1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 165 OF 2005 Kadamba Transport Corporation Ltd., a Company having their Registered Office at KTCL Bus Stand, Panaji, Goa, represented herein by their General Manager Shri Shrikant V. Naik. ... Appellant versus 1. Shri Rosario Rodrigues age 52 years, married, service, Indian National. 2. Miss Azia Avis Rodrigues age 17 years, student. 3. Miss Vena Pria Rodrigues, age 15 years, student. 4. Makson Joel Rodrigues, age 12 years, student, all r/o. H. No.183, Toloi-Vaneli, Colva, Goa. (The Respondent Nos.2, 3 and 4 are rep. by their natural guardian their father i.e. Respondent No.1. 5. Mr. Pramod Yeshwant Kandolkar, owner of Bus GA-01-V-4458, r/o H. No.212, Prabhu Vaddo, Calangute, Bardez, Goa. 2 6. Shri Deepak Surya Naik, Driver of Bus GA-01-V-4458 r/o H. No. 721/1, Shantinagar, Porvorim, Bardez, Goa. 7. National Insurance Co. Ltd., Vaman Smruti, near Laxmi Narayan Temple, Mapusa, Bardez, Goa. 8. Shri Vishwanath Ladko Tari major, driver r/o H.No.1452, Curtorim, Salcete, Goa. ... Respondents Shri A. R. Kantak, Advocate for the Appellant. Shri S. D. Lotlikar, Senior Advocate with Shri K. B. Surjuse, Advocate for Respondent Nos.1 and 4. CORAM : N. A. BRITTO, J. DATE : 21ST DECEMBER, 2010. JUDGMENT Heard learned Counsel on behalf of the parties. 2. An accident took place involving two vehicles, namely KTC bus bearing Nos.GA-01-X-0259 and GA-01-V-4458. The first bus was going towards Mapusa side while the second bus was returning in the opposite direction towards Panaji side. 3 3. The deceased Mrs. Piedade Rosario Rodrigues, aged 48 years died in the said accident. Her husband and three children filed a claim petition. The said claim petition came to be allowed by award dated 25-1-2005 of the learned M.A.C.T., Mapusa. The claimants have been awarded compensation of Rs.2,87,755/- with interest at the rate of 9%. The claim petition was filed against the driver and owner of the said KTC bus who were Respondent Nos.1 and 2 on one hand, and against the driver, owner and the insurer of the other bus as Respondent Nos.4 to 6. 4. This appeal has been filed by the KTC, the owner of the said KTC bus No.GA-01-X-0259. 5. The claimants had produced and proved the panchanama and the sketch of the scene of offence through AW5/Head Constable Vilas Phadte who had prepared the said documents and his evidence has gone unchallenged. Respondent No.1 i.e. the driver of KTC bus was examined in support of their case. The other Respondents, namely Respondent Nos.4 to 6 did not file any written statement nor contested the claim petition. 4 6. The first objection taken on behalf of the Appellant/KTC is as regards their liability to pay 50% of the compensation on account of the said accident. The learned M.A.C.T. noted that the panchanama was totally silent on the damage to the Chapel. The learned M.A.C.T. noted that the evidence of AW5/Head Constable Phadte was unrebutted. 7. Shri A. R. Kantak, learned Counsel has submitted that it is Respondent No.5, the driver of the other bus who was the cause of accident, and, therefore the entire liability ought to have been fixed on Respondent Nos.4 to 6. Shri Kantak, learned Counsel submits that the accident took place on a rainy day, when the bus driven by Respondent No.1 first brushed against the Chapel which was on the left side of the road and then the other bus came and dashed on the side of the KTC bus which shows the speed at which the other bus was being driven. Learned Counsel submits that it was not a head on collision. Learned Counsel submits that Respondent No.1, the driver of KTC bus first lost control, then brushed on the Chapel, and then the other bus came and dashed against the KTC bus. However, learned Counsel has not been able to explain as to why Respondent No.1, the driver of the KTC bus ought to have lost his control. Although, the panchanama is silent on the damage 5 to the Chapel, the version of Respondent No.1 that he first brushed the bus against the Chapel need be accepted. Otherwise, there is no other explanation why KTC bus should have come across the road in horizontal position to be turned further towards Panaji, after the dash by the other bus. It is more than