Seth Construction Company, ... vs Shri Ramchandra S/O Purnachandra ...
2017 Latest Caselaw 4394 Bom

1207 FA 1010/2014 & XOB  35/2015              1                        Judgment


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



                       FIRST APPEAL NO. 1010/2014 



Seth Construction Company,
Through Shri Rajkumar s/o Bhurkan
Dongre, aged about 37 years,
Occu: Contractor,
Bairamji Road, in front of Poonam
Chambers, Nagpur-24.                                    APPELLANT



                                .....VERSUS.....



1]     Shri Ramchandra s/o Purnachandra Kale,
       Aged 60 years, Occu: Retired,

2]     Sau. Shashikala w/o Ramchandra Kale,
       Aged 52 years, Occu: Household,

3]     Shri Praful s/o Ramchandra Kale,
       Aged 24 years, 

       All R/o. Plot No.15, Agne Layout,
       Nagpur.

4]     Nagpur Municipal Corporation,
       Through its Municipal Commissioner,
       Civil Lines, Nagpur.                              RESPONDE NTS
                                                                     


                                    WITH




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 1207 FA 1010/2014 & XOB  35/2015              2                        Judgment


                      CROSS OBJECTION NO. 35/2015


Seth Construction Company,
Through its Proprietor Shri Rajkumar
S/o Bhurkan Dongre, aged about 39 years,
Occu: Contractor, having its Office
at Bairamji Road, in front of Poonam
Chambers, Nagpur-24.                                    APPELLANT

                                .....VERSUS.....


1]     Shri Ramchandra S/o Purnachandra Kale,
       Aged about 69 years, Occu: Retired,

2]     Sau. Shashikala W/o Ramchandra Kale,
       Aged 61 years, Occu: Household,

3]     Shri Praful S/o Ramchandra Kale,
       Aged 34 years, 
       All R/o. Plot No.15, Agne Layout,
       Nagpur.

4]     Nagpur Municipal Corporation,
       Through its Municipal Commissioner,
       Civil Lines, Nagpur.                              RESPONDE NTS
                                                                     

CROSS-OBJECTORS

1]     Shri Ramchandra s/o Purnachandra Kale,
       Aged about 69 years, Occu: Retired,

2]     Sau. Shashikala w/o Ramchandra Kale,
       Aged 61 years, Occu: Household,

3]     Shri Praful s/o Ramchandra Kale,
       Aged 34 years, 
       All R/o. Plot No.15, Agne Layout,
       Nagpur.


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 1207 FA 1010/2014 & XOB  35/2015               3                         Judgment




Shri R.O. Chabra, counsel for appellant.
Shri S.B. Ninawe, counsel for respondent nos.1 to 3/cross-objectors.
Shri Tariq Zaheer, counsel for respondent no.4.


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

               DATE     : JULY 12, 2017.


ORAL JUDGMENT :  

This appeal raises an interesting question of law as to

whether the concrete mixture machine can be called as "motor

vehicle" within the meaning of section 2(28) of the Motor Vehicles

Act, 1988 (hereinafter will be referred to as "Act" for convenience).

2] Appeal is directed against the judgment and award

passed on 27/01/2014 by M.A.C.T. Nagpur in Claim Petition No.

896/2005, thereby directing the appellant, who is the owner of the

concrete mixture machine to pay the compensation of Rs.6,27,000/-

to the respondent nos.1 and 2, who are the parents of deceased

Harish, with interest at the rate of 7.5% per annum from the date of

the order till its realization.

 1207 FA 1010/2014 & XOB  35/2015                4                          Judgment


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

Respondent nos.1 and 2 are the parents and respondent

no.3 is the brother of the deceased Harish. On 12/12/2004 at about

11:30 p.m., Harish was proceeding on his motorcycle Bajaj Boxer

bearing no. MH-31-BJ-7206 from Sitabuldi to his house. Near the

turning of Khamla Basti on Khamla Road, his motorcycle slipped on

the road while taking turn because of the debris material like

concrete, mud and other materials lying on the road, which was on

account of excavating of the earth for the construction of the road.

