1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 109 OF 2007 1. Mr. Nervin Lourdes Miranda, son of Mr. Anthony Joseph Miranda, aged 63 years, businessman, and his wife 2. Mrs. Francisca Agnela Miranda, aged 61 years, housewife, both residents of G-3, Vaikunth Apartments, Comba, Margao, Goa. ......... Appellants. V/s. 1. Shri Mahesh D. Naik, son of Dharma Naik, major in age, resident of House No.24, near Survey Office, Borda, Margao, Goa. Owner/Driver. 2. The Oriental Insurance Company Ltd., Margao Branch, David House, P.O. 234, Margao, Goa. Insurer. ......... Respondents. Mr. S. S. Kakodkar, Advocate for the appellants. Mr. Santosh H. Bharne, Advocate for respondent No.2. 2 CORAM :- A.S. OKA & F.M. REIS, JJ. Date of reserving the judgment : 14/06/2010 Date of pronouncing the judgment : 22/06/2010 J U D G M E N T : (Per A.S. OKA, J.) The appellants, who are the claimants in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 ( for short, hereinafter, referred to as “the said Act”), have preferred this first appeal for challenging the Judgment and Award dated 23rd January, 2007 passed by the learned Presiding Officer of the Motor Accident Claims Tribunal for the Taluka of Salcete at Margao. By the impugned Judgment and Award, the claim petition was dismissed by the learned Presiding Officer. 2. The compensation has been claimed by the appellants on account of death of their daughter Miss Veena in a motor accident on 1st August, 2002. The case made out by the appellants is that their daughter was a qualified Civil Engineer holding a Degree in Civil 3 Engineering and she was employed on a monthly salary of Rs.6,000/-. 3. The case made out by the appellants is that the deceased Veena was proceeding from Margao to Majorda by her scooter. At that time a mini bus, owned and driven by the first respondent, came from the side of Seraulim in a fast speed. The case made out in the claim application is that the first respondent was driving the vehicle in a rash and negligent manner and he was proceeding from the middle of the road. The allegation is that the bus driven by the first respondent gave a dash to the scooter plied by the deceased. The case is that as a result of the dash, the deceased lost control over the scooter, resultantly her head banged against the rear side mudguard, due to which the deceased sustained injury to the head. The deceased died on the spot. 4. The second respondent was, admittedly, the insurer of the mini bus on the date of the accident. The total compensation claimed by the appellants was in the sum of Rs.10,50,000/-, which included funeral expenditure of Rs.30,160/-. 5. The claim petition was contested by the respondents by 4 filing written statement. The basic contention raised by the respondents is that it was the deceased who was driving her scooter in a rash and negligent manner. The case made out in the written statement is that the first respondent was driving the mini bus in a moderate speed. It is contended that two buffaloes suddenly crossed the road in front of the deceased. The first buffalo crossed the road, but the second buffalo suddenly turned towards the deceased. It is the contention that the scooter was being driven in a very high speed. It is alleged that it was the scooter which gave a dash on the face of the buffalo and went on its wrong side and dashed against the rear portion of the mini bus. It is contended that as a result of the dash, the deceased fell on the ground. 6. The appellants examined the first appellant, Mangaldas Jadhav, and Lourenco Martins, along with one Ms. Sandra Pereira, as witnesses. The first respondent examined himself in support of his case. Apart from examining the first respondent, the respondents examined one Mr. Seby Pinto, as well as one Santan D'Souza as witnesses. The Tribunal recorded a finding that the appellants failed to prove that the cause of the accident is the rash and negligent driving of the mini bus by the first respondent. In fact, the finding recorded by 5 the Tribunal is that the accident occurred due to fault on the part of the deceased. The Tribunal held that if negligence could have been established by the appellants on the part of the first respondent, the appellants would have been entitled to compensation of Rs.2,56,000/-. 7. The learned Counsel appearing for the appellants has taken us through the notes of evidence and the documents placed on record. The learned Counsel appearing for the appellants submitted that the evidence of the two eye witnesses, namely Mangaldas Jadhav and Laurenco Martins could not have been discarded by the learned Member of the Tribunal. He pointed out that merely because their statements were not rerecorded by the police, their evidence cannot be discarded. He invited our attention to the evidence of Mr. Santan D'Souza examined by the first respondent who was the conductor working in the mini bus of the first respondent at the relevant time. The witness stated that the damage to the bus on account of the accident was to the rear left side bumper of the mini bus. He submitted that the panchanama, which is exhibited on record, shows that the damage was not on the left side of the mini bus, but on the right side of the mini bus for which there was no explanation. He submitted that as 6 the case made out by the conductor of the bus of the first respondent turns out to be totally incorrect, the contention of the respondents that it was the deceased who came on her right hand side while driving the scooter cannot be accepted. He submitted that it is obvious from the sketch which is a part of the scene of offence panchanama that the scooter was very much on the correct side of the road. He submitted that when the panchanama was recorded, the bus was taken to its extreme left side, but looking to the damage on the right hand side of the bus, it appears that it was the bus which came on its wrong side and gave a dash to the scooter of the deceased. He submitted that the entire negligence was on the part of the driver of the mini bus and, therefore, the finding recorded by the Tribunal on the aspect of negligence is perverse. 