Bishansing Thakursing vs Nasira Kadar Shaikh And Ors.
2002 Latest Caselaw 279 Bom

JUDGMENT

A.B. Naik, J.

1. This First Appeal Nos. 153 and 156 of 1984 can be disposed of by the common judgment as these relate to the accident which took place on 14th April, 1978. The facts involved in these appeals are very short and they can be stated in brief:

An Ambassador car bearing registration No. MRH 9829 belonging to the Maharashtra Industrial Development Corporation was coming from Nanded to Aurangabad. The said car was being driven by Kadar Shaikh who was in the employment of M.I.D.C. The occupant of the car, namely, Moreshwar Karmarkar and Govind Kulkarni, were also in service of M.I.D.C. as Executive Engineer and Superintendent Engineer respectively. The Ambassador car was proceeding towards Aurangabad from Nanded. A truck bearing registration No. MHT 5687 owned by the present appellant was being driven by the respondent No. 5, i.e., Karnelsingh. The said truck was proceeding to Hyderabad from Bhavnagar. The. accident took place on Nanded-Basmat-Aurangabad road near 426/600 kilometre stone. The place of accident is 25 kms. from Nanded. It is the case of the claimants that the truck was being driven by Karnelsingh gave dash to the said car by which all the three occupants of the car received several serious injuries. Due to the said accident the injured, namely, the driver and the two occupants breathed their last. Moreshwar died on 6th May, 1978. Govind Kulkarni died on 17th April, 1978 and Kadar Shaikh died on 15th April, 1978. It has come on record that at the time of death Karmarkar was of 42 years of age, Kulkarni was of 52 years and Kadar 36 years. Their monthly income by way of salary was Rs. 1,478/-, Rs. 2,078/- and Rs. 457.30 respectively.

2. The heirs and legal representatives of all the three deceased filed claim petitions under Section 110-A of the Motor Vehicles Act, before the Motor Accident Claims Tribunal, Nanded. All the claimants, i.e., heirs of the deceased occupants of the car claimed following amount as compensation:

(a) The claimant in Claim No. 6, i.e., heirs of deceased Karmarkar claimed Rs. 4,00,000/- as compensation.

(b) Motor Accident Claim Petition No. 475 by the heirs of Govind Kulkarni claimed compensation of Rs. 2,50,000/-.

(c) Claim Petition No. 8 filed by the heirs of Kadar Shaikh claimed a compensation of Rs. 1,60,581/-.

3. After receipt of the applications, the learned Member of the Claims Tribunal issued notices/summons to the owner and driver of the truck who were respondent Nos. 1 and 2 in all the applications. Respondent No. 3 is the Insurance Company with whom the truck was insured.

4. The owner and the driver filed their written statements vide Exhs. 28 and 29. They contended that the truck was not being driven negligently by the driver. They contended that the accident took place due to negligence of the driver of the car which was being driven by Sk. Kadar. They contended that the truck which was being driven by Karnelsingh was proceeding with normal speed and the driver was in full control of the vehicle. It was contended that the Ambassador car was in a high speed and the driver of the car could not control his vehicle and that vehicle dashed against the truck on account of which all the three sustained severe injuries and subsequently they succumbed to their injuries. It was contended that it was not the fault of the truck driver, it was the driver of the Ambassador car who was responsible for the accident. It was specifically contended by the driver of the truck about the negligence:

As a matter of fact, speed of the truck was normal. It is not this respondent No. 2 who could not control his vehicle but it was Sk. Kadar driver of car MRH 9829 who could not control his car due to high speed and which dashed against the truck.

Therefore, they claimed that the claim which is being made is exorbitant and they are not entitled for the said claim.

5. The Insurance Company by its written statement has objected the claim and it is contended that the liability of the Company is limited to the extent of Rs. 50,000/- in respect of the claim arising out of one accident and as such the total liability even if it is found that the accident was caused due to negligence of the driver, the Insurance Company will be liable only to pay Rs. 50,000/-. The Insurance Company also reiterated the grounds that are taken by the owner and the driver of the truck in their written statement. On the basis of the pleadings the learned Member, Motor Accident Claims Tribunal, framed issues in all the three claims. Though, different issues are framed in different applications, the issues are common and identical only with variance as to the amount of compensation in respect of each claim. The parties to the proceedings produced evidence in support of their respective cases. It appears that the evidence was recorded in Motor Accident Claim Petition No. 6 of 1978 and that was read in other two applications. The claimants have examined eight witnesses and the respondents have examined one witness, i.e., the driver of the truck. In the present case no eye-witness so far as the occurrence of the accident is concerned. The only person who can be called as an eye-witness is the driver of the truck who has been examined by the owner of the truck. The Insurance Company has not examined any witness in their support.

6. The learned Member of the Claims Tribunal allowed all the three applications by awarding different compensation to the claimants. So far as the heirs of Moreshwar Karmarkar are concerned, the Tribunal has granted compensation of Rs. 1,25,946/-, so far as Kulkarni's heirs are concerned the Tribunal awarded Rs. 84,394/- and so far as Kadar's heirs are concerned, compensation of Rs. 94,284/- came to be awarded. The appeal filed by the present appellant against the order passed by the learned Member of the Motor Accident Claims Tribunal in respect of Application No. 475 of 1988 which was filed by the heirs of Kulkarni has been dismissed by separate order as the respondents were not served and no contesting parties are present before this Court.

