:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.206 OF 1997 Smt. Gahenabai wd/o Daulatrao Uike and ors. ...Appellants. Vs. Shri.Ganpatrao s/o.Shankarrao Dhawan and ors. ...Respondents. WITH FIRST APPEAL NO.207 OF 1997 Smt. Kamlabai W/o. Laxman Somkuwar and ors. ....Appellants. Vs. Shri. Ganpatrao s/o. Shankarrao Dhawan and ors. ....Respondents. Ms. Manjiri Parasnis i/by Girish Godbole for the Appellants. Mr.V.N. Sagare for the Respondent No.3. CORAM: R.S.MOHITE,J. DATED :17/4/2008. ORAL JUDGMENT : 1. Since both these appeals arise out of common Judgment and Order, they are being disposed off by this common common Judgment and order. 2. The facts giving rise to the filing of the present appeals are briefly as follows. :2: a) That on 21.9.1990 at about 6.30p.m. a jeep driven by deceased Laxman bearing MH-31-G-1686 was proceeding in a northernly direction on the Karmala to Tembhurni road. Another jeep bearing no.MTJ-6922 was coming from the opposite direction. This jeep was being driven by respondent No.1 in both the appeals i.e. Ganpatrao. In the jeep driven by deceased Laxman several persons were sitting. One amongst them was deceased Sukhdeo Uike who was on the back side seat. Others i.e. one Dashraj and Mahajan were also on the back seat and P.W.No.2 Bhisan Bhise was on the front side. b) An accident took place between these two jeeps. The scene of offence panchanama indicates that jeep of Laxman was hit mainly on the driver’s side. The other jeep was also damaged on the driver’s side. The jeep driven by Laxman hit a road side stone mark and a tree. The deceased Laxman expired on the spot. The deceased Sukhdeo was carried to hospital at Pune by Mahajan and others and he died after five days. 2) In this background, two claims were filed by the heirs of Laxman and Sukhdeo. The claim filed by the heirs of Laxman bore MAC Petition No.44 of 1994 and the claim filed by the heirs of Sukhdeo bore MAC Petition No.45 of 1991. The evidence was led in these claims. :3: In MAC Petition No.44 of 1991 a son of deceased Laxman was examined mainly on the question of income of Laxman. In MAC Petition No.45 of 1991 claimants examined Satyafulabai wife of the deceased Sukhdeo Uike as the first witness mainly on the question of income earned by the deceased. However, one more witness by name Bhisan Bhise was examined as an eye witness as well as on the question of income. Bhisan Bhise produced a certificate of income issued by Jungle Society where Sukhdeo Uike was employed and the said certificate was proved. 3) On such material, the Tribunal arrived at a finding that the opponents were guilty of negligence. He however, arrived at the further finding that the deceased Laxman was also guilty for contributory negligence. 4) In respect of deceased-Sukhdeo the Court held that his income was Rs.600/-p.m., deducted 1/4th amount i.e.Rs.150/- towards his personal expenses. He thus, arrived at amount of Rs.450/-towards loss of monthly dependency. On this basis, it was held that yearly loss of such dependency would be Rs.5400/-. By applying a multiplier of 15 years and adding the amount of Rs.10,000/- towards the loss to the estate and consortium, the tribunal arrived at a figure of Rs.91,000/-. Thereafter, 25% deduction was given on :4: account of contributory negligence and the amount payable was calculated at Rs.68,250/-. 5) In the case of Laxman, the court calculated his income at Rs.750/- per month, deducted Rs.250/- for personal expenses, thus, arriving at Rs.500/- towards monthly loss of dependency. Thereafter he applied multiplier of 6 years to the loss of annual dependency i.e. Rs.6000/- and adding amount of Rs.5000/- towards the lost of estate and consortium figure arrived at Rs.46,000/-.From this 25% was deducted towards the contributory negligence and the final figure which was held to be payable was Rs.34,500/-. 6) The Advocate appearing for the appellants has vehemently argued that the Judgment and order delivered by the Tribunal was perverse and not according to law. It was contended that the finding that there was contributory negligence was without any basis. 7) The opponents had not lead any evidence in the matter and the onus was upon the opponents to prove the contributory negligence since they alleged the same. It was contended that the opponent No.1 was the driver of the jeep and he was not examined. It was contended that even if it was held that there was contributory negligence, no contributory negligence was proved against the Sukhdeo and no contributory negligence :5: could be attributed against him. It was contended that the multiplier factors of 15 and 6 years in the case of Sukhdeo and Laxman respectively were on the lower side. It was also contended that the fixation of income was arbitrary and without any basis in the evidence. 