1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 1395 OF 2009 1 Gorakhnath s/o Damodhar Tajane Age 49 years, Occ. Agril, 2 Smt Lata w/o Gorakhnath Tajane Age 47 years, Occ. Household, 3 Jitendra s/o Gorakhnath Tajane Age 24 years, Occ. Education, No. 1 and 2 R/o. Tajane Mala, Sangamner, Tq. Sangamner District Ahmednagar No.3 R/o Bharti Vidyapeeth, Pune ...Appellants Versus The Maharashtra State Road Transport Corporation Through Depot Manager Sangamner, District Ahmednagar ...Respondents ..... Mr. Balaji Shinde, advocate for the appellants Mr. M.K. Goyanka, advocate for respondent ..... CORAM: R.G. KETKAR, J. DATE OF RESERVING THE JUDGMENT : 08.12.2009 DATE OF PRONOUNCING THE JUDGMENT : 19.12.2009 2 JUDGMENT:- 1 This appeal is preferred by the original claimants challenging the judgment and award dated March 3, 2009 passed by the learned Member, Motor Accident Claims Tribunal, Sangamner, District Ahmednagar (for short “Tribunal) in Motor Accident Claims Petition No. 3 of 2004. The appellants filed the said petition under Section 166 of the Motor Vehicles Act, 1988 (for short “the Act”), claiming compensation of Rs.10,00,000/- on account of death of Deepak Gorakhnath Tajane, son of appellant Nos. 1 and 2 and elder brother of appellant No.3. By the impugned judgment and award, the Tribunal awarded compensation of Rs.1,81,500/- inclusive of NFL amount of Rs.50,000/- already paid to the appellants, together with interest @ Rs.7.5% p.a. from the date of petition till its realization. The facts and circumstances, giving rise to file the present appeal, are as follow;- 2 The appellants (hereinafter referred to as the “claimants), filed petition, interalia, contending that on March 9, 2003 at about 1.00 p.m. deceased Deepak alongwith his friend Sachin Maruti Fatangare were proceeding on Motor cycle No. MH-12-BF-7698 to village Loni to distribute the marriage invitation cards of the deceased, whose marriage was settled and was to be performed. Deceased Deepak was driving the said motor cycle and his friend Sachin was the pillion 3 rider. It is the case of the claimants that deceased Deepak was driving his motor cycle by left side of the road and observing the traffic rules and regulations. He was driving the motor cycle in a very moderate speed. When he reached in Loni (Bk) area, opposite I.T.I. College, Loni, at that time S.T. Bus No. MH-12-UA-8562, driven by its driver Sukhdeo Thamaji Jare, came from opposite direction. It was proceeding towards Nashik via Sangamner, a very high, excessive and uncontrollable speed. The driver was driving the said S.T. Bus rashly and negligently without observing the traffic rules and regulations. The S.T. Bus dashed against the motor cycle of the deceased and deceased sustained multiple severe injuries and succumbed to the injuries on the spot while his friend Sachin also sustained injuries. It is the case of the claimants that accident occurred due to share negligence on the part of the driver of the S.T. bus and he is solely responsible for the accident as also accidental death of Deepak. The claimants further asserted that at the time of accident Deepak was 26 years old and was looking after Hotel Deepraj, which is owned by the family members. Deceased was also looking after mess, where, about 100 students of nearby college and schools were customers and each student was charged Rs.600/- p.m. The claimants contended that deceased was earning Rs.20,000/- p.m. from hotel and mess business and allied items. The deceased was also looking after their Bagayat land and Dairy business. From agricultural 4 lands, the deceased was earning Rs.1,00,000/- p.a. From milk business, he was earning Rs.10,000/- p.m. On these among other grounds, the claimants claimed compensation of Rs.10,00,000/- from the respondent. 3 The respondent filed written statement at Exh.14 on April 8, 2004 resisting the petition. It is the case of the respondent that deceased Deepak himself was driving his motor cycle in a very high and excessive speed without following the traffic rules and regulations. At the relevant time, he was trying to overtake one tempo which was ahead the said Motor cycle and after overtaking said tempo, motor cycle suddenly came under the said Bus and thus the accident took place and hence deceased Deepak is responsible for the accident that took place. 