System Programmer-4 in B.M.C. Software India Private Limited, Pune. On 24th November, 2004 at about 10.30 p.m., when the deceased was travelling by his Santro make Car by Nagar-Pune Road, he met with an accident. When the Car of the deceased came near KM No.4/2 at village Shirur, a bus owned by the Appellant came from the opposite direction i.e. from Pune which was being driven in a rash and negligent manner and in excessive speed. It is alleged that the dash was so forceful that the bus turned in reverse direction and went beyond the road and gave dash to a house situated by the side of the road. When the deceased was taken to the hospital, he was declared as dead. The claim for compensation in the sum of Rs.1 crore was made by the Respondents. 3. The Appellant filed Written Statement and contended that the driver of the offending bus was a very experienced driver and his record was without any blemish. It was contended that the driver was ash 3 fa-1678.10.sxw driving the bus at moderate speed of 50 Km. per hour. It was contended that the deceased was driving his Santro Car at a speed of more than 100 Km. per hour and he gave a dash to the bus when the said Car was on its wrong side. It was contended that the driver of the bus attempted to avoid the accident by taking the bus to the extreme left side. While doing so, the driver could not avoid the impact and ultimately, the bus dashed against a nearby house. 4. Before the Tribunal, the widow (the first Respondent) was examined as a witness. The widow also examined one Smt. Pooja Kishor Khanurkar, an officer employed with the employer of the deceased. The Appellant examined the conductor of the bus. The Learned Member of the Tribunal held that the Driver of the S.T. bus was negligent. The Tribunal adopted multiplier of 16 in terms of the decision of the Apex Court in the case of Sarla Verma v. Delhi Transport Corporation, [(2009)2 SCC 121]. The total compensation of Rs. 44,78,411/- was granted with interest at the rate of 7% per annum from the date of filing of the Claim Application. A compilation containing true copies of the notes of evidence has been placed on record. Even the copies of the relevant documents on the record of the Tribunal have been also placed on record. 5. The first submission of the learned counsel appearing for ash 4 fa-1678.10.sxw the Appellant is that the deceased had an opportunity to avoid accident but the evidence on record shows that the deceased made no efforts to avoid the accident. He placed reliance on a decision of the learned Single Judge of this Court in the case of Antonio Milagres Fernandes (dead) through Legal Representatives v. Pramod Vijayan & Another, [1989(1) Current Civil Cases 474]. Relying upon the said decision, he submitted that the doctrine of last opportunity is attracted in this case and it will have to be held that the negligence was on the part of the deceased himself as he failed to avail himself of the opportunity to avoid accident. He relied upon the evidence of the Conductor of the bus and submitted that the negligence on the part of the Driver of the bus has not been established. He submitted that even assuming that to some extent the bus came on its wrong side, the Driver cannot be held negligent as the Driver was negotiating a curve. He submitted that in any case, there was a contributory negligence on the part of the deceased. 6. He submitted that by the time the Claim Petition reached final hearing, the widow of the deceased had re-married and, therefore, her dependency did not survive. He submitted that the view taken by this Court in two cases that a widow is entitled to seek compensation even after the marriage is no longer a good law in as much as this Court has ignored the binding precedent in form of the decision of the Apex ash 5 fa-1678.10.sxw Court in the case of Smt. Kasturi Devi v. Deputy Director of of Consolidation and Others, (AIR 1976 SC 2595). The learned counsel appearing for the Appellant invited the attention of the Court to the findings recorded by the Tribunal on the point of quantum of compensation. He submitted that there was no basis for taking the amount of Rs.7,31,055/- as the total emoluments payable to the deceased with effect from 1st July, 2004. He submitted that even going by the document at Exhibit – 28, the total yearly emoluments payable to the deceased were Rs.5,49,700/-. He submitted that if the appropriate deductions as well as the income tax payable is considered, the yearly remuneration will be not more than Rs.2,50,000/- to Rs.3,00,000/-. He submitted that the yearly remuneration has been taken at higher amount of Rs.4,71,976/-. He submitted that considering the fact that the widow had remarried, the multiplier 16 applied is on higher side. 7. The learned counsel appearing for the Respondents submitted that the Appellant never came out with a case that the deceased was guilty of the contributory negligence. He submitted that the said case has been made out for the first time in an appeal which is not permissible inasmuch as there is no pleading to that effect. He submitted that in fact this was a case where 50% amount ought to have been added on account of future prospects of increase in the earning of the deceased. Considering the earning of the deceased at the time of ash 6 fa-1678.10.sxw death and his qualifications, he submitted that the income taken by the Tribunal for calculating the multiplicand is on the lower side. He relied upon the documents at Exhibit – 28 and Exhibit – 40 which show the income of the deceased. He submitted that in fact the Respondents were entitled to the compensation higher than what was granted. 