Maharashtra State Road Transport Corporation. Vs Smt.K.D.Luthriya and Ors.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION.

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FIRST APPEAL NO.31 OF 1992.

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 Maharashtra State Road Transport

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 Corporation : Appellants.

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 versus

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 Smt.Kanchan Daulat Luthriya

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 & ors. : Respondents.

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 Mr.G.S.Hegade for the appellants.

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 Mr.Ganesh S. Vaidya for Respondent Nos. 1 & 2.

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CORAM : D.G.DESHPANDE,J.

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 DATED : 11th April 2005.

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ORAL ORDER

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 1. Heard Mr.Hegade for the appellants and

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 Mr.Vaidya for the respondents. This appeal is

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 filed by the Maharashtra State Road Transport
 Corporation challenging the order of the Motor
 Accident Claims Tribunal Raigad at Alibag dated

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 13th February 1991 awarding compensation of
 Rs.2,92,200/- with costs and interest at the rate
 of 12% p.a.

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 2. The accident occurred on 10th April 1984
 when deceased Daulat was proceeding to Bombay on
 the motor scooter along with his friend Rajaram
 Valavalkar. One S.T. truck loaded with goods
 bearing No.MHQ 6543 of the appellants dashed
 against the motorcycle near village Ainghar on
 Bombay Goa National Highway. Daulat died on the
 spot. He was aged about 30 years. He was the
 proprietor of M/s.Narendra Caterers and
 Decorators and, therefore, in that background,
 the claim petition came to be filed. The
 tribunal, after appreciating the evidence and
 documents on record, held that the driver of the
 S.T. truck was fully negligent and liable and,
 awarded compensation as stated above. The appeal
 challenges both these findings viz. negligence
 of S.T. driver and quantum and, alternatively,
 according to Mr.Hegade it was the case of
 contributory negligence that S.T. became liable
 to the extent of 60% and deceased being liable to
 the extent of 40%.

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 3. So far as actual accident is concerned,
 the claimants examined one witness Bipin Mamtora.
 He has stated that on 8.4.84 he himself along
 with Harshad, Bharat, Tushar, Daulat, and Pramod
 alias Shankar went on scooter to Ganpati Pule.
 On 10-4-84, they started from Ganpati Pule at 10
 to 10.30 a.m. They reached near Sukere Khind.
 On one scooter the witness along with Harshad was
 sitting and witness was driving. On other
 scooter Daulat and Pramod were there and Daulat
 was driving and, on the third scooter Bharat and
 Tushar were there and Bharat was driving. All
 the scooter were being driven at a speed of 30 to
 35 k.m. per hour. They were on left side of the
 tar road and, the width of the road at about 22
 ft to 23 ft. with kaccha road at about five ft
 on either side of the tar road. Then according
 to this witness Bipin, when they came within the
 limits of village Ainghar, the accident took
 place. A truck with its face on Goa side halted
 on the Goa side of the phata and, the passengers
 started getting down from that truck and, at that
 juncture the truck of the appellant came from
 behind i.e. Bombay side. It was in high speed.

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 The S.T. bus over took the stationary truck from
 the right side and it thus came on the wrong side
 and dashed against the scooter of Daulat which
 was ahead of the witness. The S.T. driver did
 not apply the breaks and, therefore, the front
 side right portion of the S.T. dashed against
 the scooter. The impact was violent. Thereafter
 the S.T. driver applied breaks but the bus did
 not stop . It dragged the scooter backward up to
 a distance of 40 to 50 feet. The scooter was
 entangled with the bumper and hence the S.T. bus
 driver swerved the bus to the left and stopped.
 In the cross examination the witness has stated
 that the head lamp of the S.T. bus was damaged
 and the tin portion of the right side was teared.
 A suggestion was put to him that the scooteriest
 i.e. Daulat while overtaking the truck went on
 the wrong side and dashed against the S.T. bus.

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 . The claimants also examined one Bharat -
 the friend of deceased Daulat who was on the
 third scooter. But he has not stated anything
 about the manner in which the accident took place
 because this witness Bharat was driving the first
 scooter in sequence as stated by the earlier
 witness Bipin. Therefore, he is not a witness of

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 actual incident.

