Damodhar and Another Vs. Maharashtra State Road Transport Corporation and Others - Court Judgment

P.N. Deshmukh, J.

1. All these first appeals can be conveniently disposed of together as they are arising out of common judgment and order passed by the Chairman, Motor Accident Claims Tribunal, Amravati, in Motor Accident Claim Petition (MACP) No.143 of 2007 and M.A.C.P. No.413 of 2008 filed by parents, wife and daughter, respectively, of deceased Rajendra Verma, whereby the total compensation awarded is Rs.10,33,500/-, inclusive of 'no fault liability' with interest at the rate of Rs. 8% per annum from the date of petition till its realization. Out of said amount, Rs.1,00,000/- and Rs.2,00,000/-, respectively, are ordered to be paid to the parents of deceased while remaining amount along with interest is ordered to be equally paid to the widow and daughter of deceased.

2. First Appeal No.250 of 2012 is filed by the parents Damodhar Verma, aged 65 years, and Sau.Sunita Verma, aged 60 years of deceased Rajendra, while no appeal is preferred by the widow and daughter of the deceased.

First Appeal Nos.981 of 2012 and 604 of 2013 are preferred by Maharashtra State Road Transport Corporation, Amravati/Ori. respondent, challenging above order.

3. Heard Shri P.R. Agrawal, learned counsel for the appellants, Shri V.H. Kedar, learned counsel for respondent no.1 M.S.R.T.C. and Shri A.S. Ambatkar, learned counsel for respondent nos.3 and 4.

4. It is the case of appellants that on 1st of December, 2006 deceased Rajendra Verma, practising Advocate, while was proceeding in the night time on his motor cycle bearing No.MXG-266 by the correct side of the road, in a normal speed, was dashed by S.T.Bus bearing No.MH-12/UA-1920 which was coming from opposite direction by the wrong side of the road due to which Rajendra sustained severe injuries and succumbed to same at General Hospital, Amravati.

It is the case of appellants that deceased was earning Rs.50,000/- per month out of legal profession and Rs.30,000/- per annum by way of agricultural income and has accordingly claimed compensation to the extent of Rs.68,75,000/- with interest at the rate of 9% per annum from the date of accident till realization. The learned Tribunal awarded compensation to the extent of Rs.10,33,500/-, as aforesaid, with interest at the rate of Rs.8% per annum from the date of petition till realization. Hence, this appeal.

5. According to learned counsel for the appellants Shri P.R.Agrawal, the learned Tribunal had erred while concluding that accident occurred due to negligence of deceased to the extent of 20%, by not properly appreciating the evidence on record and has contended that in fact the accident being head-on-collision it was no case of contributory negligence but of composite negligence of S.T.Driver. On the point of quantum, referring to evidence on record, it is contended that deceased being a successful Advocate was earning handsome income. However, the Tribunal did not rely upon the evidence of witnesses terming them to be interested and has also contended that the Tribunal erred in deducting one-third amount of compensation towards personal expenses of deceased and has submitted that in fact one-fourth amount should have been deducted towards the personal expenses of deceased as number of family members of deceased are four. It is further contended that the Tribunal had even not considered that the appellants are aged parents of deceased who were depending on him and as such should have had awarded 50% of the amount of total compensation and thus submitted that the appeal be thus allowed by considering above aspects.

6. Learned counsel for the respondent - M.S.R.T.C. has opposed the appeal and in support of First Appeal Nos.981 of 2012 and 604 of 2013 has contended that the learned Tribunal has failed to appreciate that the driver of the S.T.bus had taken utmost care to avoid the accident by taking it to the extreme left side of the road, however, since deceased was proceeding on his motor cycle in a high excessive speed, dashed to the S.T.Bus from its right side and as such has contended that the Tribunal has wrongly come to the conclusion that the S.T.Bus driver was negligent to the extent of 80%.

