Mrs Ushakiran @ Mirabai Ramakant ... vs Sambhaji Eknath Pakhare & 3 Ors
2017 Latest Caselaw 4344 Bom

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                                                              901 First Appeal.1274 of 2005.odt


               THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        BENCH AT AURANGABAD.


                           FIRST APPEAL NO. 1274 OF 2005

1.         Smt. Ushakiran @ Mirabai w/o Ramakant
           Bhalsing, Age : 37 years, Occ : Household,

2.         Ketaki d/o Ramakant Bhalsing,
           Age : 19 years, Occ : Education,

3.         Ketak s/o Ramakant Bhalsing,
           Age : 13 years, Occ : Education.

4.         Ashwini d/o Ramakant Bhalsing,
           Age : 11 years, Occ : Education,
           Nos.3 to 4 are minors, through their
           guardian mother-applicant no.1.,
           all r/o. Wagholi, Tq. Shevgaon,
           District : Ahmednagar.                        ... APPELLANTS
                                                        (Ori. Claimants)
                   V E R S U S


1.         Shri Sambhaji s/o Eknath Pakhare,
           Age : Manor, Occ : Driver,
           r/o. Newasa S.T. Depot, Newasa,
           Tq. Newasa, Dist. Ahmednagar.

2.         Maharashtra State Road Transport
           Corporation, Mumbai, Through
           its : Divisional Manager,
           Kothala Maidan, Sarjepura,
           Ahmednagar.

3.         Shri Kisan s/o. Tatyaba Bhalsing,            (Deleted as per Court order
           Age : 68 years, Occ : Agri.,                   dated 11/07/2017.

4.         Sou Prayagbai w/o. Kisan Bhalsing,
           Age : 63 years, Occ : Agri.,
           r/o. Wagholi, Tq. Shevgaon,
           District : Ahmednagar.                       ... RESPONDENTS




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                                                               901 First Appeal.1274 of 2005.odt



                                   ...
Mr. Amol P. Khedkar, Advocate for Appellants.
Mr. M K Goyanka, Advocate for Respondent Nos.1 & 2.
Mr. A. A. Mukhedkar, Advocate for Respondent No.4.
                                    ...


                                           CORAM  : V. K. JADHAV, J.

                                           DATE     :  11th July, 2017.


ORAL JUDGMENT:  
 

.                 Being aggrieved by the judgment and award passed by

the learned Chairman of the Motor Accident Claims Tribunal,

Ahmednagar dated 5th August, 2005 in MACP No.394 of 1997, the

original Claimants have preferred this appeal.

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

a) On 21st March, 1997, deceased Ramakant was

riding his motorcycle on Nagar-Aurangabad road.

He was proceeding towards Ahmednagar from

Aurangabad. On way, within the limits of village

Dhangarwadi, one S.T. Bus bearing registration

No.MH-12-F-2621 came from the opposite

901 First Appeal.1274 of 2005.odt

direction. The bus was in very high and

uncontrollable speed. The driver of the S.T. Bus

had driven the said bus in rash and negligent

manner and given dash to the motorcycle. In

consequence of which, deceased Ramakant had

sustained serious injuries and died on the spot.

The Appellants / Claimants approached the Motor

Accident Claims Tribunal by filing MACP No.394 of

1997 for grant of compensation under the various

heads. It has been contended in the claim petition

that deceased Ramakant was 34 years of age at

the time of his accidental death and he was in

Government service and also getting the income

from the agriculture. He was a permanent

employee serving as Social Welfare Inspector at

Ahmednagar on monthly salary of Rs.12,000/-.

The Appellants / Claimants were entirely

depending upon his income and they have no

independent source of income. Thus, the

Appellants / Claimants have claimed the

901 First Appeal.1274 of 2005.odt

compensation of Rs.33,85,000/-, however,

restricted their claim to the tune of Rs.10,00,000/-.

b) Respondent No.2 / MSRTC has strongly resisted

the claim petition by filing the written statement. It

has been contended that at Aurangabad - Pune

road is a straight way and there is usually heavy

traffic on this road. The S.T. Bus driver was driving

the bus in a moderate speed by following the traffic

rules and regulations. It has been contended that

on the spot of accident, the vehicle motorcycle

coming from the opposite direction was in speed.

