1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1312 OF 2004 1. The United India Insurance Company Ltd., Through its Divisional Office, Divisional Manager, United India Insurance Company, Aurangabad. 2. Devakram S/o Uttamrao Madan, Age : 25 Years, Occu. : Business & Agril., R/o Keligaon, Tq. Badnapur, District Jalna. .. .. APPELLANTS (Orig. Resp. No. 1 & 2.) Versus 1. Bhausaheb S/o Bapu Wahul, Age : 35 Years, Occu. : Labour, R/o Dabrul, Tq. Paithan, Dist. Aurangabad. 2. Shankutalabai W/o Bhausaheb Wahul, Age : 30 Years, Occu. : Household, R/o as above. ---------------------------------------------------------------------- 3. Bashir ali Khan S/o Shaukat Ali Andure Khan, Age : Major, Occu. : Business, R/o Asha Pan Centre, Chikalthana, Aurangabad. ---------------------------------------------------------------------- Appeal dismissed against Respondent No. 3 vide Registrar's order dated 17.10.2008 2 4. Kailash S/o Bhausaheb Madan, Age : Major, Occu. : Driver, R/o Keligavan, Tq. Badnapur, District Jalna. 5. The Divisional Manager, Oriental Insurance Co. Ltd., Divisional Office, Adalat Road, Aurangabad. .. .. RESPONDENTS (Resp. 1 & 2 Orig. Applicants & respt. No. 3-5 are orig. respts.) Shri S. V. Kulkarni, Advocate for the Appellant. Shri S. M. Jawale, Advocate for the Respondents No. 1 and 2. The appeal dismissed against respondent No. 3. Shri Dhananjay Deshpande, Advocate for the Respondent No. 5 - absent. WITH CIVIL APPLICATION NO. 6813 IF 2009 IN FIRST APPEAL NO. 1312 OF 2004 1. Bhausaheb S/o Bapu Wahul, Age : 35 Years, Occu. : Labour, R/o Dabrul, Tq. Paithan, Dist. Aurangabad. 2. Shankutalabai W/o Bhausaheb Wahul, Age : 30 Years, Occu. : Household, R/o as above. .. .. APPLICANTS Versus 1. The United India Insurance Company Ltd., Through its Divisional Office, Divisional Manager, United India Insurance Company, Aurangabad. 3 2. Devakram S/o Uttamrao Madan, Age : 25 Years, Occu. : Business & Agril., R/o Keligaon, Tq. Badnapur, District Jalna. ---------------------------------------------------------------------- 3. Bashir ali Khan S/o Shaukat Ali Andure Khan, Age : Major, Occu. : Business, R/o Asha Pan Centre, Chikalthana, Aurangabad. ---------------------------------------------------------------------- Appeal dismissed against Respondent No. 3 vide Registrar's order dated 17.10.2008 4. Kailash S/o Bhausaheb Madan, Age : Major, Occu. : Driver, R/o Keligavan, Tq. Badnapur, District Jalna. 5. The Divisional Manager, Oriental Insurance Co. Ltd., Divisional Office, Adalat Road, Aurangabad. .. .. RESPONDENTS Shri S. M. Jawale, Advocate for the Applicants. Shri S. V. Kulkarni, Advocate for the Respondent No. 1. The appeal dismissed against respondent No. 3. The Respondent No. 4 served - absent. Shri Dhananjay Deshpande, Advocate for the Respondent No. 5 - absent. CORAM : N. D. DESHPANDE, J. DATE : 16TH NOVEMBER, 2009. ORAL JUDGMENT : 1. Heard Shri Kulkarni, the learned counsel for the Appellant/the United India Insurance Company and Shri Jawale, the learned 4 counsel for the respondents No. 1 and 2. 2. Today, the matter is fixed for hearing of application for withdrawal of amount of Rs. 90,617/- which is deposited in Fixed Deposit Receipt No. EM/TBA 0702401 dated 25.07.2005 with Union Bank of India, Branch Osmanpura, Aurangabad. This application is opposed for withdrawal of entire amount by the Insurance Company mainly on the ground that, the respondents No. 1 and 2/claimants have already received Rs. 50,000/- under no fault liability and Rs. 39,500/- which they were permitted to withdraw when the stay application was granted while admitting the appeal and application for stay of execution. On the last date itself it was put on notice to both parties that, present appeal would be decided finally by this Court. 3. I have heard submissions of Shri Kulkarni, the learned counsel for the appellant/insurance company and Shri Jawale, the learned counsel for the respondents No. 1 and 2. The present dispute is narrow and limited to the quantum in this appeal. The learned Member, Motor Accident Claims Tribunal, Aurangabad awarded compensation of Rs. 1,59,500/-, since it involves a death of child of five years old named Akash, in a road accident of two vehicles i. e. Mini door auto rickshaw bearing No. MH-20/A-7951 and metadoor bearing No. MH-21/6236. 