Bombay High Court
Smt.Pramila Ramesh Pagar & Others vs Ramnayak Dube & Another on 3 October, 2019
Equivalent citations: AIRONLINE 2019 BOM 2101
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
904 fa 1684-96.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1684 OF 1996
Pramila Ramesh Pagar & Ors. ..Appellant
v/s.
Ramnayak Dube & Anr. ..Respondents
Mr. Rajesh Datar a/w. Akshay Kandarkar for the Appellant.
Mr. P.M.Shah for the Respondent No.2.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATED : 3rd OCTOBER, 2019.
ORAL JUDGMENT.
1. The appellants herein have challenged the judgment and award dated 17.8.1996 passed by the learned Tribunal, Nashik in Motor Accident Claim Petition No. 177 of 1990.
2. By the impugned judgment and award, the Claims Tribunal has awarded total compensation of Rs.92,000/- with interest at the rate of 9% per anum from the date of application till actual payment.
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3. The appellant no.1 is the widow, the appellant nos.2, 3 and 4 are the children and the appellant no.5 is the father of the deceased Ramesh Pagar who died in a motor vehicular accident on 16.12.1989. The facts in brief are that the moped driven by the deceased Ramesh Pagar with a pillion rider had dashed a against truck bearing No. MCU 1208, which was stranded on the road due to bursting of tyres. The said truck was fully loaded with iron bars, protruding outside the body of the truck. The moped rammed against the said vehicle as a result the iron bars pierced through the body of the rider. The rider of the moped as well as the pillion rider died on the spot as a result of the injuries sustained in the said accident.
4. The Appellants claimed that the accident was caused solely due to rash and negligent driving by the driver of the said truck, which was owned by the respondent no.1 and insured by the respondent no.2 insurance company. The appellants claimed that the deceased was 30 years of age and was earning Rs.20,000/- per annum. The Appellants stated that they were totally dependent on the income of the deceased. The Appellants therefore filed a Claim pps 2 of 16 904 fa 1684-96.doc Petition under Section 166 of the Motor Vehicles Act claiming total compensation of Rs.3 lakhs.
5. The driver and the insured did not contest the proceeding despite due service, and the matter proceeded exparte. The respondent no.2 insurance company denied that the accident was caused due to rash and negligent driving of the driver of the truck and attributed negligence to the rider of the moped. Hence, the respondent no.2 Insurance Company denied its liability to pay any compensation to the appellants.
6. The Tribunal upon considering the evidence adduced by the claimants, held that there was some negligence on the part of the driver of the truck in not showing any indicator or putting on the lights particularly when the steel angles were protruding out of the body of the truck. The Tribunal however held that the rider of the moped could have avoided the accident as there was sufficient space on either side of the road. The Tribunal therefore held that the deceased had contributed to the accident to the extent of 60% and pps 3 of 16 904 fa 1684-96.doc restricted the liability of the respondent no.2 insurance company to 40%.
7. The Tribunal considered the annual income of the deceased as Rs.20,000/- per annum and further deducted 1/3rd towards personal expenses of the deceased. Considering the age of the deceased as 30 years the Tribunal applied multiplier of 16 and computed loss of dependency at Rs.2,16,000/-. The Tribunal also awarded compensation of Rs.15,000/- towards loss of estate and consortium, and assessed the total compensation at Rs.2,31,000/-. Since the liability of the respondent no.2 insurance company was held to be 40%, the Tribunal directed the Respondent no.2 to pay to the appellants compensation of Rs.92,400/- with interest @ 9% per annum from the date of application till realization. Being aggrieved by the impugned judgment and award, the appellants- original claimants have filed this appeal under Section 173 of the Motor Vehicles Act.
8. Mr. Rajesh Datar, the learned counsel for the appellant submits pps 4 of 16 904 fa 1684-96.doc that undisputedly, the iron bars were jutting out of the body of the truck beyond permissible limit. He further submits that the driver of the truck had left the vehicle on the road in a dangerous position. He contends that the driver had breached the provisions of Section 122 of the Motor Vehicles Act and Rule 229 of and Maharashtra Motor Vehicles Rules, 1989. He contends that in the absence of any evidence, the Tribunal was not justified in presuming that the moped was driven at a fast speed and in holding that the rider of the moped could have avoided the accident. He submits that the findings of the Tribunal on contributory negligence are totally perverse and cannot be sustained.
9. The learned Counsel for the appellant further submits that the deceased was 30 years of age. He submits that the Tribunal has grossly erred in applying the multiplier as 16 instead of 17. He further submits that the compensation awarded towards loss of consortium and loss of estate is also meagre. He submits that though these grounds have not been specifically raised in the appeal memo, the appeal being continuation of the claim petition, the court is under pps 5 of 16 904 fa 1684-96.doc a statutory obligation to assess and award just and reasonable compensation. In support of this contention, he has relied upon the decision of the Apex Court in Nagappa vs. Gurudayal & Ors. (2003) ACJ 12 SC as well as the decision of this court in New India Assurance Co. v. Seema Sudam Auti & Ors. 2017 (6) Mh.L.J.828 .