8. I have given careful consideration to the submissions. The first issue is regarding the negligence. Shri Vijay Wankhede, the Conductor of the offending bus, stated that the driver is no more. He stated that at the time of accident, the speed of the bus was 40 to 50 Km. per hour. He stated that the accident occurred after the bus crossed the speed breaker on the road. He stated that one Santro car came from the opposite side in an excessive speed. He stated that the Car gave a dash to the bus. He stated that the Driver of the bus was not at fault but the accident occurred due to negligence on the part of the deceased. In the cross-examination, he denied the correctness of the suggestion that he has falsely stated that he was sitting in the driver’s cabin near the driver of the ST bus. In the cross-examination, he denied that there was a turn near the spot of accident. He admitted that the driver of the bus ran away after the accident. 9. The spot panchanama is on record. I have perused the spot panchanama. The spot panchanama shows that the width of the road ash 7 fa-1678.10.sxw was 24 feet and near the spot, there was a turn. It was recorded that the spot of accident was 6 feet towards north side from the southern side edge of the road. It was further recorded that there were brake marks up to 25 feet from the north side to rough road and 12 feet long brake marks to the western side. It is an admitted position that after the dash, the bus crossed the road and gave a dash to the house on the side of the road. The spot panchanama records that there was a turn at the spot of the accident. However, the correctness of the said suggestion was denied by the Conductor of the bus. The FIR records that the bumper of the bus on the Driver’s side was damaged and headlight of the bus was broken. The Appellant did not examine any passenger in the bus. There were brake marks of the bus on the road. There is nothing on record to show that the deceased took his Santro Car on its wrong side. In fact the Conductor has not stated in the examination-in-chief that the Santro car came on its wrong side. Therefore, it will have to be accepted that when the accident occurred, the Santro car was on its correct side. Thus, the only inference which can be drawn is that the bus must be on its wrong side at the time of impact. The Conductor did not state in his evidence that the driver of the bus made any attempt to avoid the accident. The Tribunal recorded a finding that though the Conductor came out with a case that there was a speed breaker and the accident occurred after negotiating the speed breaker, there is nothing on record including the panchanama to ash 8 fa-1678.10.sxw show that there was a speed breaker near the spot where the accident occurred. That is why the Tribunal discarded the evidence of the Conductor of the bus and came to the conclusion that there was negligence on the part of the Driver of the bus. Hence, it is not possible to find fault with the finding of the Tribunal that there was negligence on the part of the driver of the bus. 10. As far as the decision of this Court in the case of Antonia Milagres Fernandes (supra) is concerned, the Appellant has not pleaded in the written statement that the deceased had an opportunity to avoid the accident. All that can be said is that there is no evidence on record to show as to what efforts were made by the deceased to avoid the accident. Therefore, at highest, there can be contributory negligence on the part of the deceased only to the extent of a small percentage. Even assuming that there was some contributory negligent on the part of the deceased, as found in the subsequent paragraphs of the judgment, in fact the entitlement of the Respondents to the compensation was more than what has been granted. 11. The other issue is whether the first Respondent (widow of the deceased) is disentitled to the compensation on the ground that the first Respondent remarried during the pendency of the claim petition. This submission was canvassed before the Tribunal. For dealing with ash 9 fa-1678.10.sxw this submission, the Tribunal has relied upon a decision of this Court in the case of Maharashtra State Road Transport Corporation v. Darab Khan & Others [2005(3) TAC 537]. This issue has been deal with in Paragraph 7 of the said decision. “7. The respondent No.4 was remarried. Therefore, the objection of the appellant appears to be that after re-marriage, such person is not entitled for the compensation and, therefore, such application was not maintainable. The learned Counsel appearing for the appellant relied on the judgment in Veerappan v. Mahamma (supra). Even though that judgment is based on the Workmen’s