: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.2460 OF 2007 FIRST APPEAL NO.2460 OF 2007 FIRST APPEAL NO.2460 OF 2007 Maharashtra State Road Transport . Corporation, Mumbai ...Appellant V/s. Meena Rangrao Mali & Ors. ...Respondents Mr.C.M. Lokesh, Advocate, i/b. G.S. Hegde & Associates, for the Appellant. Mr.S.A. Rajeshirke, Advocate, for Respondent Nos.1 & 3. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 28TH MARCH, 2008. DATE : 28TH MARCH, 2008. DATE : 28TH MARCH, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Heard the Advocate for the appellant and Advocate for respondent Nos.1 and 3 and Advocate for respondent No.9. By consent, taken up for final disposal at admission stage. 2. The challenge in this Appeal preferred by the Maharashtra State Road Transport Corporation is to the Judgment and Award dated 20th January, 2006 passed by the learned Member of the Motor Accident Claims Tribunal in favour of respondent Nos.1 to 5 who are the original claimants. 3. The accident occurred on 20th April, 2000. : 2 : The name of the deceased is Rangrao. The 1st respondent is the widow of the deceased, the 2nd to 4th respondents are the children of the deceased and the 5th respondent is the mother of the deceased. 4. The case of the original claimants is that the deceased was travelling by a jeep. When the jeep came near Tulzapur Cross, a bus of the appellant State Transport Corporation which was proceeding towards Sangli-Islampur came in a fast speed and gave a dash to the said jeep. The allegations of the claimants is that the accident occurred due to rash and negligent driving on the part of the driver of the bus of the appellant. The defence of the appellant was that the accident occurred due to rash and negligent driving of the driver of the jeep. The contention is that the driver failed to control the jeep. The finding of the Tribunal is that the accident occurred due to rash and negligent driving of the driver of the bus owned by the appellant. The Tribunal found that the income of the deceased was Rs.2,880/- per month. By taking dependency at Rs.19,200/- per year, the Tribunal applied multiplier of 13. Total compensation of Rs.2,59,600/- was awarded with interest thereon at the rate of 9% p.a. : 3 : 5. The first submission of the learned Advocate for the appellant is that the evidence on record clearly shows that the accident occurred due to negligence on the part of the driver of the jeep. He submitted that at highest it was a case of the composite negligence. It is submitted that the multiplier of 13 taken by the Tribunal is extremely on the higher side in as much as the age of the deceased was found to be between 45 and 50. He, therefore, submitted that the compensation awarded is on the higher side. It is submitted that an inference of negligence has to be drawn against the driver of the jeep as he was not holding a valid driving licence. The learned Advocate appearing for the original claimants supported the impugned Judgment and Award and justified multiplier of 13. 6. I have carefully considered the submissions. Perusal of the impugned Judgment and Order shows that the learned Member of the Tribunal has considered the oral and documentary evidence on record including the evidence of the driver of the bus. It must be noted here that the driver of the jeep died as a result of the accident. The insurer of the jeep examined a clerk from the R.T.O. Office as a contention was raised by the appellant-company of breach of terms and : 4 : conditions of the policy. After considering the evidence, the learned Member of the Tribunal found that the driver of the jeep had a valid driving licence on 23rd January, 1996 and that there was nothing on record to show that the said driving licence was cancelled or that he was disqualified from holding that licence. 7. The learned Member of the Tribunal considered the evidence of the driver of the bus. Evidence of the driver of the bus shows that he noticed the jeep when it was at some distance. The case made out by the driver in his evidence is that the jeep was crowded with passengers which was coming from the opposite direction from Sangli. He stated that the speed of the bus was 60 k.m. per hour when he noticed that the right rear wheel of the jeep was separated from the body from the chassis and started tilting towards the right side. According to the driver he took the bus to the extreme left side and applied breaks. According to him afterwards the jeep came and dashed the bus on its right front corner. He stated that the passengers were thrown out of the jeep and bus. 8. The