1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.872 OF 1995 Smt.Kamal Dattatraya Suryavanshi & Ors. .. Appellants versus Shivaji Dattatraya Pawar & Ors. .. Respondents Mr.C.G.Gavnekar for the appellants. Mr.G.S.Hegde a/w Mr.C.M.Lokesh i/by G.S.Hegde & Associates for the respondents. CORAM : A.S.OKA, J. DATE : 26th November 2009. JUDGMENT: . The original claimants in claim petition filed under section 110A of the Motor Vehicles Act, 1939 have taken an exception to the judgment and award by which the claim petition filed by them has been dismissed on the ground that there is no proof of negligence. The compensation was claimed on account of death of Dattatraya Shamrao Suryavanshi in a motor accident which occurred on 23rd October 1984. The 1st appellant is the widow of Dattatraya. The 2nd to 5th appellants are minor children of Dattatraya. The 6th appellant was the mother of deceased Dattatraya who died during the pendency of the proceedings and the 1st appellant is one of her legal representatives. 2 2. The case of claimants is that the deceased Dattatraya was proceeding on his scooter towards Shivaji statue from Bindu Chowk at Kolhapur. A bus owned by the Kolhapur Municipal Transport had stopped near the bus stop and the passengers from the said bus were alighting. The deceased Dattatraya was overtaking the said bus. In the meanwhile, a bus owned by the 2nd respondent Maharashtra State Road Transport Corporation which was driven by the 1st respondent came from the backside of deceased Dattatraya from Bindu Chowk side. The allegation is that the 1st respondent driver was driving the bus in a rash and negligent manner. The allegation is that the bus of the 2nd respondent gave a dash to the scooter which was being plied by deceased Dattatraya. The deceased Dattatraya was thrown away from the scooter and he fell down and sustained severe injuries. He succumbed to the injuries on the spot. The allegation is that his scooter dragged ahead as it was entangled with the bus owned by the 2nd respondent. The claim was contested by the 2nd respondent. The parties adduced evidence. The appellants examined the 1st appellant-widow and one Ashok Balkrishna Mandlik who is stated to be an eye-witness to the accident. The appellants examined one Gajanan Suryawanshi as a witness for proving the income of the deceased. The 1st respondent driver was examined by the respondents. The Tribunal came to the conclusion that negligence on the part of the 1st respondent was not established. As far as compensation is concerned, the Tribunal held that if negligence could have been established, the appellants would have been entitled to claim Rs. 3 80,000/- inclusive of no fault liability. 3. The learned counsel appearing for the appellants has taken me through the evidence and documents on record. He submitted that evidence of the eye-witness Ashok clearly proves that when the deceased was overtaking the stationery bus, the 1st respondent who was plying the bus of the 2nd respondent tried to overtake the stationary bus as well as the scooter and in the process gave a dash to the scooter. He pointed out that the scooter got entangled with the bus of the 2nd respondent and was dragged upto quite some distance. He submitted that said evidence establishes negligence on the part of the 1st respondent. Inviting my attention to the panchanama at Exhibit 34 he submitted that there was some damage to the bus of the 2nd respondent. He submitted that very fact that the scooter and the deceased were found in front of the bus of the 2nd respondent establishes the case of the appellants. 4. The learned counsel appearing for the 2nd respondent S.T.Corporation pointed out that the damage caused to the S.T bus is minimum and in any case the damage caused on the front side is at such a height that it could not have been caused by impact of the scooter. He pointed out that the major impact by the scooter is on the rear side of the Kolhapur Municipal Transport bus which was stationery at that time. He submitted that the witness Ashok Mandlik is a got-up witness as is clear from paragraph 3 of his cross-examination. He submitted that what is stated in paragraph 3 of 4 the cross-examination shows that he has not seen accident. He submitted that even evidence of the driver clearly establishes that there was no negligence on his part and therefore, the Tribunal was right in recording finding on issue of negligence in favour of the respondents. 5. I have given careful consideration to the submissions. I have perused the record. The learned Member of the Tribunal has observed that there was no written statement filed by the 1st respondent driver. Therefore, it will be necessary to refer to the record of the claim petition. Perusal of the record shows that written statement has been filed by the 2nd respondent Corporation on 17th September 1985. In paragraph 12 of the written statement, it is contended by the 2nd respondent that the 1st respondent was driving the bus very slowly as he came near stationery bus of Kolhapur Municipal Transport. It is alleged that at that time the deceased came in a fast speed and was trying to pass through between the bus of the Kolhapur Municipal Transport and the bus of the 2nd respondent. It is alleged that he gave a dash to the Kolhapur Municipal Transport bus on the left hand