4 On the basis of the pleadings, the Tribunal framed necessary issues at Exh.15. In support of the case of the claimants, the claimant No.1 Gorakhnath Tajane was examined at Exh.20. He produced F.I.R, spot panchnama, inquest panchnama, post mortem notes alongwith list at Exh.3. He deposed that deceased Deepak was running hotel Deepraj and used to earn Rs.50,000/- to Rs.60,000/- p.m. The said hotel was Udupi hotel cum mess for nearby college students. About 100 students were members of his mess. Each 5 student used to pay Rs.600/- p.m. Deceased Deepak used to look after Agriculture business as they were having 7 acres of agricultural land. He used to cultivate cash crops therein and earn Rs.1,50,000/- p.a. Deceased Deepak was also looking after milk business and used to receive Rs.2000 to Rs.3000/- p.m. from it. He reiterated that the accident took place on account of rash and negligent driving of S.T. bus driver. During cross examination, he denied the suggestion that his son was not earning Rs.50,000/- to Rs.60,000/- p.m. He admitted that his son was not paying Income Tax. He also denied that he gave false account that 100-150 students were customers of his mess and he was charging Rs.600/- per student. 5 The claimants also examined Sachin Maruti Fatangare, at Exh. 25. He narrated the incident. He deposed that initially S.T. Bus gave dash to the tempo and thereafter, straight way dashed to their motor cycle. He also reiterated that deceased Deepak was running hotel Deepraj and was also running mess where 100 students were the members and for whom he was charging Rs.600/- each. In the cross examination he denied that the accident took place because of deceased Deepak overtaking the tempo. 6 On the basis of the material on record the Tribunal came to the conclusion that deceased while trying to overtake the tempo and 6 sugarcane loaded carts ahead of him, gave dash to the S.T. Bus and thus the accident took place due to contributory negligence on the part of motor cycle driver. The Tribunal further held that panchnama shows that the motor cycle of the deceased was entangled below front axle of the bus which was taken out. On the basis of material on record the Tribunal came to the conclusion that there was contributory negligence of 50%-50% on the part of driver of the motor cycle and the driver of the offending bus. 7 In so far as the compensation is concerned, before the Tribunal submissions were made on behalf of the claimants that income of the deceased may be considered as Rs.10,000/- p.m. After considering ages of the parents of the deceased, the multiplier of 15 be applied to the present case. 8 On the other hand, before the the Tribunal, on behalf of the respondent, it was submitted that the claimants did not prove the documentary evidence regarding income of deceased. The monthly income of the deceased can be taken as Rs.3000/- p.m. and after calculating annual dependency after deducting 1/3 amount for his personal expenses and after applying multiplier of 15, the amount of compensation may be calculated. It was further submitted that after taking into consideration 50% contributory negligence on the part of 7 the driver of S.T. bus and 50% contributory negligence on the part of the deceased, driver of motor cycle the compensation may be determined. 9 The Tribunal after considering the submissions made on behalf of the claimants and the respondent and considering the evidence on record came to the conclusion that the claimants are entitled to compensation on the basis of monthly income of deceased of Rs. 3000/- and applied multiplier of 15 considering the ages of the parents of deceased. Against this judgment and award the claimants have preferred this first appeal. 10 The appeal came up for admission before this court on July 3, 2009. The Court was pleased to issue notice to the respondent and called record and proceeding of the case. The Court further directed that the appeal be heard finally at the admission stage. In view of this, appeal is Admitted. Learned counsel for the respondent Shri Goyanka, waives service. By consent of the parties, appeal is heard finally. 11 In support of this appeal, Shri Shinde, learned counsel for the appellants submitted that the Tribunal committed error in recording the finding that this is a case of contributory negligence and in that 8 deceased Deepak was negligent to the extent of 50% and the driver of the S.T. Bus was negligent to the extent of 50%. From the material on record, it is evident that the driver of S.T. Bus was solely responsible for causing accident. He also submitted that the Tribunal has not properly determined monthly income of deceased. He criticized the approach of the Tribunal by contending that the Tribunal has not at all discussed in detail the documentary evidence produced by claimants in support of monthly income