driver was cross examined by the Advocate : 5 : for the claimants. He admitted that the road at the relevant place was a safe road and he noticed the jeep when it was at the distance of 1/2 k.m. The learned Judge referred to the spot panchanama and found that both the vehicles were not on their respective left sides. The learned Judge found that the point of impact was on the proper side of the jeep if the road was divided into two halfs. In paragraph Nos.20 to 22, the learned Member of the Tribunal held thus:- "20. Thus, had it been fact that the bus was on the northern side strip of the road, the bus had no reason to drag jeep from central of the road in opposite direction towards east to the extent of 28"-4". Even though it is presumed for moment that jeep was tilting since its right rear wheel was separated, yet it appears that even the bus driver did not care to shop the vehicle by applying breaks as no tyre marks or breaks marks are noted on the road. 21. The contents of first information report warrant that the right rear wheel of the jeep was separated prior to the accident and hence it is to be presumed that since the wheel of the jeep was separated from the chassis the jeep started tilting but it was hit by the bus when it was proceeding from its legitimate strip and was dragged in opposite direction towards north-east side of the extent of 28’-4". 22. Thus, it will find that since bus driver had on occasion to see the titling jeep, he was in a position to avoid the accident and the last : 6 : opportunity was with him but he did not care for the same nor left any passage for the jeep, but hit the jeep almost on the center of the road and dragged the jeep in opposite direction. Thus, it will find that the driver o the jeep cannot be said to be the cause to the accident and it appear that the driver of the bus has exhibited rashness and negligence which ultimately gave rise to the accident. The statement of driver recorded before the court cannot be said to be trust worthy and reliable since it is contrary to the facts of the panchanama on record." 9. It is very difficult to interfere with the said findings recorded by the learned Member of the Tribunal. 10. The case of the claimants was that the income of the deceased was Rs.5,000/- per month and the deceased was running a grossory shop. The learned Member of the Tribunal did not accept the said case though a licence issued in favour of the deceased by the Agricultural Produce Market Committee at Islampur was produced. The learned Member of the Tribunal has taken the income of the deceased at their minimum of Rs.2,400/- per month. 1/3rd amount has been deducted on account of personal expenditure and thereafter dependency of Rs.19,200/- has been fixed per year. 11. The post mortem report shows that the age of : 7 : the deceased was 45 years. Considering the material on record, the learned Member of the Tribunal held that the age of the deceased was between 45 to 50 years. He proceeded to apply multiplier of 13. In view of settled position of law, multiplier of 13 could have been applied to a deceased of the age group of 32 to 35. Considering the fact that the age of the deceased was between 45 to 50 years, multiplier of 9 ought to have been applied. By applying multiplier of 9 and by taking multiplicand of Rs.19,200/-, the total compensation amount payable is Rs.1,72,800/-. To that usual amount of Rs.15,000/- ought to have been added by the learned Member of the Tribunal. Instead of that, he has taken usual amount only at Rs.10,000/-. By adding a sum of Rs.15,000/- to the compensation amount, broadly the compensation can be fixed at the rate of Rs.1,90,000/- which will be naturally inclusive of no fault liability. To that extent, the impugned Award needs modification. 12. Hence, I pass the following order:- "O R D E R" "O R D E R" "O R D E R" (a). The Appeal is partly allowed. : 8 : (b). The impugned Judgment and Award is modified by directing that compensation of Rs.1,90,000/- will be payable instead of Rs.2,59,600/- inclusive of no fault liability. (c). Rest of the Award excluding the direction to the claimants to pay deficit Court fees is maintained. (d). The Tribunal will pass appropriate order of disbursement / withdrawal of the compensation amount after considering the fact that two of the claimants have attained majority. (e). The appellant will be entitled to withdraw a sum of Rs.25,000/- deposited in this Court. (f). In view of this order, Civil Application No.326 of 2007 does not survive and the same is disposed of. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]