Abhay S. Oka, J.
1. The submission of learned Counsel appearing for the parties were heard yesterday. All the first appeals in this group arise out of the same accident. The impugned judgment in all these appeals except in First Appeal No. 432 of 1997 is a common judgment delivered in separate claim petitions. Therefore, the appeals can be conveniently disposed of by a common judgment.
2. All the appeals except one arise out of claim petitions filed under Section 110-A of Motor Vehicles Act, 1939 (hereinafter referred to as 'the said Act of 1939'). One appeal arises out of a claim petition under Section 166 of Motor Vehicles Act, 1988. All the claim petitions arise out of an unfortunate accident which took place on 20.7.1984. Accident took place at Kesurdi Phata, Pargaon, Taluka Khandala, District Satara. A bus owned by the Maharashtra State Road Transport Corporation was proceeding from Panaji to Pune. The other vehicle involved in the accident was a dumper-truck (hereinafter referred to as 'the dumper') owned by the appellant in First Appeal Nos. 246 to 251 of 1987. The dumper was coming from the opposite side. There was a collision between the two vehicles. The impact of the accident was so devastating that the entire right side of the bus from the driver's cabin till the end was completely torn exposing the seats on the right hand side. There were 35 passengers in the ill-fated bus. 8 passengers died on the spot and one passenger succumbed to injuries later on. 11 passengers suffered injuries. The driver of the S.T. Corporation bus also suffered injuries.
3. Number of claim petitions were filed before the Tribunal. One of the claim petitions was dismissed insofar as some of the claimants were concerned on the ground of bar of limitation. The issue before the Tribunal was whether the accident occurred due to composite negligence on the part of both the drivers. The Tribunal recorded a finding that the accident occurred due to rash and negligent driving on the part of the driver of the dumper. The Tribunal also accepted the defence of the insurer (i.e. Oriental Fire and General Insurance Co. Ltd.) of the dumper that its liability to third party risk was limited. The Tribunal, however, did not accept the contention of the insurer that the liability was limited to Rs. 50,000 and the Tribunal came to the conclusion that the liability was restricted to Rs. 1,50,000 in each case.
4. First Appeal No. 246 of 1987 has been preferred by the owner of the dumper for challenging the award made in M.A.C. Application No. 190 of 1987. By the said award the driver, the owner and the insurer of the dumper were held liable to pay compensation of Rs. 3,26,200 to the original claimants with future interest at the rate of 12 per cent per annum from the date of application till the recovery of the amount together with proportionate costs. The liability of the insurance company was held to be restricted to Rs. 1,50,000 with interest thereon and proportionate costs. First Appeal Nos. 247, 248, 249, 250 and 251 of 1987 have been preferred by the owner of the dumper for challenging the judgments and awards made in the M.A.C. Application Nos. 10 of 1986,191 of 1984, 189 of 1985, 189 of 1984 and 10 of 1985. In First Appeal Nos. 247 and 248 of 1987 cross-objections have been filed by the original claimants. First Appeal No. 432 of 1997 filed by the original claimants takes exception to the judgment and award made by Tribunal in M.A.C. Application No. 408 of 1990. First Appeal Nos. 510, 511, 512, 513, 514 and 515 of 1987 are preferred by the insurer of the dumper for challenging the same awards against which the owner of the dumper has preferred aforesaid appeals. The appeals preferred by the owner of the dumper are for challenging the finding of negligence recorded against the driver of the dumper. The contention raised in the appeal is that the accident occurred due to negligence on the part of the driver of the bus of the S.T. Corporation. Only in First Appeal No. 246 of 1987 (arising out of Claim Application No. 198 of 1984) the challenge is also to the quantum of compensation. The challenge in the appeal preferred by the insurer of the dumper is on the issues of negligence. The challenge in the First Appeal No. 432 of 1997 is to the rejection of the claim of the claimant Nos. 1 to 5 on the ground of bar of limitation.
5. The submission of Mr. Kotak appearing for the owner of the dumper is that the accident occurred due to negligence on the part of the driver of the S.T. Corporation bus. His other two submissions which are made without prejudice to the first submission are that in any event, there was a composite negligence on the part of both the drivers and that there is no evidence led by the insurance company to prove that its liability was restricted to Rs. 1,50,000. He has taken me through the pleadings and notes of evidence. He has invited my attention to various decisions of this court, other High Courts and Apex Court which dealt with in the later part of this judgment. The submission of Mrs. Agarwal in support of the appeals preferred by the insurer of the dumper is that the accident occurred due to negligence on the part of the driver of the S.T. Corporation bus. Her submission is that the limit of liability of the insurance company was Rs. 1,50,000. Mr. G.S. Hegde appearing for the S.T. Corporation in all the appeals has supported the impugned judgments and awards and especially the finding recorded as regards negligence. He has also taken me through the relevant part of the evidence. I have also heard Mr. Punde and Ms. Deshmukh for the original claimants in some of the appeals.
