: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.548 OF 1990 The Executive Engineer (TR) Municipal Workshop, Bombay .. Appellants V/s. Gangubai Mahadev Jogdankar since deceased thorugh her LRs 1a. Pulabai Motiram Jogdankar 1b. Krushna Motiram Jogdankar 1c. Arjun Motiram Jogdankar (minor, through his mother and legal guardian Smt.Pulabai Motiram Jogdankar) 1d. Mrs. Geeta Deepa Khandare 1e. Reshma Kondiba Jogdankar 1f. Santsh Kondiba Jogdankar 1g. Shobha Kondiba Jogdankar 1(f)&1(g) being minor, through their mother and legal guardian Smt.Reshma Kondiba Jogdankar all residing at : Navi Chawl Zopadpatti, Indira Nagar, Khamdevi Road, Mumbai  400 017. .. Respondents ..... Mr. J.Xavier for the appellant-BMC Mr. T.J. Mendon for the respondents ..... CORAM : R.Y. GANOO, J. DATE : 9TH JUNE, 2009. ORAL JUDGMENT: 1. One Mr. Mahadev Jogdankar met with an accident on 5 th November, 1978 and the vehicle owned by the present : 2 : appellants namely the Municipal Corporation of Greater Bombay was involved in the said accident. Hence, said Mahadev filed an application for compensation for the damages before the learned 2 nd Additional Motor Accident Claim Tribunal, Greater Bombay (hereinafter referred to as the learned Member ) being application No.719 of 1979 for a sum of Rs.25,000/-. During the pendency of the said application, said Mahadev expired and therefore his widow Smt. Gangubai was brought on record. Said Gangubai prosecuted the said application and the learned Member gave opportunity to both the sides to place their respective cases before him and by award dated 5 th March, 1990 the learned Member i.e. 2 nd Additional Motor Accident Claims Tribunal for Greater Bombay ordered that the present appellants should pay to the party applying for compensation a sum of Rs.15,310/- alongwith the interest @12% per annum from the date of the application till realization and ordered payment and proportionate costs. This judgment and decree is challenged in the first appeal. During the pendency of this first appeal, Smt. Gangubai died hence, her heirs have been brought on record who are shown as respondents and they are represented by learned advocate Mr. T.J. : 3 : Mendon. 2. Few facts necessary for the disposal of this first appeal are as under. 3. Victim Mahadev was cutting wood near the Garbage Depot at Dharavi in the early hours at about 5.30 a.m. on 5 th November, 1978 and at that time, the truck owned by the appellants bearing Registration No. MRL-4300 dashed Mahadev which resulted in causing injuries to Mahadev. Said Mahadev is said to have suffered fracture of tibia fibula M/3 right displaced and fracture tibia fibula U/3 left. Said Mahadev was taken to Sion Hospital and he was treated upto 29 th November, 1978. Subsequently, he was transferred to Sarvodaya Hospital and was hospitalized till 12 th February, 1979. Thereafter, he was discharged from the hospital. He was taking treatment at OPD at Sion Hospital. Ultimately, he was admitted at T.B. Hospital at Sewree and he died on 7 th February, 1984. 4. At the trial of the said application, on behalf of Mahadev, in all four witnesses came to be examined whereas on behalf of appellants, three witnesses came : 4 : to be examined. Before the learned Member, Motiram PW-3 gave positive evidence that the truck bearing No.MRL-4300 (hereinafter referred to as the said truck ) dashed Mahadev and caused him injuries. The learned Member accepted the contention of the original applicant and granted compensation to the tune of Rs. 15,310/- alongwith the interest @12% per annum. The heads under which the compensation came to be granted were; 1. loss of earning Rs.12,000/- 2. Special diet Rs. 810/- 3. Conveyance Rs. 300/- 4. Services rendered by his wife including her loss of wages Rs.2,000/- ____________ Rs.15,310/- ============ (It is seen that the sum total of above items is wrongly shown as Rs.15,310/-. It should have been Rs. 15,110/-). 5. I have heard learned advocate Mr.Xavier on behalf of the appellants Corporation and Mr. Mendon on behalf of the respondents. If one peruses the entire record, following observations can be made namely Mahadev the victim PW-1 gave evidence as regards the manner in which the accident took place. He was unable to give the number of the truck and he has given other details : 5 : as regards the events which took place and certain aspects about the treatment received by him. PW-2 Gangubai wife of Mahadev reached the site after she was informed about the accident and she had carried Mahadev to the Hospital. PW-3 Motiram claims that he was present at site when the accident took place and he had noted the number of the said truck and has given evidence in support of Mahadev as regards the manner in which the accident took place, the involvement of the said truck and other aspects of the matter. PW-4 Sucheta is the Medical Officer attached to T.B. Hospital and she has deposed as to how said Mahadev expired in or about 7 th February, 1984. Her evidence is really not required in this case in regard to the question which was to be decided by the learned Member. The appellants have examined Mr. Jadhav as DW-1, the driver of the said truck and this driver has admitted that on 5 th November, 1978 he was entrusted with the said truck and he was posted in Dharavi area near dumping ground i.e. Near the area where the accident took place. Mr. Dilip, an employee of the appellants was examined as DW-2 and he was examined for the purposes for showing that no entry as regards an accident said to have taken place is entered into : 6 : the accident register. His evidence was sought to be used by the appellants to say that no accident had taken place at the hands of the driver employed by the appellants as also no vehicle of the appellants was involved in the accident. DW-3 Sonawane is the Police Officer. His evidence is of no assistance as he has stated that the record pertaining to the case could not be produced as it pertained to old period. 