1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.202 OF 1995 Zilla Parishad Solapur by its Chief Executive Officer ...Appellant vs. 1 Shobha Dattatraya Gonjari 2 Santosh Dattatraya Gonjari 3 Manisha Dattatraya Gonjari 4 Vaishali Dattatraya Gonjari 5 Asharani Dattatraya Gonjari 6 Ramesh Mahadeo Gonjari 7 Rekha Mahadeo Gonjari 8 Mahadeo Sitaram Gonjari 9 Sou.Muktabai Mahadeo Gonjari 10Dagadu Lalabhai Tamboli 11 State of Maharashtra ...Respondents Mr.Nitin Jamdar for the appellant Mr.Nitin Gangal for respondent no.10 Mr.T.D.Deshmukh for respondent no.1, 3 to 7 Ms S.V.Sonawane, A.G.P. For State CORAM :A.S.OKA,J. DATE : JANUARY 28, 2010 JUDGMENT : 1 The appellant has taken an exception to the Judgment and Award made by the learned Member of the Motor Accident Claims Tribunal in a claim petition filed under section 110-A of the Motor Vehicles Act, 1939. The claim was made on account of death of one Dattatraya. He died in a motor accident on 17th June 1987. 2 2 According to the case of the claimants, on 17th June 1987 at about 10.30 p.m., the deceased was standing near the steps of the platform of the Chintamani Printing Press situated on the public road leading to Tahsil office, Sangola, District Solapur. The allegation is that a truck owned by the appellant and driven by the 10th respondent came in a high speed and gave a dash to the deceased. As a result, the deceased fell down and sustained injuries and he succumbed to injuries. A claim of Rs.5,00,000/- was made in the claim petition. The claim was contested by the appellant and respondent no.10 by filing a written statement. The case made out in the written statement by the driver of the truck was that the truck was driven in a very slow speed. The deceased on his own accord tried to climb the running truck from its rear side and while doing so he fell down. It was contended that the driver was not at all responsible for the accident. The Tribunal by the impugned Judgment and Award came to the conclusion that the accident occurred due to rash and negligent driving on the part of the driver of the truck. The Tribunal came to the conclusion that the claimants are entitled to compensation of Rs.2,55,000/-with interest. 3 I have heard the submission of the learned counsel for the appellant. He submitted that 3 the burden was on the claimants to prove the involvement of the truck in the accident. He submitted that the said burden has not been discharged. The contention of the learned counsel for the appellant is that this was a case where no negligence can be attributed to the driver. He invited my attention to the evidence of the driver of the truck. He invited my attention to the cross examination of the driver made by the Advocate for the claimants. He submitted that the evidence of the driver proves that the negligence was on the part of the deceased. He pointed out that even the evidence of Mr.Prabhakar does not support the claimants on the issue of negligence. He pointed out that the said witness is a got up witness in as much as in the cross examination he admitted that he has not been cited as a witness in the police case. He submitted that the said evidence is already discarded by the learned Member of the Tribunal while deciding the issue of negligence. 4 As far as income of the deceased is concerned, the learned counsel for the appellants invited my attention to the case made out in the claim petition filed by the claimants. He pointed out in the claim petition, it is stated that the deceased was running a hotel in the city at Sangola. He 4 invited my attention to the finding recorded by the Tribunal on this aspect. He pointed out that the Tribunal has not accepted the case made out by the claimants that the deceased was running the hotel. On the contrary, a finding has been recorded that the deceased was a helping hand for running the hotel business of his father. He submitted that the evidence of the income received by the claimant is totally unsatisfactory and ambiguous. He submitted that even taking the case made out that the evidence as correct, there is no justification for the Tribunal to come to the conclusion that the income from the hotel business appears to be Rs.3,000/- to Rs.4000/- per month. He submitted that the finding on this aspect is not supported by evidence. He pointed out that the income taken by the Tribunal for the purpose of calculating multiplicand is on the higher side. He submitted that, in any event, the compensation awarded is on the higher side. 5 The learned counsel for the original claimants supported the impugned Judgment and Award and submitted that in fact this was a case where as per the recent decision of the Apex Court in case of Sarla Verma and others vs.Delhi Transport Corporation and another [(2009) 6 SCC 120], a substantial enhancement will have to be granted in the compensation awarded by the 5 Tribunal. He pointed out that even if the income is taken as Rs.1000/- per month, after making appropriate deduction, the total compensation payable will be Rs.4,76,990/-. 