Partly allowed

Pavankumar Irrrappa Koshti v. Malati Bhimrao Mane-Patil and Ors.

Bombay HC2 Apr 2008FA/1062/1992

Case brief

AI extract

What is this about?

In an appeal against a Traffic Commissioner's award for motor vehicle accident death compensation, the High Court upheld the finding of negligence against the truck owner but modified the total compensation from Rs.2,50,000 to Rs.1,80,000 based on recalculated dependency and multiplier, directing specific disbursements to the heirs.

What did the court decide?

Total compensation reduced to Rs.1,80,000. Appellant to pay difference of Rs.30,000 plus interest and costs. Fixed deposit by insurer to be disbursed to 1st and 4th respondents.

Pavankumar Irrrappa Koshti Vs Malati Bhimrao Mane-Patil… — Motor Accident Claims | Bombay HC (2008)

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SD

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION

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 FIRST APPEAL NO.1062 OF 1992

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 Pavankumar Irrappa Koshti ...Appellant
 V/s.
 Malati Bhimrao Mane-Patil & Ors. ...Respondents

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 Mr.Rupesh Bobde, Advocate, for the Appellant.

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 Mr.Sachin Shetye, Advocate, for Respondent Nos.1 to 4.
 Mr.S.R. Singh, Advocate, for Respondent No.5.

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CORAM : ABHAY S. OKA, J.

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DATE : 2ND APRIL, 2008.

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ORAL JUDGMENT :

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 1. On 26th March, 2008, the submissions of the
 learned Advocates appearing for the parties were
 heard. On account of paucity of time, the Judgment
 could not be delivered on that day and, therefore, the
 Appeal was kept today for the dictation of the
 Judgment.

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 2. The appellant is the 1st respondent in a claim
 petition filed by the 1st to 4th respondents. The
 appellant is the owner of the truck bearing
 registration No.MTL-436. The claim petition was filed
 by the 1st to 4th respondents claiming compensation on
 account of death of Bhimrao Bapu Mane-Patil in a motor

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 accident on 2nd April, 1987. The 1st respondent is
 the widow of the deceased, the 2nd respondent is the
 son of the deceased, and the 3rd and 4th respondents
 are the parents of the deceased. On the fateful day
 at about 12 in the mid-night, the deceased was
 travelling by his motor cycle by Sangli-Miraj Road.
 Near Bharat Petrol Pump, the truck owned by the
 appellant came from behind and gave a dash to the
 motor cycle. The deceased suffered serious injuries
 as a result of the dash given by the truck. He was
 taken to the Civil Hospital at Sangli where he
 succumbed to the injuries. On the relevant date, the
 truck was insured with the 5th respondent-Insurance
 Company.

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 3. The appellant did appear before the Tribunal
 but did not file written statement. Therefore, the
 claim petition proceeded without written statement of
 the appellant. The claim petition was contested by
 the 5th respondent raising various contentions
 including a contention that as the policy of insurance
 was standing in the name of the father of the
 appellant, the Insurance Company was not liable.
 Apart from other contentions raised on the merits of
 the claim, the 5th respondent contended that the
 liability of the said respondent was restricted to

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 Rs.1,50,000/- considering the terms and conditions of
 the policy.

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 4. By the impugned Judgment and Award, the
 Tribunal held that the 1st to 4th respondents were
 entitled to total compensation of Rs.2,50,000/-
 inclusive of compensation awarded on account of no
 fault liability together with proportionate costs and
 interest on the amount of compensation at the rate of
 12% p.a. from 1st October, 1987 till realisation of
 the amount. The liability of the 5th
 respondent-Insurer was restricted to Rs.1,50,000/-
 together with interest thereon as well as
 proportionate costs thereon. The appellant was held
 liable to pay the compensation amount over and above
 the aforesaid amount of Rs.1,50,000/- with interest and
 costs. Directions were given by the Tribunal of the
 investment of the shares of the 1st and 4th
 respondents in a nationalized bank for a period of
 five years.

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 5. The 1st respondent examined herself as a
 witness. One Balu Shankar Nikam claiming to be an eye
 witness was also examined as a witness. The 3rd
 witness examined by the 1st to 4th respondents is one
 Ismail Babu Mujawar. The 4th witness examined by the

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 original claimants is Rajendra Bhimrao Mane-Patil. No
 witness was examined by the appellant or the 5th
 respondent.

