1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.236 OF 1995 Maharashtra State Road Transport Corporation Appellant versus 1. Aaphatari Shakil Kadiri, 2. Almas Shakil Kadiri, 3. Ajama Shakil Kadiri, 4. Hasan Alli Kadiri, 5. Aayasha Hasan Kadiri, 6. Hanif Sattar Kazi, 7. Oriental Insurance Co; Branch Pen. Respondents Mr.G.S.Hegade with C.M.Lokesh for appellant. Mr.S.M.Oak for respondents. CORAM : A.S.OKA, J. DATE : 09th December 2009 JUDGEMENT :- 1. Heard learned counsel for the appellant and learned counsel for the respondents. The respondents are the claimants in a claim petition filed under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the said Act"). The claim for compensation was made on account of death of one Shakil in a motor accident. The first respondent is the widow of the said Shakil. The second and third respondents are the children of said Shakil and their respective ages on the date of accident were 4 and 2. The fourth and fifth respondents are the parents of the deceased. 2. According to the case of 1st to 5th respondents, the deceased was proceeding in a truck. At that time a bus owned by the appellant came 2 from the opposite direction and gave a dash to the truck. The allegation is that the deceased was proceeding by the truck along with goods towards Mumbai and the offending bus was coming from Mumbai towards Revdanda. The allegation is that the bus was being driven in a rash and negligent manner. The allegation is that the bus was being driven in excessive speed. As a result, after the dash, the truck turned turtle. The deceased sustained serious injuries as a result of the accident and succumbed to the injuries. It must be stated here that 1st to 5th respondents impleaded 6th respondent as the owner of the truck and 7th respondent as the insurer of the truck. There was no written statement filed by the appellant. The written statement was filed only by the 7th respondent (insurer). Against the claim made by the appellant of Rs.9.50 lakhs, the Tribunal granted a compensation of Rs.4,78,560/- with interest @ 12% p.a.. 3. The learned counsel for the appellant submitted that though the appellants may not have filed the written statement, still there was burden on the claimants to prove that the bus was being driven in rash and negligent manner. He submitted that admittedly no eye witness has been examined. He submitted that the Tribunal could not have read in evidence the statement of the first informant recorded by the Police. He submitted that the learned Member has not even considered the panchanama. He submitted that the finding of negligence has been recorded only on the basis of Police statement which is not admissible in evidence. Inviting my attention to the evidence adduced by the claimants, he submitted that the widow admitted that the deceased had come back from Kuwait from where he was employed and the accident occurred four months after he returned from Kuwait. He pointed out that it is impossible to believe that within four months the deceased started earning Rs.8,000/- per month as stated by the witness. He pointed out that in the cross examination the widow admitted that the deceased was not the owner of the business but he was an employee of one Halim. He submitted that income of Rs.4,000/- per month taken by the Tribunal is on the higher 3 side. 4. The learned counsel for the respondents pointed out that not only that the appellants failed to file written statement but their application for taking the written statement on record which was made belatedly has been rejected. He submitted that the averments made in the claim petition have gone unchallenged. He submitted that there was enough evidence to show that income of the deceased was more than Rs.4,000/- p.m.. He submitted that no interference is called for. 5. I have given careful consideration to the submissions. The claim petition was filed by 1st to 5th respondents on 28th August 1991. It appears from the roznama of the proceedings that along with the main claim petition, an application under section 140 of the said Act was filed by 1st to 5th respondents. The first respondent in the claim petition filed by the 1st to 5th respondents herein was the present appellant. The roznama shows that notice issued to the appellant was duly served and in fact on 13th December 1991 an application was filed by the advocate for the appellant for grant of time to file written statement. Thereafter from time to time adjournments were sought on behalf of the appellant for filing the written statement. On 13th March 1992, the application under section 140 of the said Act was allowed. On 15th June 1992, an order was passed against the appellant directing that the claim petition will proceed without written statement of the appellant. The claim petition came up before the Tribunal on 29th January 1993 when issues were settled. Thereafter the claim petition was repeatedly adjourned for hearing. On 26th July 1994, an application was made by the appellant for setting aside the order passed for proceeding ex-parte and for taking the written statement on record. By a detailed order passed on the same day, the application was rejected. It appears that on the same day the deposition of first respondent was recorded by the Tribunal. Thereafter the trial went on and the award came to be made on 8th September 1994. The appellant did not challenge the order dated 26th July 1994 by filing 4 appropriate proceedings. It is true that the appellants could have challenged the said order even in this appeal preferred against the award. Therefore, it will be necessary to consider the averments made in the application at Exhibit-25. As stated earlier, the appellant appeared before the Tribunal way back on 13th December 1991 through an advocate. An order was passed on 15th June 1992 by the Tribunal to proceed against the appellant without written statement. The application was made more than two years thereafter on 6th June 1994. There is not even a sentence in the application recording reasons as to why the written statement was sought to be tendered three or four dates after the claim petition was fixed for hearing. There is absolutely no explanation for the gross delay in the said application and the only assertion in the application is that production of written statement may be allowed in the interests of justice and equity. The Tribunal was dealing with a claim petition of 1991 arising out of a fatal accident in which a 30 year old man succumbed injuries and therefore, there was every justification for the Tribunal to have rejected the application at Exhibit-25. As pointed out earlier, the claim petition was decided two months thereafter. Nothing prevented the appellants from challenging the said order passed below application at Exhibit-25. 