6. The learned advocate Mr.Xavier had contended that victim Mahadev had come up with stand that Manik was present at the site whereas at the later point of time, the said Mahadev had admitted that Manik was not at site. The evidence of Motiram PW-3 goes to show that Motiram was present at site and has seen the manner in which the accident took place and has also noted the vehicle number. The learned advocate Mr.Xavier submitted that Motiram is a got up witness. According to him, Mahadev did not make out the presence of said Motiram at the time when the accident had taken place and therefore Motiram has been examined by the applicant only to make out the case that truck No. MRL 4300 was involved in the accident. In so far as this aspect is concerned, I have perused : 7 : the evidence of Mahadev PW-1 and it is true that Mahadev does not specifically mention that at the time of accident Motiram was present. Whereas Motiram PW-3 states that he and Mahadev reached the site where the accident took place for the purposes of cutting the log of wood. If this evidence is seen, it may sound that Motiram was not present at site. However, evidence of Motiram will have to be considered to decide whether Motiram was a got up witness. In the first place, it will have to be noted that Motiram happened to be residing nearby Mahadev and by giving false evidence i.e. giving evidence in favour of the Mahadev, Motiram in particular was not to gain anything. Apart from this, Motiram was extensively cross-examined by the learned advocate by the appellants at the stage of trial and it must be mentioned that Motiram has stood the test of cross- examination. He has even mentioned that he is in the position to read the number plate. After having considered the evidence of Motiram PW-3, independent of other evidence, it is clear that Motiram has given clear cut picture as to how the accident took place. If this be so, I am not inclined to accept the argument advanced by the learned advocate Mr.Xavier : 8 : that the Motiram is the got up witness. It must be mentioned that Mahadev may not have noted the presence of Motiram in the morning particularly because the time when the accident has taken place was about 5.30 a.m. Merely because Mahadev does not make out the presence of Motiram at site, cannot be a ground to say that Motiram was not present at site. It was sought to be argued by learned advocate Mr. Xavier that even Gangubai, wife of Mahadev does not make out the presence of Motiram at site. If one considers the evidence of Mahadev as well as Gangubai, it is seen that they are lay persons and one cannot find fault with them if they have omitted to make out presence of each and every person at site. It is also required to be noted that Mahadev as well as Gangubai must have suffered shock soon after the accident and hence merely because Mahadev does not say that Motiram was present at site cannot be a ground to say that Motiram was not present at site. In my view, once it is accepted that Motiram s evidence is to be treated as cogent merely because his presence is not made out by Mahadev and Gangubai is not a ground to discard the testimony of Motiram. In my view, the Motiram had nothing to gain by giving specific evidence so far as : 9 : the vehicle No. MRL 4300. In fact, the word of Jadhav DW-1 that vehicle No.MRL 4300 was in the vicinity of garbage site at Dharavi on 5 th November, 1978 and that he was posted on Truck No. MRL 4300 and that he was posted to attend to the work concerning the dumping ground supports the case of applicants. It lends support to evidence of Motiram PW-3. All this will go to show that the said truck was involved in the accident. 7. The appellants wanted to rely upon the word of Dilip DW-2 who has stated that in the accident register there is no entry to show that at the hands of the driver of vehicle No.MRL 4300 an accident had taken place on 5 th November, 1978. If one sees the evidence of Dilip, it clearly goes to show that as and when a driver of vehicle owned by the Municipal Corporation meets with an accident, he is supposed to inform the office about the accident or if by any other method the Corporation comes to know about the involvement of a vehicle owned by the Corporation in an accident, an entry to that effect will have to be made in the accident register. In the present case, undoubtedly, it is difficult to accept that Mr. : 10 : Jadhav, the driver of vehicle on his own will report the fact of the accident to his superior, as it may involve him in some departmental action. There was no other method by which the Corporation was informed about the accident having been taken place on 5th November, 1978 at the hands of the driver who was on duty to drive the vehicle owned by the Corporation. Hence, merely because absence of entry in the accident register cannot be considered in favour of the appellants. In short, the evidence on record through the witnesses examined on behalf of both the sides, it is clear that the vehicle owned by the appellants being vehicle No.MRL 4300 dashed Mahadev and caused him injuries which are described in the earlier part of the order. 