side. It is alleged that right side wheel on the rear side of the Kolhapur Municipal Transport bus was given a dash by the deceased as a result of which he was thrown on the ground. Only after the persons in the locality started shouting that one person has fallen down, the 1st respondent stopped the bus. Therefore, specific case made out by the 2nd respondent is that when the 1st respondent was trying to over-take stationery bus of Kolhapur Municipal Transport, the deceased tried to pass through the gap between 5 two buses and in the process gave a dash to the stationary bus. Though the Tribunal has observed that there is no written statement filed by the 1st respondent-driver, there is a pursis filed on record by the advocate for the 1st respondent adopting the written statement of the 2nd respondent. 6. Exhibit 37 is the first information recorded by the police on very day in which there is reference to a statement of witness Ashok Balkrishna Mandlik. The certified copy of the spot panchnama is at Exhibit 34. As contended by the learned counsel appearing for the 2nd respondent, the panchnama discloses damage to the bus of the Kolhapur Municipal Transport. However, the panchnama also records that on the front left side of the bus of the 2nd respondent at height of 33 inches there is a mark of brushing by black rubber. There is a mark on side mud-guard resulting in discolouration. At a distance of 8 feet from the mud-guard there is again a mark which shows discolouration. On the date on which the accident occurred, the first information report was recorded at 5.00 p.m which contains reference to a statement of witness Ashok Mandlik examined by the appellants. Therefore, it cannot be said that witness Ashok Mandlik is a got-up witness. It will be necessary to consider his evidence. In paragraph 3 of the cross-examination the witness stated as follows: “... I saw after I heard noise at the spot and not before that. It never happened that the scooter was between in 2 vehicles i.e buses when the accident took place. It is not true to say that I do no see the accident and I do not know anything about the accident. It is not true to say that I had not given clothes for tailoring in the shop of Kakade and I had no occasion to go to the shop on the day of accident”. 6 This will have to be read along with what is stated in the examination-in- chief. In paragraph 1 the said witness has stated thus: “1. On 22-10-1984 I started from my house to bring clothes from tailoring shop of Kakade Tailors, Shivaji Putala, Kolhapur, pertaining to Dipawali festival. I was going from eastern side to the western side. When I started by the side of Lucky Stores, there was bus stop to my left side while going ahead. One bus was stopped there. One scooterist came from my back side and when he was proceeding ahead after overtaking the bus which was stopped there one S.T.bus came behind him and that S.T.bus dashed to the scooterist and proceeded ahead. I went near the scooterist and saw him. The scooterist had fallen down on supine position. He had head injury which was bleeding. I felled he must have died on the spot. The scooter was dragged by S.T upto some distance when the S.T dashed the scooterist. I cannot tell what was the speed of that S.T bus then. The accident took place on account of stopping the bus on the road and also on account of fault of the driver of the S.T.bus which dashed to scooterist. The bus which gave dash to scooterist was bearing No.8446. I do not remember now the scooter number. 2. The accident took placed on the road which was one way in use. That road was allowed for traffic to go to Shivaji Statue from Bindu Chowk. Bindu Chowk lies towards eastern side and Shivaji Statue lies towards western side of that road. The width of the road is about 40 feet where the accident took place.” In the cross-examination he has stated that the scooterist was driving the scooter very slowly. The sentence relied upon by the learned counsel appearing for the respondents is in paragraph 3 of the cross examination quoted above cannot be read to mean that the witness has not seen the accident. It must be noted here that the spot panchnama at Exhibit 34 as well as the complaint at Exhibit 37 show that the ill-fated scooter and dead 7 body was found in front of the bus owned by the 2nd respondent. 7. In this context, it will be necessary to consider the evidence of 1st respondent driver. In paragraph 2 he has pleaded ignorance about the deceased overtaking the Kolhapur Municipal Transport bus. In paragraph 2 of his deposition he has stated thus: “... It was about 10.15 a.m. After crossing Bindu Chowk, Shivaji Statue and proceeding ahead, I found one S.T.bus standing at S.T.stand in front of Shetakari Sahakari Sangh. That spot was pertaining to City City. I was overtaking that city bus which was standing by the side of that stop after giving signal with my hand. Persons in that Bazar area asked me to stop the bus saying somebody had fallen down towards back side. I stopped the bus and got down from that bus. I saw my bus and found that my bus had sustained no damage. I saw the back portion of city bus towards its right side pressed inside and by the side of that bus one man found lying down.” It must be stated here that in the written statement of the 2nd respondent, a case was specifically