1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.315 OF 2005 Shri Sergio Dias, S/o. Shri Damaso Dias, r/o. House No.13, Ward No.1, 31st January road, Panaji, Goa. …. Appellant V/s 1. Shri Gervazio Norbert Peres, r/o. 5, Fairlands, 3rd floor, L.J. Road, Mahim, Bombay – 16. 2. Smt. Maria Lourdes Rosita Peres, r/o.5, Fairlands, 3rd floor, L.J. Road, Mahim, Bombay – 16. 3. Mrs. Maria Socorina Vaz, r/o. Casant ward, House No.880/1, Cansa, Tivim, Bardez-Goa. Represented by her power of attorney, Mr. Carlos Vaz, r/o. Casant ward, House No.880/1, Cansa, Tivim, Bardez-Goa. 4. Mr. Carlos Vaz, r/o. Casant ward, House No.880/1, Cansa, Tivim, Bardez-Goa. … Respondents Shri P.A. Kholkar, Advocate for the Appellant. Shri S.R. Rivonkar, Advocate for Respondents Nos.3 & 4. CORAM : F.M. REIS, J. DATE : 4th MARCH, 2011 JUDGMENT : The above appeal challenges the judgment and award passed in Claim Petition No.8/1996 dated 19/07/2005. 2 2. A Claim Petition came to be filed by the respondents nos.1 & 2 against the appellants and respondents nos.3 & 4 on the ground that the respondents nos.1 & 2 are the parents of the deceased Grenville Joaquim Peres, who expired on account of the injury sustained in a motor vehicle accident on 10/09/1995, on the cross roads, opposite Bank of Baroda, near Azad Maidan, Panaji. 3. It was the contention of respondents nos.1 & 2 that on 10/09/1995 between 3.00 a.m. and 4.00 a.m., the said deceased was proceeding on a bullet motorcycle bearing no.MH-01-D-7361 when he was given a violent dash by Kinetic Honda Scooter bearing no.GA-01-D-0173 which was driven by late Alfred Vaz, who is the son of respondent no.3. It is further their case that the said deceased Grenville Joaquim Peres, as well as, the said Alfred Vaz had sustained injuries as a result of the said accident and both of them expired having succumbed to the injuries at Goa Medical College. It is further their contention that the said deceased Grenville was the only son of the claimants/respondents nos.1 & 2 and that he was working on board the ship M.V. Berge Bragd and that he was earning monthly income of Rs.1,981.99 US dollars. Accordingly, the Claim Petition came to be filed claiming a 3 compensation to the tune of Rs.20,67,000/- from the appellant, who was the owner of the Kinetic Honda Scooter and the respondent no.3, who was the mother of the said deceased and the respondent no.4, who was the brother of the said deceased Alfred. The learned Presiding Officer of the Motor Accident Claims Tribunal, Panaji after framing of issues and recording of evidence partly allowed the Claim Petition and awarded compensation to the tune of Rs.2,80,000/- together with interest at the rate of 6% per annum. Being aggrieved by the said judgment, the appellant has preferred the present appeal. 4. Shri Kholkar, the learned Counsel appearing for the appellant has assailed the impugned judgment and pointed out that there is no evidence on record to substantiate the contention of the respondents nos.1 & 2 that the deceased Alfred was riding his scooter in a rash and negligent manner. The learned Counsel further submitted that the accident occurred on account of the rashness and negligence on the part of the deceased Grenville, who was riding the bullet motorcycle and on account of the fact that he came in a very high speed, he dashed against the scooter ridden by the deceased Alfred. Learned Counsel further took me through the evidence on record and pointed out that there is no material 4 produced by the respondents nos.1 & 2 to the effect that the said deceased Alfred was responsible for the accident. The learned Counsel further submitted that the appellant is not liable to pay any compensation as according to him the scooter was taken by the deceased Alfred without the consent of the appellant. The learned Counsel further submitted that in any event the amount awarded by the Tribunal is excessive as according to him the said deceased Grenville was a bachelor and considering the income fixed by the Tribunal is Rs.6,500/-, 50% ought to have been deducted on account of personal expenses. Learned Counsel, as such, pointed out that the impugned judgment and award deserves to be quashed and set aside. 5. The respondents nos.1 & 2 though served failed to remain present. Shri S.R. Rivonkar, the leaned Counsel appearing for the respondents nos.3 & 4 pointed out that the respondents nos.3 & 4 have no income which they have derived from the deceased and, as such, they are not responsible to pay any amounts to respondents nos.1 & 2. 6. Having heard the learned Counsel and on perusal of records, the following point for determination arises in the present appeal: 5 POINT FOR DETERMINATION: (i) Whether the learned Tribunal was justified to award compensation to the respondents nos.1 & 2 to the tune of Rs.2,80,000/- together with further interest. (ii) Whether it is established that that the scooter was taken without the consent of the appellant. 