8) On behalf of the respondents, it was contended that cogent reasons were given by the Tribunal in arriving at its findings and that the court had correctly concluded that there was contributory negligence particularly when the scene of offence panchanama indicated that there were brake marks of 20ft. behind the jeep of Laxman. It was contended that the best evidence relating to income had not been produced. The claimants could have produced the salary register to corroborate the income said to have been earned by the two deceased persons. That the ages and multiplier factors has been correctly calculated. It was contended that there was no error in the impugned judgment. 9) I have perused the record and heard both sides at length. In my view, the evidence clearly indicates that the income of Sukhdeo was Rs.1000/-p.m. at the relevant time. That, his wife has stated that he was earning Rs.1600/-p.m. The second witness Bhisan Bhise was the Secretary of the Jungle Kamgar Society produced a certificate of the society indicating that he was :6: being paid Rs.50/- per day whenever the work was available. However, the said certificate further discloses that for a period of four years i.e. 1986 to 1990 the deceased was paid an amount of Rs.47,284/-. This would indicate that he was earning about Rs.1000/- p.m. There is absolutely no basis for the Court to come to the speculative conclusion that he was earning Rs.600/-p.m. Having said this, the court had deducted 1/4th of the amount i.e. Rs.150/-p.m. as personal expenses. In the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas and ors. reported in (1994) 2S.C.C. 176 it was held that deduction for personal expenses should be about 1/3rd. If the income is taken at Rs.1000/-p.m. and 1/3rd amount i.e. Rs.334/- is deducted and the balance amount of Rs.666/- is annualised, the amount would come to Rs.7992/-. By enhancing this amount by using multiplier 15, the amount arrived at would come to Rs.1,19,180/-. To this is added an amount of Rs.10,000/- towards the loss of estate and consortium, the amount payable would be Rs.1,29,880/-. 10) In the case of Laxman also his son entered the witness box and stated that his father was earning Rs.1000/- p.m. The evidence indicated that he was working as driver for 20 years.There was nothing in the cross examination which would cast any doubt on this amount. The deduction of income of Rs.150/- in my view :7: was arbitrary. I accept that his income was Rs.1000/-p.m. as per the evidence on record. After deducting 1/3rd of the amount towards the personal expenses an amount of Rs.666/- would be arrived at. This would be annualised at Rs.7992/- After applying multiplier of 6 years, the amount comes to Rs.47,952/-. That thereafter by adding Rs.10,000/ for loss of estate and consortium, the amount payable comes to Rs.57,952/-. 11) In so far as deduction of 25% made for alleged contributory negligence, I find that there is no evidence whatsoever to support the opponent’s theory of contributory negligence. Since the opponents alleged contributory negligence, onus to prove the same upon them. They failed to discharge this onus. In fact, the opponent No.1, the driver of the other jeep was one of the best witnesses to speak about the manner in which the Laxman was driving the jeep. He chose not to enter the witness box. The finding of contributory negligence merely on the basis of brake marks for 20ft. behind the jeep of Laxman is factually incorrect because scene of offence panchanama shows that there was tyre mark of 20ft. but a brake mark mark of 8ft. Apart from this , scene of offence panchanama indicates that there were no brake marks in so far as jeep of opponent No.1 is concerned indicating that he made no attempt to avoid accident by applying the brakes of his :8: vehicle. In these circumstances, in my view, the opponents having failed to discharge the burden cast upon them, no deduction can be made on account of contributory negligence. 12) In the net result, appeals will have to be partly allowed in the following terms. a) The opponents 1 and 3 in MAC Petition No.44 of 1991 are hereby held jointly and severally liable to pay an amount of Rs.57,952/- together with interest thereon at the rate of 12% p.a. from the date of the petition till realization thereof and proportionate costs of the petition and appeal, to the claimants therein. b) These opponents to deposit the aforesaid amount after adjusting any amount already deposited, within a period of three months from today and the claimants will be at liberty to withdraw the said amount perorate in equal proportion. c) If there are any minors, guardian on record will be entitled to withdraw the said amount on behalf of the minors and hold the same in trust of the minors. d) That the opponents No.1 and 3 in MAC Petition No.45 of 1991 are jointly and severally liable to pay :9: an amount of Rs.1,29,880/- together with interest there on at the rate of 12% p.a. from the date of the petition till realization thereof and proportionate costs of the petition and appeal, to the claimants therein. e) If there are any minors, guardian on record will be entitled to withdraw the said amount on behalf of the minors and hold the same in trust of the minors. (R. S.MOHITE, J.)