ash 1 fa-491.99 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.491 OF 1999 The Municipal Corporation of ) Greater Mumbai. ) .. Appellant Vs 1. Mrs. Sabina Wd/o Alcantro Vaz, ) Aged 48 years, ) 2. Ganell d/o. Alcantro Vaz, ) Aged 19 years. ) 3. Garner S/o. Alcantro Vaz, ) Aged 17 years, Applicant No.3 being ) Minor through his next friend and ) mother Mrs. Sabina Alcantro Vaz. ) 4. Smt. Inacina Vaz, ) mother of the deceased aged ) about 70 years, residing at ) Mangurillo, Cuncolim, ) Salsetta, Goa. ) .. Respondents -- Shri A.Y. Sakhare, Sr Counsel i/by Shri Vinod Mahadik for the Appellant. None for the Respondents. -- CORAM : A.S. OKA, J DATED : 28TH SEPTEMBER, 2011 ORAL JUDGMENT : . Heard learned counsel appearing for the Appellant. This ash 2 fa-491.99 Appeal has a chequered history. On 30th January, 2002, the Appeal was taken up for final disposal when the Advocate appearing for the Respondents was not present. By the Judgment and Order dated 30th January, 2002, the Appeal was partly allowed. By an order dated 7th February, 2002 passed in the Civil Application No.736 of 2002, the judgment and order in the Appeal was recalled and the Appeal was again fixed for hearing. 2. The Appeal was called out for final hearing on 11th July, 2011, 14th July, 2011 and 22nd July, 2011. Thereafter, the Appeal was called out on 10th August, 2011 and 20th August, 2011. On all these dates, the Advocate for the contesting Respondents was absent. The Appeal was adjourned only because none appeared for the Respondents. Therefore, the Advocate for the Appellant was directed to inform the Advocate for the Respondents about the date fixed for hearing of the Appeal. Accordingly, the intimation has been sent by the Advocate for the Appellant to the Advocate for the Respondents. It must be stated here that on 19th September, 2011 and 20th September, 2011 when the Appeal was called out and the submissions of the learned senior counsel appearing for the Appellant were heard, Shri Mendon, learned Advocate pointed out that the Advocate for the Respondents Shri S.G. Tikekar is no longer in practice. ash 3 fa-491.99 3. There is nothing on record to show that the Advocate for the Respondents has withdrawn his appearance. As stated earlier on number of occasions, the hearing of the Appeal was adjourned only on the ground that the Advocate for the Respondents was not present. It must be noted here that the same Advocate appeared on 7th February, 2002 and the judgment in the Appeal was recalled. The Advocate on record for the Appellant had intimated to the Advocate for the Respondents that the Appeal is fixed for final hearing. In any event, if the Advocate for the Respondents was unable to attend the Court, it was for him to inform his clients accordingly. 4. The challenge in the Appeal is to the judgment and award dated 26th February, 1999 passed by the learned Member of the Motor Accident Claims Tribunal by which the compensation of Rs.3,84,500/- has been granted to the Respondents inclusive of “no fault liability” with interest at the rate of 9% per annum. 5. The first Respondent is the widow of the deceased. The second and third Respondents are the daughter and son of the deceased and the fourth Respondent is the mother of the deceased. 6. The case made out by the Respondents is that on 12th June, 1987 at about 1.30 a.m. at Krishnachand Marg, near Bandra ash 4 fa-491.99 Reclamation, Bandra (West), the deceased along with his friend were proceeding by a scooter. The deceased was plying the scooter. When he reached near Meera Madhura Building, a truck owned by the Appellant Corporation came in a speed from opposite direction on the wrong side of the road and gave a dash to the scooter of the deceased. The deceased died as a result of the injuries sustained in the accident. The compensation of Rs.4 lakhs was claimed by the Respondents. 7. The Appellant contended in a Written Statement that the accident occurred due to rash and negligent driving of the scooterist himself. It was contended that it was raining at the time of accident. It was contended that the scooter was being driven in an excessive speed. As a result, the scooter slipped and gave a dash to the truck. In short, the contention is that there is no negligence on the part of the Appellant. 8. The Tribunal held that the accident occurred due to negligent driving on the part of the driver of the truck. The Tribunal has taken the income of the deceased as Rs.3,500/- per month and after applying the multiplier of 10, the compensation as aforesaid has been granted. ash 5 fa-491.99 9. The learned senior counsel appearing for the Appellant Corporation has taken the Court through the record. The learned senior counsel submitted that the negligence on the part of the driver of the truck was not at all established. His submission is that even assuming that there is some negligence on the part of the driver of the truck, there was certainly a contributory negligent on the part of the deceased. His submission is that the income of the deceased taken at Rs.3,500/- per month has no basis and in fact the Respondents did not adduce any cogent evidence as regards the income of the deceased. Lastly, he submitted that in any event, the interest granted at the rate of 9% per annum is excessive. 