7. While determining the compensation the learned Member of the Claims Tribunal has effected certain deductions from the compensation that is determined to be paid to the heirs of deceased Karmarkar.

8. The owner of the truck has filed the above said appeals challenging the judgment and order dated 29th May, 1980 passed by the Member of the Motor Accident Claims Tribunal, Nanded in Claim Petition Nos. 6 and 8 of 1978. So far as appeal against the claim awarded to the heirs of Karmarkar, the heirs were not satisfied and they have filed cross-objections after the appeal was admitted and notice of appeal was served on them. Before appreciating the evidence on record I may record the submissions that are made at the Bar by the learned Counsel Mr. Damle, instructed by Mr. A.H. Kapadia, Advocate and Mr. Nawandar and Mr. Kasliwal respectively for the respondents in the above said appeals. The learned Counsel Mr. Damle contended that the learned Member of the Claims Tribunal has committed an error in imposing 100 per cent liability on the owner of the truck and the driver. It is contended that the learned Member of the Tribunal has not considered the aspect of negligence of the car driver in proper perspective. It is contended by the learned Counsel that it is a specific case of the appellant that it was the driver of the Ambassador car who was negligent and he was driving the car in a rash and negligent manner and due to the high speed in which that vehicle was coming from opposite side, the driver of the car did hot negotiate at the time of overtaking a vehicle which was ahead of the said Ambassador car and in the process dashed against the truck which resulted in the accident. The learned Counsel contended that the evidence which is brought on record clearly shows that the truck driver was not at all at fault or not at all negligent. The learned Counsel contended that the evidence on record shows that the front portion of the truck was damaged to a great extent that two front wheels were separated from the body and the truck is rested on the suspension, that shows the impact and it reveals the speed in which the Ambassador car was being driven.

9. The learned Counsel further contended that even if the evidence is accepted as it is and even if this Court comes to the conclusion that the car driver was not negligent, this is a case of contributory negligence on the part of the drivers of both vehicles, i.e., Ambassador car and the truck. Therefore, the learned Counsel contended that the compensation which has been granted to the claimants is, therefore, not proper and not supported by any cogent evidence on record. The learned Counsel further contended that the case of negligence of car driver has to be considered in this case and if this Court comes to the conclusion that the driver of the Ambassador car was negligent then the appellant cannot be held responsible. In case this Court comes to the conclusion, that is, contributory negligence, then the compensation that is awarded has to be apportioned accordingly. The learned Counsel further contended that if this Court comes to the conclusion that the accident occurred due to the contributory negligence of both the vehicles, then the case is made out for considering composite negligence. If composite negligence is accepted then the liability will have to be fastened upon the State because the vehicle in which the deceased were travelling was under the ownership of the State. Therefore, the learned Counsel contended that as the State is not made party in this proceeding, the liability of the State cannot be fastened on the owner of the truck. The learned Counsel, therefore, contended that the learned Member has not considered these aspects in its proper perspective.

10. On the other hand, Mr. Nawandar, contended that the appellants have come with a case of negligence of the car driver, the burden to prove that the car driver was negligent rest on them but he contended that the heirs of the deceased are not the eye-witnesses to the accident and it is not expected from them that they should produce the evidence, in such circumstances principle of 'res ipsa loquitur' is to be followed and the burden to prove even the negligence of car driver is on the truck driver. The learned Counsel contended that looking at the conditions of both the vehicles after the accident, clearly shows that it is the truck which gave the dash to the car. The learned Counsel contended that the truck is a heavy vehicle and the Ambassador car is a light vehicle and considering the impact of the accident it is clear that the truck has dashed against the car. The learned Counsel pointed out that front wheels of the truck were separated due to impact and the truck stopped on the spot of accident but the car in which the unfortunate persons were travelling went behind the truck and stopped there, that shows that the truck has given dash to the car and not vice versa. The learned Counsel further contended that the deductions which have been effected by the learned Member of the Motor Accident Claims Tribunal are improper and not permissible under the provisions of the Motor Vehicles Act. The learned Counsel contended that the learned Member has placed reliance on the judgment of this Court which is no more good law in view of the recent judgment of the Apex Court in case of Helen C. Rebello v. Maharashtra State Road Trans. Corporation II . Therefore, the learned Counsel contended that as the deductions are unauthorisedly made by the learned Member of the Tribunal, the claimants are entitled to full compensation that has been determined by the Claims Tribunal, Therefore, he contended that the findings which are recorded by the learned Member are findings based on evidence and, therefore, learned Counsel contended that the appeal is required to be dismissed and the cross-objections which are filed challenging the deductions will have to be allowed on the basis of law declared by the Apex Court in the above referred judgment.

11. Mr. Damle, further contended that multiplier method which is adopted by the learned Member of the Tribunal is also not proper. The learned Counsel contended that the multiplier as made applicable by the learned Judge is on higher side and, therefore, the same is not valid and proper. In order to substantiate this contention, the learned Counsel has relied on the judgment of the Apex Court in General Manager, Kerala State Road Trans. Corporation v. Susamma Thomas, I .