6. Broadly, following points arise for my consideration:
(i) Whether the accident occurred due to negligence on the part of the driver of the S.T. Corporation bus or the driver of the dumper or whether there is/was a composite negligence?
(ii) Whether the liability of insurer of the dumper was limited to Rs. 1,50,000?
(iii) Whether the impugned awards are legal?
So far as First Appeal No. 432 of 1997 is concerned, the aforesaid issues arise along with the issue of limitation which is dealt with separately.
7. Insofar as involvement of both the vehicles in the accident is concerned, there is hardly any dispute. The owners and the drivers of both the vehicles have tried to shift blame on each other for negligence. It will be necessary to refer to the relevant evidence on record for deciding the issue of negligence. At this stage, it may not be necessary to refer to the evidence of most of the claimants as none of them are eyewitnesses. Therefore, I am considering the evidence of the relevant witnesses only. Witness No. 5 examined by the applicant is one Sahebrao Rau Landage who is a panch witness of the panchnama of the spot of accident. Ramchandra Abaji Gad-have, witness No. 6, is a panch witness to the panchnama of the dumper. Sureshbabu Dhullappa Talbhandare, witness No. 7, is a P.S.I, attached to Khandala Police Station at the relevant time. He prepared panchnama of the spot of the accident and he recorded the inquest panchnama. Barma Rama Dhende, witness No. 8, is an officer authorised by the Maharashtra State Road Transport Corporation to depose in the claim made by the said S.T. Corporation. He has deposed about the claim of the Maharashtra State Road Transport Corporation. Witness No. 9 is one Vilas Laxman Bandal who was working as a senior foreman at S.T. Corporation Workshop, Pune. Mahadeo Ganpat Pawar, witness No. 10, is the driver of the said S.T. Corporation bus involved in the accident. The witness No. 1 for the opponent Hanumant Namdeo Bhokare was a passenger travelling in the ill-fated S.T. Corporation bus. Another witness examined by the original opponents is Uttam Abaji Pisal who was the driver of the dumper at the relevant time. One Shivaji Ganpatrao Deokar is a passenger travelling in the S.T. Corporation bus at the time of the accident.
8. Firstly, it will be necessary to refer to evidence of the driver of the dumper. The driver of the dumper Uttam has deposed that at about 7.30 p.m. on the day of the accident after completing work he was returning with the dumper. By taking a kacha road he joined the highway and started proceeding towards Satara. According to him the dumper was proceeding along the left side of the road with the speed of about 20 kmph. He stated that at the relevant time dumper was empty. He stated in examination-in-chief that if the empty dumper is driven in fast speed, it vibrates and it cannot be controlled. According to him up to speed of 40 to 45 kmph dumper can be driven normally without any vibration. The capacity of the dumper according to him was seven and half tons. He stated that when he travelled distance of about 4 km towards Satara, one vehicle came from opposite side in fast speed and it came on the side of the dumper and gave a dash. He stated that as he was driving the vehicle in a slow speed there was no question of application of brakes. According to him there was sufficient space towards the western portion of the road for the other vehicle to pass. He stated that the bus brushed against mudguard on the right side of the dumper and the houda (open bed of the dumper truck which tilts up to unload) portion of the dumper. He stated that he stopped the dumper at a distance of about 10 to 14 ft after the brushing. According to him the bus stopped at a distance of 600 ft. As he apprehended that the members of the public gathered there would assault him, he left with the dumper and he went to Phaltan to report about the accident to the owner of the dumper. On the next day morning he appeared before the Phaltan Police Station with the dumper and gave information to the police.
9. In cross-examination he has stated that at the place of accident on both the sides the road was plain and straight and he could see vehicles coming from front side when it was at a distance of about 200 to 300 ft. He stated that body of the dumper is about three inches wider than its driver's cabin. He stated that the corners of the side of the houda of the dumper are sharp and there are some hooks on the outer side, both on the left and right. He denied the correctness of the suggestion that dumper had gone 3 to 4 ft on the western part of the road and it was the dumper which gave dash to the bus. In the cross-examination, he admitted that after that he left the place of accident, one Ambassador car with red light waived signal to him to stop but he did not stop. He was confronted with his statement recorded by the police and especially the portions marked 'A' and 'B' of the said statement. When he was confronted with the portions of the statement marked 'A' and 'B', he denied that he told the police that he was going at the speed of 70 to 80 kmph and that he told the police that he dashed against the driver side of the S.T. Corporation bus and he did not apply any brake. He denied to have told the police that due to dazzling lights of the bus, he lost control over the dumper. He admitted that due to dash given by the bus, the dumper was pushed towards left side to some extent.
