1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE First Appeal No.235 of 2009 With Civil Application No.5698 of 2008 National Insurance Company Ltd. Appellant Vs. Smt.Varsha Babubhai Kholakiya & ors. Respondents Mr.N.G.Ghotekar for appellant. Mr.M.B.Kotak for responent nos.1 to 5. CORAM: B.H.MARLAPALLE & D.G.KARNIK,JJ. Reserved on : March 4, 2009. Pronounced on : March 6, 2009. ORDER (PER B.H.MARLAPALLE,J.) : 1. This appeal arises from the Award dated 3/5/2008 passed by the Motor Accident Claims Tribunal at Mumbai in Motor Accident Claim Application No.1363 of 2006. The claim application filed by the respondent nos.1 to 5 came to be partly allowed by directing the Appellant - Insurance Company and the owner of the vehicle (opposite party) to pay jointly and severally an amount of Rs.9,80,000/- along with interest at the rate of 7.5 % per annum from the date of filing of the application till its realisation. 2. We noticed the parties as per our order dated 3/2/2009 that the appeal would be decided at the 2 admission stage itself and, therefore, R. & P. was called which has been received by the Registry. Mr.Kotak, the learned counsel appears for the respondent nos.1 to 5. The respondent no.1 is the widow of deceased Babubhai Kholakiya. Respondent nos.2 and 3 are the minor children and respondent nos.4 and 5 are the parents of the deceased. 3. Deceased Babubhai was proceeding on his motor cycle bearing Registration No.MH-02-AD-103 towards Borivli on 5/4/2006 and at about 10-45 p.m. when he reached on the Sudhir Phadke Flyover Bridge one motor dumber bearing Registration No.MH-04-CA-2808 came from behind and while overtaking in high speed, gave a dash to his motor cycle and as a result thereof, the deceased was thrown from the motor cycle on the road and came beneath the wheels of the motor dumber. He was shifted to Bhagwati hospital where he was declared dead. The deceased was of the age of 30 years and he was a contractor in interior decoration. The name of his firm was M/s.Akshardham Interior Decorators. 4. In support of the claim petition the claimants examined claimant no.1 at Exhibit 14 and Police 3 Constable Shri Vasant Daulat Desai at Exhibit 23. Shri Desai was a Traffic Constable and at the time of the accident he was going on the highway from East to West on Sudhir Phadke Flyover Bridge. He was on duty and there was a traffic jam and, therefore, he was required to call the police crane and he got down from the crane and noticed that a person was lying injured on the Flyover Bridge and his motor cycle was damaged from the rear side. The person was lying beside the motor cycle and the dumber was standing behind the injured. He had taken the injured in an auto rickshaw to Bhagwati hospital. 5. The Insurance Company had opposed the claim by filing its Written Statement at Exhibit 11. The only ground on which the appeal has been argued before us is the ground of contributory liability attributable to the deceased. Mr.Ghotekar, learned counsel for the appellant stated that the deceased was negligent while driving his motor cycle and the accident took place because of his negligence. We have noted that though such a ground was raised in the Written Statement, no such issue was framed by the Claims Tribunal. In addition, no witnesses were examined by the Insurance Company in support of its claim that 4 the deceased was negligent in driving the motor cycle and the accident occurred because of the contributory negligence attributable to him. These circumstances clearly indicate that the Insurance Company had given up the issue of contributory negligence attributable to the deceased, before the Claims Tribunal. 6. Even otherwise we have independently considered the said issue on the basis of the record and proceedings. At Exhibits 15 and 16 are the copies of the FIR and the spot panchanama respectively. The spot panchanama indicates that from the South corner of the road to the divider the width is about 31 ft. The dumber was trying to overtake the deceased and in that process it gave a dash from behind to his motor cycle as a result of which he was thrown from his vehicle beneath the wheels of the dumper. The motor cycle, as is shown in the panchanama, was lying beneath the two wheels. This is not an accident of the two vehicles having collided against each other or the motor cyclist was not coming from the opposite direction. The distance between the front right wheel of the dumper and the divider is just 3 ft. and whereas distance between the rear right wheel and the divider is about 5 ft. 5 These circumstances clearly indicate that the dumper came from behind, hit the motor cycle while overtaking the same and, therefore, the accident occurred. The left side rear wheel of the dumper is exactly midway and the motor cycle was dragged over a distance of about 5 ft. after it was hit from behind. Thus the spot panchanama clearly shows that the accident did not take place for any fault or negligence attributable to the deceased. Under these circumstances, the reliance of Mr. Ghotekar on the decision in the case of Renuka Devi Vs. Bangalore Metropolitan Transport Corporation [AIR 2008 SC 1967] [AIR 2008 SC 1967] [AIR 2008 SC 1967] is totally misplaced and it is obvious that having realised the circumstances as they appeared in the spot panchanama the appellant Insurance Company decided to give up the challenge on the ground of contributory negligence so as to oppose the claim petition, before the Claims Tribunal. 7. The Income Tax Returns (Exhibit 19) were placed on record and they went to show that in the Assessment Year 2005-2006 the annual income of the deceased was shown at Rs.1,03,495/-. Despite this the Tribunal assessed the monthly income of the deceased at Rs.8000/- and the multiplier was fixed at 6 15. 1/3rd deduction was made from the monthly income and thus the dependency was calculated at Rs.5333/- and the compensation amount came to Rs.9,59,940/-. We do not find any error in calculating the loss of dependency at the said rate. On each count of loss of love and affection, loss of consortium, loss of estate as well as funeral expenses the Tribunal granted Rs.5000/-. We do not find any error in fixing the total amount of compensation payable to the claimants in the impugned award and, therefore, this appeal must fail at the threshold. 8. The appeal is hereby dismissed. R. & P. be returned to the Tribunal. 9. Civil Application does not survive and stands disposed. 10. Refund of the deposited amount of Rs.25,000/- shall be as per the Rules. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.)