Kashinath Ganpatrao Pensalwar & ... vs Nagnath Tejappa Kulal & Ors
2016 Latest Caselaw 1445 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                        
                               FIRST APPEAL NO. 1264 OF 2006



     1.       Kashinath s/o Ganpatrao Pensalwar




                                                       
              Age 52 years, Occ. Agri and Business

     2.       Shobha w/o Kashinath Pensalwar
              Age 47 years, Occ. Agri.a d Household




                                          
     3.       Smita d/o Kashinath Pensalwar
              Age 18 years, Occ. Education
                             
              All R/o. Udgir, Tq. Udgir,
              District Latur                                     ...Appellants
                            
                      versus

     1.       Nagnath s/o Tejappa Kulal
              (dismissed as per Registrar's
              order dated 17.3.2009)
      


     2.       Akash Ashokrao Shinde
   



              Age 42 years, Occ. Business,
              R/o. Namdeo Galli, Omerga
              District Osmanabad





     3.       The New India Assurance Co. Ltd.
              Through its Branch manager,
              Branch Office at Chandra
              Nagar, Latur                                       ...Respondents

                                       .....





     Mr. R.R. Deshmukh, h/f Mr. R.B. Deshmukh for appellants
     Mr. M.M. Ambhore, advocate for respondent No.3
                                       .....

                                                    CORAM : V. K. JADHAV, J.

DATED : 12th APRIL, 2016

ORAL JUDGEMNT:-

1. Being aggrieved by the judgment and award dated 1.8.2006

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passed by the Member, M.A.C.T. Udgir, in M.A.C.P. No. 15 of 2004,

the original claimants have preferred this appeal to the extent of

quantum.

2. Brief facts, giving rise to the present appeal, are as follows:-

a) On 1.12.2003, at 12.30 p.m. deceased Sachin was

returning to his house on his motor bike from his Engineering

college by left side of the road. On Udgir Solapur road, one

truck bearing registration No. MWC 5897 driven by original

respondent No.1 in high speed, came from opposite direction

and gave a dash to motor cycle of deceased Sachin. In

consequence of which, deceased Sachin died on the spot.

Parents and sister of deceased Sachin filed claim petition

bearing M.A.C.P. No. 15 of 2004 before the M.A.C.T. Udgir for

grant of compensation under various heads.

b) The respondent Nos. 1 and 2 i.e. driver and owner of

vehicle-truck involved in the accident, strongly resisted the

claim by filing separate written statements. According to them,

deceased Sachin himself was careless and negligent in driving

his motor cycle and he himself gave dash to one third person

by name Shaikh Nazir and thereafter gave a dash to the truck

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and fell down on the road. According to them, driver of the

truck was not rash and negligent while driving the truck at the

time of accident. Respondent No.3 insurer has also resisted

the claim petition on similar grounds. Learned member of the

Tribunal, vide impugned judgment and award dated 1.8.2006

partly allowed the claim petition thereby directing the

respondent Nos. 1 and 3 to pay compensation jointly and

severally to the tune of Rs.1,14,334/- alongwith interest. Being

aggrieved by the same, original claimants prefer this appeal to

the extent of quantum.

3. Learned counsel for the appellants submits that the Tribunal

has committed error while arriving at the conclusion that deceased

Sachin had contributed negligence to the extent of 1/3 rd. The

Tribunal has erroneously exhibited the police statements of the

wetnesses and relying on those statements, held that the deceased

Sachin had contributed negligence to some extent. The police

statements can be used only for the purpose of contradiction and if

the witness to that statement is not examined before the Court, the

statement of such witness cannot be read in evidence. Learned

counsel submits that the police statement is not a substantive part of

evidence and the same cannot be read in evidence. The claimants

have examined one eye witness to the incident and he has deposed

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that accident had taken place on account of rash and negligent

driving of driver of the truck and deceased Sachin was not

responsible for accident, in any manner. The Tribunal has

unnecessary given weightage to registration of crime on the basis of

complaint lodged by one Shaikh Najir Ahmed. Learned counsel

submits that even assuming that prior to the accident, deceased

Sachin had given dash to Shaikh Najir by riding his motor cycle,

further there is no evidence to show that thereafter deceased Sachin

driven the motor cycle in such manner that he contributed negligence

to the extent, as worked out by the Tribunal. Learned counsel

submits that there is clear evidence to show that driver of the truck

alone is responsible for the accident. Learned counsel submits that

the driver of the truck has not entered into witness box to support his

pleadings. The Tribunal has considered the notional income of

deceased at Rs.1500/- p.m. The Tribunal should have considered

the notional income of deceased at Rs.3000/- p.m. deceased Sachin

was also personally cultivating the agriculture land and the same is

not considered by the Tribunal even though 7x12 extract was

produced. The Tribunal has discarded 7x12 extract for the reason

that Talathi, who has issued 7x12 extract, is not examined before the

Tribunal. Learned counsel for the appellants submits that instead of

applying multiplier 18, the Tribunal has erroneously applied the

multiplier 17.

