1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION FIRST APPEAL NO. 324 OF 1995 WITH CROSS OBJECTIONS NO. 28107 OF 1995 IN FIRST APPEAL NO. 324 OF 1995. The General Manager, ) Ammunition Factory, Khadki, ) Pune – 411 003. ).. Appellant (Org. Opponent No.2) Versus 1. Harbans Kaur Annupsingh Dhatt, ) Adult, residing at – Sarvasti Vihar, ) 177/2, Khadki, Pune – 411 003. ) 2. Kiranjit Kaur Anupsingh Dhatt, ) Minor, Occupation – Student, ) 3. Gurprit Singh Anupsingh Dhatt, ) Minor, Occupation – Student, ) 4. Supenjit Kaur Anupsingh Dhatt, ) Minor, Occupation – Student, ) ( Respondents Nos.2 to 4 Minors by their) Natural Guardian Respondent ) No.1 Mother. ) 5. Vishnu Mahadeo Bhadale, ) Adult, Occ : Driver, ) R/o. at : Moshi, Tal : Haveli, ) District – Pune. ).. Respondents -- Shri P.M. Pradhan for the Appellant Shri Madhav J. Jamdar for the Respondent Nos.1 to 4. -- 2 CORAM : A.S. OKA, J DATE : 19TH JANUARY, 2010. ORAL JUDGMENT : . I have heard learned counsel appearing for the Appellant and the learned counsel appearing for the 1st to 4th Respondents. The 1st to 4th Respondents are the claimants in a claim Petition filed under Section 110-A of the Motor Vehicles Act, 1939 (hereinafter referred to as “the said Act”). The 1st Respondent is the widow of the deceased Anupsingh Kartarsingh Dhatt and the 2nd to 4th Respondents are the children of the said deceased. On 19th September, 1987, at about 11.30 p.m., the deceased Anupsingh was traveling by his scooter. He was plying his scooter on Nehru Road and he was on the way to his residence. The case of the 4th Respondent is that when the deceased was in front of C.A.F.V. D. Depot, a jeep driven by the 5th Respondent gave a dash to the scooter which was driven by the deceased. The Appellant is the 2nd Opponent to the Claim Petition. The Appellant is the owner of the Jeep. The 5th Respondent is the first Opponent to the Claim Petition. The deceased sustained injuries and he succumbed to the injuries. The allegation of the 1st to 4th Respondents is that the driver of the jeep while driving the jeep was not following the traffic rules and regulations and 3 was driving the jeep in a very rash and negligent manner. The allegation is that the jeep was on its wrong side. The deceased was an employee of Garrison Engineers, Defence Department and was holding the post of Subhedar (a Junior Commissional Officer). A claim of Rs.3,00,000/- by way of compensation was made by the 1st to 4th Respondents. The 5th Respondent opposed this application by filing a Written Statement in which he has contended that it was the deceased who was driving the Scooter in a rash and negligent manner. It was contended that the speed of the jeep was hardly upto 10 to 15 kms per hour and it was the deceased who lost the control over his scooter. The learned Member of the Motor Accident Claims Tribunal, Pune, awarded compensation of Rs. 1,75,000/- with interest thereon at the rate of 12% per annum from the date of filing of the claim compensation. The learned Member of the Tribunal held that the accident occured due to rash and negligent driving of the Jeep by the 5th Respondent. The 1st to 4th Respondents have filed cross objections claiming enhancement by a sum of Rs.1,25,000/-. 2. The learned counsel appearing for the Appellant stated that one Shri G.P. Choudhari was a pillion rider of the scooter at the time of accident. Though the said Choudhari was available, he has not been examined as a witness by the Claimants. He submitted that only on the basis of a spot panchanama, finding on the issue of negligence could not 4 have been recorded against the driver of the jeep owned by the Appellant. He submitted that there was no evidence on the point of negligent. 3. The learned counsel appearing for the 1st to 4th Respondent submitted that even the driver of the jeep has not been examined. He pointed out that the author of the panchanama has been examined who has stated that the spot of the accident was shown by the driver of the jeep owned by the Appellant. He submitted that no interference is called for on the point of negligence. As far as cross objections are concerned, he submitted that the multiplicand taken by the Tribunal is on the lower side and higher multiplier of 15 ought not to have been awarded. He submitted that a sum of Rs.4,15,000/- be awarded as compensation. He stated that the 1st to 4th Respondents are willing to pay deficit Court fees. The learned counsel appearing for the Appellant submitted that the compensation awarded under the impugned award is