ROSARIA FERNANDES E. SOARES Vs. DATTATRAY P. KALGUTKAR

JUDGEMENT

(1.) 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/ -.

(2.) 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.

(3.) 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.