-1- 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 NO.2669 OF 2007 APPEAL NO.2669 OF 2007 APPEAL NO.2669 OF 2007 Karnataka State Road Transport Corporation ...Appellant vs. Smt.Vatsalabai Nathubhai Dangat & Ors. ...Respondents WITH WITH WITH FIRST FIRST FIRST APPEAL NO.780 OF 2004 APPEAL NO.780 OF 2004 APPEAL NO.780 OF 2004 Maharashtra State Road Transport Corporation ...Appellant vs. Bharati Dnyadeo Mohol & Ors. ...Respondents WITH WITH WITH FIRST FIRST FIRST APPEAL NO.2325 OF 2007 APPEAL NO.2325 OF 2007 APPEAL NO.2325 OF 2007 Karnataka State Road Transport Corporation ...Appellant vs. Aruna Hiraman Bankar & Ors. ...Respondents WITH WITH WITH FIRST FIRST FIRST APPEAL NO.2326 OF 2007 APPEAL NO.2326 OF 2007 APPEAL NO.2326 OF 2007 Karnataka State Road Transport Corporation ...Appellant vs. Sadashiv Tukaram Gaikwad & Ors. ...Respondents Mr.C.M.Lokesh i/b Mr.G.S.Hegde for the Appellant in all the three Appeals Mr.Yadu Bhargavan i/b R.Bhargawan and Associates and for Respondent No.7 in F.A.No.2669 of 2007 Mr.U.B.Nighot for Respondent Nos.1 to 5 in F.A.No.780/2004 and for Respondent No.1 in F.A.No.2326/2007 Mr.S.M.Vidyarthi for Respondent No.7 in F.A.No.780/2004 Ms S.V.Gajare,A.G.P. for Respondent No.2 in F.A.No.2326/2007 -2- Mr.Yadu Bhargavan i/b M/s.R.Bhargavan & Associates for Respondent No.3 CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JANUARY 17, 2008. : JANUARY 17, 2008. : JANUARY 17, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. These Appeals can be conveniently disposed of by a common Judgment which arise out of Awards made by the Motor Accident Claims Tribunal which arise out of the same accident. 2. The Appellant is the Karnataka State Road Transport Corporation. An accident occurred when there was a collision between a Maruti van and a bus owned by the Appellant. One Laxman Dangat along with others were proceeding by a Maruti Van for attending to a wrestling competition at Kalas, Taluka Indapur, District Pune. The accident occurred when they were coming back towards Pune. 3. First Appeal No.2669 of 2007 arises out of the claim filed by the legal representatives of one Laxman Dangat. First Appeal No.780 of 2004 arises out of a claim petition filed by the legal representatives of deceased Dyandeo M. Mohol. First Appeal No.2325 of 2007 arises out of a claim made by the legal representatives of late Hiraman Bankar. First Appeal No.2326 of 2007 arises out of a claim filed by one Sadashiv T. Gaikwad on account of injury sustained by him. 4. By the impugned Judgment and Award, the learned Member of -3- the claims Tribunal recorded a finding that the accident took place on account of rash and negligent driving of drivers of both the bus and Maruti van. The learned Member apportioned the negligence by holding that the driver of the bus was negligent to the extent of 75% and the driver of the Maruti van was negligent to the extent of 25%. 5. The submission of the learned counsel for the Appellant in these Appeals is that there was no negligence whatsoever on the part of the driver of bus of the the State Transport Corporation and the accident occurred due to negligence on the part of the driver of Maruti Van. He submitted that the compensation awarded by the tribunal is exorbitant and the multiplier adopted by the tribunal is on the higher side. The learned counsel for the original claimants in F.A.No.780 of 2004 and F.A.No.2326 of 2007 has opposed the submissions of the learned counsel appearing for the Appellant and submitted that the compensation awarded is reasonable and no interference is called for. I have also heard the submissions of the learned counsel for the insurer of the Maruti Van. 6. I have given careful consideration to the submissions of the parties. I have also perused the impugned Judgments and Awards. According to the case made out by the Appellant in the written statement, at the relevant time the bus was proceeding towards Solapur. When the driver saw one truck -4- approaching from opposite direction, considering the fact that the width of the road was very narrow, the driver of the bus took the bus to its left side. At that time suddenly a Maruti van came in a very high speed from the opposite side. According to the Appellant the driver of the bus applied the brakes. However, the Maruti van came on the wrong side and dashed against the bus. The contention is that the entire negligence was on the part of the driver of the Maruti van. 7. Shri Sadashiv Gaikwad, the claimant in the MAC claim application No.709 of 1988 was examined who was injured in the accident. He was travelling by the Maruti Van. He deposed that at the time of accident, the Maruti van was proceeding in great speed, but it was on its correct side. According to him the bus was being driven in a very high speed and the bus went on its wrong side and gave a dash to the Maruti Van. He deposed that the impact was so enormous that the bus dragged the Maruti van to a distance of 70 to 80 feet. He deposed that the width of the road at the spot of the