Divisional Controller, Msrtc, ... vs Smt. Savita Wd/O Sheshrao Ingole ...
2017 Latest Caselaw 3413 Bom

 F.A.No.782of2006                                  1        

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

                       FIRST APPEAL  NO. 782 OF 2006 


 Divisional Controller,
 M.S.R.T.C.
 Division Officer, at Akola.                                     .....APPELLANT

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

 1. Smt.Savita Wd/o Sheshrao Ingole,
    Aged 22 years,Occ-Household

 2. Ku.Asmita D/o Sheshrao Ingole,
    Aged 2 years, minor through 
    natural guardian mother 
    Smt. Savita Wd/o Sheshrao Ingole

 3. Sau. Indrayani W/o Vishwanath Ingole,
    Aged 46 years,Occ-Household,

 4. Vishwanath S/o Sampati Ingole,
    Aged 53 years,Occ-Labourer

      All R/o at and Post Sirsala,
      Tahsil and District Washim.                               ...RESPONDENTS

 -------------------------------------------------------------------------------------------

Shri V.G.Wankhede, Learned Advocate for appellant. Shri P.R.Agrawal, Learned Advocate for respondent nos. 1 to 3.

-------------------------------------------------------------------------------------------

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

DATED :- JUNE 21 ,2017

ORAL JUDGMENT

By its judgment and order dated 19/6/2006,

Additional Member, Motor Accident Claims Tribunal, Washim in

M.A.C.P.No.68/2005 directed the appellant to pay compensation

of Rs. 13 lakhs with future interest at the rate of 7.50% per annum

from the date of petition till realisation of the amount. Being

aggrieved thereby, the instant appeal is preferred.

2. Brief facts of the appeal can be stated as under:

Deceased Sheshrao was the husband of respondent

no.1, father of respondent no.2 and son of respondent nos. 3 and

4. He was lecturer by profession. Side by side he was also working

as L.I.C. agent and was earning substantial amount of income for

his livelihood and for maintaining the respondents. On 5/6/2005

he was travelling in S.T.Bus No.MH-40-9750 from Amravati-

Mumbai to Nashik, the bus met with an accident at 4.00 a.m near

Ozhar on Bombay-Agra road, as the bus gave dash to the

stationary truck. As a result of the said collision, deceased

Sheshrao, along with other passengers in the bus, sustained

injuries and he succumbed to those injuries. Due to his untimely

death, the respondents, having lost their only source of income,

filed the claim petition before Tribunal seeking compensation to

the tune of Rs. 20,00000/- from the appellant.

3. This petition came to be resisted by the appellant,

contending inter alia that the cause of the accident was not the

rash and negligent driving of the S.T. bus,but the fact that the

truck was standing stationary on the road without parking lights

or indicators. It was contended that as one vehicle was coming

from the opposite direction in fast speed, due to bright lights of

that vehicle, the bus driver could not see the stationary truck as

the truck driver has not switched on the parking lights. Hence,the

collision took place. It was thus submitted that the driver of the

truck and its owner and insurance company being equally

responsible for the accident that has occurred and as they were

not joined in the claim petition, the claim petition has to be

dismissed on this sole ground. As regards the quantum of

compensation, it was submitted that the amount claimed by

respondents was exaggerated and calculated without any legal

basis. It was submitted that the deceased was not having

permanent job and therefore it is difficult to accept that he was

earning income of Rs. 1,20,000/- per year. Thus, according to the

learned counsel for appellant, the claim petition filed by the

respondents should have been dismissed by the Tribunal.

4. In support of their claim, respondent no.1 examined

herself and also adduced the evidence of two more witnesses. As

against it, on behalf of appellant bus driver Sk.Sadik S/o Sk.Kadir

was examined.

5. On appreciation of this oral evidence and documentary

evidence produced on record by both the parties, learned Tribunal

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

and negligent driving of the bus. It was further held that, though

some negligence lies on the part of the truck driver for not

displaying the indicators even then, so far as the respondents are

concerned, they can claim compensation from any of the vehicle

owner and insurance company, it being a case of composite

negligence. As regards the quantum of compensation, learned

Tribunal, after having regard to the income, which deceased was

receiving from his earnings as part time lecturer, then as paper

examiner and L.I.C. agent, Tribunal considered that he was a

highly qualified person, having studied upto M.A.B.Ed. Hence

applying the multiplier of 17, Tribunal granted to respondents

total compensation of Rs. 13,00000/- with interest thereon.

6. While challenging this judgment and order of the

Tribunal, the submission advanced by learned counsel for the

appellant is that Tribunal itself has observed that there was some

negligence on the part of truck driver, as the truck was parked

without indicators at night time,when the accident occurred.