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 6. The submission of the learned Advocate for the
 appellant is that even going by the version of the
 witnesses examined by the original claimants, it
 appears that the deceased who was plying his
 motor-cycle suddenly entered the main road. He
 pointed out that the accident occurred on main road
 and the manner in which the deceased entered the main
 road clearly shows that he was negligent as he did not
 take necessary precautions while entering the main
 road from the petrol station. His submission in the
 alternative is that there is a contribution made by
 the deceased to the cause of accident and therefore a
 finding ought to have been recorded atleast regarding
 contributory negligence on the part of the deceased.
 He submitted that there was no evidence adduced for
 establishing the income of the deceased. His
 submission is that the dependency taken at the rate of
 Rs.2,000/- per month by the learned Member of the
 Tribunal has no basis. His submission is that the
 multiplicand taken by the Tribunal is grossly
 exorbitant and even the multiplier applied is on the
 higher side considering the fact that the age of the

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 deceased was 45 years.

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 7. The submission of the learned Advocate

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 appearing for respondent Nos.1 to 4 is that there was

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 no evidence in rebuttal lead by the appellant to show
 that there was any negligence on the part of the

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 deceased. He submitted that apart from the oral
 testimony of the witnesses examined by the original
 claimants, the spot panchanama on the record shows the
 width of the road at the spot of the accident. He
 pointed out the finding recorded by the Tribunal that
 considering the width of the road, the appellant could
 have easily avoided the accident. He submitted that
 the finding of the Tribunal is that while coming out
 on the main road, the deceased took a left turn and
 therefore the deceased was on the correct side of the
 road. It is submitted that considering the evidence
 of the 1st respondent, the dependency taken at the
 rate of Rs.2,000/- per month is reasonable. He
 submitted that age of the deceased was about 44 years
 and therefore the multiplier of 10 taken by the
 Tribunal is correct. He, therefore, submitted that no
 interference was called for. The 5th respondent is
 also represented by an Advocate. The 5th respondent
 is a formal party in the sense that the 5th respondent
 has not challenged the impugned Award and the original

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 claimants have not challenged the findings of the
 Tribunal that the liability of the 5th respondent was
 restricted to Rs.1,50,000/-.

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 8. I have carefully considered the submissions
 made by the learned Counsel appearing for the parties.
 I have also perused the notes of evidence and other
 relevant material on record. The 1st respondent who
 stepped into witness box obviously has no personal
 knowledge of the accident. Therefore, I am dealing
 with her evidence while dealing with the issue of the
 quantum. The 2nd witness examined by the claimants is
 Balu Shankar Nikam. The said witness deposed that he
 was knowing the deceased. He stated that the accident
 occurred at about 00:30 a.m. on 12th April, 1987 in
 front of the market yard petrol pump. At the relevant
 time, he was on duty at the said petrol pump. He
 stated that the deceased Bhimrao was having friendly
 relations with his employer. The deceased Bhimrao
 enquired about his employer at the petrol pump and
 proceeded towards his house by his motor cycle. He
 stated that one truck came from the side of Sangli in
 a high speed and gave a dash to the motor cycle driven
 by the said Bhimrao. He stated that the motor cycle

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 was pushed ahead upto a distance of about 25 ft. to
 30 ft. He stated that the deceased Bhimrao was

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 driving motor cycle by the left side of the road. In
 the cross-examination, the witness stated that the
 accident occurred when deceased Bhimrao entered the
 main road from the premises of the petrol pump.
 However in the cross-examination, he denied the
 correctness of the suggestion that he has not

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 witnessed the accident. He stated that the accident
 occurred while deceased Bhimrao was turning towards
 east on the main road. If the directions which are
 mentioned in the certified copy of the spot panchanama
 at Exhibit-47 are considered, it appears that the
 deceased took a left turn after coming out of the
 premises of the petrol pump.

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 9. Another witness was examined by the claimants
 by the name Ismail Babu Mujawar, proprietor of a tea
 stall on the western side of the petrol pump. His
 version is that he used to keep open his tea stall
 till 1 a.m. He stated that he knew the deceased. He
 stated that the accident occurred while deceased
 Bhimrao was entering the Sangli-Miraj Road for going
 towards Miraj and a truck which came from a side of
 Sangli in a high speed gave a dash to the motor cycle.
 In the cross-examination he denied the suggestion that
 vehicles coming from Sangli side are not visible from
 the petrol pump. He denied the correctness of the

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 suggestion that deceased Bhimrao dashed against the
 truck. The 4th witness examined by the claimants is
 the son of deceased Bhimrao. He deposed that the
 appellant was driving the truck at the relevant time.
 He stated that the appellant disclosed that he was the
 owner and the driver of the truck. He stated that
 custody of the truck was delivered to the appellant by
 the police by taking a bond.

