Sunanda Prashant Nasre & Ors vs The Manager, M.P.S.R.T.C., ...
2017 Latest Caselaw 950 Bom

247-J-FA-373                                                                                1/7


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

                            FIRST APPEAL NO.373 OF 2005


1.  Sunanda wd/o Prashant Nasre
     aged about 30 years, 
     Occ. Household, 

2.  Jaish s/o Prashant Nasre
     Aged about 9 years, 
     Occ. Student, 

3.  Komal d/o Prashant Nasre,
     Aged about 8 years,  
     Occ. Student, 

4.  Ajabrao s/o Rajaram Nasre,
     Aged about 68 years, 
     occ. Nil 
    
    Nos.2 and 3 Minor through natural 
    Guardian Appellant No.1. 
    All residents of CRP Camp Gate No.1 
    Isasani, Tq. Hingna, Dist.Nagpur.                          ... Appellants. 

-vs-

The Manager, MPSRTC 
Railway Station Road, 
Sitabuldi, Nagpur.                                             ... Respondent. 


Shri Gopal Mishra, Advocate for appellants. 
Respondent served.  

                                                  CORAM  : A.S.CHANDURKAR, J. 

DATE : March 22, 2017

Oral Judgment :

This appeal filed under Section 173 of the Motor Vehicles Act,

247-J-FA-373 2/7

1988 takes exception to the judgment of the Motor Accident Claims Tribunal,

Nagpur dated 19/01/2005 whereby the application filed under Section 166

of the said Act has been dismissed.

It is the case of the appellant that one Prashant, husband of

appellant No.1 and father of appellant Nos.2 and 3 was riding his motorcycle

on 03/08/2000. He was given a dash by a bus owned by the respondent-

Corporation resulting in his accidental death. On that basis claim for

compensation of an amount of Rs.3,00,000/- came to be filed by the

appellants. This claim was opposed by the Corporation by pleading that its

bus was not involved in the accident and that the deceased was rash and

negligent while driving his motorcycle. After considering the evidence on

record, the Claims Tribunal rejected the claim application by holding that the

bus belonging to the respondent was not involved therein. Being aggrieved

the present appeal has been filed.

2. Shri G. Mishra, learned counsel for the appellants submitted that

considering the manner in which the accident occurred and the fact that

report was lodged against the driver of the said bus followed by criminal

proceedings, it could not be said that the bus owned by the Corporation was

not involved. He referred to the FIR as well as Post Mortem report on record

which indicated that the injuries as caused resulting in death of said Prashant

were only possible by the dash given by the bus. Though the driver of the

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said bus was examined he did not place on record the report lodged by him.

According to the learned counsel the doctrine of res ipsa loquitur was

applicable. It was submitted that the learned Member of the Claims Tribunal

gave undue importance to the absence of any eye witness and ignored the

material available on record as well as deposition of said driver while

proceeding to disallow the claim for compensation. Relying upon the

decision in Anil Tiwari and ors. vs. Saheb Singh and ors. 2001 ACJ 471 it

was submitted that the FIR and other related documents placed on record

could not be brushed aside on technical grounds. He therefore submitted

that fair amount of compensation be awarded to the claimants.

3. There has been no appearance on behalf of the respondent on

20/03/2017 and 21/03/2017. Today also there is no appearance on behalf

of the respondent.

With the assistance of learned counsel for the appellants, I have

perused the records of the case and I have given due consideration to his

submissions. Following points arise for consideration :

(i) Whether the bus owned by the respondent was involved in the

accident ?

(ii) If point No.(i) is answered in the affirmative, what is the amount

of compensation to which the appellants are entitled ?