The said work was being carried out by the appellant, who was

engaged by the respondent no.4, Nagpur Municipal Corporation as

a Contractor. Deceased, on account of slipping from the motorcycle,

fell down on the concrete mixture machine, which was kept on the

road in a negligent manner, without any danger sign, or without

any barricades or indicators. As a result of the accident, Harish

sustained injuries to his head. Though he was taken to the Medical

College and Hospital at Nagpur for treatment, there, he was

declared as dead on admission. Respondent nos.1 and 2, therefore,

had lost their son in his untimely death on account of negligent act

on the part said construction company of keeping the concrete

1207 FA 1010/2014 & XOB 35/2015 5 Judgment

mixture machine as well as materials unattended lying on the road

without any signal to show the presence of said machine at the spot

and further to show that the work was in progress at the site.

4] Respondents-claimants, therefore, preferred the

petition under section 166 of the Act against the Appellant-

construction company and also the respondent no.4 - Nagpur

Municipal Corporation for compensation. According to case of the

claimants, deceased was earning Rs.10,000/- per month. He was

studying in Second Year, Civil Engineering Diploma Course at Local

Polytechnic College and was also working as a part time with S.L.

Jinturkar and Company and with R.S. Dadhe and Associates. He

had bright future and prospects. However, on account of his

untimely death, as they had lost their source of income and also

suffered loss of his love and affection. Hence they claimed the

compensation of Rs.10,00,000/- from appellant and respondent

no.4, along with interest at the rate of 18% per annum.

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

written statement at Exh.15, contending inter alia that petition itself

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was not maintainable as Tribunal had no jurisdiction to try the

same, considering that the concrete mixture machine cannot be

called as a "motor vehicle" within the meaning of Section 2(28) of

the Act. Further it was contended that the cause of the accident was

the rash and negligent driving of the deceased himself. The very fact

that while taking right turn, he slipped from his motorcycle and

dashed on the stationary concrete mixture machine, is sufficient to

indicate that deceased himself was responsible, and hence liability

on the part of appellant or respondent no.4 of paying compensation,

does not arise. Further, it was submitted that the owner and the

insurer of motorcycle which deceased was driving, being not joined

in the instant case, on this count also, the petition was vitiated for

non-joinder of necessary parties. It was contended that the amount

of compensation claimed by the respondents-claimants was

exorbitant and the appellant is not liable to pay the same.

6] Respondent no.4 - Nagpur Municipal Corporation also

resisted the petition vide it's written statement at Exh.18 by

contending that the alleged concrete mixture machine being owned

by the present appellant, Nagpur Municipal Corporation cannot be

1207 FA 1010/2014 & XOB 35/2015 7 Judgment

held liable for any act of negligence committed by the appellant.

Respondent no.4, therefore, prayed for dismissal of the petition as

against it.

7] On these rival pleadings of the parties, learned

Tribunal framed the necessary issue for its consideration at Exh.25

and holding that the concrete mixture machine is a motor vehicle

within the meaning of section 2(28) of the Act, allowed the claim

petition, further holding that the sole cause of accident was the

negligence on the part of the present appellant in not taking proper

care and caution of removing the material which was lying on the

road and also keeping the concrete mixture machine unattended

and without any barricades or indicators. The Tribunal, however

exonerated the respondent no.4-Nagpur Municipal Corporation

from paying the amount of compensation on the ground that the

owner of the machine can alone be held liable to pay the amount of

compensation.

8] This judgment and order of the Tribunal is challenged

in this appeal by learned counsel for appellant, mainly on three

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points, firstly, that the concrete mixture machine can, by no stretch

of imagination, be called as a motor vehicle within the meaning of

section 2(28) of the Act, as it is not meant to be used or adapted for

use on the road; secondly, that some negligence was definitely on

the part of the deceased, as the motorcycle driven by him, dashed

on the stationary concrete mixture machine. The third contention

raised is about the amount of compensation awarded by the

Tribunal being on higher side and respondent no.4 - Nagpur

Municipal Corporation being totally absolved from the liability.

