1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 96 of 2007 National Insurance Co. Ltd. Diamond Chambers, 2nd Floor, 18th June road, Panaji, Goa. .......... Appellant. V/s. 1. Shri Sharanbasappa M. Patri, r/o. Narayan Nagar, Honda Sattari, 2. Smt. Sumangala S. Patri, r/o. Narayan Nagar, Honda Sattari. 3. Shri Lusso Krishna Gaonkar, r/o. H.No.141, Honda, Sattari-Goa. 4. Shri Ramurthy Konar, H.No.276, Honda, Sattari, Goa. ....... Respondents. Mr. E. Afonso, Advocate for the appellant. Mr. P. Rao, Amicus Curiae. Coram: A.S. Oka & F. M. Reis, JJ. Date of reserving judgment : 17th June 2010 Date of pronouncing judgment : 12th July 2010 2 Oral Judgment : (Per A.S. Oka, J): 1. By this appeal, the Appellant insurance company has taken an exception to the judgment and award passed by the learned Presiding Officer of the Motor Accident Claims Tribunal at Mapusa. The first and second Respondents are the original claimants in a claim petition filed under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the said Act"). The claim for compensation was filed on account of death of the son of the first and second respondents in a motor accident. 2. The case made out by the first and second respondents is that their son Vijaykumar was a student of engineering College. On 12th May 2005 in the evening, the deceased was proceeding from his engineering College to Ponda by his "Freedom" motor cycle. When he reached near Vijay saw mill gate at Bhoma at about 5.30 pm, a Tata Tipper Truck driven by the third respondent and owned by the fourth respondent came from the opposite direction in a very fast speed and gave a dash to the motorcycle of the deceased. As a result, the deceased sustained injuries and died on the spot. The allegation in the claim 3 petition is that the accident occurred due to rash and negligent driving of the said truck by the third respondent. The first and second respondents claimed compensation in the sum of Rs.12,05,000/- with interest. 3. The third respondent filed a written statement opposing the claim petition. He contended that the accident occurred only due to rash and negligent driving of the motorcycle by the deceased. He contended that when the truck reached near Vijay saw Mill Gate, he had slowed down the speed of the truck. At that time he noticed that the deceased was driving his motorcycle in a fast speed at the centre of the road. The case made out in the written statement is that the motor cyclist was driving his motorcycle so fast that the said respondent could not turn the truck to its left side. The third respondent contended that he made an attempt to save the deceased by blowing horn and he stopped the truck to reduce the impact. He further stated that the deceased had not at all noticed the truck as he was in engrossed in looking sidewards. The appellant (the insurer of the truck) also filed a written statement. The appellant did not dispute that on the date of accident, the truck was validly insured with it. It was stated in the 4 written statement that the third respondent was driving the truck without a valid driving licence and therefore, the appellant was not liable to pay compensation. 4. The first respondent examined himself. He also examined one Abhijit Haldankar who was allegedly an eye witness . The third respondent examined himself. The learned at Presiding Officer of the Tribunal Held the accident occurred due to rash and negligent driving on the part of the third respondent. The Tribunal also held that the third respondent was possessing a valid licence to drive the truck. By the impugned judgment and award, the claim petition was allowed and compensation of Rs.10,64,500/-with a interest at the rate of 7.5 percent per annum on the said amount was granted from the date on which the claim petition was filed till realisation of the compensation amount. 4. We have heard the learned counsel appearing for the appellant. He submitted that there was no evidence adduced by the first and second respondents to show that the accident occurred due to rash and negligent driving of the third respondent. He submitted that the so called eye witness examined by the first and second respondents is a got up witness. He submitted that his evidence cannot be believed. He 5 submitted that the said witness was also a witness to the scene of offence panchanama. He submitted that the evidence of the said witness cannot be accepted. He submitted that the third respondent has explained in his affidavit in lieu of examination in chief as to how the accident occurred. He submitted that even a specific suggestion has not been given in the cross-examination of the said witness that the bus was on the wrong side of the road. He submitted that even the panchanama does not support the case that there was any negligence on the part of the third respondent. He submitted that as far as negligence is concerned, it is a case of no evidence against the third respondent. He submitted that the deceased was stated to be a student of engineering College and he was admittedly not earning any income. Notwithstanding this fact, the income of the deceased has been taken at Rs. 10,000 per month. He pointed out that age of the deceased was about 21 years and he had not even completed his degree course in engineering. He submitted that the learned Presiding Officer of the Tribunal committed a gross error by