10. Before going to the evidence of the driver of the bus, it will be necessary to refer to evidence of Hanumant Bhokare, witness No. 1, examined by the opponent. He was a passenger travelling in the ill-fated bus. He stated that the bus left Satara at 6.45 p.m. and reached Khandala at 8.20 p.m. According to him, the bus was going along left side of the road after Khandala. He stated that he was not aware about the speed of the bus but the bus appeared to be travelling in normal speed. He was sitting on the seat No. 2 on the left side. He stated that the dumper gave a dash to the bus on its right side. In cross-examination he stated that he was unable to tell whether speed of the bus was 80 kmph. A suggestion was given to him in cross-examination that he was sleeping in the bus and he got up only after the bus received the dash. However, in reply to the said suggestion, he stated that he was not able to say whether he got up only after the bus received a dash. According to him from Satara the bus reached the place of accident within one hour and ten minutes.
11. Another witness Shivaji Deokar examined by the opponents stated that he was travelling on the fateful day in the said bus from Satara to Pune. According to him the bus left Satara at 7.15 p.m. He stated that it was a super fast bus and, therefore, it was going in a fast speed. What is important is that he stated before the Tribunal that the bus was going along the middle dividing line of the road on its own side. According to him he was sitting in the middle of the bench behind the driver facing the driver side. He stated that he could see light of the vehicle coming from opposite side. He stated that both vehicles brushed each other. According to him, bus went up to a distance of 100 to 150 ft from the place of the accident and thereafter it stopped. He stated that he did not think that brakes were applied by the bus driver before the vehicles brushed. In the cross-examination the witness had admitted that right from the driver's cabin up to the end, the tin had been completely torn. In cross-examination no specific suggestion is given to him that his statement in the examination-in-chief to the effect that the bus was going along the middle dividing line was wrong or incorrect.
12. In the light of this evidence on the record, it will be necessary to refer to the evidence of Mahadeo Pawar who as the driver of the bus of the S.T. Corporation. According to Mahadeo, his duty started at Kolhapur at 4 p.m. He left Satara at about 7 p.m. He stated that after he had crossed Khandala, a yellow coloured vehicle which he presumed to be a truck came from the opposite direction with full headlights on. According to him he was going by the left side of the road and driver of the other vehicle crossed the middle dividing line and came at the distance of 3 ft. on its wrong side. He stated that as the vehicle came on the wrong side, he applied brakes. In the cross-examination, he denied the suggestion that he was driving the bus in the middle of the road. He stated that he could see the vehicle coming from the opposite direction when it was at the distance of about 100 ft from the bus. He stated that from the shape of the vehicle he could make out that the vehicle was a dumper. He stated that vehicle was coming in a fast speed. Importantly, he stated that he had put his foot on the brakes but did not apply the brakes. He stated that before he could think of applying the brakes, there was a dash. He denied the suggestion that it was his bus which gave dash to the dumper. In further cross-examination, he stated that road is quite straight and the width of the tar road is 23 ft. He denied the suggestion that the speed of the bus was about 80 kmph.
13. It will be necessary at this stage to refer to the finding recorded by Tribunal on this aspect. Tribunal observed in para 31 of the judgment that non-application of brakes cannot be an indication of rashness or negligence. The Tribunal observed that the driver of the bus could not have expected that the driver of the dumper will cross the middle dividing line. After noting that there was some discrepancy as to whether the brakes of the bus were applied by the driver of the bus or not, the learned Member of the Tribunal came to the conclusion that merely on the basis of failure to apply brakes negligence cannot be inferred. The learned Member of the Tribunal referred to the panchnama which is at Exh. 31 which shows that the width of the highway at the spot is 33 ft with cushion of kacha road on both the sides. The panchnama discloses that a neem tree is at the distance of 14 ft to the west of the dividing line of the road. The panchnama also describes the scene of the accident. The Tribunal has observed that at the time of hearing, the insurance company and driver of the dumper were interested in pointing out that the accident was due to composite negligence on the part of both the drivers. He noted that in the applications for compensation, allegation was that it was only the driver of the dumper who was responsible for the accident. In my view, the learned Member of the Tribunal could not have given much importance to the averments made in the claim petitions. Most of the claim petitions were filed by the claimants who were not at all aware as to how the accident occurred as they were not eyewitnesses. However, learned Member has noted that an allegation was made that even bus was driven at high speed. The learned Member has noted that before the police, the driver of the dumper stated that he was proceeding with speed of 40 to 45 kmph and due to the dazzling lights of the bus he lost control and brushed against the bus. The learned Member of Tribunal has noted that before the Tribunal the said stand was not taken and the marked portion 'A' and 'B' in the statement of the driver recorded by police were disputed by the driver in the cross-examination. The Tribunal has noted the statement on oath by the driver of the dumper that if the dumper is driven at the speed of 45 kmph, there are no vibrations but if the speed exceeds 45 km, there are vibrations. The Tribunal has observed that it is improper to accept the statement of the driver of the dumper. The Tribunal further observed that this statement itself may indicate that he must have lost control over the vehicle. The Tribunal also considered the fact that glass pieces from the S.T. Corporation bus had fallen on both sides of the road and the broken glass pieces covered large area near the spot of accident. The Tribunal was impressed by the fact that a false defence was taken by the driver of the dumper in his written statement by contending that he was not involved in the accident. The Claims Tribunal has relied upon the statement made by the driver of the dumper before the police and noted the contradictions brought on record in his cross-examination. Considering all these aspects, Tribunal came to the conclusion that there was no negligence on the part of the driver of the bus and the accident occurred entirely due to negligence on the part of the driver of the dumper.
