1 60 fa.1614.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FIRST APPEAL NO. 1614 OF 2011 Maharashtra State Road Transport Corporation. ... Appellant Versus Smt. Shobha Pramod Mane and others. ... Respondents ----- Mr. P.G.Lad for the Appellant. Mr. Bhushan Walimbe i/b Ms Preeti B. Walimbe for the Respondent Nos.1 to 4. ----- CORAM : A.S.OKA, J. DATE : 20 th October, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the Appellant and the learned counsel appearing for the Respondent Nos.1 to 4. 2 The Respondents have filed a compilation placing on record the true copies of the relevant documents on record of the Tribunal. 3 The challenge by the Appellant is to an award made on a 2 60 fa.1614.11 claim petition filed by Respondent Nos.1 to 4 under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the said Act”). The case made out in the claim petition is that the deceased husband of the Respondent No.1, who was an employee of the Shirala Panchayat Samiti was proceedings on his motor-cycle by Kameri Islampur road on 20 th June, 2009. It is alleged that the bus owned by the Appellant came from the opposite direction and gave a dash to the motor-cycle driven by the deceased. The deceased sustained injuries and ultimately succumbed to the injuries. A claim of Rs.19,00,000/- was made by the Respondent Nos.1 to 4. 4 The claim was opposed by the Appellant and the Respondent No.5 by filing written statement. It was contended that the deceased while plying the motor-cycle was using his cellphone. The bus was being driven by its left hand side. The driver of the bus by sounding a horn, gave a warning to the deceased. However, the motor-cycle came on its wrong side. By that time, the bus was stopped, the motor-cycle gave a dash to the bus. Thus, the case of the 3 60 fa.1614.11 Appellant was that the negligence was on the part of the deceased. 5 The Tribunal held that the accident occurred due to rash and negligent driving on the part of the driver of the bus of the Appellant. By taking monthly salary at Rs.11,437/-, after making 1/3 rd deduction on account of personal expenditure of the deceased, the multiplier of 16 was applied and compensation of Rs.14,84,000/- has been granted after adding the usual amount of Rs.20,000/-. 6 The learned counsel appearing for the Appellant submitted that the claimants did not adduce any evidence to prove the negligence on the part of the driver of the bus. He submitted that the Tribunal could not have recorded a finding of negligence only on the basis of what is set out in the spot panchanama. He submitted that from the location of the bus reflected from the panchanama, it does not appear that the bus came on its wrong side. He submitted that there was no evidence to show that the age of the deceased was 35 years and that no statutory deductions have been made from the salary for 4 60 fa.1614.11 the purposes of calculating the multiplicand. The learned counsel appearing for the claimants supported the impugned judgment and award. On instructions he stated that the claimants do not intend to prefer any appeal or cross-objection. 7 I have carefully considered the submissions. The defence of the Appellant was that the deceased was using the cellphone while plying the motor-cycle and notwithstanding the warning given by the driver of the bus, he came on his wrong side and gave a dash to the bus. 8 The Tribunal constituted under the said Act is not bound by the strict rules of evidence. The Tribunal has read the FIR and the spot panchanama, which were admitted in evidence. Considering the location of the motor-cycle shown in the spot panchanama, the learned Member of the Tribunal observed that there was no possibility of motor-cycle going on its wrong side. The learned Member of the Tribunal observed that the bus must have been moved after the 5 60 fa.1614.11 accident to avoid traffic congestion. 9 In fact, this was a case where adverse inference ought to have been drawn against the Appellant for not examining the driver of the bus, as the cause of the accident was only within his special knowledge. In fact, no witness was examined by the Appellant. The Appellant has not explained as to why the driver or the conductor of the bus or passengers travelling by the bus were not examined. Hence, by drawing an adverse inference, the finding on issue of negligence will have to be recorded against the Appellant. Therefore, it is not possible to find fault with the finding recorded by the Tribunal on the issue of negligence. 10 As far as the quantum of compensation is concerned, the claimant examined one Mr.Sanjay Pawar, an employee of the Shirala Panchayat Samiti of which the deceased was an employee. He proved the salary certificate issued by the Deputy Engineer, which shows the monthly salary of Rs.11,437/- for May 2009. He stated that the date of 6 60 fa.1614.11 appointment of the deceased was 20 th March, 1992 and the year of his retirement was 2032. There is no cross-examination made of the said witness on the year of retirement of the deceased and only suggestion given is that the age of retirement was 58 years, which was accepted by the witness. Perusal of the certificate at Exhibit – 24 shows that the deceased was not an Income Tax payer and therefore, only deduction, which could have been made is of Rs.200/- per month on account of professional tax. On the basis of the age of the retirement and the year of the retirement of the deceased reflected from the record of the employer, the Tribunal has correctly drawn an inference that on the date of the accident, the age of the deceased must be 35 years. 11 The deceased was in the permanent employment of the Shirala Panchayat Samiti. No addition has been made on account of future prospects of increase in the earnings of the deceased in terms of the decision of the Apex Court in the case of Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another [(2009) 6 Supreme Court Cases 121]. In terms of the said decision, deduction 7 60 fa.1614.11 of 1/3 rd amount has been made on account of the personal expenditure of the deceased and multiplier of 16 has been applied. Therefore, the ultimate compensation granted is less than what is provided for in the said decision of the Apex Court inasmuch as no addition has been made on account of future prospects of increase in the salary. 12 Hence, no interference is called for with the impugned judgment and award. 13 The appeal is accordingly dismissed. The amount deposited by the Appellant shall be transfered to the concerned Tribunal. 14 Civil Application No.1760 of 2011 and the Civil Application No.4492 of 2010 do not survive and the same are disposed of. [ A.S.OKA, J ]