6 I have considered the submissions. In the claim application filed by the claimants, the specific case made out is as under : On the fatal day the deceased was standing near the steps of the Ota of Chintamani Printing Press, Sangola, situate on the road leading to Tahasil Office, Sangola. The truck MWC 4178 gave dash from the cleaner side to the deceased and due to the above dash the deceased at once collapsed and received grievous head injury and also injuries to his leg and the ear. The driver of the said truck took the deceased in his truck to the Nagar Parishad Hospital, Sangola. The deceased was admitted in the Nagar Parishad Hospital and he succumbed to the injuries sustained by him in the truck accident. He died on the same day. . The driver of the truck MWC 4178 was driving his truck rashly and negligently and that too ignoring the 6 traffic rules and regulations and caused the accident in question. Therefore, the driver of the said truck is responsible for the death of the deceased and the accident. The driver is the servant of opponent no.2 and as such the opponent no.2 is also jointly and severally responsible for the same. The truck is also run by opponent no.3 and the opponent no.3 is, therefore, made party to this application. 7 The 1st opponent-10th respondent (the driver of the alleged offending truck) filed a written statement for opposing the claim petition under section 92 A of the said Act of 1939. In the said written statement the specific stand taken by the 1st opponent reads thus : 6...The fact is, opponent no.1 as a driver of the truck MWC 4178 was driving the said truck at the relevant time in a slow speed. That the deceased Dattatraya of himself tried to climb the truck from the backside and in the said attempt fell down. The opponent no.1 is not at all responsible for the said accident. As the said death of Dattatraya Gonjari was brought about by 7 Dattatraya himself as stated above, these opponents are not at all responsible for the payment of compensation either u/s. 92-A of the Motor Vehicles Act or also u/s. 110-A of the said Act. 8 The driver stepped into the witness box. He stated that on 17th June 1987, the offending truck was loaded and he was proceeding towards Mamlatdar office from Patil garage. He stated that one tractor was coming from the opposite direction. Therefore, he stopped the vehicle as the road was narrow. He stated that after giving side to the tractor he proceeded further. According to him, he was proceeding to Mamlatdar office from Patil Garage. After he heard the shouts that a person has fell down, he stopped the vehicle and carried the injured person to the hospital. In the deposition before the Tribunal the opponent no.1 has pleaded complete ignorance about the manner in which the deceased sustained injuries. He did not depose that the deceased himself tried to climb the truck. Thus, there was a departure made from the pleadings when the driver deposed before the Tribunal. From the Judgment of the Tribunal it appears that a submission was made on behalf of the appellant that the truck was not involved in the accident. In the written statement at Exh.21 8 the driver specifically stated that when the deceased Dattatraya tried to climb the running truck from the rear side, he fell down. Thus, in the written statement, a case is sought to be made out that the accident occurred due to negligence on the part of the deceased. As far as evidence of Prabhakar is concerned, criticism is rightly made by the learned counsel for the appellant. The statement of the said witness was not recorded by the police and he has not been cited as a witness in the criminal case. 9 When the case of the driver was specific that the deceased was trying to climb the truck and in the process he fell down, it was for the driver to establish the said case. But he has chosen to come out with a different case which is not accepted by the Tribunal. Therefore, the Tribunal accepted the case made out by the claimants that the truck came in a high speed and gave a dash to the deceased. The Tribunal constituted under the Motor Vehicles Act is not bound by the strict rules of evidence. Therefore, considering the stand taken by the driver at the time of recording of evidence, the Tribunal has rightly held that the driver was negligent. 