9] The original claimants, who are respondent nos.1 to 3

in this appeal, have also challenged the impugned judgment of the

Tribunal by filing cross-objection as regards the quantum of

compensation. It is submitted that learned Tribunal has deducted

50% of the income of the deceased towards his personal expenses,

instead of deducting only 1/3rd of the said amount. It is also

submitted that the Tribunal has committed an error in awarding

interest from the date of order and not from the date of petition.

The grievance is also raised about the rate of interest at 7.5% per

annum as awarded by the Tribunal, which according to learned

1207 FA 1010/2014 & XOB 35/2015 9 Judgment

counsel for respondents, has to be 9% per annum, in view of the

various decisions of the Hon'ble Supreme Court.

10] Learned counsel for respondent no.4 - Nagpur

Municipal Corporation, has supported the impugned judgment so

far as it exonerates Nagpur Municipal Corporation from liability to

compensate the claimants. However, learned counsel for respondent

no.4 has also assailed the finding of the Tribunal holding the

concrete mixture machine as 'motor vehicle' within the meaning of

section 2(28) of the Act, being not legal and correct as the said

machine was not meant for use on the road.

11] In view of these rival submissions advanced before me

by learned counsel for both the parties, the first and foremost issue

which necessarily arise for my determination in this appeal, is

whether the concrete mixture machine can be called as 'motor

vehicle' within the meaning of section 2(28) of the Act? The finding

on this issue is relevant even for deciding maintainability of the

petition filed by respondents-claimants before the Tribunal. Only if

it is found that the cause of accident was on account of the use of

1207 FA 1010/2014 & XOB 35/2015 10 Judgment

motor vehicle accident, the Tribunal can have the jurisdiction under

the Act.

12] To appreciate the submissions on this point, it would be

necessary to refer to the definition of 'motor vehicle' contained in

section 2(28) of the Act. It reads as follows:-

"Sec.2(28). - 'motor vehicle' or 'vehicle' means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer, but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty- five cubic centimetres."

13] Thus, as per this definition, vehicle means any

mechanically propelled vehicle adapted for use upon roads. It is not

material whether the power of propulsion is transmitted thereto

from an external or internal source. The definition is though

inclusive, it specifically provides that motor vehicle does not include

a vehicle running upon fixed rails or a vehicle of a special type

adapted for use only in a factory or in any other enclosed premises

or a vehicle having less than four wheels fitted with engine capacity

1207 FA 1010/2014 & XOB 35/2015 11 Judgment

of not exceeding twenty-five cubic centimetres. Thus, the definition

itself provides for an exception by excluding certain types of

vehicles from the definition of the motor vehicle. The essential test

to identify whether a particular vehicle is a motor vehicle within

this definition is whether such vehicle is adapted for use upon road.

14] This definition of 'motor vehicle' in section 2(28) of the

Act came for consideration and interpretation before various courts,

including this court and also the Hon'ble Supreme Court. The

Tribunal has in its judgment also relied upon the decision of the

Karnataka High Court in the case of Oriental Insurance Co. Ltd.

-Vs- D. Laxman and others, 2007(2) T.A.C. 141 (Kant.), wherein it

was observed that, section 2(28) of the Act covers two types of

vehicles, one is a motor vehicle and the other is a vehicle. The

motor vehicle is defined to include all vehicles propelled by any

power other than muscular power. Whereas the word 'vehicle'

includes even bicycles, tricycles and auto-motor car and every

wheeled vehicle that is used or capable of being used on a public

street. In para no.15 of its judgment, it was further held that, "The

actual use of a vehicle for a particular purpose is no criteria to decide

1207 FA 1010/2014 & XOB 35/2015 12 Judgment

whether a vehicle is a motor vehicle". It was further held that the

definition of the word 'motor vehicle' is inclusive and it includes

within the meaning of the expression "Motor Vehicles or Vehicles",

chassis to which a body has not been attached and a trailer. As

regards the meaning of the word "use" it was held that the said

word is in contradiction to the word "drive". In this decision, the

reliance was placed on the judgment of the Hon'ble Apex Court in

the case M/s. Natwar Parikh and Co. Ltd. -Vs- State of

Karnataka, wherein it was held that, "The words 'motor vehicle'

