1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD First Appeal No. 1041 of 2009 with Civil Application No. 3554 of 2010 with Civil Application No. 11110 of 2010 The New India Assurance Co. Ltd, Divisional Office No.1, Adalat Raod, Aurangabad Appellant V E R S U S Malti Prushottam Mahajan and others Responden AND First Appeal No. 1055 of 2009 with Civil Application No. 11101 of 2010 The New India Assurance Co. Ltd, Divisional Office No.1, Adalat Raod, Aurangabad Appellant V E R S U S Sunita Avinash Patil and others Respondent Mr.M.M. Ambhore, Advocate for the appellant in both the appeals Mr. H.F. Pawar, Advocate for respondent No.1 Mr.Lalitkumar Mahajan, Advocate for respondent No.7 CORAM : A.V. NIRGUDE, J. DATED : 5th August, 2010 PER COURT : 1. At the request of the appellant’s Advocate, First Appeal No. 1041 of 2009 is restored to file and order dated 12th April, 2010 is set aside and both the appeals heard on merits. Both these appeals can be disposed of by this common order, 2 because the facts and submissions made on behalf of the parties are identical. 2. The husband of the respondent No.1 in First Appeal No. 1055 of 2009 was riding a motorcycle on 17th February, 1997. He had taken two persons as pillion riders. The husband of the respondent in first Appeal No. 1041 of 2009 was one of the pillion riders. The three persons were riding the motorcycle on a public road on that day. A four wheeler TATA-SUMO Jeep came from opposite side and collided with the motorcycle. Due to this accident, both the above mentioned riders of the motorcycle died. Their wifes, the respondent No.1 in both the appeals filed rather belatedly petitions for compensation under Section 166 of the Motor Vehicles Act. They claimed compensation from the owner of the four wheeler vehicle and its Insurance company including the driver of the vehicle. The claim against the driver of the vehicle is dismissed during the proceedings before the Tribunal. The Tribunal then recorded evidence and held on facts that it was the driver of the four wheeler vehicle, due to whose negligence, the accident had occurred. Nothing came on record to show that the rider of the motorcycle Avinash Patil had committed any act of negligence, though he had allowed one more person as pillion rider on his vehicle. Having regard to the income of the deceased persons, the learned Member of the Tribunal awarded Rs.3,00,000/- in both the cases, as compensation. The Judgment and Award in these two cases are challenged through these appeals. 3. The learned Advocate appearing for the appellant conceded fairly that his client or the other respondent, the owner of the vehicle, did not lead any evidence in support of their case. He also conceded that his client or other respondent though had taken plea of contributory negligence, did not lead any evidence on that point. In view of this, there is no question of finding fault with the findings 3 recorded by the learned Tribunal on the point of negligence. The learned Advocate for the appellant then tried to assert that the quantum of compensation awarded by the learned Member of the Tribunal is on higher side. He also pointed out no documentary evidence was produced by the respondent No.1 in both the cases to prove the income of their deceased husbands. The learned Member of the Tribunal, however, appreciated the oral evidence on the point of income of the deceased quite cogently, and recorded his finding that in each case the deceased could not have had income of more than Rs.3,000/- per month. The finding on this point thus is quite moderate, and, probably on facts, it is on lower side. As if this was not enough, the learned Member of the Tribunal after recording a finding that the respondent No.1 in each case were entitled to a sum which could be more than Rs.3,00,000/- as compensation, because that was the amount of claim, as per the petition. The learned Member of the Tribunal indeed obliged the appellant Insurance- Company through his naive order. The appeals should therefore fail. Appeals are dismissed. In view this, the respondent No.1 in both the cases are entitled to the amounts which are deposited by the appellant in this Court at the time of filing of the appeals. (A.V. NIRGUDE, J.) srm/fa/1041/09