taking the monthly income of the deceased at Rs 10,000. He submitted that even the multiplier applied by the Tribunal is excessive. He submitted that exorbitant amount by way of compensation has been awarded by the learned Presiding 6 Officer of the Tribunal. He submitted that in the present case as the deceased was a student, only a notional income could have been taken into consideration and the notional income cannot exceed a sum of Rs.15,000/- per year. 5. The learned counsel appointed by this Court to espouse the cause of the first and second respondents-original claimants pointed out that the third respondent admitted that the road was wide enough for free passage of three trucks at a time. He stated that the third respondent admitted that apart from a very wide road, there was a kachha Road. He submitted that it is not even the case of the third respondent that the motorcyclist came on his wrong side. He submitted that the sketch annexed to the panchanama does not correctly show the point of impact. He submitted that the panchanama can depict the situation after the impact. He submitted that only on the basis of the sketch annexed to the panchanama, one cannot jump to the conclusion that the motorcyclist was on the wrong side. As far as the quantum of compensation is concerned, he submitted that the deceased was a bright student who had already joined engineering degree course. He submitted that the deceased had bright career prospects as an engineer 7 and therefore, a reasonable amount has to be taken as the income which would have been earned by the deceased had he completed his education. He submitted that considering the evidence of the brilliant academic career of the deceased and considering that his age which was about 21 years, there is nothing wrong if his income was estimated as Rs.10.000/- per month. He relied upon some decisions of the Apex Court. He submitted that no interference is called for with the impugned award. The learned counsel appearing for the appellant stated that the second witness examined by the first and second respondents is a signatory to the panchanama and the sketch annexed to the panchanama. He , therefore, submitted that the position depicted in the panchanama cannot be disputed by the first and second respondents. He submitted that it is impossible to estimate the income of the deceased in future inasmuch as the time of death, the deceased was a student and there were too many imponderables in the way of estimating his prospective income. 6. We have given careful consideration to the submissions made by the learned counsel appearing for the parties. We have perused the record of the Tribunal. The first question to be decided is as regards 8 negligence alleged against the third respondent. Consideration of oral and documentary evidence on this aspect is necessary. The first respondent (the father of the deceased) had no personal knowledge of the accident. The second witness Mr Abhijit examined by the claimant stated that he acted as a witness to the panchanama and the sketch attached to the panchanama. Both the documents were exhibited in the evidence of the said witness. The witness stated that on the fateful day he was travelling in the same direction in which the deceased was travelling. He was also proceeding from the same engineering College towards Bicholim. He stated that the deceased was proceeding at a distance of 40 to 50 meters ahead of his motorcycle. He stated that he saw the truck coming from the opposite direction . He stated that on account of turn, the truck came on its wrong side. He stated that the truck gave a dash to the deceased. He stated that he became nervous on seeing the accident. He stated that the motorcycle of the deceased was at a distance of 1 m from the age of the road at the time of accident. He stated that he continued to remain at the spot till the panchanama was recorded by the police. The cross- examination of the said witness made by the third respondent is very brief. There were only two suggestions in the cross-examination. The 9 first one was that he has falsely stated that he had seen the truck giving a dash to the deceased by coming on its wrong side. Another suggestion given to the witness was that he had falsely stated that the truck had dragged the deceased along with motorcycle for some distance. There is not even a suggestion given that the truck was not on its wrong side. 7. The third respondent, the driver of the truck examined himself. He stated that on 12th May 2005 in the evening, he was proceeding towards Ponda . He stated that when he reached near the gate of Vijay saw Mills, the speed of his truck was about 30 km/h. He stated that he noticed that the deceased was driving motorcycle in a fast speed from the centre of the road. He stated that he had absolutely no occasion to take the truck to the side as the deceased was in a very high speed. He stated that he sounded horn and stopped the truck with a view to save the deceased. He stated that the accident occurred due to rash and negligent driving of the motor cycle. He stated in the cross- examination that the road at the spot of the accident is wide enough for three trucks to pass simultaneously. He admitted that there is a left curve to the road as one proceeds from Panaji to Ponda. He stated that 10 the curve is at a distance of about 500 meters