have to be read in the broadest possible sense keeping in mind, that

the Act has been enacted in order to keep control over motor vehicles,

transport vehicles etc." Accordingly, it was held that the Tractor falls

within the expression of 'motor vehicles'.

15] In this appeal, learned counsel for respondents-

claimants has also relied upon the judgment of the Hon'ble Apex

Court in the case of Chairman, Rajasthan State Road Transport

Corporation and another -Vs- Santosh and others, 2013(6)

Mh.L.J. 97. The issue raised before the Hon'ble Apex Court in this

case was, whether 'Jugaad' is covered in the definition of the motor

1207 FA 1010/2014 & XOB 35/2015 13 Judgment

vehicle under section 2(28) of the Act? While deciding this issue,

the Hon'ble Apex Court has considered in detail its earlier decisions

and also the definition of the motor vehicle as used in section 2(28)

of the Act and was pleased to hold that, "Any vehicle which is

mechanically propelled and adapted for use upon roads and does not

fall within the exceptions provided therein, is a motor vehicle within

the meaning of section 2(28) of the Act".

16] The Hon'ble Apex Court has in this decision also

reproduced its observations in the abovesaid decision of M/s.

Natwar Parikh and Co. Ltd. -Vs- State of Karnataka, AIR 2005

(SC) 3428 and held that, "As the words 'motor vehicle' have been

defined in the comprehensive sense by the legislature, we have to read

those words in the broadest possible sense keeping in mind that the Act

has been enacted in order to keep control over motor vehicles,

transport vehicles etc.". It was further held that, "A combined reading

of the definitions of motor vehicle under section 2(28) of the Act shows

that the definition of 'motor vehicle' includes any mechanically

propelled vehicle apt for use upon roads irrespective of the source of

power and it includes a trailer". It was further held that, "Therefore,

1207 FA 1010/2014 & XOB 35/2015 14 Judgment

even though a trailer is drawn by a motor vehicle, it by itself being a

motor vehicle the tractor- trailer would constitute a 'goods carriage'

under section 2(14) and consequently, a 'transport vehicle' under

section 2(47)".

17] In para no.22 of its judgment, the Hon'ble Apex Court

was further pleased to observe that, "Tractor is a self propelled

vehicle for hauling other vehicles, even if it is used for different

purposes. It is a self propelled vehicle capable of pulling alone as

defined under the definition of motor vehicles. It does not fall within

any of the exclusions as defined under the Act. Thus, it is a motor

vehicle in terms of the definition under section 2(28) of the Act". The

argument that as the tractor is used only for agricultural purposes,

and therefore it is not a motor vehicle under the Act, was rejected.

18] As regards the question whether a Jugaad is a motor

vehicle, it was held that, as it was mechanically propelled, it is

covered in the definition of motor vehicle under section 2(28) of the

Act. According to Hon'ble Apex Court, ultimately the question as to

whether a particular vehicle can be defined as motor vehicle in

terms of section 2(28) of the Act, is to be determined on the facts of

1207 FA 1010/2014 & XOB 35/2015 15 Judgment

each case taking into consideration the use of the vehicle and its

suitability for being used upon the road. Once it is found to be

suitable for being used on the road, it is immaterial whether it runs

on the public road or private road, for the reason, that actual user

for a particular purpose, is no criteria to decide the same.

