1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1061 of 1996 Manohar Ramchandra Patil & Anr. .. Appellants versus Sufia Abdul Rahikman Lambate & ors. .. Respondents ... Mr.C.G. Gavnekar for the appellant Mr.J.A. Barday for the respondent absent. CORAM : D.G. KARNIK, J DATED : 10th November 2008 JUDGEMENT:- JUDGEMENT:- JUDGEMENT:- 1. Heard learned counsel for the appellant. Counsel for the respondent is absent when called. 2. This appeal is directed against the judgement and order dated 23rd April 1996 passed by the Motor Accident Claims Tribunal, Raigad (for short "Tribunal"). The respondent no.1 is the widow, the respondent nos.2 and 4 are the daughters and the 2 respondent no.3 is the son of Abdul Rahiman Mainuddin Lambate (for short "the deceased") who died in the vehicular accident in question. On 16th August 1988 on Usaroli, Talekhar Road, Murud taluka, the deceased was riding a motorcycle bearing Registration No. MTY 4414 and was going towards Supegaon, the appellant no.1 driving a jeep bearing registration no.MZN - 2716 belonging to the appellant no.2 came from the opposite side and gave a dash to the motorcycle of the deceased. On account of the dash, the deceased was thrown away from the motorcycle and died on the spot. The appellant no.1 did not report the accident to the police but ran away from the spot. He was subsequently prosecuted for the offence punishable u/s.279, 337, 338 and 304A of the IPC before the Judicial Magistrate, First Class, Murud but was acquitted. After the accident, the respondents filed a claim for compensation before the Tribunal. In the application, respondents contended that the deceased was a forest contractor and was earning a monthly income of Rs.2,500/-. The respondent no.1 is a widow and respondent nos. 2 to 4 were minors at the time of the accident and filing of the claim application and had no other source of income. They were fully dependent on the income of the deceased. On account of the death of the deceased, they have lost support of the income of the deceased and therefore they 3 claimed compensation of Rs.1,00,000/- (Rupees One Lakh). 3. The appellant no.1 filed a written statement contesting the claim. The appellant no.2, the owner of the vehicle did not file any written statement. The appellant no.1 admitted that on 16th August 1988 he was driving the jeep in question and was driving from Roha to Murud by Usaroli road. He admitted that the deceased came on a motorcycle from the opposite direction and that there was a collision of the two vehicles. He however contended that he was driving the jeep at a very slow speed and though he had blown the horn the deceased could not control the motorcycle which was coming at a very high speed. It was the deceased who gave dash to the jeep at the middle portion. The appellant no.1 was not at all negligent and the accident occurred due to the rash and negligent driving of the deceased himself. 4. Respondent no.1 examined herself as a witness on the point of income. She of course had not witnesses the accident. Her evidence therefore about the factum of negligence may not be of much assistance. However, a spot panchnama as also the report of the Motor Vehicle Inspector who had examined the vehicle were produced and was admitted 4 in evidence. The appellant no.1 examined himself as a witness. After the consideration of the oral and documentary evidence, the Tribunal came to the conclusion that the appellant no.1 was driving the jeep in a rash and negligent manner and the accident occurred because of his negligence. The Tribunal also held that the deceased was earning Rs.2,500/- per month as contractor and after deducting personal expenditure, he was contributing atleast Rs.1,500/- p.m. towards the family of the respondents. The Tribunal accordingly held that the yearly loss to the family was Rs.18,000/-. The Tribunal however did not accept that the age of deceased was 40 years as contended by the respondents but held that the deceased was about 47 years of age. The Tribunal accordingly applied a multiplier of 13 and and held that the total loss to the family was Rs.18,000/- x 13 = Rs.2,34,000/-. The Tribunal restricted the award of compensation to Rs.1,00,000/- as the respondents had claimed only Rs.1,00,000/- in the claim application. Being aggrieved by the decision of the Tribunal the award of compensation of Rs.1,00,000/-, the appellants are in appeal. 5. Learned counsel for the appellants submitted that the Tribunal erred in holding that the appellant no.1 was negligent in driving the vehicle and that 5 the accident was caused because of his negligence. He submitted that the appellant no.1 was prosecuted for the alleged rash and negligent driving but was acquitted by the Magistrate. In view of the fact that the appellant no.1 was held not negligent by the Magistrate, in the criminal proceedings, the Tribunal ought to have held that the appellant no.1 was not driving the jeep rashly and negligently. He submitted that in respect of the same act, the appellant is held to be not negligent by one Court (Judicial Magistrate) and negligent by another Court(Tribunal). He submitted that since the decision of the Magistrate acquitting the appellant no.1 on the charge of negligence had become final before hearing of the claim application by the Tribunal, the Tribunal ought to have followed the said decision and in any event ought to have taken that decision into consideration as a relevant fact. 6. In my view, the decision of a Criminal Court in a criminal trial holding an accused guilty or not guilty of a charge of rash and negligent act is not binding on a civil court/Tribunal in a suit or an enquiry for compensation on the ground of negligence. Firstly, it is settled principle of law that in a criminal trial, guilt of the accused must be proved beyond reasonable doubt while in case of a civil 6 dispute the allegation giving rise to a cause (in this case of negligence) is required to be proved only by preponderance of probability. In a civil case, on consideration of the evidence by applying the preponderance of probability, a Court may come to the conclusion that a person is guilty of negligence. However, in a criminal trial, the same person accused of negligence may be acquitted if the evidence falls short of proving the guilt beyond reasonable doubt. The civil case may be heard and decided first and a person may be held guilty of negligence by weighing of evidence applying the principles of preponderance of probability. In the subsequent criminal trial, the criminal court on the very evidence which may be duplicated in the proceedings before it come to the conclusion that the guilt of negligence is not proved beyond reasonable doubt. Conversely the Criminal Court may acquit an accused personwho may be held guilty of a civil wrong on the very same evidence adduced before it. There is always a possibility of the decision of the Civil Court and the Criminal Court being different on the same point on the same evidence. 