12. Considering the rival submissions referred to above, the points which arise for my consideration are:

(i) Whether the accident has occurred due to negligence of the car driver?

(ii) Whether the truck driver was negligent?

(iii) Whether it is the case of contributory negligence? If it is held that it is a contributory negligence, what will be the ratio of apportionment of the compensation?

(iv) Whether the deductions made by the learned Member of the Tribunal are valid and proper?

(v) Whether the multiplier is properly applied?

The only person who has deposed about the accident is the driver and it will be useful to refer to his evidence. I am aware of the fact that the driver is also one of the persons against whom the liability is impost by the Tribunal and he is also interested in saying that claimants should not get any compensation and the car driver is rash and negligent. Keeping in mind this background I will proceed to scan the evidence of this witness. Karnelsingh Bhaktawarsingh has been examined as witness No. 1 for both the respondents, i.e., the owner and the driver which is at Exh. 67. He was stated in his evidence that he was a driver on the truck owned by the appellant. He was working with the said owner on the date of the accident. On the fateful day, he was taking his truck from Jamnagar to Hyderabad and he was proceeding towards Hyderabad. To go to Hyderabad he has to reach Basmat-Nanded Road. He stated that when he crossed Basmat city; he was proceeding to Nanded city, at about 6 p.m. the accident took place. He stated that while he was proceeding towards Nanded, one jeep was coming from opposite direction and it was being followed by one Ambassador car. The said car was being driven at a high speed and the driver of the car was trying to overtake the jeep which was in front of the car. As he noticed that the car was trying to overtake the jeep, he took his truck on the extreme left side of the road. He again saw the car driver is trying to overtake the jeep, he took his truck on the further left side of the road. He has stated that the car driver while overtaking the said jeep, could not succeed and dashed against the truck on the right side. He has stated that the dash was against the air tank first and, thereafter, diesel tank. He has stated that due to the said dash by the Ambassador car, the suspension rod completely broken and resulted in smashing the front portion of truck and front wheels were separated from the body of the truck and the truck rested on its suspension. He stated that after the dash with the truck the car went to other side of the road. He stated that he was frightened due to the accident and immediately he took the papers of the truck and went to Police Station, Fardapur and submitted the report. This is what he has stated in the examination-in-chief. In the cross-examination he has stated that the jeep which was in front of Ambassador car was not being driven at high speed, it was moving slowly. He could not tell the distance between Ambassador car and the jeep. He also did not remember about the registration number of the car and the jeep. He also stated that after the accident the jeep did not stop there. He has admitted that he was prosecuted for the offence. He was confronted with a statement in the written statement filed by him. He has admitted that he has put his signatures on the written statement and also admitted that the written statement was drafted as per his instructions. He has denied the suggestion that there was a truck in front of the Ambassador car and the Ambassador car was trying to overtake the said truck. This was because of the statement appeared in para 7 of the statement which I have quoted that portion in the beginning of the judgment. He has stated that the statement is not correct. He admitted that immediately after the accident he came out of the truck and saw the damage that is caused to air tank and diesel tank. Thereafter, he stated that he has not seen what had happened to the front portion of the truck. He has not seen the position of the Ambassador car after the accident. The rest of the cross-examination is in respect of his experience of driving the truck and his lodging the report to the police station. He has denied the suggestion that he was driving the truck negligently. He stated that his master owns only one truck which has met with the accident. Besides this there are photographs at Exh. 55 and sketch Exh. 59.

12-A. Exh. 55 and Exh. 59 are the photographs and the sketch map of the scene of the accident. I have perused the photographs at Exh. 55. The photographs are proved by witness No. 4 on behalf of the claimant Ramkumar Shrigiri. Exh. 59 is proved by Trimbak Kulkarni, Head Constable, Police Station, Mukhed. The evidence of these two witnesses has gone unchallenged. Therefore, the fact is established that the photographs which were taken immediately after the accident show the condition of the car. The condition of the car front the said photographs, it is clear that the said car is completely smashed from the right side, i.e., driver's side. The front portion of the car right from the engine to the rear wheel is completely smashed. Exh. 59 is sketch map. From Exh. 59 it is clear that Nanded-Basmat road runs east-west. Undisputedly the car was proceeding from Nanded to Basmat and the truck was proceeding to Nanded. By the sketch it is clear that the truck halted on Kachha road, having its front side facing east. While after the impact the position of the car is north-south and the front portion of the car is towards north. That Exh. 59 also throws light on the condition of the truck. The said sketch shows that diesel-tank and air tank is completely broken. The bonnet cover of the car is just lying behind the rear wheel of the truck Exh. 59 also shows that extensive damage is caused to the car which shows that the bumper of the car in front of the engine is broken, right side headlamp is also broken. Bonnet and radiator are also broken. Therefore, considering this situation which is described in Exh. 59 and considering the only evidence of Karnelsingh the driver I have to consider about the fact of negligence, whether the negligence is by the car driver or by the truck driver. I may say that the front wheels of the truck are separated from the body, that means the first impact was on the front wheel of the truck and the front side of the truck headlight and the mudguard, diesel tank and air tank, damaged and the piece of bonnet of Ambassador car was found lying near rear wheel of the truck.

