: 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.1062 OF 1992 FIRST APPEAL NO.1062 OF 1992 FIRST APPEAL NO.1062 OF 1992 Pavankumar Irrappa Koshti ...Appellant V/s. Malati Bhimrao Mane-Patil & Ors. ...Respondents Mr.Rupesh Bobde, Advocate, for the Appellant. Mr.Sachin Shetye, Advocate, for Respondent Nos.1 to 4. Mr.S.R. Singh, Advocate, for Respondent No.5. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 2ND APRIL, 2008. DATE : 2ND APRIL, 2008. DATE : 2ND APRIL, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. On 26th March, 2008, the submissions of the learned Advocates appearing for the parties were heard. On account of paucity of time, the Judgment could not be delivered on that day and, therefore, the Appeal was kept today for the dictation of the Judgment. 2. The appellant is the 1st respondent in a claim petition filed by the 1st to 4th respondents. The appellant is the owner of the truck bearing registration No.MTL-436. The claim petition was filed by the 1st to 4th respondents claiming compensation on account of death of Bhimrao Bapu Mane-Patil in a motor : 2 : accident on 2nd April, 1987. The 1st respondent is the widow of the deceased, the 2nd respondent is the son of the deceased, and the 3rd and 4th respondents are the parents of the deceased. On the fateful day at about 12 in the mid-night, the deceased was travelling by his motor cycle by Sangli-Miraj Road. Near Bharat Petrol Pump, the truck owned by the appellant came from behind and gave a dash to the motor cycle. The deceased suffered serious injuries as a result of the dash given by the truck. He was taken to the Civil Hospital at Sangli where he succumbed to the injuries. On the relevant date, the truck was insured with the 5th respondent-Insurance Company. 3. The appellant did appear before the Tribunal but did not file written statement. Therefore, the claim petition proceeded without written statement of the appellant. The claim petition was contested by the 5th respondent raising various contentions including a contention that as the policy of insurance was standing in the name of the father of the appellant, the Insurance Company was not liable. Apart from other contentions raised on the merits of the claim, the 5th respondent contended that the liability of the said respondent was restricted to : 3 : Rs.1,50,000/- considering the terms and conditions of the policy. 4. By the impugned Judgment and Award, the Tribunal held that the 1st to 4th respondents were entitled to total compensation of Rs.2,50,000/- inclusive of compensation awarded on account of no fault liability together with proportionate costs and interest on the amount of compensation at the rate of 12% p.a. from 1st October, 1987 till realisation of the amount. The liability of the 5th respondent-Insurer was restricted to Rs.1,50,000/- together with interest thereon as well as proportionate costs thereon. The appellant was held liable to pay the compensation amount over and above the aforesaid amount of Rs.1,50,000/- with interest and costs. Directions were given by the Tribunal of the investment of the shares of the 1st and 4th respondents in a nationalized bank for a period of five years. 5. The 1st respondent examined herself as a witness. One Balu Shankar Nikam claiming to be an eye witness was also examined as a witness. The 3rd witness examined by the 1st to 4th respondents is one Ismail Babu Mujawar. The 4th witness examined by the : 4 : original claimants is Rajendra Bhimrao Mane-Patil. No witness was examined by the appellant or the 5th respondent. 6. The submission of the learned Advocate for the appellant is that even going by the version of the witnesses examined by the original claimants, it appears that the deceased who was plying his motor-cycle suddenly entered the main road. He pointed out that the accident occurred on main road and the manner in which the deceased entered the main road clearly shows that he was negligent as he did not take necessary precautions while entering the main road from the petrol station. His submission in the alternative is that there is a contribution made by the deceased to the cause of accident and therefore a finding ought to have been recorded atleast regarding contributory negligence on the part of the deceased. He submitted that there was no evidence adduced for establishing the income of the deceased. His submission is that the dependency taken at the rate of Rs.2,000/- per month by the learned Member of the Tribunal has no basis. His submission is that the multiplicand taken by the Tribunal is grossly exorbitant and even the multiplier applied is on the higher side considering the fact that the age of the : 5 : deceased was 45 years. 7. The submission of the learned Advocate appearing for respondent Nos.1 to 4 is that there was no evidence in rebuttal lead by the appellant to show that there was any negligence on the part of the deceased. He submitted that apart from the oral testimony of the witnesses examined by the original claimants, the spot panchanama on the record shows the width of the road at the spot of the accident. He pointed out the finding recorded by the Tribunal that considering the width of the road, the appellant could have easily avoided the accident. He submitted that the finding of the Tribunal is that while coming out on the main road, the deceased took a left turn and therefore the deceased was on the correct side of the road. It is submitted that considering the evidence of the 1st respondent, the dependency taken at the rate of Rs.2,000/- per month is reasonable. He submitted that age of the deceased was about 44 years and therefore the multiplier of 10 taken by the Tribunal is correct. He, therefore, submitted that no interference was called for. The 5th respondent is also represented by an Advocate. The 5th respondent is a formal party in the sense that the 5th respondent has not challenged the impugned Award and the original : 6 : claimants have not challenged the findings of the Tribunal that the liability of the 5th respondent was restricted to Rs.1,50,000/-. 