1 ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE JURISDICTION FIRST APPEAL NO. 440 OF 1996 Maharashtra State Road Transport Corporation.) .. Appellant (Org. Opponent No.2) Versus 1. Smt. Bharau Ashok Zagade, ) 2. Master Mahesh Ashok Zagade, ) 3. Master Mangesh Ashok Zagade, ) 4. Master Nilesh Ashok Zagade, ) 5. Vithal Dagdoba Zagade, ) 6. Sou. Bhagirathi Vithal Zagade, ) 7. Shri Prem P. Amarchandji, ) (Dismissed as per Ct. Order dt. 16.1.01. ) 8. The United India Insurance Company, ) Pune. ).. Respondents -- 2 FIRST APPEAL NO. 441 OF 1996 Maharashtra State Road Transport Corporation.) .. Appellant (Org. Opponent No.2) Versus 1. Smt. Aruna Ashok Doshi (Gujar) ) 2. Master Admit Ashok Doshi (Gujar), ) 3. Miss Asawari Ashok Doshi (Gujar), ) 4. Vishnudas Sitaram Doshi (Gujar), ) 5. Rukhmini Vishnudas Doshi (Gujar), ) 6. Shri Ratanlal Bansilal Gavala, ) 7. Shri Prem P. Amarchandji, ) 8. The United India Insurance Company, ) Pune. ).. Respondents Appeal Dismissed against R.Nos.4, 5 and 7. ) -- Shri G.S. Hegde with Shri C.M. Lokesh for the Appellant in both the Appeals. Shri Ajay Patil i/by Smt. Suhasini Mutalik for Respondent Nos.1 to 5 in First Appeal No.441 of 1996. 3 Shri D.R. Mahadik i/by Ms Bhavana Bhatt for Respondent No.8 in First Appeal No.441 of 1996. -- CORAM : A.S. OKA, J DATED : 16TH APRIL, 2010 ORAL JUDGMENT : 1. These two First Appeals can be conveniently disposed of by a common judgment as the same arise out of the Claim Petitions filed relating to the same accident. The First Appeal No.441 of 1996 takes an exception to the judgment and award in the Claim Petition No.510 of 1986. The First Appeal No. 440 of 1996 takes an exception to the judgment and award in the Claim Petition No.506 of 1986. Both the claim Petitions arise out of fatal accident. 2. The accident took place on 1st May, 1986 at 11.45 a.m. near village Varve on Pune-Satara Raod. The deceased were traveling by a Scooter. They were proceeding from Pune to Bhor. When they approached near village Varve, there was a goods truck proceeding ahead of the scooter. The truck had slowed down its speed and therefore, the deceased started overtaking the truck by taking his scooter to the right side. At that time, a bus of the Appellant – State 4 Transport Corporation came from the opposite side. When the scooter was in the process of overtaking the truck, the driver of the said truck increased the speed. Before the scooterist could overtake the truck, the bus gave a dash to the scooter. As a result, both the persons on the scooter died on the spot. The allegation is that the accident took place due to rash and negligent driving on the part of the drivers of the bus as well as the truck. 3. Both the claim petitions were contested by the Appellant by filing a Written Statement. The Appellant denied that the accident occurred due to negligence on the part of the driver of the bus. It was contended that the bus was not at all involved in the accident and it was the truck which had given a dash to the scooterist while he was overtaking the truck. 4. One Claim Petition was filed by the legal representatives of Ashok Doshi (Gujar). The said Ashok Doshi was the pillion rider. The other Claim Petition was filed by the legal representatives of the Ashok Zagade. The said Ashok Zagade was plying the scooter at the relevant time. The Trial Court recorded a finding that the accident occurred only due to the rash and negligent driving on the part of the driver of the bus and in both the cases, the Tribunal proceeded to award compensation. 5 5. The learned counsel appearing for the Appellant has taken me through the notes of evidence and the findings recorded in the impugned judgments. Inviting my attention to the evidence on record, he submitted that the bus of the Appellant was not at all involved in the accident. He invited my attention to the evidence of the driver of the Appellant. He pointed out that the version of the driver is that when the bus reached Karad Village, there was a queue of the buses when he learnt that there was an accident. He stated that there were about 400 to 500 people assembled near the scooter involved in the accident. He pointed out that though there was a crowd, no one stopped the bus and the bus proceeded to Karad. He pointed out that the finding of the Tribunal regarding involvement of the bus is based on the conjunctures and surmises. He submitted that the alleged panchanama of the bus was not drawn at the spot but it was made subsequently. He submitted that merely because some scratch marks were found on the driver’s side of the bus, the Tribunal could not have jumped to the conclusion that the bus of the Appellant was involved in the accident. He submitted that the very fact that the crowd assembled at the spot did not stop the bus shows that the bus was not at all involved in the accident. He submitted that in any event the compensation awarded in both the cases is exorbitant. 