IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1004 OF 1989 SUIT NO. 1004 OF 1989 SUIT NO. 1004 OF 1989 Smt.Shilpa Dinkar Chiplunkar, Hindu Indian Inhabitant residing at Vir Vilas, Navalkar Lane, V.P.Road, Bombay- 400 004. ... Plaintiff. V/s. 1. Smt.Sultana Begum Ali Mahadkar of Ratnagiri, Indian Inhabitant, residing at Post Vesvi, Taluka- Mandangarh, District- Ratnagiri. 2. Shri Mohammed Issac Mokhammed Shergaonkar, 288, Engineer Building, 1st floor, Room No.20, Shahid Bhagatsingh Road, Fort, Bombay- 400 001. 3. National Insurance Co. having their office at United India Bldg., 3rd floor, Sir P.M.Road, Fort, Bombay- 400 001. 4. The New India Assurance Co. Ltd. having their Head Office at 87, Mahatma Gandhi Road, Fort, Bombay- 400 023. ... Defendants. D.G.Bagwe for the plaintiff. None for the defendants. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 5th February 2008. DATED: 5th February 2008. DATED: 5th February 2008. JUDGMENT : JUDGMENT : JUDGMENT : -------- -------- -------- . The plaintiff herein, widow of the deceased Shri Dinkar M. Chiplunkar (hereinafter referred to as "deceased"), who died in an accident on 14th December, 1986. This suit is filed by her to claim compensation under the Fatal Accident Act. The Facts : The Facts : The Facts : --------- --------- --------- 2. The defendant No.1 was at all material times, the owner of a motor launch, namely, "Laxmikant" bearing No.KWR-5788. At the time of the death of deceased Dinkar, the said motor launch was insured with defendant No.3 under insurance policy No.6900262. As on 14th December, 1986, defendant No.2 was the owner of the another motor launch, namely, "Moraquib" bearing No.6792 and that it was insured with defendant No.4 under the insurance policy No.51490/04812, which was in force on that day. 3. That on 14th December, 1986,at about 7.50 a.m., deceased Dinkar along with several members of the staff of the office, where he was working, had - 3 - boarded the motor launch "Laxmikant" near the Gateway of India, Mumbai to go for an excursion to the Elephanta Caves. At about 8.50 a.m., the said motor launch had almost reached its destination, when, all of a sudden the motor launch "Moraquib" collided with it, as a result of which, the motor launch "Laxmikant" which deceased Dinkar had boarded, started sinking in water. The deceased Dinkar and his companions could not be extricated from the part of the vessel. Consequently, Dinkar died of drowning. There were no life belts on the said motor launch. 4. The plaintiff has contended that defendant Nos.1 and 2 owed duty to the deceased Dinkar to engage proper and skilled employees to operate and manoeuvre their respective motor launches in a safe and careful manner and to provide proper life saving belts on board. They, thus, failed to take reasonable care of their passengers which, ultimately, resulted in the premature death of Dinkar. The plaintiff, without prejudice to the above, has contended that the doctrine of res ipsa loquitur is applicable to the facts of the case. 5. It is further case of the plaintiff that the death of deceased Dinkar was caused by the rash - 4 - and negligent act of the persons in-charge of both the said motor launches, who were, at the material time, acting in the course of employment of and/or as the agents of and/or for the benefit of their respective owners, namely, defendant Nos.1 and 2. Hence, according to her, both defendant Nos.1 and 2 are jointly and severally liable to pay damages to the plaintiff for the death of her husband- deceased Dinkar Chiplunkar. 6. It is further case of the plaintiff that deceased Dinkar was the only source of her pecuniary assistance. As a result of his untimely death in the aforesaid circumstances, she has been deprived of future pecuniary benefit and the love, affection and company of her husband. 7. The deceased, Dinkar was bright young man of 32 years old serving with the Co-operative Society formed by the employees of the State Bank of India, Bombay. He was earning Rs.1,510/- per month at the time of his death. That he also used to earn over Rs.200/- per month by way of overtime income. That he had good chances of promotion increases in pay in the future. That he was healthy and was not suffering from any ailment and/or disability. Thus, it is the case of the plaintiff that defendant Nos.1 - 5 - and 2 are jointly and severally liable to pay her a sum of Rs.2,00,000/- by way of damages under all permissible heads such as loss of future pecuniary benefit; loss of consortium; loss of expectation of life; and loss to the estate of the deceased. 