1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.405 OF 1999. United India Insurance Company Ltd. Universal Building, lst floor, P.M.Road, Bombay, through its Divisional Office, through its Divisional Manager, New Osmanpura, Aurangabad Division, Aurangabad. ... Appellant. Versus 1. Smt.Laxmibai W/o Madhukar Aher, Age 44 years, Occ. Household, R/o Yeshwant Housing Society, Indira Gandhi Marg, Kopargaon, Tq. Kopargaon, District Ahmednagar. 2. Master Ravindra Madhukar Aher, Age 26 years, Occ.Business, and Education, R/o as above. (Now dead-deleted as per Exh.50) 3. Nitin S/o Madhukarrao Aher, Age 24 years, Occ.Education, R/o as above. 4. Smt.Pushpa D/o Madhukar Aher, Age 23 years, Occ.Household, R/o as above, (deleted as Exh.18). (Summons to all Respondents 1 to 4 served on above address and now the 2 Respondent Nos.3 and 4 are became major). 5. Mr.Jaysing Vallabhdas Fakar, Aged major, Occ. Business, R/o Khatau Apartment, Joshi Lane, Ghatkopar, Bombay-77. ... Respondents. ... Mr.A.S.Osmanpurkar, advocate holding for Mr.S.V.Kulkarni, advocate for the appellant. Mr.N.C.Garud, advocate for the Respondent Nos.1 and 3. Respondent Nos.2 and 4 deleted. Respondent NO.5 served. ... CORAM : V.R.KINGAONKAR,J. Date : 01.12.2009. ORAL JUDGMENT : 1. This appeal is preferred by Insurer of Fiat Car vehicle No.BLU-424 owned by Respondent NO.5 Jaisingh. The appellant impugns judgment and award rendered by learned Member of Motor Accident Claims Tribunal, Aurangabad in an application (MACA No.462/1991). By the impugned judgment, compensation of Rs.5,58,000/-(Rupees five lacs fifty eight thousand) was awarded to legal representatives of deceased Madhukar, who were the original claimants and had filed application U/s 166 of the Motor Vehicles Act, 3 1988. 2. Indisputably, deceased Madhukar was riding on a motor cycle around mid-day on Kopargaon-Babhaleshwar road, in the scorching heat of summer, on May 31, 1991. The Fiat car vehicle BLU-424 came from opposite direction. There took place accident in front of a road side hotel. The motor cycle rider (deceased Madhukar) fatally injured during course of the vehicular accident. He was rushed to Hospital. He succumbed to the accidental injuries whilst was being under medical treatment. The Police registered offence punishable U/ss 337, 427, 304- A of the I.P.C. against driver of the Fiat Car vehicle. The driver had informed the Police after about one hour regarding the incident of the vehicular accident. The name of Fiat Car's driver was immediately revealed as Dharmendra Khatav. 3. Briefly stated, the case of the claimants was that deceased Madhukar was self- employed person. He used to undertake the work of decoration and building contracts. He was 4 dealing in business of furniture. His monthly income was approximately Rs.10,000/- (Rupees ten thousand) at the relevant time. The vehicular accident was result of sheer negligence and rashness of the driver of the fiat Car vehicle. The Fiat car vehicle was driven in high speed without taking due care and as such gave frontal dash to the motor cycle of deceased Madhukar. They had lost the only breadwinner of the family. The applicants alleged that they lost dependency of at least Rs.5,000/- (Rupees five thousand) p.m. They further asserted that they were entitled to seek compensation of Rs.7,50,000/- (Rupees seven lacs fifty thousand). 4. The Respondent No.5 did not appear notwithstanding due service of summons. Therefore, the claim application proceeded exparte against him. 5. The appellant i.e. original opponent No.2 resisted the claim application by filing Written Statement (Exh.10). The appellant sought leave of the Court to take all the defences which 5 are available to the owner of the fiat Car vehicle. The leave was granted. The appellant asserted that the accident was result of rash and negligent driving of the motor cycle by deceased Madhukar. It was denied that the Car driver was at fault and failed to take necessary care while negotiating a curve at the relevant time. It was further denied that Madhukar was earning Rs. 10,000/- (Rupees ten thousand) p.m. from his business as furniture decorator and works contractor. The appellant contended that exorbitant and excessive amount was being demanded by the applicants. Consequently, the appellant sought dismissal of the claim application. 6. The Tribunal formulated necessary issues below Exh.16. The parties went to trial on the said issues. The claimants i.e. Respondent Nos.1 to 4 adduced oral and documentary evidence in support of their claim application. They examined as many as nine (9) witnesses in support of the claim. The learned Member of the MACT held that the claimants duly proved that the 6 monthly income of the deceased Madhukar was not less than Rs.5,000/- (Rupees five thousand) p.m. at the relevant time. The learned Member further held that the claimants lost dependency at the rate of Rs.3,750/- (Rupees three thousand seven hundred fifty) p.m. and, therefore, by applying multiplier 12, having regard to the age of deceased, which was of 39 years, they were entitled to seek compensation of Rs.5,40,000/- (Rupees five lacs forty thousand). The Tribunal also held that there was no fault on the part of deceased Madhukar while driving the motor cycle but the accident was due to sheer negligence of the driver of the fiat car vehicle. In keeping with such findings, the impugned judgment was rendered. 