JAIKUMAR CHHAGANLAL PATNI Vs. MARY JEROME DSOUZA

JUDGEMENT

(1.) By its judgment dated 12-7-1973 the Motor Accidents Claims Tribunal for Greater Bombay awarded a sum of Rs. 40,000/- with interest at 6 per cent per annum from the date of claim by way of compensation for the widow and two sons of deceased Jerome D'souza. The deceased was a taxi driver and at the relevant time had parked his taxi on Section V. Road at Bandra on 22-5-1970, while on his way from north to south. As he was crossing the road on foot to the opposite side towards Bandra Talkies, a car belonging to respondents Nos. 1 and 2 rushed from Khar side and fatally hit him and threw him at a distance causing his instantaneous death. Owners of the car, respondents 1 and 2, entered appearance at the trial but did not display any interest in contesting the claim, which came to be contested only by the Insurance Company after securing permission to that effect under Section 110-C of the Act. At the trial, the widow of the deceased examined herself to prove the income of the deceased and source of it and also examined one B.E.S.T, driver to prove negligence who had seen how the car of respondents 1 and 2 hit the deceased. None of the respondents entered the witness box nor examined any other witnesses. The validity of this award is challenged in this appeal by all the respondents.

(2.) Mr. Dwivedee, the learned advocate appearing for the appellants, faintly tried to challenge the findings as to identity of the car, as also the negligence of the driver. Evidence of Ram-sevak Tiwari the B.E.S.T. driver however, shows that he had just parked his bus at the Bus Stop near Bandra Talkies while on his way towards the north. He saw the deceased coming from the side of his parked taxi towards Bandra Talkies, and also saw him being knocked down by the car with such a force near the divider, that the deceased was thrown at a distance of a few feet. He noted the car number, when the person driving the car had stopped it for some time, to get down and go to the place where the deceased was lying. He had conveyed this information to one Head Constable who was travelling by the same bus. His evidence further shows that on that very day within three hours he was called at the Police Station, Bandra, where his statement was recorded and saw the same car being brought to the Police Station during this time, which he had identified there. His cross-examination is wholly ineffective. It is true that the chit on which the number of the car was noted has not been produced, nor the Head Constable to whom the information was passed by him is examined. We are unable to see what adverse inference can be drawn against the claimants for this omission. The Head Constable is not alleged to have seen the accident, nor a rough chit by itself even if produced could have made any difference to the conclusion. The circumstance that the respondents have not chosen to enter the witness box or to enforce the production of the records at the police station to demonstrate the alleged falsity of the claimants' case only indicates how unfounded the defence on this point is. In the absence of any contrary evidence, we do not feel any hesitation in confirming the findings of the trial Court about the identity of the car as also about the negligence of the driver.

(3.) Mr. Dwivedee's challenge to the quantum of compensation, however, needs close examination. The judgment does not indicate any basis or reasoning in support of the quantum fixed, and stands exposed to the charge of being arbitrary. The principles as to how the quantum of compensation in such cases should be determined are no more in dispute. Even before the enforcement of the Motor Vehicles Act of 1939 and inclusion of Sections 110 to 110F therein under the Amendment Act of 1956, the damages claimable by the dependants of the victims of the motor accidents, were determined by reference to Section 1A and Section 2 of the Fatal Accidents Act of 1855, corresponding to English Fatal Accidents Act of 1846 and the English and Indian cases decided thereunder. In terms of these principles the pecuniary loss to dependants is to be ascertained, (to quote Supreme Court in its leading judgment in the Bus accident case of Gobald Motor Services Ltd. v. R. M. K. Veluswami, (AIR 1962 SC 1) (at p. 6):