10 As far as quantum of compensation is concerned, the Tribunal has taken the gross 9 monthly income of the deceased at Rs.1500/-. The Tribunal has taken the monthly dependency at Rs. 1000/-. The learned Member has taken the age of the deceased as 30 years and applied multiplier of 20. A sum of Rs.15,000/- has been added as usual amount on account of loss of consortium etc. As far as finding on income is concerned, the learned Member of the Tribunal has considered the 7/12 extracts placed on record. The learned Judge has referred to the evidence of the various witnesses examined to prove that the payments were regularly received by the hotel from its regular customers which was allegedly run by the deceased. The learned Judge recorded a finding that the hotel was run in the name of the father of the deceased and the deceased was working as a helping hand. The learned Judge came to the conclusion that the deceased was earning a sum of Rs.1000/-per month from the hotel business. As far as 7/12 extracts are concerned, the learned Member of the Tribunal found that the deceased had one fourth undivided share in the agricultural land bearing Gat no.558/1. In fact, the learned Member of the Tribunal has noted that during the course of the cross-examination of the widow of the deceased, a suggestion was given by the appellant to her that her deceased husband had no other source of income except income from agriculture. The said suggestion is found in paragraph 9 of her cross- 10 examination. It can be safely said that the deceased had some income from agriculture. Thus, On perusal of the oral evidence as well as documentary evidence, I find that the learned counsel for the appellant has rightly criticized the finding recorded by the Tribunal that the income of the hotel was Rs.3000/- to 4000/- per month. In fact the claimants failed to prove their case that the deceased was having a hotel business. What is found by the tribunal is that the deceased was merely working as a helping hand. It must be noted here that the tribunal was dealing with a case of the year 1987 and even according to the case of the claimants, what was run by the deceased was a small eatery. Therefore, it is not possible to accept the finding of the tribunal that as a helping hand, the deceased was earning Rs. 1000/-per month in the year 1987. 11 If the evidence of the witnesses is perused and the 7/12 extracts placed on record are considered, there was some income received by the deceased from agriculture. There is evidence on record to show that crop of chilly, onions, vegetables and jowar was taken on the land standing in the name of the deceased. The revenue record shows that there was a well on the said land. However, the area in which the agricultural land is situated is known for 11 drought conditions. In absence of clear evidence of income received by the deceased, in the year 1987, the notional monthly income of the deceased can be taken as Rs.1000/-. In this case number of dependents are more than 5. Therefore, 1/5 deduction will have to be made on account of personal expenditure of the deceased as per the law laid down by the Apex Court in case of Sarla Verma (supra). The Tribunal has committed an error by applying multiplier of 15. The age of the deceased was 30 years. The Tribunal ought to have been adopted multiplier of 17 in view of the aforesaid decision of the Apex Court in the case of Sarla Verma (supra). After deducting the 1/5 on account of personal expenditure of the deceased, yearly dependency comes to Rs.9600/-. Applying multiplier of 17, compensation comes to Rs. 1,63,200/- to which usual amount of Rs.15,000/- will have to be added. Thus, the total compensation payable ought to have been Rs. 1,78,200/-. Thus, the compensation awarded by the Tribunal of Rs.2,55,000/- which is on the higher side. To that extent, the appeal will have to be allowed. 12 Hence, I pass the following order : i) Impugned Judgment and Award is modified and it is directed that the claimants are 12 entitled to total compensation of Rs. 1,78,200/- (inclusive of the amount paid on account of no fault liability) instead of Rs.2,55,000/-. Rest of the Award is maintained. ii)The amounts deposited by the appellants, if any, in this court together with interest accrued thereon shall be transferred to the concerned Tribunal. iii)After hearing the parties, the concerned Tribunal will pass an appropriate order of disbursement of the amount pending with the Tribunal and the amount transferred by this court to the Tribunal. The order of disbursement/withdrawal of the amount shall be passed after computing the compensation payable as per the modified Award. iv)Appeal is partly allowed in above terms. No order as to costs. JUDGE