fa435.95 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 435 OF 1995 United Insurance Company Ltd. Rail Road, Agrasen Inter College Mukramabad 203205, Buland Shahar, Through Branch Manager, Parbhani And Divisional Manager, Division Office, Aurangabad .. APPELLANT VERSUS 1. Chandramansingh s/o Ramayodhya Thakur age 60 years, occ. labour r/o Bhagwati Saw Mill, Nanded Road, Hingoli, Tq. Hingoli, Dist. Parbhani. 2. Smt. Siyadevi w/o Chandramansingh Thakur age 50 years, occ. household r/o as above. 3. Munna Singh s/o Chandramansingh Thakur age 21 years, occ. Priest at Badrinarayan Mandir r/o Badrinarayan Mandir, near post office road Hingoli Dist. Parbhani. 4. Aachalal s/o Mithulal Kashyap age 30 years, occ. truck driver r/o Mehara Post Palshi, Tq. Fulpur dist. Ajamgadh (UP), at present r/o Aarc Transport Shop No. 8531 Roshan Road, New Delhi. 5. Sow Jaspal Kaur w/o Harbhajansingh age 37 years, occ. business fa435.95 2 r/o H.No. 235, Kalyan Vihar, Delhi 110009 through Power of Attorney holder Shri Harbhajansingh s/o Balvirsinh age 45 years, occ. business r/o H.No. 235, Kalylan Vihar Delhi 110009. .. RESPONDENTS Mr. S.V. Kulkarni, advocate for the appellants. Mr. V.V. Bhavthankar, advocate for respondent nos. 2 and 3. ===== CORAM : A.V. POTDAR DATE : 20 th DECEMBER, 2011 ORAL JUDGMENT : 1. Challenge raised in this appeal is to the judgment and award dated 30-8-1995 passed by Member, MACT, Parbhani in MACP No. 72/1993 thereby awarding compensation to the tune of Rs. 1,35,400/- alongwith interest at the rate of 12 per cent per annum from the date of application till full and final realisation. 2. Heard. 3. For better appreciation of submissions of learned counsel across the bar, it is necessary to advert to the facts which have come on record. fa435.95 3 . It appears that one Jitendra Thakur – son of respondent No. 1 and 2 and brother of respondent No. 3 , was working in Bhagwati Saw Mill, Hingoli. He met with accident on 25-4-1993 at about 9.45 a.m. on Hingoli-Akola road, Tq. Hingoli, then Dist. Parbhani, now Dist. Hingoli. At the material time, said Jitendra was proceeding on his bicycle to see the goods to be purchased in the saw mill run by Laxmananna (Claimants’ witness no. 2) with whom he was serving. When they reached near Risala Bazar, truck bearing no. DL- IG-6808 driving by respondent no. 4 came from opposite side and gave dash to the bicycle of Jitendra. Due to dash, bicycle and Jitendra himself came under the front wheel of the truck as a result of which, Jitendra died on the spot. While Jitendra was proceeding on his bicycle, other co-workers Akram Khan and Shrinivas were following him. Said accident was reported in Hingoli Police station and on the basis of same offence came to be registered against driver of th vehicle at C.R. No. 68/1993 under section 279 and 304 of the Indian Penal Code. In the backdrop of this situation, Motor Accident Claim Petition No. 72/1993 was filed before the Motor Accident Claim Tribunal, Parbhani by respondent nos. 1 to 3. . Inspite of service, driver of the vehicle and owner of the vehicle, respondent nos. 4 and 5 respectively, remained absent. Present appellant - fa435.95 4 insurance company with whom the truck was insured, contested the petition by filing written statement inter alia alleging that the accident caused due to negligent act of the deceased and the driver of the offending vehicle was not at fault. It is also tried to avert that there was contributory negligence and hence, insurance company cannot be held solely liable alongwith the owner of the vehicle to pay compensation under section 166 of the Motor Vehicles Act to the original claimants. Plea is also taken that claim of respondent No. 3 who is applicant no. 3 before the tribunal cannot be considered as at the time of alleged accident, he was major and he cannot be said to be dependent on the deceased. . On the basis of pleadings of the parties, learned tribunal framed issues at exh. 17 including the issue as to whether death of deceased Jitendra was caused in vehicular accident. The Court also framed issue as to whether the accident has caused due to contributory negligence on the part of deceased Jitendra and, to what compensation appellants / respondent nos. 1 to 3 are entitled to. Record and proceeding shows that in support of the claim of respondents, they have examined respondent no. 2 – mother of deceased Jitendra, Laxmananna – the owner of the saw mill with whom deceased Jitendra was serving. Apart from this, during the trial before the fa435.95 5 tribunal, respondents also produced copy of FIR registered in Hingoli Police Station, inquest panchanama Exh. 30, spot panchanama exh. 31, Post mortem report exh. 32, statement of Akram Khan exh. 35 and the copy of insurance policy. In support of the stand taken by insurance company, no independent witness was examined by the insurance company. On appreciation of evidence before the Court below, the Court below came to the conclusion that death of Jitendra was caused in the vehicular accident in which there was no contributory negligence on the part of deceased Jitendra. The Court below also held that the owner and insurance company are jointly and severally liable to make payment of compensation. It is observed by the tribunal in the judgment that respondents are able to establish that deceased was earning Rs. 1,000/- per month out of which he was spending Rs. 900/- for the expenses of these respondents. It is further observed in the judgment of the trial court that each of the respondents were getting Rs. 300/- from deceased towards monthly maintenance. On calculation of the income spent by the deceased on these respondents and the age of respective