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5. Learned counsel for the respondent-insurer submits that the

Tribunal has rightly considered the negligence on the part of

deceased Sachin. Learned counsel submits that the certified copy of

the F.I.R. Exh.45 clearly shows that deceased Sachin had driven his

motor cycle in rash and negligent manner and gave a dash to one

Shaikh Najir Ahmed Shaikh just prior to the accident. Even it is stated

in the said F.I.R. that after giving dash to Shaikh Najir Ahmed,

deceased Sachin could not control his motor cycle and thereafter

dashed against the truck coming from Udgir side and died on the

spot. Learned counsel submits that the Tribunal has therefore, rightly

considered the contributory negligence on the part of deceased

Sachin to the extent of 1/3rd. In absence of any income proof, the

Tribunal has rightly considered the notional income of deceased

Sachin and accordingly awarded the compensation. Learned

counsel submits that however, the Tribunal instead of deducing ½ of

the income towards personal expenses, deducted 1/3 amount

towards personal expenses.

6. On considering the evidence on record, it appears that the

Tribunal has wrongly arrived at conclusion that deceased Sachin had

contributed negligence to some extent. The Tribunal exhibited the

police statement of witness and accordingly arrived at the said

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conclusion. The same is not permissible. The police statement of

witnesses can be used only for the purpose of omissions and

contradictions and cannot be read in evidence as substantive part of

evidence. The respondent No.1 though resisted the claim petition by

filing his written statement, has failed to examine himself on oath.

On the other hand, the claimants have examined one eye witness to

the incident, who has deposed that accident has taken place due to

rash and negligent driving of truck driver alone and deceased Sachin

was not responsible for the accident. There is no reason to disbelieve

the said witness and there is nothing in the cross examination to

discard his evidence. So far as the F.I.R. at Exh.45 is concerned,

said Shaikh Najir has stated by lodging the complaint that he learnt

that deceased Sachin after giving dash to him lost control over the

motor cycle and gave dash to the truck. The said statement is

hearsay evidence and same cannot be considered unless and until

Shaikh Najir is examined as witness before the Court. From the

F.I.R. Exh.45 nothing can be concluded, especially to hold that

deceased Sachin himself had contributed the negligence to some

extent. Thus, in my opinion, deceased Sachin had not contributed

negligence and driver of the truck involved in the accident alone is

responsible for the accident.

7. So far as the notional income of deceased Sachin is

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concerned, the Tribunal has erroneously considered it as Rs.1500/-

p.m. He was personally cultivating the land the same is evident from

7x12 extract produced on record. However, there cannot be any loss

in the agriculture income since corpus of land remained as it is even

after accidental death of deceased Sachin. At the most, loss on

account of lack of supervision can be considered to some extent. In

absence of any income proof, his notional income can be considered.

Thus, the notional income of deceased alongwith loss of agricultural

income to the extent of supervisory charges, the loss of income

comes to Rs.3000/- p.m. Deceased Sachin was unmarried and

therefore, 50% of the amount from his income is required to be

deducted towards his personal expenses. Thus, the loss of

dependency comes to Rs.1,500/- p.m. correspondence to

Rs.18,000/- per year. Deceased Sachin was 23 years old at the time

of his accidental death and the same is not disputed. The Tribunal

could have considered the multiplier 18 instead of 17. By applying

the multiplier 18, the loss of income/dependency comes to

Rs.3,24,000/-. The Tribunal has awarded just and reasonable

compensation under the heads of non pecuniary loss. So far as the

loss of income/dependency is concerned, the same is required to be

re-calculated. The learned Tribunal has wrongly awarded the rate of

interest on the compensation amount. Thus, the break up of

compensation under various heads, can be broadly categorized is as

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under:-

i) Loss of income/dependency Rs. 3,24,000.00

ii) Loss of love and affection Rs. 40,000.00

iii) Expenses for funeral and Rs. 2,500.00 carrying out dead body

-----------------

Rs. 3,66,500.00 ============

Thus, the claimants are entitled to Rs.3,66,500.00 (Rupees

Three lacs sixty six thousand and five hundred only). Hence, I

proceed to pass the following order:-

ORDER

I. The appeal is hereby partly allowed with proportionate

costs.

II. The judgment and award dated 1.8.2006 passed by the

learned Member, M.A.C.T. Udgir in M.A.C.P. No. 15 of

2004 is modified in the following manner:-

The opponent Nos. 1 to 3, jointly and severally, shall pay

an amount of Rs.3,66,500/- (Rupees Three lacs sixty six

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thousand five hundred) to the claimants with interest @ 9%

p.a. from the date of application till realization of the

amount.

III. The award be drawn up accordingly.

            IV.    Appeal is accordingly disposed of.




                                       
                              ig                        ( V. K. JADHAV, J.)
                            
     rlj/