1 fa1046-98j rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL Appellant JURSIDICTION FIRST APPEAL NO.1046 OF 1998 Perry Willard Munger .. Appellant V/s. Sampat Sopana Shinde & Ors. .. Respondent ..... Mr. A.M. Gokhale i/b. Mr. M. B. Kotak for the Appellant. Mr. A. M. Vidyarthi for the Respondents. ..... CORAM : A.S.OKA, J. DATE : SEPTEMBER 22, 2011. ORAL JUDGMENT : By this Appeal, the Appellant has taken an exception to the Judgment and Award dated 29th September, 1997 passed by the learned Member of the Motor Accident Claims Tribunal in a Claim Petition filed by the Appellant. It will be necessary to make a brief reference to the facts of the case. 2. The claim under Section 110A of the Motor Vehicles Act, 1939 (hereinafter referred to as “the said Act”) was made by the Appellant on account of death of one Sarah, the wife of the Appellant in a motor accident. The case made out in the claim Application is that the Appellant is a citizen of USA and 2 fa1046-98j his deceased wife was also a citizen of USA. Both of them were working as Professors were invited by the Spicer Memorial College, Pune for delivering lectures. Both of them were residing in the staff quarters of the said college at Pune. They were proceeding by a motor cycle from the college to a place known as Salisbury Park. While the motor cycle came near Archis Garage, the Appellant had to slow down the motor cycle as one woman suddenly came across the motor cycle. While the Appellant was about to stop the motor cycle, the first Respondent who was the owner and driver of the goods vehicle gave a dash to the motor cycle. The Appellant sustained injuries. The deceased died as a result of the injuries sustained in the accident. The allegation of the Appellant is that the first Respondent was driving his vehicle in a rash and negligence manner. The vehicle of the first Respondent was insured with the second Respondent insurance company on the date of the accident. In the claim application it was contended that the age of the deceased was 37 years and while in USA, she was earning income of 30,000 US $ and in India she was getting yearly income of 13,000 US $. The claim for compensation was made in the sum of Rs. 5,00,000/-. The second Respondent opposed the claim petition by filing written statement. The learned Member of 3 fa1046-98j the Tribunal held that the accident occurred due to the rash and negligent driving on the part of the first Respondent. The learned Member granted compensation of Rs.1,92,000/- by taking the yearly dependency of Rs.24,000/-. 3. The present Appeal was filed on 3rd February, 1998 for enhancement of compensation. Total compensation of Rs.5,00,000/- was claimed by the Appellant. An application dated 11th October, 2010 being Civil Applicants No.2805 of 2011 was filed seeking just compensation above a sum of Rs.5,00,000/-. 4. The learned counsel appearing for the Appellant has taken the Court through the oral and documentary evidence on record. He invited the attention of the Court to the evidence of one Mr. Wesli Gorden Jonson, who is the Principal of the Spicer Memorial College. He submitted that the income of the deceased at the rate of US $ 13,000/- was proved in his evidence. He also invited attention of the Court to the evidence of Mr. Bhikaji Shankar Bhokre, Advocate who was the constituted attorney of the Appellant. He invited attention of the Court to the power of attorney at Exhibits 88 and 89 and letter dated 23rd October, 1996 issued by President of Spicer Memorial College. He lastly relied upon the certificate 4 fa1046-98j dated 27th October, 1994 issued by Associate Secretary of 7th day Adventist Church. He submitted that the said document clearly shows that the in India, the deceased was drawing remuneration of US$ 13,000/- per year. He invited attention of the Court to the findings recorded by the learned Member of the Tribunal. He submitted that there is no evidence about the remarriage of the Appellant and consequent loss of dependency. He pointed out that there is no reason given to discard the documents about income of the deceased. He submitted that by taking the income of the deceased at US $ 13,000/- per year, after making appropriate deduction, the multiplier of 18 will have to be applied considering the age of the deceased. Lastly, he submitted that if this Court is not inclined to accept the contention that the income of US $ 13,000/- per year is proved, an order of remand be passed to enable the Appellants to lead further evidence for proving the income. 