7. Heard learned counsel for the parties. On behalf of the insurer (appellant) it is argued that the motor cycle gave frontal dash to the fiat car vehicle and, therefore, negligence of deceased Madhukar was explicit. Reliance is placed on certain observations in "State of Maharashtra and another Vs. Hamida Anwar Shaikh 7 and others" 2005 (2) T.A.C.502 (Bom.). It is further contended that the monthly income of deceased Madhukar was exaggerated by the witnesses and in absence of documentary evidence, particularly when he was not an income-tax payee, the Tribunal should not have considered the monthly income of Rs.5,000/- (Rupees five thousand) p.m. It is argued, therefore, that considering contribution made by deceased Madhukar, at least 50% of the awarded amount should be reduced and that the quantum also should be slashed down to a reasonable sum in view of absence of proper evidence regarding income of deceased Madhukar. As against this, counsel for the claimants support the impugned judgment. 8. Let it be noted that driver of the Fiat car vehicle did not enter the witness box. The appellant did not examine any of the eye witnesses of the incident nor the panchas of the spot panchanama were called to corroborate recitals thereof. The claimants have examined PW 2 retired ASI Manik Dengale, in order to prove 8 the allegations regarding negligence of the driver of the car vehicle. His version purports to show that the investigation was carried out into the crime which was registered. The material, gathered during course of investigation, revealed that the driver of the Fiat car vehicle had driven his vehicle in rash and negligent manner. He, therefore, lodged the report against driver of the Fiat car vehicle. The driver of the Fiat car vehicle was charge- sheeted in the Court of Judicial Magistrate, F.C. Shrirampur. He corroborates the recitals of his complaint (Exh.35). His version purports to show that the accident occurred in front of "Prashant Hotel" on Nagar - Manmad road. At the relevant time the fiat car vehicle was found facing towards Kopargaon side. It appears from admissions of PW Manik that bumper of the fiat Car vehicle was damaged and the dash was received at middle portion of the car vehicle. The recitals of the spot panchanama go to show that the car vehicle was in the middle portion of the road. Obviously, there was sufficient open space available on right hand side of the car vehicle 9 for passing of the motor cycle. The recitals of the spot panchanama coupled with admissions of PW Manik would indicate that the driver of the car vehicle was unable to control the vehicle while negotiating a curve, whereas the deceased also failed to take appropriate precaution while passing from near the fiat car vehicle. The very fact that the dash was given on the middle portion of the Fiat car vehicle is indicative of certain contribution made by the deceased himself. 9. There is no eye witness account as regards the manner in which the vehicular accident did take place. Still, however, the circumstantial evidence purports to show that the car vehicle was being driven without taking due care and no last minute attempt was made to avoid the collision. So also, deceased Madhukar failed to take due care to avoid the collision and rashly dashed against middle portion of the said car vehicle. Under these circumstances, the principle "res ipsa loquitur" is squarely attracted. It will have to be said that deceased 10 Madhukar contributed to the accident to the extent of 25% , whereas negligence on the part of the driver of the fiat car vehicle was to the extent of 75%. The Tribunal failed to consider these aspects and erroneously held that only the driver of the car vehicle was responsible for the said vehicular accident. 10. Coming to the appreciation of remaining evidence, I find that the learned Member of the Tribunal has assigned sufficient reasons in support of the conclusion that deceased Madhukar was earning Rs.5,000/- (Rupees five thousand) p.m. There is ample evidence to show that he was working as a construction contractor as well as furniture decorator. He had received orders of such works. It is true that he was not much educated and was not a skilled worker as such. However, he was enthusiastic and was dealing in various business activities. The fact that he was owner of the motor cycle will show his earning capacity. For, sufficient funds were required to purchase the motor cycle and to run it. Considering his age at the relevant time, 11 the Tribunal has fairly applied multiplier of 12. By no stretch of imagination, it could be regarded as higher multiplier. I have gone through the versions of PW 3 Dayalal Hiralal Patel, PW 4 Suresh Kothari, PW 5 Rajendra Kshirsagar and others. In my opinion, the Tribunal has properly considered the versions of the witnesses examined by the claimants in the context of the income which deceased Madhukar was earning at the relevant time. 11. For the reasons aforestated, I do not find any substantial error committed by the learned Member of the Tribunal while holding that deceased Madhukar was earning Rs.5,000/- (Rupees five thousand) p.m. and the claimants had lost dependency of Rs.3,750/- (Rupees three thousand seven hundred fifty) p.m. The only error committed by the learned Member of the Tribunal is in respect of non-apportionment of the liability when the accident was result of contributory negligence of both the drivers. Considering this aspect of the matter, I am of the opinion that 25% of the total amount of 12 compensation will have to be reduced. 12. In the result, the appeal is partly allowed. The impugned judgment is modified with direction that 25% of the amount from Rs. 5,58,000/- (Rupees five lacs fifty eight thousand) be deducted from the quantum of compensation awarded under the impugned judgment. The proportionate costs also may be reduced. The remaining part of the impugned order is maintained. Thus, the liability of the appellant and owner of the fiat Car will be only to the extent of 75% of the awarded amount. The appeal is accordingly disposed of. The parties to this appeal shall bear their own costs in this Court. (V.R.KINGAONKAR,J.) asp/office/fa40599