Hence it is submitted that it was incumbent upon the Tribunal to

treat this case as a case of contributory negligence, and therefore

the liability to pay entire amount of compensation should not

have been fastened on the appellant alone. Second submission

advanced by learned counsel for appellant pertains to the

quantum of compensation. According to him , the amount of

compensation has to be fair, reasonable and depending upon the

income of the deceased. In this case, it is submitted that there is

no positive or concrete evidence showing that deceased Sheshrao

was having any permanent source of income. Hence the

compensation calculated by the Tribunal holding his monthly

income as Rs. 10,000/- was definitely excessive and on higher

side, therefore interference is warranted in the impugned

judgment and order of the Tribunal.

7. Per contra, learned counsel for the respondents has

supported the impugned judgment and order of the Tribunal by

pointing out that, at the most this can be a case of composite

negligence but cannot be a case of contributory negligence. Hence,

who is at fault, whether the bus driver or the truck driver, is

totally irrelevant, deceased being third party to the accident.

Further, he has submitted that learned Tribunal has properly

appreciated the entire evidence on record and held the bus driver

alone responsible for the accident that has occurred. In the

alternate, it is argued that, even assuming that there was some

negligence on the part of truck driver, in that case also, it was

optional on the part of the respondents from whom to claim the

amount of compensation, whether from the truck driver, its

owner and its insurance company or from the appellant alone,

who is the owner of S.T.bus. As regards, the quantum of the

compensation, it is submitted that considering the educational

qualification of the deceased and income which was he was

deriving from various sources, it cannot be said that the

compensation awarded by the Tribunal is in any way

unreasonable, exorbitant or excessive.

8. In view of these rival submissions advanced by learned

counsel for appellant and respondents , the two points which

necessarily arise for my consideration are as under:

(1) Whether Tribunal was justified in fastening entire liability for payment of compensation on the appellant having found that to some extent there was negligence on the part of the truck driver also?

(2) Whether the amount of compensation awarded by the Tribunal is just and fair?

9. As regards the first point, the facts in the case are not in

the realm of dispute. It is an admitted fact that accident has

occurred on Mumbai-Agra High way at 4.00 a.m. in the night

time. It is also not disputed that the truck was parked on the

highway and it was without parking lights or indicators. The

driver of the S.T. bus has examined himself on behalf of the

appellant and in his evidence he has deposed as to how accident

has occurred. According to him, truck loaded with sand was

parked in the middle of highway. The indicators were not

reflected. One container came from the opposite direction of the

bus. As the parking lights of the truck were not switched on,

he could not notice the truck, which was parked on the road.

Moreover,because of the reflections of the light of the vehicle,

coming from the opposite direction, he could not assess the

situation properly. He tried to take bus on the left side of the road

in order to avoid the dash of the vehicle coming from the opposite

direction. At that time bus conductor side dashed the parked truck

and as a result the accident took place. In the cross-examination,

however he admitted that for the said accident he has been

chargesheeted by the police. He has further admitted that there

was road divider on the highway. The respondents have also

produced on record the copies of F.I.R.(Exh.17) and spot

panchnama (Exh.18). The copy of the F.I.R.(Exh.17) goes to show

that it was bus driver who was alone held responsible for the

accident and Crime No.51/2005 was registered against him for the

offences punishable under Sections 279,337,427,338,304(A) of

the Indian Penal Code.

10. Learned Tribunal in its judgment has dealt in detail as

to how the accident could have been avoided, if the bus driver was

cautious and careful. It was held in paragraph no.8 of the

judgment by the Tribunal that every driver is required to

anticipate that even though there was reflection of light of the

vehicle coming from opposite direction, he has to be in control of

his vehicle; has to drive cautiously all the time,so that effect of

reflection should not affect his sight and he does not loose his

balance in driving. It is his duty to apply upper and dipper lights of

his vehicle or to switch off the lights of vehicle and at the same

time to control speed of the vehicle or stop the vehicle. Needless to

state that, these precautions were required to be taken by the bus

driver while driving on national highway line Amravati to

Mumbai, he cannot presume that the road would be clear and he

can drive without exercising the proper care and caution. In this

case, there is no evidence to show that he had applied upper and

dipper lights as per the situation, required. If one peruses the spot

panchnama, then it is clear that the width of the road was 30 feet.

Besides, on both sides of the road, there was 8 feet width slope

of mud road. Thus, the total width of the road was 46 feet.

Assuming that truck was parked without reflectors or indicators

then in that event also, as per the spot panchnama, it was parked

on one side of the road and hence there was sufficient portion

available for the bus driver to avoid the dash with the said truck.

