1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.2980 OF 2009 with CA No.12222/2009 M/s Valay construction Pvt.Ltd. Nandur, Tq. Daund, District Pune, Through it's Project Manager, Namdeo s/o Vishwambhar Kale, Age 43 years, Occu.Service, r/o Valay Construction Pvt.Ltd. Flat No.9, Adinath Apartment, Sinhagad Road, Pune. ...APPELLANT ORIGINAL RESPONDENT VERSUS 1. Annasaheb s/o Shivnath Dhobale, Age 46 years, Occu.Nil. 2. Sou.Sangita Annasaheb Dhobale, Age 41 years, Occu.Household. 3. Sachin s/o Annasaheb Dhobale, Age 17 years, Occu. Education. All r/o Loni Kd., Tq. Rahata, District Ahmednagar. ..RESPONDENTS (Orig.Claimants) ... Mr. R.R.Imale, Adv., for the appellant. Mr. R.A.Tambe, Adv., for respondent nos. 1 to 3. ... CORAM: K.U. CHANDIWAL, J. DATE :24th Feb.,2010 *** 2 PER COURT : 1. Heard finally. 2. Original respondent, owner of the truck, is in appeal, seeking to challenge the award of Rs.3,75,000/- recorded by the learned Member, Motor Accident Claims Tribunal, Shrirampur, in M.A.C.P. No.192/2006, dt.31.8.2009. 3. In an unfortunate accident, the deceased, a motor cyclist, had a dash with Dumper No.MH-12/RA-8312 and he was crushed. His friend Vilas was seriously injured resulting in recording of Crime No.130/2006. It was informed that the deceased was running a General Stores with earning of Rs.200/- to Rs.250/- per day. He was also having milk vending activity and thus, the monthly income was totally assessed to Rs. 8,000/- to Rs.9,000/- from both the sources. 4. The record illustrates, the motor cyclist was coming from opposite direction, it virtually collided with the truck/dumper. The dumper driver, in the exercise of settling from the purported accident, could not control the vehicle, he dashed again to other pedestrians and then dashed against a Police Outpost. It though indicates that there was series of three accidents, however, it hardly will indicate, that 3 total negligence should be shared by the truck driver. At the material time, the FIR at Exh.24 dt.13.5.2006 is of Walmik Kalu Solunke. He has gone to the spot on being learnt of the accident and recorded the events which materially matched to the Panchnama. Considering the events, though I find the appellant herein sought adjournment applications Exhs. 20,21 and 22 before the learned Member, still, the fact remains, entire liability to meet the accident could hardly be shared by the truck driver as it was the excessive speed of the motor cyclist which invited the accident in question. Consequently, the liability, if any, will have to be shared, there being contributory negligence. It is unfortunate, the claimant did not array the motor cyclist, owner thereof, or the Insurance Company as party which has also added to the misery. 5. So far as assessment of the income, as referred by the learned Judge in paragraph 16, 17 and 18 of the judgment, I do not see any reason to disturb the same. The only point that will be required to address now is there being a negligence, joint by the deceased and also by the truck owner, it will have to be shared which, on perusal of the papers, I assess, the truck driver/owner to share 70 per cent and the motor cyclist to share 30 per cent. 4 In the light of above observation, the order under challenge needs interference. Hence, order: Appeal is partly allowed. No costs. The award of Rs.3,75,000/- ( inclusive of amount paid under Section 140 of M.V.Act) is modified to the extent that the appellant herein to pay Rs. 2,70,000/- (Rs.two lacs, seventy thousand) with interest at the rate of 6 per cent per annum from 20th July,2006. The disbursement proportion indicated in the order to remain intact. The amount deposited in this Court be remitted to the learned Member, Motor Accident Claims Tribunal, Ahmednagar, and it be received by the claimant on making application before the learned Judge. Civil Application disposed of. [K.U. CHANDIWAL, J.] agp/2980-09fa 5