1 fa914-xob ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.914 OF 2000 WITH CROSS OBJECTION ST.NO.12313 OF 2005 The New India Assurance Co. Ltd. Shankarrao Gundu Patil ...Appellants vs. 1 Smt.Alkadevi Dattatraya Desai 2 Sunil Dattatraya Desai 3 Rani Dattatraya Desai ...Respondents None for the appellants Ms Vaidehi Mhaispurkar for the respondent nos.1 to 3 CORAM : A.S.OKA,J. DATE : SEPTEMBER 19, 2011 ORAL JUDGMENT: 1 Called out for final hearing. The order dated 15 th July 2011 reads thus : Mr.Barve, learned counsel for the Appellants states that he has returned the papers to the Appellants. Hence, the appeal shall be placed on the final hearing board of the First Appeals (Motor Vehicles Act) to be notified for August 2011. 2 None appears for the appellants. The learned counsel for respondent nos.1 to 3 pointed out that the appeal at the instance of the first appellant- insurer was not maintainable in as much as there is 2 fa914-xob no defence taken under section 149 (2) of the Motor Vehicles Act,1988 and leave under section 170 of the said Act was not obtained. Perusal of the record of the Tribunal shows that the second appellant (insured) filed a written statement and contested the claim. There is no application made by the first appellant under section 170 of the said Act. In the written statement of the first appellant, there is no defence raised under section 149 (2) of the said Act. Hence, the appeal at the instance of the first appellant is not maintainable in law. As far as second appellant is concerned, the appeal will have to be dismissed in exercise of power under Rule 17 of Order XLI of the Code of Civil Procedure, 1908 as none appears for him. 3 There is a Cross Objection filed by the first to third respondents for claiming enhancement in compensation. 4 The first to third respondents are the claimants in a claim petition under section 166 of the said Act. The first respondent is the widow of deceased Dattatraya and second and third respondents are the son and daughter of the deceased respectively. The second appellant is the owner of the vehicle involved in the accident and the first appellant is the insurer of the vehicle. The allegation in the claim petition is that the deceased was driving a Yamah motor cycle involved in the accident. The motor cycle was owned by the second appellant. 5 The learned Member of the Tribunal granted 3 fa914-xob compensation of Rs.1,50,000/- to the first to third respondents inclusive of amount paid under no Fault Liability. The learned counsel for first to third respondents has taken the Court through the evidence. The learned counsel submitted that the evidence in the form of income certificate at Exh.67 has gone unchallenged which shows that the salary of deceased was of Rs.2735/- per month from the Maharashtra State Electricity Board. The learned counsel submitted that if the law laid down in case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another [(2009) 6 SCC 121] is followed, the compensation will be Rs.3,30,000/-. The submission is that there was no reason to deny compensation to the respondents by applying the multiplier method. 6 I have carefully considered the submissions. The claim petition is filed under section 166 of the said Act. Such a claim petition is by way of a remedy under the law of torts. The claim for compensation is maintainable against a tort-feasor. In the present case, admittedly the deceased himself was plying the motor cycle. There is no other vehicle involved in the accident. The averments made in the claim petition are that the deceased tried to overtake a truck and while doing so, the motor cycle skidded. As a result, the deceased sustained injuries and he succumbed to the injuries. The specific case in the claim petition is that there was no negligence on the part of the deceased. 7 In view of these averments, the first to third 4 fa914-xob respondents could not have maintained the claim petition under section 166 of the said Act against the owner and insurer of the motor cycle. The owner cannot be a tort-feasor. Hence, no case is made out for grant of enhancement in the compensation amount. 8 Hence, I pass the following order : i) Appeal is dismissed as not maintainable in so far as first appellant is concerned. Appeal is dismissed so far as second appellant is concerned in exercise of power under Rule 17 of Order XLI of the Code of Civil Procedure,1908. ii)Cross Objection is dismissed with no order as to costs. iii)Civil Application no.7048 of 2000 does not survive and the same is disposed of. JUDGE