: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.92 OF 1990 M/s.Meghraj Sethi and Sons & Anr. ... Appellants V/s. Smt.Sunita Jitendranath & Ors. ... Respondents Mrs.Anita A. Agarwal for Appellants None for Respondents CORAM: SMT.NISHITA MHATRE, J. DATED: SEPTEMBER 11, 2009 ORAL JUDGMENT: 1. The appeal has been preferred against the judgment and award of the Motor Accident Claims Tribunal dated 21.7.1989 in Application No.325 of 1987. 2. The facts giving rise to the present appeal are as follows: One Jitendranath who was a Wing Commander in the Air Force met with an accident on Marine Drive i.e. Netaji Subhash Chandra Bose Road. He and his two daughters aged 15 years and 8 years had on 9.10.1986 visited the aquarium at about 2 pm. After completion of their visit to the aquarium they were proceeding towards the Malabar Hill for which they were to board a bus from the western side of the Marine Drive. It appears that since there was a red signal and the vehicles had stopped at the signal, Jitendranath and his two daughters attempted to cross the road from east : 2 : to west, about 236’ to the south of the traffic signal. However, only one of the daughters Nidhi managed to reach the divider when the traffic started. The deceased and his other daughter could not reach the divider in time and the deceased was knocked down by a car bearing No.MAR-7454. The other daughter Nupur was flung aside. The deceased sustained a skull fracture on account of the accident. He was removed to hospital immediately. An emergency surgery was performed however, he succumbed to the injuries that night. A complaint was lodged with the D.N. Marg police station soon after the accident. The driver was arrested and he was prosecuted under sections 279 and 304A of the Indian Penal Code. 3. The claimants filed an application before the Motor Accident Claims Tribunal claiming compensation of Rs.10 lakhs. It was contended that the driver of the car had driven the car in a rash and negligent manner without honking. According to the claimants, the deceased was thrown to a distance of 10’ from the point of impact. It was contended that the driver who had the last opportunity to avert the accident had not kept a proper lookout nor taken proper precautions to avert the accident. The owner of the car filed a written statement contending that the accident occurred because of the negligence on the part of the deceased and not the driver. It was contended that the deceased was crossing without paying heed to the traffic signal and was not crossing at the zebra crossing. The respondent, therefore, pleaded that there was contributory negligence on the part of the deceased. The Insurance company did not care to contend anything further than what was stated in the written statement. It conceded that the car was insured with the company on the date of the accident. : 3 : 4. The claimants led the evidence by examining themselves and two other witnesses. The appellants examined the two ladies travelling in the car when the accident occurred. One of them was the daughter of the owner of the vehicle. 5. On considering the evidence led before it, the Tribunal allowed the claim application partly. The Tribunal held that there was contributory negligence on the part of the deceased and the claimants and, therefore, awarded the claimants only Rs.5,89,760/- as compensation. The Tribunal directed that Rs.50,000/- from this amount should be paid to the applicant No.4 i.e. the father of the deceased. It was further held that applicant Nos.2 and 3 i.e. the minor girls were entitled to receive Rs. 1 lakh each as compensation. The balance amount was directed to be paid to the applicant No.1, the widow of the deceased. The Tribunal further directed payment of interest on the entire amount from the date of the application till payment as well as costs of the application. The Tribunal then directed that the amounts payable to the minors should be deposited in the nationalised bank in their individual names and should be retained till they attained the age of majority. The Tribunal further directed that out of the amount payable to applicant No.1, Rs.2 lakhs should be invested in a nationalised bank in a fixed deposit in her name for a period of 61 months. However, the Tribunal directed that Rs.50,000/- should be paid to applicant No.4 immediately. 