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Judgment
F.M. Reis, J.—The above appeal challenges the judgment and award dated 06.02.2007 passed by the learned Motor Accident Claims Tribunal, Margao, in Claim Petition No. 35/2001 whereby the claim petition filed by the appellants was partly allowed and the respondents were directed to pay to the appellants a sum of Rs. 2,23,000/- towards the compensation jointly and severally after deducting the amount paid under no fault liability together with interest at the rate of 6% per annum from the date of filing of the claim petition up to the actual payment besides the costs. The brief facts of the case are that the deceased Domnic Soares who is the husband of the appellant No. 1 and father of the appellant nos. 2 to 4 expired in the motor accident which had occurred on 23.12.2000. The deceased Domnic was riding a motor cycle and was proceeding from Betalbatim to Colva whereas the truck driven by the respondent No. 1 was coming from the opposite direction from Colva to Betalbatim near St. Anthony Chapel. The truck driven by the respondent No. 1 gave a dash on the said motor cycle and on account of the injuries sustained in the said accident he succumbed to his injury. The appellants consequently filed a claim petition seeking compensation from the respondents to the tune of Rs. 6,10,000/-.
The respondent nos.1 and 2 have disputed the claim put forward by the appellants by filing their written statement. It is the case of the said respondents inter alia that the accident had occurred on account of the negligence of the said deceased Domnic. It is further their case in the written statement at para 7 that the truck driven by the respondent No. 1 was at a slow speed and that at the spot of the accident there is a turn to the right hand side and that one bus was stationary on the left hand side of the road from Betalbatim to Colva and that the said Domnic crossed the stationary bus and lost control of his motor cycle and dashed against the front right side of the truck driven by the respondent No. 1. It is further the case of the respondents that the said motor cycle came from the opposite direction and the truck driven by the respondent No. 1 had halted on account of a coconut tree which was existing on the left hand side of the road at the spot of the accident. It is further their case that there was no negligence on the part of the said respondent and that they are not liable to pay any compensation to the appellants. The respondent No. 3 also filed written statement disputing the claim put forward by the appellants.
The learned Tribunal after framing the issues and recording of the evidence and examining CW1 ( appellant No. 1 herein ), CW2 and CW3 and thereafter examining respondent No. 1, by the impugned judgment and award dated 06.02.2007 partly allowed the said claim petition and directed the payment of the aforesaid amount. The learned Tribunal whilst fixing the compensation has come to the conclusion that the income of the deceased Domnic to be fixed at Rs. 100/- per day i.e. Rs. 3000/- per month. The learned Tribunal found that considering that the deceased Domnic at the relevant time was of 28 years of age, he was entitled to a multiplier of 18. The learned Tribunal has also deducted 1/3rd of the amount towards the personal expenses. The learned Tribunal further found that the accident occurred on account of the contributory negligence on the part of the deceased Domnic and accordingly the contributory negligence is to be shared equally between the deceased Domnic and the respondent No. 1 which resulted in the accident. Consequently, the said amount came to be awarded in favour of the appellants. Being aggrieved by the said judgment and award, the appellants have preferred the present appeal.