Compensation Act, 1923, according to me, the principles can be extended in the compensation case arising out of the Motor Vehicles Act. At the relevant time, admittedly, the respondent No.4 was entitled for compensation being a widow of the deceased. Her entitlement cannot be curtailed or taken away only because she married later on. A widow cannot wait for the compensation to come and then decide for another marriage. The realities of life cannot be overlooked. A widow may, or may not be in a position to marry again. There is no bar or anything pointed out under any provisions of law that such widow, after marriage, is disentitled for claim of the deceased husband. In view of this, I am of the view that this objection about the maintainability of the respondent No.4’s application cannot be accepted. The present application by the respondent No.4-wife, therefore, is also maintainable and within the framework of law.” 12. Learned counsel appearing for the Appellant relied upon a decision of Orissa High Court in the case of State of Orissa v. Smt. Archana Nayak & Others, (AIR 1987 Orissa 82) which takes a view that the widow of the deceased, after re-marriage, ceases to be entitled to ash 10 fa-1678.10.sxw compensation. What binds this Court is the binding precedent of a decision of the learned Single Judge of this Court in the case of Darab Khan (supra) and, therefore, the decision of Orissa High Court cannot be taken into consideration. In the case of the Gujarat SRTC Vs Ramanbhai Pratapbhai and another ([1987]3 SCC 234), the Apex Court considered the concept of legal representative under Section 110A of the motor Vehicles Act, 1939 which is pari materia with Section 166 of the motor Vehicles Act, 1988. The Apex Court held that a brother of the deceased is also entitled to file a claim petition. In paragraphs 12 and 13, the Apex Court held thus: “12. Amongst the High Courts in India there is a cleavage in the opinion as regards the main- tainability of action under Section 110-A of the Act by persons other than the wife, husband, parent and child of the person who dies on ac- count of a motor vehicle accident. All these cas- es are considered by the High Court of Gujarat in its decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhai2. The first set of cases are those which are referred to in para 5 of the above decision which lay down that every claim application for compensation arising out of a fatal accident would be governed by the substantive provisions in Sections 1-A and 2 of the 1855 Act and no dependent of the deceased other than the wife, husband, parent or child would be entitled to commence an action for damages against the tortfeasors. Amongst these cases are P.B. Kader v. Thatchamma5 and De- wan Hari Chand v. Municipal Corporation of Delhi6. The second group of cases are those re- ferred to in para 6 of the decision of the Gu- jarat High Court. They are Perumal v. G. El- ash 11 fa-1678.10.sxw lusamy Reddiar7 and Vanguard Insurance Co. Ltd. v. Chellu Hanumantha Rao8. These cases lay down that while the compensation payable under Section 1-A of the Fatal Accidents Act, 1855 is restricted to the relatives of the de- ceased named therein the compensation payable under Section 2 thereof may be award- ed in favour of the representatives of the de- ceased who are entitled to succeed to the estate of the deceased. The third group of cases are those referred to in para 7 of the judgment of the Gujarat High Court. They are Mohammed Habibullah v. K. Seethammal9, Veena Ku- mari Kohli v. Punjab Roadways10 and Ishwar Devi Malik Smt v. Union of India11 which take the view that a claim for compensation arising out of the use of a motor vehicle would be ex- clusively governed by the provisions of Sections 110 to 110-F of the Act and bears no connec- tion to claims under the 1855 Act and the Claims Tribunal need not follow the principles laid down under the latter Act. Having consid- ered all the three sets of decisions referred to above, Ahmadi, J. who wrote the judgment in Megjibhai Khimji Vira v. Chaturbhai Taljabhai2 came to the conclusion that an application made by the nephews of the deceased who died on account of a motor vehicle accident was clearly maintainable under Section 110-A of the Act. 13. We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having re- gard to the conditions of the Indian society. Ev- ery legal representative who suffers on ac- count of the death of a person due to a mo- tor vehicle accident should have a remedy for realization of compensation and that is provided by Sections 110-A to 110-F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensa- ash 12 fa-1678.10.sxw tion which appears to it to be just as provided in Section 110-B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensa- tion payable and its apportionment as required by Section 110-B of the Act amongst the legal representatives for whose benefit an applica- tion may be filed under Section 110-A of the Act have to be done in accordance with well- known principles of law. We should remember that in an Indian family brothers, sisters and brothers' children and sometimes foster chil- dren