13. The learned Member of the Tribunal has appreciated these two documents, i.e., Exh. 59 and the photographs along with the evidence of D.W. 1. D.W. 1, is the only person who has deposed in this case. The learned Member of the Tribunal has considered this evidence and recorded the following findings:

He invited my attention to the contents of the said Panchnama, Exh. 59. Reliance is tried to be placed en the contents of the said Panchnama, Exh. 59, that the truck was actually standing on eastern side of the road, that it was on the Kachha strip of the road beyond the tar road, and that, therefore, the truck definitely was No. either on the wrong side or in the centre of the road and, therefore, where the accident took place the car must necessarily have been on its wrong Side and that could be only possible if the car driver was trying to overtake some vehicle in front of the car. Now it does appear that in the Panchnama, Exh. 59, there is a statement that the truck was standing on the Murum facting towards east. It was also contended that the Panchnama further shows that both the front wheels of the truck had come out and the tie rod end of the truck had broken and due to that the front portion of the truck had actually fallen down on the ground on the road and was resting on the suspension and, therefore, the truck, after accident, must have necessarily stopped on the place of accident itself and actually could not have even travelled any distance further, so as to conclude that after the accident the truck might have been swerved to the left side of the road and taken to the Kachha portion of the road so as to show that it was not the error of the truck driver. It was also further pointed out that according to the Panchnama the diesel tank and the air tank, which are on the driver's side of the truck, were broken and, therefore, it was tried to be contended that it appears that the car and the truck did not collide head on but the car, after crossing the truck dashed against the right side of the truck and due to that the two front wheels of the truck came out and the air tank and the diesel tank also were damaged. It was further contended that the contents of the Panchnama show that the car was standing behind the truck at a distance of about 9 ft. facing towards north, and such a situation is not possible unless the car had given dash to the truck on the right side of the truck as claimed by respondent No. 2. Now, it is true that the said contents of the Panchnama apparently do show that the truck was standing on the Kachha portion by the side of the tar road. It also shows that the car was standing behind the truck at some distance. It also shows that the two front wheels of the truck had come out and the truck was resting on its suspension on the ground. But there is some evidence in the said Panchnama, Exh. 59, which shows that the right side headlamp of the truck was broken, and there was also some dent in the front right side of the mudguard of the truck.

14. Further, the learned Judge has also found that:

If the evidence of respondent No. 2 that the car came and dashed to the right side of the truck near the air tank and diesel tank is truthful, then the breaking of the right headlamp of the truck and the dent in the front right mudguard is not explained. In the case, as is tried to be shown by the respondent No. 2 in his evidence, there is absolutely no possibility of any of the headlamps of the truck being broken. Similarly, there would be no dent in the front portion of the right mudguard of the truck, and the car actually would have gone and entered below the truck, as the truck in the present case is a Tata Mercedes truck which normally is much higher than the car. In such an event actually the car would have been dragged further with the truck between the front and the rear wheels. In view of this, I am not inclined to accept the argument of Mr. Choudhari that the evidence of respondent No. 2 in Court is truthful. It is no doubt true that the position of the truck and the car as depicted in the Panchnama, Exh. 59 does not give a clear picture as to how the accident must have taken place. However, the damage that iscaused to the car is apparent from the two photographs Exh. 55 produced by the applicants. The said photographs have been duly proved by calling the photographer in the witness-box. He also has produced the negatives of the two photographs. The damage to the said car is definitely very heavy and speaks for itself. It definitely shows that the impact on the car must necessarily have been very heavy. It appears that the car was dashed on its right, side and, therefore, no damage was caused to the left side headlamp of the car. Had the car been actually overtaking some other vehicle in front of it, as is tried to be contended by the respondents, then normally the entire front portion including the left side headlamp also should have been damaged.

15. From the finding recorded by the learned Member which I had quoted above and an application of evidence on record, it is seen that the damaged portion of the truck is on the driver's (truck) side, i.e., right portion of truck. From photographs and sketch map it can be gathered, the truck gave dash to the car and due to the impact both front wheels separated and the car of which all four wheels were intact went towards the side of truck, and in the process the air tank and the diesel tank which is beneath the body on the right side and behind driver's seat, this part is damaged by this. It is clear that the truck gave dash and because of the separation of front wheel it rested there only and the car brushed the right part of the body of truck when brushed it and turned to its right and stopped facing north, all this clearly shows that the truck driver is responsible for this accident. By applying principle of res ipsa loquitur, the damage to the car and the fact of death of three occupants of the car, a finding can be recorded that the truck driver was negligent and the appellant has failed to prove that the car driver was negligent in driving the car.

