Bombay High Court
State Of Maharashtra vs Smt. Mugabai Chandu on 13 June, 2016
Bench: V.K. Jadhav
1 FA 690.2002.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 690 OF 2002
..
THE STATE OF MAHARASHTRA
(Through Department of Irrigation,
Akhada Balapur, Tq. Kalamnuri,
District Parbhani through its
Executive Engineer, owner of the
Truck No.MTD-7468) ..Appellant..
(orig respondent)
VERSUS
1.
Smt. Mugabai w/o Chandu Suryatal,
age 28 yrs, Occ. Household.
2. Kum. Archana d/o Chandu Suryatal,
age 12 yrs, Occ. Household.
3. Kum Jyoti d/o Chandu Suryatal,
age 10 yrs, Occ. Education.
4. Kum. Lata d/o Chandu Suryatal,
age 8 yrs, Occ. Nil.
5. Kum Thungabai d/o Chandu Suryatal,
age 6 yrs, Occ. Education.
6. Kum. Seema d/o Chandu Suryatal,
age 4 yrs, Occ. Education.
7. Umandi s/o Chandu Suryatal,
age 3 yrs, Minor.
8. Kum Vidya d/o Chandu Suryatal,
age 1.5 yrs, Occ. Nil, minor
All R/o Jawala (Panchal), Tq. Kalamnuri,
Dist. Hingoli.
9. The Director of Insurance,
5th Floor, New Administration,
Building, Opp. Mantralaya,
::: Uploaded on - 16/06/2016 ::: Downloaded on - 30/07/2016 05:16:52 :::
2 FA 690.2002.odt
Fort Bombay (Mumbai). ..Orig. claimants..
(orig petitioners and orig
respondent No.2.)
...
AGP for Appellant : Mr S R Yadav
Advocate for Respondents 1-8 : Mrs. A N Ansari
...
CORAM : V.K. JADHAV, J.
Dated: June 13, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the Judgment and Award passed by
the Ex-officio Member of Motor Vehicle Accident Claims
Tribunal, Hingoli dated 2.6.2001 in MACP No.75 of 2000 the
original respondent No.1 preferred this appeal.
2. Brief facts, giving rise to the present appeal, are as
follows :-
a] The accident had taken place on 15.2.1997 at about
10.00 a.m near Kurtadi Phata on Balapur Waranga Tar road.
On that day, deceased Chandu was travelling on a motor
cycle bearing registration No.MH-26/2897. He was the
pillion rider on the said motor cycle and one Kishti Chand
Saheb was driving that motor cycle. On the given date, time
and place one truck bearing registration No.MTD-7468 came
in high speed in opposite direction driven by its driver in
rash and negligent manner and gave dash to the motor cycle.
In consequence of which, deceased Chandu as well as said
3 FA 690.2002.odt
Khisti sustained multiple injuries. They were immediately
shifted to Hospital at Nanded. However, both of them
succumbed to the injuries while under treatment in the
hospital. L.Rs. of deceased Chandu preferred claim petition
before the Tribunal for grant of compensation under various
heads. It has contended that, deceased Chandu was aged
about 35 years at the time of his death and he was doing
milk business and earning Rs.3,000/- p.m. and maintaining
his family. All the claimants were depending on his earning
and they have no independent source of income.
b] Respondents No.1 and 2 resisted the claim by filing
their written statement at Exh.17. It is denied that, deceased
was the pillion rider on the motor cycle. It has contended
that, the truck was in moderate speed at the time of accident
and it was proceeding by its extreme left side. It was further
contended that, the motor cycle was in speed and while it
was overtaking the jeep on the turn of the road, the driver of
the motor cycle lost his control and therefore, motor cycle
was slipped and the deceased was thrown from the motor
cycle and thereafter the motor cycle gave dash to the diesel
tank of the truck.
c] On the basis of rival pleadings to the parties to the
4 FA 690.2002.odt
claim, the Tribunal has framed issues. Parties lead their
evidence in support of their rival contentions. The learned
Member of the Tribunal by its impugned judgment and order
dated 2.6.2001 partly allowed the claim petition and thereby
directed the respondents jointly and severally to pay
Rs.2,16,000/- including the compensation towards 'No Fault
Liability' with interest. Being aggrieved by the same,
respondent no.1/owner has preferred this appeal.
3.
Mr. Yadav, the learned AGP submits that, respondent
No.1 owner has examined the driver of the vehicle truck
shown to have been involved in the accident. Learned AGP
submits that, the tribunal has discarded evidence of said
witness Narayan on the ground that he is an interested
witness and that, oral evidence of the said witness is against
pleading of respondent no.1. Learned AGP submits that, his
evidence is consistent with the pleadings of respondent No.1.
As per pleading of appellant/owner, motor cycle was in speed
and while it was overtaking the jeep on the turn of the road,
the driver of motor-cycle lost his control and therefore, motor
cycle was slipped and the deceased was thrown away from
the motor cycle and thereafter the motor cycle gave dash to
the diesel tank of the truck. Learned AGP submits that,
learned Member of the Tribunal has committed grave error in
5 FA 690.2002.odt
discarding the evidence of driver of the truck and believing
the evidence of P.W. 2-Pritamsingh, who is a chance witness
to the alleged accident. Learned AGP submits that,
respondents No.1 and 2 succeeded in proving that accident
took place on account of rash and negligent driving of rider
of the motor cycle and that driver of the truck was not at all
responsible for the accident.
