1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 854 OF 1996 Maharashtra State Road Transport Corporation ) having their office at Vahatuk Bhavan, ) Bombay Central, Bombay – 400 008. ).. Appellant (Org. Non­Applicant ) Vs. 1. Tukaram Laxman Gurao, age 46, ) 2. Sau. Lilawati Tukaram Gurao, ) age 35 years, ) 3. Kum. Surekha Tukaram Gurao, ) age 18 years, ) 4. Master Santosh Tukaram Gurao, ) age 15 years, ) Nos. 3 and 4 minor, through their ) father applicant No.1 above. ) All R/o. C/o Shri Chandrashekhar Nair, ) 10/1, Everest Co­operative Housing ) Society Ltd., Dombivali (W), ) District – Thane. ).. Respondents ( Org. Applicants ) ­­ Shri C.M. Lokesh i/by Shri G.S. Hegde for the Appellant. Shri C.G. Gavnekar for Respondents. ­­ CORAM : A.S.OKA, J. DATE : 4TH MARCH, 2010 2 ORAL JUDGMENT : . Heard learned counsel appearing for the Appellant and the learned counsel appearing for the Respondents. The Respondents herein are the claimants in a Claim Petition filed under Section 166 of the Motor Vehicles Act, 1966. The claim is made on account of death of one Sanjay in an accident. The vehicle involved is a bus owned by the Appellant. The 1st and the 2nd Respondents are the parents of the deceased. The 3rd Respondent is the sister of the deceased and the 4th Respondent is the brother of the deceased. According to the case of the Respondents, the age of the deceased was around 21 years at the time of his death. 2. It is stated in the claim petition that the deceased was a pillion rider of a motor­cycle driven by one Vijay Nair. On the fateful day, they were proceeding by from Lore to Phonda on the said motor­cycle by Phonda Kankavli Road. When the said motor­cycle reached near the spot at Lore Phata, the State Transport Bus came from the side of Phonda in a high speed and gave a dash to the motor­cycle. As a result, the said Sanjay died on the spot. The said Vijay succumbed injuries. The defence of the Appellant was that the accident occurred due to negligence on the part of the said Driver­Vijay. It is alleged that it was the said Vijay who was driving the motor­cycle in a rash and negligent manner. The Tribunal held that the accident occurred due to rash and negligent driving on the part of the Driver of the bus. The Tribunal proceeded to award compensation of Rs. 1,90,000/­ with interest thereon at the rate of 12% per annum from the 3 date of filing of the Claim Petition. 3. The learned counsel appearing for the Appellant has invited my attention to the evidence of the driver of the bus. He pointed out that the bus was on the main road and the motor­cycle came from the approach road and therefore, it was the duty of the person plying the motor­cycle to be vigilant. He submitted that the evidence of the driver indicates that there was absolutely no negligence on his part. He invited my attention to the finding recorded by the Tribunal. He submitted that in absence of any evidence of negligence, the finding could not have been recorded against the driver of the bus. He submitted that merely because the driver of the bus was prosecuted, that was no ground to hold him as negligent. He submitted that according to the case of the Respondents, the deceased was working as a labourer with Durga Roofing Tiles and was drawing a salary of Rs.2,000/­ per month. He pointed out that in the purported salary certificate at Exhibit­27, it was stated that the deceased was working as a Supervisor. He submitted that the an improbable case was made out that the age of mother of the deceased was 35 years and the age of the deceased was around 20 to 21 years at the time of accident. He submitted that multiplicand taken is on a higher side and the multiplier 15 applied is also on a higher side. 4. The learned counsel appearing for the Respondents submitted that the Tribunal is not bound to follow the strict rules of evidence and, 4 therefore, it was permissible for the Tribunal to draw an inference on the basis of the panchanama scene of offence. He submitted that no other witness except the driver has been examined by the Appellant. He submitted that this was a case where an inference has been rightly drawn that there was a negligence on the part of the driver of the bus. He submitted that the salary certificate showing his income of Rs.2,000/­ per month has been marked as exhibit without any objection by the Appellant and therefore the said document will have to be read in evidence. 5. I have given careful consideration to the submissions. The first issue is regarding negligence. The driver of the bus Balasaheb stepped into the witness box. He stated that on the relevant day, he was proceeding from Deogad to Kankavali via Phonda and the accident occurred at Nipani­ Deogad Road at 7 p.m. on 16th April, 1993. He stated that at the relevant time, the bus was driven in second gear as the road was ascending. He stated that when the bus was near the approach road, a motor­cycle came from the said approach road and dashed against the bus as a result of which the motor cyclists fell down on the road. He stated that the motor­ cyclist gave a dash to the bus as he could not control his vehicle. In the cross­examination, he admitted that the police prosecuted him for rash and negligent driving. The other suggestions given in the cross­examination were denied by the witness. 