accident must be about 30 to 40 feet. According to the witness, the road was straight one and it was clearly visible up to the distance of 1000 feet. 8. The learned Member of the Tribunal has referred to the certified copy of the spot panchnama and the F.I.R. After perusing the spot panchnama he recorded a finding that the -5- point of impact between the two vehicles was on the southern side of the road i.e. on the correct side of the Maruti van. This finding has been recorded after noting the tyre marks of the bus. The spot panchnama shows that it is the bus which came on its wrong side and the van appeared to be on its correct side. This is a case where the driver of the bus was not examined by the Appellant-State Road Transport Corporation. Therefore, the learned Member of the tribunal was justified in drawing an adverse inference against the Appellants for not examining the driver of the S.T.Bus. After considering the evidence of one of the occupants of the Maruti Van, the learned Member of the tribunal has recorded a finding that the van was also driven in a very fast speed. Therefore, he has recorded a finding of contributory negligence. Considering the fact that the bus was on its wrong side at the point of impact and the fact that the driver of the bus did not enter the witness box, the Appellant has been held responsible to the extent of 75%. I find no fault in the said finding. 9. Now coming to the quantum of compensation in F.A.No.2669 of 2007, the compensation awarded is Rs.2,00,000/-. This is a case where the age of the deceased was 24 years. The learned Member found that the deceased was having a good physic as he was a wrestler who had participated in several competitions and received the medals. The learned Member of the tribunal -6- found that apart from earning income by participating in the wrestling competitions, he was earning a salary of Rs.1500/- by working as a bodyguard. Several certificates showing achievements of the deceased in the wrestling have been placed on record. The claimants in the said case are the brothers and mother of the deceased. Some criticism was made by the counsel for the Appellant of the multiplier of 12 applied by the tribunal considering the fact that the brothers of the deceased were earning livelihood and the age of the mother on the date of the accident was of 48 years. However, it must be noted that the learned Judge found that the claimants were entitled to compensation of Rs.2,30,000/- and the claim was only of Rs.2,00,000/-. Therefore, he has granted the claim only to the extent of Rs.2,00,000/-.It must also be noted here that though the age of the deceased was 27 years, instead of granting multiplier of 16 or 17, the learned Member of the tribunal has applied multiplier of only 12 considering the age of the mother of the deceased. Moreover, no allowance has been made towards the future prospects of the earnings of the deceased. Hence, compensation awarded is reasonable and no interference is called for in that behalf. 10. Now, turning to the F.A.No.780 of 2004, the compensation awarded is of Rs.6,00,000/-. In the claim subject matter of the said appeal, the claimants are the widow, two minor children and the parents of the deceased. In this case also, -7- the deceased was a wrestler. Evidence has been adduced to show that the deceased had participated in many competitions in India and had earned awards and medals. Voluminous evidence in that behalf has been produced. It was found that for a period of 16 years the deceased was participating in the wrestling competitions. After considering the income of the deceased and after setting apart the amount required for the personal expenditure for the deceased, the learned Member of the tribunal has taken the dependency of Rs.36,000/- and has applied the multiplier of 16. Though considering the evidence on record no fault can be found with the figure of dependency taken by the learned member of the tribunal, multiplier of 16 taken by the tribunal is certainly on the higher side considering that the age of the deceased was 34 years. The Apex court in various decisions has applied the multiplier of 13 in cases where the age of the deceased was 32 years. Considering the consistent view taken by the Apex Court, in this case multiplier could not have been more than 13. Thus, instead of applying multiplier of 16, multiplier of 13 will have to be applied and to that extent the compensation awarded will have to be reduced. The compensation awarded on other counts will have to be maintained as it is. Therefore, the compensation amount comes to Rs.4,87,000/-. Thus, the total compensation payable in this case can be taken to Rs.5,00,000/- as a round figure. In so far as insurer of the Maruti van is concerned, there is no challenge to the award -8- and the insurer had already paid the amount payable under the Award. As the liability has to be apportioned as 75% and 25%, by exercising the power under Rule 33 of Order XLI of the Code of Civil Procedure,1908 the award