Divisional Manager, New India ... vs Dhrupadi Vinod Shrivas
2017 Latest Caselaw 4716 Bom

                     fa64.12.J.odt                 1



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

                                             FIRST APPEAL NO.64 OF 2012

                              The Divisional Manager,
                              New India Assurance Company Ltd.,
                              Sagar through Nagpur D.O., 
                              West High Court, Dharampeth,
                              Nagpur.                           ....... APPELLANT

                                                   ...V E R S U S...

                     1]       Dhrupadi wd/o Vinod Shrivas,
                              Aged about 30 years, 
                              Occ: Household.

                     2]       Akansha d/o Vinod Shrivas,
                              Aged about 10 years,
                              Occ: Student.

                     3]       Abhishek s/o Vinod Shrivas,
                              Aged about 5 years, Occ: Nil,

                              Petitioner Nos.2 and 3 are minor
                              through natural guardian petitioner No.1
                              R/o C/o Bhagwan S/o Thithar Thakur,
                              Vaishali Nagar, Near Bajrang Nagar,
                              Nagpur.

 Deleted as per      4]       Sambhunath Shrivas,
Courts order dt. 
  30/11/12.
                              Aged about 70 years,
                              Occ: Nil.

                     5]       Sushila w/o Sambhunath Shrivas,
                              Aged about 65 years,
                              Occ: Household, R/o Rameshwari,
                              Dwarkapuri, Nagpur.

                     6]       Mahendra Kumar s/o Gulabchandra Jain,
                              Aged about Major, Occ: Owner,
                              R/o Mohanwadi Layout, Vijant Traders
                              Compound, Kamptee Road, Teka Naka,



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  fa64.12.J.odt                     2

          Nagpur or Shastri Ward Warthi,
          Tah. Mohadi, Dist. Bhandara.                       ....... RESPONDENTS
 -------------------------------------------------------------------------------------------
          Shri A.J. Pophaly, Advocate for Appellant.
          Shri A.D. Ramteke, Advocate for Respondent No.5.
 -------------------------------------------------------------------------------------------

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

          DATE:                th
                            19    JULY, 2017.


 ORAL JUDGMENT



 1]               This   appeal   is   directed   against   the   judgment   and

award delivered by Motor Accident Claims Tribunal, Nagpur in

Motor Accident Claim Petition No.1135/2006 on 26.03.2010.

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

Respondent No.1 is the widow of the deceased Vinod,

respondent Nos.2 and 3 are their minor children and respondent

Nos.4 and 5 are the parents of the deceased. Respondent No.4 is

no more. Deceased Vinod was working as a Manager in the Beer

Bar and earning Rs.10,000/- per month.

3] It is the case of respondent Nos.1 to 5 that

on 15.08.2006 deceased was proceeding on his motorcycle

bearing No.MH-31 BE-6790 from Gondkhairi towards Nagpur on

National Highway No.6. It was night time and a travel bus bearing

No.MH-36 0944 belonging to respondent No.6 and insured with

the appellant herein was coming from opposite direction in fast

speed, and it gave dash to the motorcycle of the deceased. As a

result, the deceased and the pillion rider on his motorcycle, both

fell down, sustained the injuries and died on the spot. On account

of his untimely death, as respondent-claimant was their only

source of income, appellants prayed for compensation of

Rs.10,00,000/- from the respondent No.6 and the appellant,

herein jointly and severally.

4] This petition came to be resisted by the appellant

herein contending that the cause of accident was the rash and

negligent driving of the deceased himself. He was under the

influence of liquor and that was the cause of the accident. It is

denied that the bus was driven in a rash and negligent manner,

and therefore, the liability of the Insurance Company to the owner

of the bus was also denied. It was further contended that the

amount of compensation as claimed by the respondents was

exorbitant and hence the petition needs to be dismissed.

5] On these respective pleadings of the parties, the

Tribunal framed necessary issues for its consideration at Exh.32.

