Bombay High Court
Seth Construction Company, Through ... vs Shri Ramchandra S/O Purnachandra Kale ... on 12 July, 2017
1207 FA 1010/2014 & XOB 35/2015 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
FIRST APPEAL NO. 1010/2014
Seth Construction Company,
Through Shri Rajkumar s/o Bhurkan
Dongre, aged about 37 years,
Occu: Contractor,
Bairamji Road, in front of Poonam
Chambers, Nagpur-24. APPELLANT
.....VERSUS.....
1] Shri Ramchandra s/o Purnachandra Kale,
Aged 60 years, Occu: Retired,
2] Sau. Shashikala w/o Ramchandra Kale,
Aged 52 years, Occu: Household,
3] Shri Praful s/o Ramchandra Kale,
Aged 24 years,
All R/o. Plot No.15, Agne Layout,
Nagpur.
4] Nagpur Municipal Corporation,
Through its Municipal Commissioner,
Civil Lines, Nagpur. RESPONDE NTS
WITH
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1207 FA 1010/2014 & XOB 35/2015 2 Judgment
CROSS OBJECTION NO. 35/2015
Seth Construction Company,
Through its Proprietor Shri Rajkumar
S/o Bhurkan Dongre, aged about 39 years,
Occu: Contractor, having its Office
at Bairamji Road, in front of Poonam
Chambers, Nagpur-24. APPELLANT
.....VERSUS.....
1] Shri Ramchandra S/o Purnachandra Kale,
Aged about 69 years, Occu: Retired,
2] Sau. Shashikala W/o Ramchandra Kale,
Aged 61 years, Occu: Household,
3] Shri Praful S/o Ramchandra Kale,
Aged 34 years,
All R/o. Plot No.15, Agne Layout,
Nagpur.
4] Nagpur Municipal Corporation,
Through its Municipal Commissioner,
Civil Lines, Nagpur. RESPONDE NTS
CROSS-OBJECTORS
1] Shri Ramchandra s/o Purnachandra Kale,
Aged about 69 years, Occu: Retired,
2] Sau. Shashikala w/o Ramchandra Kale,
Aged 61 years, Occu: Household,
3] Shri Praful s/o Ramchandra Kale,
Aged 34 years,
All R/o. Plot No.15, Agne Layout,
Nagpur.
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1207 FA 1010/2014 & XOB 35/2015 3 Judgment
Shri R.O. Chabra, counsel for appellant.
Shri S.B. Ninawe, counsel for respondent nos.1 to 3/cross-objectors.
Shri Tariq Zaheer, counsel for respondent no.4.
CORAM : DR. SMT. SHALINI PHANSALKAR-JOSHI, J.
DATE : JULY 12, 2017.
ORAL JUDGMENT :
This appeal raises an interesting question of law as to whether the concrete mixture machine can be called as "motor vehicle" within the meaning of section 2(28) of the Motor Vehicles Act, 1988 (hereinafter will be referred to as "Act" for convenience). 2] Appeal is directed against the judgment and award passed on 27/01/2014 by M.A.C.T. Nagpur in Claim Petition No. 896/2005, thereby directing the appellant, who is the owner of the concrete mixture machine to pay the compensation of Rs.6,27,000/- to the respondent nos.1 and 2, who are the parents of deceased Harish, with interest at the rate of 7.5% per annum from the date of the order till its realization.