8. I have carefully considered the submissions made by the learned Counsel appearing for the parties. I have also perused the notes of evidence and other relevant material on record. The 1st respondent who stepped into witness box obviously has no personal knowledge of the accident. Therefore, I am dealing with her evidence while dealing with the issue of the quantum. The 2nd witness examined by the claimants is Balu Shankar Nikam. The said witness deposed that he was knowing the deceased. He stated that the accident occurred at about 00:30 a.m. on 12th April, 1987 in front of the market yard petrol pump. At the relevant time, he was on duty at the said petrol pump. He stated that the deceased Bhimrao was having friendly relations with his employer. The deceased Bhimrao enquired about his employer at the petrol pump and proceeded towards his house by his motor cycle. He stated that one truck came from the side of Sangli in a high speed and gave a dash to the motor cycle driven by the said Bhimrao. He stated that the motor cycle was pushed ahead upto a distance of about 25 ft. to 30 ft. He stated that the deceased Bhimrao was : 7 : driving motor cycle by the left side of the road. In the cross-examination, the witness stated that the accident occurred when deceased Bhimrao entered the main road from the premises of the petrol pump. However in the cross-examination, he denied the correctness of the suggestion that he has not witnessed the accident. He stated that the accident occurred while deceased Bhimrao was turning towards east on the main road. If the directions which are mentioned in the certified copy of the spot panchanama at Exhibit-47 are considered, it appears that the deceased took a left turn after coming out of the premises of the petrol pump. 9. Another witness was examined by the claimants by the name Ismail Babu Mujawar, proprietor of a tea stall on the western side of the petrol pump. His version is that he used to keep open his tea stall till 1 a.m. He stated that he knew the deceased. He stated that the accident occurred while deceased Bhimrao was entering the Sangli-Miraj Road for going towards Miraj and a truck which came from a side of Sangli in a high speed gave a dash to the motor cycle. In the cross-examination he denied the suggestion that vehicles coming from Sangli side are not visible from the petrol pump. He denied the correctness of the : 8 : suggestion that deceased Bhimrao dashed against the truck. The 4th witness examined by the claimants is the son of deceased Bhimrao. He deposed that the appellant was driving the truck at the relevant time. He stated that the appellant disclosed that he was the owner and the driver of the truck. He stated that custody of the truck was delivered to the appellant by the police by taking a bond. 10. As against this, there was no evidence adduced by the appellant. It must be stated here that the appellant has not chosen to contest the petition by filing written statement. The appellant has not bothered to cross-examine any of the witnesses examined by the original claimants and the cross-examination is by the Advocate for the Insurance Company. Thus, the appellant has not even pleaded that there was a negligence was on the part of the deceased and that the appellant had taken all the precautions to avoid the accident. In absence of any case specifically made out by the appellant regarding due care and caution taken by him, it is very difficult to find fault with the finding recorded by the Tribunal on issue No.1 regarding negligence. 11. Apart from this, the learned Member of the : 9 : Tribunal has dealt with the arguments made by the 5th respondent based on rule 9 of the Road Regulations. While dealing with the said arguments, the learned Member of the Tribunal has held thus:- "10. Admittedly, the truck MTL 436 was coming from west. From the petrol-pump the deceased Bhimrao Mane-Patil intended to go towards Miraj, i.e. towards east. Naturally, he had to turn to left and to proceed ahead. It is none of the case of the Respondents that the deceased Bhimrao intended to go towards west. Therefore, on coming to the road, he will remain on the left side. Secondly, it is none of the case of the Respondent No.2 that the Respondent No.1 who was driving the truck MTL 436, had blown the horn and given any signal. The Respondent No.1 has not at all entered into the witness-box. No suggestion to this effect was made to Balu Nikam and Ismail Mujawar. Without any evidence to the effect that the Respondent No.1 had given any signal, how it can be inferred that the deceased Bhimrao Mane-Patil has committed breach of the Rule No.9 of the Road Regulations. Further we cannot overlook the fact that the road on that spot is of the width of 23 feet. Moreover, the road on that spot is one-way as stated above. There was absolutely no possibility of any vehicle coming from the opposite direction. It is none of the case of the Respondents that some other vehicle was coming from opposite direction by that road in contravention of the rules. That means there was sufficient road for the Respondent No.1 to drive his truck even by the right hand side. In all probability, the Respondent No.1 could have avoided the accident, but he : 10 : could not do so. The obvious reason is that the truck was in a high speed and the Respondent No.1 could not avoid the accident, when he noticed that the motor-cycle is on the road." . Considering the evidence on record, the finding recorded by the Tribunal on the first issue will have to be confirmed. 