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 10. As against this, there was no evidence adduced
 by the appellant. It must be stated here that the
 appellant has not chosen to contest the petition by
 filing written statement. The appellant has not
 bothered to cross-examine any of the witnesses
 examined by the original claimants and the
 cross-examination is by the Advocate for the Insurance
 Company. Thus, the appellant has not even pleaded
 that there was a negligence was on the part of the
 deceased and that the appellant had taken all the
 precautions to avoid the accident. In absence of any
 case specifically made out by the appellant regarding
 due care and caution taken by him, it is very
 difficult to find fault with the finding recorded by
 the Tribunal on issue No.1 regarding negligence.

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 11. Apart from this, the learned Member of the

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 Tribunal has dealt with the arguments made by the 5th
 respondent based on rule 9 of the Road Regulations.
 While dealing with the said arguments, the learned
 Member of the Tribunal has held thus:-

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 "10. Admittedly, the truck MTL 436
 was coming from west. From the
 petrol-pump the deceased Bhimrao
 Mane-Patil intended to go towards
 Miraj, i.e. towards east. Naturally,
 he had to turn to left and to proceed
 ahead. It is none of the case of the
 Respondents that the deceased Bhimrao
 intended to go towards west.
 Therefore, on coming to the road, he
 will remain on the left side.
 Secondly, it is none of the case of
 the Respondent No.2 that the
 Respondent No.1 who was driving the
 truck MTL 436, had blown the horn and
 given any signal. The Respondent No.1
 has not at all entered into the
 witness-box. No suggestion to this
 effect was made to Balu Nikam and
 Ismail Mujawar. Without any evidence
 to the effect that the Respondent No.1
 had given any signal, how it can be
 inferred that the deceased Bhimrao
 Mane-Patil has committed breach of the
 Rule No.9 of the Road Regulations.
 Further we cannot overlook the fact
 that the road on that spot is of the
 width of 23 feet. Moreover, the road
 on that spot is one-way as stated
 above. There was absolutely no
 possibility of any vehicle coming from
 the opposite direction. It is none of
 the case of the Respondents that some
 other vehicle was coming from opposite
 direction by that road in
 contravention of the rules. That
 means there was sufficient road for
 the Respondent No.1 to drive his truck
 even by the right hand side. In all
 probability, the Respondent No.1 could
 have avoided the accident, but he

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 could not do so. The obvious reason
 is that the truck was in a high speed
 and the Respondent No.1 could not
 avoid the accident, when he noticed
 that the motor-cycle is on the road."

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 . Considering the evidence on record, the

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 finding recorded by the Tribunal on the first issue
 will have to be confirmed.

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 12. That takes me to the consideration of the

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 issue relating to quantum of compensation. The
 version of the 1st respondent widow is that initially
 the deceased was serving as a Cadestral Surveyor. He
 served as a Cadestral Surveyor for a period of 16
 years till he tendered his resignation in the year
 1983. She stated that when he tendered his
 resignation, his pay was Rs.1,000/- to Rs.1,500/- per
 month. After submitting resignation, he was working
 as an estate agent. Her version is that the deceased
 used to purchase agricultural lands and convert the

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 same into non-agricultural plots and thereafter he
 used to sell the plots. She stated that the deceased
 has purchased agricultural lands at village Bilur as
 well as Arag. Her version is that he used to pay her
 a sum of Rs.2,000/- per month for meeting the
 household expenses. The 1st respondent was
 cross-examined on this aspect. She pleaded ignorance

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 as to whether her husband was holding any bank
 account. She also pleaded ignorance about the fact
 whether the deceased was an income tax payer. She
 admitted that she has not produced the sale deeds
 relating to purchase of the agricultural lands by the
 deceased at villages Bilur and Arag. At this stage it
 is necessary to note that the 1st respondent has not
 placed on record any documentary evidence regarding
 the income of the deceased. The deposition of the 1st
 respondent was recorded on 9th February, 1990.
 Thereafter, three sale deeds were produced by the 1st
 respondent which have been exhibited as Exhibits 40,
 41 and 42. Though the sale deeds may not give any
 indication about the income of the deceased, the sale
 deeds will prove the fact that the deceased was
 dealing in real estate.