19] It was further held that, "Definition of motor vehicle

takes within its ambit, a dumpter and a tractor. A tractor which is

used basically for agricultural purpose and a dumper which is used in

the factory premises, can suitably be adapted for being used on the

road, therefore, they will meet the requirement of definition of motor

vehicle under section 2(28) of the Act. The word "only" used in section

2(28) of the Act clearly shows that the exemption is confined only to

those kinds of vehicles which are exclusively being used in a factory or

in any closed premises. Thus, a vehicle which is not adapted for use

upon the road, is only to be excluded".

20] In this case, learned counsel for respondents-claimants

has also relied upon the judgment of this court in the case of

Krishnaji -Vs- Umesh Rambhau Shrirame and others, 2016 ACJ

1587, wherein a labourer who was engaged in the work of

1207 FA 1010/2014 & XOB 35/2015 16 Judgment

harvesting Soyabean had his right hand caught in the thresher

which resulted into amputation of the hand. He had filed claim

petition under section 163-A of the Act, seeking compensation for

the permanent disability. The Tribunal has allowed his application

and awarded the compensation. In the appeal, contention raised

was that thresher is not a motor vehicle and hence no compensation

could be granted under the provisions of the Act. In this judgment,

while taking note of the provisions of section 2(28) of the Act, read

along with section 2(44) of the Act it was held by learned Single

Judge of this court that, a thresher to which the power of

propulsion is transmitted from an external source, like, a tractor,

would be a motor vehicle for the purpose of the Act, and

accordingly the judgment of the Tribunal awarding compensation,

was confirmed, dismissing the appeal.

21] Coming to the facts of the present case, therefore, if the

test laid down by the Hon'ble Apex Court in the case of Chairman,

Rajasthan State Road Transport Corporation (supra) is to be

applied, then undisputedly the concrete mixture machine does not

fall within any of the exclusions provided in the definition of section

2(28) of the Act, as the said exclusion is confined only to those

1207 FA 1010/2014 & XOB 35/2015 17 Judgment

kinds of vehicle which are exclusively being used in a factory or in

any closed premises. The concrete mixture machine is admittedly

having four wheels and moreover it is not exclusively being used in

a factory or in any closed premises. As it is used for the construction

activity and the construction may be at any closed site or on the

road. The concrete mixture machine is adapted for being used upon

the road as it has to be taken from place to place wherever

construction activity is being carried out. It is also not disputed that

the said machine is suitable to be adapted for being used on the

road. In such circumstances, as held in the abovesaid authorities, it

is totally immaterial for which purpose it is being used, whether for

construction purpose or otherwise. If the thresher machine, which is

used for agricultural purpose, can be considered as the motor

vehicle, being mechanically propelled and similarly the tractor

which is being used for agricultural purpose is also considered as

motor vehicle being mechanically propelled whether from external

or internal source, the concrete mixture machine also becomes

qualified to be a motor vehicle. From the mere use of the concrete

mixture machine for the purpose of construction, it cannot be

excluded from the definition of motor vehicle given in section 2(28)

1207 FA 1010/2014 & XOB 35/2015 18 Judgment

of the Act. Ultimately whether a particular machine or vehicle can

be defined as motor vehicle in terms of section 2(28) of the Act is to

be determined on the facts of each case, taking into consideration

the use of the vehicle and its suitability for being used upon the

road. In the instant case, admittedly the concrete mixture machine

was found on the road. The contents of the spot panchnama and

evidence on record are sufficient to that effect. Therefore, once it is

found to be suitable for being used on the road, then it is

immaterial whether it runs on the public road or private road and

what was its actual use, as it cannot be a criteria to decide it is a

motor vehicle or not. Therefore, as observed by the Hon'ble Apex

Court in the said authority, if a tractor which is specifically used for

agricultural purpose and the dumper which is used in the factory

premises cam be suitably adapted for use on the road, and therefore

they are considered as meeting the requirements of the definition of

motor vehicle under section 2(28) of the Act, applying the same

analogy, the concrete mixture machine cannot be excluded from the

definition of motor vehicle. Especially, when the Hon'ble Apex Court

has said that Motor Vehicles Act being a beneficial piece of

legislation, we have to read the words "motor vehicle" in the

1207 FA 1010/2014 & XOB 35/2015 19 Judgment

broadest possible sense. Hence, whether the concrete mixture

machine is a self propelled vehicle, capable of pulling alone or

whether it was carried on other vehicle, it does fall within the

definition of section 2(28) of the Act. The finding of the Tribunal,

therefore, on this point needs to be confirmed.