12. That takes me to the consideration of the issue relating to quantum of compensation. The version of the 1st respondent widow is that initially the deceased was serving as a Cadestral Surveyor. He served as a Cadestral Surveyor for a period of 16 years till he tendered his resignation in the year 1983. She stated that when he tendered his resignation, his pay was Rs.1,000/- to Rs.1,500/- per month. After submitting resignation, he was working as an estate agent. Her version is that the deceased used to purchase agricultural lands and convert the same into non-agricultural plots and thereafter he used to sell the plots. She stated that the deceased has purchased agricultural lands at village Bilur as well as Arag. Her version is that he used to pay her a sum of Rs.2,000/- per month for meeting the household expenses. The 1st respondent was cross-examined on this aspect. She pleaded ignorance : 11 : as to whether her husband was holding any bank account. She also pleaded ignorance about the fact whether the deceased was an income tax payer. She admitted that she has not produced the sale deeds relating to purchase of the agricultural lands by the deceased at villages Bilur and Arag. At this stage it is necessary to note that the 1st respondent has not placed on record any documentary evidence regarding the income of the deceased. The deposition of the 1st respondent was recorded on 9th February, 1990. Thereafter, three sale deeds were produced by the 1st respondent which have been exhibited as Exhibits 40, 41 and 42. Though the sale deeds may not give any indication about the income of the deceased, the sale deeds will prove the fact that the deceased was dealing in real estate. 13. According to the version of the 1st respondent, the deceased was drawing salary of Rs.1,000/- to Rs.1,500/- till he was in the employment i.e. till the year 1983. The accident is of 2nd April, 1987. It is pertinent to note that the 1st respondent in her deposition has not at all disclosed the total income received by the deceased from his business. She has merely stated that the deceased used to give her Rs.2,000/- per month to meet the : 12 : household expenses. This obviously appears to be an exaggerated version of the 1st respondent. If in the year 1983 his maximum income by way of salary was Rs.1,500/-, in absence of any material on record, it is not possible to accept the fact that his income was about Rs.3,000/- per month by April, 1987. Therefore, the dependency at the rate of Rs.2,000/- taken by the Tribunal is certainly on the higher side. Considering the fact that we are dealing with the case of the accident of the year 1987 and considering the fact that the deceased was earlier employed as a Cadestral Surveyor, the income of the deceased can be taken at the rate of Rs.2,000/- per month for the purposes of calculating the multiplicand. A sum of Rs.600/- will have to be deducted on account of personal expenditure. Thus, the monthly dependency will be Rs.1,400/- and the yearly dependency will be Rs.16,800/-. 14. There is hardly any challenge to the case made out by the claimants in the claim petition that the age of the deceased was about 44 to 45 years. In a case where age of the deceased was in the age group of 32 to 34 years, the Apex Court has taken the multiplier as 13. In a case of the deceased who was in the age group of 35-39 years, the multiplier has : 13 : been taken as 12. The Apex Court has repeatedly held that the average life span of an Indian citizen is about 65 years and the maximum multiplier of 18 can be applied to the age group of 18 to 24 years. Thus multiplier of 10 adopted by the Tribunal is reasonable. By applying multiplier of 10, the compensation amount will be Rs.1,68,000/-. To the said amount, usual amount will have to be added on account of the loss of consortium and other charges etc. The said usual amount has to be taken at Rs.12,000/-. Hence the total compensation payable will be Rs.1,80,000/- instead of Rs.2,50,000/- and to that extent the award made by the Tribunal will have to be modified. 15. It is brought to my notice that out of the amount deposited by the 5th respondent, a sum of Rs.52,310/- each has been paid to the 2nd and 3rd respondents and a total sum of Rs.1,04,620/- has been invested in fixed deposit. If the said amount which is invested in fixed deposit is not yet disbursed, the same alongwith the interest accrued thereon will have to be equally distributed to the 1st and 4th respondents by the Tribunal. A sum of Rs.25,000/-, if deposited by the appellant in this Court, will have to be transferred to the concerned Tribunal so that the : 14 : same can be appropriated towards the amount payable under the modified Award. 16. 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. (b). The total compensation payable to the 1st to 4th respondents will be Rs.1,80,000/- instead of Rs.2,50,000/-. Rest of the Award regarding payment of interest and proportionate costs is confirmed. (c). Thus the appellant will be liable to pay to the 1st to 4th respondents a sum of Rs.30,000/- with proportionate costs of the claim petition thereon as well as interest on the sum of Rs.30,000/- at the rate of 12% p.a. from the date of filing of the claim petition i.e. 1st October, 1987 till realisation of the amount. (d). The sum of Rs.25,000/- deposited by the appellant in this Court together with : 15 : interest accrued thereon, if any, shall be transferred to the concerned Tribunal. The said amount shall be appropriated towards the compensation amount payable by the appellant to the 1st to 4th respondents. Time of six months is granted to the appellant to deposit the balance amount. (e). If a sum of Rs.1,04,620/- out of the amount deposited by the 5th respondent which was invested in fixed deposit is not yet disbursed, the Tribunal will take immediate steps for disbursing the said amount alongwith the interest accrued thereon to the 1st and 4th respondents. (f). The Tribunal will pass appropriate order for distribution / disbursement of the amount payable by the appellant after hearing the claimants. (g). The appellant will pay proportionate costs of the Appeal to the 1st to 4th respondents. (h). Writ of this order and record and : 16 : proceedings shall be transmitted to the concerned Tribunal expeditiously. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]