1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 223 OF 2005 National Insurance Company Ltd. Margao Branch Office, 2nd Floor, Marchon Building, Margao, Goa. ... Appellant versus 1. Mrs. Sylvia Girkar alias Mrs. Sylvia Rodrigues 2. Elisie Girkar aged 13 years 3. Camil Girkar aged 12 years, 4. Anisha Girkar aged 10 years, all r/o A/P Satarda, Sawantwadi Sindhudurg 416 514. (the respondent nos.2 to 4 represented by their Guardian, their mother the respondent no.1). 5. Shri Nilesh L. Parsekar r/o Chonsai Parcem, H. No. 397, Pednem. 6. Mr. Pradip L. Parsekar r/o Parse, Vaydongar, Padem. ... Respondents 2 Shri R. G. Ramani, Advocate for the Appellant. None for the Respondents. CORAM : F. M. REIS, J. DATE : 18TH FEBRUARY, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award passed in Claim Petition No.10 of 2003 dated 2-5-2005. 2. A claim petition was filed by the respondent Nos.1 to 4 under Section 166 of the Motor Vehicles Act, 1988 on the ground that her husband Patrick, since deceased, was 37 years old having a tailoring shop with two workers from which he was earning Rs.5000/- to Rs.6000/- per month. It is further their contention that on 2-10-2002 while he was returning from Morjem to Satarda the accident took place at Kurbanwaddo in Chopdem at about 13.45 hours involving a mini bus bearing No.GA-01-Z-9119. The deceased who was riding the motorcycle expired on account of the said accident, and consequently the said petition was filed claiming for a compensation to the tune of Rs.5,00,000/-. The respondent Nos.5 and 6 opposed the said petition on 3 the ground that the deceased was driving his vehicle in a rash and negligent manner and was himself responsible for the accident. It is further their case that he was at a high speed due to which he could not control the vehicle and dashed against their vehicle which was coming on the wrong direction. The appellant also filed the written statement disputing the claim of the respondent Nos.1 to 4 and claimed that their liability, if any, was governed under the terms and conditions of the Policy. It was further their case that the accident took place on account of the negligence of the deceased. The learned Tribunal framed the issues and after recording of the evidence came to the conclusion that the death of the deceased Patrick Girkar was caused on account of vehicular accident on 2-10-2002 in which the mini bus was involved. The learned Tribunal further held that the respondent No.5 was also driving the vehicle in a rash and negligent manner and the accident was caused on account of composite negligence on the part of the deceased. Accordingly, the Tribunal awarded a sum of Rs.5,43,000/- by way of compensation. 3. Being aggrieved by the said Judgment, the appellant who is the Insurance Company filed the present appeal. 4 4. Shri R. G. Ramani, the learned Counsel for the appellant has assailed the impugned Judgment and has pointed out that the accident occurred solely on account of the rash and negligent driving of the deceased. Learned Counsel further submitted that the accident discloses that the mini bus driven by the respondent No.5 had stopped, and the deceased came in a rash and negligent manner and dashed against the said mini bus. The learned Counsel further submitted that the impugned award passed by the Tribunal is exorbitant as the income of the deceased was not established. The learned Counsel further submitted that the composite negligence assessed by the Tribunal is very meagre considering that the accident occurred on account of the negligence on the part of the deceased. The learned Counsel pointed out that the appeal deserves to be allowed. The respondent Nos.1 to 4 though served failed to be present at the time of hearing of the above appeal, nor represented by any counsel. 5. In support of their claim for compensation, the respondent Nos.1 to 4 examined the widow of the deceased. She has stated that her late husband was 37 years old and had a tailoring shop and was earning a sum of Rs.5000/- to Rs.6000/- per month. She has further stated that the 5 right leg of her husband broke at the calf between the knee and the foot, left bone broke, blood vessels and nerves were cut. She has further stated that she from the marriage had three minor children, one aged 11 years old and the other 10 years old and the third one 8 years old. In the cross- examination, she has admitted that her husband was not filing any income tax returns and she had no documents to show that her late husband was earning Rs.5000/- to Rs.6000/-. She also admitted that she had not seen the accident. As directed by the Tribunal the birth certificate of the deceased was also produced at Exh.35. 