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 13. According to the version of the 1st
 respondent, the deceased was drawing salary of
 Rs.1,000/- to Rs.1,500/- till he was in the employment
 i.e. till the year 1983. The accident is of 2nd
 April, 1987. It is pertinent to note that the 1st
 respondent in her deposition has not at all disclosed
 the total income received by the deceased from his
 business. She has merely stated that the deceased
 used to give her Rs.2,000/- per month to meet the

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 household expenses. This obviously appears to be an
 exaggerated version of the 1st respondent. If in the
 year 1983 his maximum income by way of salary was
 Rs.1,500/-, in absence of any material on record, it
 is not possible to accept the fact that his income was
 about Rs.3,000/- per month by April, 1987. Therefore,
 the dependency at the rate of Rs.2,000/- taken by the
 Tribunal is certainly on the higher side. Considering
 the fact that we are dealing with the case of the
 accident of the year 1987 and considering the fact
 that the deceased was earlier employed as a Cadestral
 Surveyor, the income of the deceased can be taken at
 the rate of Rs.2,000/- per month for the purposes of
 calculating the multiplicand. A sum of Rs.600/- will
 have to be deducted on account of personal
 expenditure. Thus, the monthly dependency will be
 Rs.1,400/- and the yearly dependency will be
 Rs.16,800/-.

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 14. There is hardly any challenge to the case made
 out by the claimants in the claim petition that the
 age of the deceased was about 44 to 45 years. In a
 case where age of the deceased was in the age group of
 32 to 34 years, the Apex Court has taken the
 multiplier as 13. In a case of the deceased who was
 in the age group of 35-39 years, the multiplier has

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 been taken as 12. The Apex Court has repeatedly held
 that the average life span of an Indian citizen is
 about 65 years and the maximum multiplier of 18 can be
 applied to the age group of 18 to 24 years. Thus
 multiplier of 10 adopted by the Tribunal is
 reasonable. By applying multiplier of 10, the
 compensation amount will be Rs.1,68,000/-. To the
 said amount, usual amount will have to be added on
 account of the loss of consortium and other charges
 etc. The said usual amount has to be taken at
 Rs.12,000/-. Hence the total compensation payable
 will be Rs.1,80,000/- instead of Rs.2,50,000/- and to
 that extent the award made by the Tribunal will have
 to be modified.

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 15. It is brought to my notice that out of the
 amount deposited by the 5th respondent, a sum of
 Rs.52,310/- each has been paid to the 2nd and 3rd
 respondents and a total sum of Rs.1,04,620/- has been
 invested in fixed deposit. If the said amount which
 is invested in fixed deposit is not yet disbursed, the
 same alongwith the interest accrued thereon will have
 to be equally distributed to the 1st and 4th
 respondents by the Tribunal. A sum of Rs.25,000/-, if
 deposited by the appellant in this Court, will have to
 be transferred to the concerned Tribunal so that the

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 same can be appropriated towards the amount payable
 under the modified Award.

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 16. Hence, I pass the following order :-

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 "O R D E R"

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 (a). The Appeal is partly allowed.

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 (b). The total compensation payable to the
 1st to 4th respondents will be Rs.1,80,000/-
 instead of Rs.2,50,000/-. Rest of the Award
 regarding payment of interest and
 proportionate costs is confirmed.

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 (c). Thus the appellant will be liable to
 pay to the 1st to 4th respondents a sum of
 Rs.30,000/- with proportionate costs of the
 claim petition thereon as well as interest on
 the sum of Rs.30,000/- at the rate of 12% p.a.
 from the date of filing of the claim petition
 i.e. 1st October, 1987 till realisation of
 the amount.

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 (d). The sum of Rs.25,000/- deposited by
 the appellant in this Court together with

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 interest accrued thereon, if any, shall be
 transferred to the concerned Tribunal. The
 said amount shall be appropriated towards the
 compensation amount payable by the appellant
 to the 1st to 4th respondents. Time of six
 months is granted to the appellant to deposit
 the balance amount.

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 (e). If a sum of Rs.1,04,620/- out of the
 amount deposited by the 5th respondent which
 was invested in fixed deposit is not yet
 disbursed, the Tribunal will take immediate
 steps for disbursing the said amount alongwith
 the interest accrued thereon to the 1st and
 4th respondents.

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 (f). The Tribunal will pass appropriate
 order for distribution / disbursement of the
 amount payable by the appellant after hearing
 the claimants.

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 (g). The appellant will pay proportionate
 costs of the Appeal to the 1st to 4th
 respondents.

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 (h). Writ of this order and record and

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 proceedings shall be transmitted to the

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 concerned Tribunal expeditiously.

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[ABHAY S. OKA, J.]

Pavankumar Irrrappa Koshti v. Malati Bhimrao Mane-Patil and Ors.

Case brief

What is this about?

What did the court decide?

Pavankumar Irrrappa Koshti v. Malati Bhimrao Mane-Patil and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Parties & counsel

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