5. The learned counsel appearing for the second Respondent submitted that regarding the income of the deceased, in this case there is no evidence as the Appellant has not stepped into the witness box. He submitted that the documents produced have not been proved and the said documents are not free from suspicion. He invited the 5 fa1046-98j attention of the Court to the fact that the Advocate initially appointed by the Appellant in the claim petition deposed on behalf of the Appellant as his constituted attorney who has no personal knowledge. He pointed out that the claim petition is of the year 1983. If an order of remand is passed and after remand, higher compensation is granted, the second Respondent will unnecessarily suffer as interest will be made payable right from the year 1983. He, therefore, submitted that the impugned judgment and award may not be disturbed. 6. There is no challenge to the finding on the issue of negligence. Thus, only question which arises for consideration is regarding the quantum which revolves around the proof of income of the deceased. In the claim Application it is stated that the deceased was drawing income of 30,000 US $ in USA and in India she has drawing income of 13,000 US $ per annum. As pointed out earlier, the Appellant did not enter into the witness box. The first witness examined by the Appellant is Mr. Wesli Gorden Jonson. He stated that the deceased was employee of Spicer Memorial College, Pune of which he was a Principal for last three years. His deposition is recorded in the year 1997 and thus, the witness was the Principal approximately from the year 1994 and, therefore, he may not have a personal knowledge about the deceased who 6 fa1046-98j died way back in the year 1983. He stated that the deceased was drawing the salary of 13,000 US $ per year which was paid to her in Indian currency through the Reserve Bank of India. 7. He was shown certificate dated 22nd October, 1994 and he stated that the certificate bears the signature of Mr. Novell C. Cooper. He identified the signature of Mr. Cooper on the ground that he was previously in Pune. He stated that the Appellant was still in service and was posted in West Africa. In the cross-examination, he admitted that Spicer Memorial College, Pune is a private institution run by the 7th Day Adventist Church and the deceased was a permanent employee of the said institution. He admitted that after demise of the deceased, the Appellant got remarried. 8. The second witness on the aspect of income is Mr. Bhikaji Shankar Bhokre. It is pertinent to note that the claim petition was filed by Mr. Bhokre as an advocate for the Appellant. The record shows that on 24th February, 1995, Mr.Podar, Advocate filed Vakalatnama for the Appellant and the said Vakalatnama was singed by Mr. Bhokre in his capacity as the Constituted Attorney of the Appellant. There is nothing on record to show that Mr. Bhokre obtained a discharge. It is 7 fa1046-98j not necessary to go into the question whether Mr. Bhokre being an Advocate appearing for the Appellant could have appeared as his witness. Suffice to say that Mr. Bhokre had no personal knowledge about the income of the deceased or about the accident. The Power of Attorneys on record were executed in the year 1995-96. It is not the case made out by Mr. Bhokre in his evidence that the deceased or the Appellant were known to him prior to the accident. Obviously, he had no personal knowledge about the salary drawn by the deceased. The fact that the said witness has no personal knowledge about the facts is clear from the answer given in the cross-examination that he was not aware whether the Appellant has remarried. The first witness who was examined by the Appellant has stated that the Appellant has remarried. Therefore, evidence of the said witness is not helpful on the issue of income of the deceased. Similarly, the first witness Mr. Wesli Gorden Janson had no personal knowledge about the salary of the deceased as he became the Principal nearly 11 years after the accident. There are two documents relied upon in support of the case of the Appellant. The first document is letter dated 23rd October, 1996 issued by Mr. Wesli Gorden Jonson, Principal, Spicer Memorial College, Pune which is addressed to Mr. Bhikaji S. Bhokre, Advocate. 8 fa1046-98j The said letter has been written 13 years after the accident. The letter is signed by witness Mr. Wesli who had no personal knowledge. The second document relied upon is the certificate dated 22nd October, 1994 issued by Mr. Novell Cooper, Assistant Secretary of 7th day Adventist Church , Washington, USA. The said certificate is issued 10 years after the accident. Though the Principal of the College deposed before the Court, he did not produce any record to show that the salary of the deceased at the rate of Rs.13,000 US $ was paid in Indian currency through the Reserve Bank of India. The record of the college which is in Pune could have been produced to prove the income of the deceased. The contents of the certificate dated 22nd October, 1994 are not proved. Though, the record of the alleged employment and payment of salary must available with the college, to prove the salary, no such record was produced. Thus, it is a case where there is absolutely no evidence on record to prove the income of the deceased at the time of death. 