Dismissed

Nagappa Mahadeo Malghar and Anr. v. Vidyadhar Shridhar Patil and Others.

Bombay HC13 Apr 2010FA/301/1995

Case brief

AI extract

What is this about?

The High Court dismissed the appeal by the vehicle owner and insurer against the Motor Accident Claim Tribunal's award. The Court upheld the Tribunal's finding of negligence and confirmed that the awarded compensation of Rs. 1,80,000 was not excessive despite potential calculation adjustments regarding income and multiplier.

What did the court decide?

Appeal dismissed with no order as to costs.

Nagappa Mahadeo Malghar and Anr. Vs Vidyadhar Shridhar… — Motor Accident Claims | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
 FIRST APPEAL NO.301 OF 1995

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1 Nagappa Mahadeo Malghar

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2 The United India Insurance Co.Ltd

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Branch Office, Dr.B.N.Sawant,

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At and Post Ratnagiri ...Appellants

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vs.

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1 Vidyadhar Shridhar Patil

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2 Tushar Vidyadhar Patil

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3 Siddappa Madapa @ Mahadeo Malghar

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4 The Oriental Insurance Co.Ltd. ...Respondents

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Mr.Suresh Bhosale for the appellants
Ms S.A.Mudbidri for respondent nos.1 and 2
Mr.D.R.Mahadik i/b Mr.S.R.Singh for respondent no.4

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 CORAM :A.S.OKA,J.

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 DATE : APRIL 13, 2010

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JUDGMENT :

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1 This Appeal was dismissed for non prosecution
yesterday. On oral prayer made by the learned counsel
for the appellants, appeal is restored and is taken up
for hearing.

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2The appeal is by owner of the offending vehicle and
insurer of the said vehicle for challenging the Award
made by the learned Member of the Motor Accident Claim
Tribunal in favour of the 1st and 2nd respondents-
claimants. The first respondent is the husband of the
deceased and the 2nd respondent is the minor son of the
deceased. On 16th June 1987, the 1st respondent along
with his deceased wife were proceeding from village Khudi
to village Hindale by motor cycle. Both of them were
employed in the school of Panchyat Samiti. After
performing their duty, they were proceeding to village

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Hindale. When they reached Bhanderwadi at about 6.15
p.m., a truck owned by the first appellant which was
allegedly driven in a rash and negligent manner came from
the opposite side and gave a dash to the rear position
of the motor cycle. The deceased who was occupying the
pillion seat was thrown out and practically crushed under
the truck.

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3The claim petition was contested by the appellants
and the 3rd respondent by contending that there was no
negligence on the part of the driver of the truck and it
was the 1st respondent who was negligently driving his
motor cycle. The compensation of Rs.1,80,000/- with
interest thereon at the rate of 12% per annum from the
date of filing of the claim petition.

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4The learned counsel for the appellants submitted
that there was no evidence to the show negligence on the
part of the driver of the truck. Inviting my attention to
the panchanama of the scene of offence, he pointed out
that there is no damage to the motor cycle. He submitted
that the very fact that there is no damage to the motor
cycle shows that there was no negligence on the part of
the driver of the truck. The accident occurred as the
motor cycle slipped as the road was wet. He submitted
that the fact that the due to rain, the road was wet is
brought on record by the panchanama. He submitted that
the fact that there is no damage to the motor cycle shows
that the entire negligence was of the 1st respondent. He
submitted that multiplier of 20 adopted by the Tribunal
is on the higher side considering the fact that the age
of the deceased was 35 years. He submitted that there was
no evidence of the income of the deceased.

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5I have given careful consideration to the
submissions. It must be stated here that the 1st
respondent who was plying the motor cycle stepped into
witness box. He stated that the truck owned by the 1st
appellant came from the opposite direction in a rash and
negligent manner and in very high speed. He stated that
the truck gave a dash to the motor cycle. His wife was
occupying the pillion seat. He stated that he had to
shout at the truck driver and after some time the truck
stopped. He has denied the suggestion that the motor
cycle slipped as the road was wet. It is pertinent to
note that when the case made out by the appellants was
that the truck was not involved in the accident, the
driver of the truck ought to have been examined. It must
be noted here that this was a case where the driver who
was the opponent no.1 to the claim petition contested the
claim petition by filing the written statement along with
the present appellants. The case made out by the 1st
respondent is that the truck gave a dash to the motor
cycle and as a result, his wife who was occupying the
pillion seat fell down and was crushed under the truck.
Looking the said case made out by the 1st respondent,
only because any damage to the motor cycle was not noted,
the case made out by the 1st respondent cannot be
disbelieved. It has to be noted here that the panchanama
of the truck has been marked as Exhibit-33 by consent of
the parties. The said panchanama records that there was
pool of blood near the wheel on the driver�s side. There
were blood stains on the front glass and other parts of
the truck. There was a damage to the right side wheel
of the truck. If the truck was not involved in the
accident, it was the driver to explain as to how the pool
of blood was found at the right side wheel of the truck.
A suggestion was given that as the motor cycle slipped,
the deceased fell down and came under the truck. Even

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assuming that the said version is correct, it was the
duty of the driver to step into witness box and to
establish that he had discharged his duty to avoid
accident. In the circumstances, the finding of the
Tribunal that evidence of the 1st respondent on the issue
of negligence deserves accepted cannot be disturbed.

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6 The income certificate of the deceased issued by the Block Education Officer of Panchyat Samiti, Deogad is at Exhibit-29. The said certificate incorporates that the deceased was working as a Assistant Teacher in the school run by the Panchayat Samiti and her last drawn emoluments were Rs.1500/- per month. The Tribunal has not taken into consideration the future prospects of earnings of the deceased in as much as the age of the deceased was 35 years and she was in the permanent employment as Assistant Teacher in the Panchyat Samiti. In view of the decision of the Apex Court in case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another [(2009) 6 SCC 121]. 50% of emoluments will have to be added to the salary for calculating the multiplicand. Thereafter, 1/3^rd amount will have to be deducted towards personal expenses. The dependency will be Rs.1500/- per month. As per the decision of the Apex Court in case of Sarla Verma (supra) even if multiplier of 16 is applied, the compensation will be more than Rs.2,88,000/-. Though multiplier of 20 has been applied which is on the higher side, 50% of the compensation has been deducted on account of personal expenditure. Such deduction could have been made only in case of unmarried person. Therefore, even if calculation is made after making an appropriate deduction in accordance with law and after applying lesser multiplier of 16, compensation amount exceeds to Rs.1,80,000/- which is the amount awarded by the tribunal.

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7In the circumstances, no case for interference is
made out. Appeal is accordingly dismissed with no order
as to costs.

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8If any, amount deposited by the appellant is
pending in this Court the same shall be transferred to
the concerned tribunal. The tribunal will allow the
withdrawal/disbursement of the said amount after hearing
the parties.

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 JUDGE

Nagappa Mahadeo Malghar and Anr. v. Vidyadhar Shridhar Patil and Others.

Case brief

What is this about?

What did the court decide?

Nagappa Mahadeo Malghar and Anr. v. Vidyadhar Shridhar Patil and Others.

Case brief

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What did the court decide?

What the court decided

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