8. Learned Counsel appearing for the second respondent supported the impugned Judgment and Award. He submitted that the evidence of the two so called eye witnesses examined by the appellants ought not to be considered inasmuch as both the witnesses appear to be got up witnesses, inasmuch as they had not reported to the police about the accident which they had allegedly seen and in fact, during the 7 course of investigation of the offence, the statements of the said two witnesses were not recorded. He submitted that both the witnesses were interested witnesses as they knew the first appellant. He submitted that the Tribunal was right in recording a finding that the appellants have failed to discharge burden of establishing negligence on the part of the first respondent. He submitted that the trial Court was justified in recording a finding on the issue of negligence in favour of the first respondent. 9. We have given careful consideration to the submissions. We have perused the notes of evidence and record of the case. The first point to be decided is as regards the negligence. The evidence of the first appellant is not material on the issue of negligence as he is admittedly not an eye witness. CW.2 Mangaldas P. Jadhav stated in his affidavit in lieu of examination-in-chief that while he was proceeding to Mungul from his residence by his scooter, he saw the deceased proceeding on her scooter in front of him. He stated that he saw a mini-bus driven by the first respondent coming from the opposite direction in a rash and negligent manner and the said mini bus gave a dash to the scooter of the deceased. He stated that the deceased fell 8 down on the road and was lying in unconscious state. He stated that he was at a distance of about 30 to 35 metres from the spot the accident. In the cross examination, the witness stated that he knew the first appellant for a period of six months prior to the accident. He stated that he started knowing the first respondent from the date of the accident. He stated that he had seen the deceased for the first time at the time of the accident. He stated that the deceased must be plying the scooter at a speed of about 45 kms./hour. He stated that the driver of the mini bus dashed against the scooter. He admitted that neither he informed the police that he had seen the accident, nor the police recorded his statement. He denied the correctness of the suggestion that he was not present at the time of the accident. A suggestion was given to him that two buffaloes came on the street before the accident. He denied the correctness of the said suggestion. 10. The second material witness examined by the appellant is one Laurenco Bevin Martins. In his affidavit in lieu of examination in chief, he stated that on the fateful day he was travelling by the bus of the first respondent. He stated that he was standing in the bus as there was no seat available. He stated that when the bus was proceeding 9 towards Seraulim, after crossing Mungul, the first respondent gave a dash to the scooter coming from the opposite direction. He stated that the driver of the bus was driving in a very high speed as a result of which he could not avoid the accident. In the cross examination he admitted that he was well acquainted with the appellants for seven to eight years prior to the date of the accident and that, being a former neighbour, he was frequently visiting the house of the appellants. A suggestion was given to the witness that he was working with Advocate Anaclet Viegas in his office. He denied the correctness of the suggestion. The significance of this suggestion appears to be that the said Advocate was associated with the Advocate representing the claimants. In the cross examination, the witness stated that he was the first passenger who was standing and all other standing passengers were behind him. He stated that the bus gave a dash to the scooterist on the right hand side of the bus. He admitted that he did not inform the first appellant that he had witnessed the accident and he never told the police that he was travelling by the bus at the time of the accident. 11. On the other hand, the first respondent stated in his affidavit in lieu of examination-in-chief that he was taking his bus from 10 Margao bus stand to Betalbatim. He stated that near a house at Mungul, one of the passengers got down. Thereafter, he gave his own version of the manner in which the accident occurred. Paragraphs 3 to 5 of his deposition read thus : “3. I say that after getting down by the said passenger when I reached at the distance of 10 to 15 metres, a scooter bearing registration No.GA- 02-N-3078 and driven by the deceased Miss Veena Miranda came from opposite direction in fast speed and rash and negligent manner to proceed to Margao. 