1 fa372.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.372 OF 1991 1 Smt.Drupada w/o Vishnu Mhetre 2 Vijay Vishnu Mhetre 3 Vinod Vishnu Mhetre 4 Smt.Shevanta Sambhaji Mhetre ...Appellants vs. 1 Bhagwan Nana Yelpele 2 Dilip Ramchandra Ghorpade 3 National Insurance Company Ltd. ...Respondents Ms Shakuntala Mudbidri for the appellants Mr.J.S.Chandnani for respondents CORAM :A.S.OKA,J. DATE : SEPTEMBER 8, 2010 ORAL JUDGMENT : 1 The appellants who are the original claimants have preferred this appeal seeking enhancement in compensation granted under the impugned Judgment and Award dated 3 rd March 1990 passed by the learned Member of the Motor Accident Claims Tribunal, Solapur. The appellants claimed compensation on account of death of one Vishnu in a motor accident. On 25 th April 1987, the said Vishnu was plying his own Moped. The other vehicle involved in the accident is a truck owned by the 2 nd respondent which was driven by the 1 st respondent. The 3 rd respondent is the insurer of the vehicle. 2 On 25 th April 1987, the deceased was returning to Sangola from Pandharpur. While returning he was carrying with him a bag of flowers and one Savitra as a pillion rider. The truck owned by the 2 nd respondent came from the direction of Sangola and there was a collision. The 2 fa372.sxw deceased sustained head injuries. The deceased was an indoor patient in General Hospital at Solapur till 3 rd May 1987 and therefore on medical advice shifted to Sasoon Hospital at Pune where he succumbed to injuries on 6 th June 1987. 3 The claim petition was contested by the 2 nd respondent by contending that the deceased himself was driving the Moped in a rash and negligent manner and he himself was responsible for the accident. The 3 rd respondent raised the same contention. 4 The learned Member of the tribunal found that the deceased himself had contributed to the accident to the extent of 50%. By taking income of the deceased from flower business at Rs.20/- per day, after making 1/3 rd deduction, the tribunal applied multiplier of 16 years. The tribunal granted a sum of Rs.2065/- on account of medicines. In addition, the tribunal granted a sum of Rs.1575/- on account of conveyance charges incurred by the 1 st appellant and members of her family. The tribunal found that the appellants were entitled to compensation of Rs.90,000/- and after deducting 50%, the tribunal granted compensation of Rs.45,000/- with interest thereon at the rate of 12% per annum. 5 The learned counsel for the appellants submitted that the appellants had examined eye witness who deposed about the rash and negligent driving of the truck by the 1 st respondent but the respondents failed to examined the driver. The learned counsel, therefore, submitted that the Tribunal ought to have accepted the evidence of the eye witness and discarded the case of the respondents. She invited my attention to the finding on this aspect and submitted that after holding the driver of the truck 3 fa372.sxw negligent, there was no material on record to show that the deceased had contributed to the extent of 50%. She submitted that the documentary evidence on record produced by the appellant will show the income of the deceased was much more than Rs.720/- per month and it was easily Rs.2000/- per month. She submitted that the compensation awarded is on the lower side. 6 The learned counsel for the 3 rd respondent supported the Award. He submitted that in fact there is no evidence of negligence on the part of the driver of the truck. He submitted that the finding recorded by the tribunal on both the counts is correct and no interference is called for. 7 I have given careful consideration to the submissions. The first issue is as regards negligence. The appellants examined one Savitra who was the pillion rider along with the deceased at the time of the accident. In the examination in chief the witness stated thus : 1...At about 5 p.m. we reached a spot where from Sangola was 3 k.m. Ahead. The spot of the accident is a curvey road. One truck arrived in high speed from Sangola side. Our motor cycle was going towards Angola along the left side of the road. The truck was arriving along the left side of the road from Sangola i.e. Towards our right side. The speed of motor cycle was moderate. The truck dashed against the motor cycle. As a result thereof Vishnu sustained head-injuries. The accident took place due to the fault of truck driver. I sustained minor injuries. The deceased as 4 fa372.sxw shifted to Sangola in a jeep. 8 All that the witness stated is that the truck arrived in high speed from opposite direction. In fact the witness stated that the truck was driven by left side of the road from Sangola i.e on the right side