The rider of the motorcycle started overtaking

some other vehicles without taking into

consideration that the bus was coming from the

opposite direction. There was no sufficient time for

the rider of motorcycle to overtake the said

vehicles. Even the rider of the motorcycle failed to

notice the signal given by the driver of the vehicles,

to which he was about to overtake. The said

motorcycle unexpectedly and abruptly came on the

901 First Appeal.1274 of 2005.odt

road from the back side of the vehicles in high

speed. On seeing the S.T. Bus, the rider of the

motorcycle could not control the speed of the

motorcycle and given dash to the bus. It has been

contended that the accident occurred due to sole

negligence of deceased Ramakant and there was

no fault on the part of the driver of S.T. Bus. It has

also been contended that the police authorities

have not done proper investigation and purposely

drawn vague Panchanama to help the family of

deceased Ramakant. Further, false charge-sheet

came to be submitted against the driver of the S.T.

Bus.

c) The Appellants / Claimants have adduced oral and

documentary evidence in support of their

contentions. The Respondent / MSRTC has also

examined its driver. The learned Chairman of the

Motor Accident Claims Tribunal vide its impugned

judgment and award dated 5th August, 2005 partly

allowed the claim petition and thereby directed the

901 First Appeal.1274 of 2005.odt

Respondent / MSRTC to pay jointly and severally

an amount of Rs.4,10,000/- (inclusive of NFL) with

interest at the rate of 9% per annum from the date

of filing of the application till realization of the entire

amount. The learned Chairman of the Tribunal has

recorded the finding to the effect that the rider of

the motorcycle as well as the driver of the S. T. Bus

contributed the negligence equally and as such, the

Respondent / MSRTC is liable to pay the

compensation to the extent of 50% as worked out

by the Tribunal. Being aggrieved by the said

finding of contributory negligence as well as

quantum of compensation as awarded by the

Tribunal, the Claimants preferred this appeal.

3 The learned counsel for Appellants / original Claimants

submits that the Appellants / Claimants have examined the

Investigating Officer in this case and further placed their reliance on

the spot Panchanama Exhibit 31. The learned counsel submits that

the spot Panchanama was drawn in presence of the said driver of

901 First Appeal.1274 of 2005.odt

S.T. Bus and it has been specifically recorded in the spot

Panchanama that the spot of the accident was shown by him. The

learned counsel submits that the road on the spot of accident is east-

west in direction and the Aurangabad is situated towards east and

Ahmednagar is situated towards west. On perusal of the spot

Panchanama Exhibit 31, it appears that the accident spot is towards

southern side of the road i.e. correct left side of the motorcycle, which

was proceeding towards Ahmednagar (towards west). In the present

case, the driver of the S.T. Bus has put forth a false story before the

Tribunal about overtaking of other vehicles by the motorcycle.

However, the contents of spot Panchanama and evidence of the

Investigating Officer falsify the stand / defence raised by the MSRTC.

The learned counsel submits that by any stretch of imagination,

negligence or contributory negligence on the part of deceased

Ramakant cannot be inferred. The Tribunal has thus, erroneously

recorded the finding, which is contrary to the evidence on record that

the rider of the motorcycle has equally contributed the negligence.

The learned counsel submits that the Tribunal has not awarded just

and reasonable compensation in this case. The learned counsel

submits that the Tribunal has not considered the income of deceased

901 First Appeal.1274 of 2005.odt

Ramakant from agriculture source though 7/12 extracts Exhibits 60

and 61 respectively are produced on record. Deceased Ramakant

was personally cultivating the agricultural land and the Tribunal ought

to have considered the loss in the income of agriculture due to the

lack of supervision by an experienced person like deceased

Ramakant. Further, the Tribunal has not awarded just and

reasonable compensation under the non-pecuniary heads such as,

loss of estate, loss of consortium and loss of love and affection. The

Tribunal has awarded meager amount for funeral expenses and not

awarded anything under the head of cost of litigation. The Tribunal

has also erroneously deducted 1/3rd amount from the income of

deceased Ramakant towards his personal and living expenses

instead of 1/4th in consonance with six dependents. The Tribunal has

not made any addition in the salaried income of deceased Ramakant

towards future prospects. Deceased Ramakant was a permanent

employee and the Tribunal ought to have made addition to the extent

of 30%, which is in consonance with the age of deceased Ramakant

towards his future prospects.