7. On the point of quantum, it is contended that the learned Tribunal without there being any evidence on record came to the conclusion that monthly income of deceased could be to the extent of Rs. 10,000/- per month and accordingly on applying multiplier of 16 granted compensation to the extent of Rs.10,33,500/- and has thus contended that as the accident has occurred solely due to the negligence of deceased, the appeals are liable to be allowed by setting aside the impugned judgment and award.

8. Considering the rival submissions advanced by learned counsel of both the sides, we have perused the impugned judgment together with the documents on record. On the point of negligence, appellant Damodhar has examined himself. From his testimony it is established that the accident took place on 1st of December, 2006 involving deceased while he was proceeding on his motor-cycle bearing No.MXG-266 and S.T.Bus owned by respondent no.1 bearing registration No.MH-12/UA-1920 where in deceased sustained severe injuries and succumbed to same. As per Post-Mortem report Exh.43 deceased is stated to have died due to brain hemorrhage caused due to head injury in the road accident. Above evidence thus establish that the deceased died in a vehicular accident.

9. On the point of incident, it is stated by appellant Damodhar -father of the deceased that the accident took place due to rash and negligent driving of the S.T. driver. No other witness is examined by the appellants on this count. Admittedly, appellant is not an eye witness to the accident. Respondent - M.S.R.T.C. has examined its driver at Exh.71 who has stated that deceased under the influence of liquor drove his motor-cycle in rash and negligent manner and thus though the S.T.Bus was taken to the extreme left side of the road, deceased dashed his vehicle on the S.T.bus from its driver side. Except for above, admittedly, there is no other evidence on the point of accident. As such, on considering the spot panchanama the learned Tribunal though has noted that said documents came to be prepared in a slipshod manner, has found that there was a mark on the handle of the motorcycle which brushed the bus from its driver's side right from the beginning of the driver's seat to the end of the vehicle and has thus, rightly held that the accident is not a head-on-collision, as had it been a case of head-on-collision, no such mark could have been found on the driver's side of the S.T. Bus.

10. In view of above finding of the Tribunal based on the spot panchanama (Exh.41) and on considering the fact that there was a mark on the handle of the motorcycle as well as on the S.T.bus right from its driver's seat to the end, it can be concluded that it is the case of contributory negligence involving deceased as well as S.T.driver.

In the background of Spot panchanama and on considering the evidence of S.T.driver, who has stated that he has taken the bus to the extreme left side of the road, it appears that deceased being in a high and excessive speed, dashed his motorcycle to the right side of the S.T.Bus inspite of the fact that the bus was taken by its driver to the extreme left side of the road, which is about 22 ft. in width. As such, it is to be noted that there was sufficient road available for deceased to safely pass through the road, had he been in a moderate speed, more particularly, when there is nothing on record to establish that at the material time there was any traffic on the road, which could have constrained deceased to drive his motor cycle near from the S.T.Bus.

11. In the background of above evidence, learned counsel for the respondent - M.S.R.T.C., on the point of apportionment of liability, relied upon the case of Sri Krishna Vishweshwar Hegde vs. General Manager, K.S.R.T.C. reported in 2008 ACJ 1617 where in collision between motorcycle and bus, motor cyclist sustained an injury, Tribunal held that the injured and bus driver are equally negligent while the High Court held the responsibility of injured to the extent of 75% and that of bus driver 25%. In an appeal, the Apex Court observed that the Tribunal after detailed consideration of the evidence, held both drivers equally negligent and accordingly modified ratio by restoring the Tribunal's findings.

12. It is to be noted that it is always bounden duty of the bigger vehicle to take all necessary precautions and such degree increases while travelling at night time. From the evidence of bus driver it appears that he has taken due care and caution to avoid the accident by taking the bus to the extreme left side of road, as such the findings of the learned Tribunal holding it a case of contributory negligence certainly needs to be affirmed in view of findings based on spot panchanama, as referred above, since there appears scratch mark on the driver side of S.T. vehicle right from the driver's seat till end, however, no negligence to the extent of 80% can be attributed to the S.T. driver. On the contrary, we thus find that the deceased was also negligent while driving his vehicle, thus causing the accident. We thus, hold responsibility of deceased to the extent of 30% and 70% on the part of S.T.driver.

