Bombay High Court

Shamrao Gangadhar Shripat vs M.S.R.T.C. Ahmednagar And Others on 22 March, 2016

Bench: V.K. Jadhav

                                                                               fa498.05
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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD




                                                    
                              FIRST APPEAL NO. 498 OF 2005

     Shri Shamrao Gangadhar @ Gangaram Shripat,
     Age : 62 years, Occupation Nil,




                                                   
     R/o House No. 62/33, Dikonda Wada,
     Chitale Road,
     Ahmednagar - 414 001.                      ... Appellant

              Versus




                                        
     1.       The Maharashtra State Road Transport
                             
              Corporation, "WAHATUK BHAVAN"
              Belasis Road, Mumbai.
                            
     2.       Smt. Rekha Gangadhar Shripat,
              Age : 35 years, Occp : Household work,

     3.       Smt. Rukmini Shamrao Shripat,
              Age : 61 years, Occu : Household work,
      


              Respondent Nos. 2 and 3 R/o 62/33,
   



              Dikonda wada, Chitale Road,
              Ahmednagar.                                    ... Respondents

                                       .....





      Advocate for the appellant : Mr. K. G. Gawali and Mr. D. G. Nagode
             Advocate for respondent No. 1 : Mr. M. K. Goyanka
          Advocate for respondent Nos. 2 and 3 : Mr. D. R. Jaybhar
                                       .....





                                                CORAM : V. K. JADHAV, J.

DATED : 22nd MARCH, 2016

ORAL JUDGMENT :-

1. Being aggrieved by the judgment and award dated 14.08.1998

passed by learned Member, Motor Accident Claims Tribunal,

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Ahmednagar in M.A.C. Application No. 670 of 1992, the original

claimant No.2 has preferred the present First Appeal.

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

An accident had taken place on 12.05.1992 on Nagar-Pathardi

road. On that day, deceased Gangadhar was coming to

Ahmednagar from Bhingar on scooter bearing registration No. GBZ

5183. On the way, one S. T. Bus bearing registration No. MH-20-D-

0399 coming from Ahmednagar side gave dash to the scooter, in

consequence of which, deceased Gangadhar had sustained multiple

injuries. He was immediately taken to Civil Hospital, Ahmednagar,

where he succumbed to the injuries. The legal representatives of

deceased Gangadhar preferred M.A.C. Application No. 670 of 1992

before the tribunal for grant of compensation on the count of death of

Gangadhar in motor vehicle accident. Learned Member of M.A.C.T.,

Ahmednagar, by the impugned judgment and award dated

14.08.1998, partly allowed the M.A.C. Application, thereby directed

opponent to pay a sum of Rs.1,02,600/- (inclusive of the amount

under no-fault liability) together with interest thereon at the rate of

12% p.a. from the date of filing the application till its realisation and

the proportionate costs. Being aggrieved by the quantum of

compensation as well as the finding recorded by the tribunal, making

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deceased Gangadhar responsible to some extent for the accident,

the original claimant No. 2 has preferred this appeal.

3. Learned counsel for the appellant submits that deceased

Gangadhar had not contributed negligence in any manner and the

driver of S.T. Bus alone was responsible for the accident. Learned

counsel submits that the accident was not the result of head on

collision as observed by learned Member of the tribunal in the

impugned judgment and award. Learned counsel submits that the

tribunal has not considered the fact that there is a turn near the spot

of accident and considering the width of tar road, which is hardly 20

ft., the tribunal ought to have held that the driver of S.T. Bus was

solely responsible for the accident. Learned counsel further submits

that though the claimant has deposed that deceased was serving in

"Sudarshan Book Stall" and getting Rs.1200/- to 1500/- p.m. by way

of salary, the tribunal has erroneously considered the income of

deceased as Rs.1200/- p.m. Learned counsel further submits that

the tribunal has committed grave mistake of law in applying multiplier

13 instead of 17. Learned counsel submits that so far as non-

pecuniary damages are concerned, the tribunal has not awarded any

compensation for "loss of consortium" and "loss of estate" and further

awarded a very meager amount as "funeral expenses". Learned

counsel, in order to substantiate his submissions, places reliance on

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the decision in the case of Pramodkumar Rasikbhai Jhaveri vs.

Karmasey Kunvargi Tak and others, reported in AIR 2002

Supreme Court 2864.

4. Learned counsel for the respondent-Corporation submits that

even though the tribunal has observed in the impugned judgment

and award that there was a head on collision between two vehicles,

the tribunal held that the S.T. Bus driver was negligent to the extent

of 75%, whereas, the scooter rider i.e. deceased Gangadhar was

negligent to the extent of 25%. Learned counsel submits that

considering the size of vehicles and the other circumstances on

record, the tribunal has rightly considered contributory negligence on

the part of deceased Gangadhar. Learned counsel further submits

that the tribunal has considered the income of deceased Gangadhar

on the basis of daily wages prevailing at that time as the claimants

failed to bring on record satisfactory evidence to substantiate their

contention that deceased Gangadhar was serving in one "Sudarshan

Book Stall" on monthly salary of Rs.1200/- to 1500/-. Learned

counsel submits that the tribunal has awarded just and reasonable

compensation in the present case. Learned counsel submits that

there is no reason for intervening in the impugned judgment and

award. There is no substance in the appeal and the appeal is liable

to be dismissed.

