1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 672 OF 1991 FIRST APPEAL NO. 672 OF 1991 FIRST APPEAL NO. 672 OF 1991 Maharashtra State Road Transport Corporation Bombay. ... Appellant (Orig. Respondent) Versus 1) Maulabi Abdul Mujawar; ) 2) Najbun Maulali Mujawar; ) 3) Bismilah w/o Mansur Mujawar; ) 4) Namjeed dasughter of Mansur ) Mujawar; ) 5) Balwinder Singh Saudagar Singh ) 6) Kripalsing Jetasingh; ) 7) United India Insurance Co.Ltd. )..Respondents Mr.C.M.Lokesh, dvocate i/b. Mr. G.S.Hegde, Advocate for the appellant. Mr. Bhushan A. Walimbe, Advocate for respoondents Nos.1 to 4. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 26th August, 2008. DATE: 26th August, 2008. DATE: 26th August, 2008. 2 JUDGMENT JUDGMENT JUDGMENT 1. This appeal is filed by the Maharashtra State Road Transport Corporation, who was the original respondent No.5, against the award passed by the Motor Accident Claims Tribunal, Sangli, in MACP No.17 of 1988 holding the S.T. responsible for 25% of the liability. 2. The respondent Nos. 1 to 4 in this Appeal are the original claimants. The respondent No.5 is the driver of the truck MTB 7027, while the respondent No.6 is the owner of that truck. The truck was insured with the respondent No.7 - United India Insurance Co.Ltd. The appellant MSRTC is the owner of ST Bus MTQ 6356. 3. To state in brief, it is the case of the claimants that deceased Mansur Mujawar was the son of the claimants Nos. 1 and 2, the husband of the claimant No.3 and the father of claimant No.4. On 11.11.1987, he was proceeding from Islampur by S.T.Bus. At about 0.45 p.m., the Bus reached Kameri village and the bus was stopped for a brief halt alighting and boarding of passengers. During the brief halt, Mansur got down from the bus and he was standing behind the bus. At that time, the truck came from the opposite side in a high 3 speed and came to the wrong side of the road and gave dash to the the S.T. Bus, as a result, the S.T. Bus was pushed in reverse direction. Mansur,who was standing behind the bus, was dashed by the bus. He fell on the ground and was run over by the rear left side wheel of the S.T. Bus. As a result of this, he died on the spot. The claimants contend that deceased Mansur was looking after the property of his father-in-law and for this he was getting Rs.350/- per month. Besides this, he was also taking coaching classes from which he was earning Rs.300/- per month. Thus, the total income at that time was Rs.650/- . He was a commerce student and after completion of his graduation, he could get a good job. Taking into consideration these circumstances, the claimants claimed Rs.80,000/- on account of the contribution likely to have been made by the deceased Mansur. Further the claimants claimed Rs.20,000/- towards the general damages. Thus they claimed compensation amounting to Rs.1 lac. 4. The original respondent Nos. 1 to 3 i.e. the truck driver, the owner and the Insurance Company contested the petition and denied that the accident had taken place due to rash and negligent driving. It was contended that the bus driver had taken the bus in reverse without looking to the back side and this 4 resulted in the accident and therefore Mansur died. Respondent Nos. 4 and 5 i.e. the Bus driver and the S.T. contended that in view of the facts stated in the claim petition itself, the accident had taken place due to rash and negligent driving of the truck driver and which had come to the wrong side and dashed to the S.T.Bus. In view of these circumstances, the driver of the S.T. could not be held liable for the accident. all the respondents contended that the claim was excessive. 5. The learned Member of MACT observed that even though in all three witnesses are examined, none of the eye-witnesses was examined by the other party. Even the drivers of the bus and the truck were not examined. The learned Member extensively relied upon the contents of the spot panchnama, Ex.34. The learned Member found that while basically the accident had taken place due to rash and negligent driving of the truck, the bus driver had also contributed to the accident by not applying the hand-brakes while halting the bus on the road. According to the learned Member, had the bus driver applied hand-brakes, the bus would not have been pushed behind and Mansur might not have died in the accident. With this finding,the learned Tribunal fixed the contribution of the truck driver at 75% and that of the 5 bus at 25%. After considering the age and income and the responsibilities of the deceased, the learned Member of the Tribunal awarded compensation of Rs.1 lac and directed the MSRTC to pay 25% of the compensation while 75% was to be paid by the Insurance Company. The appeal is preferred only by MSRTC. No appeal or cross-objection is filed by the claimants or by the truck owner or the insurance company. In view of this, the liability of the truck owner, which has been already fixed, has become final. 