reasonable and no interference is called for. 4. I have carefully considered the submissions. It is well settled that the Tribunal constituted under the said Act is not bound by the strict rules of evidence. The 1st to 4th Respondents came to the Tribunal with a specific allegation that the driver of the jeep was 5 negligent and it was the driver of the jeep who brought the jeep to its wrong side. The 1st to 4th Respondents have examined one Prakash Vitthal Chemte, a duty officer of Khadki Bajar Police Chowky, who was on duty of the fateful day. He has stated in the evidence that the deceased was unable to speak as he had suffered injuries. He has stated that the driver of the jeep was present. In Paragraph 3 of his deposition, he has stated that the driver of the jeep pointed out the spot of accident. Accordingly, a panchanama was drawn. He stated that when the spot of accident was pointed out by the driver of the jeep, the vehicle involved in the accident was lying at the spot of accident. In the cross-examination, there is no challenge to the statement that the driver of the jeep showed the spot of accident to the said witness and that the panchanama of the spot was drawn accordingly. There is no challenge to the contents of the panchanama which were proved by the witness. 5. In a given case, only on the basis of a spot panchanama which is duly proved before the Tribunal, one may not be able to come to the conclusion as regards the exact spot of accident/impact. In a given case, the panchanama may not depict the actual spot of accident, but it may only show the spot where the vehicles involved in the accident stopped after the impact. In the present case, the evidence of the witness examined by the 1st to 4th Respondents shows that the driver of 6 the offending jeep himself showed the spot of the incident and the vehicles were lying at the spot of incident. As stated earlier, there is no cross-examination on this aspect. On the basis of perusal of the panchanama, the learned Member of the Tribunal has held thus:- “…..Perusal of the Panchanama of the accident (Exhibit 49) shows that on the spot, the road is north-South. The jeep was found lying on the road facing towards the North. The scooter was lying on its left side and its front wheel was under the right front portion of the jeep. This situation gives clear idea about the accident that had taken place between the Scooter and the Jeep. On the spot, as it could be seen from the Panchanama, the width of the road was 16 feet, on either side of the road there is having foot path of 5’.5”. What is material to be noted in the Panchanama is that right hand side of the Jeep was just 3 feet away from the Eastern and of the road. The rear wheel of the Jeep was about 4 feet away from the Eastern edge of the road. This clearly indicates that the jeep was entirely on the wrong side. When, the Jeep was being driven by Opponent No.1 from the South to the North, it was expected that he should have kept Jeep on its left side i.e. towards the Western side of the road. However, the jeep was entirely on the Eastern side, i.e. to the wrong side of the road. This itself is sufficient that opponent no.1 was driving the jeep without observing that rules and regulations of the traffic and went to keep his jeep on the left side.” 6. Thus, the spot panchanama is drawn on the basis of the spot shown by the driver of the jeep himself which is on the wrong side of the road as far as the Jeep is concerned. That is how a finding has 7 been recorded by the Tribunal that it was the jeep which came on its wrong side. In the context of this factual position, the failure of the driver of the jeep to step into the witness box becomes relevant. Only he could have explained as to how the jeep was on the wrong side of the road. Therefore, it is not possible to find fault with the finding of the Tribunal on the issue of negligence only on the ground that the pillion rider was not examined. 7. Now coming to the quantum, the 2nd witness examined by the 1st to 4th Respondents ( one Ramchandra Bhimrao Mohite ) stated that the deceased was employed as Nayab Subhedar with effect from 27th February, 1971. His date of birth as disclosed by the said witness is 1st May, 1947. The witness stated that the deceased was drawing the salary of Rs.2,562/- per month. He stated that if the deceased had survived, he would have become Subhedar Major drawing total emoluments of Rs.5,784/- per month. The learned Member of the Tribunal has observed that the net salary of the deceased at the time of accident was Rs.2,282/- per month. 