Bombay High Court
Smt. Shobha Wd/O Shatrughan Umale ... vs Vitthal S/O Viyanand Mohite & Ors on 18 July, 2017
Bench: Dr. Shalini Phansalkar-Joshi
1807 FA 282/2006 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
FIRST APPEAL NO. 282/2006
1] Smt. Shobha Wd/o Shatrughan Umale,
Aged 40 years, Occu: Household,
2] Siddheshwar S/o Shatrughan Umale,
Aged 20 years, Occu: Student,
3] Ku. Jaya D/o Shatrughan Umale,
Aged 16 years, Occu: Student,
4] Ku. Priya D/o Shatrughan Umale,
Aged 14 years, Occu: Student,
5] Rajeshwar S/o Shatrughan Umale,
Aged 12 years, Occu: Student,
The claimants 2 to 5 are minors
through natural guardian Mother
claimant no.1.
All R/o. Telhara, Tah. Telhara, Distt. Akola.
6] Motiramji S/o Udaybhanji Umale (deleted)
7] Annapurna W/o Motiram Umale (deleted) APPELLANTS
.....VERSUS.....
::: Uploaded on - 28/07/2017 ::: Downloaded on - 07/08/2017 23:58:44 :::
1807 FA 282/2006 2 Judgment
1] Vitthal S/o Viyanand Mohite,
Aged 38 years, Occu: Driver,
R/o. Ward No.18, "Suganpriya",
Jatharpeth Chowk, Jatharpeth,
Akola.
2] Mrs. Priti W/o Vitthal Mohite,
Aged adult, Occu: Owner of Jeep,
R/o. Mhaispur, Tah. Barshitakli,
Distt. Akola.
3] The Divisional Manager,
National Insurance Co. Ltd.
Opp. to Open Air Theatre,
M.G. Road, Akola, Tah. and
Distt. Akola. RESPONDE NTS
Shri U.N. Vyas, counsel for appellants.
Mrs. S.G. Kasbekar, counsel for respondent no.3.
None present for respondent nos.1 and 2.
CORAM : DR. SMT. SHALINI PHANSALKAR-JOSHI, J.
DATE : JULY 18, 2017.
ORAL JUDGMENT :
Appellants are the original claimants, who have
preferred this appeal, challenging the judgment and award dated
23/12/2005 passed by the Member, Motor Accident Claims
Tribunal, Akot, Distt. Akola in Claim Petition No. 48/2005, being
1807 FA 282/2006 3 Judgment
aggrieved by the inadequate amount of compensation awarded by
the Tribunal.
2] Brief facts of the appeal, can be stated as follows:-
Appellant no.1 is the widow and appellant nos.2 to 5
are the minor children of the deceased Shatrughan. At the time of
accident, his parents were also alive and they were added as
claimant nos.6 and 7. During pendency of the claim petition, they
have died, hence their names came to be deleted. Deceased
Shatrughan was workng as ASI at Police Station Telhara, District -
Akola. At the time of accident, his age was of 45 years and he was
the only earning member of his family, getting salary of Rs.6,240/-
per month.
3] On the date of accident, on 04/10/2001, when
deceased was coming from Akot to Telhara along with his colleague
Arun Gopnarayan on his motorcycle, one Jeep bearing no. MH-30-B-
7310 came from opposite direction in high speed and gave dash to
the motorcycle of the deceased, as a result deceased Shatrughan
succumbed to injuries on the spot, whereas his colleague was also
seriously injured. As the cause of his death was the rash and
1807 FA 282/2006 4 Judgment
negligent driving of the Jeep driver, who is respondent no.1 herein,
appellants filed claim petition under section 166 of the Motor
Vehicles Act, 1860 (hereinafter will be referred to as "Act" for
convenience) before the Tribunal against respondent no.1 - the
driver, respondent no.2 - the owner and respondent no.3 - insurer
of the said Jeep, claiming compensation of Rs.10,00,000/-.
4] Respondent nos.1 and 2 did not participate in
proceeding as they remained absent despite duly served with notice.
Respondent no.3 - insurance company alone resisted the claim
petition admitting the factum of accident, involvement of the Jeep
and also valid insurance of the said Jeep, however, denied the cause
of the accident as rash and negligent driving of the Jeep. It was
contended that deceased was not holding valid driving licence and
as a result, accident has taken place which was of head on collision,
and hence there was at least some contributory negligence on the
part of deceased also. Respondent no.1 - Jeep driver alone cannot
be held liable for the accident that has ensued. Respondent no.3,
therefore, claimed for dismissal of the petition.