probable that he lost his control because he was driving the bus at a fast speed, down the slope and therefore was unable to control the bus that he first brushed against the Chapel and changed the direction which gave no opportunity to the driver of the other bus but to dash on the side of the KTC bus after it had changed its direction. The rest part of the story put forward by the driver of KTC bus has been rightly disbelieved by the learned M.A.C.T. and it appears that the plea that it was raining or that he was at a slow speed or that his bus skidded were taken by him for the first time in his evidence before the Court without pleading the same in the written statement. In the facts of the case, the Appellant has no reason to complain if 50% of liability has been fixed on the Appellant. In fact, it ought to have been much more. The facts as reflected in the panchanama/sketch clearly suggest that Respondent No.4 had no opportunity to avoid the accident because the KTC bus first dashed the Chapel on the left and then came across the 6 road, in horizontal position, to be pushed further, by the impact of the oncoming bus. 8. The next objection taken by Shri Kantak is as regards the quantum of compensation. Learned Counsel submits that the claimants had pleaded that the income of the deceased was Rs.2,500/- and the learned M.A.C.T. has awarded compensation considering that her income was Rs.3000/- per month in the absence of any evidence and this finding of the learned M.A.C.T. is but arbitrary. 9. Learned Senior Counsel on behalf of the Respondents submits that no compensation has been awarded to the claimants on account of loss of consortium. Learned Senior Counsel further submits that the age of the children has not been considered and what has been considered is only the age of the husband. Learned Senior Counsel then submits that the multiplier ought to have been 13 as against 11 used by the learned M.A.C.T. Learned Senior Counsel submits that the deceased being a housewife, deduction towards personal expenses ought to have been less. There is no dispute that the deceased was the wife of claimant No.1 and mother of Respondent Nos.2, 3 and 4, respectively at the time 7 of accident. The claimant No.1 who was examined had stated that the deceased was employed at a monthly salary of Rs.2,500/-. Claimant No.1 might have been employed. The claimant's age was mentioned as 48 years on the autopsy report, and there was no particular reason not to accept that age. The deceased being a mother was certainly looking after her children besides doing work outside and earning Rs.2,500/- per month. The learned M.A.C.T. has taken her income as Rs.3,000/- per month. The learned M.A.C.T. has taken the multiplier of 11 considering only the age of claimant No.1 and without considering the ages of her children. It is well known that a home gets totally shattered when a good wife to her husband and mother to her children dies. The services rendered by the wife/mother can rarely be measured in monetary terms. Call her a housewife, call her a home mother, or whatever, her role can never be replaced by the husband/father or by the paid services of servants. These aspects have now been judicially recognized by the Apex Court. 10. The Apex Court in Arun Kumar Agrawal and another v. National Insurance Co. and others(2010 ALL SCR 1716) has held that in the absence of any data, and taking into consideration the multifarious 8 services rendered by the housewives even on a modest estimation their income should be treated as Rs.3000/- per month and Rs.36,000/- per annum that is exactly what the learned M.A.C.T. has done in considering the income of the deceased as Rs.3000/- in the absence of proof that her income was Rs.2,500/- per month. The submissions made by learned Senior Counsel are justified but there is neither an appeal nor cross objections filed. 11. Both the objections taken on behalf of the Appellant/KTC need to be rejected. 12. I find there is no merit in this appeal and consequently the same is hereby dismissed with costs which are quantified at Rs.5000/- to be paid by the Appellant to Respondent Nos.1 to 4 i.e. claimants in the said claim petition. N. A. BRITTO, J. RD