Bombay High Court
Mandabai Eknath Chaudhari vs Gowardhan Tulsiram Dhole And Ors on 12 February, 2016
Author: T.V.Nalawade
Bench: T.V.Nalawade
1 F.A. 201.2000 - [ J ]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 201 OF 2000
Mandabai d/o Eknath Chaudhari
Age : Major, Occ. Labour,
R/o : At & Post Avhane, Tq. and .... APPELLANT/
Dist.: Jalgaon. [ORI. CLAIMANT]
V E R S U S
1.
Gowardhan Tulshiram Dhole
Age : Major, Occ. Vehicle
owner, R/o : At & Post Avhane,
Tq. and Dist.: Jalgaon.
2. Ashok Tulshiram Dhole
Age : 25 Yrs., Occ. Driver,
R/o : At & Post Avhane,
Tq. And Dist. : Jalgaon.
3. Oriental Fire and General
Insurance Co.Ltd., Jalgaon .... RESPONDENTS/
Through its Manager. [ORI. RESPONDENTS]
.............................
Mr. G.D.Kale h/f Mr. S.P.Sonpawale,
Advocate for Appellant.
Mr. Girish Rane, Advocate for R.Nos. 1& 2.
Mr. S.M.Godsay, Advocate for R.No. 3.
..............................
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2 F.A. 201.2000 - [ J ]
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 12th FEBRUARY, 2016
.............................
JUDGMENT :
1. The Appeal is filed by the original claimant against the Judgment and Award of M.A.C.P. No. 73/1996, which was pending before Motor Accident Claims Tribunal, Jalgaon. The claim filed in respect of the death of brother of the claimant is dismissed by the Tribunal. Learned counsels for both sides are heard.
2. The accident took place on 19/01/1989 at about 7.00 p.m. on Jalgaon - Kanalga road near Kanji - Shivaji Mill, Jalgaon. It is contended that, at the relevant time, the deceased had requested for lift to the driver of Truck bearing No. MOC-1014. When the driver stopped the vehicle and allowed 4 - 5 persons to board the vehicle, the deceased started boarding vehicle after boarding other 3 - 4 persons.
It is contended that when the deceased was boarding the vehicle, the driver of vehicle put the vehicle in motion and due to that the deceased came under the wheels of truck and died in the accident.
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3. The claim was filed by the appellant/sister of the deceased. It is her case that the deceased Tukaram was aged about 35 years and he was living with her. It is her case that the deceased was earning at least ` 1200/- per month by working as coolie in the premises of Agriculture Produce Market Committee and the claimant was depending on him for her livelihood. Under various heads, compensation of ` 1,00,000/- was claimed from the driver, registered owner and oriental insurance company.
4. Respondent Nos. 1 and 2 filed joint Written Statement. They denied that the driver had allowed the deceased to board the vehicle. It is contended that, at the turn, when the vehicle was slowed down by the driver, deceased tried to board the vehicle from back side but he fell on the road and died. It is denied that he had come under the wheels of the truck.
5. Insurance Company filed Written Statement and denied everything including the insurance of the vehicle.
6. The claimant examined herself to substantiate ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 04:56:53 ::: 4 F.A. 201.2000 - [ J ] the claim and her evidence is as per the aforesaid contentions. In her evidence, the record like police papers was exhibited. She has no personal knowledge regarding the accident and her evidence is on the basis of the information collected by her from the eye witnesses and the villagers.
The death certificate of the deceased is produced. It shows that he was working as coolie and he died in motor vehicular accident. Copies of spot panchanama, inquest panchanama and postmortem report are produced and they show that Tukaram died in the accident and the Truck of respondent Nos. 1 and 2 was involved in the accident. The report and the panchanama show that the truck was still there, showing that it was involved in the accident. It was informed to the police that the deceased had come under the rear wheel of the truck from cleaner's side.
7. One witness Kashinath Totaram Wankhede is examined by the claimant and he has given evidence that at the relevant time, he was also boarding the said truck and after him the deceased attempted to board the truck and at that time the truck was put in motion and due to that he fell and came under the truck.
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8. In rebuttal, Ashok Tulshiram Dhole, the driver, has given evidence. He has deposed that when he was driving the truck, 2 - 3 persons drew his attention and told him that somebody was lying under the truck and so he stopped the truck. He has deposed that the said person was not travelling in his truck but there were 2 - 3 labours in his truck and the deceased died due to the injuries sustained to his head due to stone. He tried to say that the said person fell down on the back side of the truck but he did not see the deceased falling from the truck. This version is not consistent with the defence taken in the Written Statement.
The police papers show that the deceased had come under the wheel of the truck and police blamed the truck driver for the accident and the crime was registered against him.
9. When there was the evidence of aforesaid nature, the Tribunal held that probably there was fault of the deceased. This Court holds that the aforesaid evidence is sufficient to prove the negligence on the part of the truck driver and that the deceased died in the accident.
10. The Tribunal has dismissed the claim on other ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 04:56:53 ::: 6 F.A. 201.2000 - [ J ] ground, by holding that the claimant was probably not depending for her livelihood on the income of the deceased.
In the cross examination, the claimant has given evidence that her husband is alive but she has contended that her husband is not living with her. She had one daughter but the daughter was also married. The admission of this lady given in isolation could not have been used against her.
There is no dispute about her relationship with the deceased and she has given specific evidence that the deceased was living with her and he was handing over the income to her for livelihood. In view of the relationship between the deceased and the claimant, the Tribunal ought to have believed that the claimant was depending for her livelihood on the income of the deceased.
11. The accident took place in the year 1989. It can be presumed that the annual income of the deceased was ` 15,000/-. As the deceased was unmarried, he would have spent 50 % income for himself. Thus, there is loss of ` 7,500/- per annum to the claimant. 15 can be adopted as multiplier for calculation of loss of dependency and the amount of loss of dependency comes to ` 1,12,500/-. This ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 04:56:53 ::: 7 F.A. 201.2000 - [ J ] Court holds that amount of ` 5,000/- can be given under the head of loss of love and affection and amount of ` 2,000/-
can be given under the head of funeral expenses. Thus, the total compensation amount comes to ` 1,19,500/-. Interest @ 9% per annum needs to be given in view of the rate of interest given by the nationalized banks on the fixed deposits at the relevant time.
12.ig In the result, following order is made.
[i] First Appeal No. 201 of 2000 is allowed [ii] The Judgment and Award of the Motor Accident Claims Tribunal, Jalgaon is set aside to give the compensation of ` 1,19,500/- [Rupees One Lakh Nineteen Thousand Five Hundred] which is inclusive of the amount which must have been paid under the principle of 'no fault'.
[iii] The interest @ 9% per annum is payable on the entire compensation amount from the date of petition till the date of realization of the amount.
[iv] After depositing the amount in Tribunal, the appellant be permitted to withdraw the same by ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 04:56:53 ::: 8 F.A. 201.2000 - [ J ] account payee cheque. Disbursement to be made only after recovering deficit court fees.
[v] Award be prepared accordingly.
[T.V.NALAWADE, J.]
KNP/F.A. 201.2000 - [ J ]
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