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 4. As against this evidence of the
 claimants, the appellants examined Rama the
 driver of the S.T.. He has stated that on
 10.4.84 he started from Mahad at 10.00 a.m. and
 reached Pen at about 1.30 to 1.45 p.m.. He
 loaded the material there and started at about 5
 p.m.. He reached Ainghar. One truck came from
 the opposite direction. A scooter was following
 the truck. The scooteriest overtook the truck,
 suddenly without giving any signal and in that
 process dashed against the diesel tank portion of
 his truck. In the cross examination he admitted
 that the width of the road was 22 feet and there
 was a kaccha road on either side, that was a
 straight road; he could see the vehicle coming
 from a distance; he saw the truck for the first
 time at the distance of 100 ft and, he saw the
 scooter for the first time when he overtook the
 other truck. He admitted that he was prosecuted
 for this accident in Roha Court and he was fined
 in that case in this connection.

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 5. Mr.Hegade, appearing for the appellants,
 on the basis of this evidence, contended that if
 the six young men were travelling by three
 scooters and all of them in holiday mood, then it
 was proper to presume that they were in high
 speed and the accident occurred not because of
 the negligence of the driver of the S.T. truck
 but because of the negligence of Daulat or, at
 any rate, it was a case of contributory
 negligence.

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 6. The tribunal held that if the road was
 straight and there were only two vehicles, as
 stated by the driver, then the said driver was in
 a position to see the scooter. There was,
 therefore, no possibility of Daulat taking his
 scooter suddenly from behind the truck in order
 to overtake the same. The Court found that the
 story given by the witnesses of the claimants
 appeared more probable in the circumstances.

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 7. The panchanama of scene of offence is
 there on record. It is at Exhibit 31/C. The
 spot of the accident was shown to the police by
 the witness-cum-S.T.driver Shriram, though, he
 has in his cross examination denied or refused to

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 have shown the spot or being present at the time
 of panchanama. In the panchanama it is noted
 that Mumbai-Gao road at that place is straight;
 the accident took place 8 ft. away from western
 side border and at that spot the accelerator
 cable with handle was found broken; 12 ft to the
 north thereof belt of writ watch was found;
 there the pieces of brain were found; there were
 marks of scooter being dragged; the body of
 Daulat was found at a distance of 64 ft to the
 north from the spot of dash; many parts of the
 scooter were lying in between; the scooter was
 completely damaged and all the parts were
 scattered on the road; 14 ft. away from the
 spot of accident or dash the wrist watch with
 broken glass of the deceased was lying in
 drainage; S.T. truck was standing at a distance
 of 67 ft. from the point of dash; on the front
 side of the S.T. there was scratches at a height
 of 1 ft. 7 inches and black colour of the rubber
 of the handle of scooter had left its marks on
 that iron sheet of S.T.. The panchanama records
 all the minute details and it is skillfully
 drawn.

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 8. Therefore, from the panchanama it will be

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 clear that the scooter of Daulat and Daulat was
 dragged up to the distance of more than 50 ft.
 and the S.T. could stopped at the distance of 64
 ft. This itself is a clear indication of high
 speed in which the S.T. was going. Mr.Hegade,
 however, contended that if it was a highway, then
 vehicle was bound to be in high speed. I do not
 find that this argument can be accepted in the
 circumstances of the case. If Rama - the driver
 of S.T. had seen the stationary truck, covering
 almost 1/3rd or 1/2 portion of the road; then at
 that juncture he should have reduced the speed so
 that he could control his vehicle at any given
 time. But the driver of the S.T. had not taken
 any care in this regard, as a result of which,
 this accident occurred killing Daulat on the
 spot. The conclusions arrived at by the tribunal
 that the driver of S.T. was fully responsible
 are, therefore, fully justified and they are not
 required to be interfered with.

