1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.66 OF 1995 The Maharashtra State Road Transport Corporation .. Appellant versus Yashwant Krishna Patil & Ors. .. Respondents ALONGWITH FIRST APPEAL NO.421 OF 1995 The Maharashtra State Road Transport Corporation .. Appellant versus Smt.Gangubai Shaligram Patil & Ors. .. Respondents Mr.G.S.Hegde for the appellant in both the appeals. Mr. S.M.Oak for respondents no. 1,3 and 4 in appeal no.421 of 1995. CORAM : A.S.OKA, J. DATE : 9th February 2010. JUDGMENT: . These two appeals can be conveniently disposed of by a common judgment as the same arise out the same accident. The appellant- Maharashtra State Road Transport Corporation is the 1st opponent in the claim petitions filed 2 by the respondents in these two appeals. First Appeal No.66 of 1995 arises out of a Claim Petition No.359 of 1989 filed by the respondents claiming compensation on account of death of one Vivek Yashwant Patil. The respondents in First Appeal No.421 of 1995 filed Claim Petition No.267 of 1988 claiming compensation on account of death of one Martand Patil. The accident took placed on 29th May 1988 at about 8.00 a.m. The deceased were travelling by a motor cycle. They were proceeding to village Pali from village Vitava. The deceased Martand was at the driver’s seat of the motor cycle. When they reached Khalapur, a bus owned by the appellant came from the direction of Pune from the opposite side. The allegation is that bus came on its wrong side and gave a dash to the motor cycle. Both of them succumbed to the injuries. 2. The claim petition was contested by the appellant by contending that the accident occurred due to negligence on the part of the said Martand who was driving the motor cycle in rash and negligent manner. It was contended that the said Martand was driving the said motorcycle in excessive and uncontrollable speed. In the process of overtaking a vehicle , the deceased took the motor cycle on its wrong side. It is contended that driver of the bus immediately applied brakes and tried to avoid the accident. However, the motor cycle dashed on the left portion of the front side of the bus. It was contended that initially the police had lodged prosecution against the said Martand. The Tribunal recorded a finding that the accident occurred due to rash and negligent driving of the bus as well as the said Martand. The contribution of the said Martand was held to be 50%. In Claim Petition No.359 of 1989 filed on account of demise of Vivek, the 3 compensation of Rs.40,000/- was held as payable. After deducting 50%, compensation of Rs.20,000/- was made payable under the impugned award with interest at the rate of 12% per annum. In Claim Petition No.267 of 1988 filed by the legal representatives of Martand ,it was held that total compensation payable was Rs.1,60,000/-. After deducting 50% , a sum of Rs.80,000/- with interest at the rate of 9% per annum was awarded by the Tribunal. 3. The learned counsel appearing for the appellant has taken me through the findings of the Tribunal and the evidence of the witnesses. He invited my attention to the panchnama recorded by the police and pointed out that the panchnama clearly shows that it was the motorcyclist who came on the wrong side. He submitted that the Tribunal has completely misread the evidence of the driver of the bus. The learned counsel appearing for the appellant pointed out that the driver clearly stated that he had taken his bus on the extreme left side of the road and the motorcyclist came in a high speed and dashed on the headlight of the bus on the conductor’s side. The learned counsel pointed out that the driver stated that the bus could not be further taken on the left side as there was a ditch. He also invited the attention of the Court to the evidence of the so called eye-witness Vidyadhar Mhaulhkar. He pointed out that there is nothing on record to show that the police recorded a statement of the said Vidyadhar. He stated that the said Vidyadhar claims to have informed the police about the accident but surprisingly his statement has not been recorded. He submitted that perusal of the panchnama of the scene of offence which is admitted in evidence by the 4 consent of the parties clearly shows that it was the motorcyclist who came on the wrong side and that the evidence on record is sufficient to show that driver of the bus made all possible efforts to avoid the accident. He submitted that by no stretch of imagination there was any contribution made by the driver of the bus to the accident and the entire negligence was that of Martand. He submitted that the impugned judgments show non-application of mind. The learned counsel appearing for the appellants further submitted that the compensation awarded in Claim Petition No.267 of 1988 is excessive. The learned counsel appearing for the respondents in First Appeal No.421 of 1995 supported the judgment and award. 