Bombay High Court
The Gen. Manager, Ordanance ... vs Kalpana Ramesh Thakur And 3 Ors on 2 August, 2017
Bench: Dr. Shalini Phansalkar-Joshi
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 601 of 2006
Appellant : The General Manager, Ordnance Factory,
Chanda, District Chandrapur
versus
Respondents : 1) Kalpana wd/o Ramesh Thakur, aged
about 30 years, Occ: Household
2) Himanshu s/o Ramesh Thakur, aged
about 10 years, Occ: Student
3) Vaishnavi d/o Ramesh Thakur, aged
about 6 years, occ: nil
4) Kamla wd/o Kisan Thakur, aged about
60 years, Occ: Nil,
Respondents no. 2 and 3 are minor, through
natural guardian-mother, respondent no. 1
residents of Gorewada village, near Rotary
Club Building, Ward No. 1, Nagpur
Shri S. K. Mishra, Advocate for appellant
Coram : Dr Smt Shalini Phansalkar-Joshi, J
Dated : 2nd August 2017
Oral Judgment
1. By this appeal, challenge is raised to the judgment and
award dated 25th April 2006 delivered by the Motor Accident Claims
Tribunal, Nagpur in Claim Petition No. 1071 of 2000. The facts, in
brief, can be stated thus,
2. Respondent no. 1 Kalpana is the widow, respondents no.
2 and 3 are minor children and respondent no. 4 is the mother of
deceased Ramesh Thakur. It was averred that at the time of accident
Ramesh was aged about 35 years and was earning monthly salary of
Rs. 3000/-, as also monthly allowances of Rs. 2000/- from his
employer M/s First Consolidated Engineers Private Limited.
3. As per the case of claimants, on the day of accident,
Ramesh was proceeding by auto rickshaw bearing registration No.
MH-31/M/6370 on Warora-Nagpur National Highway. When his
auto-rickshaw came near Rampur village, truck bearing registration
No. MH-34/A/4276 gave dash to the auto-rickshaw from rear side,
resulting into turtling of auto-rickshaw and consequent death of
Ramesh Thakur. Respondents claimed compensation of Rs. 800,000/-
together with future interest @ 8% per annum.
4. This claim petition was resisted by the appellant by filing
Written Statement (Exhibit 15) denying that the cause of accident
and consequent death was due to rash and negligent driving of the
truck. It was contended that the auto-rickshaw was driven rashly
and negligently and that too without valid licence and, therefore,
appellant is not liable to pay any compensation. In the alternative, it
was alleged that deceased Ramesh died probably due to fall of a
heavy compressor on his person. Appellant thus prayed for dismissal
of claim petition.
5. In support of their respective cases, claimants examined
claimant no. 1 Kalpana and also led the evidence of one Sunil
Dhanwal who was running First Consolidated Engineering Private
Limited and under whom deceased Ramesh was working. On behalf
of the appellant, driver of the truck viz. Lourence Thomas was
examined.
6. On appreciation of evidence led by the parties, the
Tribunal was pleased to hold that the cause of death was the rash
and negligent driving of the truck and granted compensation of Rs.
4,14,000/- together with future interest of 8% thereon to the
respondents.
7. This judgment and award of the Tribunal is challenged in
present appeal on the ground that there was neither evidence on
record to prove rashness and negligence on the part of the truck
driver nor was there any evidence to show the actual income of the
deceased. A contention is also raised that the auto-rickshaw was
driven in a reckless manner on the middle of the national highway.
Hence, the Tribunal has not appreciated properly the evidence on
record while fixing the liability for payment of compensation on the
appellant. It is urged that amount of compensation awarded by the
Tribunal is also exorbitant and needs interference.
8. In the light of these submissions, the following two points
arise for my determination:
(1) Whether the accident in question has occurred due to the
rash and negligent driving of the truck by its driver ? and,
(2) Whether the compensation awarded by the Tribunal is
just, legal and fair ?
9. In this case, admittedly on behalf of the respondents, no
evidence of an eye witness is led on record. Respondent no. 1 has
examined herself. However, admittedly, she was not an eye witness
to the accident. However, there is other documentary evidence
available on record in the form of First Information Report (exhibit
23) lodged by one Rajaram Mane, who was accompanying the
deceased. After enquiry and investigation, the offences punishable
under Sections 279, 337, 427, 304-A of the Indian Penal Code and
Section 184 of the Motor Vehicles Act were registered against driver
of the truck at Police Station, Warora, District Chandrapur. The
panchanama of the spot (exhibit 24) and is also produced on record.
On the basis thereof, it can very well be inferred that the accident
occurred due to the rashness and negligence on the part of driver of
the truck.
10. Appellant had examined driver of the offending truck
who has deposed that the speed of the truck was restricted to 40
km/ph with the help of governor. According to him, it was the auto-
rickshaw which was being driven in a negligent manner and that too
in the middle road at a high speed. However, it is seen from his
evidence itself that while he was overtaking the auto-rickshaw, the
truck gave dash to the trolly of the auto-rickshaw. It is admitted by
him that the dash was from rear side of the auto-ickshaw. The spot
panchanama also shows that the damage was received by auto-
rickshaw at its rear side. In my considered opinion, therefore, the
finding arrived at by the learned Tribunal that the accident occurred
due to the dash given by the offending truck and hence on account of
its rash and negligent driving is just and proper and it is on due
appreciation of evidence available on record. Hence, it needs to be
confirmed and cannot be disturbed. Point no. 1 is answered
accordingly.
11. As regards the adequacy or inadequacy of the
compensation granted by the learned Tribunal, there is evidence of
claimant Kalpana (widow) and employer of deceased Ramesh
available on record. P. W. 1 Kalpana states that at the time of
incident, Ramesh was drawing salary of Rs. 5000/- and the entire
family was dependent on him. In cross-examination, she deposed that
her husband was doing job since prior to her marriage in 1996. He
was salesman and was doing offence work also.
12. Sunil Dhanwal of M/s First Consolidated Engineers
Private Limited, examined as P. W. 2 by the claimants, deposed that
Ramesh was working under him and his salary was Rs. 3000/- per
month. PW 2 Sunil has also deposed that he was paying allowances
of Rs. 1000/- to Rs. 1500/- to Ramesh. He affirmed that Ramesh was
managing administrative work like delivery of goods, collection of
goods etc. He added that salary of Ramesh was increated to Rs.
3000/- per month from August 2000 and he proved salary certificate
at exhibit 35 in that behalf. In cross-examination, he deposed that
Ramesh was his permanent employee.
13. On the basis of evidence adduced on record - both oral
and documentary, the Tribunal has rightly held that Ramesh was
earning salary of Rs. 3000/- per month and there was annual loss of
dependency of Rs. 24000/-. After deducting 1/3 rd of the said amount
towards his personal expenses and considering the age of the
deceased, which was 35 years at the time of accident, the Tribunal
has applied multiplier of "16" and in my view, rightly so. The learned
Tribunal has then granted compensation of Rs. 10,000/- towards loss
of consortium to claimant no. 1 and Rs. 5000/- to each of children
and mother of the deceased towards loss of love and affection. The
total compensation of Rs. 4,14,000/- together with interest of 8% per
annum granted by the Tribunal, being reasonable, fair, just and fair,
in my considered opinion, calls for no interference. Point no. 2 is
answered accordingly.
14. In the result, there is no merit in the appeal and the same
is accordingly dismissed with no order as to costs.
JUDGE
joshi