Shri S. S. Kakodkar, learned Counsel appearing for the appellants has raised three contentions in support of his appeal. The learned Counsel has pointed out that the learned Tribunal was not justified to fix the compensation on the basis that the deceased Domnic was drawing Rs. 100/- per day. The learned Counsel further pointed that the appellants have examined co-workers of the said Domnic who have inter-alia stated that the income of the deceased Domnic was Rs. 6000/- per month. The learned Counsel further pointed out that it cannot be accepted that the cook at the relevant time could earn only Rs. 100/- per day and as such the amount awarded by the learned Tribunal on the basis of monthly income of Rs. 3000/- is on the lower side. The next contention raised by the learned Counsel appearing for the appellants is that as per the judgment of the Apex Court reported in 2009 (4) ALL MR 429 in the case of Smt. Sarla Verma & Ors V/s Delhi Transport Corporation & Anr., though the multiplier to be applied is 17 considering the age of the deceased was 28 years nevertheless the amount to be deducted on account of personal expenses has to be 1/4th of the total amount considering that the deceased Domnic had four dependents. The learned Counsel has relied upon para 14 of the said judgment in the case of Smt. Sarla Verma ( supra ) in support of his contention. The learned Counsel further pointed out that the third contention of the learned Counsel appearing for the appellants is that the learned Tribunal has erroneously come to the conclusion that the contributory negligence on the part of the deceased Domnic is to be assessed at 50%. The learned Counsel has taken me through the sketch at Exhibit 24 and pointed out that as per the sketch, though the truck is shown on the left hand side of the road nevertheless the motor cycle which was coming from the opposite direction is found at a distance of nearly 1.95 metres from the said truck. Apart from that, the learned Counsel pointed out that the body of the deceased Domnic is found at a distance of 5.00 metres from the truck. The learned Counsel further pointed out that at the site of the accident, the road is a straight road which itself shows that there was no negligence on the part of the deceased Domnic which resulted in accident. The learned Counsel further pointed out that the records reveal that there was a coconut tree which was on the left hand side of the road and on account of the said tree the truck was proceeding almost in the middle of the road. The learned Counsel as such submits that there is no justification for the learned Tribunal to come to the conclusion that the contributory negligence on the part of the deceased Domnic is to be fixed at 50%. The learned Counsel as such submits that the impugned judgment passed by the learned Tribunal is to be modified and the compensation awarded be accordingly enhanced.
On the other hand, Shri M. S. Joshi, learned counsel appearing for the respondent No. 3 has supported the impugned judgment. The learned Counsel has further pointed out that though there was no evidence on record to support the findings of the learned Tribunal to the effect that the income of the deceased Domnic is to be fixed at Rs. 3000/- per month, nevertheless, the learned Tribunal by considering overall evidence on record has fixed such amount on higher side and as such the question of interference by this Court in the amount awarded by the learned Tribunal would not arise. The learned Counsel further pointed out that considering the judgment of the Apex Court in Smt. Sarla Verma ( supra ) the multiplier to be fixed is 17 and as such considering that the learned Tribunal has applied the multiplier at 18, the amount of compensation awarded to the appellants has to be accordingly reduced and in view of the contention of the learned Counsel appearing for the appellants that 1/4th is to be deducted on account of personal expenses, there is no justification for interference by this Court in the impugned judgment. The learned Counsel further pointed out that as per the records, it is the case of the respondent nos.1 and 2 that the deceased Domnic was coming at a high speed from the opposite direction of the truck and the respondent No. 1 had halted the truck and as such the deceased Domnic lost control of his motor cycle which dashed against the said truck and the deceased Domnic succumbed to the injuries sustained in the said accident. The learned Counsel further pointed out that considering the facts and circumstances of the case, the learned Tribunal has rightly come to the conclusion that the contributory negligence on the part of the deceased Domnic was 50% and as such, the question of interference by this Court in the impugned judgment would not arise. The learned Counsel has taken me through the written statement filed by the respondent nos.1 and 2 and pointed out that there are specific averments at para 7 of the written statement which disclose that the deceased Domnic had come in the path of the truck driven by the respondent No. 1, in view of the fact that there was a stationary bus. The learned Counsel as such submits that there is no substance in the above appeal and the appeal deserves to be dismissed.
Having heard the learned Counsels and on perusal of the records, the following points for my determination arise in the present appeal :
POINTS FOR DETERMINATION
Whether the learned Tribunal was justified to fix the compensation on the basis that the income of the deceased Domnic was Rs. 3000/- per day ?
Whether the learned Tribunal was justified to award the compensation on the basis that the multiplier applicable is 18 and deducting 1/3rd of the amount towards the personal expenses ?
Whether the learned Tribunal was justified to come to the conclusion that the contributory negligence on the part of the deceased Domnic was 50% ?
With regard to the first point for determination, Shri S. S. Kakodkar, learned Counsel appearing for the appellants fairly pointed out that there is no specific evidence adduced by the appellants herein about the actual salary of the deceased Domnic at the relevant time. Though it is the contention of the learned Counsel appearing for the appellants that deceased Domnic was working as a cook in hotel Gladstone at Vasco at the relevant time, neither the employer of the deceased Domnic nor any other person on their behalf has been examined in support of the contention of the appellants that the deceased Domnic was drawing a salary of Rs. 6000/- per month. The learned Tribunal as such considering the facts of the case has rightly fixed the compensation on the basis that the deceased Domnic was earning a sum of Rs. 100/- per day equivalent to Rs. 3000/- per month. As such, I find no infirmity in the said findings of the learned Tribunal and consequently the first point for determination is answered accordingly.