22] Hence as regards the issue of jurisdiction of the

Tribunal established under the Motor Vehicles Act, therefore, it has

to be held that Tribunal has such jurisdiction. Even otherwise also,

the Tribunal established under the Act gets its jurisdiction under

section 165 of the Act, which states that the Tribunal has

jurisdiction for adjudicating the claims for compensation in respect

of accidents involving the death of, or bodily injury to, persons

arising out of the use of motor vehicles, or damages to any property

of a third party so arising, or both. Therefore, once the use of the

motor vehicle is proved in the accident, then the Tribunal gets

jurisdiction. In the instant case, admittedly the accident has

occurred on account of the use of the motorcycle of the deceased

also, and therefore, as the use of motorcycle is proved in the

accident, it has to be held that claim petition had definitely

jurisdiction to decide the claim petition arising out of the death of

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the rider of motorcycle.

23] Once it is held that concrete mixture machine is a

motor vehicle within the meaning of section 2(28) of the Act, then

the next question arising for consideration is about the negligence

on the part of the appellant, which was admittedly owner of the

concrete mixture machine. As per the facts and evidence on record,

deceased was riding on his motorcycle at about 11:30 p.m. in the

night and while taking right turn at Khamla Square, his motorcycle

slipped due to debris on the road, like, concrete, sand, mud etc. and

hence deceased fell on the concrete mixture machine which was

kept there unattended. The F.I.R. which is produced on record at

Exh.27-A along with spot panchnama (Exh.28) prove that the cause

of the accident was the slipping of the motorcycle of the deceased

and it was on account of this debris material like concrete, earth,

mud which was lying at the spot. The spot panchnama also shows

that the concrete mixture machine was lying there on the road

without giving any indicator, red light or even barricades displaying

the sign of danger. It was also not enclosed with some stones kept

surrounding thereto. Therefore, it is clear that the concrete mixture

machine was kept negligently without taking proper precaution to

1207 FA 1010/2014 & XOB 35/2015 21 Judgment

ensure that no one falls on it or the passers-by take note of it. The

minimum requirement of caution was at least to switch on its

indicators or keep some red light or to encircle that machine with

stones or tin sheets. However, no such precaution appears to be

taken. Coupled with the fact that the debris which was created on

account of excavation work of the road and use of that machine was

also not cleared from the road. It was the only cause which has

resulted into the deceased slipping from his motorcycle, falling on

the concrete mixture machine and sustaining head injury. No other

inference can be drawn from the facts, which are produced on

record.

24] It is pertinent to note that appellant has not examined

either the attendant of the said concrete machine or any other

witness to show that the proper precautions were taken. On the

contrary, it is the respondents-claimants who have examined an eye

witness to the accident, viz. Shri Ramesh Gopal to prove that such

debris material like sand, concrete and other articles were lying on

the road adjoining to the concrete mixture machine and no lights

were put ON on the concrete mixture machine, nor any danger

signs were displayed on the spot. Appellant has not even cross-

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examine the said witness, and thus, his evidence has remained

uncontroverted and unchallenged on record and it clearly

establishes that the cause of the accident was the negligent act on

the part of the appellant in keeping such concrete mixture machine

unattended and without displaying the indicators and keeping the

debris material lying on the road itself. Therefore, there is

absolutely no case of even contributory negligence made out by the

appellant so as to even reduce the liability, the far remain, to

exempt the appellant from liability to compensate the respondents-

claimants.