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5. In view of the above, following points arise for my

determination and I have recorded my findings to those points for the

reasons given below :

POINTS FINDINGS

1. Whether the appellant prove that the Partly affirmative.

accident was the result of rash and ig (S.T. Bus driver was negligent driving of S.T. Bus bearing responsible for the registration No. MH-20-D-0399 by its accident to the extent

of 75%.) driver alone?

2. Whether deceased Gangadhar has Partly affirmative.

contributed to the cause of accident to (Deceased Gangadhar

the extent of 25%, as determined by the was responsible for tribunal? the accident to the extent of 25%)

3. Whether the impugned judgment and In the affirmative.

award calls for any interference?

(To the Extent of quantum of compensation.)

4. What order ? As per final order.

REASONS

6. It appears from the evidence that the said Nagar-Pathardi road

at the spot of the accident is having 20 ft. of tar road having 5 ft.

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kaccha strips on both sides. It is also recorded in the spot

panchnama that the scooter involved in the accident was lying at a

distance of 15 ft. facing towards Ahmednagar and at a distance of 7

ft. from the scooter, some blood stains were seen. It is also

mentioned in the spot panchnama that the front bumper and front

show of S.T. Bus found pressed and the S.T. Bus was found

damaged to that extent. It is also recorded that in the same way, the

scooter was also found damaged. Considering the width of road,

learned Member of the Tribunal has rightly observed that the S.T.

Bus driver could have avoided the accident by taking his bus towards

left, but he has not done so. Thus, considering the position of

vehicles after the accident and the evidence placed on record, it can

be inferred that the accident was the result of head on collision as

observed by the tribunal in the impugned judgment and award.

However, considering the size of vehicles and the fact that the S.T.

Bus driver could have avoided the accident by taking the bus towards

extreme left side of the road, the S.T. Bus driver is held to be

negligent to the extent of 75%, whereas, the scooter rider i.e.

deceased Gangadhar is also held negligent to the extent of 25%. I

do not find any fault in the said findings recorded by the tribunal.

Learned Member of the Tribunal has rightly discarded the theory of

overtaking of another truck at the time of accident by the scooter. I

answer point Nos. 1 and 2 accordingly.

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7. Claimant No.1-Rekha has deposed that deceased was doing

service in one "Sudarshan Book Stall" on monthly salary of Rs.1200/-

to 1500/- p.m., however, in order to substantiate the same, the

claimants have not examined any witness, nor produced any

documentary evidence before the tribunal. Consequently, the

tribunal has considered income of the deceased by taking into

account the minimum wages at the relevant time. In absence of any

evidence about the income proof, minimum wages at the relevant

time are required to be considered. I do not find that the tribunal has

committed any mistake in considering the income of deceased

Gangadhar as Rs.1200/- p.m. However, the tribunal has committed

error in applying multiplier 13 instead of 17. Claimant No.1 has

deposed that deceased Gangadhar was 30 years old at the time of

his accidental death. The same is also recorded in the post mortem

notes. Thus, deducting 1/3rd amount of income on the count of his

personal expenses, the amount of Rs.8,00/- corresponding to

Rs.9,600/- per annum is the loss of dependency/income, and if the

same is multiplied by 17, the same comes to Rs.1,63,200/-. It also

appears that the tribunal has committed mistake in not awarding

compensation under the head of "loss of consortium" and also for

"loss of estate". The claimants are entitled for an amount of Rs.

25,000/- for "loss of consortium" and Rs.10,000/- for " loss of estate".

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The tribunal has also awarded meager amount for "funeral expenses"

and the same is required to be increased to Rs.10,000/-

8. Thus, the break up of compensation can be broadly

categorized as under :

1 Loss of Dependency/Income Rs.1,63,200/-

      2 Loss of Love and Affection                              Rs.10,000/-

      3 Loss of Consortium                                      Rs.25,000/-
                            
      4 Loss of Estate                                          Rs.10,000/-
      

      5 Funeral Expenses                                        Rs.10,000/-
   



                                                       TOTAL Rs.2,18,200/-





              Thus,      the claimants          are entitled    for   total amount            of

     Rs.2,18,200/-,         75%      of   the     which   comes       to    Rs.1,63,650/-.

Accordingly, I proceed to pass the following order :

ORDER

I. The First Appeal is hereby partly allowed.

II. The judgment and award dated 14.08.1998 passed by learned Member, MACT, Ahmednagar in M.A.C.

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Application No.670 of 1992 is modified in the following

manner:

The opponent is hereby directed to pay to the claimants- applicants a sum of Rs.1,63,650/- (inclusive of the amount under no-fault liability) together with interest thereon.

Claimant No.1 shall be paid 50% of the amount under award along with proportionate interest and the rest of the

amount along with proportionate interest shall be paid to

the claimant Nos. 2 and 3 in equal shares.