… 1 … IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.65 OF 2001 1. Smt. Pramila Bhupal Gauns Desai, widow of Shri. Bhupal Gauns Desai, aged 42 years, housewife; 2. Master Bhupendra Bhupal Gauns Desai, minor, aged 15 years; and 3. Miss Bhumiti Bhupal Gauns Desai minor, aged 13 years; all residing at Avedem, Quepem, Goa. The appellant Nos. 2 & 3 being minor of age, represented herein by their mother and natural guardian, the appellant No.1. .. Appellants. Versus 1. Smt. Smita Datta Velip, aged 37 years, widow of Shri Datta Paik Velip, owner and driver of the vehicle Hero Honda, bearing Registration No.GA-02/b-6449, residing at Khaddem, Balli, P.O.: Cuncolim, Salcete, Goa 403 703; and 2. National Insurance Co.,ltd., with its Branch Office at Marchon Building, 2nd Floor, Opposite Lohia Maidan, Margao, Goa 403 701. .. Respondents. Mr. S. S. Kakodkar, Advocate for the appellants. CORAM :- U. D. SALVI,J. DATE OF RESERVING … 2 … THE JUDGMENT : 7 th June, 2010. DATE OF PRONOUNCING THE JUDGMENT : 15 th June, 2010. JUDGMENT : Judgment and award dated 5.12.2000 of the Motor Accident Claims Tribunal, South Goa at Margao awarding compensation of Rs. 1,90,000/- along with future interest @ Rs.11 % p.a. thereon from the date of the petition until payment in Claim Petition No.205/1994 has been questioned in the present appeal. 2. Head on collision between the scooter driven by the husband of the appellant No.1 and father of the co- appellants, and the motorcycle driven by the husband of the respondent No.1 Smita Velip at about 6.30 p.m. on 26.12.1993 on the road proceeding from Balli to Quepem resulted in demise of drivers of both motorcycle and scooter. It is the case of the claimants/ appellants that the deceased scooterist was proceeding from Balli to Quepem on his own side of the road when the husband of the respondent No.1 coming on the motorcycle in opposite direction in rash and negligent manner without putting the lights on, dashed … 3 … against the scooter driven by the deceased victim. Yet, the appellants submit, the Claims Tribunal on assumption that there was darkness at the material time disbelieved the eyewitness account and proceeded to hold that the accident had taken place on account of the rashness and negligence of both the drivers. Quantum of compensation due to the deceased motorcyclist on the basis of such premise, the appellants submit, was erroneously reduced to half by the learned Claims Tribunal. Learned Advocate S. S. Kakodkar for the appellants, for the purposes of canvassing the appellants' viewpoint, pointed out from the evidence of CW3- Shashikant Dessai that there was clear credible eyewitness account of the accident and there was no reason for the learned Claims Tribunal to have dismissed such eyewitness account, particularly as regards the existence of day light. He further submitted that the learned Claims Tribunal without taking into account the fact that the deceased had settled in the business as PWD Contractor after returning to India following his decade and half stay at Muscat, had erroneously presumed daily income of the deceased as Rs.100/- and completely overlooked the future prospects of the deceased in the business as PWD contractor. This approach, it is submitted, resulted in grant of compensation … 4 … not commensurate with the loss occurred to the claimants. In support of his submission, he placed reliance on the judgment reported in 1996(2)TSE1(SC); Smt. Sarla Dikshit and anr Vs. Balwant Yadav and Ors. 3. Interestingly, to the query put forth by this Court regarding the claim made by the deceased motorcyclist - the husband of the respondent No.1 Smita Velip, learned Advocate Kakodkar for the appellants responded with the papers evincing the record of the compromise between the respondent No.1 Smita Velip herein and the respondent No.3- United India Insurance Company Ltd in Claim Petition No.58/1994 for Rs.2,25,000/- on 25.03.1997. It appears that the appellant No.1 Pramila Dessai herein did resist the Claim Petition No.58/1994 with the written statement dated 04.04.1994 disputing the allegation that her husband drove scooter without light in fast speed and in rash and negligent manner at the material time and specifically contending that the accident had occurred due to rash and negligent driving of the deceased motorcyclist. 4. Keeping aside this aspect of the matter, it would be worthwhile to evaluate the impugned judgment in the light … 5 … of the evidence on record. The learned Claims Tribunal declined to accept the version of CW3- Shashikant Dessai in the light of the submission made on behalf of the respondent No.2 National Insurance Company Ltd that the appellants had not recorded statement of CW3- Shashikant Dessai. The Ld. Claims Tribunal further found it difficult to place credence on the testimony of CW3- Dessai in view of the time of accident pleaded in the Claims Petition. Taking this time as 6.30 p.m. in the month of December, Ld. Claims Tribunal assumed that there could not have been light at that point of time and rejected the version of CW3- Dessai that there was day light at the material time. The Ld. Claims Tribunal further observed that the appellant/ claimant No.1 had confirmed the time of the accident as 6.30 p.m. and the postmortem report Exh.24 referred to the time of accident as 1900 hours. This, it appears, lead to the rejection of the eye- witness account. 