* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 870 OF 1995 Maharashtra State Road Transport Corporation (M.S.R.T.C.) .... Appellant V/s. Dharini R.Patil & Ors. ......Respondents == = = = = = = = = Mr.C.M.Lokesh h.f.Mr.G.S.Hegde, adv.for Appellant Mr.S.A.Joshi h.f.Mr.S.M.Oka, adv.for Respondents. Coram : Smt.R.P.SondurBaldota, J. Dated: 26 th November, 2008. P.C. : 1. Heard counsels for both sides. 2. By this appeal, Maharashtra State Road Transport Corporation (M.S.R.T.C.) takes exception to the judgment and Award dated 5th June, 1995 passed by the District and Sessions Judge, Thane in Motor Accident Claim Petition No. 266 of 1988. By the impugned judgment, the appellant has been directed to pay compensation to the respondents of Rs.2,18,400/- with interest thereon at the rate of 12% p.a. from the date of the application till payment. * 2 * 3. The brief facts of the accident are that, on 26th January, 1992 Raghuvir Patil was returning home at Kalyan on bicycle by Murbad road. When he reached near Syndigate, he gave a signal and turned to right. At that moment, the offending vehicle being S.T.Bus bearing registration number MHF-5273 came from the opposite side and dashed against the bicycle. Raghuvir fell down and got dragged to some distance. He succumbed to the injuries suffered in the accident. At the time of his death, Raghuvir was about 33 years old working as Upper Division Clerk in Maharashtra State Electricity Board earning Rs.1104/- per month. He is survived by the respondents who are his widow and two children. 4. The appellant challenges the impugned judgment contending that there was no negligence on the part of the driver of the offending vehicle. The negligence was on the part of Raghuvir. In the alternative, it is contended that it was a case of contributory negligence which would reduce the liability of the appellant to pay compensation by half. The appellant also challenges correctness of the quantum of compensation. The trial court had rejected the contentions of the appellant as regards the negligence and held that the driver of the offending vehicle was solely responsible for the accident. 5. The evidence as regards the occurrence of the accident consists of Renuka-widow of the deceased (P.W.No.1), Faizul Rehman- eye witness (P.W.No.2) and Ashok Joshi-Driver of the offending vehicle. There is also evidence of Mr.Pralhad Patil-Police Jamadar (witness no.4). The main * 3 * witness as regards the occurrence of the accident would be P.W.No.2 Faizul Rehman and Mr.Ashok Joshi. Renuka (P.W.No.1) had rushed to the place of the accident immediately after its occurrence. However, she had not witnessed the actual accident. Her evidence would be relevant as regards the spot of the accident, the location of the offending vehicle and the bicycle. A few disputed facts arising out of the evidence of the witnesses are that the width of the tar road at the place of the accident was 40 ft with kaccha road of the width of 10 ft. on both sides. At the relevant time, there was no traffic on the road. There was only the offending vehicle, the cycle driven by the deceased and the handcart. The spot of the accident was kaccha road on the right side. The body of Raghuvir on the bicycle was found in between the two front wheels of the bus. The dash was to the front left side of the bus. 6. Faizul, P.W.No.2 deposed that at the relevant time he was standing in front of Vijay Hair Cutting Saloon talking to one Vishwanath Nikam. The saloon was at the distance of about 50 ft. from the spot of the accident. Faizul saw Raghuvir on his bicycle coming from left side of the road. When he reached in front of his house he gave a signal by his right and turned to right side towards his house. He crossed the tar portion of the road and when he was on the kaccha road, the offending vehicle came from Ulhasnagar side at a high speed and gave dash to the bicycle. Raghuvir fell down. The driver of the offending vehicle could not control it and dragged Raghuvir to the distance of about 6 to 7 ft. Faizul was * 4 * subjected to extensive cross-examination. However, his evidence remain unaffected. He has further stated that when Raghuvir gave signal for turning to right side, the offending vehicle was at a distance of about 120 ft. from him. At that time, it was coming by the center of the road. When Raghuvir had crossed the road, bus was at a distance of about 10 ft. from him, it went towards left side of the road and the front side bumper gave dash to the bicycle. As against this, there is the evidence of Ashok Joshi- driver of the bus who deposed that the accident occurred because Raghuvir suddenly took a right turn and dashed against the bus on the front side. This evidence is however contrary to the statement recorded by the police. The witness was confronted with the statement, has been proved through the evidence of witness no.4, the police Jamadar who had recorded the same. In the circumstances, the evidence of Faizul which has remained unshakened despite extensive cross-examination, must be accepted as has been done by the learned trial judge. 7. There is one more aspect which has been rightly appreciated by the learned trial judge. He has noted that the tar road at the spot of the accident had the width of about 40 ft. with kaccha road of about 10 ft. on both sides. The road is quite straight and as per the record, at the material time there was no vehicular traffic at the spot. The cyclist was coming from the opposite direction of the bus and had turned to right at the particular spot. He had crossed the tar road and was on the kaccha road. If the claim of the appellant that the cyclist came all of a sudden * 5 * without giving signal and turned towards the right and dashed againt the bus is to be believed, the dash could not have been to the left side of the bus. It would have been to the right side of the bus. Therefore, the contention of the appellant that there was negligence on the part of the cyclist and it was the cyclist who dashed against the bus, cannot be accepted and the same has been rightly disbelieved by the learned trial judge. In the circumstances, there is no substance in the claim of the appellant that the accident had occurred on account of negligence on the part of the cyclist. For the same facts and circumstances, the alternative claim of the appellant that there was contributory negligence on the part of the cyclist can also not be accepted. 8. The second ground of challenge of the appellant to the impugned judgment and decree is based on the calculation of the compensation awarded. Mr.Lokesh, learned counsel for the appellant submits that the learned trial judge ought to have calculated the compensation payable to the respondents as per The Second Schedule under Section 163A of the Motor Vehicles Act. Instead, he has calculated the compensation by taking into account the future prospects of the deceased of advancement in life and career in calculating the monthly income. The learned Judge has observed that the deceased had a more or less stable job. Therefore, a reasonably liberal view of the prospects of the future could be taken and gross total income calculated accordingly. After taking into account the prospects of advancement in future career, the learned judge held that * 6 * the gross monthly income of the deceased would be Rs.2,200/- per month as against Rs.1,104/- as per the salary certificate and calculated the monthly dependency of the respondents at Rs.1,400 per month after deducting one-third amount towards personal expenses of the deceased. With this, the multiplicand calculated was of Rs.16,800/- per annum. The learned judge, looking to the age of the deceased of 34 years at the time of his death applied multiplier of 13 years and calculated the compensation payable as Rs.2,18,400/- . He is also awarded Rs.15,000/- towards consortium making the total compensation payable at Rs.2,33,400/- . Though this mode of calculation of compensation is slightly unconventional, in my opinion, it hardly makes any difference to the amount of compensation calculated. If the compensation payable were to be calculated strictly in accordance with the second schedule, there would have been lower amount of multiplicand but higher multiplier i.e. of 17 as provided in the schedule. In the circumstances, for the final calculation it hardly makes any difference. In these circumstances, I am of the opinion that there is no need to interfere with the quantum of compensation calculated by the trial court. 9. It must be held that the learned trial judge has correctly appreciated the facts and circumstances of the case and the evidence before it to pass the impugned order. Hence, the appeal is dismissed. [SMT.R.P.SONDURBALDOTA, J]