8. The Medical papers concerning Mahadev s sickness in relation to treatment received by him are at Exh.9 and 10. Mahadev PW-1 as well as his wife Gangubai PW-2 have given evidence as to how Mahadev was treated in hospital. With this, I come to the question of grant of compensation. The learned Member granted compensation to the tune of Rs.15,310/-. The heads of the respective amount awarded is as follows; : 11 : 1. loss of earning Rs.12,000/- 2. Special diet Rs. 810/- 3. Conveyance Rs. 300/- 4. Services rendered by his wife including her loss of wages Rs.2,000/- ____________ Rs.15,310/- ============ (Correction figure Rs.15,110/-) 9. It was sought to be argued by the learned advocate Mr. Xavier that the amount of compensation granted by the learned Member is on higher side and is not based on the evidence which was produced before the Court and in any case it was excessive. As against this, learned advocate Mr. Mendon appearing on behalf of the respondents contended that in fact the learned Member has not granted compensation to Mahadev on account of disability suffered by him though there is sufficient material to show that Mahadev had suffered 40% disability. He had also pointed out that the learned Member had not granted compensation to Mahadev on account of pain and suffering keeping in view the fracture suffered by him. He also submitted that Mahadev was hospitalized for a substantially long time and was required to take treatment at OPD at Sion Hospital. I have perused the impugned judgment as well as the evidence so as to ascertain the quantum of : 12 : compensation. In my view, the learned Judge has considered the entire record in the proper perspective and granted compensation to the extent of Rs.15,310/- (it should have been Rs.15,110/-). In my view, in the facts and circumstances of the case, no different view could be arrived at for the purpose of the fixing the compensation. In fact, the learned Member could have easily granted some more amount by way of compensation for the disability to the extent of 40% as also for pain and suffering. If that amount would have been granted, the total amount of compensation would have been still higher. In view of the above, I am not inclined to interfere in so far as the quantum of compensation granted by the learned Member. 10. The learned Member has granted interest to the applicants @12% per annum from the date of application till realization. This aspect was brought by learned advocate Mr. Xavier before the Court to contend that the rate of interest granted i.e. @12% per annum is on higher side and a lesser rate of interest ought to have been awarded if at all interest was required to be awarded by the learned Member. He pointed out that no specific reasons are given as to how the said rate : 13 : of interest @12% per annum is fixed. 11. To this argument, learned advocate Mr. Mendon submitted that learned Member has considered the relevant dates and has fixed the rate of interest as one can observe from the tenor of the judgment. 12. I have considered the submission of learned advocate Mr. Xavier in regard to the rate of interest awarded to the respondents. It is worth noting that the accident took place on 5 th November, 1978 and the application came to be filed in the year 1979. The application was pending till 1990 i.e. practically for a period of 11 years. In so far as question of grant of interest is concerned, the rate of interst will always depends upon the facts and circumstances of the case. It is clear that as the case pertains to the year 1979, the learned Member has undoubtedly looked into the relevant rate of interest which could be awarded to to a party which was otherwise entitled to receive from the Corporation Rs.15,000/- and odd and that is how the learned Member has fixed the rate of interest @12%. In view of this, I am inclined to observe that the rate of interest granted is not at all excessive and no fault : 14 : can be found in the matter of grant of interest at 12% per annum. It is true that no elaborate reasons are given by the learned Member, however, in the peculiar facts and circumstances, I am of the view that this Court should not reduce the rate of interest now at the stage of decision of the first appeal. It is to be noted that Mahadev died in February, 1994, widow of Mahadev prosecuted the said application and said widow also died during the pendency of this application and the heirs were required to be brought on record and were required to engage an advocate. In my view, little relief can be given to the Corporation in seeing that the Corporation need no be saddled with the costs of this appeal. 13. The findings given by the learned Member that the respondents would be entitled to compensation, is required to be confirmed. The learned Member awarded Rs.15,310/- under various heads. The sum total of the respective heads in the impugned judgment turns out to Rs.15,110/-. Therefore, appellants will have to pay to the respondents Rs.15,110/- and interest. Hence, the following order. : 15 : ORDER • The First Appeal is partly allowed. Appellants do pay to respondents Rs.15,110/- alongwith the interest @12% per annum on Rs. 15,110/- from the date of application for compensation till realization. Appellants do pay costs of the trial Court to the respondents. There shall be no order as to costs so far as this Court is concerned. • Record and proceeding if already received by this Court, be returned to the appropriate trial Court. • The lower Court shall act on the basis of an authenticated copy of this order. (R.Y. Ganoo, J.)