5] On these respective pleadings of the parties, learned
1807 FA 282/2006 5 Judgment
Tribunal framed necessary issues for it's consideration vide Exh.28.
In support of their case, respondent no.1 examined herself and also
led the evidence of the pillion rider, Arun Gopnarayan. She further
produced the salary certificate of deceased on record. On behalf of
the respondent no.3, no evidence was led.
6] On appreciation of the evidence adduced by appellants-
claimants, the Tribunal was pleased to hold that though the cause of
the accident was the rash and negligent driving of the Jeep, as at the
relevant time, deceased was not proved to be having valid driving
licence, he was held responsible for contributory negligence to the
extent of 30% and accordingly having regard to the salary certificate
and the age of the deceased, granted compensation of Rs.3,24,730/-
to appellants from respondent nos.1 to 3 jointly and severally.
7] This judgment of the Tribunal is subject matter of the
present appeal. Respondents herein have not preferred any appeal
or cross objection challenging the findings of the Tribunal, and
hence as matter of fact, the only issue which can arise for my
determination in this appeal preferred by appellants-claimants, is
about the quantum of compensation. Hence this court need not
1807 FA 282/2006 6 Judgment
enter in to the finding of fact arrived at by the Tribunal that the
cause of accident was the rash and negligent driving of the Jeep
driver. However, as appellants have challenged the finding of the
Tribunal of holding 30% contributory negligence on the deceased
for not having valid driving licence, it has become necessary to
consider the evidence on record on this aspect also.
8] In this case, there is evidence of eye witness on record,
that of Arun Gopnarayan, who was proceeding on the motorcycle of
deceased at the time of accident as a pillion rider and in the said
accident, he was also injured. His evidence shows that when they
were proceeding on the motorcycle from Akot to Telhara, one Jeep
came from opposite direction in high speed and gave dash to their
motorcycle, as a result of which both of them sustained injuries. He
has deposed that the cause of the accident was the negligence on
the part of the Jeep driver. In his cross-examination, he has stated
that the accident took place as both the vehicles were coming from
opposite direction to each other. He has denied that as he was
chitchating with the deceased, the accident took place due to
negligence of the deceased. He has also denied that as there was a
turn to the road, Jeep was in slow speed. Thus, there is nothing in
1807 FA 282/2006 7 Judgment
his cross-examination as such to discredit him.
9] Merely because both the vehicles were coming from
opposite directions to each other, it cannot be said that he has
accepted that it was a head on collision. The spot panchnama and
F.I.R. which are produced on record and which are discussed by the
Tribunal in it's judgment also, clearly go to show that width of the
tar road at the spot of accident was about 25 feet and on both sides
of the road there was slope of 5 feet width each and towards East of
the road, the motorcycle was lying. It was facing towards South and
by the side of the said motorcycle, a bullock cart was parked. The
skid marks of the motorcycle were up to the distance of 10 feet. On
the North side of the road at the distance of 200 feet, one Jeep was
parked. The mudguard of the Jeep was broken and it was lying on
the ground. The front tyre of the Jeep was damaged, however no
rub marks were noticed on the rear part of the Jeep. The spot
panchnama also shows that the Jeep was dragged up to distance of
200 feet. Accordingly the Tribunal has rightly inferred that the Jeep
driver could not control the speed of the Jeep, whereas the deceased
could control his speed considering the skid marks of the motorcycle
were up to 10 feet only.
1807 FA 282/2006 8 Judgment
10] The spot panchnama, thus clearly shows that the Jeep
came on wrong side of the road and has given dash to the
motorcycle of the deceased. The fact that the mudguard of the Jeep
was broken goes to show that it was not at all head on collision,
as it is tried to be made out by learned counsel for respondent no.3.
The police had also, after carrying out necessary inquiry and
investigation, registered offence against the Jeep driver. Respondent
no.1, the Jeep driver has not come before the court to give evidence
to prove that motorcycle was also to some extent responsible for the
accident as it was a head on collision. None of the respondents have
examined any other eye witness to the accident. In such situation,
the finding of fact given by the Tribunal that the cause of
accident was the rash and negligent driving of the Jeep, needs to be
confirmed and affirmed.
11] The Tribunal, has however, held that as the driving
licence of the deceased was not produced, though a specific defence
was raised that he was not having valid driving licence, 30% of the
contributory negligence needs to be attributed to the deceased also.
However, in my considered opinion, if the deceased was not having
driving licence, that fact was required to be proved by respondent
1807 FA 282/2006 9 Judgment
no.3. Merely because the driving licence is not produced on record,
it would not be possible to infer to that effect when there is
categorical evidence of the wife of the deceased that deceased was
having such driving licence.