14. It appears that some of the important aspects of the evidence have been overlooked by the learned Member of the Tribunal. Evidence of Shivaji, the witness No. 2 examined by the opponents had disclosed that the bus was going along the middle dividing line of the road on its own side. He stated that he could see lights of the vehicle coming from the front side. He stated that both the vehicles brushed each other. Turning back to the evidence of the driver of the S.T. Corporation bus, he has stated that he was going by the left side of the road and dumper crossed the middle dividing line and came up to the distance of about 3 feet on its wrong side. He has also stated in the examination-in-chief that truck came from the opposite side with full headlights on. He stated that when the dumper came on the wrong side, he applied brakes. In the cross-examination, he however stated that he had put his foot on the brakes but he did not apply the brakes and even before he could think of applying the brakes, there was a dash. As stated earlier, the impact of the accident was so much that the entire right side of the bus was torn and the seats were exposed. If driver stated that he had no time even to think of applying brakes, it is impossible to believe that driver of the S.T. Corporation bus could have noticed that the dumper crossed the dividing line on the road to the extent of 3 ft. It is very difficult to understand how he could have stated with precision that the dumper came on the wrong side to the extent of only 3 ft. It is also pertinent to note that he has stated that he could see the vehicle coming from the opposite direction when it was at the distance of 100 ft. It cannot be ignored that witness Shivaji stated that as the bus was a super fast bus it was proceeding in a very fast speed. I find that there is no specific suggestion given in the cross-examination of the witness Shivaji about the said statement.
15. The driver of the dumper has stated that the S.T. Corporation bus came on its wrong side and gave a dash to the dumper. He stated that the bus was visible at distance of about 200 to 300 ft. At this stage, it must be noted that it is admitted position that the road at the spot of the accident is very straight. It is true that initially a stand was taken by the driver of the dumper denying his involvement in the accident. It is to be noted that on his own he reported to the police station in the morning after the accident.
16. In the accident of such a devastating nature it is difficult to expect that the panchnama will precisely record the exact spot where the impact has taken place. The exact spot of accident has to be reasonably ascertained from the evidence of the eyewitnesses. If evidence of all the witnesses is considered, there is enough material on record to show that the S.T. Corporation bus was being driven along the centre line of the road. As stated earlier, it is very difficult to accept the correctness of the version of the driver of the S.T. Corporation bus that the dumper came on its wrong side to the extent of 3 ft. Thus, it can be broadly said that the impact of the accident must be somewhere near the centre of the road. It is impossible to come to any specific conclusion that one particular vehicle came on its wrong side. In this case, it is not the version of the driver of the S.T. Corporation bus that dumper came completely on its wrong side. According to him the extent of encroachment made by the dumper on the wrong side of the centre was to the extent of 3 ft. The driver of the S.T. Corporation bus has stated that he has seen the vehicle from the distance of 100 ft. The version of the driver of the dumper is that he could see the bus at the distance of about 200 to 300 ft.
17. At this stage, it will be necessary to refer to the decision relied upon by Mr. Kotak. The first decision is in the case of Kumar Mohamed Rafique v. Municipal Corporation of Greater Bombay 1986 ACJ 55. It is a decision of a Division Bench of this court. In para 16, the Division Bench has held thus:
The owner of a travel bus who invites passengers to travel on his vehicle for hire or reward is under an obligation to take all precautions to carry passengers safe to their destination. He takes the risk of accidents to passengers resulting from their exposure to the hazardous situations.... The risk of such accidents occurring is always there and the owner of the vehicle must be fastened with the knowledge that such a risk is always involved....
Mr. Kotak has pressed into service another decision of the Division Bench of this Court in the case of Shakuntla Shridhar Shetty v. State of Maharashtra 1976 ACJ 368. The view taken by the Division Bench is that a person in control of motor vehicle must keep good look out in all directions of the road and where he notices another user of the road it is his duty to so adjust the speed that in case of necessity, he can stop the vehicle instantaneously.