will have to be modified in so far as compensation payable by the opponents to the claim. Thus, 25% contribution of the owner and the insurer of the Maruti Van will have to be proportionately reduced. It is however clarified that in so far as the owner and insurer of the Maruti van are concerned, they will not be entitled to apply restitution as against the claimants and the excess amount paid by them will have to be recovered by executing the award by seeking a contribution from the appellant. The Appellant will have to pay entire balance amount payable as per the modified award over and above the amount which is already paid by the insurer of the Maruti van 11. Now turning to the F.A.No.2325 of 2007, it must be noted here that the compensation awarded is Rs.5,00,000/-. This is also a case where the deceased was a wrestler and was also employed with Central Railway at Pune and was drawing a salary of Rs.2000/- p.m. Necessary evidence has been adduced on record to prove the income of the deceased from his employer as well as the income earned by participation of the deceased in wrestling competition. In fact, the Tribunal has found that the deceased had won ‘Maharashtra Kesari’ Award and also won the reward of Rs.25,000/-. In this case, the age of the -9- deceased was 32 years. In this case the multiplier of 16 applied by the learned Member is on the higher side. It must be however noted that this is a case where the deceased was a regular employee of Railways and was drawing a salary of Rs.2000/- p.m. at the age of 32 years. Therefore, for calculating the multiplicand the future prospects of enhancement in salary of the deceased ought to have been taken into account by the tribunal. However, that has not been done. Considering the fact that the deceased was a regular employee of Railways he would have received increments in the salary if not promotions. Therefore, though multiplier applied is on the higher side, the multiplicand taken is on the lower side. In the circumstances, no fault can be found with the ultimate figure of the compensation arrived at by the Tribunal. 12. Turning to the F.A.No.2326 of 2007, I find that the compensation of 4,00,000/- has been awarded on account of injury sustained by the claimant. The tribunal has considered the medical reports produced by the claimant. The claimant suffered a fracture to his right hand (fracture of radius) and fracture of femur right lower III. Apart from the fractures, there were other injuries sustained by the claimant. The claimant was required to undergo a long hospitalization. There are certificates on record to show that the claimant was required to undergo two surgeries. -10- 13. There is a disability certificate of Orthopaedic Surgeon on record. The said certificate records that the claimant has suffered 100% temporary disability till 13th April 1990 and from 13th April 1990 his permanent disability is quantified to the extent of 55%. This is also a case where the injured claimant was a wrestler. He had income from agriculture as well as milk business apart from income as a wrestler. The income from agriculture has been taken by the learned Member of the tribunal at Rs.6000/- per year. There was evidence on record to show the expenditure incurred by the deceased and the expenditure incurred by the claimant on the medical expenses. At the time of the accident, the age of the claimant was 36 years. Multiplier of 10 has been applied by the tribunal. Considering all the aspects, the tribunal has found that the claimant was entitled to compensation of Rs.4,75,000/-. As the claim was restricted to 4,00,000/-, the learned Member of the tribunal awarded a sum of Rs.4,00,000/-. The compensation awarded is reasonable and proper and no interference is called for. 14. Hence, I pass the following order : i) First Appeal Nos.2669 of 2007, 2325 of 2007 and 2326 of 2007 are dismissed with no order as to costs. -11- ii) First Appeal No.780 of 2004 is partly allowed and subject to what is observed in the Judgment, compensation amount payable shall be Rs.5,00,000/- instead of Rs.6,00,000/-. Rest of the Award regarding interest, payment of costs etc. is maintained. The Tribunal will pass a fresh order of disbursement/investment after hearing the claimants. The Respondent No.7 has already deposited its 25% share of compensation as per the impugned Award. The liability of the Respondent No.7 shall be proportionately reduced. After taking into account the amount deposited by the Respondent No.7, the balance amount payable as per the modified Award shall be deposited by the Appellant within four months from today. The Respondent No.7 shall not be entitled to claim restitution against the claimants. However, the Respondent no.7 can recover excess amount paid by it from the Appellant by executing the Award. iii) There will be no order as to costs in all the Appeals. iv) The amounts deposited by the Appellants in this court together with interest accrued thereon shall be transferred to the Tribunal. JUDGE JUDGE JUDGE