Mangala W/O Sanjay Salunke and ors. Vs. Maharashtra State Road Transport Corporation and ors. - Court Judgment

D.G. Karnik, J.

1. Heard the learned Counsel for the parties.

2. This appeal is directed against the Judgment and Order dated 17-8-2002 passed by the Motor Accident Claims Tribunal, Latur (for short, 'the Tribunal'), dismissing the Motor Accident Claim Petition No. 115/1991, filed by the appellants.

3. The facts relating to the claim are stated below.

The appellant No. 1 is the widow and the appellants numbers 2 to 4 are the children of deceased Sanjay Salunke, who succumbed to injuries arising out of a motor accident, which took place on 16-4-1991. The appellant numbers 5 and 6 are the parents of the deceased. On 16-4-1991, deceased Sanjay was travelling on a two wheeler 'Spark' on Ausa-Tuljapur road near Manohar Tanda between 9.30 pm to 10.00 pm. The deceased along with his three friends, namely, Navnath, Venkat and Ram Khanderao had gone to Tuljapur on two 'Spark' two wheelers. All of them started their return journey at about 5 p.m. As the air pressure in rear tyre of one of the two Sparks was less, three friends travelled on one Spark and deceased Sanjay travelled on another Spark. Deceased Sanjay was ahead and his three friends followed him. Accident took place between 9.30 p.m. and 10 p.m. within the sight of the three friends of the deceased Sanjay, who were following him. At the relevant time, the State Transport Bus, belonging to respondent No. 1 which being driven by respondent No. 2, came from the opposite direction, and gave dash to the 'Spark' driven by the deceased on the left hand side of the road. Because of the dash, deceased Sanjay was thrown on the road and received injuries to his head and legs. Deceased Sanjay was then taken to the Government Dispensary at Belkund where the medical officer* attached to that Dispensary, asked him to be taken to Ausa, where also Sanjay was advised to be taken to the Civil Hospital at Latur. Sanjay was accordingly taken by his friends who were following him, to the Civil Hospital at Latur where he succumbed to the injuries on the next day. The appellants thereupon filed a claim petition, bearing Motor Accident Claims Petition No. 115/1991, for compensation of Rs. 1,50,000/-, against the respondents. The respondents resisted the claim petition and contended that the respondent No. 2, the driver of the bus in question was not negligent in driving, but the accident occurred due to the negligence of deceased Sanjay himself, and therefore, they were not liable to pay compensation. The Tribunal held that the claimants had not proved that the accident had occurred on account of negligent driving of respondent No. 2, and therefore, by its Judgment dated 17-8-1992 dismissed the claim petition. That decision is impugned in this appeal.

4. From the pleadings and evidence adduced by the parties before the Tribunal, following points arise for my determination.

(i) Whether the accident caused due to rash and negligent driving of the respondent No. 2, the driver of the bus belonging to the respondent No. 1?

(ii) If yes, what would be the amount of compensation that the appellants are entitled to?

Re. Point No. 1:

5. The appellants examined Navnath, the friend of the deceased as an eye witness. In his evidence, Navnath has stated that the accident took place on 16-4-1991 at about 10 p.m. He has further stated that the deceased was driving the 'Spark' and he along with his two other friends were following him on another Spark vehicle. At the spot of the accident, tar road was about 20 feet wide and there was a kachha road of five feet, on its both sides. The deceased was driving his Spark two wheeler on the left side of the road and the distance of his vehicle was of five feet from the left side of the road. The S.T. Bus came in the opposite direction in a rash and negligent manner and it was being driven at an excessive speed. It gave dash to the Spark vehicle which was driven by the deceased. Because of that accident, deceased Sanjay suffered injuries to his head and legs. Deceased Sanjay died on the next day at Civil hospital, Latur. PW-2 Navnath has stated that he was following the vehicle of the deceased and deceased Sanjay was visible to him at the time of the accident. He is a natural eye witness to the said accident and he has stated the manner in which the accident took place. In the cross-examination, PW-2 Navnath was shown his statement which was recorded by the police on the next day. Before the police, Navnath had allegedly stated that Sanjay had gone ahead and himself and the other two friends reached the spot of the accident later on. Relying on this statement, the Tribunal held that this statement showed that Navnath could not be an eye witness and he had reached the spot after the accident. The relevant portion of the statement of Navnath, which was recorded by the police, was shown to him in the cross-examination and was marked 'A'. In the cross, he denied having stated the portion marked 'A' to the police. Despite this specific denial by Navnath, the police officer, who recorded the statement, was not examined. That statement was not proved and was not even marked as an Exhibit by the Tribunal. The Tribunal, therefore, erred in disbelieving the evidence of Navnath on the ground of contradiction in his evidence before the Court and the statement made before the police.