7. Secondly, u/s.43 of the Indian Evidence Act 1872, judgments, orders or decrees other than those mentioned in sections 40, 41 and 42 are irrelevant, 7 unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of the Evidence Act. Section 40 says that existence of a judgement, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact. A judgement of a civil court which operates as a res judicata and bars a second suit is relevant u/s.40 in the second suit. A judgement of a criminal court which prevents a second trial on the principle of autrefois acquit (section 300 of the Code of Criminal Procedure) is relevant if a second criminal trial is commenced. However, a judgement of the criminal court about a rash and negligent act of an accused person is not relevant when the person is shed for the tort of negligence in a civil proceedings. Section 41 applies in respect of judgements in probate, matrimonial, admiralty or insolvency jurisdiction. They are judgements in rem and are relevant u/s.41. Section 42 provides the judgements, orders or decrees other than those mentioned in section 41, are relevant if they relate to a matter of public nature relevant to the enquiry, but such judgements, orders or decrees are not conclusive proof of that which they state. Whether an act (of driving) of a person was negligent or not is not a matter of public nature and as such it is not 8 relevant u/s.42 of the Evidence Act. In my view, therefore, the judgement of Judicial Magistrate acquitting the appellant no.1 of the charge of negligence was not relevant u/s.43 of the Evidence Act and has therefore rightly been ignored by the Tribunal. 8. The Learned Member of the Tribunal has elaborately considered the evidence to come to the conclusion that the appellant no.1 was negligent in driving the jeep. At the time of the accident, appellant no.1 was driving the jeep from North to South and the deceased was driving the motorcycle form the opposite direction i.e. South to North. The jeep of appellant no.1 was found to be on the western side of the road after the accident. The panchnama notes that the jeep was lying in the ditch on the western side and the brake marks of the jeep were also on the western side of the road. This clearly establishes that the jeep was driven on the wrong side of the road. The panchnama reveals brake marks of the jeep of 39 feet in length. This shows that the jeep was being driven at a fairly high speed. At the relevant spot the road was bending. At a bend, speed of the jeep was certainly excessive. The jeep after the accident went in a ditch on the wrong side of the road. The appellant no.1 - driver 9 of the jeep did not explain how the jeep fell in the ditch away from the road. The jeep was examined by the Motor Vehicle Inspector. His report is at Exhibit 40. The report shows that there was no mechanical defect in the jeep. This therefore certainly was not a case of failure of brakes resulting into the jeep going to the ditch after the accident but a case of clear negligence. Subsequent conduct of the appellant no.1 is also relevant. After the accident, appellant no.1 did not report the accident to the police but ran away. The appellant in his examination in chief did not explain this conduct. Under section 8 of the Evidence Act r/w Illustration (i) thereto, conduct of the appellant no.1 immediately after the accident is a relevant fact. The conduct of the appellant no.1 in running away from the spot without even caring to arrange for a medical help or carrying the deceased to the hospital or even reporting the matter to the police is certainly a circumstance which militates against the innocence (non-negligence) of the appellant no.1. The learned Member of the Tribunal after taking into consideration all these relevant facts came to the conclusion that the appellant no.1 was negligent in driving the jeep. In my view, the Tribunal has properl scrutinised the evidence and has rightly come to the conclusion that the appellant no.1 was 10 negligent in driving the vehicle. 9. As regards the quantum, it is true that there was no evidence except the word of respondent no.1 that the deceased was earning Rs.2,500/- p.m. from his business as a contractor. The deceased was a petty contractor and therefore, he may not have maintained the accounts and therefore there may not be any documentary evidence available to prove his income. The fact however remains that the deceased was maintaining the family of five fairly decently and there was no other earning member in the family. In the circumstances, the view taken by the Tribunal that the deceased was earning reasonable income cannot be faulted with. Even in the year 1988, a reasonable income of a contractor could reasonably be Rs.2,500/- p.m. Even if we assume that the income was a bit less say Rs.2,000/- per month, it cannot be said that the deceased was not spending Rs.1,500/- on the family after deducting 1/4th of the income for personal expenditure of the deceased. Assessment by the Tribunal that loss of income to the family of Rs.1,500/- per month is a possible view and in the absence of any other evidence to the contrary cannot be said to be an erroneous view. The age of the deceased, according to the respondent was 40 years. Post mortem report estimates the age as 47 years. 11 The age given by Doctor who conducted the post mortem would be at best be an estimate of age as no ossification test or any other medical test was performed. Assuming worst against the respondent, even if the age of the respondent is taken at 47 years, the multiplier of 13 was a proper multiplier taking into consideration that the deceased was a self employed person, a contractor and could have easily worked upto the age of 60 years. With this multiplier the loss of income to the family works out to Rs.2,34,000/-. The compensation awarded of Rs.1,00,000/-, limited to the claim made by the respondents, was therefore just and proper compensation. If at all there was any error it was on the lower side. 10. In the circumstances, I find no error in the decision of the Tribunal. Appeal is accordingly dismissed with costs which are quantified at Rs.5,000/-. (D.G. KARNIK, J)