Kadamba Transport Corporation Ltd. vs Shri Datta Mahadev Naik and Others

N. A. Britto, J.—This appeal is directed against Judgment dated 23-12-2008 of the learned M.A.C.T., Panaji. Heard Shri A. R. Kantak, learned Counsel on behalf of the appellant. The Respondents have chosen to remain absent, though duly served.

This appeal has been filed by Respondent No.2 in Claim Petition No.126/2002. The claimants therein were the parents of Amit Datta Naik. The accident was between a Tata Mini Bus bearing No.GA-01-X-0310 and a motor-cycle bearing No.GA-01-H-2367. The accident took place at Bambolim on 18-4-2002 at about 14.30 hours. The bus was driven by Respondent No.3/Parab. The motor-cycle was driven by one Rajesh Naik and the said Amit Datta Naik was the pillion rider on the said motor-cycle. Both Rajesh Naik and Amit Datta Naik died in the said accident.

The claimants, the parents of the said Amit Datta Naik, filed the claim petition for compensation of Rs.8,00,000/-on account of the death of their son, the said Amit. That claim petition has been granted and they have been awarded compensation of Rs.3,18,500/-payable with interest at the rate of 9% from the date of the petition. Respondents Nos.1 and 2 i.e. the driver and the owner of the said Tata Mini Bus has been directed to pay the said compensation.

The learned M.A.C.T. has directed that the amount already paid to the claimants(Respondent Nos.1 and 2 herein) u/s 140 be adjusted.

Shri A. R. Kantak, learned Counsel submits that Rs.25,000/-were paid by Respondent No.2/KTC, and another Rs.25,000/-were paid by Respondent No.4, the insurer of the said motor-cycle. Shri Kantak, learned Counsel submits that the said amount of Rs.50,000/-will have to be deducted from the sum of Rs.3,18,500/-, and to that extent, the award needs to be modified. Admittedly, Rs.25,000/-under Section 140 of the M. V. Act were paid by Respondent No.4. They have raised no grievance against the said payment. Therefore, if at all any amount is to be deducted from the compensation of Rs.3,18,500/-, it is only Rs.25,000/-paid by Respondent No.2/KTC. The impugned award thus would stand clarified.

Shri Kantak, learned Counsel then submits that the motor-cycle was insured with Respondent No.4(Respondent No.5 herein) and that premium was paid to cover the rider and the pillion rider for a sum of Rs.14,500/-. However, it is not the case of the Respondent No.2 that the claimants had claimed the said amount from the legal representatives of Respondent No.3 or Respondent No.4, and, therefore the submission made is required to be stated only to be rejected.

Next, learned Counsel submits that the learned M.A.C.T. has taken the income of the deceased as Rs.3000/-per month which is not justifiable. In fact, on behalf of the claimants, the employer of deceased, by name Vinayak Virnodkar, was examined and he had stated that the deceased Amit Datta Naik was employed in his garage from November, 2001 till the date of accident as a mechanic, and was also driving his vehicles and was drawing a monthly salary of Rs.5000/-. He had issued a certificate at Exh.46. The learned M.A.C.T. did not accept his evidence and/or the certificate produced by him because he had admitted in cross-examination that he had not maintained a wage register or any documents to show that he was paying Rs.5000/-to the deceased Amit per month. One fails to understand whether all small establishments maintain such records. Nevertheless, the learned M.A.C.T. has taken a lower estimate of the income of the deceased at Rs.3000/-per month. On the facts of the case, in my view, that income in the year 2002 as the income of the deceased could not have been said to be excessive. The learned M.A.C.T. therefore could not have been faulted to have taken the estimate of the income of the deceased as Rs.3000/- per month.

Shri Kantak, learned Counsel then submits that the claimants had not produced their birth certificates to prove their age. The learned M.A.C.T. has taken the age of the claimant i.e. of CW1 as 52 years based on affidavit in evidence. On the basis of the same, the learned M.A.C.T. has concluded that claimant No.1 was about 50 years of age and that of claimant No.2, the learned M.A.C.T. has reduced the age by another 5 years and considered her age as 45 years, and further computed the income on the basis of multiplier of 13 which multiplier is applicable to persons between the ages of 45 to 50 years. The learned M.A.C.T. has also deducted 1/3rd of the income of the deceased towards his personal expenses. The learned M.A.C.T. has also considered the age of the dependents, that being the higher age, as required. In the circumstances, therefore, the method adopted by the learned M.A.C.T. cannot be said to be arbitrary or fanciful. Law ought to value life and limb in a free society in generous scales. Compensation awarded ought to be just i.e. fair and reasonable by accepted legal standards so as to enable the wrong doer to hold up his head among neighbours and say with their approval that he/it has done the fair thing.

Next, Shri Kantak, learned Counsel has submitted that Rajesh Naik came from the road from the left driving his Splendour Motor-cycle bearing No.GA-01-H-2367. There appears to be no eye witnesses to the accident, and as a result of that, Respondent No.1, the driver of Respondent No.2/KTC was acquitted. Learned Counsel submits that some contributory negligence ought to have been attributed to the said Rajesh Naik, the driver of the motor-cycle. However, the facts of the case do not suggest that any contributory negligence should have been attributed to him at all. The learned M.A.C.T. has not relied on the evidence of the driver of the mini bus of K.T.C. The sketch produced shows that the impact took place towards the right of the road. There are not even brake marks seen. In case the said Rajesh Naik came on his motor-cycle from the left, it was expected of Respondent No.1, the driver, to have at least applied brakes but that exercise does not appear to have been done by him. On the contrary the panchanama and the sketch of the scene of offence clearly show that there were skid marks on the road to the extent of about 7.30 meters which means that the Respondent No.1 was driving at quite an excessive speed as a result of which after the impact the said motor-cycle was dragged to a distance of 7.30 meters. The road at the place of accident was about 11.30 meters wide with a divider with a white stripe. It is a place which most often crowded with devotees, inviting greater care and caution on the part of vehicle drivers. The learned M.A.C.T. has concluded that Respondent No.1 whilst taking a turn towards Siridao swerved his mini bus towards the wrong side and dashed against the said motor-cycle driven by Rajesh Naik. In case the said Rajesh Naik had come from the left, the first attempt of Respondent No.1 ought to have been to apply the brakes with a view to avoid the accident but nothing of that sort was done by Respondent No.1. Respondent No.1 is entirely responsible for the said fatal accident. On the facts of the case, I find there is no merit in this appeal, and consequently the same is hereby dismissed.