6. another reason given by the Tribunal for coming to the conclusion that the driver of the bus was not negligent was that in the spot panchanama drawn after the accident it was written that the S.T. Bus was parked on the left side partly on katchha road and partly on tarred road, which indicated that the bus must have been driven on the left hand side of the road. It must be noted that the panchanama was not prepared immediately after the accident, but was done on the next day at 13.15 hours i.e. after fifteen hours of the accident. The bus was not kept exactly at the spot of the accident, but was parked on the left hand side of the road. The spot panchanama would, therefore, not reveal the position of the S.T. Bus at the time of the accident. The Tribunal therefore erred in relying upon the spot panchanama for concluding that the bus must have been driven by the left-hand side of the road.

7. The respondent No. 2 who was the driver of the S.T. Bus was not examined as a witness on his own behalf by the S. T. He is still in the employment of respondent No. 1 S.T. Corporation. The respondent No. 1 also did not examine any passenger of the bus, nor the conductor. In fact, it did not adduce any evidence. The best person who was possible to state about the accident was the driver of the bus - the respondent No. 2. However, though available he was not examined, and therefore, the Tribunal ought to have drawn adverse inference against the respondents. As against that, there was positive evidence of an eye witness, namely, PW-2 Navnath. The presence of Navnath on the spot is natural. It is not disputed that deceased Sanjay and Navnath had gone to Tuljapur and were returning back on two vehicles and one following the other. Navnath has stated that at the time of the accident, the deceased was visible to him. He has stated on oath that the deceased was driving on the left hand side of the road and the S.T. Bus came from the opposite direction in high speed and gave dash to the Spark, the vehicle driven by the deceased. Thus, there is no reason to disbelieve the evidence of Navnath. For these reasons, I am of the view that the Tribunal erred in holding that the negligence on the part of the respondent No. 2 was not proved.

Re. Point No. 2 :

8. The claimants have also examined Mangala, the wife of the deceased. Mangala, in her statement (Exh-27), has stated that the deceased was running a grocery shop and used to cultivate agricultural lands also. She has stated that the deceased was 25 years of age at the time of his death. She has further stated that the deceased was getting Rs. 2000/- per month from Grocery Shop and was getting Rs. 25,0007- to Rs. 30,000/- per annum from the cultivation of the agricultural lands. The learned Counsel for the respondents submits that inspite of the death of Sanjay, the claimants would continue to receive the same income from the agricultural lands, and therefore, agricultural income cannot be taken into consideration while computing the amount of compensation. The submission is meritorious and is accepted. However, no contrary evidence is adduced by the respondents to show that the income of the deceased from Grocery Shop was not Rs. 20007- per month. The annual income out of running of grocery shop would thus come to Rs. 24,0007-. Assuming that the family of the deceased consists of his wife and three children, the 2/3rd dependency of claimants No. 1 to 4 would be Rs. 16,000/- per year. The deceased was of 25 years of age at the time of his death. Applying the multiplier of 17 years, the claim of compensation would come to Rs. 2, 72,000/-. As against that, the appellants have claimed only Rs. 1,50,000/-.

9. The next question that arises for consideration is the rate of interest on the amount of compensation. Relying upon the Judgment of this Court, the learned Counsel for the respondents stated that only 6% interest be awarded to the claimants on the amount of compensation. I do not think that the decision is an authority for the proposition that only 6% interest can be awarded. No reasons are given therein for grant of interest at 6% p.a. Learned Counsel on both sides agree that the rate of interest would depend in the facts and circumstances of each case. In the present case, it is to be seen that though the claimants are entitled to a compensation of Rs. 2,72,000, they have claimed and are being awarded Rs. 1,50,000/- only towards compensation. Furthermore, taking into consideration the rising cost of living, I consider 10% interest to be appropriate rate of interest in the facts and circumstances of the present case. Hence, I pass the following order.

10. The appeal is allowed. The impugned Judgment and Order is set aside. The respondent Numbers 1 to 3 are directed to pay to the appellants an amount of Rs. 1,50,0007- towards compensation, together with interest thereon at the rate of 10% from the date of filing of claim petition (i.e. 21-8-1991) till payment. The amount of Rs. 25,0007- towards 'no fault liability' paid by the respondents shall be deducted from the amount of compensation. The interest would also be calculated on Rs. 1,50,0007- from the date of claim application till the date of deposit of Rs. 25,0007- and on an amount of Rs. 1,25,0007- from the date of the deposit of Rs. 25,0007- till payment of the balance amount.