J-fa814.06.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.814 OF 2006
The Oriental Insurance Company Limited,
Chandrapur Branch, through the Senior
Divisional Manager, Nagpur Division Office-I,
Mount Road, Sadar, Nagpur. : APPELLANT
...VERSUS...
1. Chindhuji s/o. Laxman Jambhule,
aged about 40 years,
Occupation : Labour
(Original Appellant No.1.)
2. Sau. Rekha w/o. Chindhuji Jambhule,
Aged about 35 years,
Occupation : Labour,
(Original Appellant No.2.)
Both r/o. Asala, Tah. Warora,
District Chandrapur.
3. Parshuram s/o. Wadiamal Daryanani,
r/o. 54/C, Type-3, Sector-3,
Ordinance Factory, Chanda,
Tah. Bhadrawati, District Chandrapur
(Original Non-applicant No.2.)
Appeal is dismissed 4. Arun s/o. Krushnarao Chandekar,
against Respondent aged Major, R/o. Bhanaapeth Ward,
No.4, vide Registrar (J) Chandrapur, Ta. And Distt. Chandrapur,
order dt.27.1.2015.
(Original Non-applicant No.3.) : RESPONDENTS
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Shri D.N. Kukday, Advocate for the Appellant.
None for the Respondent Nos.1 & 2 and 3.
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CORAM : S.B. SHUKRE, J.
th DATE : 28 NOVEMBER, 2017.
ORAL JUDGMENT :
1. This is an appeal which questions legality and correctness of the judgment and order dated 16th June, 2006, rendered in Motor Accident Claim Petition No.196/2003, by Member, Motor Accident Claims Tribunal, Chandrapur. The respondent Nos.1 and 2 were the parents of the deceased girl, Pratiksha, aged about 3 years, who died in a vehicular accident, which took place on 15.10.2003 at about 1.45 p.m. at village Asala on Shegaon-Temurda Road in front of Zilla Parishad School, Asala, Tq. Warora, District Chandrapur. At that time deceased girl was squatting by the side of the road to answer nature's call and was crushed under the wheels of the offending vehicle, a truck bearing registration No.MH-34-4045. After knocking down the girl, the offending vehicle was not stopped at the spot of accident by its driver and it was taken away by the driver without caring for the child which was knocked down by it. But, some of the villagers had noted down the registration number of the vehicle and accordingly they informed the number to the parents of the deceased. The father of the deceased lodged a police report with Police Station Shegaon giving registration number of the offending vehicle as MH-34-4045. The offence punishable under Section 304-A ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:53:33 ::: J-fa814.06.odt 3/7 I.P.C. was registered against the driver of the offending vehicle. Meanwhile, the parents of the deceased filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short, "MV Act") claiming compensation for the loss they suffered on account of untimely death of their daughter, Pratiksha.
2. The claim petition was resisted by the appellant, original respondent No.1, and also by the owner and driver of the offending truck, the respondent Nos.3 and 4 in this appeal (petition has been already dismissed against respondent No.4). It was the case of respondent Nos.3 and 4 that they were owner and driver of the truck bearing registration No.MH-34-A-4045 which was insured with the appellant and it was not the truck involved in the accident in the present case. Such defence of respondent Nos.3 and 4 was based upon registration number mentioned in the F.I.R as well as spot panchanama. Similar defence was also taken by the appellant. However, on merits of the case, the Tribunal found no substance in the defence so taken and partly allowing the petition by the impugned award granted compensation of Rs.2,29,000/- together with interest at the rate of 6% p. a. from the date of petition till realization. Not being satisfied with the same, the appellant is before this Court in the present appeal.
3. I have heard learned counsel for the appellant. Nobody appears on behalf of respondent Nos.1 and 2, although duly served. The ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:53:33 ::: J-fa814.06.odt 4/7 respondent No.3 is also absent. I have gone through the record of the case including the impugned judgment and order.
3. Now, following points arise for my determination are :
i) Whether it is proved by the appellant that the truck bearing registration No.MH-34-A-4045 was not involved in the accident in the present case ?
ii) Whether the compensation granted by the Tribunal is just and proper ?
