Nagpur Bench: Nagpur vs Unknown
2012 Latest Caselaw 375 Bom

201112FA111.06 .odt
                                      1

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY:




                                                                           
                           NAGPUR BENCH: NAGPUR
                          FIRST APPEAL NO.111 OF 2006




                                                   
             APPELLANT:
                  The Divisional Controller, Maharashtra State Road
                  Transport Corporation, Nagpur Division, Railway




                                                  
                  Station Road, Nagpur.
                                       VERSUS
             RESPONDENTS:
             1] Shri Shamrao s/o Sitaram Irpati, aged about 60 years,



                                         
                  occ : nil
                             
             2] Vimal w/o Shamrao Irpati, aged about 55 years, occ :
                  household
             3] Harish s/o Sitaram Irpati, aged about 26 years, occ :
                            
                  student
                  All 1 to 3 r/o Plot No.45, Gadge Baba Nagar, Mankapur,
                  Near Shivaji Complex, Nagpur
             ============================================
              


             Mr. S.C. Mehadia, advocate for appellant
           



             Miss. Pathade, advocate for respondents
             ============================================
                                         CORAM: M.N. GILANI, J.

DATE: 20.11.2012.

ORAL JUDGMENT:

This appeal arises from the judgment and award

dated 27.10.2005 passed by the Motor Accident Claims Tribunal, Nagpur in Claim Petition No.777/1997 whereby the claimants / respondents herein were awarded compensation of Rs.6,38,000/- on account of death of Rashi aged about 24

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years, who had recently passed M.B.B.S. Examination and

was undergoing the internship.

2] Accident occurred on 21.7.2000 on Ghat Road,

Nagpur. Rashi was riding pillion on the motorcycle which was being driven by her brother. State Transport Bus bearing

Registration No. MH-31-8211 coming from opposite direction dashed against the motorcycle. As a result of this, Rashi sustained injuries and died on the spot. The driver of

the bus was charge-sheeted. Claimants are her parents and

elder brother.

3] The appellant - original respondent resisted the petition mainly on the ground that there was no negligence on the part of the driver of the bus. The learned Tribunal after

assessing the evidence placed on record reached the finding

that because of negligence of the driver, accident occurred. Considering the fact that the deceased was about to complete

her internship and the quantum of future salary, the Tribunal assumed the annual income of the deceased at Rs.1,32,000/-. 1/3rd of the amount towards personal and living expenses of

the deceased was deducted. Multiplier of 7 was applied. Under all the heads and the compensation was worked out at Rs.6,38,000/-. This is challenged in this appeal. 4] Mr. Mehadia, the learned counsel appearing for the

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appellant raised following grounds:

Firstly, it is contended that the finding reached by the Tribunal that the driver of the bus was negligent and

responsible for causing accident, is not supported by evidence on record. Secondly, it is contended that the owner and driver

of the motorcycle were not joined. Thirdly, the learned Tribunal committed wrong in assuming the annual income of the deceased at Rs.1,32,000/- and further committed wrong in

deducting 1/3rd of the amount by ignoring the fact that the

deceased was unmarried.

5] Miss Pathade, learned counsel appearing for the respondents supported the judgment and award passed by the learned Tribunal.

6] The points which arise for my consideration are:

A] Whether the findings arrived at by the Tribunal holding the driver of the bus

responsible for the accident is supported by the evidence on record ?

B] Whether the quantum of compensation

worked out is just and fair ?

7] P.W.2 Harish who was driving the motorcycle entered the witness box to explain the manner in which the accident occurred. He deposed that he was driving the

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motorcycle in a slow speed. When he reached near Century

Hotel, State Transport Bus came from opposite direction in a high speed and dashed against his motor cycle. He and the

deceased fell down. The deceased came under rear wheels of the bus. When carried to the hospital, she was declared

brought dead. Suggestions were put to him that while overtaking the auto-rickshaw the motorcycle dashed against the bus. Many more suggestions were given to him, however,

nothing could be elicited to dislodge his testimony.