10. The first question will be regarding negligence. The first witness examined by the Respondents is the first Respondent who has no personal knowledge about the accident. The second witness examined is one Arvind Appasaheb Kotankar who is allegedly an eye witness. Another witness examined is one D’Souza who is not an eye witness. The fourth witness examined is Shri Shyam Ruspumrao Chavan, the concerned police officer who was in charge of the concerned police station. The appellant examined the driver of the truck. ash 6 fa-491.99 11. It will be necessary to make a reference to the evidence of the police officer Shri S.R. Chavan who recorded the panchanama. He stated that one Noor Mohammed, Taxi Driver was the first informant, whose statement was recorded by the police. He stated that he recorded the statement of Shri Arvind Kotankar during the course of investigation. He stated in the cross-examination that on that date, the road was wet and slippery. As far as the version of Laxman Shirsat, the driver of the truck is concerned, he stated that he was driving the truck in a very slow speed and it was raining at that time. He stated that one scooter came from his right side. The scooter slipped near the rear wheel of the truck. The version of the driver reads thus:- “At about 12.00 midnight to 1.00 A.M. We reached at Bandra. At that time there was torrential raining. I was coming from Bandra to Mahim towards Reclamation area. My vehicle was slow. Head light of my vehicle was on. I was going from one way road from Reclamation road to Bandra. One scooter came from my right side and Scooter was slipped near the rear wheel of my vehicle. The accident was caused due to mistake of the Scooterist.” 12. Thus, the version of the driver is that he saw the scooter slipping. However, he has not stated that he has made efforts to avoid the accident. It is pertinent to note that in the panchanama, the police officer has recorded that the truck was not found at the spot of the accident. In the cross-examination, the driver stated that immediately after the accident, he went to the police station and lodged a complaint. ash 7 fa-491.99 This version is not supported by the police officer who has been examined by the respondents. The driver denied that one Noor Mohammad was present on the spot, who directed him to carry injured person to the hospital. In the cross-examination, the driver stated that prior to the dash given to the scooter, he did not see the scooterist. The witness also stated that he saw the injured after the accident and prior thereto, the person was not seen on the road. Thus, the driver came out with a case that before the accident, he had not seen the scooterist. His version in the examination in chief is that he saw the scooterist coming from the front side. The version in the examination-in-chief clearly shows that the scooterist was not on the wrong side as the driver stated that the scooterist was on his right side. The Tribunal has considered the evidence of the driver of the Appellant. The Tribunal has also observed that there was failure on the part of the driver to take care. The statement made by the driver that he approached the police station immediately after the accident was found to be false as the First Information Report was lodged by another person and in fact the driver was arrested on the next date. This conduct has also been considered by the Tribunal. Taking an overall view of the matter, it is not possible to find fault with the finding of the Tribunal that there was negligence on the part of the driver of the truck. The contributory negligence on the part of the deceased has not been established inasmuch as even going by the version of the driver of the truck, the deceased was plying ash 8 fa-491.99 the scooter on the correct side of the road. 13. As far as the quantum of compensation is concerned, the widow of the deceased stated that the deceased was carrying on business of offset printing machine and he was also having graphic services. In her deposition, she has stated that the deceased was earning Rs.5000/- to Rs.7,000/- per month as the net income. She stated that the deceased had employed two boys, namely Larsen Almeida and Gomes as his assistants. Though the widow came out with a case that the deceased was having a bank account, she could not produce the bank pass book. Though the widow admitted in the cross- examination that the deceased was a tax-payer, no evidence was produced to show that the deceased was paying the income tax. The widow pleaded ignorance about the fact whether her deceased husband was paying the sales tax. She admitted that the deceased was not possessing any diploma or degree. Thus, the case that the deceased was earning Rs.5,000/- to Rs.7.000/- per month was not established. Therefore, the Tribunal found that the income of the deceased can be taken at Rs.3,500/- per month. The income which has been taken by the Tribunal is reasonable. 14. There were four dependents on the deceased. Therefore, in terms of the judgment of the Apex Court in Sarla Verma (Smt.) ash 9 fa-491.99 and Others vs. Delhi Transport Corporation and another [(2009) 6 SCC 121], the deduction of 1/4th will have to be made on account of personal expenditure of the deceased. Considering the age of the deceased, the multiplier has been correctly applied. Taking into account the income of the deceased at Rs.3,500/- and the multiplier of 10, the total amount payable would be Rs.4,20,000/-. After 1/4th deduction, the compensation amount payable will be Rs.3,15,000/-. The deceased was assisted by his two assistants in his business activities. Therefore, the deceased would have been required to pay some amount to the Assistants. Thus, the deduction of a sum of Rs. 1,00,000/- will have to be made on that count and hence, the compensation amount would be Rs.2,15,000/-. Usual amount of Rs. 15,000/- will have to be added on account of loss of consortium, funeral expenses, etc. Thus, the total compensation amount would be Rs.2,30,000/-. 15. The Claim Application filed in the year 1987 was decided in the year 1999. In the year 1987, the interest at the rate of 10 to 12% per annum used to be granted. Subsequently, the interest rates have been reduced. Therefore, the discretion exercised by the Tribunal by fixing the rate of interest at the rate of 9% per annum cannot be faulted with. ash 10 fa-491.99 16. Hence, I pass the following order: (a) The impugned judgment and award is modified; (b) The compensation amount of Rs.2,30,000/- shall be payable to the Respondents instead of the compensation of Rs.3,84,500/- granted by the Tribunal. The compensation shall be inclusive of the amount paid under “no fault liability”; (c) The rate of interest awarded by the Tribunal is not disturbed; (d) Rest of the judgment and award is confirmed; (e) The Appeal is partly allowed on above terms with no orders as to costs. ( A.S. OKA, J )