Smt. Sitabai Rajaram Dhangda vs 1. Naruthi Dattatraya Paste
2017 Latest Caselaw 2596 Bom

                            1 /5           judgment in fa-348-99.doc

Ladda

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                            CIVIL APPELLATE JURISDICTION

                              FIRST APPEAL No. 348 of 1995

        1) Sitabai Rajaram Dhangda,
        2) Sitaram Rajaram,
        3) Sumitra,
        4) Chandrakant
        5) Gondya Vansia Dhangda                     ..Appellants.
                   Vs
        1) Maruti Dattatraya Patil
        2) Executive Engineer
        3) The State of Maharashtra                  ..Respondents.

        None for the appellants.

        Mr Yogesh Dabke, A.G.P. for Respondents No. 2 and 3.

                                 CORAM : C.V. BHADANG, J.

DATE : 22 nd May, 2017.

ORAL JUDGMENT:

1) The appellants are legal representatives/dependents of

Rajaram Gondya. Appellant no.1 is a widow, appellant Nos.

2 to 4 are children, while appellant no.5 is the father of

deceased Rajaram. Rajaram was in employment of the

second respondent as a road roller driver at Tava, worksite

of Surya Dam Project. On 4th April, 1984 at about 5:30 p.m.

the deceased along with another employee of the Surya Dam

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Project, one Shantaram Kamat (PW-3) boarded a truck

bearing MFF-7072 for going to the office at Suryanagar for

some work. Indisputably, the truck was belonging to the

Irrigation Department and was driven by the first

respondent. The deceased as well as Shantaram Kamat (PW

3) were travelling in the rear portion of the truck. It is said

that when the truck reached the inter- section and was

negotiating a right side turn, the deceased, was thrown out

of the vehicle and suffered serious injuries to which he

subsequently succumbed at Kasa Government Hospital.

2) The appellants sought compensation of Rs. 1 lakh

before Motor Accident Claims Tribunal Thane ("Tribunal" for

short ) claiming that the age of the deceased at the relevant

time was 27 years and the deceased was earning salary of

Rs.700/- per month. It was contended that the accident

occurred due to negligence of the first respondent.

3) The opponents resisted the claim. It was denied

that the accident was caused due to negligence of the first

respondent.

4) Before the Tribunal the appellant no.1 Sita

examined herself along with one Shaniwar Babu Bhoir (PW

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2), a spot panch and Shantaram Kamat (PW 3).

5) The first respondent examined himself.

6) The learned Tribunal came to the conclusion that

the deceased and the first respondent were equally

responsible for the accident and apportioned contributory

negligence at 50% each. The Tribunal reckoned income of

the deceased at Rs.700/- per month and after adding the

compensation towards loss of consortium and love and

affection arrived at a sum of Rs.96,000/- and granted

compensation of Rs.48000/- along with interest @ 12% per

annum. Being aggrieved by the quantum of compensation,

the appellants are before this Court.

7) None for the appellants. I have heard the learned

A.G.P. for the second and third respondent and perused

record.

8) There is no challenge to the aspect of the age of

the deceased, being 27 years and deceased earning salary of

Rs.700/- per month. It is also not in dispute that the

appellants were dependents on the deceased. The annual

income of the deceased would be Rs.8400/-. The deduction

towards personal and living expenses, when the dependents

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are more than three, can be taken as 1/4 th i.e. Rs.2100/-. The

annual dependency would be Rs.8400/- Rs.2100 = Rs.6300/-.

The appropriate multiplier for the age group of 26 to 30

years would be 17 (see Smt. Sarla Verma Vs. Delhi

Transport Corporation & Anr (2009) 6 SCC 121. Thus, the

compensation would be Rs. 6,300x17=1,07,100/-. The

Tribunal has observed that the deceased was not holding the

side guard plank unlike Shantaram Kamat (PW 3), although

the deceased must have been aware about the road

condition. This has promoted the Tribunal to hold that the

deceased was negligent to the extent of 50%. In my

considered view, the reasoning cannot be accepted. The

evidence of Rajaram clearly shows that the deceased was

thrown out of the vehicle, while the truck was negotiating a

turn. The Tribunal has found that the driver did not care to

slow down the vehicle while negotiating the turn. It has

come in the evidence of PW 3 that there was enough space in

the cabin for PW 3 and the deceased to have travelled in the

cabin. However, there is nothing in the evidence of PW 3 that

the deceased was not holding the side plank for support. In

my considered view, the contributory negligence in this case

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can be apportioned as 75% and 25%, the later being

attributed to the deceased. Thus, the compensation would

be Rs.80,325/-. (75% of 1,07,100/-). An amount of

Rs.10,000/- can be added by way of loss of consortium to the

appellant no.1 and Rs.5000/- towards funeral expenses.

Thus, the total compensation would come to Rs.95,325/-.

The respondents have not challenged rate of interest

awarded. In such circumstances, appeal is partly allowed.

The amount awarded is modified. The respondent shall

jointly and severally pay Rs.95,325/- to the appellants along

with interest as awarded by the Tribunal. Rest of the award

stands confirmed.

In the circumstances, there shall be no order as to

costs.

(C.V.BHADANG,J)