18. In the present case, the version of both the drivers is that they had seen the respective vehicles approaching from the opposite side from a reasonable distance. The driver of the dumper was under obligation to be very vigilant as according to him the width of the body of the dumper behind driver's cabin is more than width of the driver's cabin. It is also admitted position that the dumper was empty and if speed crosses a particular limit, there is a tendency on the part of the body of the dumper to vibrate. So far as driver of the bus is concerned, the evidence of witness Shivaji Deokar shows that bus was a super fast bus and was being driven in a high speed. Evidence on record shows that bus was being driven along the centre of the road. Driver of the bus was conscious of tht fact that he was carrying 35 passengers. He himself has stated that he could see the dumper approaching from the distance of 100 ft in a very high speed. There is a serious contradiction in examination-in-chief and the cross-examination about the fact of the driver of the S.T. Corporation bus applying brakes. In the examination-in-chief, he has come out with a case that he had applied brakes. However, in the cross-examination he came out with a case that even before he could think of applying brakes, there was a dash by the dumper. The driver of the bus has not stated that he made any attempt to take the bus on its left side. Thus, it is obvious that there is a failure on the part of both the drivers to comply with the obligation of taking care after noticing that the other vehicle was approaching in a fast speed from opposite side. To repeat, the road was fairly straight at the place of the accident. It is not the case of any party that at the relevant time there were vehicles around the bus and the dumper. Negligence does not always mean absolute carelessness. The negligence can be on account of failure to observe, for protection of interests of another person, the degree of care and vigilance which the circumstances require. The accident has taken place near the middle of the road. Considering all these facts, the only irresistible conclusion which can be drawn is that there was negligence on the part of the drivers of both the vehicles and to that extent the finding recorded by the Tribunal is erroneous. Therefore, liability will have to be apportioned equally between the two vehicles.
19. Mr. Kotak had made a grievance regarding excessive compensation granted in M.A.C. Application No. 170 of 1984. It will be therefore necessary to refer to the finding recorded by the Claims Tribunal as regards quantum of compensation. The learned Member of Claims Tribunal has adverted to the evidence adduced by the claimants as regards the income. There is an evidence of Daryavarsing, the employer of the deceased in the said claim. Income taken by the learned Judge for calculating the multiplicand is on the basis of evidence of the employer. According to him the deceased Ishwarsingh was drawing monthly salary of Rs. 1,400. He stated that the said Ishwarsingh used to get commission on sale of books. He was getting a sum of Rs. 10,000 per year on the said account. He stated that deceased used to be on tour very frequently and he was paid Rs. 30 per day while on tour. Considering all these aspects, Tribunal has reasonably taken his monthly income as Rs. 3,000. The age of the deceased was about 32 years at the time of accident. After deducting 1/3rd amount on account of personal expenditure and after applying multiplier of 13, the compensation amount will be Rs. 3,12,000. Adding usual amount of Rs. 15,000, the compensation amount will be Rs. 3,27,000. Considering the evidence regarding the income it is very difficult to find fault with the compensation of Rs. 3,26,200 awarded by the Tribunal in this case.
20. At this stage First Appeal No. 432 of 1997 will have to be considered separately. The appeal arises out of Claim Application No. 408 of 1990. The accident occurred on 20.7.1984. The claim application was filed on 11.10.1990. The claim was filed by the legal representatives of one Rajaram Mangole. The applicant No. 6 who is the son of the deceased Rajaram attained majority on 1.7.1990. The learned Member of the Tribunal held that in view of Sub-section (3) of Section 166 of Motor Vehicles Act, 1988, the claim application insofar as the applicant Nos. 1 to 5 are concerned was barred by limitation. The claim application has been allowed insofar as applicant No. 6 is concerned. Sub-section (3) of Section 166 provided that a claim petition could have been filed in maximum period of 12 months from the date of accident. By the Motor Vehicles (Amendment) Act, 1994, Sub-section (3) has been omitted with effect from 14.11.1994. Therefore, from that date, there is no prescribed period of limitation for filing the claim. When the amendment came into force, the said claim application was pending. The question is whether the applicants will get benefit of the said amendment? The issue is no longer res Integra in view of the decision of the Apex Court in Dhannalal v. D.P. Vijayvargiya : AIR1996SC2155 . The Apex Court held that deletion of Sub-section (3) of Section 166 should be given full effect so that object of deletion of the said Sub-section by Parliament will not be defeated. The Apex Court held that even in cases where matters were pending before Claims Tribunal or the High Courts, the benefit of deletion will be made available to the claimants and only in cases where the awards have attained finality that the benefit will not be available. Therefore, all the claimants in the application will be entitled to compensation. The Tribunal has taken the income of deceased Rajaram at Rs. 1,746 per month. After deducting 1/3rd amount on account of personal expenditure, the multiplicand comes to Rs. 13,968. Considering that age of the deceased was 49 years, multiplier of 9 has been rightly applied by the Claims Tribunal. Thus, the total compensation comes to Rs. 1,25,712. To this a usual amount of Rs. 15,000 on account of loss of consortium, etc., will have to be added. Taking a round figure, the compensation payable is Rs. 1,40,000. In this case there is no appeal preferred by the owner of the dumper and the insurer of the dumper challenging the finding on the point of negligence of the driver of the dumper. In this judgment I have already held that the liability will have to be equally apportioned between the dumper and the bus. Hence, in this appeal provision of Rule 33 of Order 41 will have to be applied for passing a proper award and, therefore, the finding on the issue of negligence will have to be accordingly modified.