from the accident spot. He admitted that there was a kachha road on the left side as one proceeds from Panaji to Ponda. The width of the kachha road is 5 meters. He denied the correctness of the suggestion that at the relevant time he was driving the truck at a speed of 80 to 90 km/h. He denied the correctness of the suggestion that the accident occurred due to negligence on his part. At this stage it will be necessary to advert to the panchanama. The text of the panchanama notes the location of the vehicles after the accident. The panchanama records that there are marks showing that the motor cycle was dragged by the truck. The panchanama records that there were no brake marks of the brake at the spot of accident. The sketch annexed to the panchanama shows that the truck was standing partly on the main road and partly on the kachha road in the direction of Ponda. The motor cycle was lying on the kachha road on the other side. The point of impact has been shown only on the basis of marks on the road. The second witness examined by the first and second respondents has not been examined or cross examined on the said sketch. Only on the basis of marks on the road which is one of the main roads, one cannot jump to the conclusion that the spot of accident has been correctly shown. There is an element of 11 guesswork while showing the point of impact. The sketch which is annexed to the panchanama has been drawn only on the basis of marks appearing on the road. This is a very busy road having heavy traffic. 8. Coming back to the evidence of the third respondent, in his affidavit in lieu of examination-in-chief all that he has stated is that “I noticed that deceased came in fast speed in middle of the road”. His case is that at that time he had reduced the speed to 30 Km/hour. Though in the cross examination he admitted that the road is wide enough for free passage of three trucks simultaneously, in examination -in-chief he has simply pleaded that he had no occasion to take the truck to the side. It is not his case that he was already on the left side of the road. It is not his case that there was some other vehicle on the left side of the truck. He admitted that as one proceeds from Panaji- Ponda, there is a curve towards left which is at a distance of about 500 metres prior to the spot of the accident. Thus, the truck had just negotiated the curve and, therefore, there is always a possibility of the truck coming at the center of the road or even at its wrong side. There is no material on record to show that the deceased was on wrong side. Going by the deposition of the third respondent, it is obvious that he 12 had an opportunity to avoid the accident and that he had made no efforts to avoid the accident. Going by his own case in the examination-in-chief , the speed of the truck was only 30 km/hour and, therefore, he could have taken the truck on its left side to avoid the accident. But, there is no effort made by the third respondent to avoid the accident. In the circumstances, it is not possible to find fault with the finding of the Tribunal that there was negligence on the part of the third respondent and that is the cause of the accident. 9. The second issue will be regarding the quantum of compensation. The evidence of the first respondent discloses the date of birth of the deceased as 13th November, 1984 and that on the date of the accident he was studying in second year engineering degree course in Information Technology. As narrated earlier, the accident occurred on 12th May, 2005. Perusal of the affidavit in lieu of examination-in-chief of the first respondent shows that there is no material placed on record as regards the academic record of the deceased. The first respondent has not stated anything in his affidavit in lieu of examination-in-chief about the marks secured by the deceased in the secondary and higher secondary examinations. In 13 paragraph 6 he has simply stated that his deceased son had a bright future. His ambition was to acquire higher education and to become an expert in information technology. The age of the deceased, on the date of the accident, was 20 years and 6 months. The Tribunal has come to the conclusion that considering the prospects of jobs in the stream of Information Technology, the income of the deceased can be taken at Rs.10,000/- per month. It must be noted here that the deceased was only a second year student in Engineering Degree Course which is of duration of 4 years. The learned Presiding Officer has erroneously assumed that the deceased would have earned Rs.10,000/- per month from the date of the accident. There are too many imponderables and uncertainties in the way of coming to the conclusion that the deceased would have earned Rs.10,000/- per month. The approach of the learned Presiding Officer of treating the income of the deceased at Rs.10,000/- per month is clearly erroneous. 