4 The learned counsel for Respondent / MSRTC submits

that Respondent / MSRTC has examined its driver Sambhaji Eknath

901 First Appeal.1274 of 2005.odt

Pakhare. Appellants / Claimants have not examined any eye-witness

to the accident and the driver of S.T. Bus was the best witness to tell

the cause of accident. The said witness Sambhaji has deposed that

two motor vehicles / tankers were coming from opposite direction and

one motorcycle had tried to overtake the said tankers. He has further

deposed that on seeing the motorcycle coming from the opposite

direction overtaking the said tankers, he slowed down the speed of

the bus and stopped his S.T. Bus on the left side of the road.

However, the motorcycle had given dash on the center portion of

bumper of the S.T. Bus and as such, the accident had taken place.

The learned counsel submits that the Appellants / Claimants have

examined Investigating Officer Witness No.2 ASI Ashok Shivram

Dinkar who has also admitted in his cross-examination that it was

transpired in his investigation that the motorcycle rider was trying to

overtake the vehicle which was in his front and during the said

overtaking the said the accident taken place. The learned counsel

submits that thus, the defence raised by Respondent / MSRTC and

the oral evidence of the driver of S.T. Bus, corroborated by the

evidence of witness ASI Ashok Dinkar. The learned counsel submits

that the Investigating Officer has drawn the spot Panchanama Exhibit

901 First Appeal.1274 of 2005.odt

31 in collusion with the Appellants / Claimants. The Investigating

Officer has incorrectly carried out the investigation and submitted

false charge-sheet against the driver of the S. T. Bus. The learned

counsel submits that the rider of the motorcycle i.e. deceased

Ramakant was entirely at fault. However, after considering the entire

evidence on record, the Tribunal has correctly recorded the finding to

the effect that the rider of the motorcycle had contributed the

negligence to the extent of 50%. So far as the finding about

contributory negligence on the part of deceased Ramakant is

concerned, no interference is required. So far as the quantum of

compensation as awarded by the Tribunal, the learned counsel

submits that the Appellants / Claimants have not adduced any

evidence about the income of deceased Ramakant from his

agricultural source and therefore, the Tribunal has not considered the

income of deceased Ramakant from the agriculture source. Further,

the corpus of the land remained as it is and there cannot be any loss

from the agriculture source. The learned counsel submits that though

Respondent / MSRTC has not preferred any appeal or cross-appeal,

the Tribunal has erroneously applied multiplier 15 instead of 14 and

the same is required to be corrected. The learned counsel for

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Appellants / Claimants has also fairly conceded the same. The

learned counsel submits that even Claimant No.1 has admitted in her

cross-examination that deceased Ramakant was serving in

Aurangabad and he was cultivating the land through the servants.

The learned counsel for Respondent / MSRTC submits that in the

given set of facts, the Tribunal has awarded just and reasonable

compensation. No interference is required. There is no substance in

the appeal and as such, the appeal is liable to be dismissed.

