2009 Supreme(Bom) 1642

In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE A.P. BHANGALE
Shaligram Ramaji Dhekale & Another
Versus
Ravindra Manikrao Khadse & Others
First Appeal No.231 of 2009
Decided on : 03-12-2009

Headnote:MOTOR VEHICLES ACT, 1988 - Section 163-A - Claim of compensation - Vehicular accident - Tribunal awarded Rs. 1,78,320/- as compensation with interest payable by owner of offending vehicle and insurer jointly - Quantum of compensation challenged by appellants - Deceased, a pedestrian crossing road at relevant time - No liability for contributory negligence can be fastened upon deceased - Offending vehicle (Truck) driven on highway rashly and negligently - Considering age of parents of deceased, multiplier applied by Tribunal proper - Appellants entitled to entire compensation of Rs. 2,22,900/- as claimed - Rest of award maintained - Appeal partly allowed. - Court have considered the submissions at the bar and rulings cited as also evidence led before the Tribunal Assuming that deceased was crossing the road near Kailas Petrol Pump, offending motor truck driver was expected to be careful and cautious while driving on road near Petrol Pump or Beer Bar Restaurant etc. as there is every possibility of persons crossing the road near such public places. Driver of the offending motor vehicle did not enter in the witness box nor was summoned to throw light upon cause of the accident which was especially within his knowledge. Merely because the deceased was crossing the road even small amount of liability for contributory negligence cannot be fastened upon the pedestrian without cogent evidence on record. It cannot be said on the basis of evidence led or material placed before the Tribunal that deceased Nitin had voluntarily taken risk to his own life by crossing the road in front of the moving truck. It is duty of the driver of truck driven on highway to drive the motor vehicle in such manner so as to safeguard the life of pedestrians who may have to cross the road or walk by the side of the road near public places like petrol pump, restaurants etc. Driver of the motor vehicle approaching a pedestrian crossing is always expected to reasonably adjust the speed blow the horn to avoid any untoward incident when any person using the road may be likely to lose his life or suffer permanent disability. Prudent driver would always drive with caution and at reasonable speed near places like petrol pump, beer bar and restaurants. Deceased Nitin was serving as a waiter in beer bar cum restaurant and on account of his employment may have occasions to cross the road. Hence in my opinion by a mere fact that he was crossing the road at the time of accident, liability for contributory negligence cannot be fastened upon deceased victim. For these reasons, finding as to fastening liability for apportionment of contributory negligence upon deceased victim is not sustainable.

       Regarding question as to what would be the correct multiplier to be applied in the facts and circumstances of the present case, it does appear that admittedly deceased Nitin was serving as waiter in a restaurant. Therefore compensation has to be determined on the basis of monthly earnings of Nitin. The claimants have relied upon savings bank account pass book of Nitin. Various entries in the pass book show the deposits made by Nitin from time to time. On the basis of those entries it was rightly inferred by the Tribunal that Nitin was earning member in his family and was also saving from his earning. He had obtained gas connection in the year 2000. Under these circumstances, the trial Court considering oral evidence of claimants that Nitin was earning monthly income of Rs. 3000/- and considering other material, came to a conclusion that monthly income of deceased Nitin can be considered at Rs. 2100/- for purpose of computing compensation. Considering the wages of waiter, general trend of customers giving tips to waiters and uncertainty of such jobs, Court think no fault can be found with the finding of the Tribunal to fix on average income of Rs. 2100/- per month in order to determine compensation. No doubt, Nitin was aged about 25 years at the time of accident but considering the age of 40 years of his mother and 53 years as that of the his father at the time of accident and consequent dependency, the Tribunal fixed the multiplier of "13". It is well-settled that in case of death of unmarried son, age of parents is an important and relevant factor. Considering the ages of parents, multiplier of "13" adopted by the Tribunal is, in Court opinion, proper and needs no interference.

       In the result, appeal is partly allowed. Finding rendered by the Tribunal as regards the contribution of deceased Nitin at 20 per cent is set aside. Consequently, appellants are held to be entitled to entire compensation as determined by the Tribunal at Rs. 2,22,900/- rest of the award of maintained. Appeal is partly allowed with proportionate costs and is disposed of as such.