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1207 FA 1010/2014 & XOB 35/2015 4 Judgment 3] Brief facts of the appeal, can be stated as follows:-
Respondent nos.1 and 2 are the parents and respondent no.3 is the brother of the deceased Harish. On 12/12/2004 at about 11:30 p.m., Harish was proceeding on his motorcycle Bajaj Boxer bearing no. MH-31-BJ-7206 from Sitabuldi to his house. Near the turning of Khamla Basti on Khamla Road, his motorcycle slipped on the road while taking turn because of the debris material like concrete, mud and other materials lying on the road, which was on account of excavating of the earth for the construction of the road. The said work was being carried out by the appellant, who was engaged by the respondent no.4, Nagpur Municipal Corporation as a Contractor. Deceased, on account of slipping from the motorcycle, fell down on the concrete mixture machine, which was kept on the road in a negligent manner, without any danger sign, or without any barricades or indicators. As a result of the accident, Harish sustained injuries to his head. Though he was taken to the Medical College and Hospital at Nagpur for treatment, there, he was declared as dead on admission. Respondent nos.1 and 2, therefore, had lost their son in his untimely death on account of negligent act on the part said construction company of keeping the concrete ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 5 Judgment mixture machine as well as materials unattended lying on the road without any signal to show the presence of said machine at the spot and further to show that the work was in progress at the site. 4] Respondents-claimants, therefore, preferred the petition under section 166 of the Act against the Appellant- construction company and also the respondent no.4 - Nagpur Municipal Corporation for compensation. According to case of the claimants, deceased was earning Rs.10,000/- per month. He was studying in Second Year, Civil Engineering Diploma Course at Local Polytechnic College and was also working as a part time with S.L. Jinturkar and Company and with R.S. Dadhe and Associates. He had bright future and prospects. However, on account of his untimely death, as they had lost their source of income and also suffered loss of his love and affection. Hence they claimed the compensation of Rs.10,00,000/- from appellant and respondent no.4, along with interest at the rate of 18% per annum. 5] This petition came to be resisted by the appellant vide written statement at Exh.15, contending inter alia that petition itself ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 6 Judgment was not maintainable as Tribunal had no jurisdiction to try the same, considering that the concrete mixture machine cannot be called as a "motor vehicle" within the meaning of Section 2(28) of the Act. Further it was contended that the cause of the accident was the rash and negligent driving of the deceased himself. The very fact that while taking right turn, he slipped from his motorcycle and dashed on the stationary concrete mixture machine, is sufficient to indicate that deceased himself was responsible, and hence liability on the part of appellant or respondent no.4 of paying compensation, does not arise. Further, it was submitted that the owner and the insurer of motorcycle which deceased was driving, being not joined in the instant case, on this count also, the petition was vitiated for non-joinder of necessary parties. It was contended that the amount of compensation claimed by the respondents-claimants was exorbitant and the appellant is not liable to pay the same. 6] Respondent no.4 - Nagpur Municipal Corporation also resisted the petition vide it's written statement at Exh.18 by contending that the alleged concrete mixture machine being owned by the present appellant, Nagpur Municipal Corporation cannot be ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 7 Judgment held liable for any act of negligence committed by the appellant. Respondent no.4, therefore, prayed for dismissal of the petition as against it.
7] On these rival pleadings of the parties, learned Tribunal framed the necessary issue for its consideration at Exh.25 and holding that the concrete mixture machine is a motor vehicle within the meaning of section 2(28) of the Act, allowed the claim petition, further holding that the sole cause of accident was the negligence on the part of the present appellant in not taking proper care and caution of removing the material which was lying on the road and also keeping the concrete mixture machine unattended and without any barricades or indicators. The Tribunal, however exonerated the respondent no.4-Nagpur Municipal Corporation from paying the amount of compensation on the ground that the owner of the machine can alone be held liable to pay the amount of compensation.
8] This judgment and order of the Tribunal is challenged in this appeal by learned counsel for appellant, mainly on three ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 8 Judgment points, firstly, that the concrete mixture machine can, by no stretch of imagination, be called as a motor vehicle within the meaning of section 2(28) of the Act, as it is not meant to be used or adapted for use on the road; secondly, that some negligence was definitely on the part of the deceased, as the motorcycle driven by him, dashed on the stationary concrete mixture machine. The third contention raised is about the amount of compensation awarded by the Tribunal being on higher side and respondent no.4 - Nagpur Municipal Corporation being totally absolved from the liability. 9] The original claimants, who are respondent nos.1 to 3 in this appeal, have also challenged the impugned judgment of the Tribunal by filing cross-objection as regards the quantum of compensation. It is submitted that learned Tribunal has deducted 50% of the income of the deceased towards his personal expenses, instead of deducting only 1/3rd of the said amount. It is also submitted that the Tribunal has committed an error in awarding interest from the date of order and not from the date of petition. The grievance is also raised about the rate of interest at 7.5% per annum as awarded by the Tribunal, which according to learned ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 9 Judgment counsel for respondents, has to be 9% per annum, in view of the various decisions of the Hon'ble Supreme Court. 10] Learned counsel for respondent no.4 - Nagpur Municipal Corporation, has supported the impugned judgment so far as it exonerates Nagpur Municipal Corporation from liability to compensate the claimants. However, learned counsel for respondent no.4 has also assailed the finding of the Tribunal holding the concrete mixture machine as 'motor vehicle' within the meaning of section 2(28) of the Act, being not legal and correct as the said machine was not meant for use on the road.