4. I have given careful consideration to the submissions. The specific case made out in the claim petition is that when the deceased were proceeding by their motor cycle on Bombay-Pune road, a bus owned by the appellant came from the opposite direction i.e from Pune and gave a dash to the motorcycle. As a result of the dash both the deceased persons sustained serious injuries and ultimately they succumbed to the injuries. The allegation is that the driver of the bus was driving the bus in the high speed and he could not control the high speed. In the written statement the appellant has contended that the deceased Martand was driving the motor cycle in excessive speed. It is alleged that in the process of overtaking another vehicle the deceased came on the wrong side of the road and that is how the motor cycle dashed against the front left side of the bus. The specific contention raised in the written statement filed in both the claim 5 petitions is that the driver of the bus in order to avoid the accident applied urgent brakes and swerved the said bus to his right side and inspite of said efforts, the motorcycle still dashed against the bus. 5. On this aspect it will be necessary to consider the evidence of the driver of the bus Dnyandeo Ramchandra Kalake. In the deposition he stated that his bus reached near Khadi Machine Point at Khalapur. At that time he saw one truck coming from the opposite direction and a motor cycle was overtaking the said truck. He stated that there was a curve at that spot and the speed of the bus was about 40 km per hour. In the deposition he stated thus: “.... The road at that place was curving. I was driving my bus at the speed of 40 k.m.per hour. I saw the motorcyclist when he was at a distance of about 10 to 15 ft from me. On seeing him, I took my bus on the extreme left side of the road. Because of the motor cycle was at high speed, he came and dashed against my bus because he could not control his motor cycle. He dashed on the headlight of conductor side. The motorcyclist fell in gutter. I had no scope to take my bus to the further extreme left side because there was a ditch. .....” 6. This version will have to be read with what is stated in the written statement filed by the appellant. It must be stated here that the driver was a party to Claim Petition No.267 of 1988. In the written statement filed in the said claim 6 petition it is stated thus: “... Martand Shaligram Patil drove the motor cycle No.MAT-3678 at the material time, date and place at an excessive and uncontrollable speed without care and caution and without proper watch and look out with total disregard to the rules and regulations to the traffic and with total disregard to the motor vehicle moving on the said road. The opponents submit that the said deceased in the process of overtaking the motor vehicle proceeding ahead of him proceeded completely on his wrong side of the road and that the said motor cycle dashed against the front left side of the S.T bus. The opponents submit that the driver of the said S.T bus in order to avoid the accident applied urgent brakes to the said S.T bus and swerved the said S.T bus to his right side and inspite of the above motor cycle MAT-3678 driven by the said deceased dashed against the said S.T bus to its left side. .....” 7. Thus, the contention of the appellant in the Written statement is that the driver of the bus in order to avoid the accident turned the bus towards his right side and the motorcyclist gave a dash on the left side of the bus. However, in the deposition , the driver came out with a case that on noticing the motorcyclist, he took his bus on the extreme left side of the road. Another departure made in the deposition is that the motorcyclist gave a dash on the headlight of the bus on the conductor’s side. Thus, in the deposition the driver of the appellant made a 7 complete departure from the pleadings. In the cross-examination he denied that he was driving the bus at the speed exceeding 40 km per hour. He stated that the panchnama was recorded for a period of about two hours and at that time the friends of the claimants were present. A specific suggestion was given to the driver that taking undue advantage of the fact that none of the friends or relatives of the injured were present, he took his bus on extreme left hand side for the purpose of creating a false record. 8. The claimants examined one Vidyadhar who was stated to be eye-witness. He stated that the bus came in wrong side and gave dash to the motorcycle. His evidence was sought to be discarded on the ground that though he has stated that he had informed the police about the incident, his statement has not been recorded by the police. In the cross-examination he has stated that after the accident police came to the spot of incident and made a spot panchnama. Even assuming that the evidence of the said eye-witness is discarded what is on record is version of the driver of the appellant which is totally inconsistent with the pleadings. 