1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 543 OF 1995 1. The Municipal Corporation, ) City of Solapur, Solapur. ) 2. The Commissioner, ) Solapur Municipal Corporation, Solapur. ).. Appellants (Org.Opp.Nos.2 & 3) Versus 1. Madhurbi Yasinsaheb Pathan, ) age 50 years, Occupation – Household work, ) Resident of 600, Garibi Hatao Zopadpatti No.2,) Hutment No.609, Bijapur Naka, Solapur. ) 2. Smt. Jahanbeg Habibso Shaikh, ) age 40 years, Occupation – House-hold work, ) Resident of Barur, Taluka : South Solapur, ) District : Solapur. ) 3. Smt. Mehrunnisa Shahabuddin Patel, ) age 33, Occupation : House hold, ) Resident of Khadaki, Taluka Tuljapur, ) District – Solapur. ) 4. Rafiq Yasin Pathan, ) age 30, Occupation – Service, Resident of ) Garibi Hatao No.2, House No.609, ) Bijapur Naka, Solapur. ) 5. Shri Rashid Yasin Pathan, ) age 22, Occupation – Unemployed, ) Resident as above. ) 6. Sadashiv Ambaji Gajkosh, ) Age 35 years, Occupation – Service, ) Resident of Anand Nagar, Bijapur Road, ) Solapur. ).. Respondents -- Shri Vineet B. Naik for the Appellants. Shri V.B. Rajure for Respondent Nos.1 to 5. -- 2 CORAM : A.S.OKA, J. DATE : 8TH FEBRUARY, 2010 ORAL JUDGMENT: . Heard learned counsel appearing for the Appellants. The 1st Appellant is the Municipal Corporation of City of Solapur and the 2nd Appellant is the Commissioner of the said Corporation. A claim petition was filed by Respondent Nos.1 to 5 under the provisions of the Motor Vehicles Act, 1988. The claim petition was filed on account of death of one Yasin Ramzan Pathan in a motor accident which occurred on 30th January, 1989. The 1st Respondent is the 1st Claimant who is the widow of the deceased and the 2nd to 5th Respondents are the other relatives of the deceased. 2. In the claim petition, it is stated that the deceased was a retired Head Master of a Primary School run by the Zilla Parishad. The case of the original Claimant is that at the time of the accident, the deceased was plying a Luna Moped. He was plying his moped from Bijapur to Solapur. From the opposite direction, a Truck came in a high speed and gave a dash to the moped. As a result, the deceased was thrown at a distance of 5 to 10 feet. The deceased succumbed injuries sustained in the accident. The 1st st Appellant is the owner of the truck. 3 3. A Written Statement was filed by the Appellants. In the Written Statement, the contention of the Appellants was that the Truck took a halt at Ashok Chowk as one Shri Argade, the employee of the Appellant No.1 stepped into the Truck. It is contended that at that time, the deceased came on his Luna Moped from the opposite direction in a high speed and dashed against the outer rear wheel on the right side of the said Truck. It is contended that as a result of the dash given by the deceased, the deceased fell down on the road and sustained injuries. The Tribunal found that the accident occurred due to rash and negligent driving on the part of the driver of the Truck. The Tribunal by the impugned award granted compensation of Rs.1,02,449/- together with interest at the rate of 12% per annum from 15th May, 1989 to 6th September, 1993 and from 12th October, 1994 onwards till the date of realization of the full amount. 4. The learned counsel appearing for the Appellants submitted that the original Claimants have not adduced any evidence to prove the negligence on the part of the driver of the Truck. He invited my attention to the evidence of Vishwanath Shivgonda Vanmare and submitted that answers in the cross-examination show that he has actually not seen the impact. He submitted that the driver of the Truck was examined by the Appellants who has deposed as to how the accident occurred. He stated that the evidence of the driver shows that it was the deceased who himself gave a dash to the rear side wheel of the Truck and died due to his own 4 negligence. He submitted that the multiplicand calculated is on the higher side and even the multiplier adopted is on the very higher side. He, therefore, submitted that the impugned award deserves to be quashed and set aside. The learned counsel appearing for the Respondent Nos.1 to 5 supported the impugned award. 5. I have carefully considered the submissions. The 1st issue is regarding the negligence. The Appellants have not disputed that their Truck is involved in the accident. In Paragraph 3 of the Written Statement, the specific case of the Appellants is that one Shri Argade, an employee of the 1st Appellant stepped into the said Truck at Ashok Chowk. It is stated that when the said Truck had halted, the deceased came by his Luna Moped from Soregaon in a very high speed and gave a dash to the outer rear wheel on the right side of the Truck and as a result of dash given by him, he ultimately fell down on the road and sustained injuries. 6. The driver of the Truck Shri Sadashiv Ambaji Gajkosh in Paragraph 3 of his deposition has stated thus :- “3. My Saheb one Mr. Argade was standing near Nehru nagar, bus stop on Solapur-Bijapur highway. Our Saheb, gave signals, to stop my truck. Accordingly I stopped my truck . 3-4 bicycles were passing, by the side of truck from Bijapur direction. The cyclist, were proceeding towards Solapur. Our Saheb boarded in the truck. I was watching whether Saheb had boarded in the truck. One Lunawala coming from Bijapur direction gave dash to one of the cyclist and the Lunawala then gave dash to the right side rear wheel 5 of the truck. I heard the noise. The Lunawala had fallen down on the road on his own accord. The Lunawala did not come under my driver side rear wheel. My vehicle was in standing position. I was acquitted in the criminal case, which was lodged in respect of the same accident.” 7. Perusal of the Written Statement filed by the Appellants shows that the theory of passing three or four bicycles by the side of the truck does not find place in the Written Statement. Moreover, in Paragraph 3 of the deposition, the driver of the truck stated that 3-4 bicycles proceeding towards Solapur were passing by the side of the truck and at that time, his boss entered the truck. Thereafter, the driver says that one person driving Luna Moped came from Bijapur direction and gave a dash to one cyclist and thereafter to the right side rear wheel of the truck. His examination-in- chief is inconsistent with the case made out in the Written Statement. In Paragraph 3 of his deposition, the witness stated that he was watching whether his boss boarded in a truck. Therefore, it is not possible to accept that the driver had seen the deceased giving a dash to the cyclist and thereafter to the right side rear wheel of the truck. Moreover, Shri Argade, the officer of the 1st Appellant who entered the truck has not been examined as a witness. He could have told the Tribunal as to how the accident occurred. Considering all these aspects, the finding of negligence has been recorded by the Tribunal against the driver of the truck owned by the 1st Appellant. It is not possible to find fault with the said finding. 8. As far as quantum is concerned, the multiplicand is calculated 6 by the learned Member of the Tribunal by taking the dependency at Rs. 507/- per month. The deceased was drawing pension of Rs.761/- per month after selling 1/3rd pension. The deceased was in the employment of Zilla Parishad. Therefore, with the future prospects of increase in the Dearness Allowance, there would have been corresponding increase even in the amount of the pension. It is true that the multiplier of 15 applied is slightly on the higher side. However, as future prospects of increase in dearness allowance are not taken into consideration. Hence the compensation amount of Rs.1,02,449/- appears to be just and proper and no interference is called for. 9. Hence, I pass following order. (a) The Appeal is accordingly dismissed with no order as to costs. (b) Any amount deposited by the Appellants is pending in this Court, the said amount shall be transferred to the concerned Tribunal. The Tribunal thereafter will pass an appropriate order about disbursement/ withdrawal of the amount to the parties. (A.S.OKA, J) ash/