The Controller, Maharashtra ... vs Smt. Sunita Wd/O Mangesh ...
2017 Latest Caselaw 4180 Bom

0707 FA  622/2012                             1                        Judgment


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH AT NAGPUR.


                        FIRST APPEAL NO. 622/2012 




The Controller,
Maharashtra State Road Transport
Corporation,
Railway Station Road, Sitabuldi, Nagpur.                APPELLANT



                                .....VERSUS.....



1]     Smt. Sunita wd/o Mangesh Suryawanshi,
       Age 35 years, Occu: Household,

2]     Abhilash s/o Mangesh Suryawanshi,
       Age 11 years, Occu: Student,
       through his mother Smt. Sunita wd/o 
       Mangesh Suryawanshi.

3]     Shubham s/o Mangesh Suryawanshi,
       Age 9 years, Occu: Student,
       through his mother Smt. Sunita wd/o 
       Mangesh Suryawanshi.

4]     Baliram Suryawanshi
       (deleted as per order dt.11/01/2013)              RESPONDE NTS


Ms. B.V. Reddy, Adv. h/f Shri V.H. Kedar, counsel for appellant.
Mrs. Saboo, counsel for respondents.




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 0707 FA  622/2012                               2                          Judgment


                 CORAM  : DR. SMT. SHALINI PHANSALKAR-JOSHI, J.

               DATE     : JULY 07, 2017.



ORAL JUDGMENT :  

This appeal takes an exception to the judgment and

award dated 17/01/2012 passed by Chairman, Motor Accident

Claims Tribunal, Nagpur in M.A.C.P. No. 65/2006, thereby

awarding the compensation of Rs.17,36,960/- to the respondents-

claimants, with interest at the rate of 6% per annum from the date

of petition till realization.

2] Brief facts of the appeal can be stated as follows:-

On 22/11/2005, in the afternoon, deceased Mangesh

was proceeding on his Hero Honda Passion motorcycle bearing no.

MH-31-BV-1206 towards Mokshadham Square at Nagpur. When

the deceased was moving along Ghat Road, near Mokshadham S.T.

Quarters, MSRTC Bus bearing No. MH-40-9634 which was moving

in the same direction, dashed at the backside of the motorcycle. As a

result of which, deceased fell down and sustained injuries. He was

rushed to the Government Medical College & Hospital, Nagpur,

0707 FA 622/2012 3 Judgment

where he succumbed to the injuries on the very day.

3] The police had registered the case against the Bus

driver for negligence and accident. The respondent nos.1 to 3

herein, who are the widow and the children of the deceased,

therefore, filed claim petition before the Tribunal claiming

compensation of Rs.10,00,000/-, which was subsequently enhanced

to Rs.35,00,000/-.

4] This petition came to be resisted by the appellant vide

written statement at Exh.14 contending inter alia that the sole cause

of accident was the rash and negligent driving of the deceased

himself. It was submitted that deceased was coming from opposite

direction on his motorcycle in a very high speed. He then came to

extreme right side of the road and gave dash to the right side of the

Bus. Therefore, as the cause of accident was entirely the rash and

negligent driving of the deceased, Bus driver cannot be held liable

for the same in any way. Hence, liability of paying the compensation

cannot be fastened on appellant.

 0707 FA  622/2012                                 4                          Judgment


5]              On   these   respective   pleadings   of   the   parties,   the

Tribunal framed necessary issues at Exh.27. In support of their

claim, respondent no.1 examined herself and produced on record

the copy of FIR (Exh.41), spot panchnama (Exh.42) and the income

tax returns of the deceased at Exh.46 and Exh.47.

6] As against it, on behalf of the appellant, the concerned

Bus driver, by name Subhash Chipade entered into witness box to

prove that the cause of accident was rash and negligent driving of

the deceased himself.

7] On appreciation of their evidence, the Tribunal was

pleased to allow the claim petition granting compensation of

Rs.17,36,960/- to the respondents.

8] While challenging this judgment and order of the

Tribunal, submission of learned counsel for appellant is that,

respondents have not examined any eye witness to the accident. The

only evidence available on record is that of Bus driver, who has

categorically deposed that it was the motorcycle of the deceased,

0707 FA 622/2012 5 Judgment

which came from behind and gave dash to his Bus. Bus driver

Chipade came to know about the accident only when he heard the

commotion from backside of his Bus. It is urged that the learned

Tribunal has not at all considered the oral evidence of Bus driver

and wrongly fastened the liability for the accident on Bus driver

alone. It is urged that spot panchnama also supports the evidence of

Bus driver to prove the manner in which the accident has occurred.