11] In view of these rival submissions advanced before me by learned counsel for both the parties, the first and foremost issue which necessarily arise for my determination in this appeal, is whether the concrete mixture machine can be called as 'motor vehicle' within the meaning of section 2(28) of the Act? The finding on this issue is relevant even for deciding maintainability of the petition filed by respondents-claimants before the Tribunal. Only if it is found that the cause of accident was on account of the use of ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 10 Judgment motor vehicle accident, the Tribunal can have the jurisdiction under the Act.
12] To appreciate the submissions on this point, it would be necessary to refer to the definition of 'motor vehicle' contained in section 2(28) of the Act. It reads as follows:-
"Sec.2(28). - 'motor vehicle' or 'vehicle' means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer, but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty- five cubic centimetres."
13] Thus, as per this definition, vehicle means any mechanically propelled vehicle adapted for use upon roads. It is not material whether the power of propulsion is transmitted thereto from an external or internal source. The definition is though inclusive, it specifically provides that motor vehicle does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 11 Judgment of not exceeding twenty-five cubic centimetres. Thus, the definition itself provides for an exception by excluding certain types of vehicles from the definition of the motor vehicle. The essential test to identify whether a particular vehicle is a motor vehicle within this definition is whether such vehicle is adapted for use upon road. 14] This definition of 'motor vehicle' in section 2(28) of the Act came for consideration and interpretation before various courts, including this court and also the Hon'ble Supreme Court. The Tribunal has in its judgment also relied upon the decision of the Karnataka High Court in the case of Oriental Insurance Co. Ltd.
-Vs- D. Laxman and others, 2007(2) T.A.C. 141 (Kant.), wherein it was observed that, section 2(28) of the Act covers two types of vehicles, one is a motor vehicle and the other is a vehicle. The motor vehicle is defined to include all vehicles propelled by any power other than muscular power. Whereas the word 'vehicle' includes even bicycles, tricycles and auto-motor car and every wheeled vehicle that is used or capable of being used on a public street. In para no.15 of its judgment, it was further held that, "The actual use of a vehicle for a particular purpose is no criteria to decide ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 12 Judgment whether a vehicle is a motor vehicle". It was further held that the definition of the word 'motor vehicle' is inclusive and it includes within the meaning of the expression "Motor Vehicles or Vehicles", chassis to which a body has not been attached and a trailer. As regards the meaning of the word "use" it was held that the said word is in contradiction to the word "drive". In this decision, the reliance was placed on the judgment of the Hon'ble Apex Court in the case M/s. Natwar Parikh and Co. Ltd. -Vs- State of Karnataka, wherein it was held that, "The words 'motor vehicle' have to be read in the broadest possible sense keeping in mind, that the Act has been enacted in order to keep control over motor vehicles, transport vehicles etc." Accordingly, it was held that the Tractor falls within the expression of 'motor vehicles'.
15] In this appeal, learned counsel for respondents- claimants has also relied upon the judgment of the Hon'ble Apex Court in the case of Chairman, Rajasthan State Road Transport Corporation and another -Vs- Santosh and others, 2013(6) Mh.L.J. 97. The issue raised before the Hon'ble Apex Court in this case was, whether 'Jugaad' is covered in the definition of the motor ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 13 Judgment vehicle under section 2(28) of the Act? While deciding this issue, the Hon'ble Apex Court has considered in detail its earlier decisions and also the definition of the motor vehicle as used in section 2(28) of the Act and was pleased to hold that, "Any vehicle which is mechanically propelled and adapted for use upon roads and does not fall within the exceptions provided therein, is a motor vehicle within the meaning of section 2(28) of the Act".