11. It is also pertinent to note that recitals in the spot

panchnama go to show that stones were kept around the truck,

thereby indicating that to some extent the truck driver has

exercised care. Moreover, the spot panchnama also shows the

brake marks of the bus for the distance of 46 feet behind the truck

,thereby indicating that the bus driver could not control the speed

of the bus, though he tried to do so,thereby further indicating that

the bus was definitely in high speed and beyond the control of bus

driver. The spot panchnama further shows that the wheel marks of

the truck were found on the road upto 16 feet thereby indicating

that the truck was dragged to the extent of 16 feet after the dash

of the bus from the back side, which again proves forceful impact

of the dash, further proving the inability of the bus driver to

control the bus.

12. It is thus clear that the Tribunal has considered the

entire evidence on record in its proper prospective and thereafter

came to the conclusion that the cause of the accident was rash and

negligent driving of the bus driver, though there may be some

negligence on the part of the truck driver in not switching on the

indicators. Even accepting such negligence on the part of the

truck driver, the fact remains that if bus driver could have driven

his bus carefully, cautiously and not in a rash and negligent

manner he could have averted the accident. The inference

therefore is inevitable that the sole cause of accident was the

rash and negligent driving of the bus driver. In such a situation the

appellant cannot escape from the liability.

13. Moreover, as rightly submitted by the learned counsel

for the respondents, even if there was some negligence on the part

of the truck driver by not displaying indicators at night time while

parking the truck on the road, in that case also, at the most it can

be the case of the composite negligence and not the contributory

negligence and in case of composite negligence the claimants can

seek and get compensation from the owner and insurer of any of

two offending vehicles. The difference between what is composite

negligence and what is contributory negligence is explained by

the Hon'ble Apex Court in the case of T.O.Anthony.. vs..

Karvarnan and others, 2008(5)Mh.L.J.7 acknowledging that

how a common error is being committed by several tribunals in

proceeding on the assumption that composite negligence and

contributory negligence are the same. Hon'ble Apex Court has

therefore in para nos. 5 and 6 of the judgment explained that in an

accident involving two or more vehicles, where a third party,

other than the driver and/ or owners of the vehicle involved,

claims damages for loss or injuries, it is said that compensation is

payable in respect of the composite negligence of drivers of those

vehicles. In such a case, each wrong doer, is jointly and severally

liable to the injured for payment of the entire damages and the

injured person has the choice of proceeding against all or any of

them. In such a case, the injured need not establish the extent of

responsibility of each wrong-doer separately, not is it necessary for

the court to determine the extent of liability of each wrong doer

separately. As regards the contributory negligence it was explained

that when a person suffers injury,partly due to the negligence on

the part of another person or persons, and partly as a result of his

own negligence , then the negligence on the part of the injured

which contributed to the accident is referred to as his contributory

negligence and in that case he will be entitled to recover the

damages in proportion to his contributory negligence.

14. In the instant case, deceased Sheshrao was not

responsible for the accident that has occurred, as he was the

passenger in the bus. It was at the most a case of therefore

"composite" and not "contributory" negligence even assuming

that the accident has occurred due to negligence on the part of

the truck driver and also the bus driver. In such a situation, it is

not necessary either for this Court or even for the respondents to

determine the extent of liability of each wrong doer separately.

Respondents, as stated above, can claim damages, as per their

choice, against the owner and insurance company of any of the

two vehicles or against the owners and insurance company of

both the vehicles.

15. In the instant case, respondents have, relying upon the

documentary evidence like F.I.R. and spot panchnama which was

clearly attributing the cause of the accident to the negligence on

the part of the bus driver alone chosen to proceed against the

appellant alone. Hence it is not necessary for the Court or for the

Tribunal to decide the extent of liability of either the bus driver or

the truck driver separately. It is apart, that the Tribunal has

already arrived at the finding that the cause of accident was the

rash and negligent driving of the bus driver and as the said finding

being based on the evidence on record and on re-appreciation of

the evidence it is upheld by this Court.

16. As regards the authority relied upon by learned

counsel for appellant, that of Raj Rani and others..vs.. Oriental

Insurance Co.Ltd. And others,[2009 AC1(SC)] the facts of the

said case disclose that the deceased in that case was driving the

Maruti car, which met with an accident on account of dash to the

truck which was found to be dragged in the midst of the road

without parking light. In that case as the truck was parked

without parking lights it was held that the accident has taken

place on account of negligence on the part of the truck driver. The

distinguishing fact, which goes to the roots of the matter, in this

reported case is that in that case the deceased was driving one of

the vehicles involved in the accident. Hence it was a clear case of

contributory negligence. As against it, in the present case deceased

was not the driver of any of the two vehicles but was passenger

in one of the vehicles. Thus, it is a case of composite negligence,

therefore this judgment is of no help to the appellant considering

the facts of the present case.