16. The learned Member has also considered the photographs which have been produced on record and on appreciation of all the evidence the learned Member came to the conclusion that the impact on the car was very heavy and the car-dashed on the right side of the truck and he also found that as the impact was on the right side, the left side of the car was not damaged. The learned Member has considered this aspect to come to the conclusion that the theory propounded by the truck driver that it was the car which dashed against the truck is not well founded and found that the impact must have been on the entire front side of the car. As the damage to the car was on the right side and, therefore, the Earned Member recorded the finding that the driver of the car was not overtaking the vehicle which was in front of the Ambassador car. The learned Member found that the evidence of driver Kamelsingh is not reliable and on appreciation of the evidence the learned Member found that considering the damage that caused to the car, recorded a finding that the impact of the truck was very heavy and the truck was being driven at a high speed. As the truck was heavy after the impact it has drifted towards left side and because the front wheels were separate from the body of the truck, the truck rested on the suspension as it could not move. These findings recorded by the learned Member lend support to the view which I have taken and referred to by me in para 15 as such the findings so recorded by the learned Member are valid and proper and required to be confirmed as such.

17. In this case the persons travelling in the car including driver are no more. No eye-witnesses were examined by the owner or the driver of the said truck. The accident occurred, in the evening at 6.15 p.m., and the accident occurred on the State Highway going from Aurangabad-Nanded and Hyderabad. The driver and the owner should have examined some witnesses to establish their case. Normally in case of death caused due to rash and negligent driving, it is the applicants to prove negligence but in this case considering the hardship that is faced by the heirs of Karmarkar, Kulkarni and Kadar Shaikh, it will not be possible for the heirs to lead any evidence in this respect. From the record it is seen that Mrs. Karmarkar, is widow, Abhay a minor son of 13 years of age, Anagha, daughter aged 11 years, Vinita, daughter aged 7 years. Same is the case of deceased Kulkarni. Kulkarni has left behind widow and two minor daughters. Kadar Shaikh has left behind him widow Nasira, Farida daughter aged 11 years and son Baba Kadar Shaikh aged 8 years and Subhan Kadar Shaikh aged 7 years. It is not possible for these minor children and the widows to lead any positive evidence on record to prove the negligence, it will be improper to insist on evidence, from those persons who were admittedly not on the spot nor even they were aware about the accident till they were informed. In this peculiar circumstances, it is clear that the claimants cannot prove how the accident happened and to establish negligence on the part of the driver of the car. In this case, therefore, it is inevitable to apply the principle of res ipsa loquitur which I had already dealt with, considering the plight of heirs of the deceased and considering the fact that the burden is on the truck driver to establish the fact of negligence on the part of the car driver. I hold that the evidence of the truck driver, Karnelsingh, falls short to establish negligence of the car driver. As the learned Member of the Tribunal has rightly drawn inference about the impact and he has found that the impact was by the truck. Therefore, in my judgment the plea that is taken by the appellants that the driver of the car was negligent is not at all established. In such circumstances it is the owner and the driver of the truck to prove the fact of negligence, which they have failed to prove. On the facts and evidence placed on record, I am satisfied that the Tribunal was justified in applying the principle of res ipsa loquitur and holding that the truck driver was responsible for the accident. As the relevant evidence is only of the truck driver and Exh. 55 and Exh. 5.9, considering this evidence I hold that the appellants in both the appeals have failed to establish the plea that they have taken regarding the negligence of the car driver. Therefore, I hold that driver of the Ambassador car was not at all negligent and it is the respondent No. 2 Karnelsingh the driver of the truck was negligent in driving the truck. He has not taken any care. As I have recorded finding about the negligence of the truck driver on the basis of the evidence which is produced before the Tribunal. As that the truck driver has taken a specific plea of negligence on the part of the car driver, the burden wholly rests on him. In my judgment there is no evidence produced by the driver and the owner of the truck to establish the negligence of the car driver. No independent witness or any other evidence was produced before the Tribunal by the owner of the truck or by the truck driver. Two documents, i.e., Exhs. 55 and 59 if considered in proper perspective, it is clear that the damage is caused to the car from the truck and its driver was negligent in driving the truck. I have seen from the entire evidence that the owner of the truck or the driver have not made any attempt to lead the evidence in this behalf. As I applied the maxim of res ipsa loquitur in the present case the burden is on the owner and driver of the truck which shows that, in fact, there was no negligence on the part of the driver of the truck. From the evidence which is produced on record and as shown in Exh. 59 the car was behind the truck after the accident. If the contention of the driver is to be accepted that the car dashed against the truck, the car would have been not behind the truck but the car should have been on the front of the truck. The truck was loaded with bags containing sugar and the truck is a heavy vehicle and the condition of the car seen from the photographs Exh. 55 and the damage which is caused to the diesel tank and the air tank, the theory of negligence on the part of the car driver cannot be accepted as proper defence in the case. Therefore, I reject the contention of the owner and the driver of the truck that it was the car which dashed against the truck. I confirm the finding recorded by the learned Member of the Tribunal. As I have recorded finding that it is the truck driver who is negligent, the second contention of Mr. Damle, that it is a case of contributory negligence requires no consideration at all. As there is no contributory negligence, the other theory propounded by the learned Counsel regarding composite negligence also to be discarded and require no consideration, from this Court. The learned Counsel Mr. Damle, has made a grievance regarding application of multiplier as that has been done by the learned Member of the Tribunal. The learned Counsel has invited my attention to the judgment of the Apex Court in General Manager, Kerala State Road Trans. Corporation v. Susamma Thomas (supra). The Apex Court in the above said case was considering that what is proper method of multiplier. The case before the Supreme Court in Susamma's case fell within narrow compass. The K.S.R.T.C. approached the Supreme Court challenging the judgment passed by the High Court of Kerala, enhancing compensation in a fatal accident case from Rs. 58,760/- to Rs. 2,64,000/-. The claimants in that case were parents, widow and children of one Thomas, aged 38 years, who died in an accident that occurred on 19th February, 1984 involving the bus owned by the K.S.R.T.C. At the time of the accident Thomas Philip was employed in the newspaper establishment of Malayala Manorama on a monthly salary of Rs. 1,032/-. The Claims Tribunal had determined the compensation to be awarded to the heirs of Thomas Philip at Rs. 58,760/-. The heirs challenged the said order by filing appeal to the High Court of Kerala, and High Court of Kerala enhanced compensation to Rs. 2,64,000/-. Against the said order the K.S.R.T.C. approached the Apex Court. It was contended before the Apex Court that, admittedly, the income of the deceased was Rs. 1,032/- p.m. from which showing deductions for personal living expenses of the deceased are made the loss to the dependants would not be more than Rs. 600/- to Rs. 700/- p.m. and if the multiplier is capitalised on number of years purchase appropriate to the age of the deceased, the amount would not exceed Rs. 70,000/- to Rs. 80,000/-. It was contended before the Supreme Court that even if the usual awards of loss of consortium and loss of expectation of life, which are awards in conventional figures are added, the total compensation should not exceed Rs. 1,00,000/- in the case. With this background the Apex Court was considering the principles of multiplier. The Supreme Court in para 8 has considered this aspect:

