1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 236 OF 2005 1. Smt. Dwarki Vaikunth Naik, about 60 years of age, widow, housewife, 2. Smt. Shradha Santosh Naik, about 39 years of age, widow, housewife 2a.Miss Shrutika Santosh Naik, a minor, of 17 years of age, daughter of appellant no.2. 2b.Master Sanit Santosh Naik, a minor of about 15 years of age, son of appellant no.2, both are represented by their natural guardian, Smt.Shradha Santosh Naik the appellant no.2. and all r/o 108, Madel, Curchorem-Goa. 3. Miss Sulochana Vaikunth Naik, alias Mrs. Dipika Deepak Naik, about 30 years of age, presently married, r/o 739, Mirabag, Curchorem-Goa. ... Appellants versus 1. Shri Suchit Santosh Parab, of major age, driver of Kadamba, s/o Santu alias Santos Parab, r/o H.No. not known, Shanti Nagar, Porvorim-Goa. 2 2. The Managing Director, Kadamba Transport Corporation Ltd., Panaji, Goa. ... Respondents Shri V. G. P. Dukle, Advocate for the Appellants. Shri A. R. Kantak, Advocate for the Respondent Nos.1 and 2. CORAM : F. M. REIS, J. DATE : 21ST JANUARY, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award passed in Claim Petition No.276 of 2002 dated 7-5-2005 passed by the learned Motor Accident Claims Tribunal, South Goa, Margao. 2. A claim petition came to be filed by the appellants on the ground that the appellant No.1 is the widow and mother of one Rajesh Vaikunth Naik who expired in the road accident that took place on 18-4-2002 at Bambolim at 1.30 p.m. The appellant Nos.2 and 3 are the sisters of the deceased and the appellant Nos.2(a) and 2(b) are the children of the appellant No.2. 3 3. It is the case of the appellant that on 18-4-2002, the deceased Rajesh Naik was proceeding on one motorcycle on the road from Margao to Panjim and when he reached at Bambolim, the bus bearing No.GA-02-X-0310 came from the opposite direction in a fast speed and was driven by the respondent No.1 in a rash and negligent manner and came on the right side of the road and dashed against the motorcycle causing his death. Accordingly, the appellants claimed compensation for a sum of Rs.10,00,000/-. The respondents filed their written statement and claimed that the rider of the motorcycle came from the side road on the left, entered and tried to cross the main road and took a right turn to go to Panaji direction without looking at the traffic and caused the accident. After recording of the evidence and after hearing the parties, the learned Tribunal awarded the compensation of Rs.50,000/- along with interest. 4. Being aggrieved by the said Judgment and Award, the appellants have preferred the above appeal. 5. Shri V. G. P. Dukle, the learned Counsel for the appellants has assailed the impugned Judgment and pointed out that the income of 4 the deceased has not been correctly assessed. Learned Counsel further submitted that the appellants have produced at Exh.37, a certificate from the Company which cannot be disputed. The learned Counsel further submitted that the appellants are entitled for much higher compensation than the one awarded by the Tribunal. The learned Counsel further submitted that there is no justification for the Tribunal to fix the income of the deceased on notional basis. 6. On the other hand, Shri A. R. Kantak, learned Counsel for the respondent Nos.1 and 2 has pointed out that the accident has occurred on account of the negligence of the deceased. Learned Counsel took me through the evidence on record and pointed out that there was no rashness nor any negligence on the part of the respondents No.1 which caused the accident. Learned Counsel further submitted that there is no evidence adduced by the appellants to substantiate their claim about the income of the deceased. The learned Counsel further submitted that the Tribunal was justified to reject Exh.37 which has not established that any amount on that count was received by the deceased. As such, learned Counsel submitted that the appeal deserves to be rejected. 5 7. On perusal of the evidence on record and the impugned Judgment, I find that the Tribunal has found that the fact that the accident had occurred was not disputed. There is also no dispute that the accident took place involving the Kadamba bus driven by the respondent No.1 and the motorcycle driven by the deceased Rajesh. The learned Tribunal has relied upon the Judgment of the Apex Court reported in AIR 1980 SC 1354 in the case of N.K.V. Brothers(P) Ltd. Vs V.M. Karumal Ammal and on the basis of such guidelines has assessed the evidence on record. The learned Tribunal has also perused the sketch of the accident panchanama and found that the accident spot was on the Bambolim-Siridao road, which road was 10 to 14 meters wide and that the bus was towards the right side of the road facing Siridao from Bambolim and closer towards the right edge of the road and the motorcycle is right in front of the bus. The Tribunal has also found in