(1) FA. 381.1992 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 381 OF 1992 M/s New India Assurance Co. Ltd., having its' head Office at New India Assurance Building, 87, M.G. Road, Fort, Bombay - 400 001 and Branch at Jalgaon Mandal Karyalaya (1650) Mandore Market Jalgaon .. Appellants VERSUS 1] Smt. Sindhu w/o Sham Ghate, Age : 25, Occu.: Household, 2] Ku. Sagar Sham Ghate, Age 7-1/2 years, Minor, Guardian- Applicant no.1 mother Sindhu 3] Smt. Mainabai Benilal Ghate, age : 75, Occu.: Nil 4] Shri Benilal Ghate, Age : 80, Occu.: Nil All r/o Gokul Peth, Near Hanuman Mandir, Nagpur 5] Sharuk Kashad Jamshed Kashad Age : 28, Occu.: Service, R/o Sitabardi, Nagpur 6] M/s. Nayyar Coal Service Ltd. 166, Siriya Bhawan, Ramnagar Nagpur (through its Gen. Manager) 7] United India Insurance Co. Ltd., Mansingka Market, Station Road, Jalgaon 425 001 (through it's Branch Officer) (2) FA. 381.1992 8] Jaspalsing Pratapsing Sikh, age : 22, Occu.: Truck Driver, R/o Tagore Nagar, Vikroli, Bombay 9] Uttamsing Darasing Sikh, age : 25, Occu.: Truck Owner R/o Hira Construction, Dhamanker Naka, Bhivandi-Bombay .. Respondents WITH FIRST APEPAL NO. 382 OF 1992 M/s New India Assurance Co. Ltd., having its' head Office at New India Assurance Building, 87, M.G. Road, Fort, Bombay - 400 001 and Branch at Jalgaon Mandal Karyalaya (1650) Mandore Market Jalgaon .. Appellants VERSUS 1] Smt. Usha Ravi Shankar Nayyar, Age : 21, Occu.: Household 2] Ku. Vinaya Ravi Shankar Nayyar, age : 4 months, Minor, Guardian Smt. Usha Ravishankar Nayyar-applicant no.1 3] Smt. P.K.N. Kalyani Nayyar, age : 59, Occu.: Household, All R/o 166, 167 Ramanagar, Nagpur 4] Sharuk Kashad Jamshed Kashad Age : 28, Occu.: Service, R/o Sitabardi, Nagpur 5] M/s. Nayyar Coal Service Ltd. 166, Siriya Bhawan, Ramnagar Nagpur (through its Gen. Manager) (3) FA. 381.1992 6] United India Insurance Co. Ltd., Mansingka Market, Station Road, Jalgaon 425 001 (through it's Branch Officer) 7] Jaspalsing Pratapsing Sikh, age : 22, Occu.: Truck Driver, R/o Tagore Nagar, Vikroli, Bombay 8] Uttamsing Darasing Sikh, age : 25, Occu.: Truck Owner R/o Hira Construction, Dhamanker Naka, Bhivandi-Bombay .. Respondents WITH FIRST APPEAL NO. 400 OF 1993 United India Insurance Company Ltd., Mansinghka Market, Station Road, Jalgaon .. Appellant VERSUS 1] Smt. Sindhu w/o Sham Ghate, Age : 25, Occu.: Household, 2] Ku. Sagar Sham Ghate, Age 7-1/2 years, Minor, Guardian- Applicant no.1 mother Sindhu 3] Shri Benilal Ghate, Age : 80, Occu.: Nil 4] Smt. Mainabai Benilal Ghate, age : 75, Occu.: Nil All r/o Gokul Peth, Near Hanuman Mandir, Nagpur 5] Sharuk Kashad Jamshed Kashad Age : 28, Occu.: Service, R/o Sitabardi, Nagpur (4) FA. 381.1992 6] M/s. Nayyar Coal Service Ltd. 166, Siriya Bhawan, Ramnagar Nagpur (through its Gen. Manager) 7] Jaspalsing Pratapsing Sikh, age : 22, Occu.: Truck Driver, R/o Tagore Nagar, Vikroli, Bombay 8] Uttamsing Darasing Sikh, age : 25, Occu.: Truck Owner R/o Hira Construction, Dhamanker Naka, Bhivandi-Bombay 9] The New India Assurance Company Ltd., Jalgaon, Mandal Karyalaya (1650) Mandore Market, Jalgaon .. Respondents WITH FIRST APPEAL NO. 436 OF 1993 United India Insurance Company Ltd., Mansinghka Market, Station Road, Jalgaon .. Appellant VERSUS 1] Smt. Usha Ravi Shankar Nayyar, Age : 21, Occu.: Household 2] Ku. Vinaya Ravi Shankar Nayyar, age : 4 months, Minor, Guardian Smt. Usha Ravishankar Nayyar-applicant no.1 3] Smt. P.K.N. Kalyani Nayyar, age : 59, Occu.: Household, All R/o 166, 167 Ramanagar, Nagpur 4] Sharuk Kashad Jamshed Kashad Age : 28, Occu.: Service, R/o Sitabardi, Nagpur (5) FA. 381.1992 5] M/s. Nayyar Coal Service Ltd. 166, Siriya Bhawan, Ramnagar Nagpur (through its Gen. Manager) 6] Jaspalsing Pratapsing Sikh, age : 22, Occu.: Truck Driver, R/o Tagore Nagar, Vikroli, Bombay 7] Uttamsing Darasing Sikh, age : 25, Occu.: Truck Owner R/o Hira Construction, Dhamanker Naka, Bhivandi-Bombay 8] The New India Assurance Company Ltd., Jalgaon, Mandal Karyalaya (1650) Mandore Market, Jalgaon .. Respondents Advocates for the appellants: Mr. V.N. Upadhye, Advocate in First Appeal nos. 381 of 1992 and 382 of 1992 Mr. D.V. Soman, Advocate for the appellants in F.A. nos. 400 of 1993 and 436 of 1993 Advocates for the Respondents: Mr. D.V. Soman, Advocate for respondent no.6 in First Appeal no. 382 of 1992 Mr. V.N. Upadhye, Advocate for respondent no.9 in First Appeal no. 400 of 1993 and for respondent no.8 in First Appeal no. 436 of 1993 Appeal stands dismissed against the following respondents as per the Registrar's order: [i] Respondent nos. 8 and 9 in First Appeal no. 381 of 1992 (6) FA. 381.1992 [ii] Respondent no.7 in First Appeal no. 382 of 1992 [iii] Respondent nos.7 and 8 in First Appeal no. 400 of 1993 Appeal stands abated against respondent nos. 3 and 4 in First Appeal no. 400 of 1993 as per Registrar's order CORAM : A.V. NIRGUDE, J. DATED : 26TH AUGUST, 2009 JUDGMENT:- 1] All these First Appeals can be decided by this common judgment:- . The appeals are filed against the judgments and awards granting certain compensation to the respondents/original claimants. The appellants are the Insurance Companies. The facts leading to the appeals, can be narrated as under:- . On 11.7.1987, a motor accident took place at about 1:15 am on Nagpur-Bhusawal Highway. A car collided on a stationery goods truck which was parked on curbside of the high road. The collision was so severe that two passengers in the car died instantaneously. Fortunately, the driver survived. The respondents-claimants-the dependents of the deceased- then filed their Motor Accident Claims before the learned Ex- Officio Member of the Motor Accident Claims (7) FA. 381.1992 Tribunal of Jalgaon. The drivers, owners and insurers of both the vehicles were made parties. Both the drivers avoided filing of the written statement. However, both the insurance companies (appellants herein) filed written statements and contended that the driver of the vehicle insured by them was not negligent at the time of the accident. . The learned Member of the Tribunal amongst other issues, framed issues relating to the negligence as to who amongst the drivers was negligent? The learned Member then recorded evidence and on the question of negligence he received documentary evidence in the form of scene of offence panchanama and deposition of the driver of the car. The learned Member discussed the evidence and held that it was the driver of the car who was solely negligent and due to whose negligence, accident had taken place. He held that the driver of the goods truck which was parked besides the road was not responsible for the mishap. Despite of this clear finding, while passing the award he made it enforceable against all the respondents jointly and severally. 2] In view of this, the First Appeal nos. 381 of 1992 and 382 of 1992 are filed by the (8) FA. 381.1992 Insurance Company of the goods truck, inter-alia seeking dismissal of the Claims Petitions against them. On the other hand, the First Appeal nos. 400 of 1993 and 436 of 1993 were filed by the Insurance Company of the car mainly challenging the awards in question on the point of finding of negligence, on the point of application of multiplier of 25 and against 12% interest, asserting it to be exorbitant. 3] Having heard the submissions of the learned counsel for the parties, following points for determination arise for my consideration:- [i] Whether it is a case of composite negligence of both the drivers? [ii] If the answer is in the affirmative, what is the extent of negligence of each driver? [iii] Whether the multiplier of 25 applied in the Motor Accident Claims Petition no. 8 of 1988 is proper? If not, what should be the proper multiplier. [iv] Whether the awarded rate of interest is just and proper? If not, what should be the rate of interest? 