5. Before making any comment on the version of CW3-Dessai, particularly as regards the time of accident, it was incumbent upon the learned Claims Tribunal to answer material question as to how far the time of accident as disclosed by the claimant or for that matter postmortem … 6 … report could be believed. Evidently, the appellant / claimant no.1 Pramila - wife of the deceased victim was not an eyewitness so was the case with CW5 Dr. Sapeco, who happened to prepare the postmortem report Exh.24. No credibility could therefore found attached to the version of CW1- Pramila Dessai and postmortem report Exh.24 as to the time of accident. There is nothing in the evidence, particularly of CW3- Shashikant Dessai and RW1 Mahesh Gaonkar- Investigating Officer to suggest that the appellants had not recorded the statement of CW3-Shashikant Dessai. May be the name of CW3-Dessai was not cited as a witness on behalf of the claimants at the stage of filing Claim Petition, but the presence of CW3- Shashikant at the material time needs to be perceived from the evidence itself. CW3- Shashikant categorically stated that he had informed one Honavar with whom the deceased were working as partner about the accident after witnessing the event. This fact also emerges from the evidence of CW4-Vasant Honavar. He referred to CW3-Shashikant Dessai as a person, who had informed him of the accident. Nothing turns out from the cross-examination of CW3- Shashikant Dessai, CW4- Honavar to dislodge the weight of their evidence on this material aspect. In fact CW4 – Honavar was not cross-examined as … 7 … regards this aspect of the matter. There is no reason, therefore, to disbelieve the fact of presence of CW3- Shashikant Dessai at the material time and place. 6. Scrutiny of evidence of CW3 - Shashikant Dessai reveals that there was day light at the time of the accident and he could have viewed the collision between the said scooter and motorcycle some 20 meters ahead of him. According to him, it was 6.00 p.m. when the collision had taken place. His evidence further reveals that he went to Quepem to fetch CW4-Honavar to the spot and thereafter the victim - husband of the claimant No.1 was removed in a jeep to the Hospital. Evidence of CW4- Honavar further reveals that the victim was taken at Dr. Sanco in Quepem first and thereafter, the body of the victim was taken to Hospicio Hospital. From the mouth of CW4- Honavar came the time, when he was informed of the accident by CW3 - Shashikant Dessai, as some time between 6.30 p.m. and 6.45 p.m. Considering the chain of events, it is not unlikely that the Hospital records, particularly the postmortem report Exh.24 gave the time of bringing the dead body at Hospital at about 7.50pm on 26.12.1993. Time of accident referred to therein is 1900 hours. It is found borrowed from the report from the … 8 … police. Only credible evidence as regards the time of accident, therefore, is of CW3-Shashikant Dessai. There is no tangible reason to discard the evidence of CW3- Shashikant Dessai as imaginary version of the events. 7. The Ld. Claims Tribunal doubted CW3- Shashikant Dessai's evidence for the reason that CW3- Shashiant Dessai had not seen whether the said scooter had lamp or light and happened to see the offending motorcycle for the first time when he was about 20 meters behind the said scooter. In this regard topography of the place of accident as revealed through the testimonies of the witnesses is of material importance. Evidence of CW2- Sandesh Dessai - Pancha witness to the scene of offence panchanama Exh.CW2/A reveals that the place of accident was a sloppy road descending towards Balli from Quepem side. It means that the motorcyclist was riding motorcycle down the hill and the victim riding the scooter was climbing the slope uphill when the accident had taken place. RW1 Gaonkar- Investigating Officer further made a fleeting reference to the fact that the motorcyclist had already covered the turn at the time of impact. If this be so, it is not unlikely that CW3- Shashikant Dssai could have seen the motorcyclist for the … 9 … first time when he was about 20 meters behind the said scooterist. No wonder that CW3-Shashikant Dessai was not in a position to state whether the scooter had lamp or light, particularly when there was some day light and all depended on the power of his observation. These aspects of the matter have not been taken into account by the learned Claims Tribunal while appreciating the evidence of CW3-Shashikant Dessai. Unfortunately, the Ld. Claims Tribunal chose to rely on the version of the accident coming through the mouth of RW1 Mahesh Gaonkar, who was not witness to the accident. 