of the Moped of the deceased. The witness stated that the truck dashed against the Moped. Thus, even according to the said witness, before the impact, the truck was on its correct side. The witness admitted that there was a bag of flowers on the motor cycle. In the light of this evidence, the finding recorded by the learned Member of the tribunal will have to be appreciated. On the basis of the panchnama, the learned Member found that the damage to the truck was on the rear portion of the truck on driver s side. The learned Judge, therefore, observed that this is not a case of head on collision. The learned Judge found that the deceased could not avoid collision with the truck and gave a dash on the rear portion of the truck on the driver s side. The learned Judge held that the driver of the truck could go ahead but could not avoid the collision on the rear portion of the truck with Moped. The learned Judge also noted that the deceased was carrying a bag of flowers along with the pillion rider on the Moped. Thus, the learned Member of the tribunal observed that the deceased could have always taken his Moped towards its left side and avoided the accident. In the circumstances, the learned Member of the tribunal rightly found that both the driver of the truck and the deceased were negligent. Therefore, the owner of the truck was held liable to the extent of 50%. The said finding can be justified even on the basis of the evidence of the eye witness examined by the appellants. 5 fa372.sxw 9 Now turning to the issue of the quantum, the widow stepped into the witness box and stated that the deceased husband was drawing income from agriculture and flower business. Except some notebooks, no other documents were produced by the appellants. The appellants could not produce any evidence to show that the deceased was receiving income from agricultural lands in as much as revenue record produced in respect of the various lands do not show that the lands stood in the name of the deceased and only in case of one land, the name of the appellants has been mutated after the demise of the said Vishnu. The learned Judge observed that there are small diaries produced at Exh.84 to Exh.93 which are not account books and it is difficult to make head or tail out of the said diaries. Notwithstanding all this the learned Judge has taken the income of the deceased at Rs. 20/- per day i.e. Rs.600/- per month. The learned Judge applied multiplier of 16 which is in conformity with the decision of the Apex Court in case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another [(2009) 6 SCC 121]. In the present case, there were four dependents on the deceased. Thus, in view of what is held by the Apex Court in case of Sarla Verma (supra), 1/4 th deduction ought to have been made. After 1/4 th deduction is made and multiplier of 16 is applied, compensation comes to Rs.86,400/- to which the tribunal has rightly added a sum of Rs.1575/- as the travel expenses incurred by the appellants and their relatives and a sum of Rs.2055/- being the expenses on medical treatment. The learned Judge awarded a sum of Rs. 10,000/- towards the loss of consortium etc. Adding a sum of Rs.2055/- and Rs.1575/- to Rs.86,400/- the amount comes to Rs.90,030/-. 10 Deceased sustained serious head injuries in an 6 fa372.sxw accident on 21 st April 1987. He was hospitalised in General Hospital at Solapur and thereafter shifted to Sasoon Hospital at Pune where he died on 6 th June 1987. It was the first appellant who had to undergo agony of seeing the deceased dying. The deceased sustained injuries and ultimately succumbed to injuries after hospitalisation in two hospitals. Therefore, on account of loss of consortium and pain and sufferings, an amount of about Rs.20,000/- deserves to be awarded. Thus, total compensation payable can be taken as Rs.1,10,000/-. Thus, the appellants will be entitled to compensation of Rs.55,000/-. Thus, the appellants are entitled to enhancement of Rs.10,000/-. From the year 1987, onwards the rates of interest of nationalised banks have been considerably reduced. Therefore, interest at the rate of Rs.7.5% deserves to be awarded on the enhanced amount. 11 Hence, I pass the following order : i) Impugned Judgment and Award is modified. In addition to compensation granted under the impugned Judgment and Award, the respondents shall pay additional compensation of Rs.10,000/- with interest thereon at the rate of 7.5% per annum from the date of filing the claim petition till the realisation of deposit. ii)The appellants will be entitled to proportionate costs of the appeal from the respondent. iii)Time of three months is granted to the 3 rd respondent to comply with the modified award. JUDGE