17. Now, once it is held that Tribunal has rightly fastened

the entire liability for payment of compensation upon the

appellant, the next question arising for consideration is whether

the amount of compensation granted by the Tribunal is just and

proper? On this aspect also, it is not disputed that at the time of

accident deceased was aged 35 years. Learned counsel for the

appellant has fairly conceded that he is not disputing the

multiplier of "17" which is applied by the Tribunal. His real

grievance is in respect of the amount of income which Tribunal

has considered to be the earning of the deceased. In this respect

the Tribunal has relied upon the evidence of not only the

respondent no.1 but also the evidence of two other witnesses,

examined by the respondents. It is deposed by the respondent no.1

Savita that her husband was post graduate having passed

M.A.B.Ed. He was doing the work of paper checking in

Yashwantrao Chavan Open University Nashik. He was also

working as L.I.C. agent and earning commission of Rs. 87,666/-

per year. He was also working on honorary basis as a lecturer in

N.N.Mundada Jr.College, Malegaon and in Savitribai Phuley

Mahila Mahavidyalaya,Washim. He was also working as a guide

in the study center of the Yashwantrao Chavhan Open University,

Nashik. Further, he was working as part time lecturer in Arts

College, Lakhala, Washim. Thus, his total earnings from all the

sources was Rs.1,20,000/- per annum. According to her, he was

likely tobe engaged as senior lecturer in the near future. Except

for putting a suggestion that deceased was not working as a part

time lecturer, nothing is brought on record in her cross-

examination to disbelieve her evidence.

18. The respondents have also examined the witness by

name Shashikant Madanrao Dandwate,the Development Officer

of L.I.C.Washim, to prove that deceased was working as L.I.C.

agent. This witness has produced on record the certificate at

Exh.21 stating that deceased was getting amount of RS. 87,666/-

per year towards the commission. No doubt, in cross-examination

he has admitted that for a limited period legal heirs of the

deceased may continue to get commission. But the fact remains

that the amount of commission is bound to be reduced,with the

passage of time.

19. Then the respondents have lead the evidence of

witness Prakash Pandurang Rathod who was working as manager

in Yashwantrao Chavhan Open University and in the study center

of the Savitribai Phuley. According to him, deceased was earning

Rs. 15,000/- to 20,000/- per year as honorarium for giving

lecturers on hourly basis. Thus this is not a case where absolutely

no evidence is lead by the respondents to show that there was

substantial earning of the deceased from various sources.

20. Therefore if one considers the qualification of the

deceased, who was M.A.B.Ed. and also having regard to the fact

that he was taking lectures on hourly basis in two colleges and

also doing the work of checking answer sheets in university and in

spare time was also working as L.I.C. agent, it is needless to say

that deceased was someone who has good future prospects. He

did not remain satisfied with only one source of income, like

working as lecturer in study center or working as LIC agent alone.

He was an active person who wanted to explore various sources

of earnings. Hence,considering therefore his future prospects,

apart from the income of which he was earing at the time of his

death, if the Tribunal has considered his total income to the tune

of Rs. 10,000/- per month, then it cannot be said that it was

assessed on higher side. Thus, income of Rs.10,000/- per month

appears to be the just and reasonable amount assessed by the

Tribunal.

21. Learned counsel for the respondents in this respect has

placed reliance upon the judgment of Hon'ble Apex Court in the

case of Neeta and others..vs.. Divisional Manager,Maharashtra

State Road Transport Corporation 2015 ACJ 598 to submit

that the Hon'ble Apex Court has, even in the case of death of a

carpenter, enhanced his income from Rs. 6,000/- per month as

assessed by High Court to Rs. 12,000/- per month. Here in the

case therefore when deceased was a highly qualified person, the

financial loss suffered by the respondents on account of his

untimely death has to be calculated accordingly, keeping in mind

his future prospects. Therefore the compensation amount

awarded by the Tribunal to the tune of Rs.13,00000/- can, in

no way be said as unreasonable so as to warrant interference

therein, especially if this Court considers that the Tribunal has not

awarded any amount towards loss of love and affection, loss of

consortium,loss of estate and funeral expenses.

In my considered view therefore absolutely no case is

made out by the appellant to interfere in the impugned judgment

and order of the Tribunal. The appeal therefore holds no merits

and stands dismissed.

JUDGE

kitey