8. The plaintiff’s further case is that defendant Nos.3 and 4 as insurers of the aforesaid launches at the material time are also liable to indemnify their respective assured clients and their employees and to pay the said sum to the plaintiff jointly and severally with defendant Nos.1 and 2. 9. The plaintiff vide her advocate’s letter dated 17th July, 1987 called upon the defendants to pay her the aforesaid sum by way of compensation. The defendants duly received the said notice, however, except defendant No.4 all other defendants failed and neglected even to reply to her letter. As such, the plaintiff has filed this suit against all the defendants for a joint and several decree of Rs.2,00,000/- with interest thereon. 10. It appears that plaintiff did not take any steps to serve defendant Nos.1 and 2. No affidavit of service to that effect was filed by the plaintiff. In the circumstances, vide order dated - 6 - 27th November, 2007, suit came to be dismissed against defendant Nos.1 and 2 for want of prosecution. 11. On being served with writ of summons, defendant No.3 appeared and filed its written statement. Defendant Nos.4, though appeared through advocate, did not file any written statement. Hence suit proceeded in default of written statement against defendant No.4. 12. The defendant No.3 has contended in its written statement that suit is not maintainable. For want of knowledge, defendant No.3 denied that plaintiff is the widow and heir and representative of deceased Dinkar who died in a fatal accident. Defendant No.3 admitted that defendant No.1 was the owner of motor launch "Laxmikant" and that the said motor launch was insured with them for covering the risk of passengers using the said motor launch vide insurance policy No.250800/6900262/86 covering the period from 27th January, 1986 to 26th January, 1987 and that defendant No.1 had paid its premium amount of Rs.195/-. 13. It is the case of defendant No.3 that the limit of liability of defendant No.3 was of such - 7 - amount as is necessary to meet the requirements of Chapter 6-A of the Inland Vessels Act, 1970 (as modified upto 7th December, 1977 and subsequent amendments thereto). Thus, according to defendant No.3, their limit of liability in terms of the said Act was Rs.2,50,000/- in all, for all the passengers combined in terms of the Inland Mechanically Propelled Vessels Act. It is their case that if at all they are to indemnify for the act of defendant No.1, then they are liable to pay Rs.2,50,000/- in all in respect of the present suit and other three suits, viz., Suit Nos.1002, 1003, 1005 of 1989 filed by the heirs and legal representatives of the deceased therein. For want of knowledge, defendant No.3 denied to have covered the risk of motor launch "Moraquib". For want of knowledge, defendant No.3 has also denied that deceased Dinkar had boarded on motor launch "Lakshmikant". For want of knowledge, they denied the fact of fatal accident. According to them, the said accident was caused due to dash of motor launch "Moraquib" as such, according to them, neither they nor defendant No.1 are liable to pay any damages. For want of knowledge, the defendant No.3 also denied other contentions of the plaint raised by the plaintiff and contended that they are only liable to pay damages to the extent of Rs.2,50,000/- in all in respect of the suits - 8 - mentioned hereinabove. 14. Since the No.3 has filed written statement, considering the rival pleadings of the parties, vide order dated 27th November, 2007 the following issues were framed: ISSUES FINDINGS 1. Does the plaintiff prove that Yes. she is the heir and legal representative of the late Dinkar M. Chiplunkar? 2. Does the plaintiff prove that Yes. the motor-launch, "Moraquib" was, at the material time, owned by defendant No.2? 3. Does the plaintiff prove that No. defendant No.4 was, at the material time, the Insurers of motor launch ’Moraquib’? 4. Does the plaintiff prove that Yes. on 14.12.1986 Dinkar N.Chiplunkar had boarded motor launch ’Laxmikant’ on an excursion from Gate way of India to Elephanta Caves? 5. Does the plaintiff prove that Yes. on 14.12.1986 when motor launch "Laxmikant" was about to reach Elephanta Caves motor launch "Moraquib" collided with it? 6. Does the plaintiff prove that Yes. as the result of the said collision motor launch "Laxmikant" started taking in water fast requiring the passengers in "Laxmikant" to be extricated and that Dinkar M. Chiplunkar could not be - 9 - extricated and he drowned? 7. Does the plaintiff prove that Yes. the death of Dinkar M. Chiplunkar was caused due to the rash and negligent acts of the persons in charge of both the motor launches "Laxmikant" and "Moraquib" owned by the defendants Nos. 1 and 2 respectively? 