25] As to the judgment of Surinder Kumar Arora and

another -Vs- Dr. Manoj Bisla and others, AIR 2012 SUPREME

COURT, 1918, relied upon by learned counsel for appellant, the

facts of the said case are totally different from the facts of the

present case as in that case no cogent evidence was adduced by the

claimants to prove that cause of accident was the rash and negligent

driving of the vehicle on which deceased was traveling. Hence, it

was held that the parents of the deceased cannot be held entitled

for compensation under section 166 of the Motor Vehicles Act. As

against it, in this case, such negligence is proved on record.

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26]             Learned counsel for appellant has then placed reliance 

on the judgment of Hon'ble Apex Court in the case of A. Shridhar

-Vs- United India Insurance Co. Ltd. and another, AIR 2011

SUPREME COURT 3833. However, facts of the said case disclose

that the sole cause of accident was found therein to be the Oil Spill

on the road. Hence it was held that insurance company of the

motorcycle on which injured was riding cannot be liable under

section 166 of the Motor Vehicles Act. Here in the case it is proved

that the sole cause of the accident was the negligence on the part of

appellant, the owner of the concrete mixture machine in not

removing the debris from the road and keeping the machine

unattended. Hence, this judgment cannot be made applicable to the

facts of this case.

27] Now coming to the submission advanced by learned

counsel for appellant that respondent no.4 - Nagpur Municipal

Corporation should not have been exempted from the liability by

the Tribunal. It is submitted that the work of construction and

widening of the road was carried on behalf of Nagpur Municipal

Corporation. It was the Nagpur Municipal Corporation which has

engaged the appellant to do so and hence Nagpur Municipal

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Corporation was the principal whereas appellant was merely an

agent, and hence Nagpur Municipal Corporation was also required

to be held liable to compensate the respondents-claimants or at

least appellant may be permitted to recover the amount of

compensation from the Nagpur Municipal Corporation.

28] However, this submission cannot be accepted in view of

the undisputed position that appellant is the owner of the concrete

mixture machine and as per section 147 of the Act, it is the owner

who is liable to compensate the claimants. Even the liability of

insurance company, if any motor vehicle is insured with it, is only

joint and several, but the principal liability is always on the owner

of the vehicle. Hence, Tribunal, in this respect, has rightly held that

appellant is alone responsible and liable to compensate the

claimants.

29] This brings me to the quantum of compensation. The

evidence of claimant no.1 shows that his son was studying in the

Second Year of Civil Engineering and at the same time he was also

working as Building Supervisor and Draftsman and he was earning

Rs.10,000/- per month.

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30]             The   respondents-claimants   have   also   examined   one 

Sudhir Jinturkar, who was registered government auctioner and

doing the work of dismantling of the buildings. According to his

evidence, deceased Harish was working with him as a Supervisor

during the period 2003-04 and he was paying deceased Rs.250/-

per day as remuneration. He has proved on record the certificate to

that effect vide Exh.28. His evidence has remained unchallenged on

record.

31] The respondents-claimants have also examined witness

no.3 Rajesh Dadhe, who was working as Consulting Engineer and

running a firm in the name of "R.S. Dadhe and Associates".

According to him, deceased was working in his office part time as

Draftsman. Deceased has worked with him from 10/05/2004 till his

death on 12/12/2004. He was paying deceased Rs.3,000/- per

month. He has also produced on record the certificate to that effect

at Exh.32. His evidence has also remained unchallenged on record.

32]             Thus,   in   my   considered   opinion,   the   Tribunal   has 





 1207 FA 1010/2014 & XOB  35/2015                26                         Judgment

rightly held that the income of the deceased from both these sources

comes to Rs.6,000/- per month. As admittedly deceased was

unmarried, Tribunal has rightly deducted 50% of the said amount

towards his personal expenses, in view of the judgment of the

Hon'ble Apex Court in the case of Sarla Verma -Vs- DTC, (2009) 6

SCC 121. The Tribunal has then applied the multiplier of '17'

considering the age of the deceased as 28 years. However, having

regard to the fact that at the time of accident, deceased was

unmarried and claimants were his parents, the age of the parents

which is on higher side, needs to be considered. At the time of filing

of the petition, the age of the father was 60 years and the age of

mother was 52 years. Therefore the appropriate multiplier would be

'8'.

