USJ IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL STAMP NO. 4140 OF 1995. APPEAL STAMP NO. 4140 OF 1995. APPEAL STAMP NO. 4140 OF 1995. 1. Shri Vijayalaxmi Shahajirao Chavan, Age about 45 years, Occ. Household. Residing at 18, Shukrawar Peth, Karad, Dist. Satara. 2. Kum. Shital Shahajirao Chavan, Age about 24 years, Occ. Eduction, Residing at as above. 3. Kumar Sachin Shahajirao Chavan, Age about 22 years, Occ. Eduction, Residing at as above. 4. Kum. Sarika Shahajirao Chavan, Age about 20 years, Occ. Education, 5. Shri Nageshrao Bapusaheb Chavan, Age about 92 years. Occ. Nil Since deceased on 28-1-1996. 6. Smt. Kamalbai Nageshrao Chavan, Since deceased on 6-11-1994. ..Applicants VERSUS 1. Shri. Alam Shaikh Sharif, Age about 56 years, Occ. Driver, residing at Patil Estate Zopadpatty, Mumbai-Pune Road, Pune 411005. 2. Shri Nanasaheb Ramchandra Shete, Age : Adult, Occ. Business, Residing at Utravali, Tal. Bhor Dist. Bhor, Dist. Pune. 3. The United India Insurance Company, Branch Manager, United India, Insurance Co., Sahyadri Bhavan, Tilak Road, Pune-411 030. ..Respondents Shri R.B. Jagtap Advocate for Applicants Shri M.G. Barve Advocate for Respondent No.3. CORAM CORAM CORAM : A.S. Oka.J. : A.S. Oka.J. : A.S. Oka.J. Date: 16th February, 2008 : 2 : 2 : 2 : 1. The Appeal is preferred by the original claimant for taking exception to the Judgment and Order dated 26th July, 1994 passed by the learned Member of the Motor Accident Claims Tribunal at Pune. The Appellants are the original claimants in the Claim Application filed under Section 110(A) of the Motor Vehicles Act, 1939. 2. The case of the Appellants is that the husband of the first Appellant was travelling on a scooter which was driven by his brother Shivaji Chavan. At that time, a truck driven by the first Respondent and owned by the second Respondent came from opposite direction. The said Shivaji who was driving the scooter could not control his vehicle. While he applied brakes, the deceased fail down on the right side of the scooter. The Truck driven by the first Respondent came in a great speed and ran over the deceased. The deceased died on the spot. 3. Claim Petition was contested by the first Respondent as well as third Respondent (Insurer of the truck). The contention is that it was the person driving the scooter who was responsible for the accident. It is the contention that he was trying to : 3 : 3 : 3 : over take a truck in front of the scooter and while doing so, he lost balance and as a result, the deceased fail down. 4. The learned Member of the Tribunal held that the accident occurred because of rash and negligent driving on the part of the first Respondent. The Tribunal, however, held that the person who was driving the scooter has contributed to the negligence to the extent of 50%. Though the Tribunal held that the Appellants were entitled for compensation of Rs.2,24,000/- the liability of the Respondents was fixed to the extent of 50% i.e. Rs.1,12,000/-. 5. The submission of the learned Advocate appearing for the Appellants is that the evidence of the said Shivaji who was plying the scooter has not been properly appreciated. His submission is that the driver of the truck i.e. the first Respondent had sufficient opportunity to avoid the accident. He stated that in the evidence the said Shivaji has stated that though he was intending to overtake the truck ahead to him, he dropped the said idea when he saw the truck coming from the opposite side. The learned advocate for the Appellant submits that income of the deceased taken at Rs.2,000/- per month is on the lower side. The learned advocate for the 3rd Respondent : 4 : 4 : 4 : supported the impugned Judgment and Award. 6. I have carefully considered the submissions made by the learned counsel appearing for the parties. I am dealing with the last submission made by the advocate for the Appellant regarding the quantum of compensation. Admittedly, the age of the deceased was 40 years at the time of accident. The case of the Appellants was that the deceased was working as a Radio and T.V. Mechanic. In the claim Petition, the income of the deceased is shown as Rs.2,000/- per month. A case was made out at the time of adducing evidence that his income was Rs.3,500/- to Rs.4,000/ per month. The Appellants produced bill books on record. After perusal of the bill books, the learned Member of the Tribunal came to the conclusion that the monthly income of the deceased was Rs.2,000/-. It is very difficult to find fault with said finding as the Appellants themselves came out with the case that the income of the deceased was Rs.2,000/- per month. That was the specific case made out in the Claim Petition itself. Therefore, it is not possible to find fault with the Tribunal when the income of the deceased was taken at Rs.2,000/- per month. 7. If the income of the deceased is taken at Rs.2,000/-, 1/3rd will have to be deducted on account : 5 : 5 : 5 : of personal expenditure. After deducting 1/3rd, the monthly dependency can be taken @Rs.1,400/- approximately. So yearly dependency will be Rs.16,800/-. Even if multiplier of 11 is applied considering the fact that age of the deceased was 40 years, the compensation amount will be Rs.1,84,800/- (Rs.1400x12x11). After adding usual amount of Rs.15,000/- the said amount comes to Rs.1,99,800/-. However, the Tribunal has granted the compensation of Rs.2,24,000/-. 8. As far as aspect of the negligence is concerned, Shivaji who was driving the scooter admitted that initially he was trying to overtake the truck ahead to him but he dropped the idea after noticing that a truck coming from opposite direction. He stated that he applied rear brakes of the scooter and in doing so, the brakes failed. He stated that in an attempt to control the scooter, he applied the brakes of front wheel and scooter slipped. He stated that the deceased fell down on the right side of the scooter as a result, he was ran over by the truck driven by the first Respondent. 9. In the cross-examination, he admitted that he had to apply brakes with a view to reduce the speed of the scooter. He admitted in the cross-examination that : 6 : 6 : 6 : he could not control the speed of the vehicle and, therefore, he applied brakes of the front wheel. In the circumstances, the Member of the Tribunal has drawn inference that while making an attempt to overtake the truck ahead of the scooter, the scooter had gained some speed. It is obvious that the scooter was in speed and, therefore, there was necessity of suddenly applying the brakes. The Tribunal has noted that the said Shivaji came out with the case that the distance between the scooter and the truck ahead of him was about 100 ft. The said case cannot be accepted in as much as if the distance between scooter and the truck ahead of him was about 100 ft., there was no reason to apply brakes and even by lowering the gears the said Shivaji could have controlled the speed of the scooter. Therefore, the evidence of the said Shivaji has not been accepted by the learned Member of the Tribunal. That is the reason why the Tribunal found that the contribution in the negligence of the driver of the scooter was to the extent of 50%. It is not possible to find fault with the said finding. 10. The Tribunal has, therefore, fixed the liability of the Respondents to the extent of 50% and it has been held that the Respondents are liable to pay compensation of Rs.1,12,000/-. : 7 : 7 : 7 : 11. A submission was sought to be made that interest awarded @6% per annum is on the lower side. Though there is some merits in the said submission, no interference is called for in view of the finding recorded earlier that the compensation awarded by the Tribunal is certainly on the higher side. 12. No case for interference is made out. Appeal is accordingly dismissed with no orders as to costs. A.S.Oka, A.S.Oka, A.S.Oka, J. J. J.