made out that while bus of the 2nd respondent was overtaking Kolhapur Municipal Transport stationery bus, an attempt was made by the deceased to pass through gap between the two buses and in the process gave a dash to right hand side portion of the bus of the Kolhapur Municipal Transport and as a result he fell down. The said written statement was adopted by the 1st respondent. However, in the examination- in-chief the 1st respondent has come out with a totally different case. In fact, his case is that he has not even seen the deceased. His case is that when he heard the shouts, he stopped the bus and thereafter he realised that the deceased has suffered an accident. Therefore, the 1st respondent has come 8 out with a totally different version in the examination-in-chief. He has not come out with a story that the deceased attempted to pass through a gap between the two buses and in the process gave a dash to the Municipal Transport stationery bus. Thus, the case came out at the time of recording of evidence by the respondents is completely contrary to the stand taken in the written statement. 8. On the other hand, as stated earlier, witness Ashok Mandlik cannot be said to be a got-up witness as his name appears in the first information report registered on the date of the accident at 5.00 p.m. In the examination- in-chief his version is that bus of the 2nd respondent gave a dash to the scooter and dragged the scooter up to a certain distance. In the cross- examination of the said witness, there is no suggestion given that the said version in examination-in-chief is incorrect. The statement of the witness that the scooter was dragged to some distance by the bus of the 2nd respondent has gone unchallenged. This aspect considered conjointly with the stand taken by the 1st respondent in evidence, it proves the case made out by the appellants as regards negligence on the part of the 1st respondent. The 1st respondent in his evidence has taken a stand which is not consistent with the plea in the written statement. 9. Perusal of the impugned judgment shows that the learned Member of the Tribunal was impressed by the fact that the scooter has more damage on its left hand side and therefore, the diseased must have given a dash to 9 the stationery bus. However, the Tribunal has not considered the evidence of Ashok who has stated that the scooter was dragged by the bus of the second respondent up to a certain distance. Therefore, this was a case where negligence on the part of the 1st respondent was clearly established. 10. As far as quantum is concerned, the 1st appellant has come out with a case that her husband was earning Rs.2,200/- per month from his cycle-taxi shop and his annual income was Rs.50,000/- to Rs.55,000/-from a bull- dozer owned by him. According to her, the deceased had agricultural income. The witness No.3 Gajanan Shamrao Suryavanshi has been examined to prove that the deceased was a tax-payer and was used to give on hire a bull-dozer at the rate of Rs.180/- per hour. The income tax assessment orders of the deceased have been placed on record. The assessment order of the assessment year 1982-83 discloses that the taxable income of the deceased from business was Rs.11,720/-. The assessment order of the assessment year 1984-85 shows that his taxable income was Rs.15,000/- from the business. The age of the deceased was admittedly 42 years. The assessment orders refer to the taxable income of the deceased. The Tribunal, in my view,has rightly proceeded on the footing that income of the deceased must be taken as Rs.2,000/- per month. This figure of Rs.2,000/- per month is arrived at after taking into consideration prospects of future earnings. After making a deduction of Rs.600/- on account of personal expenditure of the diseased, the monthly dependency will be Rs. 1400/- and yearly dependency will be Rs.16,400/-.0n the basis of 10 decision of the Apex Court in the case of Sarla Verma (Smt) and Ors. Vs. Delhi Transport Corporation & Anr. [(2009) 6 Supreme Court Cases 121], the multiplier of 14 will have to be applied. Applying the said multiplier , the total dependency comes to Rs.2,35,200/- .Adding usual amount of Rs.15,000/- the compensation amount comes to Rs.2,50,200/- which can be rounded off to Rs.2,50,000/-. 11. Considering the fact that claim is of the year 1985, interest will have to be fixed at the rate of 7.5% per annum. It is clarified that the amount of Rs. 2,50,000/- is inclusive of no fault liability. 12. Hence, the appeal must succeed and I pass the following order: : O R D E R : (a) The impugned judgment and award is quashed and set aside. (b) The claim petition filed by the appellants is allowed. (c) The respondents are directed to pay compensation of Rs. 2,50,000/- together with interest thereon at the rate of 7.5% from the date of filing of claim petition till the date of deposit. (d) The appellants will be entitled to recover the proportionate costs of the claim petition and appeal from the respondents. (e) Time is granted till 31st March 2010 to the 2nd respondent to deposit the amount. (f) After the amount is deposited with the Tribunal, appropriate order will be passed by the Tribunal regarding 11 disbursement/investment of the compensation amount after hearing the parties. (g) The appeal is partly allowed in above terms. (A.S.OKA,J)