6. In view of clause (b) of sub rule 1 of rule 276 of the Maharashtra Motor Vehicles Rules, 1989, the provisions of Rules 5 and 10 of Order VIII of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code") have been made applicable to the proceedings before the claims Tribunal insofar as the same apply to the proceedings before the Claims Tribunal. 7. Reliance was sought to be placed by the counsel for the appellants on Rule 261 of the said Rules and in particular sub rule 2 thereof. Rule 261 reads thus :- "261. Appearance and examination of parties.- (1) The opposite party may, and if so required by the 5 Claims Tribunal shall, at or before the first hearing or within such time as the Claims Tribunal may permit, file a written statement dealing with the claim raised in the application, and any such written statement shall form part of the record, in accordance with the method of recording evidence specified in Rule 267. (2) If the opposite party contests the claim, the Claims Tribunal may, and if no written statement has been filed, shall, proceed to examine the parties to the claim and shall reduce the result of examination to writing." Rule 267 of the said Rules reads thus :- "267. Method of recording evidence.- The Claims Tribunal shall, as examination of witnesses proceeds, make a brief memorandum of substance of the evidence of each witness and such memorandum shall be written and signed by the members of the Claims Tribunal and shall form part of the record : Provided that, if the member or the Chairman of the Claims Tribunal is prevented from making such memorandum, he shall record the reason of his inability to do so and shall cause such memorandum to be made in writing from his dictation and shall sign the same, and such memorandum shall form part of the record : Provided further that, the evidence of any medical witness shall be taken down as nearly as may be, word to word." It is permissible for the Tribunal to make only a brief memorandum of the substance of the evidence of the witnesses examined by the parties and it is not necessary to record a detailed evidence of the witnesses. Reliance placed on sub rule 2 of rule 261 will not help the appellant inasmuch as the emphasis in the sub rule 2 of rule 261 is on the Tribunal proceeding with the hearing of the claim the moment it is found that the written statement has not been filed. It is true that even in the trial of ordinary civil suit a party who does not file the written statement has a limited right of cross examination. If written statement is not filed, it is not necessary that in every case the claimants are required to lead evidence. If the 6 Tribunal is satisfied that a case is made out for passing an award either under Rule 5 or Rule 10 of Order VIII of the Code, the Tribunal is free to pass an award. Both under Rules 5 and 10 of Order VIII of the Code, there is a discretion given to the Court to call upon a plaintiff and in case of a claim petition, a claimant to lead evidence. 8. There is a specific assertion in the claim petition as regards rash and negligent driving on the part of the driver of the bus owned by the appellant. The said averment regarding negligence was not denied by the appellant by filing written statement. The attempt of the appellant to belatedly file written statement was failed when application at Exhibit-25 was rejected. The claimants were not put to notice that their case regarding negligence as made out in the claim petition is being contested by the appellant. If the logic of the submissions made by the counsel for the appellant is to be applied, nothing prevented the appellant from leading the evidence by examining the driver. Even that was not done by the appellant. In the decision of the Tribunal, a reference has been made to document at Exhibit-40 which is the statement of the first informant recorded by the Police. The panchanama of the spot of accident is also on record which has been marked as Exhibit-41. It will be necessary to refer to the evidence of Prabhakar Dattatraya Yogi who is PW-4. He was examined to prove the report submitted by him. At the relevant time he was attached to Wadkhal Police Station. He proved the certified copy of the report submitted by him which was marked as Exhibit-40 without any objection by the advocate for the appellant. He proved the panchanama at Exhibit-41 in evidence. Even said document was marked without any objection by the advocate for the appellant. Thereafter the witness made a categorical statement on oath that he found that the bus driver was negligent and was responsible for causing the accident. A perusal of the cross examination made by the advocate for the appellant shows that there is no challenge to the statement in the examination-in-chief that on inquiry he found that the driver of the bus was negligent. 7 9. This is the manner in which the proceedings of the claim petition were conducted by the appellant and now when this appeal of the year 1995 arising out of the claim petition of the year 1991 has reached for final hearing at the fag end of the year 2009, a contention is sought to be raised that 1st to 5th respondents who are the dependents of the deceased ought to have adduced the evidence to prove the negligence. This was a case where even on pleadings, the Tribunal could have recorded a finding of negligence against the appellant. In absence of any written statement of the appellant, even evidence of witness Prabhakar Dattatraya Yogi was sufficient to justify the finding of negligence of the driver of the appellant especially considering the manner in which the cross examination of the said witness was made by the advocate appointed by the appellant. 