7. From the submissions adduced by learned Counsel appearing for the appellant, it can be deduced that the impugned judgment and award is assailed on two counts. The first is that there is no evidence on record to substantiate the findings of the learned Tribunal to the effect that the rider of the scooter was riding in a rash and negligent manner. The next contention is that the appellant was the owner of the scooter and, as such, was not liable to pay the compensation to the respondents nos.1 & 2. From the evidence adduced by the parties, it demonstrates that the accident took place at the cross junction opposite Bank of Baroda near Azad Maidan. The evidence further discloses that on 10/09/1995 between 3.00 a.m. and 4.00 a.m., the son of the respondents nos.1 & 2 Grenville was proceeding from Panjim to Assagao on a bullet motorcycle and when he reached the cross road opposite Bank of Baroda near Azad Maidan he was given a sudden and violent dash 6 by the Kinetic Honda Scooter which was ridden by the said deceased Alfred who was the son of respondent no.3. CW1/Gervazio Peres, who has been examined has stated that the accident occurred on account of rashness and negligence of the rider of the scooter, but however, in the cross-examination the said witness has admitted that he was not an eye witness to the accident. The said claimants have not examined any other person who was a witness to the said accident. RW1/Sergio Dias, who is the appellant herein has filed his affidavit and has stated that he has a brother by name Derrick and who was running a restaurant in Panjim in the name of “Rio bar” opposite River Navigation Department, Panjim, Goa. He has also stated that he was about to start his Kinetic Honda Scooter when he was informed by one of his friends that he was required in the hall and accordingly he left the scooter and went to the hall. When he came down he saw that his scooter was taken by Alfred Vaz, who had also come to attend the said function. He has further stated that he was standing on the pavement for said Alfred Vaz and at that time he saw the bullet motorcycle going in a high speed and with a loud sound with a girl sitting on the pillion. The bullet motorcyclist stopped his motorcycle near the bar and after the girl got down he left and told the girl that he was going to search for another friend. He was 7 thereafter informed that the said motorcyclist was involved in the accident and according to him it was the said Grenville Peres. In the Cross-examination, he has admitted that the scooter cannot be started without putting the key in the ignition. He has further stated that the said motorcyclist riding the bullet was about 23 years old. He has further stated that the impact was on the left hand side of the scooter. He has concluded that the said bullet was ridden in a rash and negligent manner. The next witness examined by the appellant is Brian Caldeira, who stated that he had also attended the said party and has stated about the fact that the motorcyclist had come on a bullet with a girl. He has further stated that when he visited the site of the accident he found that the left hand side of the scooter was completely dented. In the cross- examination, he has admitted that he had also taken drinks/ alcohol which were served at the party and that the party was over at about 1.00 a.m. Another witness examined is Ryan Semelhago, who has also stated the fact about the said party and that the said Grenville had left a girl at the place of the said restaurant. Another witness examined is Mrs. Maria Vaz, who is the respondent no.3. She has stated that the respondents nos.1 & 2 had falsely stated that their deceased son was working on board the ship. She has further stated that as per the documents produced of the scene of the 8 accident, it transpires that the said deceased Grenville did not stop at the cross road before proceeding on the cross road, since he was coming in the internal road. 8. The Tribunal has appreciated the evidence on record on the ground that there were no eye witnesses, who have been examined to state the manner in which the accident occurred. The Tribunal has also found that the said girl who was stated to be known to the appellant has not been examined. The Tribunal also found that the bullet motorcycle was heavy vehicle as compared to the Kinetic scooter and any slight dash can cause extensive damage. The scene of offence panchanama discloses that the Kinetic Honda Scooter had fallen on the left hand side which could be the cause of the damage to the scooter. The Tribunal has examined Exhibit 31 (colly) and found that it shows that the scooter had fallen almost in the middle of the junction at a distance of 2.20 metres from the motorcycle, which fact suggests that the bullet motorcycle was not at a fast speed. The Tribunal found that the evidence however, discloses that the accident occurred at the cross roads and, as such, the only inference which could be drawn is that the accident had occurred on account of rashness and negligence of both the riders. The Tribunal after examining the evidence on record, as far as the 9 income of the deceased is concerned, has found that the income of the deceased was Rs.6,500/- per month. The Tribunal further found that the appellant was the owner of the scooter and the contention that the scooter was taken without his consent was rejected. The Tribunal found that though there were many persons at the site there was no evidence to establish the said contentions adduced by the appellant. 