Msrtc Through Divisional ... vs Shabana Begum Salim Khan And Ors
2017 Latest Caselaw 2143 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                           FIRST APPEAL NO. 2679 OF 2010



 Maharashtra State Road Transport
 Corporation,
 Through its Divisional Controller
 Nanded Division, Nanded                                   ...Appellant

          versus

 1.       Shabana Begum w/o Salim Khan
          Age 38 years, Occ. Household,

 2.       Ataullah Khan s/o Salim Khan,
          Age 17 years, minor u/g Pet. No.1

 3.       Imran Khan s/o Salim Khan,
          Age 16 years, minor u/g Pet. No.1

 4.       Younus Khan s/o Salim Khan,
          Age 14 years, minor u/g Pet. No.1

 5.       Ziyanllah Khan s/o Salim Khan,
          Age 11 years, minor u/g Pet. No.1

 6.       Muskan Begum s/o Salim Khan,
          Age 10 years, minor u/g Pet. No.1

 7.       Nazrabee w/o Mohmood Khan
          Age 71 years, Occ. Household

          All R/o. Tamsa, Taluka Hadgaon
          District Nanded                                  ...Respondents

                                   .....
 Mr. M.K. Goyanka, advocate for appellant-claimant
 Mr. G.R. Syed, advocate for respondent.
                                   .....

                                              CORAM : V. K. JADHAV, J.

DATED : 3rd MAY, 2017

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ORAL JUDGMENT :-

1. Being aggrieved by the judgment and award dated 4.9.2010,

passed by the Member, M.A.C.T. Nanded in M.A.C.P. No. 213 of

2004, the respondent M.S.R.T.C. has preferred this appeal.

2. Brief facts giving rise to the present appeal are as follows:-

a) On 4.2.2004, at about 8.45 a.m. deceased Salim Khan was

driving a taxi jeep bearing no. MH-26-B-8400 from Tamsa to

Ardhapur. He was owner/driver of the said jeep. One S.T. Bus

bearing registration No. MH-02/D-6075 came from opposite

directions and gave dash to the taxi jeep of deceased Salim. As a

result of which deceased Salim and other two persons died on the

spot.

b) The legal representatives of deceased Salim approached the

Tribunal by filing M.A.C.P. No. 213 of 2004 for grant of compensation

under various heads. It has been contended that deceased was

doing taxi business. He was having two taxi jeeps and out of the said

two taxies, he was driving the jeep involved in the accident. He was

earning more than Rs.10,000/- per month. The claimants were

entirely depending upon his income and he was the only bread

winner of the family.

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c) The appellant M.S.R.T.C. has strongly resisted the claim

petition by filing written statement. It has been contended that the

driver of S.T. Bus was not driving the S.T. Bus in high speed and

rash and negligent manner. It has been contended that the deceased

Salim has driven the said jeep in rash and negligent manner and

caused the accident. It has also been contended that owner and

insurer of the jeep are not impleaded as party and therefore, claim

petition is bad for non-joinder of necessary party. It has also been

contended that there is hilly area on the spot of accident and the said

jeep came from opposite direction in speed and on turn dashed

against the S.T. Bus. There is no head on collision between the two

vehicles. The respondent M.S.R.T.C. has also examined driver of

S.T. Bus and produced on record the copy of judgment and order of

acquittal passed by the Criminal court. The appellant M.S.R.T.C. has

also filed on record the certified copy of judgment delivered by the

Principal District Judge in sister claim bearing M.A.C.P. No. 301 of

2005.

d) The claimants adduced oral and documentary evidence in

support of their contentions.

e) The learned Member of the Tribunal by its impugned

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judgment and award dated 4.9.2010 allowed the claim petition and

thereby directed the appellant M.S.R.T.C. to pay compensation of

Rs.10,40,000/- to the claimants alongwith interest. Hence, this

appeal.

3. The learned counsel for the appellant M.S.R.T.C. submits that

there was no head on collision between two vehicles and at the time

of crossing of U shape road, the jeep brushed against rear portion of

S.T. Bus. The learned counsel submits that the driver of the S.T.

Bus is not responsible for the accident in any manner. However, the

Tribunal has not considered the evidence adduced by the appellant

M.S.R.T.C. and also not given weightage to the admission given by

the eye witness Vazirkhan, examined by the claimants. Learned

counsel submits that the Tribunal has also awarded exorbitant

amount of compensation. Learned counsel for the appellant submits

that in sister claim the Tribunal has held that the driver of the jeep

was alone responsible for the accident and exonerated the M.S.

R.T.C. from paying the compensation. However, in the present claim

petition, the Tribunal has recorded a finding contrary to its earlier

decision. Though there is no income proof of the deceased, the

Tribunal has considered the income of deceased on higher side and

awarded exorbitant amount of compensation.

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4. Learned counsel for the respondents/claimants submits that

in the hilly area, the jeep fully loaded with the passengers was

proceedings in ascending direction whereas the big vehicle like S.T.