4. Learned A.G.P. further submits that, there is no
income proof of deceased submitted by the claimants in
support of their contention. Learned AGP submits that, it is
peculiar coincidence that so called eye witness PW 2
Pritamsingh has also deposed that deceased Chandu was
selling him 20 liters of milk per day @ Rs.8/- per liter.
Considering the same, the Tribunal has taken a judicial note
about source of income of the deceased Chandu and, further
observed that deceased Chandu must be earning Rs.4,000/-
p.m. Learned AGP submits that, in paragraph no.15 of the
judgment the Tribunal, without any base, considered yearly
income of deceased Chandu at Rs.18,000/- and after
deducting 1/3rd amount towards personal expenses,
assessed compensation towards loss of future income.
Learned AGP submits that, entire approach of the Tribunal is
erroneous. Impugned Judgment and Award is thus liable to
6 FA 690.2002.odt
be quashed and set aside and the appeal thus deserves to be
allowed with costs.
5. Learned counsel appearing for the respondents-
original claimants submits that, the Tribunal after
considering the evidence adduced by the parties to the claim
petition, rightly recorded the finding that accident took place
on account of rash and negligent driving of the truck bearing
registration No.MTD 7468. The Tribunal has ruled out the
possibility that accident had taken place on account of rash
and negligent driving on the part of motor cycle rider.
6. On perusal of Record and Proceeding most particularly,
FIR Exh.22, it appears that, deceased Chandu had lodged
the complaint when he was hospitalized and treatment was
going on. It has specifically alleged in the complaint that,
said truck came from the opposite direction in a high speed
and gave dash to the motor cycle. Even after the accident, he
was in a position to notice the registration number of the
said truck and accordingly mentioned in the FIR.
Furthermore, after the accident he alongwith persons
gathered there made an inquiry with the driver of the truck
about his name and accordingly disclosed name of the driver
in the FIR. On perusal of the contents of the spot
7 FA 690.2002.odt
panchnama Exh.23, it appears that the tar road at the spot
of incident is 15 feet in width having 3 feet mud pan of both
side of the tar road. On the basis of the complaint lodged by
deceased Chandu crime came to be registered against driver
of the truck. According to R.W.1 Narayan Khade/driver of
the truck, he was driving the vehicle from the left side of the
road and on the given date, time and place, one motor cycle
came from the opposite direction of the truck and said motor
cycle gave dash to the diesel tank of the truck which was on
right side of the truck. Respondent No.1 has raised plea that
rider of the motor cycle was in high speed and while
overtaking one jeep on the turn motor cycle gone beyond his
control. It was slipped due to high speed on curve road, and
in consequence of which deceased thrown away from the
motor cycle prior to the touching of the motor cycle to the
truck. Then motor cycle gave dash to the diesel tank of the
truck as said motor cycle slipped. The learned Member of the
Tribunal has thus right in observing that RW 1 Narayan has
altogether brought a new story of accident and, without
giving reference of the overtaking of the motor cycle simply
deposed that, motor cycle gave dash to the diesel tank. He
has further deposed that after giving dash both riders fell
down on the road. Same is certainly contrary to the
pleadings.
8 FA 690.2002.odt
7. PW 2 Pritamsingh, to whom the learned Member of the
Tribunal has rightly believed, deposed that, truck coming
from opposite direction gave dash to the motor cycle at
Kurtadi Phata and accordingly, the accident had taken place.
Thus, considering the oral and documentary evidence lead
by the parties to the claim petition, only inference could be
drawn that, the aforesaid accident took place on account of
rash and negligent driving of the truck and none else.
8. So far as income from the milk business is concerned,
PW 2 Pritamsingh has deposed that he was purchasing 20
liters of milk from deceased Chandu per day at the rate of
Rs.8/- per liters. Even claimant no.1 has also deposed that
her husband was dealing in milk business and earning
Rs.100/- to 120/- by selling milk. However, I find that the
Tribunal has incorrectly calculated the compensation.
Deceased Chandu was selling 20 liters of milk per day to
P.W. 2 Pritamsingh @ Rs.8/- per liters and in that way he
was earning Rs.160/- per day corresponds to Rs.4,800/-
p.m. In paragraph No.15 of the Judgment, the Tribunal has
considered yearly income of deceased Chandu to the tune of
Rs.18,000/-. Thus, the Tribunal has considered monthly
income of deceased Chandu to Rs.1,500/- only against the
evidence of Rs.4,800/- p.m. It appears that the Tribunal
9 FA 690.2002.odt
considered his monthly income to the extent of 25% out of
his income and remaining amount is considered as
expenses. Be that as it may, the Tribunal thereafter
deducted 1/3rd of his personal expenses and considered
yearly income of Rs.12,000/- pa. The Tribunal has assessed
future loss of income by applying correct multiplier.
Furthermore, the Tribunal has also awarded compensation
under the heads of non pecuniary loss such as loss of
consortium, funeral expenses. In the result, there is no
merit in the appeal. The appeal is thus, liable to be
dismissed. Hence, following order is passed.
O R D E R
I. Appeal is hereby dismissed with costs.
II. Award be drawn up accordingly.
III. Appeal is accordingly disposed of.
sd/-
( V.K. JADHAV, J. )
aaa/- ...