(8) There were two methods adopted for determination and for calculation of compensation in fatal accident actions, the first the multiplier mentioned in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) A.C. 601 and the second in Nance v. British Columbia Electric Rly. Co. (1951) A.C. 601.

The multiplier method involves the ascertainment of the loss of dependency or the multiplicand and having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which dependency is expected to last.

(9) The considerations generally relevant in the selection of multiplicand and multiplier were adverted to by Lord Diplock in his speech in Mallett v. McMonagle 1969 A.C.J. 312 (HL, England), where the deceased was aged 25 and left behind his widow of about the same age and three minor children. On the question of selection of multiplicand Lord Diplock observed: "The starting point in any estimate of the amount of the 'dependency' is the annual value of the material benefits provided for the dependants out of the earnings of the deceased at the date of his death. But,...there are many factors which might have led to variations up or down in the future. His earnings might have increased and with them the amount provided by him for his dependants. They might have diminished with a recession in trade or he might have had spells of unemployment. As his children grew up and became independent the proportion of his earnings spent on his dependants would have been likely to fall. But in considering the effect to be given in the award of damages to possible variations in the dependency there are two factors to be borne in mind. The first is that the more remote in the future is the anticipated change the less confidence there can be in the chances of its occurring and the smaller the allowance to be made for it in the assessment. The second is that as a matter of the arithmetic of the calculation of present value, the later the change takes place the less will be its effect upon the total award of damages. Thus at interest rate of 4¼ % the present value of an annuity for 20 years, of which the first ten years of £100 per annum and the second ten years at £200 per annum, is about 12 years' purchase of the arithmetical average annuity of £150 per annum, whereas if the first ten years are at £200 per annum and the second ten years at £100 per annum the present value is about 14 years' purchase of the arithmetical mean of £150 per annum. If, therefore, the chances of variations in the 'dependency' are to be reflected in the multiplicand of which the years' purchase is the multiplier, variations in the dependency which are not expected to take place until and after ten years should have only a relatively small effect in increasing or diminishing the 'dependency' used for the purpose of assessing the damages.

The ratio of the Apex Court in Susamma's case which is as follows:

It is necessary to reiterate that the multiplier method is logically sound and legally well-established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and awarded the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 years of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years virtually adopting a multiplier of 45 and even if one-third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lumpsum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible. We are aware that some decisions of the High Courts and of this Court as well have arrived at compensation on some such basis. These decisions cannot be said to be laid down a settled principle. They are merely instances of particular awards in individual cases. The proper method of computation is the multiplier method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability for the assessment of compensation. Some judgments of the High Courts have justified a departure from the multiplier method on the ground that Section 110-B of the Motor Vehicles Act, 1939 insofar as it envisages the compensation to be 'just', the statutory determination of a 'just' compensation would unshackle the exercise from any rigid formula. It must be borne in mind that the multiplier method is the accepted method of ensuring 'just' compensation which will make for uniformity and certainty of the awards. We disapprove these decisions of the High Courts which have taken a contrary view. We indicate that the multiplier method is the appropriate method, a departure from which can only be justified in rare and extraordinary circumstances and very exceptional cases.