4. Perused the impugned judgment and award dated 06.05.2004 passed by learned Member, Motor Accident Claims Tribunal, Aurangabad in M.A.C.P. No. 401/1999. Out of the two vehicles the 5 learned Tribunal described metadoor bearing No. MH-21/6236 belonging to original respondent No. 1 as offending vehicle. Therefore, made the original respondent No. 2, the "insurer" liable to pay the compensation. The said judgment and award is impugned in this appeal by the appellant/United India Insurance Company Ltd. also on the ground of contributory negligence. On behalf of insurance company it was submitted that, for the death of child in a road accident Rs. 1,00,000/- would be "just and reasonable" compensation relying on the authority reported in 2007 AIR SCW 3424 in the case of Kaushlya Devi vs. Karan Arora and others. It was also urged that, the award be suitably modified and slashed by 50% of the compensation payable to the claimants. 5. Both the parties agreed to refer to impugned award on the point of the alleged "contributory negligence" and also the quantum. For disposal of the present first appeal at this stage, I do not find any difficulty, since there is marginal difference regarding quantum. Therefore, I have gone through the grounds of appeal and also the impugned award dated 06.05.2004. 6. The relevant discussion is found in paragraph No. 11, 12 and 13. It is held that, accident took place due to rash and negligence driving of the metadoor No. MH-21/6236. It was in high speed and was responsible for dash to the mini door auto rickshaw, which was used by deceased Akash for travelling. The police record and charge sheet also held the same vehicle as offending vehicle for prosecuting its driver at the relevant time. Thus, there is no case of contributory negligence appearing on record, though in written statement a 6 defence has been taken. When a party assert in pleading, a particular fact to prove or disprove the case, then it must substantiate it by some evidence. No burden can be cast on the claimants in such claim petitions who knew nothing about the accident and had no personal knowledge. They based their claim on the police papers and they are relevant to that extent. Those have been accepted as evidence of the matter in issue. 7. Upon considering of record and after hearing both the sides I find no fault in the impugned judgment and award and the observations made by the learned Tribunal holding the metadoor No. MH-21/6236 as a offending vehicle and the respondent No. 2 is the insurer of the said vehicle is certainly liable to pay the compensation. So far the quantum is concerned, it is seen that, Akash aged five years died on 08.04.1999 in a road accident. Thus no case of contributory negligence is established on record. 8. The Hon'ble Apex Court considered Rs. 1,00,000/- as just compensation in an accident of a child which took place two years prior. Moreover, Shri Jawale, the learned counsel for the respondents No. 1 and 2 relied on the authority reported in 2005 ACJ 99 in the case of Manjudevi and another vs. Musafir Paswan and another. The Supreme Court has laid down the principles of assessment and multiplier method for award of compensation. Quantum-Fatal accident-Principles of assessment-Multiplier method-Award of compensation should be made by multiplier method as it ensures payment of just compensation and it brings uniformity and 7 certainty to the awards. Quantum-Fatal accident-Deceased boy aged 13-Claimants: parents-Tribunal awarded Rs. 90,000-Apex Court assessed notional income for a non-earning person at Rs. 15,000/- p.a., adopted multiplier of 15 and allowed Rs. 2,25,000-Award of Rs. 90,000 enhanced to Rs. 2,25,000. 9. Upon considering of record and after hearing both the sides, in my opinion no interference is required. The total award of the learned Tribunal is sound, well reasoned and call for no interference, and therefore, upheld. Since the balance of the award is lying as deposit in the form of Fixed Deposit Receipt the same shall be made payable to the respondents No. 1 and 2/claimants as per the award immediately. The appeal stands dismissed on merits with no order as to costs. The civil application allowed and disposed of accordingly. [ N. D. DESHPANDE, J.] bsb/Nov. 09