9. On perusal of the evidence on record as well as the impugned judgment, there is no dispute that the accident occurred at the cross junction. There is nothing disclosed to the fact that the deceased Alfred was solely responsible for the said accident. There is also no material on record to suggest that the deceased Grenville was the sole cause of the accident. Considering the position of the scooter and motorcycle and as the accident occurred on the cross junction, the Tribunal was justified to come to the conclusion that both the riders of the scooter and motorcycle were rash and negligent, which resulted in the accident. The findings of the Tribunal to that extent cannot be faulted. There is nothing on record to suggest that the deceased Alfred took any caution to avoid the said accident and such lack of diligence and/or caution on the part of the motorcyclist, who are approaching the cross junction 10 itself discloses that there was negligence of both of them which resulted in the accident. The findings of the Tribunal on that count cannot be said to be erroneous or contrary to the evidence on record. As such, the findings of the learned Tribunal that both the riders were responsible for the accident are affirmed. 10. Dealing with the compensation awarded by the Tribunal, after appreciating the evidence on record, the Tribunal came to the conclusion that the income of the deceased Grenville was Rs.6,500/- per month. There is no dispute that said Grenville was earlier working on board the ship and the said aspect has been established by examining the witness by the respondents nos.1 & 2. The Tribunal has come to the conclusion that as on the date of the accident there was no evidence to suggest that said Grenville was working on board the ship. On examination of the oral evidence on record, the Tribunal was justified to come to the conclusion that the income of the deceased should be considered to be Rs.6,500/- per month. The Tribunal after fixing the said monthly income of the deceased has effected deduction of 1/3rd on account of personal expenses. There is no dispute that the deceased Granville was a bachelor. Considering the judgment of the Apex Court reported in 2009 (6) SCC 121 in the case of Sarla Verma (Smt.) & Ors. V/s. 11 Delhi Transport Corporation & Anr., a deduction on account of personal expenses in such cases should be 50%. The Tribunal was, as such, not justified to deduct 1/3rd on account of personal expenses. Multiplier fixed by the Tribunal is 10 which cannot be faulted. After effecting deduction of 50% on account of contributory negligence and on the basis of the said multiplier of 10 and after deducting 50% on account of personal expenses, the amount works out to Rs.1,95,000/-. Besides the said amount, the respondents nos.1 & 2 will be entitled to a sum of Rs.2,000/- for funeral expenses and Rs.2,500/- towards transport expenses which work out to Rs.4,500/-. Total amount, as such, payable by the appellant and respondents nos.3 & 4 to the respondents nos.1 & 2 work out to Rs.1,99,500/- which is rounded up to Rs.2 lacs. The first point for determination is answered accordingly. 11. As far as the second point for determination the tribunal on the basis of evidence on record has rightly come to the conclusion that there is no material produced by the appellant to justify his contention that the scooter was taken without his consent. No witness has been examined to substantiate the said claim. Apart from that the evidence discloses that the scooter was left along with the key, and it was taken with the keys. All these facts suggest that 12 the contention of the appellant that the scooter was taken without his consent cannot be born out from the record. The finding of the Tribunal to that effect cannot be disturbed. The second point for determination is answered accordingly. 12. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 19/07/2005 is modified and the appellant and respondents nos.3 & 4 are directed to jointly and severally pay a sum of Rs.2 lacs to the respondents nos.1 & 2 together with interest thereon at the rate of 6% per annum from the date of the filing of the Claim Petition up to the actual payment. (iii) Any amount paid under Section 140 of the Motor Vehicles Act shall be deducted. (iv) The appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-