4] In order to find out as to whether this is a case of composite negligence of both the (9) FA. 381.1992 drivers or whether it is only the car driver's negligence, I went through the evidence recorded by the lower Court. The incidence is narrated by the Car's driver as under:- He said on that night, driving his car carrying passaengers he was going from Nagpur towards Bhusawal. He said when he reached near Bohardi limits, he saw a stationery truck parked ahead of him at a distance of 40 ft. He said he also saw one truck coming from opposite direction. He said due to it's full headlights, he could not see the stationery truck. He also said that the stationery truck did not have it's parking lights on. He therefore, said that the truck driver of the stationery truck was equally responsible for the accident. He admitted that the width of the road at that spot was about 20 ft. and that the vehicle that was coming from the opposite direction was being driven on it's correct side. He then added that the speed of his car was 60-70 Km/hour. He did not admit the suggestion that the road at the accident side was wide enough for accommodating three vehicles. . In the light of this, one must also take into account the contents of scene of offence panchanama. the scene of offence panchanama mentions that the road in question was running East-West. The tar portion of the road was 22 ft. in width. Beyond the tar portion on both sides, there was metal road having 4 ft. width. (10) FA. 381.1992 The stationery goods truck was found parked on the road facing West whereas the car which collided on the truck was also found 5 ft behind the truck. It is further mentioned that there was a neem tree on the Southern side of the road and the truck was parked besides the neem tree on its North side. It is specifically mentioned that the truck was parked on the road, but it is not mentioned as to what extent the truck had occupied the tar portion of the road and to what extent it occupied the metal part of the road but it is clearly stated in the panchanama that the car was found on tar road behind the truck. 5] It is probably for the first time the driver of the car informed to the Tribunal and also to the world at large that when the collision took place a truck was coming from opposite direction and due to it's harsh head- lights, he did not see the truck. However, this portion of the driver of the car has not been challenged during cross-examination. 6] Mr. Upadhye learned counsel appearing for the appellants in First Appeal nos. 381 of 1992 and 382 of 1992 argued that in the absence of pleadings of the driver of the car, his deposition deserves to be rejected out-right. (11) FA. 381.1992 7] I am afraid, this cannot be done because the counter-part of Mr. Upadhye, who appeared for his client in the lower Court did not cross- examine the car driver on that line. As said above, his version was not even challenged in the cross-examination. Therefore, the deposition of the car driver cannot be rejected out-right. In his deposition, he expressly admitted his negligence but he tried to suggest that even the driver of the stationery truck was equally responsible. He thereby, suggested that parking of the stationery truck was not proper and due to it's presence on the road, it obstructed the passage of the speeding car. So, the moot question is whether the manner in which the truck was parked, amounted to negligence on the part of the driver of the truck. The answer to this, is in the affirmative. The truck was parked in between the neem tree and the road. The neem tree was standing at the bank of the road. The total width of the road was 30 ft. The truck was admittedly parked near the neem tree and thus it can safely be said that it had occupied atleast 6ft. width of the road due to it's presence. Assuming that the truck was parked at the farthest side of Southern most bank of the road, it stil occupied 6ft. width of (12) FA. 381.1992 the road. The spot the driver chose for parking the truck, in my view, was not proper. He could have parked the car beyond the neem tree going further South. (Of course subject to existence of a motorable