6. The next witness examined is Sandesh Haldankar who has stated that he was a tailor by profession and he was working for the deceased and was paid Rs.1000/- per month. He has further stated that the widow of the deceased is now working as a housemaid. In his cross- examination, he has stated that his name is not registered under the Shops and Establishments Act. 7. The next witness examined is Alex Girkar who has stated that the deceased Patrick had four regular sewing machines in his shop and that he used to pay him Rs.700/- per month initially and thereafter 6 Rs.1000/- per month. In the cross-examination, he stated that he did not hold any diploma as a tailor and that he had no documentary evidence to show that he was paid Rs.700/- per month. 8. AW4 is Ashok P. Prabhu who has stated that the deceased was running a tailoring shop and he had a flourishing business. In the cross-examination, he has stated that he was not in a position to state the areas of the shop premises of the deceased and that the receipts produced by him were pertaining to the tax paid towards the shop. 9. The next witness AW5 is Dharma Chopdekar who has stated that he was informed about the accident spot and that the accident had taken place when he came out from his house and the accident spot was on the Chopdem road from which the bus was plying from Chopdem to Morjim and the motorcycle was in the opposite direction and the bus was on the left side while the scooter was facing towards Chopdem. He was a panch witness and he has confirmed the contents of the panchanama. In the cross-examination, he has stated that his house is at a distance of 100 meters from the accident spot. He has also stated that the brake marks are shown in the panchanama at Exh.55 and there was damage to the 7 middle portion of the bus. 10. AW6 is Dr. E. J. Rodrigues who had conducted the post mortem examination on the deceased. 11. AW7 is Philomena Gonsalves who has stated that she along with her sister had taken her ailing brother for a special prayer which heals such ailments and which are held on every Wednesdays at Milagres Church at Morjim. Accordingly, she went to Morjim on 2-10-2002 and they hired a rickshaw from Satarda to go to Morjim and when they reached near Kurbanwaddo they saw the flow of traffic on the road was blocked due to a vehicular accident and on inquiries, the people on the spot of the accident told them that the person who is injured in the accident is a tailor from Satarda. She has further stated that the people at the site told them that the accident occurred because the bus driver drove his bus rashly and negligently and in fact sped on the road. She has further stated that on the side of the accident, there is a slight curve on the road as one proceeds from Pernem to Chopdem. She has further stated that the motorcycle and the bus occupied the major portion of the road at the spot. She was shown the sketch at Exh.55 and she stated that 8 it was not a correct picture of the accident spot. In the cross- examination, she has stated that she has not given her statement to the Police. She has further stated that the bus was facing Morjim and that the bus was in the middle of the road and more towards the right side of the road. 12. The next witness examined is RW1/Vithoba Parsekar who has stated that he is the driver of the bus and at the relevant time he had halted the bus at the bus stop for the purpose of alighting the passengers and the motorcycle rider came from the opposite direction, got nervous and in the process applied brakes which skidded with his motorcycle. In the cross-examination, he has stated that he could not state the width of the road at the accident spot. He has further stated that he had taken the bus towards the kutcha road and towards the left side of the road. He has further stated that there was no bus stop shed at the bus stop where the bus had stopped. He has further stated that the distance from Mapusa to Kurbanwaddo is about 30 kms. 13. The next witness examined as RW2 is Ladji Naik who has stated that he had recorded the statement of the injured, since deceased. 9 In the cross-examination he has stated that the doctors had certified that he was fit to give the statement and he had stated that the bus had come and dashed against him. He has further stated that Anthony was the pillion driver of the motorcycle and he had also stated that the bus had come and given a dash to the motorcycle. He has also stated that the motorcycle had dashed against the bus. He has further stated that he had not recorded the scratch marks on the panchanama. He has further stated that there is a curve on the road side as one proceeds from Chopdem to Morjim. 