10. It will be necessary to consider what is held by the Tribunal on the aspect of negligence. In paragraph 11 of the judgement the Tribunal has held thus :- "11. The claim is resisted on two points, viz. (i) negligence and (ii) quantum. Shri Darandale cross- examined the witnesses on behalf of the opponents. Witnesses examined by the applicants had no personal knowledge about the accident. The applicants in the petition para.1 pleaded the S.T.Bus came in excessive speed and in rash and negligent manner and brushed to the truck. The truck turtled and in that Shakil injured. Exhibit 40 is the report recorded by P.W.4 Prabhakar Yogi. He stated on 20th May 1991 he was attached to Wadkhal Police Station. The driver of the truck by name Kadiri gave report of accident, he reduced the said report in writing. He went to the spot and prepared spot panchanama. About this evidence there is no challenge during cross examination. He has informed to the Police in Exhibit 14 that when he was going towards Bombay in a truck bearing No.MWU 4987 he saw from opposite side one truck was coming. Behind that there was a S.T.Bus overtook that truck, and while overtaking the bus brushed the side of the truck and the truck turtled. He informed to the Police that the deceased was sitting in the truck as the owner of the goods and not as passenger. He received injuries. The driver of the S.T.bus when saw that there was no sufficient 8 space to overtake the truck coming ahead, then it was not advisable for him to overtake. While passing the vehicle of opposite side, he failed to give sufficient space on the road and that caused brushing of two vehicles with the result the truck turtled and Shakil received injuries. It means the driver of the S.T.Bus was completely rash and negligent while overtaking the truck going ahead to the S.T.bus. While overtaking the driver saw that the truck No.MWU 4987 loaded with fuel was coming from opposite side. He has no sufficient space to overtake even though he tried to overtake and in that attempt he has brushed his vehicle with the loaded truck. He took risk of overtaking. If he would not have taken the risk of overtaking or if he would have allowed truck which was ahead to pass the loaded truck MWU 4987, he would have saved the accident. But he omitted to do so. It means he was rash and negligent in driving." Considering the discussion made above, it is not possible to find fault with the said finding recorded by the Tribunal on the aspect of negligence. 11. Now, turning to the point of quantum of compensation, the learned counsel for the appellant submitted that there is no evidence adduced to prove that the age of the deceased was 30 years at the time of accident. He stated that the widow has not lead any evidence about the age of the deceased. On this aspect it must be noted that in the claim petition, the date of birth of the deceased has been disclosed as 17th July 1960. As stated earlier, there is no written statement and in absence of contest by the appellant, the claimants were not expected to lead the evidence by producing the birth certificate or other evidence of the date of birth. On the record of the claim Tribunal there are two documents at Exhibits-27 and 28 which are communications issued by the Dean of the LTMG Hospital, Sion recording approximate age of the deceased as 35 years. In the document at Exhibit-31 which is police inquest, the age of the deceased is shown as 30 years. In the claim petition, the widow of the deceased has disclosed her age as 24 years. Considering all these aspects, it is not possible to find fault with the approach of the Tribunal when the Tribunal proceeded on the footing that the approximate age of the deceased was 30 years. 9 There is another aspect which must be noted here that the widow in her examination-in-chief deposed that the age of the deceased was 30 years on the date of accident. Though the cross examination is made by the advocate for the appellant on the aspect of production of birth certificate, there is no suggestion given that the statement in the examination-in-chief about the age of the deceased was false. 12. Now turning to the dispute regarding income of the deceased, in the examination-in-chief, the widow has stated that four months prior to the accident the deceased who was employed in Kuwait had returned back along with his family. The widow stated that the deceased was earning Rs.10,000/- per month in Kuwait. In the cross examination, the widow admitted that the deceased was working as an employee of one Halim. However, there is no challenge to the fact that four months prior to the date of accident, the deceased was earning Rs.10,000/- per month in Kuwait. The Tribunal has taken the income of the deceased at Rs.4,000/- p.m.. The Tribunal has applied multiplier of 14. As per the decision of the Apex Court in case of Sarla Varma and others Vs. Delhi Transport Corporation and another ([2009]6-SCC-121), for the age group of 26 to 30 years, the multiplier fixed is 17 and for the age group of 31 to 35 years the multiplier fixed is 16. Though very little fault can be found with the finding of the Tribunal that monthly income of the deceased can be taken at Rs. 4,000/- per month, even if the income is taken slightly on the lower side, the multiplier will have to be increased by at least two if not by three. Therefore, the compensation of Rs.4,78,560/- awarded by the Tribunal will have to be treated as a reasonable compensation and no interference is called for. 13. In the circumstances, there is no merit in the appeal and the same is accordingly dismissed with no orders as to costs. 14. If any amount deposited by the appellant in this Court is pending, 10 the same shall be transferred to the concerned Tribunal. The concerned Tribunal will pass appropriate orders as regards disbursement/withdrawal of the amounts after hearing the parties. (A.S.OKA, J.)