Considering the ratio of the above said, let me consider whether the learned Member of the Tribunal was right in applying the multiplier. In respect of Karmarkar and Kulkarni the learned Member has properly applied the test of multiplier, which is not seriously challenged but in case of Kadar the learned Counsel Mr. Damle has challenged it. Admittedly Kadar Shaikh was of 36 years at the time of accident. The learned Judge found that if the accident would not had happened normally Kadar Shaikh would have continued with the service upto superannuation that will be upto 58 years and the learned Member has applied the principles of multiplier considering the age of deceased Kadar Shaikh at the time of accident. In my opinion the learned Member was right in applying the principle of multiplier considering the age of Kadar Shaikh. Therefore, in my opinion, there is no error whatsoever that has been committed by the learned Member of the Tribunal in awarding compensation by adopting multiplier basis to Kadar Shaikh the driver of the car. There is no merit in both the appeals. The appeals are dismissed with costs.

18. Coming to the cross-objections filed by the widow and the children of Moreshwar Karmarkar, learned Member has accepted that the death of Karmarkar in accident was due to negligence of the driver of the truck and he has arrived at conclusion that the heirs of Karmarkar are entitled for compensation of Rs. 2,16,896/-. The learned Member of the Tribunal relying on Division Bench judgment of this Court in Jaikumar Chhagan Lal Patni v. Mary Jerome D'Souza, 1978 A.C.J. 28 (Bom.), has deducted certain amount that was received by the heirs of Karmarkar from insurance policy, ex gratia payment made by the department and the amount received on account of contributory provident fund. The learned Member has deducted Rs. 20,000/- towards insurance policy, Rs. 36,000/- ex gratia payment and Rs. 39,950/- received from the contributory provident fund. Mr. Nawandar, the learned Counsel appearing for the heirs of deceased Karmarkar, has submitted that the law laid down by this Court in Jaikumar's case (supra) is no more a good law in view of the Supreme Court judgment in Helen C. Rebello v. Maharashtra State Road Trans. Corporation (supra). The Supreme Court after considering the provisions of the different statutes such as Fatal Accidents Act, 1855, Motor Vehicles Act, 1939 and Motor Vehicles Act, 1988 has not approved the view taken by the Division Bench in Jaikumar's case (supra).

The Apex Court observed:

31. Thus, we have no hesitation in concluding that the Tribunal while computing the compensation under Section 110-B of the 1939 Act, has a wider discretion than what it had under 1855 Act. Various provisions of this Act indicate the Legislature's intent conferring visible benefit on the claimant by securing compensation through casting obligation on the tortfeasor and the insurer. Section 94 makes it obligatory to insure a vehicle against third party risk before putting on the road. Statutory obligation and the limit of the insurer is provided under Section 95. Under Section 95-A, in addition to the deposits under Section 7 of the Insurance Act, 1938, the insurer has to deposit with the Reserve Bank of India or the State Bank of India, a security of Rs. 30,000/- for discharging any liability covered by the insurance policy. Then, Section 96 casts an obligation on the insurers to satisfy judgments in respect of third party risks. No settlement between the insurer and the insured in respect of any claim to which the third party is entitled, is valid unless the third party is a party to such settlement under Section 99. All these and such other provisions are clearly beneficial legislation, hence should be interpreted in a manner which confers benefit and not which usurp its benefit.

(33) Submission by the learned Counsel for the appellants is that the insurance money is by virtue of a contractual relationship between the deceased and the Insurance Company and is payable to the legal heirs of the deceased in terms of the contract. Such money cannot be said to have been received by the heirs only on account of the death of the deceased, but truly it is a fruit of the premium paid by the deceased during his lifetime. The deceased bought this insurance policy as an act of his prudence, to confer benefit either on himself or on his heirs in case of death. This amount is receivable by claimant irrespective of accidental death, even if he would have died a natural death. He further submits that the interpretation given by the High Court confers benefit on the tortfeasor for his negligence and wrong leading to untimely death without any contribution by him. It permits him to escape from the liability cast by the statute. Thus, his submission is that any amount payable under any contract of social assurance or any insurance, ought not to be deducted as the same is payable to the heirs because of the contract and not on account of the death of the insured person.

(34) So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the 'pecuniary advantage' which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, correlating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide; serious illness, including even death by accident, through train, air flight not involving a motor vehicle, it would not be covered under the Motor Vehicles Act. Thus, the application of the general principle under the common law of loss and gain for the computation of compensation under this Act must correlate to this type of injury or death, viz., accidental. If the words 'pecuniary advantage' from whatever source are to be interpreted to mean any form of death under this act, it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the 'pecuniary advantage' resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets movable, immovable, shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased, etc. This would obliterate both, all possible conferment of economic security to claimant by the deceased and the intentions of the Legislature. By such an interpretation, the tortfeasor in spite of his wrongful act or negligence, which contributes to the death would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act, whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other forms of death. The constitution of the Motor Accident Claims Tribunal itself under Section 110 is, as the section states:

...for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to....

(37) Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No correlation between the two. Similarly, life insurance policy amount is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc., though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction. When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter se between them and not to which there is no semblance of any correlation. The insured (deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual.

