1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APEAL NO. 421 OF 1995 United India Insurance Company Ltd. Branch Office Gandhi Chowk, Old Jalna, District Jalna, through its Divisional Manager, Division Office, Aurangabad. ..Appellant Versus 1. Shrikishan s/o Kundlik Suradkar, Age: 35 years, Occ: Service, R/o. Ambad, Taluka Ambad, District Jalna. 2. Harishkumar s/o Hargondas Shaha, Age: Major, Occupation : Driver, R/o. Ambika Market, Jalna. Taluka District Jalna. 3. Nitin s/o Jayantilal Shaha, Age: Major, Occ: Business, R/o. Ambika Market, Jalna, Taluka District Jalna. (Car owner). ..Respondents ... Mr. S.V. Kulkarni, Advocate for appellant. Mrs. Smita Deshpande, Advocate for respondent No.2 : Absent. ... 2 CORAM : K. K. TATED, J. RESERVED ON : 11/06/2009 PRONOUNCED ON: 19/06/2009 JUDGMENT : 1. Heard learned Counsel appearing on behalf of the appellant. 2. Present appeal is preferred by original respondent No. 3 United India Insurance Company Limited against the judgment and award dated 07-08-1995 passed by Ex-Officio Member, M.A.C.T. Jalna in M.A.C.P. No. 85/1992. 3. Though the respondents are served, no one appeared on behalf of them when the matter was called out for final hearing. Learned Counsel appearing on behalf of the appellant submitted that the Tribunal erred in coming to the conclusion that the accident took place only because of negligence on the part of driver of Car and not of motor cycle. Learned Counsel appearing on behalf of the appellant submitted that the Tribunal failed to consider the fact of the case that there is no rash and negligent driving on the part of Car driver. He further submitted that respondent No. 1 original claimant himself was negligent for driving motor cycle on the date of accident and therefore, claimant 3 himself responsible to the accident. He further submitted that the learned Tribunal has not considered the record of the police while passing impugned judgment and award. The Tribunal also failed to consider the defence of contributory negligence of the Company and therefore, injustice has been caused to the appellant. He further submitted that the lower Court failed to consider that respondent No. 1 original claimant himself was unauthorisedly driving vehicle on the date of accident. On the basis of these submissions, learned Counsel appearing on behalf of the appellant submitted that the Tribunal should have held that the driver of motor cycle was also responsible for the accident and therefore, the Tribunal should have held 50% contributory negligence on the part of driver of motor cycle. Learned Counsel appearing on behalf of the appellant submitted that though other grounds are taken in memo of appeal, he received instructions to restrict arguments in the present appeal only on the point of contributory negligence. Therefore, it is not necessary to examine other points of the matter. 4. In the present case, respondent No.1 met with an accident on 11-04-1992 near Sevga Pati on Jalna Ambad road. Respondent No. 1 was travelling by motor cycle TVS Suzuki bearing No. MH-21/1720. He was coming from Ambad side. Car coming from Jalna to Ambad from opposite direction was in high speed, and it was driven by respondent No. 2 in a rash and negligent manner and gave dash to the 4 motor cycle at about 7-00 to 7-30 a. m. It is the case of the respondent No. 1 that Car driver was driving car rashly and negligently. In the said accident, respondent No. 1 was injured and sustained permanent disability due to which his earning capacity is affected. Respondent No. 1 filed claim petition before M.A.C.T. Jalna claiming compensation of Rs. 2,00,000/- under Section 166 of the Motor Vehicles Act, 1988 for the injuries and disablement sustained by him in the motor accident which took place on 11-04-1992. After considering evidsence on record, the Tribunal awarded a sum of Rs. 1,25,000/- along with interest @ 12% p. a. from the date of filing the petition till realisation. 5. Learned Counsel appearing on behalf of the appellant submitted that Insurance Company filed their Written Statement before the Tribunal and raised specific plea about contributory negligence. 6. With the assistance of learned Counsel appearing on behalf of the appellant, I have gone through the Record and Proceedings of the present case. Learned Counsel appearing on behalf of the appellant drawn my attention to the spot panchnama dated 11-04-1992. After going through the said panchnama, I do not find any material for coming to the conclusion that respondent No. 1 who was driving motor cycle on the date of accident in rash and negligent manner. Learned Counsel appearing on behalf of the appellant submitted that the Tribunal erred in observing that on going through the prosecution 5 papers of criminal case against the driver of Car, it is seen that dash was given by Fiat Car driver by coming to wrong side and apparently it appears that he has lost control on his vehicle and gave dash to Moped rider. In any case, from the panchnama also it is clear that Fiat Car driver was negligent in driving the Car. At the time of deciding present first appeal, I have to keep in mind that determination of damages for loss of human life is an extremely difficult task and which becomes all the most buffer when the deceased is innocent person. Because of the accident, he required more rest as per Doctor's advise and for that purpose, it compelled him to take 234 days leave without pay. In the present case, respondent No. 1 was on earned leave for 31 days and 134 days half pay leave was granted to him by his employer. This itself shows that impact of the accident in the present case. In any case, the appellant failed to bring any material on record to show that respondent No. 1 was also negligent. Though the appellant cross examined respondent No. 1 at length, but nothing come out in the said cross examination. 