8. Though CW3- Shashikant Dessai deposed that the victim was riding the scooter uphill in slow speed on his side of road, circumstantial evidence needs to be given preference over his word. Circumstances brought on record through the scene of offence panchanama Exh.CW2/A reveal that both the vehicles - motorcycle and scooter had almost suffered equal damage as a result of head on collision between the two in the middle of the road. Evidence does not disclose the fact of existence of brake marks at the spot of accident. If these circumstances are believed, it is not difficult to see that both the scooterist and motorcyclist had contributed to the accident in some measure. However, motorcyclists coming … 10 … down the hill is expected to make way for the vehicle coming up the hill from the opposite direction and as a result thereof always has greater duty of exercising due care and caution than one cast on the vehicle ascending the slope. The Ld. Claims Tribunal, therefore, could be said to have erred in apportioning the blame equally on both the riders of the vehicles involved in the accident. In considered view of this Court, the compensation payable to the claimants needs to be reduced only by 25 % and not reduced to half as computed by the Ld. Claims Tribunal. 9. Learned Claims Tribunal found it difficult to place credence on the testimonies of CW1 - Pramila and CW4- Vasant Honavar as regards the income of the deceased husband of CW1 - Pramila. Evidence of the said witnesses was thoroughly scanned by the learned Claims Tribunal and only thereafter, the learned Claims Tribunal arrived at the conclusion that income of the deceased cannot be held to be in the range of Rs.10,000/- to Rs.12,000/- per month. The Ld. Claims Tribunal observed that the deceased would have certainly required to pay income tax in case his monthly income was Rs.10,000/- and in that case, the claimants could have produced income tax return filed by the deceased to … 11 … prove his income. Having not done so, in addition to not producing any other collateral piece of documentary evidence such as bank receipts, cheuqe books, account books etc., the learned Claims Tribunal observed, the income of the deceased cannot be held to be in the range of Rs.10,000/- to 12,000/- per month. No fault can be found with these observations. Left with no alternative the Ld. Claims Tribunal with reference to the notional income given in second schedule to the Act resorted to guesswork and held that the deceased could have certainly earned at least Rs.100/- per day i.e. Rs.3,000/- per month. However, the learned Claims Tribunal gave no thought to the future prospects of advancement of the deceased. The Hon'ble Apex Court in Smt. Sarla Dikshit's case (supra) while considering the issue of future prospects made following observations : “Indeed many factors have to be put into the scales to evaluate the contingencies of the future and the contingencies of the future need not necessarily be baneful.” If this wisdom is applied to the facts of the present case, particularly in case of 40 year old person, who had developed skills as PRO and Sales Supervisor while working abroad and … 12 … was struggling to settle as licenced PWD contractor, the fortune certainly would not have turned its back to the deceased in the matter of advancement of his career as a Construction Contractor. Modestly, it can be said that over the years the deceased could have certainly doubled his income. Applying the formula employed by the Apex Court for computing the gross monthly income spread over his entire future career, had it been available, would work out to Rs.3000+6000= 9000/- divided by 2 i.e. Rs.4500/-. On deduction of 1/3rd income therefrom by way of the personal expenses of the deceased and other liabilities, the income available to the claimants i.e. his dependents would be to Rs.3,000/- p.m. Rs.36,000/- would, therefore, be available annually to the dependents. Considering the age of the deceased the proper multiplier to be used in assessing the compensation would be 15 as rightly held by the Ld. Claims Tribunal with reference to the second schedule of the Act. With use of this multiplier the compensation payable to the claimants works out to Rs.5,40,000/- 10. In view of the contributory negligence of the deceased the compensation payable to the claimants needs to be reduced by 25 % and accordingly, the compensation works … 13 … out to Rs.4,05,000/-. Adding the compensation of Rs.15,000/- towards the general damages such as funeral expenses, loss of consortium and loss of estate, the total compensation i.e. justifiable in the facts and circumstances of the present case would work out to Rs.4,20,000/- 11. The appeal is, thus, partly allowed. Just compensation due and payable to the claimants in the present case is enhanced from Rs.1,90,000/- to 4,20,000/- and the respondents are directed to pay to the claimants jointly and severally the said compensation along with future interest @ Rs.10 % p.a. from the date of the petition until payment. The Award passed by the Motor Accident Claims Tribunal, South Goa, Margao stands modified to the extent of enhancement in compensation and the interest thereon. U. D. Salvi, J. SMA