9. The emphasis of the learned counsel appearing for the appellant was of what is depicted in the spot panchnama. In a case like this, the spot panchnama may not show the actual spot of impact. The accident occurred on a very busy national highway like Bombay-Pune road. Assuming that the panchnama shows that the bus was on its left hand side, it is not necessary that the point of impact 8 was at the place where the bus was found. The case made out in the written statement is that to avoid the accident the driver of the bus took the bus on his right hand side and a dash was given by the motor cycle on the left hand side of the bus . Probably because the panchnama shows that the head lamp on the conductor’s side of the bus was broken , in the deposition the driver of the bus came out with a story that dash was given by the motor cycle not on the left hand side but on the conductor’s side of the bus and the head lamp on the conductor’s side was broken. As stated earlier, in the deposition the driver came out with a new story that he took the bus on extreme left hand side to avoid the accident. The learned Member of the Tribunal has not accepted the evidence of the driver as well as evidence of the so called eye-witness Vidyadhar. After considering the evidence, the learned Member of the Tribunal came to the conclusion that both the bus and the motor cycle must have been driven in a very high speed and therefore, the motorcyclist as well as driver of the bus were both held guilty of negligence. The learned Judge held that both of them could not control the speed of their respective vehicles. If the evidence of the driver of the bus is read with the written statement , this Court will have to concur with the finding of the Tribunal that even the driver of the bus was negligent and therefore it is not possible to find fault with the finding of the Tribunal on the aspect of the negligence. 10. As far as quantum of the compensation is concerned, in Claim Petition No. 359 of 1989 compensation is claimed on account of demise of Vivek Patil who 9 was 20 years old and had passed 8th standard examination. Considering the age of the deceased compensation of Rs.40,000/- was determined by the Tribunal and after deducting the sum of Rs.20,000/-, the compensation of Rs.20,000/- has been awarded. The amount is reasonable and no interference is called for. As far as Claim Petition No.267 of 1988 is concerned, the case made out by the claimants was that the deceased was employed in M/s Precision Fasteners Ltd at Thane as a skilled workman. One Manohar Ganesh Shinte who was Assistant Manager (Personnel) in the said Company was examined as a witness. He stated that the deceased was in the employment of the Company since 1st April 1987 and was drawing salary of Rs.3665/- per month. He deposed that the deceased was 28 years old at the time of accident and further stated that deceased could have worked till the age of 60 years. He estimated that the deceased would have been entitled to salary of Rs.8,000/- per month at the time of his retirement. The claim petition has been filed by the parents and unmarried sisters of the deceased. The father died during the pendency of the claim petition and his name was deleted. The age of the mother was about 45 years as seen from the deposition of the mother. This was a case where the deceased was in the regular employment of a limited company. Therefore, some allowance will have to be made for further increase in the salary of the deceased. Instead of adding 50% on account of prospects of future increase in the earnings if sum of Rs.1400/- is added to the salary of Rs.3665/-, the income for the purpose of determining multiplicand can be broadly taken as Rs.5,000/- per month. As the deceased was unmarried, one half of the income will have to be deducted on 10 account of personal expenditure. Therefore, the monthly dependency will be Rs. 2500/- and yearly dependency will be Rs.30,000/-. Taking into consideration of the fact that age of the mother was 47 years, even if lower multiplier of 10 is adopted, the compensation will be more than Rs.3,00,000/-. The Tribunal has come to conclusion that total compensation payable will be Rs.1,60,000/-. The ½ deduction has been made as the deceased Martand had contributed to the accident. Hence, compensation of Rs.80,000/- awarded by the Tribunal is very reasonable and no interference can be made. 11. Hence, there is no merit in the appeals. The appeals are accordingly dismissed with no orders as to costs. (A.S.OKA,J)