Bombay High Court
Mah State Road Transport ... vs Smt Ratnamala Widow Of Ishwar & 3 ... on 22 August, 2016
Bench: Z.A. Haq
1 fa136.04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.136/2004
Maharashtra State Road Transport
Corporation, Nagpur, through its
Divisional Controller, Nagpur. ..Appellant.
..VS..
1. Smt. Ratnamala wd/o Ishwar Gajbhiye,
aged about 31 Yrs., Occu. Household.
2. Sachin s/o Ishwar Gajbhiye,
3.
aged about 15 Yrs., Occu. Student.
Vivek s/o Ishwar Gajbhiye,
aged about 10 Yrs., Occu. Student.
Both respondent Nos.2 and 3 being minor,
through their mother and natural guardian
Smt. Ratnamala wd/o Ishwar Gajbhiye.
4. Smt. Ramabai Gangaram Gajbhiye,
aged about 66 Yrs., Occu. Household.
All respondent Nos.1 to 4 R/o Dabha Wadi
Control, Ward No.17, Nagpur. ..Respondents.
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Shri R.S. Charpe, Advocate for the appellant.
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CORAM : Z.A.HAQ, J.
DATED : 22.8.2016.
ORAL JUDGMENT
1. On 19th August, 2016 Shri R.S. Charpe, Advocate for the appellant was
heard, however, as none appeared for the respondents the matter was kept part heard
for today. Today again none appeared for the respondents.
The findings recorded by the Tribunal that the accident had occurred by
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the bus owned by the appellant - Corporation are challenged contending they are
unsustainable. It is submitted that the evidence on record is not sufficient to
establish that the bus owned by the appellant - Corporation was involved in the
accident.
With the assistance of the learned Advocate for the appellant, I have
examined the record. The case of the claimants is that the bus owned by the
appellant - Corporation gave dash to the moped which was driven by deceased Ishwar
and the claimant Sachin (son of deceased) was the pillion rider at the time of
accident. The evidence of Sachin establishes that the bus owned by appellant -
Corporation was involved in the accident.
The spot of the accident is not disputed. The F.I.R. about the accident
was registered on the same day and it shows that the accident occurred because of
negligent driving of bus owned by the appellant - Corporation.
The claimants have been able to establish that the bus owned by the
appellant - Corporation was involved in the accident and that the accident occurred
because of rash and negligent driving of the bus. The defence of the
appellant - Corporation is that the bus owned by it was not involved in the accident.
The appellant - Corporation could have discharged the burden of proving this fact by
leading evidence and pointing out that at the time of accident, no bus owned by the
appellant - Corporation was plying on the concerned route and could not have been
at the place of accident. The appellant - Corporation might be having the record on
the basis of which it can be shown which buses were plying on the concerned route
and at what time. In my view, the appellant - Corporation has failed to discharge its
burden.
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The Tribunal has properly considered the evidence on record. The
learned Advocate for the appellant has not been able to point out any perversity in
the findings recorded by the Tribunal on this point.
The other submission made on behalf of the appellant - Corporation is
that the Tribunal has committed an error by applying the multiplier of 17 while
determining the amount of compensation payable to the claimants and as per the
judgment given in the case of Sarla Verma (SMT) and others V/s. Delhi Transport
Corporation and another reported in (2009) 6 SCC 121 the multiplier of 16 should
have been applied as the deceased was aged about 34 years at the time of accident.
This submission is required to be accepted. However, I find that though the number
of claimants are four, the Tribunal has directed deduction of 1/3rd amount instead of
1/4th amount towards personal expenses of deceased and, therefore, I am not inclined
to interfere with the award.
In view of the above, the appeal is dismissed. In the circumstances, the
parties to bear their own costs.
Considering the fact that other claimants i.e. respondent Nos.2 and 3 are
now major and might be employed, out of the amount which is deposited with the
Registry of this Court, 80% amount alongwith interest be given to the respondent
No.1 - Smt. Ratnamala wd/o Ishwar Gajbhiye and 20% amount alongwith interest
be given to the respondent No.4 - Smt. Ramabai Gangaram Gajbhiye.
JUDGE
Tambaskar.
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CERTIFICATE
" I certify that this Judgment/Order uploaded is a true and correct copy of
original signed Judgment/Order".
Uploaded By : N.V. Tambaskar. Uploaded On : 30.8.2016.
Personal Assistant.