6. The learned counsel appearing for the Respondents in the First Appeal No.441 of 1996 supported the impugned judgment and award passed by the Tribunal and submitted that no interference is called for. 6 7. I have given careful consideration to the submissions. In the Claim Petition No.510 of 1986, one Govind Gujar has been examined. He stated that he was plying his own scooter near the spot of the accident. He stated that the scooter was driven by the deceased Ashok Zagade. He stated that the scooterists were proceeded towards Pune. He stated that a truck was going ahead of the scooter of the deceased and the truck driver gave a signal by hand to the scooterist to enable him to overtake the truck. He stated that the bus owned by the appellant came from the opposite direction which gave dash to the scooter. He stated that the bus did not stop and proceeded further. In the cross- examination, a suggestion was given to the said witness that though the S.T. Bus was coming from the opposite side, the driver of the scooter tried to overtake the truck. Perusal of the notes of evidence of the said witness shows that his version that the bus owned by the Appellant was involved in the accident is not shaken in the cross-examination. The plea of the Driver of the Appellant was that the accident had already occurred when the bus came near the spot. 8. In this context, the Tribunal has referred to the panchanama of the bus drawn by the police which is at Exhibit – 46. The said panchanama shows that there were scratch marks on the driver side of the bus starting from driver’s cabin and there were blood stains found at that side of the bus. The panchanama shows that the colour of the scooter was green and the said green colour of the 7 scooter was noticed on the front side of the bus. The panchanama Exhibit – 42 shows that the red colour of the bus could be seen on the damaged scooter. There is no explanation given by the Appellant regarding scratch marks on the driver’s side of the bus and blood stains on the bus. That is why the Tribunal has rejected the case made out by the driver of the bus that the bus was not involved. In the cross-examination, though the driver of the bus denied the correctness of the suggestion that his bus gave a dash to the scooter, in response to further question he stated that “I do not know whether as a result of the dash, the scooterist fell under the truck.” Once the case of the appellant that the bus was not involved in the accident was discarded, the Tribunal was right in accepting the case made out by the claimants that there was negligence on the part of the driver of the bus. Strict Rules of the evidence are not applicable to the Tribunal under the Motor Vehicles Act, 1939. Considering the documents and the oral evidence on record, a finding has been recorded that the bus of the Appellant was involved in the accident and that the driver of the bus was negligent. Hence, no fault can be found issue of negligence. 9. As far as the Claim Petition No. 510 of 1986 is concerned, the deceased was employed in Bhor Industries Limited and the salary certificate at Exhibit -41 shows that his monthly salary is Rs.1,066/-. Though the deceased had a regular job in a limited company, the income of only Rs.1,200/- per month was taken for computing the multiplicand. Considering the fact that the age of the 8 deceased as 32, the multiplier 16 has been rightly adopted. The deduction of 1/3rd amount has been made on account of personal expenditure of the deceased. In fact, the multiplicand applied is on the lower side as there were future prospects the increase in the income of the deceased as the deceased was employed in a Limited Company. Therefore, compensation amount fixed at Rs. 1,60,000/- with interest at the rate of 12% per annum is reasonable. As far as the Claim Petition No.506 of 1986 is concerned, the deceased was employed in the same Company and his salary was Rs.1,041/- per month. For the purposes of calculating the multiplicand, the income has been taken as Rs.1,200/-. The age of the deceased was 33 years, and therefore, the multiplier 16 has been rightly adopted. Therefore, compensation of Rs.1,41,400/- with interest thereon as the rate of 12% per annum is reasonable. It must be clarified that the amount of compensation in both the cases is inclusive of the amount, if any, paid under no fault liability. 10. Hence, there is no merit in the Appeals and subject to aforesaid clarification, the same are accordingly dismissed with no order as to costs. JUDGE