Bus was coming from opposite directions in descending manner in

the said hilly area. Learned counsel submits that as per oral and

documentary evidence, the driver of the S.T. Bus has not given

sufficient space for the jeep and as such jeep brushed against the

rear portion of the S.T. Bus. Deceased Salim, who was driving the

jeep at the relevant time, died on the spot alongwith two other

persons. Learned counsel submits that the damages caused to the

jeep and the death of the passengers, including the driver of jeep

unmistakenly points out that the driver of S.T. Bus had driven the

S.T. in high and excessive speed and caused the accident. The

Tribunal has therefore, rightly held that the driver of S.T. Bus is

responsible for the accident.

5. Learned counsel for the respondents-claimants further

submits that in the said sister claim the claimants have not examined

any eye witness and relying upon the evidence of the driver of S.T.

Bus, the Tribunal has recorded the findings and exonerated the

M.S.R.T.C. from liability to pay the compensation. In the instant

case, the claimants have examined one eye witness and the Tribunal

has rightly placed reliance on his evidence coupled with the police

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documents and awarded the compensation. The learned counsel

submits that the Tribunal has awarded just and reasonable

compensation. Deceased Salim was the owner in possession of two

taxi jeeps and out of that he was driving one jeep, which was

involved in the accident and he had given another jeep on hire. The

claimant No.1 has deposed that deceased Salim was earning more

than Rs.10,000/- out of his taxi business. He was just 32 years of

age at the time of his accidental death. He was having bright future

and considering the same, the Tribunal has considered his monthly

income at Rs.7000/- and as such , the compensation awarded by the

Tribunal is just and reasonable.

6. On careful perusal of the pleadings, evidence and the

judgment and award passed by the Tribunal, I find that the accident

had taken place in the hilly area and the jeep fully loaded with the

passengers was proceeding in ascending manner whereas the S.T.

Bus was proceeding in descending manner. Obviously, the jeep

which was fully loaded with the passengers could not have been

driven in speed. It is thus for the big vehicle like S.T. Bus to leave

sufficient space for the vehicle proceeding in ascending manner in

the hilly area. Consequently, at U shape road the said jeep brushed

against rear portion of the S.T. Bus. There was no head on collision

between two vehicles, it cannot be said that the driver of the jeep

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alone was responsible for the accident, as the jeep brushed against

the rear portion of the S.T. Bus.

7. On careful perusal of spot panchnama and other documents,

it appears that heavy damage was caused to the jeep and three

persons travelling in the said jeep, including deceased Salim died on

the spot. Thus, only irresistible inference could be drawn that the

driver of S.T. Bus had driven the S.T. Bus in speed in hilly area and

as such at U shape road, the said jeep brushed against the rear

portion of S.T. Bus. However, deceased Salim could have avoided

the accident by keeping distance while crossing the said S.T. Bus.

Witness Vazirkhan has stated in his cross examination that the road

in the hilly area where accident took place was so narrow and if the

vehicle is taken at the other end while crossing, the vehicle could

have been turned turtle. Thus, considering the entire evidence on

record, in my opinion, the driver of S.T. Bus had contributed the

negligence to the extent of 75% whereas the driver of the jeep i.e.

deceased Salim had contributed the negligence to the extent of 25%.

Thus, I record my findings to issue Nos. 2, 4 and 5 accordingly.

8. So far as the quantum of compensation is concerned, I do not

think that the Tribunal has considered the income of deceased Salim

on higher side. It is not disputed that deceased Salim was having

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two taxi jeeps and he was maintaining the family consisting of seven

members. Deceased Salim was 32 years old at the time of his

accidental death. The Tribunal has also considered the future

prospects and accordingly considered the income of deceased Salim

at Rs.7000/- p.m. I do not find any fault in it. The Tribunal has

awarded just and reasonable compensation by applying the correct

multiplier, after deducting 1/5th of the amount from the income of

deceased towards his personal and living expenses. Thus, the

compensation amount is required to be re-determined in the light of

the finding recorded by this Court holding the driver of S.T. Bus

responsible to the extent of 75% whereas deceased Salim had

contributed the negligence to the extent of 25%. In view of the same,

the judgment and award under appeal requires modification. Hence, I

proceed to pass the following order:-

ORDER

I. The appeal is hereby partly allowed. No costs.

II. The judgment and award dated 4.9.2010, passed by the

learned Member, M.A.C.T. Nanded in M.A.C.P. No. 213 of

2004 is hereby modified in the following manner:-

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"The petitioners-claimants do recover an amount of Rs.7,85,000/- (Rupees Seven lacs eighty five thousand only) from the respondents with interest @ 6% p.a. from the date of petition till realization of the entire amount".

III. The award be drawn up as per the above modification.

IV. The rest of the judgment and award stands confirmed.

V. Needless to say that if any amount is deposited as per the

judgment and award passed by the Tribunal, the same shall

be the part of modified award and the amount in excess

alongwith accrued interest, if deposited by the appellant

M.S.R.T.C. before this Court, the same shall be refunded to

the appellant M.S.R.T.C. The respondents claimants are

permitted to withdraw the amount alongwith accrued

interest as per the modified award.

        VI.    The first appeal is disposed of.



                                                      ( V. K. JADHAV, J.)

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