8. As far as computation of compensation by multiplier method concerned, the Apex Court in its recent decision in the case of Sarla Verma (Smt.) & Others v. Delhi Transport Corporation & Another, 8 [(2009)6 SCC 121] has laid down the guidelines after considering the various earlier decisions on the subject. The Apex Court has observed that in a case of fatal accident, the Tribunal will have to follow the guidelines laid down therein for computing the compensation. The age of the deceased was 40 years. He was in the permanent employment. Therefore, in view of what is held in Paragraph 24 of the said decision, 30% of the actual salary will have to be added for the purposes of computing multiplicand. This addition is to be made on account of future prospects of increase in the salary. In view of what is held in the said decision, for the age group of 36 to 40 years, multiplier of 15 will have to be applied. 9. As far as deduction on account of personal expenditure is concerned, considering what is held in Paragraph 30 of the said decision, 1/4th amount will have to be deducted. Applying formula laid down in the case of Sarla Verma (supra), 30% of net income i.e. Rs.684/- will have to be added to the monthly income of Rs.2282/-. After deducting 1/4th for personal expenditure of the deceased, the dependency comes to Rs.2,225/- per month and the annual dependency will be Rs.26,700/-. Even if multiplier of 14 is applied, the compensation amount will exceed a sum of Rs.3,00,000/-. Therefore, the cross objection will have to be allowed by granting additional compensation of Rs.1,25,000/-. 9 10. The learned counsel appearing for the 1st to 4th Respondents submitted that applying the decision in the case of Sarla Verma (supra), the said Respondents will be entitled to a total compensation of Rs.4,15,500/- which is just and reasonable. He submitted that though the total claim made by the said Respondents is at Rs.3,00,000/-, the entire compensation of Rs.4,15,500/- be granted subject to payment of additional court fees. 11. In the cross objections filed by the 1st to 4th Respondents, the additional compensation of Rs.1,25,000/- has been claimed as the total claim of Rs.3,00,000/- has been made in the Claim Petition. The learned counsel appearing for the 1st to 4th Respondents placed reliance on the decision of the Apex Court in the case of Ningamma & Anr. v. United India Insurance Co. Ltd., [AIR 2009 SC 3056 ]. He also placed reliance on the decisions of the Apex Court in the case of Nagappa v. Gurudayal Singh & Ors., [(2003)2 SCC 274]. There cannot be any dispute that in a given case, subject to compliance with the guidelines laid down by the Apex Court in its decision in the case of Nagappa (supra), the Tribunal can exercise power for granting compensation in excess of the claim made. Before the Tribunal exercises the said power, 10 surely the contesting opponents are required to be put to notice. In the present case, the appeal is of the year 1995. The submission of granting compensation in excess of a sum of Rs.3,00,000/- has been made across the bar at the fag end of the final hearing of the appeal. Therefore, this is not a case where the prayer for granting compensation in excess of Rs. 3,00,000/- can be considered by this Court. 12. In the recent past, there has been a fluctuation in the rates of interest on Nationalized Banks and the rates of interest on fixed deposits of the Nationalized Banks have been considerably reduced. Therefore, interest will have to be granted on the enhanced amount at the rate of 7.5% from the date of filing of the claim Petition till deposit of the amount. 13. Hence, I pass the following order. (a) First Appeal No.324 of 1995 is dismissed with no orders as to costs. (b) The Cross Objections Stamp No.28107 of 1995 is allowed. 11 ( c) In addition to the compensation awarded under the impugned judgment and award, the Claimants will be entitled to an additional compensation of Rs. 1,25,000/- together with interest thereon at the rate of 7.5% per annum from the date of filing of the Claim Petition till realization. (d) Time of four months is granted to the Original Opponent Nos.1 and 2 to deposit the enhanced amount of compensation with the Tribunal. (e) After compensation amount is deposited, the Tribunal will pass orders for investment/disbursement of the additional compensation amount. (f) The Original Claimants will be entitled to proportionate costs of the Cross Objections from the Original Opponent Nos.1 and 2. JUDGE