1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.3113 OF 2009 1) Karbasappa s/o Satappa Mule Age: 51 Yrs., occu. Aglril. R/o Waksa, Tq. Nilanga, District Latur. 2) Sow.Lalitabai w/o Karbasappa Mule, Age: 45 Yrs., occu. Household, r/o Waksa, Tq. Nilanga, District Latur. - APPELLANTS (orig.Claimants) VERSUS 1) Gunwant s/o Rangrao Shinde Age: 42 Yrs., occu. Driver & owner of Jeep, R/o Malegaon (k), Tq. Nilanga, District Latur. 2) The Manager, National Insurance Co.Ltd. Branch Latur, Dist. Latur. - RESPONDENTS ***** Mr.SM Vibhute, Adv. h/for Mr. VR Jain, Advocate for Appellants; Mr.AG Dalal, Advocate h/for Mr. VD Salunke, Adv. for Respondent no.1; Mr. SG Chapalgaonkar, Advocate for Resp.no.2. ----- 2 CORAM : K.U.CHANDIWAL, J. DATE : 1st February, 2010. ORAL JUDGMENT : 1) Heard learned Counsel for the appellant/claimants and respondents. 2) Admit. The matter is heard finally at admission stage. 3) In an unfortunate accident, Satappa, 18- years old, was driving his (TVS Champ) motorbike with two pillion riders and had impact with the jeep, suffered, lost his life. Claim lodged by his parents made the learned Judge to grant the same for Rs.2,19,100/- with interest @ 6% p.a. from the date of claim petition till realization of the amount. The claimants felt aggrieved by such inadequate enhancement, which the claimants feel, should have been more, considering the multiplier required to have been applied; ages of the parent and the income drawn by the deceased Satappa. 4) The elongated submissions, to which reference is given by the learned Counsel, will not change the colour and complexion in the merits as the claimants, are not the eye- witnesses to the event, that has unfortunately 3 occurred with Satappa. The two pillion riders accompanying him did not turn in the court. The evidence relating to income drawn by deceased Satappa by supplying milk, by way of PW 3 – Babruwan Solunke, has been considered by the learned Judge on its own merits. 5) At the time of lodging the F.I.R. or the claim petition, age of original claimant no.1 was shown to be 60 years while the age of claimant no.2 was shown as 55 years (parents of deceased). A sudden drastic change came in recording of age, making father – Karbasappa to be 49 years and naturally the age of his wife Lalitabai would decline. For the purposes of such proof, birth certificate of father Karbasappa, showing his date of birth as 15th January, 1959 was placed before the learned Judge at Exhihit-55, which was obtained on 5th March, 2008. The learned Judge did not believe the school leaving certificate as he found the same to have been obtained for the purpose of securing the claim, nothing wrong on the part of the learned Judge. The divergent declaration of 11 years in the age of Karbasappa from the petition to the evidence would make the the things very difficult for either claimant or for the learned Judge, which the learned Judge rightly has disbelieved. 4 6) The deceased Satappa was at his young age carried two pillion riders. Naturally, the movements of his vehicle had its limitations inviting the wrath of danger coming from either other side vehicle or in the movements of the vehicle/motorcycle itself. It was the motorbike meant for travel by two persons. But since it carried more than that, the conduct of the driver of the motorbike added to his own miserableness, resulting in his sad demise. The negligence should not be shouldered to the offending vehicle in its entirety, which the learned Judge has rightly done to the extent of 30% to be faced by deceased Satappa. 7) The calculations carried by the learned Judge, as reflected in para 16 of the Judgment, would not controvert to the provisions of section 163-A of the Motor Vehicle Act. The multiplier of 11 applied was not in context to the age of Satappa, but it was in context to the age of parents. I find, the learned Judge even showed leniency in applying multiplier of 11, however, it need not be now dissected. 8) The calculation carried by the learned Judge does not warrant any interference. 9) The learned Judge awarded interest @ 6% 5 which appears to be inadequate and for this purpose, modification in the order is desirable. 9) Hence, order - (i) The appeal is partly allowed. (ii) No change in the award except the entitlement of the claimants to the interest @ 7.5% p.a. instead of 6% p.a. granted by the learned Judge. 10) The appeal allowed in above terms. sd/- (K.U.CHANDIWAL) JUDGE bdv/fa3113.09 Authenticated copy (BD VADNERE,PS)