Maharashtra State Road Transport ... vs Smt. Alka Wd/O Vinod Bante & Ors
2017 Latest Caselaw 4632 Bom

1807 FA  269/2006                             1                        Judgment


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


                        FIRST APPEAL NO. 269/2006 




Maharashtra State Road Transport
Corporation Ltd., Nagpur Division,
Tekadi Road, Sitabuldi, Nagpur
Through it's Divisional Controller.                     APPELLANT


                                .....VERSUS.....



1]     Smt. Alka Wd/o Vinod Bante,
       Aged about 40 years, Occu: Household,

2]     Master Raj S/o Vinod Bante, 
       Aged about 17 years (Minor),
       Occu: Student,

3]     Master Tushar S/o Vinod Bante, 
       Aged about 12 years (Minor),
       Occu: Student,

4]     Master Danish S/o Vinod Bante, 
       Aged about 7 years (Minor),

       Nos.2 to 4 being minors through
       their natural guardian mother,
       Smt. Alka Wd/o Vinod Bante
       i.e. appellant no.1.

5]     Yashodabai W/o Laxmanrao Bante,
       Aged about 63 years, Occu: Household,



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 1807 FA  269/2006                             2                         Judgment


6]     Laxman S/o Mangoji Bante,
       Occu: Nil,
       All R/o. Karnalbagh, Near Chand
       Masjid, Nagpur.                                    RESPONDE NTS


Shri R.S. Chapre, counsel for appellant.
Shri S.B. Bangde, counsel for respondents.


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

               DATE     : JULY 18, 2017.



ORAL JUDGMENT :  

This appeal takes an exception to the judgment and the

order passed by the Member, Motor Accident Claims Tribunal,

Nagpur on 13/12/2005 in Claim Petition No.301/2001, thereby

awarding compensation of Rs.8,06,000/- to the respondents-

claimants.

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

Deceased Vinod was working as Conductor with the

appellant - Maharashtra State Road Transport Corporation. On

05/09/2000, after completing his duties, deceased was returning on

his Scooter, bearing no. MFW-8183. At about 1:15 p.m. when he

1807 FA 269/2006 3 Judgment

started proceeding on his Scooter from S.T. Depot premises, the S.T.

Bus bearing no. MH-31/8725 came from opposite direction in a fast

speed and gave dash to his Scooter. As a result, the deceased fell

down and sustained the injuries. He was admitted in the

Government Medical College and Hospital, Nagpur for treatment.

Thereafter, he was shifted to the private hospital. However, he

succumbed to injuries on 21/10/2000 during the treatment. The

accident was reported to the police and police has registered the

offence under section 279, 337 and 304-A of I.P.C. against the Bus

driver.

3] As per the case of respondents, deceased was running

about 40 years of age and was in the employment of M.S.R.T.C. He

had completed 15 years of service and his last salary was Rs.7,800/-

per month. He was the only earning member of the family. On

account of his untimely death, the respondents suffered, not only

mental shock and agony, but also they have lost their only source of

income. Hence they claimed compensation of Rs.13,50,000/- from

the appellant, by filing claim petition before the Tribunal under

section 166 of the Motor Vehicles Act (hereinafter will be referred to

as "Act" for convenience).

 1807 FA  269/2006                                4                          Judgment


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

written statement at Exh.13, admitting the occurrence of the

accident and involvement of the Bus, but denying that the cause of

the accident was the rash and negligent driving of the Bus. It was

submitted that the Bus was driven at moderate and slow speed and

it was the deceased who was in high speed and gave dash to the

Bus. Hence, the accident has occurred due to his negligence and also

coupled with the fact that he was driving the Scooter in the

premises prohibited for vehicles i.e. in the compound of workshop.

It was thus submitted that the appellant is not liable to pay any

amount of compensation to the respondents-claimants.

5] In support of their case, on behalf of the respondents,

respondent no.1, the widow of deceased, Alka has examined herself

and produced various documentary evidence on record, including

the medical bills. She also led the evidence of three witnesses,

namely, Dr. Gautam Darda, Shailesh Jain and Purushottam Tiwari.

As against it, appellant has examined its official, namely, Ram

Nakade, who is claimed to be an eye witness to the accident.

6]              On appreciation of their evidence, learned Tribunal was



 1807 FA  269/2006                                5                          Judgment

pleased to hold that the cause of accident was the rash and

negligent driving of the Bus, and accordingly held appellant liable to

pay the compensation of Rs.8,06,000/- to the respondents.

7] While challenging the impugned judgment of the

Tribunal, submission of learned counsel for appellant is that the Bus

driver was taking the Bus from ramp to the parking place and

therefore, Bus cannot be, at the relevant time in a high speed.

Conversely it was the deceased, who was driving his Scooter in a

prohibited area. Therefore, as the Bus driver has not committed the

rash and negligent act, appellant is not liable for paying the

compensation to the respondents.

8] Per contra, learned counsel for respondents has

supported the finding of the Tribunal by pointing out that Bus driver

has not entered into witness box to prove negligence on the part of

the deceased and the police had, after carrying out requisite inquiry

and investigation, filed F.I.R. and charge sheet against Bus driver,

thereby proving that the cause of the accident was his rash and

negligent driving.

 1807 FA  269/2006                                6                          Judgment


9]              Hence the only issue which arises for my consideration

is whether the cause of accident is proved to be the rash and

negligent driving of the S.T. Bus?