In support of their case, respondent No.1, the widow of the

deceased examined herself. Respondent No.6-Mahendra Kumar

Jain, the owner of the luxury bus, also filed his affidavit in

evidence. On appreciation of this oral and other documentary

evidence produced on record by the parties, the learned Tribunal

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

negligent driving of the bus and accordingly held the appellant

and the respondent No.6, the owner of the bus liable to pay

compensation of Rs.7,35,000/- to the respondent-claimant and

interest at the rate of 7.5% per annum from the date of petition

till realization.

6] This judgment and order of the Tribunal is the

subject-matter of this appeal. On the rival submissions advanced

before me by the learned counsel for both the parties, only two

points arise for my determination. The first point is whether the

cause of accident was, in any way, rash and negligent driving of

the deceased, so as to attribute him the contributory negligence

and secondly, whether the amount of compensation awarded by

the Tribunal is fair and adequate?

7] As regards the cause of accident, admittedly there is

no evidence of eye witness on record. Respondent No.1, the

widow of the deceased has not witnessed the said accident.

Even the pillion rider of the motorcycle, has succumbed to the

death in the same accident. Therefore, his evidence is also not

available. It was necessary in such situation for the appellant or

the owner of the vehicle to examine the Driver of the bus to bring

on record the manner in which the accident took place, as he was

the best and the only witness to depose about it. However, he is

not examined in this case. As a result, except for the F.I.R. and

spot panchnama, there is no other evidence on record to prove the

manner in which the accident took place.

8] As per the F.I.R. it was the luxury bus, which gave

dash to the deceased and it was being driven in a rash and

negligent manner and in fast speed. The Police had therefore,

after carrying out necessary inquiry and investigation filed

charge-sheet against the driver of the bus for the offence

punishable under Section 273 and 304-A of the I.P.C. Though, the

learned counsel for the appellant has placed reliance on the

contents of the spot panchnama to show that the bus was on

proper side of the road and it was the deceased who gave dash to

the bus, the contents of the spot panchnama are not sufficient for

that purpose as they do not give the particulars of the road or the

relevant measurements to show on which side of the road the bus

or the motorcycle was found. Moreover the spot panchnama gives

the position of the vehicles after the accident and it cannot state

the manner in which the accident had occurred.

9] Further more, though learned counsel for appellant

also submits that as deceased was working in the Beer Bar as a

Manager and it was night time, there was every possibility of

deceased being under the influence of liquor, however again there

is no evidence on record to that effect. Respondent No.1 the

widow of the deceased has denied the suggestion to that effect.

For that matter, even the postmortem report also does not disclose

the odour of alcohol in the stomach contents. Hence, sans any

evidence produced on record, the cause of accident as negligence

on the part of the deceased cannot be accepted and is rightly

rejected by the Tribunal. The liability of paying compensation to

the respondent-claimant is thus rightly fixed on the appellant and

respondent No.6, the owner of the vehicle.

10] About the quantum of compensation, as per the

evidence of respondent No.1, the deceased was doing the job of

Manager in the Beer Bar and earning Rs.10,000/- per month.

However, she has not produced on record evidence to that effect.

She has not even examined the owner of the Beer Bar, nor

produced the salary certificate of the deceased. In such situation,

the Tribunal has rightly considered the earning of the deceased to

be Rs.5000/- per month and accordingly, considering his age of

26 years at the time of accident, applied the multiplier of 18 and

awarded the total compensation of Rs.7,20,000/- towards the

financial loss and then coupled with the additional heads of

compensation, the total amount awarded by the Tribunal is

Rs.7,35,000/- inclusive of no fault liability amount of Rs.50,000/-.

The said amount being just, reasonable and fair, no interference is

warranted therein. The appeal therefore, holds no merit and

accordingly stands dismissed, with no order as to costs.

11] At this stage, learned counsel for respondent No.5

submits that as respondent No.5 is need of money, she may be

permitted to withdraw the amount of her share. Considering her

age and her requirement, the permission is granted to the

respondent No.5 to withdraw the amount of her share.

Respondent No.1 is also permitted to withdraw the amount of her

share in the amount of compensation. Except the amount of the

share of minor children, rest of the amount may be

proportionately apportioned between respondent No.1 and 4 as

per their share, determined by the Tribunal.

JUDGE

NSN