live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the pro- visions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehi- cles accidents. We express our approval of the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhai2 and hold that the brother of a per- son who dies in a motor vehicle accident is en- titled to maintain a petition under Section 110- A of the Act if he is a legal representative of the deceased.” (Emphasis added) 13. The submission of the learned counsel appearing for the Appellant based on the decision of the Apex Court in the case of Smt. Kasturi Devi (supra) is that the widow ceases to have any right in the assets of her husband after re-marriage. Perusal of the said judgment shows that the dispute was regarding inheritance of property of one Karua. The said Karua was the son of Madhua. The said Madhua left behind his widow Kasturi and son Karua. Kasturi was the Appellant ash 13 fa-1678.10.sxw before the Apex Court. The contention before the Apex Court was that though Kasturi had re-married, as she had acquired absolute interest in the property, no question of divestment of the property could arise in the light of the provisions of the Hindu Succession Act. Perusal of the judgment shows that the Apex Court held that Karua was claiming share as the mother and not as the widow. In this context, the following observations were made by the Apex Court:- “A large number of authorities have been cited in support of this view. We find ourselves entirely in agreement with this view. Our attention has not been invited to any text of the Hindu Law under which a mother could be divested of her interest in the property either on the ground of unchastity of remarriage. We feel the application of the bar of inheritance to the Hindu widow is based on the special and peculiar, sacred and spiritual relationship of the wife and the husband. After the marriage, the wife becomes an absolute partner and an integral part of her husband and the principle on which she is excluded from inheritance on remarriage is that when she relinquishes her link her husband even though he is dead and enters a new family, she is not entitle4d to retain the property inherited by her. The same, however, cannot be said of a mother. The mother is in an absolutely different position and that is why the Hindu Law did not provide that even the mother would be disinherited if she remarried.” 14. A claim Petition under Section 166 of the said Act is essentially an action under the Law of Torts. The husband of the first Respondent lost his life due to rash and negligent driving on the part of the Driver of the Appellant. The mother of the deceased filed an ash 14 fa-1678.10.sxw affidavit in lieu of examination-in-chief. The claim application was filed in the year 2005. In the cross-examination, she admitted that the first Respondent re-married in the year 2007 and she was residing along with the second Respondent with her husband. 15. Right to claim compensation has been accrued to the first Respondent on the death of her husband. When she filed the claim petition, she was a widow and she had not re-married. What has been determined is the liability of the Appellant on the date of the filing of the claim petition. The cause of action to claim the compensation arose on the death of the deceased. In the year 2004, the accident occurred. The first Respondent was placed in a very unfortunate position in as much as at the age of 27 years, she became a widow. The age of her son was only one year at the time of the accident. In our system, claim petitions are not decided immediately. The compensation awarded under section 140 is not sufficient for survival of widow for few years. Only because of unfortunate situation arising due to demise of her husband that in the year 2007, the first Respondent got re- married. Her dependency on the date of the accident will have to be considered. The subsequent re-marriage cannot defeat the claim of the widow. Moreover, the deceased a had minor son whose age was one year at the time of accident. There is nothing on record to show that the son was adopted by the second husband of the first Respondent. ash 15 fa-1678.10.sxw The Apex Court in the case of Kasturi Devi has dealt with only the issue of inheritance under the ancient Hindu Law and what is held by this Court in the case of Darab Khan (supra) is not contrary to the law laid down by the Apex Court as this Court was not dealing with the issue of inheritance to the property of the deceased husband. Even under the Hindu Succession Act, 1956 a widow is not divested of her share in the husband’s property after her re-marriage. Therefore, the said contention raised by the Appellant will have to be rejected. 16. As far as the income of the deceased is concerned, the Respondent examined one Smt. Pooja Kishor Khanurkar who was employed as HR Co-coordinator in BMC Software India Private Limited, Pune. She produced a Letter of Authority to depose on behalf of the Company. She deposed that the deceased was employed as the System Programmer-4 under the Letter of Appointment dated 7th April, 2003. The appointment letter was marked as Exhibit-25. The confirmation