4. In order to support his argument, learned counsel for the appellant has taken me through the evidence available on record and also the documentary evidence. The documentary evidence in the nature of F.I.R. (Exh.-29) and the spot panchanama (Exh.-30) do disclose that the informant had given the registration number of the offending vehicle as MH-34-4045. There is no mention anywhere in these two documents that it were the truck bearing registration No.MH-34-A-4045 which was involved in the accident. This is also the position in another document, which is a police report viz. "AA form" (Exh.-33). But, it is significant to note that the police made investigation into the case and found that the truck involved in the accident in the present case was owned by the respondent No.3 and was insured with the appellant at the relevant time. Of course, even after getting such information, police in its 'AA form' report mentioned the registration number of the offending truck only as MH-34-4045 and not as MH-34-A-4045. If the respondent No.3 was not ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:53:33 ::: J-fa814.06.odt 5/7 the owner of the truck, whose registration number has been shown as MH-34-4045 in Exh.-33, the respondent No.3 should have entered the witness box and clarified the things before the Court accordingly. The written statement filed by him shows that he was the owner of a truck bearing No. MH-34-A-4045. If the police had ascertained the name of the owner of one truck, which was of the respondent No.3 in the present case, it is reasonable to think that the police must have done so by considering the registration number of the offending vehicle as MH-34-A-4045 and if it were not so, the name of owner of the offending vehicle would have appeared to be of a different person. Therefore, I am of the view that although the documentary evidence discloses that registration number of the offending vehicle was MH-34-4045 simplicitor without insertion of any alphabet 'A' in between, the registration number has to be considered as MH-34-A-4045 and omission of alphabet 'A' must be considered as inadvertent mistake on the part of the Police as well as the informant. The finding recorded by the Tribunal in this regard, therefore, cannot be faulted with and I confirm the same by holding that the offending vehicle involved in the accident in the present case bore registration No.MH-34-A-4045, owned by respondent No.3 and insured with appellant at the relevant time. The first point is answered accordingly.
5. As regards the quantum of compensation, I find myself in ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:53:33 ::: J-fa814.06.odt 6/7 agreement with learned counsel for the appellant that in a case where the deceased is a very small child below 10 years of age, the most reasonable way to determine the compensation would be by doing some guesswork based upon the facts of the case and assuming certain figure in lump-sum as the reasonable amount of compensation, instead of resorting to structured formula, as prescribed under schedule of Section 163-A of the MV Act. This is for the reason that it is very difficult in such cases to assess the probable income that a child may earn on growing up owing to several uncertainties involved in the development of the child. This is the view taken by the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd. vs. Syed Ibrahim and others, reported in AIR 2008 SC 103 referred to me by the learned counsel for the appellant. Following the same, I find that in the instant case the compensation determined by the Tribunal, which is based upon structured formula method, cannot be sustained in the eye of law. The compensation of Rs.2,29,000/- granted by the Tribunal certainly appears to be quite on the higher side. Therefore, there is a need for making a fair and just determination of the compensation that would be payable to the respondent Nos.1 and2. Having regard to the age of the deceased, which was of 3 years at the time of accident and also absence of any inputs about the personality and the developmental prospects of the deceased child, I am of the view that in a case like the present one, reasonable ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:53:33 ::: J-fa814.06.odt 7/7 compensation would be of no more than Rs.1,00,000/- which I do grant to respondent Nos.1 and 2 by this order, which shall be payable by the appellant and the respondent No.3 jointly and severally together with same interest as has been granted by the Tribunal for the same period, which is at the rate of 6% p.a. from the date of petition till actual realization. The second point is answered accordingly.
6. The appeal is allowed partly.
7. It is declared that respondent Nos.1 and 2 are entitled to receive total compensation of Rs.1,00,000/- inclusive of no fault liability amount together with interest at the rate of 6% p.a. from the date of petition till realization and same shall be payable by the appellant and respondent No.3 jointly and severally.
8. The appellant is permitted to withdraw that amount which is found to be in excess of the amount granted as compensation under this order.
9. The impugned judgment and award stand modified in the above terms.
10. Parties to bear their own costs.
11. Appeal is disposed of accordingly.
JUDGE okMksns ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:53:33 :::