9. Though there was no evidence of income, the Tribunal has taken a liberal view by taking monthly dependency of the Appellant at the rate of Rs.2,000/- per month and by applying multiplier of 8, compensation of Rs.1,92,000/- was awarded. This Court was inclined to increase the multiplier to 15 on the 9 fa1046-98j basis of the decision of the Apex Court in the case of Sarla Varma V/s. Delhi Transport Corporation [2009 (6) SCC 121]. However, the learned counsel appearing for the Appellant has made a prayer for remand. The record shows that the claim petition was filed in December 1983. If the order of remand is passed at this stage to enable the Appellant to lead further evidence, the first Respondent will be unnecessarily penalized by payment of interest from December 1983 in the event after remand, the Appellant succeeds in getting higher compensation. 10. This is not a case of a lay person. The Appellant is a citizen of USA who claims to be a professor. The Appellant had legal services available and in fact one of the Advocates who represented him was appointed by him as his constituted attorney. However, proper evidence could not be adduced. 11. The deceased was a citizen of USA and was allegedly a professor. It is true that this is a case of no evidence as far as proof of income of the deceased is concerned. However, with a view to give an opportunity, only by way of indulgence, I am passing an order of remand. It is obvious that there is a default on the part of the Appellant. Therefore, after remand, the Appellant will be disentitled for any interest for the period 10 fa1046-98j commencing from the date of the impugned Judgment and Award i.e. 29th September, 1997. If at all the Appellant succeeds after remand, the rate of interest and period for which interest will be payable will have to be left to discretion of the Tribunal. However, in no case the Appellant shall be entitled to the interest for the period subsequent to the date of the impugned Judgment and Award. It is for the Tribunal to decide whether the Appellant is entitled to costs. 12. As stated earlier, this Court was inclined to grant enhancement by increasing multiplier as indicated in the earlier part of the Judgment, but the order of remand is being passed only on the basis of the prayer made by the Advocate for the Appellant. As there is no challenge to the finding on the issue of negligence, the remand is confined to issue of quantum of compensation. 13. At this stage, a reference will have to be made to the Civil Application No.2805 of 2011. This Civil Application has been made practically 12 years after filing of the Appeal and 27 years after the accident. It is also necessary to note that though only the husband of the deceased is the claimant/the Appellant, now this Application is filed not only by the Appellant but the children of the Appellant have been also 11 fa1046-98j shown as Applicants. It is pertinent to note that none of the Applicants have signed or affirmed the Application and the said Application has been affirmed by Mr. Bhikaji S. Bhokre, the Power of Attorney holder. The record shows that only the Appellant had given the Power of Attorney to Mr. Bhikaji S. Bhokre and not the other Applicants in this Application. If the Appellant desires to pray for compensation exceeding the sum of Rs.5,00,000/-, it is for the Appellant to make the proper application in that behalf before the Tribunal. 14. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgment and Award dated 29th September, 1997 passed by the learned Member of the Motor Accident Claims Tribunal is quashed and set aside and Motor Accident Claim Petition No.233 of 1983 is restored to the file of the Tribunal. ii. The Tribunal shall permit the Appellant to adduce further oral and documentary evidence on the issue of quantum of compensation. It is obvious that even the Respondents will entitled to 12 fa1046-98j lead evidence in rebuttal. iii. The Tribunal shall decide the claim Application afresh as expeditiously as possible. iv. It is made clear that the Appellant will not be entitled to claim interest on the compensation amount for a period subsequent to 29th September, 1997. v. The issue whether the Appellant is entitled to interest at a particular rate is left to the discretion of the learned Member of the Tribunal. The learned Member of the Tribunal is bound to consider the conduct of the Appellant while deciding this issue. vi. Civil Application No.2805 of 2011 is disposed of with liberty to the Appellant to file appropriate Application before the Tribunal. If such Application is made, the same shall be decided in accordance with the law. vii. The Appeal is partly allowed on the above terms with no order as to costs. 13 fa1046-98j viii. R & P be forthwith transmitted to the concerned Tribunal. (A.S.OKA, J.)