16] The Hon'ble Apex Court has in this decision also reproduced its observations in the abovesaid decision of M/s. Natwar Parikh and Co. Ltd. -Vs- State of Karnataka, AIR 2005 (SC) 3428 and held that, "As the words 'motor vehicle' have been defined in the comprehensive sense by the legislature, we have to read those words in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles, transport vehicles etc.". It was further held that, "A combined reading of the definitions of motor vehicle under section 2(28) of the Act shows that the definition of 'motor vehicle' includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer". It was further held that, "Therefore, ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 14 Judgment even though a trailer is drawn by a motor vehicle, it by itself being a motor vehicle the tractor- trailer would constitute a 'goods carriage' under section 2(14) and consequently, a 'transport vehicle' under section 2(47)".
17] In para no.22 of its judgment, the Hon'ble Apex Court was further pleased to observe that, "Tractor is a self propelled vehicle for hauling other vehicles, even if it is used for different purposes. It is a self propelled vehicle capable of pulling alone as defined under the definition of motor vehicles. It does not fall within any of the exclusions as defined under the Act. Thus, it is a motor vehicle in terms of the definition under section 2(28) of the Act". The argument that as the tractor is used only for agricultural purposes, and therefore it is not a motor vehicle under the Act, was rejected. 18] As regards the question whether a Jugaad is a motor vehicle, it was held that, as it was mechanically propelled, it is covered in the definition of motor vehicle under section 2(28) of the Act. According to Hon'ble Apex Court, ultimately the question as to whether a particular vehicle can be defined as motor vehicle in terms of section 2(28) of the Act, is to be determined on the facts of ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 15 Judgment each case taking into consideration the use of the vehicle and its suitability for being used upon the road. Once it is found to be suitable for being used on the road, it is immaterial whether it runs on the public road or private road, for the reason, that actual user for a particular purpose, is no criteria to decide the same. 19] It was further held that, "Definition of motor vehicle takes within its ambit, a dumpter and a tractor. A tractor which is used basically for agricultural purpose and a dumper which is used in the factory premises, can suitably be adapted for being used on the road, therefore, they will meet the requirement of definition of motor vehicle under section 2(28) of the Act. The word "only" used in section 2(28) of the Act clearly shows that the exemption is confined only to those kinds of vehicles which are exclusively being used in a factory or in any closed premises. Thus, a vehicle which is not adapted for use upon the road, is only to be excluded".
20] In this case, learned counsel for respondents-claimants has also relied upon the judgment of this court in the case of Krishnaji -Vs- Umesh Rambhau Shrirame and others, 2016 ACJ 1587, wherein a labourer who was engaged in the work of ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 16 Judgment harvesting Soyabean had his right hand caught in the thresher which resulted into amputation of the hand. He had filed claim petition under section 163-A of the Act, seeking compensation for the permanent disability. The Tribunal has allowed his application and awarded the compensation. In the appeal, contention raised was that thresher is not a motor vehicle and hence no compensation could be granted under the provisions of the Act. In this judgment, while taking note of the provisions of section 2(28) of the Act, read along with section 2(44) of the Act it was held by learned Single Judge of this court that, a thresher to which the power of propulsion is transmitted from an external source, like, a tractor, would be a motor vehicle for the purpose of the Act, and accordingly the judgment of the Tribunal awarding compensation, was confirmed, dismissing the appeal.