4. I say that when the deceased driven by her scooter reached at the spot of the accident suddenly two buffaloes came from her leften side of of road. I say that one buffalo crossed the road however the second buffalo while crossing the road suddenly turned and as the deceased was driving her scooter in fast speed got nerves and dashed her scooter to the mouth of the buffalo and thereafter came to the wrong side (that to her right side) and dashed to rear portion of the Mini bus due to which the deceased fall on the tar road. 5. I say that when I saw that the deceased dashed the mouth of the buffalo and coming towards her right side I tried to avoid the dash of the scooter by taking my bus toward my left, however I could not take my bus further to my left as there is paddy field at the height of 1.30 to 2 meters from road level and there was every possibility of falling of bus in said paddy field.” He admitted that he was charge-sheeted in a criminal case which, 11 ultimately, resulted in an acquittal. He was cross examined at length by the Advocate for the claimants. The material part of his cross examination, reads thus :- “I had seen the buffaloes when they were at a distance of about 100 meters. My bus was in motion at the time of the accident but it was in slow speed. I had applied brakes and slowed down my bus after seeing the buffaloes. The distance between the scooter which was coming from the opposite direction and the buffaloes will be about 50 to 100 meters. The place where accident took place is a narrow road.” A specific suggestion was given to him that rear portion of the bus dashed against the scooter. In response to the said suggestion, he stated that : “It is not true to suggest that the rear portion of the bus dashed against the scooter. I add and say that the scooter of the deceased first dashed buffalo and thereafter the head of the deceased came in contact with the rear side of my bus. It is not true to suggest that my above voluntary statement is false.” 12. The first respondent also examined one Seby Pinto as a witness. In the examination-in-chief, the witness stated thus : “On 1.8.2002 around 1.15 p.m. I was proceeding from Betalbatim to Margao on my scooter. When I reached at Seraulim, one girl overtook me on her scooter in a fast speed. At that time one cow was crossing the road from left to right side as 12 one proceeds from Betalbatim towards Margao. The said girl avoided the cow coming in contact with her scooter, however, immediately another cow or bull also came on the road from the same direction. The said girl also tried to avoid the another cow and in that process lost balance of the scooter, and gave a dash to the left side rear bumper of the bus which was coming in the opposite direction. The said girl fell on the road. I had seen the said girl passing on that road several times earlier but I was not knowing her name and background.” In the cross examination he stated that the accident occurred within minutes after overtaking his scooter. He stated that he saw the bus for the first time when it was at a distance of about 50 metres from the spot of the accident. 13. The first respondent also examined one Santan D'Souza, who was the conductor in the bus. He did not claim to have seen the accident. However, he stated that there was some damage to the bus to the lower left side bumper after the accident. 14. The other evidence on record is in the form of certified copy of the panchanama which records that there was scratch mark of the scooter on the right hand portion of the bus. It is stated that on the right hand lower wheel of the bus, hair of the deceased had got 13 entangled. 15. The alleged eye witnesses examined by the appellants admitted that they did not inform the police to have seen the accident and that their statements were not recorded by the police. The witnesses stated that the first respondent was driving the bus in a high speed and he gave a dash to the scooter of the deceased. There is no specific suggestion given in the cross examination of the said witnesses that the deceased was plying her scooter on her wrong side of the road. The case put up is that while avoiding second buffalo, she fell down on the road and died on the spot. The evidence of RW.2 examined by the first respondent is very difficult to accept inasmuch as he stated that the scooter gave a dash to the left hand side lower bumper of the bus. The said version is supported by the conductor by stating that to the lower left side bumper there was a damage after the accident. Even if the version of the first respondent is taken as it is, it is impossible that the scooter would have given a dash on the left hand side of the lower bumper of the bus. Therefore, the version regarding the dash given on the left hand side of the bus on the lower side cannot be accepted. Accepting the statements made by the first respondent in 14 the evidence, he admitted that he had seen the buffaloes when they were at a distance of 100 metres. He admitted that the road at the spot of the accident is a straight road. It is his own case that he was plying the bus in very slow speed. He stated that the distance between the scooter of the deceased and the bus will be about 50 to 100 meters. Thus, going by his own version, on a straight road he was proceeding in a very slow speed and he could see the buffaloes on the road at a distance of 100 meters. If he had seen the buffaloes from a distance of 100 meters and he was driving the mini-bus at a very slow speed, he could have easily avoided the accident by applying brakes or by immediately taking his mini-bus on left side of the