6. The learned advocate for the appellant, Mrs.Agarwal submits that the Tribunal has, without considering the facts on record, awarded a huge amount to the applicants. She submits that there was contributory negligence on the part of the applicants and/or the deceased and, therefore, they should not have been awarded this amount. She points out that the Tribunal has apportioned the liability at 80% for : 4 : the appellants and 20% for the respondents which again according to Mrs.Agarwal is without any basis. She submits that after the Tribunal has recorded that the car was not being driven in a rash manner and that it was not speeding; the Tribunal ought not to have therefore held that the driver was negligent. She submits that the deceased was not crossing Marine Drive at the zebra crossing but instead was attempting to run across the road with his two minor daughters at a distance from the crossing. She points out that the deceased ought to have not crossed the road with his daughters when the cars had already started after the traffic signal turned green. The learned advocate then submits that there was no negligence on the part of the driver since he had taken all care and precaution to halt at the signal when the signal was red. She submits that in all probability, the deceased who was a visitor to Mumbai did not have any idea of the time gap for the signal to turn green when he started crossing and therefore, had met with the accident. She then points out that the calculations made by the Tribunal for compensation payable are incorrect. According to her, the Tribunal has taken an amount of Rs.3,200/- as the amount available to the family of the deceased and has used the multiplier of 16. She submits that this calculation by the Tribunal is incorrect and is in excess of what the deceased was earning as a Wing Commander. She points out that the salary certificate indicates that he was drawing an amount of Rs.5,300/- as his monthly salary and that Rs.2,650/- were the deductions made from his salary. She therefore submits that the Tribunal’s reasoning that the compensation should be calculated on the basis of Rs.3,200/- is incorrect. The learned advocate then submits that the Tribunal has allowed an amount of Rs.86,400/-. She submits that there is no discussion at all in the judgment to indicate as to why this Rs,86,400/- has been awarded. The learned advocate submits, therefore, that the award is required to be : 5 : set aside. 7. Nobody appears for the respondent-claimants although they are served. It appears that they have filed cross-objections in this appeal and sought an enhancement of the amount. Notice was directed to be issued to the respondents again on 14.8.2009 since nobody had appeared for them when the appeal reached hearing on that date. Even today, nobody appears for the respondents. 8. With the assistance of Mrs.Agarwal, I have perused the evidence led before the Tribunal and the judgment and order of the Tribunal. In my opinion, the appreciation of the evidence by the Tribunal in respect of the manner in which the accident occurred cannot be faulted at all. The inferences drawn by the Tribunal are proper and are based on the evidence led before it. There is no dispute that the deceased met with the accident on 9.10.1986 while crossing the Marine Drive and that he succumbed to his injuries in the hospital at night. There is also no dispute that the motor car MAR-7454 owned by appellant NO.1 was involved in the accident. Undisputedly, appellant No.2 is insurer of the vehicle and at the relevant time when the accident occurred the vehicle was insured. There is also no dispute that the driver was prosecuted. However, there is nothing on record to indicate the result of that prosecution. 9. In my opinion, the finding of the Tribunal that the car was not speeding must be accepted. The Tribunal has held that the car was probably being driven at 40 – 50 kph. The Tribunal therefore held that the driver of the car was not rash. However, as rightly observed by the Tribunal that since the car was not speeding and was being : 6 : driven at the speed of 40 – 50 kph. The driver had sufficient opportunity to avert the accident. The impact occurred about 236’ away from the traffic signal where the car had halted for the signal to change. Even if it is accepted that the car could not have been in a high speed there is no doubt that the driver ought to have averted the accident. The deceased was crossing the road more than 200’ away from the traffic signal where the car had halted. Therefore, when the time the car started after the signal turned green, the driver would certainly have seen the deceased trying to cross the road. The driver could then have applied the brakes and swerved the car in order to avert the accident. There is no record to show that the driver had braked in order to avert the accident which occurred about 236’ away from the traffic signal. Thus, in my opinion, although the driver may not have ignored the signal there is certainly reason to believe that the driver could have averted the accident had he taken care and precaution. Respondent No.2, the minor daughter of the deceased who has been examined before the Tribunal has stated that she rushed across the road and reached the divider. However, she did not hear any honking from the car. This would indicate that the driver had not bothered to take due care and precaution while driving the vehicle along Marine Drive. It is true that the deceased and Respondent Nos.2 and 3 ought to have crossed the Marine Drive only at the pedestrian crossing. However, the mere fact that they did not do so would not completely absolve the appellants from payment of compensation. In my opinion, the ratio accepted by the Tribunal for assessing contributory negligence cannot be faulted as the Tribunal has rightly held that there was material on record to indicate that the driver could have averted the accident. 