1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.1191 OF 2009 New India Assurance Co. Ltd. ...APPELLANT VERSUS Sakhubai wd/o Jamnaji Kasbe and 2 others ...RESPONDENTS Shri Dhananjay Deshpande, Advocate for the appellant. CORAM : K.U. CHANDIWAL,J. DATE : 09/06/2009. PER COURT :- 1) Heard the counsel. By consent the matter is finally heard at admission stage. 2) In an unfortunate accident on 27/1/1999 Jamnaji while travelling in a Autorickshow of Respondent No.3 Gangadhar met fatal injuries and succumbed (Inquest Exh.38). The accident was due to impact of one Tata Sumo bearing registration No.AP-15/G-6618. The evidence of P.W.2 illustrate that he was travelling with Jamnaji. The Tata Sumo Jeep gave dash to the Autorickshow from opposite direction. This fact is also substantiated in F.I.R., at Exhibit 36. Spot panchnama is at Exhibit 37. 2 3) The important point in the matter is, whether the learned Judge was justified in not holding the autorickshow driver, insurance company of the said auto-rickshow as responsible to meet with the claim. It is a matter of record that said auto-rickshow driver, owner or Insurance company is not party to the proceeding. 4) The learned Judge in paragraph 12 of the Judgment has observed that not only the driver of the Jeep was negligent simultaneously the driver of the auto rickshaw has also omitted to take care to avoid the accident which amounts to negligence. The evidence of P.W. 2 Gautam cannot be obliterated. It highlights in the manner in which the accident has taken place. It was expected that the driver of Autorickshow should have been alert, it does not mean that it was amounting to his negligence. None impledment of the rickshow driver or for that purpose Insurance Company sharing of the responsibility is not fetal. The victim is however entitled to claim compensation from either of tort feasor or both of them. 5) The learned counsel for the Appellant Insurance Company has invited my attention to the judgment in the matter of Sitaram Prabhu Tele and another Vs. Rajabai Vilas Patil and 3 others reported in 2001 (2) Mh. L.J. 587 and judgment of Bijoy Kumar Vs. Bidyadhar reported in 2006 (4) Mh. L.J. 6) There cannot be a controversy to the facts stated in the said case. In both the cases there was head on collusion. Both the drivers in that case had not taken due care and the accident was under such eventuality of negligence. In this matter to drag the sharing of the claim by the rickshaw driver or for that purpose Insurance company is not available, as evidence establish offending Sumo was at total fault. The above judgments are not applicable to the present case. Deceased was 50 years, the learned Judge assessed monthly income of Rs.3000/- and multiplier of 13 was applied including yearly dependency of Rs. 16000/-. I do not see any reason to interfere with the findings recorded by the learned Judge fixing the liability to the Insurance Company of Tata Sumo and about multiplier including notional income of the deceased and ultimately granting Rs.2,17,000/- under Section 166 of M.V. Act inclusive of Rs. 50,000/- under Sec. 140 of M.V. Act. The appeal sans merits it is dismissed. ( K.U. CHANDIWAL ) JUDGE cmg/fa118909