10. Mr. P.M. Shah, the learned counsel for the respondent no.2 submits that the accident had occurred within the limits of Nashik Municipal Corporation and as such in terms of Rule 234 of Maharashtra Motor Vehicles Rules, 1989 it was not necessary to exhibit any light. Referring to the proviso of Rule 107 of the Motor Vehicles Rules, he submits that the offending vehicle being a goods carrier, it was not necessary to fit the top light at the rear.
11. The learned Counsel for the respondent submits that the evidence on record, particularly the spot panchanama clearly indicates that there was sufficient space on either side of the offending vehicle and that the rider of the moped could have easily avoided the accident. The learned Counsel for the respondent pps 6 of 16 904 fa 1684-96.doc submits that the rider of the moped was not diligent and had contributed to the accident due to his negligent act.
12. I have perused the records and considered the submissions advanced by the learned Counsel for the respective parties. It is not in dispute that the offending vehicle bearing No. MCU 1208 was stranded on Bombay-Agra road due to bursting of the tyres. The said vehicle was fully loaded with iron bars, which were jutting out of the body of the truck.
13. It is pertinent to note that Rule 229(2)(iii) of Maharashtra Vehicle Rules provides that no person shall drive in any public place any motor vehicle which is loaded in the manner likely to cause danger to any person or in such a manner that the load or any part thereof or anything extends to the rear beyond the rearmost part of the vehicle. The proviso to the rule stipulates that the clause (iii) shall not apply to a goods motor vehicle when loaded with any pole or other projecting thing so long as,-
a) the projecting load falls within the limit of the body pps 7 of 16 904 fa 1684-96.doc of a trailer being drawn by the goods vehicle: or
b) the distance by which the pole or other thing projects beyond the rear-most point of the motor vehicle does not exceed 1.85 metres; and
c) there is attached to the rear of such pole or other thing in such a way as to be clearly visible from the rear at all times a white circular disc of not less than 38 centimetres in diameter; and during the period commencing half an hour after sunset and ending half an hour before sunrise. a lamp in addition to the prescribed lamps on the vehicle so arranged as to show a red light to the rear and also a circular disc of not less than 38 centimetres in diameter painted in tetro-
reflected red colour so that the same shall be illuminated in the light of the vehicle approaching from the rear.
14. In the instant case, the evidence on record reveals that the said vehicle, which was fully loaded with iron bars was stranded on the road in oblique position with front tyres towards the left and the rear tyres almost in the middle of the tar road. The driver of the truck had abandoned the vehicle on the road during night time, in a dangerous position without informing the police and/or taking any steps to remove the vehicle by a towing service. Leaving the vehicle in such dangerous position was likely to pose danger and cause inconvenience to the other vehicles/users of the said road.
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15. The panchanama at Exhibit-42 reveals that the iron bars were protruding out of the body of the truck by 2 to 2 and half feet. There is absolutely no evidence on record to indicate that a white circular disc was attached to the rear of the iron bars or that any red light, indicator or reflector was displayed so as to caution the vehicles approaching from the rear. There was thus clear breach of Section 122 of the Motor Vehicle Act and Rule 229 of the Maharashtra Motor Vehicle Rules.
16. The contention of the learned counsel for the respondent no.2 as regards applicability of Rule 234 is devoid of any substance. Rule 234 of the Maharashtra Motor Vehicle Rules obviates the need to exhibit any light when the vehicle is parked by the side of the road/street or in any duly appointed parking place within the limits of any municipal corporation, municipality or cantonment. The offending vehicle was certainly not parked by the side of the road or in any parking area and as such the said rule has absolutely no application.
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17. The contention of the learned counsel for the respondent no.2 that the offending vehicle was exempted from fitting the top light is devoid of any merits. Rule 107 of the Motor Vehicle Rules mandates that every goods vehicle shall be fitted with top lights and that these lights should remain lit when the vehicle is kept stationary on the road during night and at the time of poor visibility. Proviso to this Rule provides that in the case of goods carriage without a full body in the rear, provision for fitting of the top light at the rear shall not be necessary. In the instant case, the offending vehicle was undisputedly not covered under the proviso to Rule 107, and hence would not be exempted from putting the top light.
18. The evidence on record clearly indicates that the truck was dangerously loaded with iron bars, which were jutting out of the body of the truck beyond permissible length. The driver had negligently abandoned the truck in the middle of the road during night time without parking lights or top lights and without putting any red light, indicator, or reflector on the protruding bars. Even pps 10 of 16 904 fa 1684-96.doc though the law mandates that the vehicles should not be left on the road unattended, in dangerous position posing danger, obstruction and undue inconvenience to the other users of the road. The driver also did not take any safety measures , reasonable care or precaution to prevent the accident which one could reasonably foresee. The Tribunal did take note of these facts, yet attributed negligence to the rider of the Moped on the ground that there was sufficient space on either side of the Truck and he could have easily avoided the accident. The Tribunal has also held that the Moped was driven at a fast speed and the rider of the Moped had not exercised due diligence to avoid the accident.