road. It is not his case that the deceased came on her wrong side. Therefore, he could have easily avoided the accident. The spot panchanama shows that at the time of recording the panchanama mini bus was on its extreme left side. The panchanama obviously does not show the actual spot of impact and the two wheeler of the deceased is shown lying far away from the bus. The first respondent claims that he was already pro- ceeding at a slow speed and he slowed down further by applying brakes after he saw the buffaloes. If he was in really slow speed he could have easily avoided the accident. There is a failure on the part of the first 15 respondent to take care which a reasonable and prudent driver could have taken. The second witness examined by the respondent Mr. Seby Pinto has deposed that just before the accident, the deceased who was driving her scooter in a fast speed had overtaken his scooter. It appears that the deceased could not control her vehicle as he was driving the vehicle in a very fast speed. Thus, the deceased had also contributed to the accident. Therefore, the finding recorded by the learned Tribunal on the issue of negligence will have to be set aside by holding that this is a case where negligence on the part of the the first respondent has been established. However, it is also established that there is a contributory negligence on the part of the deceased. 16. Now the second question is as to what is the quantum of compensation payable. As far as income of the deceased is concerned, the case made out by the appellants is that the deceased was earning a salary of Rs.6,000/- per month from her employer M/s. B.L. Kashyap and Sons Ltd. It is contended that the deceased was a partner of family business which was run in the name and style “M/s. Franner Constructions”. As far as income from the salary is concerned, the witness Ms. Sandra Pereira was examined who was employed with M/s. B.L. Kashyap and Sons Pvt. Ltd.. She stated that the deceased 16 was employed as a Site Engineer from March, 2000 till 1st August, 2002 and was paid salary of Rs.6,000/-. In the cross examination, she pleaded ignorance as to whether the deceased was paying income tax. She stated that salary was being paid to the deceased in cash and the deceased was employed on contract basis. She stated that she was not sure whether the salary paid to the deceased is reflected in the register maintained by the employer. She stated that no record was available to show the payment of salary to the deceased as the record was sent to the office of the company at Bangalore. 17. As far as income from the alleged partnership firm is concerned, there is no evidence. The only evidence available is as regards the salary paid by M/s. B.L. Kashyap and Sons Pvt. Ltd.. Considering the admission of the witness that the salary was paid in cash and she was not sure whether the payment of salary is reflected in the register, the Tribunal has not accepted that the salary payable to the deceased was Rs.6,000/- per month. The Tribunal has taken monthly income at Rs.4,000/-, considering the fact that the deceased was a qualified Civil Engineer. The Tribunal has applied multiplier of 12. The Tribunal has made deduction of 1/3rd on account of personal 17 expenditure of the deceased and came to the conclusion that the dependency would work out to Rs.2,56,000/-. 18. Now the computation of compensation by multiplier method will have to be made as per the guidelines laid down by the Apex Court in the case of Sarla Verma (Smt) and ors. vs. Delhi Transport Corporation and anr., ((2009) 6 SCC 121). The deceased was a qualified Civil Engineer. The Tribunal was right in taking the monthly income at Rs.4,000/- in the absence of clear evidence to show that the deceased was being paid salary of Rs.6,000/- per month. Fifty percent amount will have to be added towards future progress of earning and, therefore, the income will have to be taken at Rs.6,000/- per month and yearly income will have to be taken as Rs.72,000/-. As the deceased was unmarried, as held in the case of Sarla Verma (Smt) and ors.(supra), 50 % of the amount will have to be deducted on account of personal expenditure. Thus, the deduction will have to be taken at Rs.36,000/-. Multiplier will have to be determined on the basis of respective ages of the claimants as the deceased was younger than them. Considering the ages of the appellants, multiplier of 9 will have to be applied as per the law laid down in the case of Sarla Verma 18 (Smt) and ors, (supra). Thus, the compensation payable will be Rs.3,24,000/-, to which a sum of Rs.6,000/- will have to be added by way of funeral expenses. Thus, the total compensation payable will be Rs.3,30,000/-. As we have held that the deceased herself had contributed to the accident, a deduction of 50 % will have to be made and hence, the compensation payable will be Rs.1,65,000/-. 19. The accident had occurred on 1st August, 2002. In the recent past, rates of interest of nationalized banks have been considerably reduced. Therefore, interest will have to be granted at the rate of 7.5 % per annum. 20. Hence, we pass the following order : (A) The impugned Judgment and Award dated 23rd January, 2007 is quashed and set aside. (B) The respondents are jointly and severally directed to pay compensation of Rs.1,65,000/-, together with interest thereon at the rate of 7.5 % per annum from the date of filing of the claim petition, till realisation or deposit of the amount with the Tribunal. 19 (C) The appellants