21. This takes me to the issue regarding the claim petition filed by the State Road Transport Corporation. The said claim petition is M.A.C. No. 10 of 1985. It will be necessary to refer to the claim of the S.T. Corporation. A part of the claim is on account of damage caused to the bus which was involved in the accident. The second part of the claim relates to recovery of ex gratia compensation paid by State Road Transport Corporation to the relatives of the deceased passengers and to the injured persons. According to the version of Barma Dhende, witness No. 8, he was working as Assistant Traffic Superintendent in the S.T. Corporation at Pune. According to him, the total expenses on the repairs of the bus were about Rs. 70,000. According to him bus was idle for 15 days and, therefore, idle charges per day are claimed. According to him sum of Rs. 12,700 was paid to the injured passengers as on the spot payment. According to him the S.T. Corporation has sanctioned payment of Rs. 30,000 to the heirs of dead persons as ex gratia compensation. He stated that except in the case of claimants in M.A.C. Application No. 189 of 1985, rest of the claimants have not taken the compensation amount of Rs. 30,000. The Tribunal has granted a sum of Rs. 70,000 on account of damage to the bus, a sum of Rs. 42,700 being the ex gratia compensation paid and the amount of Rs. 3,000 on account of idle charges.
22. Mr. Kotak has placed reliance on the decision of the learned single Judge of this Court in Suba Transport Co. v. Phiroze Sethane Pvt. Ltd. . The issue before the learned single Judge was as regards jurisdiction of the Claims Tribunal to adjudicate upon the claims for damage to any property of third party arising out of an accident. Learned single Judge held that from plain reading of the provisions of Motor Vehicles Act, 1939, legislature has conferred power on the Tribunal for adjudicating upon claims for compensation in respect of the accidents involving damage to any property owned by the third person only when the said property is put to actual loss by the accident. It is held that the property must be put to loss out of direct incidence of the accident. It is held that if the property is not put to the actual loss or is not owned by the claimant, then in that event the damage to any such property cannot come within the ambit of Section 110 read with Section 110-A of the said Act of 1939. Mr. Kotak pointed out that in Civil Appeal No. 10406 of 1995 the decision of the learned single Judge had been confirmed by the Apex Court by the order dated 21.8.2002.
23. Coming back to the findings recorded by the Tribunal insofar as claim petition filed by the Maharashtra State Road Transport Corporation is concerned, the Tribunal found that claimant in M.A.C. Application No. 189 of 1985 had received Rs. 30,000 by way of ex gratia compensation from the S.T. Corporation and, therefore, that amount was recoverable by the S.T. Corporation from the owner of the dumper. The Tribunal allowed idle charges at a flat rate of Rs. 200 per day for a period of 15 days. The Tribunal also accepted that a sum of Rs. 12,700 was paid by the S.T. Corporation to the injured victims and the said amount is also recoverable by the S.T. Corporation. The Tribunal accepted the evidence of the witness examined by the S.T. Corporation, namely, Barma Dhende that the total expenses on the repairs were about Rs. 70,000. Though the Tribunal has referred to the evidence of Vilas Bandal, witness No. 9, it has not considered the said evidence. The said Vilas was working as a senior foreman in Divisional Workshop of the S.T. Corporation at Pune which has undertaken the repair work of the bus involved in the accident. He stated that the work was started from 16.12.1984 and was going on till 6.1.1985. He stated that he supervised the repair work and the cost of material including the labour charges was Rs. 23,998.95. This amount is supported by the document at Exh. 94. He is the witness examined by the S.T. Corporation. In the light of this evidence, it is surprising that learned Member of Tribunal accepted that total expenses incurred on repair were Rs. 70,000.
24. So far as claim regarding payment of Rs. 12,700 to the injured persons is concerned, reliance was placed on receipts produced by the S.T. Corporation. It must be noted here that none of the alleged recipients of the compensation have been examined by the S.T. Corporation to prove the receipt. No particulars of the said injured persons are given in evidence. It was the payment made ex gratia by the S.T. Corporation. Such payment cannot be said to be a damage to a tangible property of the S.T. Corporation arising directly out of the accident. The payment is made in view of the policy of the S.T. Corporation. So far as payment of sum of Rs. 30,000 to one of the claimants is concerned, as I have held that even the S.T. Corporation is liable to pay compensation to the extent of 50 per cent, the sum of Rs. 30,000 will have to be adjusted against the compensation payable to claimant in M.A.C. Application No. 189 of 1985.
25. Thus, the sum and substance of the above discussion is that the award made in favour of the S.T. Corporation will have to be modified. A sum of Rs. 23,998.95 will have to be awarded on account of cost of the repair work and a sum of Rs. 3,000 on account of the idle charges. Thus, the total amount will be Rs. 27,000. As the driver of S.T. Corporation bus has contributed to the negligence, the actual amount payable will be 50 per cent of the aforesaid amount with interest awarded by the Tribunal.