area beyond the 30ft. wide road.) Had there been no such area available, the truck driver should have taken the truck for parking to such an area where he would not block/obstruct the 30ft. width of the road. The driver of the truck should have also realised when he parked the truck that it was midnight. Due to darkness, the obstructions on the road would not be clearly visible. He should have further realised being a driver himself, that on the highway during the night time the vehicular traffic generally is light so the drivers of the vehicles tend to speed up their vehicles. And in such situation, if an obstruction is placed on road, there was possibility of an accident. The finding of the learned Member on this point, in my view is erroneous and to some extent naive. The learned Member put the entire blame on the car driver only because he found that the road was "wide enough" for passage of three vehicles, thereby he expected that despite of presence of the parked truck on the road, the car and the truck which was coming from opposite direction would have passed each other (13) FA. 381.1992 unobstructed. He did not realise that the car driver after seeing the truck coming from opposite side would tend to take his car to his left and while doing so he would come in the line of the obstruction viz. the parked truck. If the driver of the car was driving at the speed of 60-70 Km/hour, it was possible that he would not be able to avoid obstruction which he found on his left side and he could not have chosen to go to his right because on that side, the speeding vehicle was coming towards him. In this situation, what was expected of the car driver was that he should have slowed down his speed and should have allowed the vehicle coming from opposite side to pass and then should have attempted to overtake the stationery truck. It seems the car driver could not slow down his car and while he avoided collision with the truck coming from opposite direction, he could not avoid the collision on the obstructing stationery truck which stood in front of him. I have therefore, no doubt in my mind that the accident took place due to composite negligence of both the drivers. 8] The question now is what is the extent of negligence of each driver? Having regard to the facts discussed above, it is quite ticklish (14) FA. 381.1992 question. On one hand we have a stationery truck negligently parked obstructing almost 1/5th of the width of the road in the middle of the night having no parking lights on. On the other hand, we have the driver who was speeding towards the stationery vehicle and was suddenly confronted with a third vehicle coming from the opposite direction. I think the contribution in negligence of each of the driver, would be 50:50. 9] In respect of multiplier applied in the Motor Accident Claims Petition no. 8 of 1988 there is almost unanimity amongst the Advocates appearing for the parties that the multiplier of 25 was improper. It is settled law now that no multiplier beyond 18 should be applied in cases of this nature. The deceased was 28 year old and so, the maximum multiplier of 18 should be applied for the calculation of compensation. The finding of the lower Court that the deceased had income of Rs.4000/- per month and that he was presumably spending Rs.1500/- per month on his own expenses, is not in serious dispute. Therefore, the respondents-claimants would be entitled to Rs. 2500 X 12 X 18 = Rs.5,40,000/-. This amount is almost similar to the awarded amount and I am therefore, not inclined to interfere in it. (15) FA. 381.1992 10] The trial Court awarded 12% interest on the awarded amount. The judgment is of 1992. In those days this rate of interest was considered normal and not exorbitant. I am aware that in present times, the rate of interest is generally not awarded beyond 7.5%. But since the impugned judgment is of 1992, I am not inclined to interfere in it. The First Appeals stand dismissed. Sd/- (A.V. NIRGUDE, J.) arp