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 9. So far as quantum of compensation is
 concerned, deceased Daulat was the sole
 proprietor of M/s. Narendra Caterers and
 Decorators. He was keeping all the materials in
 Parsi Colony, Dadar and was paying rent of

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 Rs.3,000/- to Rs.4,000/- per annum for those

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 premises. The income of Daulat, as stated by his
 wife Kanchan, was Rs.10,000/- to 15,000/- in the
 year 1981-82 and Rs.18,000/- to Rs.20,000/- in
 1983-84 and, in 1981-82 he was giving Rs.1,000/-
 to Rs.1,200/- per month for household expenses.
 In 1983-84 he was giving Rs.1,200/- to Rs.1,500/-
 per month. He was 32 years of age. He had no
 vices. He used to take his meals in home and in
 1982-83 he had paid income tax. In the
 background of this evidence, the tribunal took
 Rs.1,200/- per month as contribution of deceased
 Daulat to the family i.e. dependency factor and,
 multiplier of 18 was applied and, the figure of
 Rs.2,92,200/- was arrived at in which Rs.25000/-
 were added as loss of business; Rs.3000/- as
 ambulance expenses and; Rs.5000/- towards loss
 of consortium to the wife.

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 10. Mr.Hegade for the appellants, therefore,
 contended that multiplier of 18 was not proper in
 the circumstances. There was no basis to take
 Rs.1,200/- per month as contribution to the
 family and, once the compensation is awarded,
 there was no propriety and necessity of awarding
 Rs.25,000/- towards loss of business. He also

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 contended that wife Kanchan stated in her
 evidence that though she had discontinued the
 business of catering, she was continued in the
 business of decoration with the help of
 labourers. Therefore, according to Mr.Hegade,

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 the family was earning substantially from the
 said business even after the death of Daulat and,
 therefore, considering all these facts, the

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 compensation is at higher side.

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 11. As against this, the counsel for the
 respondents/claimants urged that if deceased
 Daulat was 30 to 32 years of age, then expectancy

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 of life up to 75 years of the age was properly
 held by the tribunal and, therefore, multiplier
 of 18 was properly applied. Further, if Daulat
 had no vices, then his contribution of Rs.1,200/-
 per month in spite of evidence of the wife that
 he was contributing more in 1984-85 was proper.

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 He also stated that as the income from the
 business grew more and more, Daulat’s

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 contribution to the family also increased as

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 stated by the wife and, if Daulat was doing two
 businesses of catering and decoration, then
 business cannot be said to be excessive.

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 12. I find considerable force in the

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 submissions made by the counsel for the
 respondents/claimants. It is true that the wife
 is doing business of decoration with the help of
 labourers, but she has also stated that net
 profit was reduced by 5 to 6 per cent per annum
 because of the death of her husband. However, I
 find that multiplier of 18, as rightly argued by
 the counsel for appellants Mr.Hegade, should be
 applied in an accident in respect of a death in
 22 to 25 years age. If Daulat was 30 to 32 years
 of age, then multiplier of 14 could have been
 proper in the circumstances. Rs.1,200/-, as
 taken by the tribunal, per month’s contribution
 by Daulat appears to be proper and, therefore,
 compensation amount comes to Rs.1,200/- X 12 X 14
 = Rs.2,01,600/-. I find that once the
 compensation is awarded, there was no necessity
 to award Rs.25,000/- towards loss of business.
 Compensation of Rs.3,000/- towards ambulance
 expenses and Rs.5,000/- as consortium are proper
 in the circumstances. Therefore, total
 compensation would come to Rs.2,01,600/- +
 Rs.3,000/- + Rs.5,000/- = Rs.2,09,600/-.

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 13. So far as interest part is concerned, the
 learned AGP relied upon the judgment of Supreme
 Court reported in 2001 ACJ 428 [Kaushnuma Begum

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and others v. New India Assurance Co. Ltd. and
others] wherein it has been held by the Supreme
 Court that with a change in economy the banks
 have lowered the rates of interest on fixed
 deposits. In that case also earlier 12% interest
 was awarded by the tribunal but the Supreme Court
 reduced it to 9%. In view of this judgment of
 the Supreme Court, the rate of interest has to be
 reduced and it should be 9% p.a. Hence the
 order:_-

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 :ORDER:

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 Appeal is partly allowed.

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 Compensation awarded to the claimants at
 Rs.2,92,200/- is reduced to Rs.2,09,600/-

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 with costs before the tribunal.

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 No order as to costs of this appeal.

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 Amount of Rs.2,09,660/- will carry
 interest at the rate of 9_% p.a.

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 [D.G.DESHPANDE]

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 11/04/2005 JUDGE.

Maharashtra State Road Transport Corporation. v. Smt.K.D.Luthriya and Ors.

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Maharashtra State Road Transport Corporation. v. Smt.K.D.Luthriya and Ors.

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