respondents, it is held by the trial court that respondent No. 1 is entitled for compensation by way of maintenance to the tune of Rs. 36,000/-, respondent No. 2 is entitled to sum of Rs. 72,000/- as compensation by way of maintenance and, respondent No. 3 is entitled to fa435.95 6 compensation of Rs. 32,400/-. It is further held that respondents are entitled for mental agony caused due to accident and loss of life of deceased Jitendra and are entitled for such compensation in the sum of Rs.20,000/-. Thus, tribunal has come to the conclusion that respondents are entitled for compensation to the tune of Rs. 1,60,400/- from which compensation paid under ‘No Fault Liability’ to the tune of Rs. 25,000/- was deducted and the claim under section 166 of the Motor Vehicles act was allowed to the extent of Rs. 1,35,400/-, which judgment and award is impugned in the instant appeal. 4. During the course of submission across the bar, learned counsel for insurance company urged that compensation awarded by the Court below is exorbitant and evidence in respect of income of deceased was not properly considered by the Court below. Learned counsel for appellant further urged that so far as compensation awarded to respondent nos. 1 and 2 – parents of deceased is concerned, it cannot be faulted with as considered the age of respondent Nos. 1 and 2, they are dependents of deceased Jitendra. According to learned counsel for appellant, respondent No. 3 – brother of deceased Jitendra cannot be held as entitled for compensation. In the light of this, learned counsel for appellant urged that fa435.95 7 so far as claim of respondent no. 3 is concerned, it is required to be quashed and set aside. 5. Per contra, learned counsel for respondent Nos. 1 to 3 / original claimants supported the judgment and award impugned. Learned counsel for respondents strenuously urged that at the material time, considering the age of parents of deceased and oral evidence of respondent No. 2 recorded before the Court below, it is clear that respondent No. 1 due to ailment and old age was not capable of earning anything. In such circumstances, lower Court cannot be faulted with as it is held by the lower Court that respondent nos. 1 and 2 are entitled for compensation. 6. Considering this submission and on re-appreciation of evidence adduced before the lower Court, following points arise for my consideration : 1. Whether the learned tribunal was right in holding that respondent No. 3 was dependent on deceased Jitendra and he is entitled for compensation ? 2. What order ? 7. Point No. 1 : As stated earlier, on perusal of evidence of witness no. 2 Laxmananna, it is clear that deceased Jitendra was working in his Saw Mill as fa435.95 8 carpenter and was earning Rs. 1,000/- per month. This evidence of witness Laxmanna was not shaken by the insurance company in cross examination. It is not seriously disputed that the offending vehicle driven by respondent No. 4 owned by respondent No. 5 was insured with the appellant. In the light of this admitted fact, the only point for consideration is that to what compensation the applicants are entitled to and whether any exorbitant compensation was awarded by the tribunal. As stated earlier, it reveals from evidence of witness No. 2 that deceased was earning Rs. 1,000/- per month. Considering the age of deceased at the time of accident to be 22 years, multiplier of 10 in respect of respondent No. 1 and 20 in respect of respondent No. 2 applied by the trial court cannot be faulted with. As held by the trial Court, respondent Nos. 1 and 2 are entitled to compensation to the tune of Rs. 36,000/- and Rs. 72,000/- respectively, plus compensation towards mental agony to the tune of Rs. 20,000/- which comes to Rs. 1,30,000/-. Now the only point for consideration is whether respondent No. 3 is also entitled for any compensation as awarded by the Court below. 8. It cannot be disputed that at the time of accident age of respondent No. 3 was 19 years. Legally speaking, respondent No. 3 was major at the time of alleged accident. Considering this fact, certainly, it cannot be said fa435.95 9 that he was dependent on deceased Jitendra. In the light of this, claim of compensation of respondent No. 3 awarded by the tribunal in the sum of Rs.32,400/- requires to be quashed and set aside. Learned counsel for respondents is unable to satisfy this Court as to how this part of award can be supported in law. In the light of this, part of award granting compensation to respondent No. 3 to the tune of rs. 32,400/- is required to be quashed and set aside. In the light of this, finding to be recorded on point no. 1 is that respondent No. 3 is not entitled for any compensation. 9. Point No. 2 : As the finding is recorded on point no. 1 that learned Member, Motor Accident Claim Tribunal, Parbhani committed an error in awarding compensation to respondent No. 3, the award is required to be modified to that extent. Hence, finding to be recorded on point no. 2 that judgment and award impugned requires to be partly modified by setting aside award of compensation in respect of respondent No. 3. Award of compensation in respect of respondent Nos. 1 and 2 at Rs. 1,08,000/- plus amount towards mental agony at Rs. 20,000/-, total amount of Rs. 1,28,000/- from which amount already received towards ‘No Fault Liability’ in the sum of Rs. 25,000/- needs to be deducted, stands confirmed. Thus, respondent Nos. 1 and 2 are entitled for compensation to the tune of Rs. 1,03,000/- fa435.95 10 alongwith interest. In the substance, appeal is partly allowed as stated above, by modifying the award impugned. Appeal stands disposed of accordingly. No order as to costs. ( A.V. POTDAR ) JUDGE dyb