6. There is a finding recorded by the Learned District Judge & 5 Ex­Officio Member of the Tribunal that the spot panchanama was not challenged by the Appellant. The specific finding is in Paragraph 7 of the judgment. After referring to the contents of the panchanama, the learned Judge observed thus:­ “.....This document is not seriously challenged by the non applicant. It is clearly mentioned in this document (exh. 23) that the width of the tarred portion of the road at the spot is 4.50 meters and towards its south there is kacha road of 3 feet width. It is also mentioned in this panchanama that to the north of the said road there is Phonda Lore road the width of which is about 25 meters. The recitals of this panchanama further go to show that the offending S.T. Bus was standing on the road and the motor cycle in question was lying near the rear side wheel of the said S.T. Bus. This panchanama also makes mentioned that the front side left wheel of the offending S.T. Bus was about 1.80 meters and rear side wheel was about 2 meters away from the edge of the southern side tar road towards north, while the rear side wheel of the motor cycle in question was about 3 meters away from the edge of southern side tar road. This panchanama also goes to show that the guard, head­light and wiring of the motor­cycle in question and iron guard and head­light of the S.T. Bus were broken. From this description of the accident given in the spot panchanama it can safely be inferred that the driver of the offending S.T. bus was rash and negligent in driving the same because had he exercised a reasonable care and caution in driving the bus, the accident in question would have been averted, but it seems that this was not done. On the facts made out, to my mind, the doctrine of ‘Res­ipsa­loquitur’ means ‘accident speaks for itself’ or ‘tell its own story’ is attracted and, therefore, it was for the non applicant to show that the accident did not take place due to the negligence of the S.T. bus driver.” 7. The learned Judge has recorded a finding that if the driver of the bus had exercised a reasonable care and caution, the accident could have been avoided. In the panchanama, it is noted that the motor­cycle in 6 question was lying at a rear side wheel of the bus. The learned Judge has noted the damage to the motor­cycle as shown in the panchanana and he has also noted that iron guard and head­light of the State Transport Bus were broken. After considering this aspect, the finding on negligence has been recorded against the Appellant. The appellant has chosen to examine only the driver and the other witnesses such as conductor and passengers have not been examined. 8. The Tribunal constituted under the said Act of 1988 is not bound to follow the strict rules of evidence. On the basis of the evidence on record, a finding has been recorded that the accident occurred due to rash and negligent driving on the part of the driver of the bus. It is not possible to interfere with the finding. 9. Now turning to the quantum of compensation, on the basis of the certificate at Exhibit­27, the Tribunal came to the conclusion that the income of the deceased was Rs.2,000/­ per month. The first Respondent in the deposition stated that the deceased was working as a labourer in Durga Roofing Tiles. His income certificate at Exhibit­27 records that he was working as a Supervisor. Perusal of the record shows that the application along with which the said salary certificate which was filed has been misplaced. The said application would have shown whether the document was marked as exhibit by consent of the parties. The salary certificate has been exhibited on 14th November, 1994. There is nothing on record to 7 show that there was no objection given by the Appellant to exhibit the said certificate. Moreover, the certificate recites that the deceased was working as a Supervisor which is totally contrary to the deposition of the 1st Respondent wherein he has stated that the deceased was working as a labourer. In the circumstances, the income of the deceased cannot be taken at Rs.2,000/­ on the basis of the said certificate. 10. It must be noted here that the deceased was not married. His age was about 21 years at the time of the accident. It is not in dispute that the deceased was employed. Infact, in the cross­examination, a suggestion was given that the deceased was spending Rs.700/­ to 800/­ for himself. In fact, a suggestion was given that the deceased was giving a sum of Rs. 1,000/­ to the claimants per month. Correctness of the said suggestion was denied by the claimants. In the circumstances, dependency taken at the rate of Rs.1,000/­ per month cannot be faulted with as that was the suggestion given by the Advocate for the Appellant during the course of the cross­examination of the 1st Respondent. 11. In the present case, the 1st and the 2nd Respondents who were the claimants were older than the deceased. Therefore, the multiplier will have to be fixed on the basis of the age of the 1st and the 2nd Respondents and not on the basis of the age of the deceased. It must be stated here that in the claim Petition, the age of the 1st Respondent is disclosed as 46 years and the age of the 2nd Respondent is disclosed as 35 years. As the case of 8 the claimants is that the age of the deceased was 21 years at the time of the accident, it is not possible to accept that the age of the 2nd Respondent was 35 years. Perusal of the examination­in­chief of the 1st Respondent shows that in the year 1994, at the time of recording of deposition, he has stated that the age of his wife was 37 years. Therefore, the version of the 1st and the 2nd Respondents as regards their respective ages cannot be accepted as a gospel truth in absence of any document on record. In all probability, the age of the 1st Respondent was more than 50 years at the time of the accident. Therefore, the multiplier of 11 can be applied. Applying multiplier of 11, the compensation comes to Rs.1,32,000/­ to which further further amount will have to be added on account of funeral expenses, etc. Thus, reasonable compensation payable in this case cannot exceed to a sum of Rs.1,40,000/­ and to that extent, the amount awarded will have to be reduced. 12. Hence, I pass the following order. (a) The impugned order is modified by reducing the compensation amount to Rs.1,40,000/­. (b) Rest of the award is maintained as it is. (c) If any amount deposited by the Appellant is pending in this Court, the same shall be transferred to the 9 concerned Tribunal along with interest accrued thereon. The concerned Tribunal will pass appropriate order regarding disbursement and/or withdrawal of the said amount. (d) The appeal is partly allowed in above terms with no orders as to costs. (A.S.OKA, J)