of deceased Deepak. He invited my attention to the licence issued under the provisions of Bombay Shops and Establishment Act, 1948, in respect of Hotel Deepraj as also the bills evidencing supply of milk to Sangamner Vibhag Sahakari Doodh Utpadak Sangh Maryadit, Market Yard, Sangamner. In the submission of the learned counsel for the claimants, these documents are duly proved by examining Gorakhnath at Exh.20 and the same were substantiated by Sachin at Exh.25. Nothing was elicited in their cross examination. It is in these circumstances the Tribunal committed serious error in accepting the submissions made on behalf of the respondent and arriving at the conclusion that monthly income of deceased was Rs.3000/-. 12 On the other hand, leaned counsel for the respondent submitted that the Tribunal has rightly come to the conclusion that there was contributory negligence of 50% each on the part of deceased Deepak 9 and the driver of S.T. Bus. This was also evident from the police papers, which are produced alongwith list at Exh.3. In so far as the finding recorded on the question of compensation, he submitted that the claimants have not substantiated their claim about monthly income of deceased. He therefore, prayed for dismissal of the appeal. 13 After hearing the learned counsel for the parties, as also after considering the material on record, it is evident that the deceased was trying to overtake the tempo and sugarcane loaded carts while S.T. bus was coming from the opposite side. I am satisfied that the Tribunal has rightly arrived at the conclusion that this is a case of contributory negligence of 50% each on the part of deceased Deepak and on the part of driver of the S.T. Bus. Considering the age of deceased as also the ages of the parents of the deceased, the Tribunal rightly applied multiplier of 15 in the facts and circumstances of the case. However, while arriving at monthly income of deceased Deepak, the Tribunal has absolutely not assigned any reason and had fixed the monthly income of Rs.3000/-. Perusal of the impugned judgment and award shows that the Tribunal has not at all discussed the documents produced by the claimants to substantiate their claim about monthly income of the deceased. In para 16 of the impugned judgment, the Tribunal merely observed that after considering the submissions of both learned advocates and considering the evidence on record and 10 the citations, it came to the conclusion that the claimants are entitled to compensation on the basis of the monthly income of the deceased of Rs.3000/-. In my opinion, this is not correct approach for determining the monthly income. The Tribunal is expected to discuss each and every document, which is proved by the parties. The Tribunal must assign its reasons for accepting the documents or rejecting the documents. The Tribunal is expected to consider the evidence threadbare. The Tribunal is not expected to record the finding simply by saying that after considering the submissions of both the learned advocates and as per evidence on record, it came to the conclusion that monthly income of deceased is Rs.3000/-. In view of this, it has become imperative for me to remit the matter to the Tribunal only for the purpose of fixing the monthly income of the deceased and on that basis quantum of compensation. In so far as the findings recorded by the Tribunal about contributory negligence of 50% each of the deceased and of the driver of the offending S.T. bus and multiplier of 15, in the facts and circumstances of the case, are confirmed. The Tribunal is directed to decide the amount of compensation after fixing the monthly income on the basis of the evidence produced on record. 14 In the result the appeal is allowed and the impugned judgment and order in so far as the fixing the compensation at Rs.1,81,500/- inclusive of no fault liability amount is set aside. The Tribunal is 11 directed to decide the monthly income of the deceased on the basis of the evidence produced on record and fix the compensation in accordance with law and in the light of the observations made herein. Office is directed to transmit the record and proceeding immediately to the Tribunal. After receipt of the record and proceedings of the case, the Tribunal shall issue notice to the parties for causing appearance and shall determine the compensation as expeditiously as possible and in any event, within six months from the date of receipt of record of the case. The appeal is allowed in the aforesaid terms. However, in the facts and circumstances of the case, shall be no order as to costs. *****