33] The Tribunal has also not considered additional income

towards the future prospect of the deceased. Having regard to the

age of the deceased at the time of accident, that of 28 years, 30% of

additional income comes to Rs.900/- which needs to be added

towards his future prospects. Thus, multiplicand comes to Rs.3000/-

+ Rs.900/- = Rs.3,900/-. If it is multiplied by 12 x 8, it comes to

Rs.3,74,400/- towards financial loss.

 1207 FA 1010/2014 & XOB  35/2015                 27                         Judgment




34]             The   claimants-respondent   nos.1   and   2   being   the 

parents of the deceased, are also entitled for loss of love and

affection and loss of estate. The amount awarded by the Tribunal

towards this head is Rs.10,000/-. Considering the judgment of the

Hon'ble Apex Court in the case of Rajesh -Vs- Rajbir Singh,

2013 (9) SCC 54, it needs to be enhanced to Rs.50,000/-. Similarly,

towards funeral expenses, the Tribunal has awarded Rs.5,000/-

only, which amount needs to be enhanced to Rs.25,000/-. Thus, the

total amount of compensation comes to Rs.4,49,400/-, inclusive of

NFL amount of Rs.50,000/-.

35] As regards the interest, the Tribunal has awarded the

same from the date of order and not from the date of petition. The

reason given by the Tribunal is that petition has been filed in the

year 2005 on 25/08/2005, whereas the evidence is closed by the

petitioners on 11/02/2013. Hence, the Tribunal has held that the

matter has been protracted by the petitioners-claimants and hence

the claimants were held entitled to interest from the date of order.

However, daily order sheet which is part of the record and

1207 FA 1010/2014 & XOB 35/2015 28 Judgment

proceeding of the case, does not support the observation made by

the Tribunal, that the matter was dragged by the petitioners-

claimants. The Roznama clearly reflects that on more than 90% of

times, the claimants and their counsel were present, but on one

count or other, the matter could not be reached. Hence, if the delay

is on account of the other reasons, especially in the present case, it

shows that all along the appellant and Nagpur Municipal

Corporation remained absent even at the time of recording of

evidence of witnesses, the claimants cannot be penalized, by

depriving them from the interest which was legally and reasonably

due to them. This part of the impugned order of the Tribunal,

therefore, needs to be modified and interest needs to be awarded

from the date of petition.

36] As regards the rate of interest, the Tribunal has

awarded interest at the rate of 7.5% per annum. Learned counsel

for the claimants has relied upon the judgment of the Hon'ble Apex

Court in the case of Asha Verman and others -Vs- Maharaj Singh

and others, 2015 ACJ 1286, wherein relying on its earlier

judgment in the case of Municipal Corporation of Delhi -Vs-

1207 FA 1010/2014 & XOB 35/2015 29 Judgment

Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC), the

Hon'ble Apex Court has awarded the interest at the rate of 9% per

annum on the compensation amount.

37] Per contra, learned counsel for appellant has submitted

that the interest at the rate of 6.6% per annum would be just and

reasonable, considering that appellant herein is not an insurance

company but a small time construction company doing petty

contracts.

38] Having regard to the submissions advanced by learned

counsel for appellant and in view of the particular and peculiar facts

of this case, in my view it would be just and proper to maintain the

same rate of interest which is awarded by the Tribunal i.e. 7.5% per

annum from the date of petition.

39] The up shot of the above discussion is that appeal and

cross-objection needs to be allowed and are allowed partly to the

extent of modifying the quantum of compensation. The

respondents-claimants are entitled to get the compensation of

1207 FA 1010/2014 & XOB 35/2015 30 Judgment

Rs.4,49,400/- with interest at the rate of 7.5% per annum from the

date of petition till its realisation from the appellant.

40] Appeal and Cross-Objection are disposed of in above

terms, with no order as to costs.

JUDGE

Yenurkar