13. On the quantum, it is necessary to be noted that for assessing amount of compensation, age of deceased needs to be considered. In the appeals in hand deceased was 38 years old at the time of incident. In the case of Smt. Sarla Verma and ors. vs. Delhi Transport Corporation and anr., reported in 2009(4) ALL MR 429, the Apex Court held that the multiplier to be used should be as mentioned in column 4 of the table of said judgment which starts with an operative multiplier of 18. As deceased was aged 38 years, thus the proper multiplier which could be applied in this case should be 15, which is in the age group of deceased between 36 and 40 years.

14. According to the evidence of appellant Damodhar, deceased was earning Rs.50,000/- per month from legal profession and to support his evidence has also relied upon list of cases (Exh.47) by which the deceased was having 151 briefs at the time of his death and 700 Law Books as per list at Exh.59. However, it is to be noted that neither of these documents establish exact income of deceased per month nor his approximate income. Appellant on this count had also examined Santosh Jaiswal who was working as a Clerk of deceased. He stated that the deceased was earning Rs.70,000/- to Rs.75,000/- per month. Similar is the evidence of Advocate Jahagirkha Dilawarkha Pathan (Exh.66). However, above evidence does not find to be convincing, as has been rightly held by the Tribunal to be that of interested witnesses and also in the absence of any documentary proof to that effect like Income Tax Returns, etc. In that view of the matter, it is necessary to be noted that the wife of deceased, who had admittedly filed a separate petition, has pleaded that monthly income of her deceased husband was Rs.15000/- per month. In the absence of any evidence or any documentary proof of income of deceased, wife of deceased can any time can be in a better position to state the monthly income of her deceased husband than any other witnesses, as afore stated.

15. In that view of the matter and in view of the evidence on record that deceased had put in 14 years of practice as a lawyer and was moving from different talukas for practice, we find it reasonable to hold the monthly income of deceased to the extent of Rs.12500/- per month.

16. Learned counsel for the appellants contends that no agricultural income is assessed by the Tribunal and claims that Rs.2000/- per month should be awarded to claimants on this count and for that purpose has relied upon 7/12 extracts on record at Exh.55. On perusal of this document it reveals that the land admeasuring 1 hectare 85 ares is jointly owned by deceased and his brother. The learned Tribunal appears to have not awarded any compensation on this count finding that it is not that agricultural land will not be cultivated after the death of deceased and found that the land is being cultivated by other family members, did not assess any income on this count. However, we find that in view of fact of deceased having agricultural land jointly owned by his brother, the claimants are surely bound to lose the skill of management and guidance of deceased to cultivate agricultural lands of their family. To that extent, fact of agricultural holdings of family needs to be considered and notional loss of Rs.1500/- per month including future prospects ought to be considered on this count.

17. So far as the personal deduction is concerned, it is contended that both the appellants as well as widow and daughter of deceased were dependents of the deceased and thus, 1/4th amount should be deducted towards personal expenses of the deceased. While considering this submission it is noted that appellant Damodhar is an agriculturist. The learned Tribunal relying upon the pleadings of widow of deceased held that appellant Damodhar is not dependent, as he is found involved in money lending business and is also an agriculturist. As such appellant Damodhar has independent source of income and we thus accept that he cannot be said to be dependent of the deceased. In that view of the matter, appellant no.2 Sunita, being mother of deceased, his widow and daughter can only be considered while deducting personal expenses. Accordingly, 1/3rd amount is required to be deducted on this count and remaining 2/3rd amount can be said to be just and reasonable compensation.