10. Thus, the only question which remains is whether the respondents are : 7 : entitled to the amount awarded by the Tribunal. The applicant No.1 i.e. Respondent No.1 herein has deposed before the Tribunal that the deceased was drawing about Rs.5190/- per month as salary. This included the House Rent Allowance. She has stated that the deceased was entitled to free rations worth Rs.500/- per month, medical aid for all the members of the family and payment for the education of the children. Considering the other perks which the deceased would have been entitled to had he been in service, the Tribunal has held that the contention of applicant No.1 that she was being paid Rs.3,200/- per month for household expenses by the deceased is believable. The Tribunal has then considered that the compensation amount would be Rs.3200 x 12 x 16 equal to Rs.614,400/-, using 16 as the multiplier. The Tribunal has taken into consideration an amount of RS.300 per month which was the concession being paid to the applicant Nos.2 and 3 towards the school fees. The Tribunal has then considered the other benefits and perks available and has held that Rs.86,400/- would be the amount available towards this amount under this head. Thereafter, the Tribunal has awarded Rs.20,000/- for the loss of consortium, love and affection. Rs.10,403/- is the amount permitted for the actual treatment of the deceased in the hospital. In addition, the Tribunal has granted Rs.6,000/- towards funeral expenses and obsequies. Thus, in all the Tribunal has calculated the amount as Rs.7,37,203/-. Since there is contributory negligence on the pat of the deceased, the Tribunal has awarded an amount of Rs.5,89,760/- to the claimants. 11. On a perusal of the impugned judgment, there is no indication as to why an amount of Rs.86,400/- has been awarded by the Tribunal to the claimants. It appears that this amount is towards leave travel concession and other benefits which the applicant would have enjoyed had the deceased continued in employment with the : 8 : Air Force till the date of superannuation. He has also considered the concession available for the school fees and has directed that an amount of Rs.86,400/- should be paid towards the benefits and leave travel concession. However, in my opinion, there is no justification given by the Tribunal in this figure. There is no material on record a to why the figure of Rs.86,400/- has been accepted by the Tribunal towards perks and other benefits including leave travel concession and school fee concession. There is no evidence on record that these amounts, namely, the fee concession and the other material benefits including free medical aid, leave travel concession, etc. have been stopped after the death of the accident victim. Thus, in my opinion, since the Tribunal has not adequately indicated as to how the amount of Rs.86,400/- is payable to the applicants in my opinion, they would not be entitled to that amount. On perusing the evidence I have not been able to decipher the reason for granting this amount of Rs.86,400/- and therefore this amount has to be deducted from the compensation awarded. 12. Accordingly, the amount of Rs.5,21,640/- is payable to the applicants. The award of the Motor Accident Claims Tribunal is modified to the extent that the appellants shall pay an amount of Rs.521,640/- as compensation together with interest as awarded by the Tribunal besides payment of cots. All other conditions mentioned in the operative portion of the award would continue. The amount of Rs.1 lakh each deposited in the nationalised bank for the two minor girls shall be paid over to them if not already withdrawn since they have already attained the age of majority. The balance amount payable under the award as modified in this appeal shall be paid over to the application No.1 within eight weeks from today, if not already paid. : 9 : 13. Appeal stands disposed of accordingly. 14. During the pendency of the Appeal, Civil application No.4302 of 1995 was filed by the applicants in which the amount of Rs.1 lakh was permitted to be withdrawn by Respondent No.1 i.e. Rs.50,000/- which fell to the share of Respondent No.4 since he had died during the pendency of the appeal. However, there is no noting as to whether after this order was passed, the amount has in fact been withdrawn by the Respondent No.1 It appears that when the appeal was admitted, the judgment and award was stayed on condition that an amount of Rs.2 lakhs should be deposited by the appellants. Accordingly, this amount was deposited out of which the aforesaid Rs.1 lakh was permitted to be withdrawn. The appellant shall make payments in accordance with the modified award Rs.521,640 together with interest and costs as awarded by the Tribunal within eight weeks from today. 15. In view of the disposal of the appeal, nothing remains in the Cross Objections (Stamp) no.7392 of 1990 and the same is dismissed accordingly.