: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.9 OF 1991 FIRST APPEAL NO.9 OF 1991 FIRST APPEAL NO.9 OF 1991 The State of Maharashtra, . Home Department, . Commissioner of Police, Bombay ...Appellant V/s. Maryadevi Phulchand Prasad Gaud . and Ors. ...Respondents Mr.B.H. Mehta, AGP, for the Appellant. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 18TH MARCH, 2008. DATE : 18TH MARCH, 2008. DATE : 18TH MARCH, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. I have heard the submissions of the learned Assistant Government Pleader appearing for the appellant. The challenge in this Appeal is to the Judgment and Award dated 13th September, 1989 passed by the learned Member of the Motor Accident Claims Tribunal at Bombay. The said Judgment and Award has been made in a claim petition filed under Section 110-A of the Motor Vehicles Act, 1939. 2. The respondent Nos.1 to 6 herein are the original claimants. The deceased Phulchand Prasad Sakaldeep Gaud on the morning of 13th October, 1984 at about 6 a.m. was crossing a road opposite B.D.D. : 2 : Chawl No.8 at Zakeria Bunder Road, Bombay. At that time, the jeep used by Bhoiwada Police Station gave a dash to the said Phulchand. The impact was so much that the deceased was knocked down and the jeep tilted on its left side. The said Phulchand was taken to the hospital. Unfortunately, on the same day he succumbed to the injuries sustained in the accident. 3. The 1st respondent is the widow of the deceased. The 2nd respondent is the married daughter of the deceased. The 3rd respondent is the son of the deceased who is stated to be of unsound mind. The 4th and 5th respondents are the sons of the deceased and the 6th respondent is the mother of the deceased. 4. The claim filed by the said respondents was contested by the appellant-State of Maharashtra. One of the defence taken was that the jeep was being driven by the police in discharge of a duty referable to sovereign function of the State and, therefore, the appellant-State is immune from any liability arising out of the tortuous act. It is alleged that the police personnel were chasing a motor taxi which was allegedly transporting illicit liquor. It is alleged that the police jeep could not avoid the deceased as he tried to cross the road abruptly. : 3 : 5. The Tribunal found that the appellant failed to prove that the driver was discharging the duty referable to the sovereign function. The Tribunal held that the accident occurred due to rash and negligent driving of the jeep. The Tribunal awarded total compensation of Rs.2,31,000/- with interest inclusive of compensation payable under Section 92-A of the said Act of 1939. 6. The submission of the learned AGP appearing for the appellant is that the finding recorded by the learned Member of the Tribunal on the issue of negligence is erroneous. He invited my attention to the evidence of the driver of the jeep as well as the evidence of the 2nd witness examined by the appellant. He submitted that the said evidence clearly shows that there was no negligence on the part of the driver of the jeep and in fact the accident occurred as the deceased suddenly tried to cross the road. He submitted that the deceased was working on daily wages as is evidenced from the record. He submitted that the income of the deceased taken by the Tribunal for the purposes of calculating multiplicand is on the higher side. It is submitted that in any event even the multiplier applied is on the higher side. : 4 : 7. None appears for the respondents. I have given careful consideration to the submissions made by the learned AGP for the applicant-State. I have also perused the notes of evidence and other relevant documents on the record of the Tribunal. In sofar as claimants are concerned, the widow of the deceased has been examined by the witness. The claimants also examined one Ram Ganesh Bhat, Personnel Officer of Hindustan Lever Ltd., where the deceased was employed. The claimants also examined Sub-Inspector of Police who was at the relevant time attached to Rafiq Ahmed Kidwai Marg Police Station. He was examined to prove an F.I.R. The appellant examined the driver of the jeep as well as one K.D. Patil who was sitting in the jeep at the relevant time. The appellant also examined Mr.M.M. Rathod, who was attached to the Rafiq Ahmed Kidwai Marg Police Station at the relevant time. 8. Obviously the widow of the deceased has no personal knowledge of the accident. Therefore, it will be necessary to refer to the evidence of the driver of the jeep Mr.Sadashiv Sitaram Shetye. He stated that he was on duty from the mid night and the jeep was on petrolling duty in the area of Bhoiwada : 5 : Police Station. He stated that Police Inspector Arole and Constable Patil were on petrolling duty. After visiting a petrol pump, he saw one taxi coming from the side of K.E.M. Hospital proceeding towards Bhoiwada Police Station. The taxi was proceeding in a very fast speed and therefore he suspected that the taxi was being used for transporting illicit liquor. Therefore, the driver started chasing the taxi. While the jeep was near B.D.D. Chawl, he could notice a person crossing the road from his right side towards left side. He stated that after noticing the person he took turn to the left and applied the breaks. However, the right front side of the jeep dashed against the said person and the jeep tilted on its left side. In the meanwhile, taxi went ahead. In the cross-examination he admitted that the taxi was proceeding with the speed of about 60 k.m. per hour. He stated that as he was chasing the vehicle he was also driving the jeep with the same speed. He stated that he saw the deceased crossing the road from a distance of 30 to 40 ft. He stated that he immediately applied the brakes. He admitted that offence under Section 279, 304-A of the Indian Penal Code has registered against him and subsequently he has been acquitted. He stated that he was continuously using the siren at the relevant time. It : 6 : will be necessary to refer to the statement of the said driver recorded by the police which is at Exhibit-15. The said statement has been duly proved in evidence