: 1 : Vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1383 OF 2009 The New India Assurance Co. Ltd. ... Appellant V/s. Renuka Ramesh Parab & Ors. ... Respondents Mr.D.R. Mahadik for Appellant Mr.M.B. Kotak for Respondent No.1 Mr.G.S. Hegde for Respondent No.2 Mr.C.M. Lokesh for Respondent No.3 CORAM: SMT.NISHITA MHATRE, J. DATED: OCTOBER 8, 2009 P.C.: 1. The present appeal has been preferred against the judgement and award of the Motor Accident Claims Tribunal dated 4.8.2008 in Application No.2712 of 2005. The appellant is the insurance company which had insured auto rickshaw No.MH-06- D-5036. Respondent No.3 is the owner of this rickshaw. Respondent No.1 was the claimant before the Tribunal. Her husband expired in an accident which occurred on 19.6.2005. She claimed compensation from both the owner of the rickshaw as well as MSRTC i.e. Respondent No.2 herein. The deceased was travelling in the rickshaw and met with a head-on collision with the ST bus bearing No.MH-20- : 2 : D-6045. The deceased succumbed to his injuries immediately. 2. Respondent No.1 filed the application claiming compensation of Rs.25 lacs. The Tribunal after considering the evidence on record has held that the drivers of both the vehicles namely of the ST bus as well as the auto rickshaw were rash and negligent due to which the accident had occurred. The Tribunal has further held that there was contributory negligence on the part of both the drivers and therefore, has apportioned the blame equally between them. The Tribunal has thereafter held that the appellant was entitled to compensation of Rs.16 lacs and held that the MSRTC and the appellant herein were jointly and severally liable to pay the aforesaid compensation alongwith interest @ 7% p.a. 3. The main grievance of the learned advocate for the appellant is that the rickshaw driver was not negligent and in fact it was on account of the acts of the driver of the MSRTC bus that the accident occurred. He submits that the Tribunal was incorrect in directing that 50% of the compensation awarded should be paid by the appellant. 4. Mr.Kotak, learned advocate for Respondent No.1, points out that the driver of the rickshaw was not examined at all before the Tribunal and, therefore, the insurance company has no right to challenge the award in respect of the negligence. He places reliance on the judgement of a learned Single Judge of this Court in the case of Oriental Insurance Company Ltd v/s. Sangita D. Jamdade & Ors., 2006 ACJ 971. It has been held that the defenses available to an insurance company are limited and that when the insurance company does not contest the case on the issue : 3 : of negligence, despite leave having been granted, it cannot challenge the finding on that issue. Undisputedly there is an averment in the application regarding the negligence of the driver of the auto rickshaw. Therefore, the insurance company ought to have examined the driver to prove that there was no such negligence on his part. Furthermore, besides a bald statement being made in the written statement filed by the appellant that the accident occurred because of the driver of the MSRTC, no steps were taken by the insurance company to examine witnesses before the Tribunal. I am in respectful agreement with the judgment in the aforesaid case. The submission of the learned Advocate for the appellant with respect to the negligence cannot be accepted in the facts and circumstances of the present case. 5. As regards the quantum payable to the respondent No.1 as compensation, it is submitted on behalf of the appellant that the claimant had not proved that the deceased was drawing a monthly salary of Rs.15,000/- as held by the Tribunal. It is submitted that besides producing the pay slip for the month of April 2005 from the Industrial Training Institute, Kurla, the Respondent No.1 had not produced any other material on record to prove that her deceased husband was drawing an amount of Rs.15,000/- as gross salary. 6. A perusal of the evidence on record indicates that the acting Principal of the ITI, Kurla was examined before the Tribunal on behalf of Respondent No.1. He has deposed that the deceased was working in the Institute as an instructor and that his gross salary was Rs.18,196/-. He also stated that he was a permanent employee and has produced the salary certificate at exhibit 23. This witness has been cross- examined on behalf of the MSRTC. However, the insurance company did not care to : 4 : even cross-examine this witness, much less to controvert the salary slip. The insurance company instead adopted the cross-examination carried out on behalf of the MSRTC of this witness. This cross-examination in my opinion, does not in any manner shake the deposition of this witness. Nor is there a suggestion put to the witness to the effect that the pay slip which was produced was fabricated or otherwise. In these circumstances, I have no reason to differ from the view taken by the Tribunal. 7. Reliance is placed on the judgment of the Division Bench of this Court in the case of Shekhar S. Dighe v. Roshan Lal Uday Bhan & Ors., 1994 ACJ 1115 where this Court has held that there was no evidence on record to indicate that the appellant in that case had been assured of a foreign job or an income of Rs.15,000/- per month. It was on the basis of the evidence on record that this Court concluded that since the appellant’s employer had not been examined to support his claim, the contention of the appellant that he would have drawn a salary of Rs.15,000/- was unacceptable. This judgment in my view, would have no relevance in the facts and circumstances in the present case where the respondent No.1 has examined the representative of the employer of the deceased. He has deposed regarding the salary paid to the deceased and the pay slip has also been produced on record. 8. In these circumstances, in my opinion, the quantum of compensation awarded also cannot be challenged, especially since the insurance company did not care to cross-examine this witness. The Tribunal has considered the age of the deceased who was 40 years old when he met with the accident. The Tribunal has applied a multiplier of 13 for computing the compensation. Further, a sum towards vehicle : 5 : expenses and loss of consortium has been awarded. The total amount of Rs.16 lacs has therefore been awarded. There is no need to differ with the view taken by the Tribunal since it is based on the evidence on record which has been correctly appreciated. 9. Appeal dismissed. All interim orders stand vacated. 10. In view of the Appeal being dismissed, nothing remains in Civil application No.1125 of 2009 and the same is dismissed.