8] In rebuttal respondent no.1 - Sohanlal the driver of

the bus entered the witness box. According to him, at the time of accident it was raining. He was proceeding slowly and was keeping left. He saw two wheeler coming from opposite

direction. There were stones lying on the right side of the

road. He also saw some pits by the side of the road. Because of this situation on the road, the ill-feted motorcycle

dashed against the stone and fell in a pit. According to the him neither the motorcycle nor the body of any person touched the bus. In reply - Exhibit 40 filed by the appellant, it is stated

that "a motorcycle-bearing No. MH 31-AM-549, which was coming from opposite direction in a very high speed, came to the extreme right side of the road and gave a dash to the bus of the respondent and as result of which the accident is

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occurred and the deceased who was pillion rider died.". Thus,

oral evidence is totally contradictory to the pleading. in the sense that respondent no.1 - Sohanlal put-forth the case that

neither motorcycle nor the deceased touched the bus. In that view of the matter and on probability factor, the learned

Tribunal was justified in believing the testimony of P.W.2 Harish. This is apart from the fact that police during their investigation, found that the driver of the bus was negligent.

In the postmortem note Exhibit 28 as many as 8 surface

wounds were noticed including fracture of ribs and lacerated

wounds on skull. Obviously, these injuries could not have been possible only because of fall on the road or stones. In that view of the matter, the learned Tribunal was justified in

holding that the accident occurred due to rash and negligent

driving of the driver of the bus. Consequently, the objection that the driver and owner of the motorcycle were not joined

becomes insignificant.

9] The evidence was led to the effect that the deceased had passed her M.B.B.S. examination from Bombay

University. As a mandatory condition she was undergoing internship and was getting stipend of Rs.2,500/-. She was about to complete her internship within next five months. Necessary documents in support of this are produced at

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Exhibit 29 and 30. The learned Tribunal considered the

minimum pay-scale of Rs.8000-275-13,800/- to which a Medical Officer is entitled to and on that basis calculated the

loss of dependency. There is nothing wrong in this approach. The learned Tribunal has relied upon the decision in case of

National Insurance Company..vs.. Smt. Ujjwala and others [2005(2)T.A.C.392(M.P.)]. It was a case relating to the death of a student of 18 years, who had completed class XIIth

standard Examination and was desirous of admission in

B.B.A. and M.B.A. in Symbiosis College, Pune. The total

compensation awarded was Rs.5,00,000/-. The Division Bench of the Madhya Pradesh High Court, in that did not interfere with the award by observing that:

"Though there may not be any adequate

compensation for loss of a son but we have to see whether the amount awarded can be said to be just

and proper amount of compensation and it may not be treated as a bonanza. Looking to the family status of the claimants, the educational

qualifications, the environment in which the boy was growing, also the future prospects that the boy had, we do not think that the amount awarded is exorbitant or on higher side. In our view, no case

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for interference was made out."

11] Mr. Mehadia, contended that deduction ought to have been 50%, since the deceased was unmarried. Even if

this contention is accepted, the total amount of compensation cannot be reduced. The Tribunal applied multiplier of 7

having regard to the age of the claimants. As has been held in case of Smt. Sarla Verma & others ..vs.. Delhi Transport Corporation & another [2009(4)ALL MR 429], the multiplier

has to be applied with regards to the age of the deceased. This

was followed in case of P.S. Somnathan and others ..vs..

District Insurance Officer and another reported in (2011)3 SCC 566. In that case the claims Tribunal had applied the multiplier of 16, which the High Court in appeal had reduced

to 5 particularly having regard to the age of the dependents.

The Hon. Supreme Court disagreed with the view taken by the High Court and observed thus:

"....... By accepting the age of mother at 67, the High Court further reduced the multiplier from 6 to 5, even if we accept the reasoning of the High Court to

be correct. The reasoning of the High Court is not correct in view of the ratio in Sarla Verma.

Following the same, the High Court should have proceeded to compute the compensation on the age

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of the deceased. Thus the finding of the High Court

is contrary to the ratio in Srala Verma which is the leading decision on this question and which we

follow."(emphasis supplied) In that view of the matter the proper multiplier would have

been of 17 and the compensation would have gone to the extent of Rs.66,000 X 17 = 11,22,000/-. In that view of the matter no case for interference with the judgment and award

impugned is made out.

Accordingly appeal is dismissed with costs.

Part of the amount of the award lying with the Registry of this court be disbursed amongst the claimants in terms of the award.

JUDGE SMP