21] Coming to the facts of the present case, therefore, if the test laid down by the Hon'ble Apex Court in the case of Chairman, Rajasthan State Road Transport Corporation (supra) is to be applied, then undisputedly the concrete mixture machine does not fall within any of the exclusions provided in the definition of section 2(28) of the Act, as the said exclusion is confined only to those ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 17 Judgment kinds of vehicle which are exclusively being used in a factory or in any closed premises. The concrete mixture machine is admittedly having four wheels and moreover it is not exclusively being used in a factory or in any closed premises. As it is used for the construction activity and the construction may be at any closed site or on the road. The concrete mixture machine is adapted for being used upon the road as it has to be taken from place to place wherever construction activity is being carried out. It is also not disputed that the said machine is suitable to be adapted for being used on the road. In such circumstances, as held in the abovesaid authorities, it is totally immaterial for which purpose it is being used, whether for construction purpose or otherwise. If the thresher machine, which is used for agricultural purpose, can be considered as the motor vehicle, being mechanically propelled and similarly the tractor which is being used for agricultural purpose is also considered as motor vehicle being mechanically propelled whether from external or internal source, the concrete mixture machine also becomes qualified to be a motor vehicle. From the mere use of the concrete mixture machine for the purpose of construction, it cannot be excluded from the definition of motor vehicle given in section 2(28) ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 18 Judgment of the Act. Ultimately whether a particular machine or vehicle can be defined as motor vehicle in terms of section 2(28) of the Act is to be determined on the facts of each case, taking into consideration the use of the vehicle and its suitability for being used upon the road. In the instant case, admittedly the concrete mixture machine was found on the road. The contents of the spot panchnama and evidence on record are sufficient to that effect. Therefore, once it is found to be suitable for being used on the road, then it is immaterial whether it runs on the public road or private road and what was its actual use, as it cannot be a criteria to decide it is a motor vehicle or not. Therefore, as observed by the Hon'ble Apex Court in the said authority, if a tractor which is specifically used for agricultural purpose and the dumper which is used in the factory premises cam be suitably adapted for use on the road, and therefore they are considered as meeting the requirements of the definition of motor vehicle under section 2(28) of the Act, applying the same analogy, the concrete mixture machine cannot be excluded from the definition of motor vehicle. Especially, when the Hon'ble Apex Court has said that Motor Vehicles Act being a beneficial piece of legislation, we have to read the words "motor vehicle" in the ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 19 Judgment broadest possible sense. Hence, whether the concrete mixture machine is a self propelled vehicle, capable of pulling alone or whether it was carried on other vehicle, it does fall within the definition of section 2(28) of the Act. The finding of the Tribunal, therefore, on this point needs to be confirmed.
22] Hence as regards the issue of jurisdiction of the Tribunal established under the Motor Vehicles Act, therefore, it has to be held that Tribunal has such jurisdiction. Even otherwise also, the Tribunal established under the Act gets its jurisdiction under section 165 of the Act, which states that the Tribunal has jurisdiction for adjudicating the claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Therefore, once the use of the motor vehicle is proved in the accident, then the Tribunal gets jurisdiction. In the instant case, admittedly the accident has occurred on account of the use of the motorcycle of the deceased also, and therefore, as the use of motorcycle is proved in the accident, it has to be held that claim petition had definitely jurisdiction to decide the claim petition arising out of the death of ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 20 Judgment the rider of motorcycle.
23] Once it is held that concrete mixture machine is a motor vehicle within the meaning of section 2(28) of the Act, then the next question arising for consideration is about the negligence on the part of the appellant, which was admittedly owner of the concrete mixture machine. As per the facts and evidence on record, deceased was riding on his motorcycle at about 11:30 p.m. in the night and while taking right turn at Khamla Square, his motorcycle slipped due to debris on the road, like, concrete, sand, mud etc. and hence deceased fell on the concrete mixture machine which was kept there unattended. The F.I.R. which is produced on record at Exh.27-A along with spot panchnama (Exh.28) prove that the cause of the accident was the slipping of the motorcycle of the deceased and it was on account of this debris material like concrete, earth, mud which was lying at the spot. The spot panchnama also shows that the concrete mixture machine was lying there on the road without giving any indicator, red light or even barricades displaying the sign of danger. It was also not enclosed with some stones kept surrounding thereto. Therefore, it is clear that the concrete mixture machine was kept negligently without taking proper precaution to ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 21 Judgment ensure that no one falls on it or the passers-by take note of it. The minimum requirement of caution was at least to switch on its indicators or keep some red light or to encircle that machine with stones or tin sheets. However, no such precaution appears to be taken. Coupled with the fact that the debris which was created on account of excavation work of the road and use of that machine was also not cleared from the road. It was the only cause which has resulted into the deceased slipping from his motorcycle, falling on the concrete mixture machine and sustaining head injury. No other inference can be drawn from the facts, which are produced on record.
24] It is pertinent to note that appellant has not examined either the attendant of the said concrete machine or any other witness to show that the proper precautions were taken. On the contrary, it is the respondents-claimants who have examined an eye witness to the accident, viz. Shri Ramesh Gopal to prove that such debris material like sand, concrete and other articles were lying on the road adjoining to the concrete mixture machine and no lights were put ON on the concrete mixture machine, nor any danger signs were displayed on the spot. Appellant has not even cross- ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 :::
1207 FA 1010/2014 & XOB 35/2015 22 Judgment examine the said witness, and thus, his evidence has remained uncontroverted and unchallenged on record and it clearly establishes that the cause of the accident was the negligent act on the part of the appellant in keeping such concrete mixture machine unattended and without displaying the indicators and keeping the debris material lying on the road itself. Therefore, there is absolutely no case of even contributory negligence made out by the appellant so as to even reduce the liability, the far remain, to exempt the appellant from liability to compensate the respondents- claimants.
