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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 601 of 2006
Appellant : The General Manager, Ordnance Factory,
Chanda, District Chandrapur
versus
Respondents : 1) Kalpana wd/o Ramesh Thakur, aged
about 30 years, Occ: Household
2) Himanshu s/o Ramesh Thakur, aged about 10 years, Occ: Student
3) Vaishnavi d/o Ramesh Thakur, aged about 6 years, occ: nil
4) Kamla wd/o Kisan Thakur, aged about 60 years, Occ: Nil, Respondents no. 2 and 3 are minor, through natural guardian-mother, respondent no. 1 residents of Gorewada village, near Rotary Club Building, Ward No. 1, Nagpur Shri S. K. Mishra, Advocate for appellant ::: Uploaded on - 02/08/2017 ::: Downloaded on - 06/08/2017 00:38:42 ::: (2) Coram : Dr Smt Shalini Phansalkar-Joshi, J Dated : 2nd August 2017 Oral Judgment
1. By this appeal, challenge is raised to the judgment and award dated 25th April 2006 delivered by the Motor Accident Claims Tribunal, Nagpur in Claim Petition No. 1071 of 2000. The facts, in brief, can be stated thus,
2. Respondent no. 1 Kalpana is the widow, respondents no. 2 and 3 are minor children and respondent no. 4 is the mother of deceased Ramesh Thakur. It was averred that at the time of accident Ramesh was aged about 35 years and was earning monthly salary of Rs. 3000/-, as also monthly allowances of Rs. 2000/- from his employer M/s First Consolidated Engineers Private Limited.
3. As per the case of claimants, on the day of accident, Ramesh was proceeding by auto rickshaw bearing registration No. MH-31/M/6370 on Warora-Nagpur National Highway. When his auto-rickshaw came near Rampur village, truck bearing registration No. MH-34/A/4276 gave dash to the auto-rickshaw from rear side, resulting into turtling of auto-rickshaw and consequent death of Ramesh Thakur. Respondents claimed compensation of Rs. 800,000/- ::: Uploaded on - 02/08/2017 ::: Downloaded on - 06/08/2017 00:38:43 ::: (3) together with future interest @ 8% per annum.
4. This claim petition was resisted by the appellant by filing Written Statement (Exhibit 15) denying that the cause of accident and consequent death was due to rash and negligent driving of the truck. It was contended that the auto-rickshaw was driven rashly and negligently and that too without valid licence and, therefore, appellant is not liable to pay any compensation. In the alternative, it was alleged that deceased Ramesh died probably due to fall of a heavy compressor on his person. Appellant thus prayed for dismissal of claim petition.
5. In support of their respective cases, claimants examined claimant no. 1 Kalpana and also led the evidence of one Sunil Dhanwal who was running First Consolidated Engineering Private Limited and under whom deceased Ramesh was working. On behalf of the appellant, driver of the truck viz. Lourence Thomas was examined.
6. On appreciation of evidence led by the parties, the Tribunal was pleased to hold that the cause of death was the rash and negligent driving of the truck and granted compensation of Rs. ::: Uploaded on - 02/08/2017 ::: Downloaded on - 06/08/2017 00:38:43 ::: (4) 4,14,000/- together with future interest of 8% thereon to the respondents.
7. This judgment and award of the Tribunal is challenged in present appeal on the ground that there was neither evidence on record to prove rashness and negligence on the part of the truck driver nor was there any evidence to show the actual income of the deceased. A contention is also raised that the auto-rickshaw was driven in a reckless manner on the middle of the national highway. Hence, the Tribunal has not appreciated properly the evidence on record while fixing the liability for payment of compensation on the appellant. It is urged that amount of compensation awarded by the Tribunal is also exorbitant and needs interference.
8. In the light of these submissions, the following two points arise for my determination:
(1) Whether the accident in question has occurred due to the rash and negligent driving of the truck by its driver ? and, (2) Whether the compensation awarded by the Tribunal is just, legal and fair ?