26. This takes me to cross-objections filed by claimants in First Appeal Nos. 247 and 248 of 1987, i.e., Claim Application Nos. 10 of 1986 and 191 of 1984. In Claim Application No. 10 of 1986, in case of the deceased of the age of 53 years, compensation of Rs. 3,00,000 has been awarded. Even according to the evidence of widow of the deceased, the total dependency was Rs. 3,300 per month (i.e., Rs. 39,600 per year). Considering the age of the deceased, the multiplier of maximum 7 could have been taken. Therefore, the compensation of Rs. 3,00,000 is very reasonable. In M.A.C. Application No. 191 of 1984, the age of the deceased was 30 years. The income of the deceased was Rs. 2,700 per month. Taking dependency of Rs. 1,750 per month, multiplier of 20 has been applied. In my view, compensation of Rs. 2,50,000 is just and proper and no interference is called for.
27. Insofar as appeals preferred by the insurer of the dumper are concerned, the same will be governed by the decision in the appeals preferred by the owner of the dumper.
28. The appeals filed by the owner of the dumper must succeed in part only to the extent of finding regarding negligence. The compensation payable to the claimants will have to be apportioned equally between the S.T. Corporation and the owner and insurer of the dumper. The compensation fixed by the Tribunal in all the claims is reasonable and no interference can be made with the quantum of compensation. So far as the cross-objections filed by the original claimants are concerned, the same will have to be dismissed. The award made in favour of the Maharashtra State Road Transport Corporation will have also to be modified to the extent stated earlier. The award made in favour of the claimant in M.A.C. Application No. 189 of 1985 will have to be modified by providing that the S.T. Corporation will be entitled to adjust a sum of Rs. 30,000 which is already paid by way of ex gratia compensation.
29. So far as the First Appeal No. 432 of 1997 is concerned, the award will have to be modified by holding that all the claimants will be entitled to the compensation which is already fixed. As a result of allowing the said appeal, the claimants will have to pay deficit court-fee as they have paid court-fees only on the claim of Rs. 1,33,000. Time of four months will have to be granted to pay deficit court-fees.
30. The insurance policy issued by the insurer of the dumper was placed on record at Exh. 122. The policy discloses that the liability in case of third parties was limited to Rs. 50,000. However, the policy was issued after 1.10.1982. Hence, the extent of liability will have to be taken to be Rs. 1,50,000 in case of each claim.
31. Hence, I pass the following order:
First Appeal No. 247 of 1987 with Cross-objection No. 14198 of 1987 and First Appeal No. 515 of 1987:
(i) The impugned judgment and award passed in M.A.C. Application No. 10 of 1986 is modified. The operative part of the impugned judgment and award in the said claim application will be substituted by following:
(a) The opponents do pay Rs. 3,00,000 to the applicants together with future interest at the rate of 12 per cent per annum from the date of application till the payment of entire amount.
(b) The opponents shall pay proportionate costs of the claim application to the applicants. The liability of the opponent Nos. 1 to 3 is to the extent of 50 per cent and the liability of the opponent Nos. 4 to 6 is to the extent of 50 per cent. It is clarified that the liability of the opponent No. 6-insurance company is restricted to Rs. 1,50,000 with interest and proportionate costs on the sum of Rs. 1,50,000.
(ii) The learned Member of the Tribunal will pass appropriate order for disbursement/distribution of the amount of compensation to various applicants after taking into account the direction given for the disbursement/investment in the impugned judgment and award.
(iii) There will be no orders as to costs in the first appeals and cross-objection.
(iv) First appeals are partly allowed in above terms. Cross-objection No. 14198 of 1987 filed by the respondent Nos. 1 to 6 is dismissed.
First Appeal No. 432 of 1997:
(i) The impugned judgment and award passed in M.A.C. Application No. 408 of 1990 is quashed and set aside. The operative part of the judgment and award will now read thus:
(a) The opponents do pay to the applicants a sum of Rs. 1,40,000 together with interest thereon at the rate of 12 per cent per annum from the date of presentation of the claim application till realisation of the amount. The applicants will be also entitled to the proportionate costs of the claim application from the opponents.
(b) The liability of the opponent Nos. 1 to 3 will be to the extent of 50 per cent and that of the opponent Nos. 4 and 5 will be to the extent of 50 per cent. It is made clear that liability of the opponent No. 2 - insurance company is restricted to Rs. 1,50,000 together with proportionate costs and interest on the sum of Rs. 1,50,000.
(ii) Time of four months is granted from today to the appellants to pay deficit court-fees in the original claim application as well as in this first appeal.
(iii) The learned Member of the Tribunal will pass appropriate order for the disbursement of the amount of compensation to the appellants in accordance with law.
(iv) Appeal is allowed in above terms.
(v) The respondents to pay costs of the appeal to the appellants.