25] As to the judgment of Surinder Kumar Arora and another -Vs- Dr. Manoj Bisla and others, AIR 2012 SUPREME COURT, 1918, relied upon by learned counsel for appellant, the facts of the said case are totally different from the facts of the present case as in that case no cogent evidence was adduced by the claimants to prove that cause of accident was the rash and negligent driving of the vehicle on which deceased was traveling. Hence, it was held that the parents of the deceased cannot be held entitled for compensation under section 166 of the Motor Vehicles Act. As against it, in this case, such negligence is proved on record. ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 :::
1207 FA 1010/2014 & XOB 35/2015 23 Judgment 26] Learned counsel for appellant has then placed reliance
on the judgment of Hon'ble Apex Court in the case of A. Shridhar
-Vs- United India Insurance Co. Ltd. and another, AIR 2011 SUPREME COURT 3833. However, facts of the said case disclose that the sole cause of accident was found therein to be the Oil Spill on the road. Hence it was held that insurance company of the motorcycle on which injured was riding cannot be liable under section 166 of the Motor Vehicles Act. Here in the case it is proved that the sole cause of the accident was the negligence on the part of appellant, the owner of the concrete mixture machine in not removing the debris from the road and keeping the machine unattended. Hence, this judgment cannot be made applicable to the facts of this case.
27] Now coming to the submission advanced by learned counsel for appellant that respondent no.4 - Nagpur Municipal Corporation should not have been exempted from the liability by the Tribunal. It is submitted that the work of construction and widening of the road was carried on behalf of Nagpur Municipal Corporation. It was the Nagpur Municipal Corporation which has engaged the appellant to do so and hence Nagpur Municipal ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 24 Judgment Corporation was the principal whereas appellant was merely an agent, and hence Nagpur Municipal Corporation was also required to be held liable to compensate the respondents-claimants or at least appellant may be permitted to recover the amount of compensation from the Nagpur Municipal Corporation. 28] However, this submission cannot be accepted in view of the undisputed position that appellant is the owner of the concrete mixture machine and as per section 147 of the Act, it is the owner who is liable to compensate the claimants. Even the liability of insurance company, if any motor vehicle is insured with it, is only joint and several, but the principal liability is always on the owner of the vehicle. Hence, Tribunal, in this respect, has rightly held that appellant is alone responsible and liable to compensate the claimants.
29] This brings me to the quantum of compensation. The evidence of claimant no.1 shows that his son was studying in the Second Year of Civil Engineering and at the same time he was also working as Building Supervisor and Draftsman and he was earning Rs.10,000/- per month.
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1207 FA 1010/2014 & XOB 35/2015 25 Judgment 30] The respondents-claimants have also examined one
Sudhir Jinturkar, who was registered government auctioner and doing the work of dismantling of the buildings. According to his evidence, deceased Harish was working with him as a Supervisor during the period 2003-04 and he was paying deceased Rs.250/- per day as remuneration. He has proved on record the certificate to that effect vide Exh.28. His evidence has remained unchallenged on record.
31] The respondents-claimants have also examined witness no.3 Rajesh Dadhe, who was working as Consulting Engineer and running a firm in the name of "R.S. Dadhe and Associates". According to him, deceased was working in his office part time as Draftsman. Deceased has worked with him from 10/05/2004 till his death on 12/12/2004. He was paying deceased Rs.3,000/- per month. He has also produced on record the certificate to that effect at Exh.32. His evidence has also remained unchallenged on record.
