The State Of Mah vs Mohan Manohar Deshmukh
2016 Latest Caselaw 1243 Bom

                                             1               F.A. NO.1368 of 2003

                 
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                            
                         BENCH AT AURANGABAD




                                                    
                                   FIRST APPEAL NO.1368 OF 2003


      1.       The Executive Engineer




                                                   
               Public Health Division, Osmanabad.

      2.       Syed Ahmed s/o Syed Amir
               Age major, Occup. Driver,
               Both C/o Executive Engineers,




                                           
               PWD, Nilanga, Dist. Latur.        
                              ig               ..Appellants
                                          (Ori. respondents)
                    Versus
                            
               Mohan S/o Manohar Deshmukh
               Age: 40 years, Occu.: Business 
               and Agri. R/o.Rajegaon now at 
               Killari, Tq. Ausa, Dist.latur.
      

                                                          .. Respondent
                                                        (Ori. Claimant)
   



                              ...
      Mr.C.V.Dharurkar, AGP for Respondent No.1
      Mr.S.S. Manale, Advocate for Respondent /Sole.
                             ...





                                        CORAM: P.R.BORA, J.

DATE : 05.04.2016 ***

ORAL JUDGMENT:

1. Aggrieved by the judgment and award passed in

M.A.C.P.No.279/1998 on 23rd April, 2002, by the Motor

Accident Claims Tribunal at Latur, respondents therein have

preferred the present appeal.

2 F.A. NO.1368 of 2003

2. Respondent herein had filed the aforesaid petition

claiming compensation for the injuries caused to him in a

vehicular accident happened on 4/3/1998 having involvement

of a Car owned by the present appellant. Respondent /

claimant had claimed the compensation of Rs.4,50,000/-. It

was the case of the respondent that because of the amputation

suffered to his right leg, he has been incapacitated to do any

work and has thus incurred hundred per cent disability. It was

a case of respondent that he was running a grocery shop and

was earning Rs.5,000/- per month. He had, therefore, claimed

compensation of Rs.4,50,000/- from the owner of the offending

car. The owner of the vehicle i.e. the present appellant had

raised a defense of contributory negligence along with some

other defenses. One witness was also examined by the owner

to prove contributory negligence on the part of the claimant.

The income of the claimant was also disputed. The Tribunal,

however, on the assessment of oral and documentary evidence

brought before it, allowed the claim petition in part and

awarded compensation amounting to Rs.1,75,000/- to the

claimant along with 9% interest thereon from the date of filing

of the petition till its realization. The said award is impugned

in the present appeal.

3 F.A. NO.1368 of 2003

3. Shri C.V.Dharurkar, learned A.G.P. appearing for

the appellant, assailed the impugned judgment on various

grounds. Learned A.G.P. submitted that the evidence adduced

before the Tribunal was not properly appreciated by the

Tribunal leading to improper assessment of the amount of

compensation. Learned A.G.P. submitted that, it was writ

large that the claimant has contributed the occurrence of the

alleged accident vide his negligence, however, that aspect and

evidence adduced in that regard has been totally overlooked by

the Tribunal. Learned A.G.P. further submitted that the learned

Tribunal has wrongly held that the claimant has incurred 70 per

cent permanent disablement. Learned A.G.P. submitted that

the claimant had not adduced sufficient evidence in respect of

the alleged disability incurred by him. Learned A.G.P. further

submitted that without there being any evidence as regards the

income of the claimant, the learned Tribunal, on surmises, has

assessed the compensation.

4. Learned Counsel appearing for the claimant

submitted that, in fact, the compensation so awarded by the

Tribunal is on lower side. Learned Counsel submitted that the

claimant had filed an appeal for enhancement of the said

4 F.A. NO.1368 of 2003

compensation, however, unfortunately, the said appeal was

dismissed because the claimant could not pay the requisite

Court fee. Learned Counsel submitted that having regard to

the disability incurred by the claimant, the Tribunal ought to

have allowed the claim so filed by the claimant in toto. The

learned Counsel, therefore, prayed for dismissal of the present

appeal.

5. I

have carefully considered the submissions

advanced by the learned A.G.P. and learned Counsel appearing

for the claimants. I have also gone through the record of the

case and the evidence adduced in the matter. In so far as the

first objection raised by the appellant that, in occurrence of the

accident, the claimant had also contributed by his negligence is

concerned, the evidence on record is not supporting the case of

the appellants. The Tribunal has observed that the witness

examined on behalf of the owner i.e. the present appellants did

not depose before the Court that the motor cyclist came to

wrong side and gave dash to the car; what he stated was that

motor cyclist lost balance and in the process gave dash to the

right side portion of the car. Learned Tribunal has further

discussed as to how the accident had occurred and based on

such discussion has recorded conclusion that no blame can be

5 F.A. NO.1368 of 2003

attributed on the part of the motor cyclist in occurrence of the

alleged accident. I do not find any error in the finding so

recorded. Even in the appeal no such material is brought to

my notice so as to record any different conclusion. In so far as

the other aspects are concerned, it appears to me that the

Tribunal has taken a very just and moderate view. It does not

appear that the Tribunal has committed any error in assessing

the compensation. The compensation so awarded by the

Tribunal, in no case, can be said to be exorbitant or

unreasonable. I see no reason for causing any interference in

the impugned judgment and award.

6. In the result, the appeal fails and is accordingly

dismissed.

7. The original claimant i.e. respondent herein is

allowed to withdraw the amount, deposited either in this Court

or with the Tribunal, or which may be invested in the fixed

deposit receipt, along with the interest accrued thereon.

(P.R.BORA) JUDGE

...

AGP/1368-03fa