by Mr.Narayan Eddu Rajguru, Police Sub-Inspector who was at the relevant time attached to Rafiq Ahmed Kidwai Marg Police Station. In the statement, the driver of the jeep has stated that he was driving the jeep behind the taxi in full speed. He stated that one person was trying to cross the road from west to east. When the said person saw the taxi he got confused and by the time taxi went ahead and the said person came in front of the jeep. He stated that he applied brakes. It is stated that the jeep turned over and dashed against the eastern age of the road as a result he alongwith constable Patil were thrown out of the jeep. 9. Perusal of the statement at Exhibit-15 and his evidence before the Tribunal shows that the jeep was being driven in a very fast speed at the relevant time. The driver was on duty right from the mid night. The driver was chasing the taxi which was being driven in high speed. The driver has stated that he applied the brakes. The impact of application of brakes was so much that the jeep tilted on its left side and the occupants of the jeep were thrown out. : 7 : That itself shows that the jeep was being driven in a very excessive speed. There are material improvements made by the driver while deposing before the Tribunal by stating that he saw the person crossing from the distance of 30 to 40 ft. and he applied the brakes when the jeep was at the distance of 30 ft. 10. Mr.Mohan Motiram Rathod, Police Inspector, who was attached to the Rafiq Ahmed Kidwai Marg Police Station at the relevant time deposed that during the course of investigation he could trace the taxi but he could not collect any evidence to show that at the relevant time taxi was used for transporting illicit liquor. He stated that no action has been taken against the owner and driver of the taxi. 11. The witness examined by the appellant (i.e. Mr.Kishanrao Dnandeo Patil) stated that near K.E.M. Hospital he saw the taxi. According to his version, the driver of the jeep stated that the taxi was carrying illicit liquor and therefore the taxi should be chased. It is stated that he was feeling very sleepy. It is stated that the pedestrian who was looking to be confused could not be saved. 12. If this evidence is considered, it is obvious : 8 : that it is very difficult to find fault with the finding recorded by the Tribunal that the accident occurred due to negligence on the part of the driver of the jeep. In view of well settled law, the defence of sovereign function is not at all available to the appellant-State. The jeep was being driven in excessive speed. The driver of the jeep had admittedly seen the deceased from a distance of 30 to 40 feet and he made no efforts to save the deceased. The finding on issue of negligence appears to be correct. 13. Now turning to the quantum of compensation, the widow of the deceased stepped into the witness box and stated that the age of the deceased at the time of accident was 45 years and deceased was employed with Hindustan Lever Ltd. for a period of 25 years or more. According to her apart from monthly pay of Rs.3,070/-, the deceased was getting Rs.8,000/- per annum as bonus and Rs.2,500/- as leave travel concession. According to her, the deceased used to contribute Rs.2,500/- per month for household expenses. The second witness examined by the claimants was one Ram Ganesh Bhatt, Personnel Officer, of Hindustan Lever Ltd. He stated that the date of birth of the deceased is 1st July, 1940 and the : 9 : deceased was in the employment of the said company from 19th November, 1958 as a Peon. In his evidence he has not at all stated that the deceased was employed on daily wages basis. Even a suggestion to that effect is not given in the cross-examination. He proved the certificate issued by the company in evidence. It is stated that apart from the salary, the deceased was entitled to LTC at the rate of Rs.700/-p.a. It is stated that whenever deceased worked over-time he was granted over-time allowance at double the normal rate. The perusal of the certificate at Exhibit-12 also does not indicate that the deceased was employed on daily wages basis. The certificate discloses that the monthly salary of the deceased was Rs.3,070/-. As accident had taken place on 13th October, 1984, at that time the age of the deceased was 44 years and 3 months. 14. Now coming to the computation of the compensation made by the Tribunal, after deducting some amount on account of personal expenditure, the dependency has been taken at the rate of Rs.1,500/- after taking into consideration various allowances payable to the deceased. Ultimately multiplier applied is 12. It is true that for the age of 44, multiplier of 12 is on the higher side. However, in : 10 : the present case there is evidence on record that the deceased was employed with the reputed company like Hindustan Lever Ltd. right from 19th November, 1958. The future prospects of increase in the earnings of the deceased ought to have been considered by the Tribunal while calculating the multiplicand. This was a case where at the time of death, the deceased had already put in more than 20 years of services and therefore the possibility of getting reasonable increments in future cannot be ruled out. Thus, the multiplicand taken by the Tribunal is on the lower side and multiplicand would have been much more than Rs.1,500/- per month. Therefore, even if the multiplier is reduced to 9 or 10, the compensation amount will not undergo any change and broadly it will remain the same. 15. A sum of Rs.15,000/- has been rightly awarded on account of loss of consortium, love and affection and for the funeral expenses. There is one more aspect which needs to be considered in the present case. The 1st respondent widow has disclosed that the 3rd respondent is mentally unsound right from the childhood. Taking overall view of the matter, it is not possible to find fault with the findings recorded by the Tribunal and the quantum of compensation fixed : 11 : by the Tribunal. 16. No case for interference is made out. First Appeal is accordingly dismissed with no orders as to costs. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]