1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.351 OF 1995 The State of Maharashtra .. Appellant versus Smt.Sitabai C. Khopakar & Ors. .. Respondents Smt.S.V.Sonawane, A.G.P for the appellant. CORAM : A.S.OKA, J. DATE : 19th December 2009. ORAL JUDGMENT: . Heard learned A.G.P for the appellant. None appears for the respondents. The challenge in this appeal is to judgment and award dated 30th April 1994 by which the claim petition filed by the 1st to 3rd respondents under section 110-A of the Motor Vehicles Act, 1939 was partly allowed. The compensation of Rs. 1,26,000/- inclusive of no fault liability has been granted alongwith interest at the rate of 12% per annum. 2. The case of the 1st to 3rd respondents is that the deceased Chandar Khopakar used to carry cattle from one destination to another and used to give the same to businessmen who used to deal with the said animals. On 27th September 1988 he was carrying she-buffalos from Pachwad to Satara. He was walking alongwith she-buffalos by the left side of the road. At that time, a jeep owned by the Zilla Parishad came from rear side in a high speed and gave a 2 dash to him and one she-buffalo. As a result of the impact, the deceased Chandar Khopakar died on the spot. The appellant is the insurer of the vehicle. The written statement was filed by the Zilla Parishad contending that the deceased was walking on the road alongwith cattle without taking proper care. It was contended that a truck came from opposite side in rash and negligent manner. It was contended that because of the powerful lights and horn of the truck, the cattle got wild. The jeep was in a slow speed and the driver stopped the jeep. It is contended that the cattle got wild and dashed against the jeep and in the process trampled the deceased. 3. The Tribunal recorded a finding that the accident occurred due to negligence on the part of the driver of the jeep. By taking dependency at Rs.700/- per month, the Tribunal adopted an multiplier of 15 and granted compensation of Rs.1,26,000/-. 4. The learned A.G.P appearing for the appellant submitted that there was no evidence to show that the driver of the jeep was driving vehicle in a rash and negligent manner. She submitted that the accident occurred as the cattle got wild due to bright lights of the truck coming from the opposite direction and there is no negligence on the part of the driver of the jeep. He submitted that the claimants claimed that the deceased was supplying cattle to the businessmen who used to sell the same. She pointed out that the only work done by the deceased was of taking the cattle from one place to another and therefore income of Rs.1500/- per month of the deceased as pleaded by the claimants is exorbitant. She submitted 3 that there is no evidence adduced by the claimants to prove the income and the witness Sadashiv examined by the claimants could not produce any evidence. She submitted that the dependency taken at Rs.700/- per month is on the higher side. 5. I have given careful consideration to the submissions. The driver of the jeep was examined. The contention in written statement was that he was driving the vehicle slowly. The contention is that the truck came from the opposite direction in a rash and negligent manner and due to powerful lights and horn of the truck, the cattle got wild. The case is that the cattle dashed against the stationery jeep and in the process the deceased was trampled. 6. The learned Member of the Tribunal on perusal of the panchnama found that the jeep was standing on its wrong side. Considering the place where jeep was found, the learned Member of the Tribunal has rightly rejected the case made out by the driver of the jeep that it was the cattle which gave dash to the stationery jeep. There was no explanation by the driver as to how the jeep was found on its wrong side. One Agricultural Officer of Zilla Parishad was examined whose statement was recorded by the police. He admitted that in his statement recorded by the police he had not referred to the truck coming in opposite direction. Therefore, the learned trial Judge has rightly disbelieved the version of the driver of the jeep and found him guilty of the negligence. 7. As far as the quantum is concerned, the claimants are widow and two 4 minor children of the deceased. The dependency is taken at Rs.700/- per month. The learned Judge has taken the income of the deceased at Rs.1,050/- per month. If 1/3rd amount is deducted from the said monthly income, the dependency comes to Rs.700/-. There is some justification for the submission made by the learned A.G.P that the dependency taken at the rate of Rs.700/- per month is on the higher side in absence of the documentary evidence of the income of the deceased. Therefore, the multiplicand will have to be brought down to some extent. However, it must be noted that usual amount on account of loss to the estate and loss of consortium has not been awarded by the learned Member of the Tribunal. Therefore, even if multiplicand is to be reduced to some extent, by exercising powers under Rule 33 of Order XLI of the Code of Civil Procedure, 1908 usual amount of atleast Rs.15,000/- will have to be granted. In the circumstances, it is not possible to find fault with the figure of compensation determined by the learned Member of the Tribunal. Therefore, the compensation amount determined by the learned Member of the Tribunal cannot be faulted with. 8. There is no reason to interfere with the impugned award. The appeal is accordingly dismissed with no orders as to costs. If any amount deposited by the appellant is pending in this Court, the same shall be transferred to the concerned Tribunal. The Tribunal will pass appropriate order regarding disbursement/withdrawal of the amount after hearing of the matter. (A.S.OKA,J)