Bhagirathibai Sonu Jadhav and Another vs G. Ratinath Nageshkar

V.V. Vaze, J.—Sonu Jadhav retired from the railways and his last salary drawn was Rs. 350/- per month. After retirement to supplement his income (probably from his meagre savings) Sonu Jadhav took to selling toys and tidbits making two to four rupees a day. He was knocked down by a car in the early hours of 11th October 1969 in front of Mahim Church, Mahim for which the widow and the son of the deceased held G. Ratinath Nageshkar, the owner of Car No. BYH-2606, responsible. They filed an application bearing No. 903 of 1970 before the Motor Accident Claims Tribunal for Greater Bombay at Bombay which dismissed the claim on the ground that the applicants have not proved that BYH-2606 owned by Nageshkar was involved in the accident. Alternatively the Tribunal gave a finding that for the loss of consortium the widow is entitled to a sum of Rs. 2000/- but that the applicants have failed to prove that they were getting any peculiar benefit from the earnings of the deceased Sonu. Hence the appeal.

The applicants had put Balkrishna, a resident of Mahim Zopadpatti who was standing in front of junction hotel, Mahim at the time of the accident, in the box as an eye witness. He found that Sonu came from the Church side while a car coming from Dadar at a fast speed hit Sonu and sped away. Balkrishna claims to have taken down the number of the car on a piece of paper and when the police wireless van came to the scene in a short while he handed over the chit to the officer. As a good Samaritan Balkrishna accompanied the injured in the wireless jeep to the hospital where his statement was recorded. S.I. Jagganath Sawant was the investigating officer who recorded the statement of Balkrishna, made the panchnama and after drawing a rough sketch he treated Balkrishna''s statement as F.I.R.

The car owner has examined Jaisingh Nageshkar his brother to say that he was residing at 11, Sindhu Baug, Tilak Road, Ghatkopar East, Bombay at the relevant time. The car in question which is Hindustan 14 though belonged to his brother, was always with him. Jaisingh Nageshkar was called to the police station and his statement was recorded. According to Jaisingh his car had not met with any accident in October.

Mr. Kudroli, the learned Counsel for the appellants attacks the judgment of the lower Court on the ground that it is a perverse appreciation of evidence and that the widow and the son could not do anything more than put one eye witness Balkrishna in the box, the one who had seen the accident, taken down the number of the offending vehicle, had accompanied the deceased to the hospital and given a statement about the happening to the police. Having put the eye witness in the box, argues Counsel, the burden shifted on the opposite side to prove that the car in question named by Balkrishna was not anywhere near the scene of the accident at the relevant time.

According to Mr. Chaphekar, the learned Counsel for the respondent the evidence of Balkrishna is not trustworthy inasmuch as the witness cannot be credited with a good memory as respects the number of motor vehicles together with identifying preceding letters. Balkrishna was working on a lorry for some 18 months before the accident, but says that he does not remember its number. As far as the first lorry on which he had worked Balkrishna gives the number as 1228 and another lorry bearing No. 26 but cannot tell the capital letters which precede the number. The witness was jobless at the time he entered the box and was working as a cleaner before that, A person working as a cleaner on a motor vehicle, argues counsel, is not likely to forget the number of that vehicle more so if he is cleaning that vehicle for a long time. Mr. Chaphekar also finds fault with the evidence of Balkrishna inasmuch as a piece of paper on which the number was allegedly noted and handed over by Balkrishna to the wireless van officer was not produced. Further, according to Counsel for respondent, Balkrishna has given confusing versions about the identity of the car describing it as Ambassador with black colour when actually it was a maroon coloured Hindustan 14 car.

On going through the evidence I am satisfied that though Balkrishna has described the car as Ambassador with blackish colour such a type of description would not erode into the veracity of his evidence because in the fleeting moment when he saw the car darting past he can only remember its darkish colour. It is not as if Balkrishna has described the car as Matador or a jeep or a fiat having bodies different from those of Hindustan 14 nor can a dark maroon colour be said to be something totally different from another dark colour in the early hours of the morning. As regards the chit which Balkrishna allegedly handed over to the officer-in-charge of the wireless van one can visualise that that officer having recorded the number in the F.I.R. or the station house diary did not care to inform the appellants that the chit has been preserved or destroyed. Something applies to the want of explanation as to why another witness Mehboob who also was present at the scene was not examined. Plurality of witnesses will not lend mere credence to a statement and if Balkrishna''s testimony can be relied upon there appears to be no reason why the applicant should be asked as to why they did not try to get Mehboob in the box.

What impresses me in this case is that statistically it seems to me to be in the highest degree unlikely that a person whose occupation is to work as cleaner of a car can conjure up from a memory the identifying letters and numerals which would fit in squarely with the existing letters and numerals of another car which normally is parked miles away from the locality where he lives or works for. It is understandable that due to malice or ill-will a person may give the number of his enemy''s car to the police but no such suggestion has been made in this case. Even if malice is ruled out, a jobless youth may out of mischief or otherwise give the name of a car in the neighbourhood only to nettle the real owner and in the process derive some sadistic pleasure. But Ghatkopar is not in the neighbourhood of Mahim.

As regards the ownership of the car it appears that the car is owned by brother of Jaisingh who normally lives at Kolhapur and occasionally conies to Bombay. Jaisingh also owns his own car of the same make and uses it for going to his factory at Thane. Jaisingh admits that the car in question which is uninsured is used by his brother. But he hastens to add a rider that they accompany him in the car which to my mind is an after thought to rule out the possibility that the car was taken away by his brother or some one on the fateful day of accident. Jaisingh could and in the nature of things should have given some plausible explanation as to whereabouts of his car on that day which he has failed to do. Under the circumstances 1 do not see any reason why the evidence of Balkrishna should not be believed and I find that the respondent G. Ratinath Nageshkar the over of the car was liable to pay damages on account of the negligence which caused the accident knocking down Sonu Jadhav.

Coming now to the question of compensation the learned Member of the Tribunal has held that no satisfactory or convincing evidence was tendered about the income of the deceased. Bhagirathi has stated that the deceased after the retirement from railways used to sell toys on commissions making a profit of 2/1 rupees out of which he used to give her 2/3 rupees everyday towards the household expenses. I do not see why this evidence was discarded by the trial Court and putting it at the lowest the income of the deceased could be said to be Rs. 60/- per month The deceased was 58 years'' old at the time of the accident and taking the lowest income of Rs. 2/- per day and a multiplier of seven years I would assess the financial damages at Rs. 5000/-. To that Rs. 2000/- by way of loss of consortium an found by the lower Court can be added. The deceased had retired from the railway as fitter and there is nothing to indicate that he was suffering from any disease or infirmity and hence the loss of expectancy of life I assess at Rs. 1000/-.

Respondent G. Ratinath Nageshkar is ordered to pay Rs. 8000/- together with interest at the rate of 6% p.a. from the date of application till realisation to the appellants. Appeal succeeds with costs throughout.