From the passage quoted above from the judgment of the Apex Court in Helen C. Rebello's case, the order passed by the learned Judge in deducting the amount from total compensation will have to be interfered with. Considering the ratio laid down by the Supreme Court in Helen C. Rebello's case and relying on the said dictum, I am of the view that no deductions from the compensation that is to be awarded in case of motor accident are permissible. As the Apex Court in Helen's case has considered these aspects and held that the amount which are received from other sources such as insurance, provident fund amount cannot be deducted. As per provident fund and insurance, one has to contribute some amount in order to get benefit in future. Therefore, these two deductions which are made by the learned Member of the Tribunal cannot be deducted from the total compensation, i.e., determined by the Tribunal. Now the further question remains is to consider about the ex gratia payment made by the employer to the heirs of the deceased Karmarkar. In fact, employer is not under any statutory obligation to make ex gratia payment on account of untimely death of the employee. Ex gratia payment made to the heirs of the deceased is based on the principle of compassion looking at the service that is rendered by the deceased employee. On this background, employer if makes ex gratia payment, that amount received by the heirs cannot be deducted from the compensation that is determined under the provisions of Section 110-B of the Motor Vehicles Act. Considering the ratio laid down by the Supreme Court in Helen's case extending further and applying it to the payments made by the employer or by any other social organization as ex gratia payment, cannot be a part of compensation determined by the Tribunal under the Motor Vehicles Act. Such deductions are impermissible. Therefore, in my opinion the amount received by the heirs of deceased Karmarkar by way of ex gratia payment from the employer cannot be deducted from the total compensation that is determined by the Tribunal. That part of the order passed by the Tribunal deducting the amounts of Rs. 20,000/-, Rs. 36,000/- and Rs. 36,950/- cannot be sustained. Cross-objections are allowed with costs.

19. Having held that the deductions made by the Tribunal are not proper, the heirs of deceased Karmarkar will be entitled to Rs. 93,500/-, making total compensation of Rs. 2,16,896/-. Mr. Nawandar, contended that the heirs of the deceased are entitled for the interest on the entire amount as determined now. The learned Member of the Tribunal has not granted interest on the compensation amount. I had gone through the reasons. The learned Member though awarded compensation to the heirs of Karmarkar, Kulkarni and Kadar but he has not assigned any reasons as to why the interest is not awarded on the amount of compensation nor any reasons are assigned for refusing the relief of interest. The learned Counsel Mr. Nawandar, has contended that Section 110-CC empowers the Tribunal to grant simple interest on the amount of compensation that is determined. The learned Counsel placed reliance on the judgment of the Supreme Court in Chameli Wati v. Delhi Municipal Corporation 1985 A.C.J. 645. The Apex Court has granted 12 per cent interest to the claimant. Considering the provisions of Section 110-CC and the judgment of the Supreme Court, it is not possible for me to accept the contention of the learned Counsel and to grant interest. The Supreme Court was considering a case where compensation was enhanced in appeal. The Apex Court has observed as follows:

But it is well settled that every discretion conferred by statute must be exercised judicially on the basis of the facts and circumstances of a particular case. Here when the learned Single Judge enhanced the amount of compensation, he awarded interest on the enhanced amount at the rate of 6 per cent per annum from the date of his judgment and the Division Bench also when it further enhanced the amount of compensation, directed that interest at the rate of 6 per cent per annum be paid on the enhanced amount from the date of its judgment and not from the date of the application. The learned Single Judge as well as the Division Bench totally ignored the fact that the enhanced amount of compensation awarded by them was in their judgment the correct amount of compensation payable to the appellants on account of the death of the deceased resulting from the accident. The learned Single Judge and the Division Bench should have, therefore, awarded interest on the enhanced amount of compensation from the date of the application.

(Emphasis supplied)

And accordingly the Supreme Court set aside the judgment of Division Bench and awarded interest on the enhanced compensation at the rate of 12 per cent per annum from the date of the determination of the compensation by the Division Bench. In the case at hand, there is no enhancement whatsoever. Cross-objection which is filed by the heirs of the deceased is in respect of deductions that are made by the learned Member of the Tribunal from the total compensation that is determined by the Tribunal. Therefore, in my view the ratio of Chameli's case is not applicable. 'The contention of the learned Counsel that by disallowing the deduction this Court has actually enhanced compensation and this Court considered the deductions so made by the Tribunal was not correct as such the learned Counsel says that in effect it is enhancement of the compensation. It is difficult for me to subscribe the proposition raised by the learned Counsel. It is to be noted that the learned Member when decided the claim, the law laid down by this Court in, Jaikumar's case 1978 A.C.J. 28 (Bom.), was holding the field, and applying the ratio of the Division Bench judgment in that case the learned Member has caused the deductions but in view of the law laid down by the Supreme Court in Helen C. Robello's case 1999 A.C.J. 10 (S.C.), the award by the Tribunal is being modified. In view of this background, it is not possible for me to accept the contention of the learned Counsel. On the facts of the present case, I am of the view that the heirs of deceased Karmarkar are not entitled to interest. The order passed by learned Member of the Tribunal arising out of Motor Accident Claim No. 6 of 1978 stands modified accordingly to the extent indicated above. The appeal is dismissed with costs. The cross-objections allowed with proportionate costs.