32] Thus, in my considered opinion, the Tribunal has
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1207 FA 1010/2014 & XOB 35/2015 26 Judgment
rightly held that the income of the deceased from both these sources comes to Rs.6,000/- per month. As admittedly deceased was unmarried, Tribunal has rightly deducted 50% of the said amount towards his personal expenses, in view of the judgment of the Hon'ble Apex Court in the case of Sarla Verma -Vs- DTC, (2009) 6 SCC 121. The Tribunal has then applied the multiplier of '17' considering the age of the deceased as 28 years. However, having regard to the fact that at the time of accident, deceased was unmarried and claimants were his parents, the age of the parents which is on higher side, needs to be considered. At the time of filing of the petition, the age of the father was 60 years and the age of mother was 52 years. Therefore the appropriate multiplier would be '8'.
33] The Tribunal has also not considered additional income towards the future prospect of the deceased. Having regard to the age of the deceased at the time of accident, that of 28 years, 30% of additional income comes to Rs.900/- which needs to be added towards his future prospects. Thus, multiplicand comes to Rs.3000/- + Rs.900/- = Rs.3,900/-. If it is multiplied by 12 x 8, it comes to Rs.3,74,400/- towards financial loss.
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1207 FA 1010/2014 & XOB 35/2015 27 Judgment 34] The claimants-respondent nos.1 and 2 being the
parents of the deceased, are also entitled for loss of love and affection and loss of estate. The amount awarded by the Tribunal towards this head is Rs.10,000/-. Considering the judgment of the Hon'ble Apex Court in the case of Rajesh -Vs- Rajbir Singh, 2013 (9) SCC 54, it needs to be enhanced to Rs.50,000/-. Similarly, towards funeral expenses, the Tribunal has awarded Rs.5,000/- only, which amount needs to be enhanced to Rs.25,000/-. Thus, the total amount of compensation comes to Rs.4,49,400/-, inclusive of NFL amount of Rs.50,000/-.
35] As regards the interest, the Tribunal has awarded the same from the date of order and not from the date of petition. The reason given by the Tribunal is that petition has been filed in the year 2005 on 25/08/2005, whereas the evidence is closed by the petitioners on 11/02/2013. Hence, the Tribunal has held that the matter has been protracted by the petitioners-claimants and hence the claimants were held entitled to interest from the date of order. However, daily order sheet which is part of the record and ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 28 Judgment proceeding of the case, does not support the observation made by the Tribunal, that the matter was dragged by the petitioners- claimants. The Roznama clearly reflects that on more than 90% of times, the claimants and their counsel were present, but on one count or other, the matter could not be reached. Hence, if the delay is on account of the other reasons, especially in the present case, it shows that all along the appellant and Nagpur Municipal Corporation remained absent even at the time of recording of evidence of witnesses, the claimants cannot be penalized, by depriving them from the interest which was legally and reasonably due to them. This part of the impugned order of the Tribunal, therefore, needs to be modified and interest needs to be awarded from the date of petition.
36] As regards the rate of interest, the Tribunal has awarded interest at the rate of 7.5% per annum. Learned counsel for the claimants has relied upon the judgment of the Hon'ble Apex Court in the case of Asha Verman and others -Vs- Maharaj Singh and others, 2015 ACJ 1286, wherein relying on its earlier judgment in the case of Municipal Corporation of Delhi -Vs- ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 :::
1207 FA 1010/2014 & XOB 35/2015 29 Judgment Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC), the Hon'ble Apex Court has awarded the interest at the rate of 9% per annum on the compensation amount.
37] Per contra, learned counsel for appellant has submitted that the interest at the rate of 6.6% per annum would be just and reasonable, considering that appellant herein is not an insurance company but a small time construction company doing petty contracts.
38] Having regard to the submissions advanced by learned counsel for appellant and in view of the particular and peculiar facts of this case, in my view it would be just and proper to maintain the same rate of interest which is awarded by the Tribunal i.e. 7.5% per annum from the date of petition.
39] The up shot of the above discussion is that appeal and cross-objection needs to be allowed and are allowed partly to the extent of modifying the quantum of compensation. The respondents-claimants are entitled to get the compensation of ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 ::: 1207 FA 1010/2014 & XOB 35/2015 30 Judgment Rs.4,49,400/- with interest at the rate of 7.5% per annum from the date of petition till its realisation from the appellant. 40] Appeal and Cross-Objection are disposed of in above terms, with no order as to costs.
JUDGE Yenurkar ::: Uploaded on - 20/07/2017 ::: Downloaded on - 28/08/2017 09:58:52 :::