6. In this Appeal, the following questions will arise for consideration :- (i) Whether the concerned Member, M.A.C.T. committed any error in holding the MSRT responsible for payment of compensation to the extent of 25% ? (ii) Whether the compensation amount is excessive ? 7. Heard the learned Counsel for the appellant MSRTC and the learned Counsel for the respondents nos. 1 to 4 i.e. the claimants. Perused the oral and documentary evidence placed before the Tribunal. 6 8. As no eye-witness was examined nor the driver or the owner of the vehicle was examined before the Tribunal, the learned Member was justified in relying upon the FIR Ex.33 which was lodged by the Police Head Constable after making spot panchnama and on the contents of the spot panchnama Ex.34. FIR was lodged against the truck driver. The learned Member of the Tribunal noted that as per the spot panchnama, the accident was on National Highway running North-South. At the relevant time the S.T. bus was proceeding from north to south while the truck was proceeding from south to north. As per the contents of the panchnama, the width of the road was 24’ and the right side wheel of the bus was at the distance of 4-1/2 from the central line towards the eastern side. When the bus was standing, the truck came from the opposite side in a high speed and dashed to the right side front portion of the bus. It clearly shows that the truck had gone to the wrong side of the road. After giving the dash, the truck had gone about 91’ before it stopped to the wrong side of the road Both the vehicles were damaged to some extent. The learned Member of the Tribunal came to conclusion that accident had taken place due to rash and negligent driving of the truck. However, the learned member also noted that had the bus driver applied 7 hand-brakes properly, the bus would not have moved in the backward direction and in that case Mansur would not be killed. Even though negligence of the truck driver, was basically responsible, there was some negligence on the part of bus driver also because he had not applied the hand-brakes. 9. The learned Counsel for the MSRTC, could not explain as to how these observations of the learned Member of the Tribunal could be held to be incorrect. There is no material on record to show that brakes in fact had been applied. Taking into consideration these circumstances, the learned member fixed the contribution of the Bus driver at 25%. Taking into consideration the circumstances, I do not find that any serious error was committed by the learned member of the Tribunal. Therefore, I see no reason to interfere in the finding of the learned Member of the Tribunal that the S.T. driver should be liable to the extent of 25%. 10. Next coming to the quantum of compensation, the learned Member did not believe that deceased Mansur was getting income from his father-in-law for looking after and for management of his property. However, he found that as per the evidence, he was taking tuition classes for about 15 - 20 students and was charging Rs.10/- for 8 each student. Therefore, the income might be around Rs.150/- to 200/-. The learned Member held that after obtaining degree in commerce, he would have earned about Rs.500/- to Rs.600/- per month. Therefore, the loss of dependency was taken at Rs.300/- per month for the claimants and he applied multiplier of 25 taking into consideration his age. Thus the total loss of dependency was computed at Rs.90,000/- and further amount of Rs.10,000/- was granted towards the loss of love, affection and society. It is true that the learned member committed error in applying the multiplier of 25. It is well settled that maximum multiplier of 18 can be applied in such matters. As he was aged 23 years as per the evidence on record, the multiplier of 18 would be proper. But at the same time, it is to be noted that the learned Member assessed the income of the deceased at a very low level. The learned Member noted that the deceased was living with his father-in-law and and was maintained by him, and therefore, he was not getting any salary for the management of the property, but at the same time, he did not assess the expenditure on the maintenance of himself, his wife and the child which could also be counted as his income. He was doing B.Com. and after completion of graduation he could get a good job and could earn about Rs.1,000/- to Rs.1500/- per month. If 9 his prospective income would have been considered, the loss of dependency would be much more and the claimants could get much more compensation. In such circumstances, merely because a wrong multiplier was applied by the learned Member, I do not want to interfere in the compensation amount. 11. In view of the facts and circumstances noted above, the appeal stands dismissed. 12. The learned Counsel for the appellant makes a statement that the appellant had deposited the decretal amount before this Court. As the Appeal is now disposed of, the decretal amount be transferred to the trial court and it may be paid to the claimants as per the direction given by the trial Court. (J.H.BHATIA, J.) (J.H.BHATIA, J.) (J.H.BHATIA, J.)