8. Do the defendants prove that No. motor launches "Laxmikant" and "Moraquib" had, at the material time, life jackets and that the employees of both the said launches were proper and skilled employees to operate and manoeuvre proper life saving gear on board the launches? 9. Does the plaintiff prove that Yes. the persons in charge of both the motor launches were at the material time, acting in the course of their employment with or as agents of and/or for the respective owners i.e. the defendant Nos.1 and 2? 10. Does the plaintiff prove that No. the defendants are jointly and severally liable to pay damages to the plaintiffs? 11. What damages? As per the 12. What order and decree? final order. 15. Pursuant to the aforesaid order dated 27th November, 2007, the plaintiff was directed to file affidavit of evidence and documents. Accordingly, an affidavit in lieu of evidence in support of the suit claim with death certificate of - 10 - the deceased was filed by the plaintiff. Nobody was present on behalf of the defendants either to cross-examine the affiant or to lead evidence in defence. Under these circumstances, evidence of the plaintiff went unchallenged. The plaintiff has proved her claim together with her right to recover the amount with interest thereon. In this backdrop, I have no hesitation to record finding that the plaintiff has proved her right to claim compensation. 16. Now the only question which needs consideration is the quantum of compensation. 17. In my considered view, the income of the deceased can conveniently be quantified in the sum of Rs.1,700/-. Secondly, I am of the view that multiplier 17 would be applicable since the age of the deceased was 32 years at the time of his death. The Schedule appended to the Act provides for multiplier 17. In view of this factual position, the plaintiff- claimant would be entitled to claim total amount of his salary. Thus, the total yearly income of the deceased would be Rs.20,400/- (1,700 x 12). Deducting 1/3rd from the total income, Rs.13,600/- would be by way of dependency and multiplied by 17 it would come to Rs.2,31.200/- + - 11 - Rs.25,000/- could be awarded under the compensatory head making total amount of Rs.2,56,200/-. 18. Now the question comes who should be saddled with the suit claim since the suit has been dismissed against defendant Nos.1 and 2 and defendant No.3 has only filed written statement but did not appear to contest the suit, whereas suit against defendant No.4 has been proceeded in default of written statement. The vessel in which the deceased travelled was owned by defendant No.1 and it was insured with defendant No.3 which is not in dispute. It is true that defendant No.4 did not appear and file written statement but at the same time no evidence is on record to show that defendant No.2 was the owner of the Moraquib launch bearing No.6792 and also there is no material on record to show that it was insured with defendant No.4 except bare statement on oath. Hence defendant No.4 cannot be saddled with the suit claim. In this view of the matter, defendant No.3 alone can be saddled with the suit claim. 19. The defendant No.3 in its written statement has admitted its liability upto Rs.2,50,000/- in all, for all the passengers combined in terms of the Inland Mechanically - 12 - Propelled Vessels Act. It is their case that, if at all, they have to indemnify for the act of defendant No.1, then they are liable to pay Rs.2,50,000/- in toto in respect of all the suits. There are total four suits bearing Nos.1002, 1003 and 1004 and 1005 of 1989 filed by the heirs and legal representatives of the deceased therein. Defendant No.3 filed written statement, but did not appear. Hence, the evidence led by the plaintiff against defendants No.3 went unchallenged. 20. So far as Suit Nos.1002/1989 and 1003/1989 are concerned, the plaintiffs therein did not appear, as such the said suits were dismissed. So far as the present suit and Suit No.1005/1989 are concerned, the plaintiffs therein appeared and led evidence in support of their suit claim. The defendant No.3 is, therefore, liable to pay the admitted amount of compensation to the present plaintiff quantified in the sum of Rs.1,25,000/- with interest thereon @ 12% per annum from the date of suit till realisation in full and final. Hence this order: O R D E R O R D E R O R D E R --------- --------- --------- . The suit is partly decreed. - 13 - . The defendant No.3 is directed to pay amount of Rs.1,25,000/- to the plaintiff with interest thereon @ 12% per annum from the date of suit till realisation in full and final with costs. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)