12] Moreover, even assuming that deceased was not having
such valid driving licence, that alone cannot be sufficient to
attribute 30% negligence to the deceased. Only if it was proved that
accident has occurred due to negligence or rashness of the deceased,
one could have taken into consideration the aspect that he was not
having valid driving licence. Here in the case, the evidence on
record nowhere shows that deceased was, in any way negligent or
rash in his driving, so as to attribute the contributory negligence of
30% to the deceased. As a matter of fact, even no evidence is
produced on record to show that police has applied the charge
under section 3 of the Motor Vehicles Act on the count that
deceased was not holding valid driving licence. Thus, sans any
evidence on record, the finding given by learned Tribunal that
deceased was not having a valid driving licence and therefore
attributing him 30% of contributory negligence, is totally against the
well settled legal position, and hence that finding needs to be set
1807 FA 282/2006 10 Judgment
aside.
13] Now coming to the amount of compensation. At the
time of accident, deceased was running the age of 42 years as
deposed by his widow Shobha. The extract of his service book
reveals that he was born on 10/10/1956, and therefore, on the date
of accident on 04/10/2001, his age was about 45 years. The
Tribunal has applied multiplier of '13'. However, as rightly
submitted by learned counsel for appellants, in view of the
judgment of the Hon'ble Apex Court in the case of Smt. Sarla
Verma and others -Vs. Delhi Transport Corporation and another,
AIR 2009 SUPREME COURT 3104, for the age group between 41 to
45 years, an appropriate multiplier would be '14'.
14] As per the evidence on record, which is the salary
certificate of the deceased, he was working as ASI in Police
Department and his gross salary was Rs.6,940/- per month and after
deduction, his net salary of Rs.5,012/-. In view of his age and in the
light of the judgment of Hon'ble Apex Court in the case of Sarla
Verma, 30% of the said income is required to be added as additional
income towards his future prospects, and therefore, the said amount
1807 FA 282/2006 11 Judgment
comes to Rs.6,515/- per month.
15] At the time of accident, deceased was having the
liability of his widow, four children and the parents, therefore, the
claimants were 4 to 6, and hence 1/4th of the said amount needs to
be deducted towards the personal expenses of the deceased.
16] The Tribunal has awarded Rs.5,000/- to appellant no.1-
widow for loss of consortium and Rs.3,000/- to the children for loss
of estate. In my considered opinion, one cannot ignore the recent
trend of the judgment of the Hon'ble Apex Court as reflected in the
case of Rajesh and others -Vs. Rajbir Singh and others, (2013) 9
Supreme Court Cases 54, which require that the amount of
compensation towards the loss of love and affection and loss of
consortium, needs to be enhanced and accordingly those are
enhanced at the rate of Rs.1,00,000/- towards loss of consortium to
appellant no.1 and Rs.1,50,000/- towards loss of love and affection
to the children. Appellants are also entitled for the amount of
Rs.25,000/- towards funeral expenses. Thus, total amount of
compensation to which appellants are entitled can be reassessed as
follows:-
1807 FA 282/2006 12 Judgment
Sl. No. Heads Calculation
(i) Salary Rs.5,012/- per month
(ii) 30% of (i) above to be added as (Rs.5,012/- +
future prospects Rs.1,503/-) =
Rs.6,515/- per month
(iii) 1/4th of (ii) deducted as personal Rs.6,515/- -
expenses of the deceased Rs.1,629/- =
Rs.4,886/- per month
(iv) Compensation after multiplier of (Rs.4,886/- x 12 x
'14' is applied 14) = Rs.8,20,848/-
(v) Loss of consortium Rs.1,00,000/-
(vi) Loss of love and affection to the Rs.1,50,000/-
children
(vii) Funeral expenses Rs.25,000/-
Total Compensation Awarded Rs.10,95,848/-
17] Thus, the toal amount of compensation to which
appellants become entitled is Rs.10,95,848/-. Appellants are entitled
to recover the said amount with interest at the rate of 7.5% per
annum, as awarded by the Tribunal from the date of petition till
realisation of the amount.
18] Appeal is accordingly allowed, with no order as to costs.
19] The impugned judgment and order of the Tribunal is
1807 FA 282/2006 13 Judgment
modified to the extent that amount of compensation is enhanced
from Rs.3,24,713/- to Rs.10,95,848/-.
20] Rest of the judgment and award of the Tribunal stands
confirmed.
JUDGE
Yenurkar