14. The learned Tribunal after appreciating the evidence on record has come to the conclusion that though the respondent Nos.1 to 4 had not examined any eye witnesses to the accident nor did they examine head constable Ladji Naik as their witness, but considering the records produced and the admission that there were no entries in the station diary of the panchanama being recorded of the accident spot creates a doubt on the manner of it's preparation. The Tribunal further held that there was composite negligence on the part of the deceased which resulted in the accident. Whilst assessing the income of the deceased, the Tribunal has held that the deceased was getting a monthly profit of Rs.5000/-. The 10 Tribunal has held that whilst considering the evidence on record, came to the conclusion that his earnings were Rs.5000/- per month. The Tribunal applied the multiplier of 16 and worked the compensation to a sum of Rs.6,40,000/- after deducting 25% on account of composite negligence. The Tribunal fixed the compensation to a sum of Rs.4,80,000/-. Besides the said amount, the Tribunal awarded compensation towards funeral expenses, loss of the estate and a sum of Rs.50,000/- for the sudden deprivation of love, care and affection and awarded a total sum of Rs.5,43,000/-. 15. Shri R. G. Ramani, learned Counsel did not assail granting of the said compensation of Rs.50,000/- and the other amounts payable on account of funeral expenses, etc. 16. Dealing with the contentions of Shri Ramani, learned Counsel, I find that on the evidence on record, the panchanama on which the learned Counsel for the appellant is relying for the purpose of contending that the bus had stopped at a bus stop and the position of the bus discloses that the bus was on the extreme left side of the road and the motorcycle had dashed on the said bus has been doubted by the Tribunal. 11 Considering the admission recorded by the Tribunal that the station diary does not disclose the time when such panchanama was drawn, there is no infirmity on such finding by the learned Tribunal. On perusal of the records, specially the evidence of AW7/Philomena, it appears that the bus was found on the middle of the road and the motorcycle had dashed on it's middle portion. The evidence further discloses that the accident occurred at a place where there was a curve. A cumulative effect of the material on record disclose that the accident coupled with the injuries suffered by the deceased as stated by AW1/Silviya Girkar, occurred as the respondent No.5 was driving his vehicle in a rash and negligent manner. No doubt, the Tribunal was justified to come to the conclusion that there was composite negligence on the part of the deceased. Considering that the vehicles were coming in the opposite direction and there was a head on collision, such finding of the Tribunal cannot be faulted. Apart from that, even assuming the contention of Shri Ramani, learned Counsel is to be accepted that the bus had stopped to alight the passengers, the very fact that the bus stopped at a turn itself discloses lack of due caution on the part of the respondent No.5. Admittedly, the said spot was not a designated bus stop and this itself shows the negligence on the part of the driver in stopping his bus at the spot. There 12 is no infirmity committed by the Tribunal to come to the conclusion that the accident occurred on account of the rashness and negligence on the part of the respondent No.5. The contention of Shri Ramani, learned Counsel that the deceased was solely responsible for the accident cannot be borne out from the evidence on record. 17. Dealing with the next contention of Shri Ramani that the amount awarded is on the higher side, I find that admittedly the claimants was a widow, besides three minor children to support. The minor children were orphaned on account of the death of their father. The evidence discloses that the deceased had a tailoring shop and even some tailors were working under him and who were being paid a specific amount. The Tribunal was justified to come to a conclusion that the income was to be fixed at Rs.5000/- per month. Considering the claim of the respondent Nos.1 to 4 that the deceased was earning between Rs.5000/- to Rs.6000/-, the finding of the Tribunal that the income is to be assessed at Rs.5000/- per month cannot be stated to be beyond what was stated by the respondent Nos.1 to 4. The Tribunal was justified on the basis of the material on record to come to a conclusion that 25% is to be deducted on account of composite negligence on the part of the 13 deceased. The amount of compensation awarded by the Tribunal cannot be said to be excessive. The compensation is assessed by considering the well settled principles of law. I find no infirmity in the Judgment and Award passed by the Tribunal. No interference is called for in the impugned Judgment. 18. As such, there is no merit in the above appeal and the same stands dismissed with no order as to costs. F. M. REIS, J. RD