247-J-FA-373 4/7

4. The appellant No.1 examined herself at Exhibit-17. She admitted

that she was not an eye-witness to the accident in question. In her cross-

examination, she admitted that amount of Rs.10,000/- was received from the

respondent towards compensation on account of aforesaid accident. She

deposed about the income of the deceased. On behalf of the respondent its

driver was examined at Exhibit-23. According to him when the bus which he

was driving had crossed the bridge on the river he noticed a motorcycle

coming from the opposite side at a high speed. The vehicle fell down

resulting in injuries to the person riding the vehicle. In his cross

examination he admitted that he had gone to the police station for lodging

report but he did not file the copy of said report. He denied the suggestion

that the bus was being driven in a rash and negligent manner. He admitted

that criminal proceedings were filed against him in relation to the said

accident.

5. After considering this evidence on record, the learned Member of

the Claims Tribunal held that there was no eye witness to the aforesaid

accident and that the claimants had not proved that the motorcycle was

dashed by the bus owned by the Corporation. It gave importance to the

evidence of the driver of the bus. If the entire evidence on record is taken

into consideration, it is an admitted position that there was no eye witness

examined by the claimants. According to the driver of the bus, the accident

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occurred during the rash and negligent driving of the motorcycle. The

appellants had placed on record various documents as per the list at Exhibit-

4. It included the First Information Report, spot panchanama and Post

Mortem report. In Anil Tiwari and ors. (supra) it was observed that when

such documents are produced on record they cannot be brushed aside on

technical grounds. In the present case these documents have been issued by

the Inspector of the concerned police station. They are part of the records

maintained by the police authorities and therefore they can be referred to

while considering the question as regards occurrence of the accident. As

per the spot panchanama, the motorcycle in question was lying in front of

the bus owned by the Corporation in a damaged condition. As per the Post

Mortem report, the deceased had suffered serious injuries on his head. The

fact that the Corporation had paid an amount of Rs.10,000/- to appellant

No.1 ex-gratia on account of the said accident is a fact which cannot be

ignored. Similarly non-production of the report lodged by the driver of the

bus in relation to the said accident has not been explained. The record

further indicates that criminal proceedings had been filed against the driver

of the bus but record of the same was also not produced. Thus considering

the overall material on record, I do not find on the touchstone of

preponderance of probabilities that the deposition of the driver of the bus to

the extent he states that the bus was not involved in the accident to be

acceptable. The circumstances on record including payment of ex-gratia

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amount to appellant No.1 itself indicates that the bus owned by the

respondent was involved in the accident. The doctrine of res ipsa loquitur

can be made applicable considering the nature of evidence on record. Point

No.(i) stands answered accordingly.

6. While considering the quantum of compensation, the learned

Member of the Claims Tribunal has held that on the basis of evidence on

record the monthly income of the deceased of Rs.2400/-. After deducting

1/3rd amount and by applying multiplier of 16, the amount of compensation

was determined at Rs.3,14,200/-. It included amounts granted for loss of

consortium and funeral expenses. The evidence on record does not indicate

the actual income earned by the deceased. In such situation notional income

of Rs.15,000/- per annum is required to be taken into consideration. After

deducting 1/3rd amount towards personal expenses, the said amount would

come to Rs.10,000/- per annum. After applying the multiplier of 16 as per

the age of the deceased, the loss of dependency would be Rs.1,60,000/-. An

amount of Rs.1,00,000/- towards loss of consortium and further amount of

Rs.1,00,000/- for loss of love and affection to the appellant Nos.2 and 3 is

admissible. By granting sum of Rs.15,000/- towards funeral expenses, the

total amount of compensation comes to Rs.3,75,000/-.

Considering the nature of evidence available on record on the

aspect of contributory negligence, it can be said that the deceased had partly

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contributed to the occurrence of the accident. On said count an amount of

Rs.75,000/- is liable to be deducted from the total amount of compensation.

Accordingly, the appellants would be entitled for compensation of

Rs.3,00,000/- under Section 166 of the said Act. Point No.(ii) is answered

accordingly.

7. As a result of aforesaid discussion, the following order is passed :

Judgment dated 19/01/2005 in MACP No.834/2000 is quashed

and set aside. It is held that the appellants are entitled for compensation of

Rs.3,00,000/- with 9% interest per annum from 30/08/2000 till realization.

The appeal is allowed in aforesaid terms with no order as to costs.

JUDGE

Asmita