5 On perusal of the pleadings, evidence and the judgment

and award passed by the Tribunal, it appears that the Tribunal has not

correctly appreciated the evidence on record to arrive at a finding of

contributory negligence on the part of deceased Ramakant. On

perusal of spot Panchanama Exhibit 31, it appears that the accident

had taken place at Aurangabad - Nagar road, which is situated east-

west in direction at the spot of accident. It further appears from the

spot Panchanama that the spot of accident was shown by the driver of

S.T. Bus i.e. witness Sambhaji. It further appears from the contents of

spot Panchanama that the width of the road is 22 feet at the spot of

accident and there are 5 feet Kaccha road on both the sides of the

road. Witness ASI Ashok Dinkar has stated in his cross-examination

901 First Appeal.1274 of 2005.odt

that Nagar - Manmad road is north-south and Nagar is at south side

and Aurangabad is at north and the bus was proceeding from south to

north. However, on perusal of the contents of spot Panchanama

Exhibit 31, it appears that Nagar - Aurangabad road on the spot of

accident is shown as east-west in direction. It appears that witness

ASI Ashok Dinkar has deposed about the direction of Nagar -

Manmad road and not about the Nagar - Aurangabad road. As per

the contents of spot Panchanama Exhibit 31, if the road is 22 feet in

width, east-west in direction and when Aurangabad is situated

towards east and Ahmednagar is situated towards west, the correct

left side of the road for the S.T. Bus, would be towards north and

correct left side of the motorcycle proceeding toward west, would be

southern side. On perusal of the contents of spot Panchanama, it

appears that the spot of accident is shown as 9 feet away from the

southern side of the tar road whereas the remaining portion of the tar

road towards northern side is shown measuring 13 feet. If at all, the

theory of overtaking is accepted then the spot of the accident cannot

be towards southern side of the said road. If the motorcyclists started

overtaking the other vehicles proceeding in the same direction then

obviously he would go to the northern side of the road in the process

901 First Appeal.1274 of 2005.odt

of overtaking the said vehicles. On the other hand, as per the spot of

accident shown in the spot Panchanama Exhibit 31, the said S.T. Bus

went towards southern side of the road i.e. to the wrong side of the

road and given dash to the motorcycle coming from the opposite

direction. I do not find any substance in the submissions made on

behalf of Respondent / MSRTC that the rider of the motorcycle has

contributed the negligence. Deceased Ramakant was riding his

motorcycle from the correct left side of the road and it appears from

the location of the accident spot that the S.T. Bus went to the wrong

side of the road and gave dash to the motorcycle of deceased

Ramakant from its right driver side. Though witness Investigating

Officer Ashok Dinkar has given certain admissions in his cross-

examination, he has further denied that the accident had taken place

due to the sole rash and negligent driving on the part of the rider of

motorcycle and there was no negligence on the part of the driver S.T.

Bus. It is also a part of record that after due investigation, witness ASI

Ashok Dinkar has submitted the charge-sheet against the driver of

S.T. Bus alone. Even assuming that deceased Ramakant had started

overtaking some other vehicles as deposed by witness Sambhaji

driver of S.T. Bus, witness Sambhaji has further stated that he took

901 First Appeal.1274 of 2005.odt

his vehicle towards extreme left side of the road and stopped it.

However, the spot of accident is shown towards southern side of the

road and not towards northern side of the road. Thus, the only

irresistible inference could be drawn that the driver of S.T. Bus had

driven the bus in rash and negligent manner and given dash to the

motorcycle, which is comparatively very small in size, by going to the

wrong side of the road. The Tribunal has erroneously recorded the

finding, which is contrary to the evidence on record that deceased

Ramakant had contributed the negligence to the extent of 50%. In

view of the above discussion and considering the entire evidence on

record, I hold that the accident had taken place on account of rash

and negligent driving on the part of the driver of S.T. Bus alone and

deceased Ramakant was not responsible for the accident. Deceased

Ramakant had not contributed the negligence in any manner. I record

the finding to issue No.1 accordingly.

6 So far as the quantum of compensation is concerned,

though deceased Ramakant was a permanent employee, getting fixed

salary, the Tribunal has not made any addition in his income towards

future prospects. Deceased Ramakant was 43 years of age at the

time of his accidental death and as such, 30% addition in his income

901 First Appeal.1274 of 2005.odt

is required to be made. Further, considering the number of

dependents, the Tribunal should have deducted 1/4th of the amount

towards personal and living expenses of deceased Ramakant instead

of 1/3rd. Deceased Ramakant was getting salaried income of

Rs.7,390/- corresponds to Rs.88,680/- per annum. After deducting

1/4th of the amount towards his personal and living expenses, the

annual loss of income comes to Rs.66,510/-. The relevant multiplier

would be 14 and as such, the loss of future income comes to

Rs.9,31,140/- and by making addition of 30% towards future

prospects, the total loss of future income / dependency comes to

Rs.12,10,482/-. So far as the agricultural income is concerned,

deceased Ramakant was not cultivating the land personally and as

admitted by the Claimant that he was serving at Aurangabad and he

was cultivating the land through the servants, the Claimants are not

entitled for any compensation towards loss, if any, from the agriculture

source. Even the Appellants / Claimants have not given any details

as to the loss in the agriculture income due to the lack of supervision

on the part of deceased Ramakant.