10. The learned Counsel appearing for the appellant relied upon a decision of the Apex Court in the case of Oriental Insurance Co. Ltd. vs. Syed Ibrahim and ors., ((2007) 11 SCC 512). This was a case where the Apex Court considered the question of quantum of 14 compensation in a claim petition under the said Act where the compensation was claimed on account of death of the young children in a motor accident. In paragraphs 7 and 10, the Apex Court has held thus : “ 7. There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendour of the stars, beyond the reach of monetary tape measure. The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non- earning person. The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases, where parents are the claimants, relevant factor would be age of parents.” (emphasis added) “10. In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of 15 the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither is the income of the deceased child capable of assessment on estimated basis nor is the financial loss suffered by the parents capable of mathematical computation.” (emphasis added) This was a case where in case of a minor child the High Court had fixed compensation of Rs.1,52,000/-. The learned Counsel appearing for the appellant has also relied upon another decision of the Apex Court in Kaushlya Devi vs. Karan Arora and ors., ((2007)11 SCC 120). This was a case where the Apex Court dealt with a case where claim for compensation was made on account of death of a 14 years' old boy. This was a case where a claim of Rs.10,00,000/- was made. The Tribunal awarded a sum of Rs.1,00,000/- as compensation. In paragraph 10, the Apex Court held thus : “10. In case of the death of an infant, there may have been no actual pecuni­ ary benefit derived by his parents during the child’s lifetime. But this will not necessarily bar the parents’ claim and prospective loss will find a valid claim provided that the parents establish that they had a reasonable expectation of pe­ 16 cuniary benefit if the child had lived. This principle was laid down by the House of Lords in the famous case of Taff Vale Rly. v. Jenkins6, and Lord Atkinson said thus: ‘… all that is necessary is that a reasonable expectation of pecuniary be­ nefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact — there must be a basis of fact from which the inference can reasonably be drawn; but I wish to ex­ press my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first that the deceased earned money in the past, and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think, be drawn from circumstances other than and different from them.’ (See Lata Wadhwa v. State of Bihar7.)” Considering the fact that the father of the child had already died and the only claimant was the mother, the Apex Court confirmed the compensation amount of Rs.1,00,000/-. 11. The learned Counsel appearing for the first and second respondents relied upon a decision of the Apex Court in the case of Oriental Insurance Company Limited vs. Deo Patodi and ors., ((2009) 13 SCC 123). The learned Counsel pointed out that it was a case of a bright student where earning capacity was taken into consideration and on that basis compensation was granted. This was a case where the parents of a 22 years' old boy who died in a motor accident had applied for compensation. The deceased was undergoing a course in Business Administration in United Kingdom where he was 17 doing a part-time job with Word Bank on a monthly salary of UK £1008.31 (Rs.80,000/-). This was a case where the deceased was offered an employment in a company registered in United States of America at an annual remuneration of $41,600 (Rs.18,00,000/-). However, the deceased had not accepted the offer. The Tribunal estimated the monthly income of the deceased at Rs.18,000/- and after making necessary deductions, granted compensation. The High Court modified the award, but confirmed the basis of the award, namely that the income of the deceased was Rs.18,000/- per month. Appeals were preferred, both by the insurer of the offending vehicle and by the claimants. The Apex Court confirmed the modified award of the High Court. Perusal of the said decision shows that it is rendered in the facts of the case and especially the fact that as a student, the deceased had secured employment in United Kingdom which was a part-time employment on a monthly salary of UK £1008.31. This was a case where there was evidence on record to show that the deceased was taking education in Business Administration in United Kingdom and was having a part-time job with World Bank. The said decision will have no application in the present case, as here there is absolutely no evidence of the earning capacity of the deceased. Reliance was 18 placed by the learned Counsel appointed to espouse the cause of the first and second respondents on a decision of the Apex Court in Lata Wadhwa and ors., vs. State of Bihar and ors., ((2001) 8 SCC 197). This was a case where birth anniversary of Sir Jamshedji Tata was being celebrated in the factory premises of TISCO at Jamshedpur. The function was being held in a pandal which caught fire. It resulted in death and burn injuries to several persons. Most of them were the employees of the company, their wives and children. This was a case where a retired Chief Justice of the Apex Court was requested by the Apex Court to determine the compensation. The Apex Court considered the applicability of multiplier method and its earlier decision in case of General Manager, Kerala SRTC vs. Susamma Thomas ((1994) 2 SCC 176). This was a case where the Apex Court divided the cases in different age groups. The age groups were 5 to 10 years, and 10 to 15 years. In paragraph 11, the Apex Court held thus : “ 11. ............In case of the death of an infant, there may have been no