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9. In this case, admittedly on behalf of the respondents, no evidence of an eye witness is led on record. Respondent no. 1 has examined herself. However, admittedly, she was not an eye witness to the accident. However, there is other documentary evidence available on record in the form of First Information Report (exhibit
23) lodged by one Rajaram Mane, who was accompanying the deceased. After enquiry and investigation, the offences punishable under Sections 279, 337, 427, 304-A of the Indian Penal Code and Section 184 of the Motor Vehicles Act were registered against driver of the truck at Police Station, Warora, District Chandrapur. The panchanama of the spot (exhibit 24) and is also produced on record. On the basis thereof, it can very well be inferred that the accident occurred due to the rashness and negligence on the part of driver of the truck.
10. Appellant had examined driver of the offending truck who has deposed that the speed of the truck was restricted to 40 km/ph with the help of governor. According to him, it was the auto- rickshaw which was being driven in a negligent manner and that too in the middle road at a high speed. However, it is seen from his evidence itself that while he was overtaking the auto-rickshaw, the truck gave dash to the trolly of the auto-rickshaw. It is admitted by ::: Uploaded on - 02/08/2017 ::: Downloaded on - 06/08/2017 00:38:43 ::: (6) him that the dash was from rear side of the auto-ickshaw. The spot panchanama also shows that the damage was received by auto- rickshaw at its rear side. In my considered opinion, therefore, the finding arrived at by the learned Tribunal that the accident occurred due to the dash given by the offending truck and hence on account of its rash and negligent driving is just and proper and it is on due appreciation of evidence available on record. Hence, it needs to be confirmed and cannot be disturbed. Point no. 1 is answered accordingly.
11. As regards the adequacy or inadequacy of the compensation granted by the learned Tribunal, there is evidence of claimant Kalpana (widow) and employer of deceased Ramesh available on record. P. W. 1 Kalpana states that at the time of incident, Ramesh was drawing salary of Rs. 5000/- and the entire family was dependent on him. In cross-examination, she deposed that her husband was doing job since prior to her marriage in 1996. He was salesman and was doing offence work also.
12. Sunil Dhanwal of M/s First Consolidated Engineers Private Limited, examined as P. W. 2 by the claimants, deposed that Ramesh was working under him and his salary was Rs. 3000/- per ::: Uploaded on - 02/08/2017 ::: Downloaded on - 06/08/2017 00:38:43 ::: (7) month. PW 2 Sunil has also deposed that he was paying allowances of Rs. 1000/- to Rs. 1500/- to Ramesh. He affirmed that Ramesh was managing administrative work like delivery of goods, collection of goods etc. He added that salary of Ramesh was increated to Rs. 3000/- per month from August 2000 and he proved salary certificate at exhibit 35 in that behalf. In cross-examination, he deposed that Ramesh was his permanent employee.
13. On the basis of evidence adduced on record - both oral and documentary, the Tribunal has rightly held that Ramesh was earning salary of Rs. 3000/- per month and there was annual loss of dependency of Rs. 24000/-. After deducting 1/3 rd of the said amount towards his personal expenses and considering the age of the deceased, which was 35 years at the time of accident, the Tribunal has applied multiplier of "16" and in my view, rightly so. The learned Tribunal has then granted compensation of Rs. 10,000/- towards loss of consortium to claimant no. 1 and Rs. 5000/- to each of children and mother of the deceased towards loss of love and affection. The total compensation of Rs. 4,14,000/- together with interest of 8% per annum granted by the Tribunal, being reasonable, fair, just and fair, in my considered opinion, calls for no interference. Point no. 2 is answered accordingly.
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14. In the result, there is no merit in the appeal and the same is accordingly dismissed with no order as to costs.
JUDGE joshi ::: Uploaded on - 02/08/2017 ::: Downloaded on - 06/08/2017 00:38:43 :::