Hence, according to learned counsel for appellant, the impugned

judgment and order of the Tribunal holding appellant liable to pay

the compensation amount to the respondents, needs to be quashed

and set aside.

9] Per contra, learned counsel for the respondents had

supported the judgment of the Tribunal for the reasons stated

therein.

10] In view of these rival submissions advanced before me,

the first point which arise for my determination is, whether the

cause of the accident was rash and negligent driving of the Bus

driver or that of the deceased?

 0707 FA  622/2012                              6                          Judgment




11]             In   this   case,   admittedly,   respondent   no.1,   who   has

examined herself in support of her claim, was not an eye witness to

the accident. Hence, her evidence is not of any relevance to decide

this point. She has simplicitor relied upon the FIR (Exh.41) and spot

panchnama (Exh.42). Both these documents go to show that after

carrying out necessary enquiry, the police have found that it was the

Bus driver, who was responsible for the accident, and accordingly,

as admitted by the Bus driver Chipade himself, the criminal case was

registered against him, which was pending at the time of trial before

the Tribunal. The criminal case registered against him was for the

offence under Sections 279 and 304-A IPC.

12] The spot panchnama, the copy of which is produced on

record at Exh.42 also goes to show that the motorcycle was lying

adjacent to the Bus and hence, the case put up by Bus driver that the

dash was from behind the Bus, cannot be accepted. The spot

panchnama also shows that the head lights and side guard of the

left side of motorcycle were damaged, thereby proving that the dash

was from the side and not from behind. If the dash to the

0707 FA 622/2012 7 Judgment

motorcycle was from behind the Bus, then the portion of the

motorcycle which could have been damaged was front portion and

not the left side portion. The spot panchnama also nowhere shows

that the rear portion of the Bus was damaged, but it shows that the

right side portion of the Bus was damaged. Hence, the case put up

by the Bus driver Shri Chipade in his evidence that the dash was

given by the deceased himself from behind the Bus, cannot be

accepted.

13] Moreover, the case put up by the Bus driver Shri

Chipade in his oral evidence that the dash was from behind the Bus,

is not appearing in the written statement. As per the case put up in

written statement, the deceased was coming on his motorcycle from

opposite direction in a very high speed, then he came to extreme

right side of the Bus and gave dash to Bus, as a result of which

accident has occurred. Whereas, in the evidence of Bus driver Shri

Chipade, he has stated that motorcycle gave dash from behind and

he came know about the same only when he heard the commotion.

Therefore, having regard to this entire evidence on record, no fault

can be found in the finding recorded by the Tribunal that the cause

0707 FA 622/2012 8 Judgment

of the accident was the rash and negligent driving of the Bus driver,

and therefore, appellant becomes liable to compensate the

respondents-claimants.

14] As regards the quantum of compensation, respondent

no.1 has produced on record the income tax returns of the deceased

which are at Exh.46 and 47. According to her evidence, the

deceased was running hardware shop in the name of "Suryawanshi

Traders" at Manewada Road, Nagpur and also having dealership of

Ultratech Cement and Lafarage Cement. He was earning

Rs.47,000/- per month at the time of accident. The balancesheet of

his business was also produced on record along with the income tax

returns for the assessment year 2004-05, which prove that his

annual income was Rs.1,82,166/-. After deduction of the tax

amount of Rs.21,201/-, the Tribunal has rightly considered the

annual income of the deceased as Rs.1,60,965/-.

15] The evidence of respondent no.1 also that at the time of

accident deceased was running the age of 39 years. She has also

stated that his date of birth was 02/06/1966, and hence the

0707 FA 622/2012 9 Judgment

Tribunal has rightly applied an appropriate multiplier of '16'.

16] As at the time of accident the deceased was married,

hence the Tribunal has deducted 1/3rd amount of his annual income

towards his personal expenses as Rs.53,655/- and considered his

contribution to the family as Rs.1,07,310/-. Applying the multiplier

of '16' the financial dependency of the respondents comes to

Rs.17,16,960/-. Adding the amount of compensation towards

additional heads of loss of consortium, funeral expenses etc., the

Tribunal granted total amount of Rs.17,36,960/- as compensation to

the respondents. The said amount being just, reasonable, fair and

correct, no interference is warranted in the impugned judgment and

award of the Tribunal for the same.

17] Appeal, therefore, holds no merits, and hence stands

dismissed with no order as to costs.

JUDGE

Yenurkar