Thus, amount of Rs.12500/- per month, which is held to be monthly income of the deceased and Rs.2000/- on account of loss of agriculture income and future prospects, comes to 14500/- per month. When this amount is multiplied by 12 months it comes to Rs.1,74,000/-. On deducting 1/3rd amount from Rs.1,74,000/-, the compensation in respect of contribution of deceased towards his family would be Rs. 1,16,000/-. On applying multiplier of 15 to the said amount of Rs.1,16,000/-, it comes to Rs.17,40,000/-.

18. The learned counsel for the appellant, in the absence of income proof, on the point of quantum has relied upon ratio in the case of Ramchandrappa vs. Manager, Royal Sundaram Alliance Insurance Co.Ltd. reported in (2011) 13 SCC 236. However, facts involved in that case are distinguishing as the appellant therein was working as a Coolie and the wage of labour on the date of accident was Rs.4500/- per month. In view of that, it was noted that the claim made was honest and bona fide and as such it was held that there was no reason for the Tribunal to reduce the said amount to Rs.3000/- per month. Above observations came to be noted in that case considering the daily wage of labour @Rs.100/- to Rs.150/- per day. As against this, the case involved in the appeal is in respect of an Advocate of whose no proof of income in any form is placed on record. In that view of the matter, no reliance can be placed on this case.

Learned counsel for the appellant further relied upon ratio in the case of Syed Sadiq vs. Divisional Manager, United India Insurance Co. reported in 2014(1) SCALE 377 to calculate prospective income of self-employed person. However, the ratio laid down cannot come to the rescue of appellant in view of the fact that the appellant in that case was a vegetable vendor and was found reasonably capable of earning Rs.6500/- per month.

19. For the reasons stated herein above, claimants are thus found entitled for just and fair compensation of Rs.17,40,000/-. In addition to above, claimants are entitled for Rs.5000/- for funeral expenses and Rs.25,000/- for loss of consortium. Thus, total compensation comes to Rs.17,70,000/-(Rs. 17,40,000/-+ Rs.5000 + Rs.25,000/-).

20. As stated in foregoing para of this judgment, deceased since is found negligent in causing accident to the extent of 30%, an amount to the extent of 30% of Rs.17,70,000/- will have to be deducted from the said amount of compensation which comes to Rs.5,31,000/-. Accordingly, claimants are entitled to Rs.12,39,000/- (Rs.17,70,000/- minus Rs.5,31,000/-) which can be said to be just and reasonable.

21. We find no reason to interfere with the findings of the Tribunal holding appellant Damodhar to be not dependent of deceased having independent source of income. As such there are three claimants, mother, widow and daughter of deceased. Damodhar since is alive, mother of the deceased cannot said to be solely dependent on the deceased. However, appellants being parents of deceased are his legal representatives and therefore, in the fitness of things, they are certainly entitled for compensation on the count of sorrow and grief, as against the widow and daughter of deceased who were aged about 45 years and 6 months, respectively at the time of incident, and has to lead entire life alone and in that case wife has greater responsibility in bringing up her minor daughter without the company of her husband, who might be 8 to 9 years of age as on today. Considering above aspects, we find no reason to interfere with the order of apportionment passed by the Tribunal by which appellants are held entitled for compensation of Rs.1,00,000/- and Rs.2,00,000/-, respectively, while rest of the amount is ordered to be paid to the wife and minor in equal share. In that view of the matter, we pass following order.

22. First Appeal No.250 of 2012 is partly allowed.

Award is modified allowing compensation as follows.

Judgment and award dated 2nd of September, 2011 passed by Motor Accident Claims Tribunal, Amravati in M.A.C.P.No.143 of 2007 is modified by holding respondent nos.1 and 2 jointly and severally liable to pay amount of Rs.12,39,000/- inclusive of no fault liability along with interest at the rate of Rs.8% per annum from the date of petition till realization.

Rest of the order passed by the learned Tribunal is maintained.

First Appeal Nos.981 of 2012 and 604 of 2013 stand dismissed.