With regard to the second point for determination, on perusal of the judgment of the Apex Court in the case of Smt. Sarla Verma ( supra ) it is not in dispute that taking note of the fact that the deceased Domnic was 28 years of age at the relevant time, the multiplier to be applied in such circumstances is to be 17. The learned Tribunal whilst passing the impugned judgment has fixed the multiplier at 18. Hence, to that extent the learned Tribunal has committed an error. But however, taking note of the para 14 of the judgment of the Apex Court in the case of Smt. Sarla Verma (supra), the personal expenses of the deceased Domnic is to be reduced by 1/4th considering that the deceased had four dependents. The learned Tribunal has deducted 1/3rd on account of personal expenses considering overall facts and circumstances of the case. Any amount to be deducted on account of reducing the multiplier is set off from the increase of the compensation after deducting 1/4th amount towards the personal expenses. Hence, the second point for determination is answered accordingly.
With regard to the third point for determination, on perusal of the sketch at Exhibit 24, I find that the truck is found on the left hand side of the road, the motor cycle of the deceased Domnic is found in the middle of the road at a distance of about 1.45 metres from the bumper of the truck. Apart from that, the body of the Domnic is found 5.00 metres from the said truck. The evidence further discloses that there was a coconut tree which was tilted from the left side of the road. The respondent No. 1 himself has admitted in his written statement that on account of the said tree, he was unable to enter the katcha road. Considering that the motor cycle is found at a distance of nearly 2 metres from the truck on the opposite direction, I find that the learned Tribunal was not justified to fix the contributory negligence of the deceased Domnic at 50% as the motor cycle is found on the opposite direction of the truck at a distance of about 2 metres. As such, the truck has to be at the relevant time at high speed. Apart from that, the truck driven by the respondent No. 1 was a Tata tipper truck which is relatively a heavy vehicle. The motor cycle of the deceased Domnic is stated to be Yamaha motor cycle. Considering the said aspect and taking note of the fact that the road at the site of the accident was a straight road, I find that the learned Judge was otherwise justified to come to the conclusion that the deceased Domnic has also contributed in the said accident. Taking note of the evidence of CW2 who has claimed to be an eye witness and who has stated that at the site of the accident, the road is a straight road and that the truck driven by the respondent No. 1 was coming at fast speed, I find that the learned Tribunal was not justified to fix the contributory negligence on the deceased Domnic at 50%. It is also to be noted that the existence of the stationary bus as claimed by the respondent No. 1 has not been established by any evidence. There is nothing on record to establish the existence of the stationary bus. Apart from that, upon perusal of the sketch, there is nothing to suggest that any stationary bus was at the site of the accident. Apart from that, there is nothing on record to suggest that the body of the deceased Domnic which was flunged at a distance of about 5 metres from the truck had hit any such stationary bus. Considering that the contention of the respondent No. 1 in the written statement about the existence of the stationary bus has not been established, I find that the contributory negligence as assessed by the learned Tribunal to the extent of 50% on the part of the deceased Domnic cannot be accepted. Taking note of the fact that the road was a straight road and there was enough space for such movement, I find that the contributory negligence of deceased Domnic is to be fixed at 25%. Remaining 75% is the negligence to be attributed to the driver of the Tata truck. In such circumstances, I find that the learned Tribunal was not justified to fix the contributory negligence of deceased Domnic at 50% and on the contrary for the aforesaid reasons such contributory negligence of the deceased Domnic is fixed at 25%. Remaining 75% is to be attributed to the respondent No. 1. The third point for determination is answered accordingly. In view of the above, I pass the following :
ORDER
(i) The appeal is partly allowed.
(ii) The impugned judgment and award dated 06.02.2007 passed by the Motor Accident Claims Tribunal, Margao, is modified and the contributory negligence of the deceased Domnic is fixed at 25%. As such, the respondents are directed to pay jointly and severally to the appellants a sum of Rs. 3,44,050/- together with interest at the rate of 6% per annum.
(iii) Any amount paid by the respondents herein shall be deducted whilst arriving at the amount payable to the appellants.
(iv) The appeal stands disposed of accordingly with no order as to costs.