1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO.1488 OF 2009 National Insurance Company Limited, Having it’s Head and Registered office at Kolkatta, Divisional Offices, Ahmednagar and Aurangabad. Appellant -VERSUS- 1. Kavita Dnyaneshwar Barekar Age : 24 years, Occ : Household 2. Popat Mahadu Barekar, Age : 52 years, Occ : Labour, 3. Sitabai Popat Barekar, Age : 47 years, Occ : Household, Respondent Nos.1 to 3 R/o Alkuti, Tq. Parner, Dist. Ahmednagar. 4. Dipak Chintaman Wani Age Major, Occ : Transport, R/o Chincholi, Tq. Sinner, District. Nasik. Respondents ------------------------------------------------------ Mr.S.L. Kulkarni, Advocate for the Appellant. Mrs. M.S. Jagtap, Advocate for Respondent Nos.1 to 3. ------------------------------------------------------ (CORAM : R.K. DESHPANDE, J.) DATE : 8th October, 2009. ORAL JUDGMENT : 1. This appeal challenges the judgment and award dated 20.12.2008 passed by the Motor Accident Claims 2 Tribunal, Ahmednagar in Motor Accident Claim Petition No.04/2007. The Tribunal has passed the award, holding the appellant insurance company and the owner of the vehicle, jointly and severally, liable to pay total amount of compensation of Rs.6,16,000/- inclusive of no fault liability along with interest at the rate of 9% p.a. from the date of petition till its realisation. 2. On 15th July, 2009 when this matter was listed before this Court, Mrs.Jagtap appeared for the respondent nos.1 to 3. It was agreed that the appeal can be finally disposed of, at the stage of admission and for that purpose, the Record and Proceedings of the Tribunal, were also called. The matter is thus listed today for admission. The appellant insurance company has deposited an amount of Rs.25,000/- in this Court towards statutory deposit. Admit. Heard finally, by consent of parties. 3. Although, the respondent no.4, the owner of the vehicle, has been joined in this Petition, no notice was issued to him. However, since there is no 3 challenge by the insurance company on the ground that there was breach of policy or raising any defence as contemplated under section 149(2) of the Motor Vehicles Act, 1988, it is not necessary for this Court to issue notice to the respondent and the matter can be decided finally. Thus, the matter is heard by consent of parties, finally. 4. Shri.S.L. Kulkarni, the learned Counsel appearing for the appellant-insurance company has pointed out that the Tribunal has granted permission as required under section 170 of the Motor Vehicles Act, 1988, to defend the claim on the ground of negligence as well as quantum of compensation, by an order dated 24.11.2008. Hence, the instant appeal challenging the impugned judgment and award on the ground of adequacy of compensation, is maintainable. 5. The main ground for challenge raised by Shri.S.L. Kulkarni, the learned Counsel appearing for the appellant is that the case of the claimant that the deceased was earning Rs.6,000/- per month has been rejected by the Tribunal, but it has held that the 4 income of the deceased was Rs.4,500/- per month, which according to him, is without any basis. According to Shri.S.L. Kulkarni, the learned Counsel appearing for the appellant-insurance company, the Tribunal at the most could have determine the income of the deceased on notional basis, which would not exceed Rs.3,000/- per month. Shri.S.L. Kulkarni states that out of total amount of compensation, Rs.5,76,000/- determined by the Tribunal is towards the loss of dependency. The challenge is to the extent of Rs.2,22,500/- and the insurance company is prepared to pay an amount of Rs. 3,53,500/-, towards the loss of dependency. Shri.Kulkarni in support of his contentions relied upon the decision of Division bench of this Hon’ble Court reported in 2009(5) Mh.L.J.658 (Premlata wd/o Radheshyam Agrawal and others). Shri.Kulkarni relied upon para 13 of the said Judgment, to urge that grant of compensation has to be just and proper and though duty is bestowed upon the Courts to award just and proper compensation, still the process of determining the compensation should not be in the nature of giving bonanza for the claimants. 5 6. As against this, Mrs.Jagtap, the learned Counsel appearing for the respondents has urged that the claimants have produced the salary certificate dated 10.09.2008, indicating that the deceased was employed as driver and was getting Rs.6,000/- per month towards his salary. She has further relied upon the evidence of PW1-claimant as well as PW 2-Santosh Khsirsagar, the employer of the deceased and has urged that the claimants have established the salary of the deceased at Rs.6,000/- per month. She has urged that the Tribunal has arrived at figure of Rs.4,500/- per month, towards monthly income of the deceased, which is just and proper figure arrived at after taking into consideration the evidence on record. 7. It is not in dispute that in a claim petition, monthly salary of the deceased was stated at Rs.6,000/- per month. The certificate to that effect from the employee has produced on record and marked at Exhibit-37. The employer has entered the witness box and has stated that he has issued the certificate and he was paying salary of Rs.6,000/- per month, to the deceased. He has further stated in the cross 6 examination, that he used to maintain the accounts in all respects and was entering the payment made to the deceased in the General Register book, which he was ready to produce. There is no cross examination on the part of the insurance company on the aspect whether, the deceased was infact employed or not and also on the salary of Rs.6,000/- per month. The claimant herself, also stated that the deceased used to get monthly salary of Rs.6,000/-. Although, the Tribunal has recorded a finding that the evidence in respect of monthly salary of the deceased at Rs. 6,000/-, does not inspire the confidence, the Tribunal has, after taking into consideration the present practice and salary payable to the skilled workers, arrived at monthly salary of deceased at Rs.4,500/-. Shri.Kulkarni, the learned Counsel appearing for the appellant urged that the deceased was not skilled driver, however, there is neither cross examination of the employer on this aspect and no material is placed on record. In view of this, it is not possible to accept the said contentions of the appellant. 8. So far as the Judgment of the Division Bench 7 of this Court, relied upon by the Counsel appearing for the appellant is concerned, the Tribunal had determined the monthly income of the deceased at Rs. 5,000/- and after deducting his personal expenses, it arrived at the figure of his monthly dependency, at Rs.39,600/-. The said finding has not been disturbed and the appeal has been dismissed. The proposition relied upon by Shri.Kulkarni in the process of determining the compensation, same should not be in the nature of giving bonanza for the claimants, does not arise in the present case for the reasons that the Tribunal has after taking into consideration all the aspects, arrived at just and proper figure. 9. In the result, there is no substance in the present appeal, therefore, same is dismissed. There shall, however, be no order as to costs. 10. Shri.S.L. Kulkarni, the learned Counsel appearing for the appellant states that, an amount of Rs.25,000/- has been deposited in this Court towards statutory deposit. The said amount shall be allowed to withdraw by the claimants. (R.K. DESHPANDE) JUDGE GAS/fa1488.09