the deposition of AW3/Satish Kumar Mehta that he was a truthful witness. The said witness has stated that at that time he was proceeding to GMC in his car. When he had crossed Siridao and had reached Bambolim he saw the Kadamba bus coming from Panaji and going towards Siridao. Ahead of his car, a motorcycle was driven by the deceased and was going towards Panaji side and was at a distance of 20 meters from his car 6 on the left side of the road. He further stated that the Kadamba bus came and dashed against the motorcycle and he had immediately applied for brakes. The evidence of the said witness has not been shaken in the cross-examination. On the basis of the said testimony of the witnesses who is stated to be 60 years old, I find that the contention of the learned Counsel for the respondent Nos.1 and 2 that there was no rash and negligence on the part of the respondent No.1 cannot be accepted. The Tribunal has assessed the evidence adduced by the appellants as well as respondent Nos.1 and 2 and has come to the conclusion that the accident has taken place due to rash and negligent driving of the bus driver, the respondent No.1. In view of the said testimony of AW3/Mehta, the Tribunal was justified to come to such conclusion that the respondent No.1 was alone responsible for the accident. 8. Dealing with the quantum of the compensation, the Tribunal has found that the appellant No.2 was the widow sister of late Rajesh and the appellant Nos.2(a) and 2(b) were her children. The Tribunal has considered that the deceased was unmarried and that the widow, mother of the deceased was 58 years old and has applied the multiplier of 8. I find no infirmity in applying the said multiplier. The Tribunal has found 7 that it was claimed by the appellants that late Rajesh was a driver and was having a trax jeep which was hired to a Company by name M/s. Terra-Firma. The Tribunal has found that the registration documents of the said jeep were not produced. The Tribunal as such found that there was no evidence to establish that the said jeep was hired by Rajesh to the Company. The Tribunal has failed to rely on Exh.37 produced by the appellants as there was no evidence to establish on record that any payments were affected on the basis of Exh.37. On perusal of Exh.37, I find that the same does not disclose per se that any amount was paid to the deceased Rajesh. Considering that the ownership of the said vehicle by the deceased Rajesh has not been established, the Tribunal was justified to come to the conclusion that there was no evidence on record to establish that deceased Rajesh was hiring the trax jeep to the Company. The Tribunal as such considered the income of the deceased on notional basis of Rs.15,000/- per annum and fixed the compensation. The evidence discloses that the deceased was otherwise a driver. Considering the prevailing condition and the income derived by the drivers at the relevant time, I find that the income of the deceased is to be assessed at Rs.24,000/- per annum. The Tribunal was not justified to come to the conclusion that the income of the deceased has to be 8 assessed on notional basis of Rs.15,000/- per annum, when the deceased was admittedly a driver. 9. AW2/Ravindra Gorantivar examined by the appellants states that the trax vehicle was driven by the said deceased Rajesh though there is no evidence that the said trax was belonging to the deceased. Nevertheless, the evidence discloses that he was a driver by profession and not self employed. In such circumstances, I find that the income of the deceased is to be assessed at Rs.24,000/- per annum. There is no dispute that the deceased was a bachelor and in view of the Judgment of the Apex Court in (2009(6) SCC 121) Smt. Sarla Verma v. Delhi Transport Corporation and another 50% is to be deducted on account of personal expenses. After such deduction, the amount works out to Rs.12,000/- per annum. The Tribunal has applied the multiplier of 8 which amount accordingly works out to Rs.96,000/-. To that extent, the impugned Judgment deserves to be modified. The remaining part of the award passed by the Tribunal is confirmed. Thus, the appellant no.1 would be entitled to a sum of Rs.96,000/- on account of loss of earnings, besides funeral expenses of Rs.2,500/-, loss of consortium Rs.5000/-, loss of estate Rs.2,500/-, medical expenses Rs.7000/- and transport 9 expenses Rs.3000/-. 10. The appellant no.1 will be entitled to a sum of Rs.66,000/- with interest as awarded by the Tribunal, after deducting a sum of Rs.50,000/- already paid under section 140 of the Motor Vehicles Act. 11. In view of the above, I pass the following: ORDER 1. The appeal is partly allowed. 2. The impugned Judgment dated 7.5.2005 is modified and the compensation is fixed at Rs.66,000/-. 3. The remaining part of the award is confirmed. 4. The appeal is disposed of accordingly with no orders as to costs. F. M. REIS, J. RD