7. Learned Counsel appearing on behalf of the appellant relied on the judgment in the matter of State of Maharashtra and others vs. Hamida Anwar and others reported in 2005 (2) TAC 502 (Bombay). Bombay High Court held that at the time of fixing compensation, Court should consider contributory negligence on the part of claimant. It is 6 correct that if the evidence comes on record about contributory negligence, then it is necessary to deduct some amount towards contributory negligence. Learned Counsel appearing on behalf of the appellant mainly relied on Para. 3 of the said judgment which reads as under. "3. On the other hand the learned Counsel for the respondent Nos. 1 ands 5 contended that the panchnama does not reveal the correct picture because in the situation of main road and by-lane road such an accident is impossible. In order to appreciate these submissions of both the parties it is necessary to note here that N.D. Patel Road is North-South S.T. Colony road meets it from Eastern side; the deceased was coming on his scooter from the S.T. Colony Road and truck was going towards North from South; the deceased wanted to take turn to his left i. e. towards South and, therefore, according to the Counsel for the respondents if at all there was to be an accident because of the rash and negligent driving of the deceased then he would have hit the right side of the truck i. e. the side of the driver and , under no circumstances the scooter of the deceased could have hit the left side because in that cfase he would have been required to overtake the truck by crossing the entire road and going to the left towards West." 8. In this case, the evidence was on record to show that there was contributory negligence on the part of the claimant and therefore, High 7 Court deducted sum of Rs. 60,000/- towards contributory negligence of the deceased. But in the present case, not a single iota of evidence was brought on record by the appellant to show that respondent No. 1 was also negligent and because of that, accident took place. For want of evidence on record, it is not possible to hold that respondent No. 1 was also negligent and therefore, some amount to be deducted towards contributory negligence. Therefore, I do not find any substance in the submissions made by learned Counsel appearing on behalf of the appellant about contributory negligence. 9. In any case, it remained on the part of the appellant to show that whether they applied for leave under Section 170 of the Motor Vehicles Act, 1988. For want of leave under Section 170 of the Motor Vehicles Act, 1988, question will have to be decided regarding maintainability of appeal. It is well settled proposition of law that appeal is always a creation of statute. Right of appeal is always created by statute and same can be taken away by the statute. Right of appeal can be always curtailed or limited by the statute. In the present case, under the said Act of 1988, right of appeal is created under Section 173 . In the present case, appellant filed their W.S. dated 12th October 1993 before the Tribunal without obtaining leave under Section 170 of the M.V. Act, 1988. 9. Our High Court in the matter of United India Insurance Co. 8 Ltd., vs. Nirmala Babulal Khairajani and others, reported in 2007 (3) Bom. C. R. 705 held that for want of leave under Section 170 of M.V. Act, insurance company cannot prefer appeal. Head Note of the said judgment reads as under. "Motor Vehicle Act, 1988, Secs. 170 & 149 (2) - Accident claim - Maintainability of appeal by Insurance Company - No application under section 170 of Act preferred by insurance company before trial Court - Seeking permission to contest petition with all defences available also to owner - In view of non appearance of owner and driver - Held, although owner and driver not contested claim and Clause (b) of Section 170 was satisfied, Insurance Company had raised one technical defence and although they had raised other defences in written statement, those were raised without permission for Tribunal by application under section 170 for reasons to be recorded in writing by Tribunal. Appeal not maintainable." 10. In the present case, learned Counsel appearing on behalf of the appellant not pointed out whether the appellant filed their W.S. obtaining leave under Section 170 of the M.V. Act or not. Therefore, on this ground also, the appeal preferred by original respondent No. 3 is liable to be dismissed. In any case, as I held herein above that the appellant failed to disclose any iota of evidence about contributory 9 negligence, I do not find any merit in the present appeal and same is dismissed with no order as to costs. [ K.K. TATED, J.] sut/JUN09/fa421.95