10] In this case, admittedly, respondent no.1, the widow of

the deceased, was not an eye witness to the accident. The

respondents had also not examined any other eye witness to the

manner in which the accident has occurred. Their main reliance is

on the copy of F.I.R. (Exh.22) and spot panchnama (Exh.23) to

prove their case that the cause of accident was the rash and

negligent driving of the Bus driver. To controvert this evidence,

appellant has examined its official, namely, Ram Nakade. However,

his evidence shows that he was not an eye witness to the actual

accident. He has deposed that at the time of accident, he was sitting

in the Cabin of the Depot Manager. After hearing the sound of the

dash, he saw through the glass of the Cabin that one Scooterist has

fallen down in front of one Bus. Thereafter he rushed there to help

the Scooterist. He has not stated anything about the manner in

which the accident has taken place. Moreover, it is pertinent to note

that, in his cross-examination he has admitted that he had not

noticed as to in which direction the Bus was proceeding and in

1807 FA 269/2006 7 Judgment

which direction the deceased was coming on the Scooter. Further

his statement was also not recorded by the police in the course of

investigation. In such situation, as for the first time he is coming

before the Tribunal to give evidence, that too, at the instance of his

superior officers, the Tribunal has rightly refused to place reliance

on his testimony to hold that cause of the accident was the rash and

negligent driving of the deceased.

11] As regards his evidence that spot of accident was in the

prohibited premises of the workshop of the appellant, in his cross-

examination he has admitted that the two wheelers of the staff are

parked in the open place and one has to take his two wheeler to the

said parking place for parking and thereafter, from the parking place

through the Depot premises as there was no separate way for

entering into the parking place. In such situation, it cannot be said

that deceased, who after completion of his duty, was returning on

his Scooter to his home, had committed the breach of any rules and

regulations by entering into the area of workshop to take out his

Scooter.

12]             The material evidence in the case would have been that



 1807 FA  269/2006                                  8                          Judgment

of the Bus driver himself to prove that the deceased had all of a

sudden come on his Scooter in front of the Bus and dashed himself.

However, the Bus driver has not entered into the witness box nor

led evidence of other eye witnesses. As it was an area which was not

meant for the other outsiders, the respondents were in fact not in a

position to produce the evidence of any independent eye witness.

Hence sans any evidence produced by the appellant herein, it has to

be held that the sole cause of accident, as transpired in the

investigation by the police, was the rash and negligent driving of the

Bus driver. Merely because he cannot be in fast speed as he has just

taken out the Bus from the ramp in order to park it, does not mean

that he was careful and cautious in driving the Bus. Negligence or

rashness does not depend merely on the speed of the vehicle, but

they depend on several other factors also, like the driver of the

vehicles not taking note of the approaching vehicle or the condition

of the road or the place where he was driving the vehicle. In the

instant case, it was necessary for the Bus driver to take note of the

Scooterist, who was coming from the parking place and in that

situation, if the dash has taken place, then the cause of the accident

is required to be held as that of the rash and negligent driving of the

1807 FA 269/2006 9 Judgment

Bus driver. The Tribunal has rightly rejected the case of the

appellant that it can be a case of contributory negligence, as there is

absolute no iota of evidence to show that the deceased was in any

way responsible for the said accident by driving his Scooter in a rash

and negligent manner.

13] Once it is held that appellant is liable to pay

compensation to the respondents, who are legal heirs of the

deceased, the next question arising for consideration is the quantum

of compensation. It is submitted that at the time of accident

deceased was working as Conductor with the appellant and his net

salary was Rs.4,800/- per month. Therefore, his annual income

comes to Rs.57,600/-. As he was married, 1/3rd of the said amount

is required to be deducted towards his personal expenses, and hence

annual dependency of the respondents comes to Rs.38,400/-.

14] The Tribunal has applied the multiplier of '15'.

However, if one considers the para no.21 of the judgment in Smt.

Sarla Verma and others -Vs- Delhi Transport Corporation and

another, AIR 2009 SUPREME COURT 3104, an appropriate

multiplier for the deceased in between the age group of 40 to 45

1807 FA 269/2006 10 Judgment

years is '14'. In this case, admittedly as the deceased was above 40

years of age, as observed by the Tribunal itself, appropriate

multiplier would be '14', and hence financial dependency of the

respondents comes to Rs.5,37,600/-.

15] The Tribunal has also awarded amount of Rs.80,000/-

towards medicines and laboratory charges and Rs.1,13,000/-

towards hospital charges, as indoor patient. The medical bills to that

effect produced on record, and therefore, respondents become

entitle to get that amount also.

16] Though as regards amount of Rs.10,000/- awarded by

the Tribunal towards diet and conveyance charges, the bills are not

produced on record, considering the fact that the deceased was

admitted in the hospital and was under treatment for about 1 and ½

months, those charges being reasonable, the Tribunal has rightly

awarded the same.

17] The Tribunal has awarded only Rs.2,000/- towards

funeral expenses, which needs to be enhanced to Rs.25,000/- in

view of the recent decision of the Hon'ble Apex Court in the case of

1807 FA 269/2006 11 Judgment

Rajesh -Vs- Rajbir Singh, 2013 (9) SUPREME COURT CASES 54.

Similarly the amount of Rs.5,000/- granted by the Tribunal towards

the loss of consortium also needs to be enhanced to Rs.1,00,000/- to

respondent no.1, the widow. So also amount of Rs.20,000/- granted

by the Tribunal towards love and affection and loss of estate for the

children and the parents of the deceased, also needs to be enhanced

to Rs.50,000/-. Thus, the total amount comes to Rs.9,15,600/-.

18] Thus the appeal stands dismissed. However the

impugned judgment and order of the Tribunal, therefore, is

modified to the extent that the appellant shall pay the compensation

of Rs.9,15,600/- to the respondents-claimants with interest at the

rate of 7% per annum from the date of the petition till its

realisation.

19] Rests of the judgment and order of the Tribunal, stands

confirmed.

JUDGE

Yenurkar