7 So far as the compensation awarded under non-pecuniary

heads is concerned, the Tribunal has awarded lump-sum amount of

901 First Appeal.1274 of 2005.odt

Rs.25,000/-. The Appellant / Claimant No.1 is entitled for an amount

of Rs.1,00,000/- towards loss of consortium. The Appellants /

Claimant Nos. 2 to 4 are entitled for an amount of Rs.50,000/- each

towards loss of love and affection and Respondent Nos.3 and 4 are

also entitled for an amount of Rs.50,000/- each towards loss of

shelter. The Claimants are also entitled for an amount of Rs.20,000/-

for funeral expenses and Rs.10,000/- towards loss of estate and

Rs.10,000/- for litigation costs.

8 In view of the above discussion, the break up of

compensation under the various heads, which can be broadly

categorized is as under:

     Sr.                  Particulars of the head                     Amount in
     No                                                                Rupees

1) Towards loss of future income / dependency (7759 X 12 X 14) = 1303512 Rs.13,03,512/-

[The above figure includes 30% addition of income towards future prospects after deducting 1/4th of the amount towards personal and living expenses] (As against Rs.4,10,000/- awarded by Tribunal)

2) Towards loss of consortium Rs.1,00,000/-

3) Towards loss of love and affection to minor Claimant Nos.2 to 4 (Rs.50,000/- each) Rs.1,50,000/-

4) Towards loss of shelter to Respondent Nos.3 & 4 (Rs.50,000/- each) Rs.1,00,000/-

901 First Appeal.1274 of 2005.odt

5) Towards funeral expenses Rs.20,000/-

6) Towards loss of estate Rs.10,000/-

7) Towards litigation costs (as against Rs.25,000/- awarded by Tribunal under the heads of loss of consortium, loss of Rs.10,000/- love and affection to minor Claimants, loss of shelter to Respondent Nos.3 & 4, funeral expenses, loss of estate and litigation costs) Total = Rs.16,93,512/-

9 The Appellants / Claimants are entitled for the total

amount of compensation as worked out hereinbefore. The impugned

judgment and award requires modification. Hence, the following

order:

O R D E R

I. The appeal is hereby allowed with costs.

II. The judgment and award passed by the learned

Chairman of the Motor Accident Claims Tribunal,

Ahmednagar dated 5th August, 2005 in MACP

No.394 of 1997, is hereby modified in the following

manner:

"Opponents 1 and 2 do pay jointly and severally an amount of Rs.16,93,512/-

(Rupees Sixteen Lacs Ninety-Three

901 First Appeal.1274 of 2005.odt

Thousand Five-Hundred and Twelve Only) (inclusive of NFL) with interest at the rate of 9% per annum from 22nd May, 1997 i.e. the date of filing of application till realization of the entire amount."

III. Rest of the judgment and award stands confirmed.

IV. Award be drawn up as per the above modification.

V. If any amount is paid as per the judgment and

award passed by the Tribunal, the same shall be

the part of the award after modification.

VI. On realization of the entire amount, an amount of

Rs.8,00,000/- (Rupees Eight Lacs Only) shall be

kept in FDR in the name of Appellant No.3 /

Claimant No.3 Ketak Ramakant Bhalsing in any

nationalized bank for five years and Rs.1,00,000/-

(Rupees One Lac Only) each shall be paid to

Appellant Nos.2 and 4 / Claimant Nos.2 and 4 i.e.

Ketaki and Ashwini respectively and Appellant No.1

/ Claimant No.1 Ushakiran @ Mirabai Ramakant

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Bhalsing is entitled to withdraw quarterly interest on

the said FDR, if desired.

VII. Out of the balance amount, 75% amount shall be

paid to Appellant No.1 / Claimant No.1 Ushakiran

@ Mirabai Ramakant Bhalsing and 25% remaining

amount shall be paid to Respondent No.4

Prayagbai Kisan Bhalsing.

VIII. The Appellant shall pay the deficit Court fees, if

any, within four weeks from the date of this

judgment.

IX. The appeal is accordingly disposed of.

[ V. K. JADHAV, J. ] ndm