First Appeal Nos. 249 and 514 of 1987:
(i) The impugned judgment and award passed in M.A.C. Application No. 189 of 1985 is modified. The operative part of the impugned judgment and award will now read thus:
(a) The opponents do pay a sum of Rs. 1,62,000 to the applicants as compensation together with future interest at the rate of 12 per cent per annum from the date of filing of the application till the realisation of entire amount. The applicants will be entitled to proportionate costs of the claim application from the opponents.
(b) The liability of the opponent Nos. 1 to 3 is to the extent of 50 per cent and the liability of the opponent Nos. 4 to 6 is to the extent of 50 per cent. While paying the compensation amount, the opponent No. 1 will be entitled to adjust a sum of Rs. 30,000 paid to the applicants by way of ex gratia payment. It is clarified that the liability of opponent No. 6 is to the extent of Rs. 1,50,000 only together with proportionate costs and interest on Rs. 1,50,000.
(ii) The learned Member of the Tribunal will pass appropriate order regarding the disbursement/investment of the amount of compensation to the respondents after taking into consideration the direction given for the disbursement/investment in the impugned judgment and award.
(iii) There will be no orders as to costs in these appeals.
(iv) The appeals are allowed partly as above.
First Appeal Nos. 246 and 511 of 1987:
(i) The impugned judgment and award passed in M.A.C. Application No. 190 of 1984 is modified. The operative part of the impugned judgment and award will now read thus:
(a) The opponents do pay Rs. 3,26,200 to the applicants together with future interest at the rate of 12 per cent per annum from the date of application till the date of realisation of entire amount.
(b) The opponents will also pay proportionate costs of the claim application to the applicants. The liability of the opponent Nos. 1 to 3 is to the extent of 50 per cent and the liability of the opponent Nos. 4 and 5 is to extent of 50 per cent. It is made clear that the liability of opponent No. 3-insurance company is restricted to a sum of Rs. 1,50,000 together with proportionate costs and interest on the sum of Rs. 1,50,000.
(ii) The learned Member of the Tribunal will pass appropriate order for disbursement/investment of the amount of compensation to the respondents after taking into consideration the directions given in that behalf in the impugned judgment and award.
(iii) There will be no orders as to costs in these appeals.
(iv) The appeals are partly allowed in above terms.
First Appeal Nos. 251 and 513 of 1987:
(i) The impugned judgment and award in M.A.C. Application No. 10 of 1985 is modified. The operative part of the award will now read thus:
The opponents do pay to the applicant a sum of Rs. 13,500 together with interest at the rate of 12 per cent per annum from the date of filing the claim application till realisation of the amount. The opponent shall pay proportionate costs of the claim application to the applicant.
(ii) If appellants have paid any amount to the respondent on the basis of impugned judgment and award, the respondent will be liable to make necessary refund to the appellants.
(iii) There will be no orders as to costs in these appeals.
(iv) The appeals are partly allowed in above terms.
First Appeal Nos. 250 and 510 of 1987:
(i) The impugned judgment and award in M.A.C. Application No. 189 of 1984 is modified. The operative part of the impugned judgment and award will now read as under:
(a) The opponents do pay to the applicants a sum of Rs. 1,22,000 together with future interest at the rate of 12 per cent per annum from the date of filing of claim application till realisation of the entire amount. The opponents shall pay proportionate costs to the applicants of the claim application.
(b) The liability of the opponent Nos. 1 to 3 is to the extent of 50 per cent and the liability of the opponent Nos. 4 and 5 is to the extent of 50 per cent. It is made clear that the liability of opponent No. 3-insurance company is restricted to Rs. 1,50,000 with proportionate costs and interest on Rs. 1,50,000.
(ii) The learned Member of the Tribunal will pass appropriate order for disbursement/investment of the amount of compensation after taking into account the direction given in that behalf in the impugned judgment and award.
(iii) There will be no orders as to costs in these appeals.
(iv) The appeals are partly allowed in above terms.
First Appeal No. 248 of 1987 with cross-objection and First Appeal No. 512 of 1987:
(i) The impugned judgment and award in M.A.C. Application No. 191 of 1984 is modified. The operative part of the impugned judgment and award in the said claim application will now read thus:
(a) The opponents do pay a sum of Rs. 2,50,000 by way of compensation to the applicants together with future interest at the rate of 12 per cent per annum from the date of filing of the application till the realisation of the entire amount. The opponents shall pay proportionate costs of the claim application to the applicants.
(b) The liability of the opponent Nos. 1 and 3 is to the extent of 50 per cent and the liability of the opponent Nos. 4 and 5 is to the extent of 50 per cent. It is made clear that liability of the opponent No. 3 - insurance company is restricted to Rs. 1,50,000 together with proportionate costs and interest on Rs. 1,50,000.
(ii) The learned Member of the Tribunal will pass appropriate order for disbursement/investment of compensation amount to the original applicants after taking into account the direction given in that behalf in the impugned judgment and award.
(iii) There will be no orders as to costs in the appeals and cross-objection.
(iv) First appeals are partly allowed in above terms. The cross-objection stands dismissed.