19. It is pertinent to note that the driver of the offending vehicle had not stepped into the witness box to explain the manner in which the accident had occurred. There was thus absolutely no evidence to suggest that the Moped was driven at a fast speed or that there was sufficient visibility at the place of the accident to enable the rider of the Moped to see the stationery truck with protruding iron bars; despite the fact that no parking lights were put on and no reflectors or red light was displayed on the protruding bars. it was indeed pps 11 of 16 904 fa 1684-96.doc unreasonable to expect the rider of the Moped, who could not have seen what lay ahead on the road, to swerve the moped and avoid the accident. In my considered view, the Tribunal attributed negligence to the rider of the moped for failing to do something, which in the facts of the case, he could not reasonably do. Suffice it to say that a finding of contributory negligence is not a matter of conjectural inference but has to be based on cogent evidence. In the instant case, the evidence on record amply proves that the accident was caused due to gross negligence and carelessness of the driver of the offending vehicle. The findings of the Tribunal that the rider of the Moped had also contributed to the accident are based on conjectures and not on evidence. As a corollary thereof, these findings cannot be sustained.
20. As regards the quantum of compensation, the evidence on record indicates that the deceased was was employed with Glaxo India. He was earning Rs.20,000/- per month. The deceased was survived by his widow and 3 minor children. The deduction towards personal expenses, in such circumstances would be 1/4th and not pps 12 of 16 904 fa 1684-96.doc 1/3rd as held by the MACT. Further considering that the deceased was 30 years of age, the appropriate multiplier applicable, in terms of the decision of the Apex Court in Sarla Verma and ors. v/s. Delhi Transport Corp. and anr. (2009) 6 SCC 121 would be 17 and not 16 as held by the Tribunal. The Tribunal has also not made any additions towards future prospects. The compensation assessed by the Tribunal is not just and reasonable. Hence, it is necessary to compute the compensation in accordance with the settled principles laid down by the Apex Court in catena of judgments.
21. The deceased was 30 years of age and was earning Rs.20,000/- per annum. In the absence of any evidence to prove that he was a permanent employee, as per the judgment of the Court in National Insurance Co. LTd. v/s. Pranay Sethi and Ors. (2017) 16 SCC 680, 40% of the established income will have to be added towards future prospects. Thus considering the annual income of the deceased as Rs.20,000/- and upon adding 40% towards future prospects, the income works out to Rs.28,000/-. Deducting 1/4 th towards personal expenses of the deceased and applying multiplier of 17, loss of pps 13 of 16 904 fa 1684-96.doc dependency works out to Rs.3,57,000/-. The appellant no.1 being the widow, is entitled for Rs.40,000/- towards loss of spousal consortium. The appellant nos.2, 3 and 4 are the minor children of the deceased, They have been deprived of parental love, affection and guidance due to untimely accidental death of their father. Hence, in view of the judgment of the Apex Court in Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuhru Ram & Ors. (2018) SCC Online SC 1546. , the respondent nos.2, 3 and 4 are entitled for compensation of Rs.40,000/- each towards loss of parental consortium. In addition, the appellants are also entitled for compensation of Rs.30,000/- towards loss of estate and funeral expenses. The applicants are therefore entitled for compensation of Rs.5,47,000/- which is more than the compensation claimed by the appellants.
22. In the case of Ramla vs. National Insurance Company Ltd. (2019)2 SCC 192 the Apex Court has observed thus :
"There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or Court under Section 168 of the Motor Vehicles Act, 1988 is to award "just compensation". The Motor Vehicles Act is a beneficial and welfare legislation. A "just compensation" is one which is reasonable pps 14 of 16 904 fa 1684-96.doc and welfare legislation. A "just compensation" is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time barred. Further, there is no need for a new cause of action to claim an enhanced amount. The courts are duty bound to award just compensation (see the judgments of this Court in the cases of (a) Nagappa v. Gurudayal Singh (b) Magma General Insurance vs. Nanu Ram (c) Ibrahim v. Raju.)"
23. In the facts and circumstances of the case, the compensation of Rs.5,47,000/- in my considered view, is just and reasonable compensation. Hence, the following order :-
(i) The appeal is allowed.
(ii) The compensation awarded by the Tribunal is enhanced from Rs.92,000/- to Rs.5,47,000/- with interest @ 9% per annum from the date of application till actual payment.
(iii) Considering that the claim was of the year 1990, the respondent no.2 Insurance Company is directed to deposit the enhanced compensation with appropriate interest thereon before the Claims Tribunal, Nashik within a period of 8 weeks from the date of uploading of this order.
(iv) The appellants are at liberty to apply to the Tribunal for pps 15 of 16 904 fa 1684-96.doc withdrawal of the amount upon payment of addition Court fee, if any payable under the statute.
(v) The award under challenge stands modified accordingly.
Digitally
signed by
Prasanna Prasanna P.
(SMT. ANUJA PRABHUDESSAI, J.)
Salgaonkar
P. Date:
Salgaonkar 2019.11.05
16:30:31
+0530
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