Bombay High Court
United India Insurance Company ... vs Subhada Wd/O Ajay Wajpe & Others on 4 May, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
First Appeal No.114 of 2005
United India Insurance Company
Limited, through its Branch
Manager, Branch at Yavatmal,
Mahajan Wadi Chowk,
Yavatmal. ... Appellant/
Ori. Non-Applicant
No.3 on R.A.
Versus
1. Smt. Subhada wd/o Ajay Wajpe,
Aged about 36 years,
Occupation - Household work.
2. Chaityanna s/o Ajay Wajpe,
Aged about 13 years,
Minor through the
Non-Respondent No.1 - Natural
Guardian Mother.
2A. Anurag s/o Ajay Wajpe,
Aged about 10 years,
Minor, through natural
guardian mother Respondent No.1.
3. Sou. Usha Suresh Wajpe,
Aged about 66 years,
Occupation - Household Work,
Respondent Nos.1 to 3, All residents
of Tilakwadi, Yavatmal,
Tq. & Distt. Yavatmal.
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*4. Abdul Sattar s/o Ahmad Mehboob,
Aged about 49 years,
Occupation - Truck Driver,
R/o Gazipur, Distt. Gulbrga
(Karnatak).
*5. Mahadeo s/o Yellppa Manganewar,
R/o Dhallurgaon, Tq. Aland,
Distt. Gulbarga (Karnatak).
6. National Insurance Company
Limited, through its Branch Office
at Samra Complex, Jaisthamba
Chowk, Amravati, Distt. Amravati. ... Respondents/
ig Nos.1 to 3
Ori. Applicants on
R.A. and Nos.4, 5 and
6. Ori. Non-Applicant
Nos.1, 2 and 4 on R.A.
(* Appeal dismissed in default against R-4 and 5 as per Registrar (J)
Order dated 11-10-2011).
Shri S.N. Dhanagare, Advocate for Appellant.
Shri S.C. Bhalerao, Advocate for Respondent Nos.1, 2, 2A and 3.
Ms Vaishali Paranjape, Advocate, for Smt. Smita P. Deshpande,
Advocate for Respondent No.6.
Coram : R.K. Deshpande, J.
Dated : 4th May, 2016
Oral Judgment :
1. In Motor Accident Claim No.82 of 1996, the Motor Accident
Claims Tribunal at Yavatmal has passed an award on 6-10-2004
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granting compensation of Rs.9,38,000/- to the claimants and holding
the owner, driver and the insurer of the offending vehicle, i.e. Truck
bearing registration No.KA/32-3585 as jointly and severally liable to
pay the said amount along with interest at the rate of 9% per annum
from the date of the application till its realization. The United India
Insurance Co. Ltd., which is the insurer of the said Truck, is before this
Court in this appeal.
2.
The Tribunal has recorded the finding that the driver of the
offending Truck was rash and negligent in driving the said Truck,
which had resulted in the accident occurred on 12-6-1995 at about
1.30 a.m. on Yavatmal-Darwah Road. The deceased was riding Bajaj
Kawasaki Motor Cycle, bearing registration No.MH-29/A-2033, which
was dashed by the offending Truck. The deceased was working in the
State Bank of India, Main Branch at Yavatmal, as Cashier-cum-Clerk
and his average monthly income was worked out to Rs.7,650/- in the
salary sheet produced on record on the basis of the decision of the
Apex Court in the case of General Manager, Kerala State Road
Transport Corporation, Trivandrum v. Susamma Thomas (Mrs) and
others, reported in (1994) 2 SCC 176.
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3. Shri Dhanagare, the learned counsel appearing for the
appellant-Insurance Company, has urged that it is a case of
contributory negligence and the Tribunal could not have held that the
driver of the Truck was solely responsible for the accident in question.
He submits that the monthly income of the deceased taken into
consideration by the Tribunal is also excessive.
4. The points for determination are as under :
(i) Whether the Tribunal has committed an error in
holding that the driver of the offending vehicle, i.e. Truck
bearing registration No.KA-32/3585, was solely responsible
for rash and negligent driving the Truck?, and
(ii) Whether the compensation awarded by the Tribunal is
excessive?
5. The relevant documents on the question of contributory
negligence produced on record are the spot panchanama at Exhibit 44,
and the FIR at Exhibit 66. The eye-witness Sahebrao Bhaurao Londhe
has entered the witness-box and deposed at Exhibit 54. The offending
Truck was going from Yavatmal to Lohara from east to west. The spot
panchanama indicates that the front wheel of the offending vehicle on
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the side of the cleaner was at the distance of 4 ft. from the southern
side of the road, whereas the other front wheel on the side of driver
was at the distance of 9 ft. from the northern side of the road. The
width of the road was 20 ft. The eye-witness-Sahebrao Bhaurao
Londhe examined has deposed that the offending Truck was coming in
a high speed with full beam lights and it dashed the motor cycle,
which was going from the left side of the road. There is no cross-
examination of this eye-witness, and keeping in view the spot
panchanama, the FIR, and the evidence of this sole eye-witness, it
cannot be said that the Tribunal has committed an error in holding
that the driver of the offending Truck was rash and negligent in
driving the Truck. It was not not a case of contributory negligence, as
has been urged. Point No.(i) is answered accordingly.
6. On the question of quantum of compensation, the deceased
was the employee of the State Bank of India, the salary sheet was
produced on record, and the claim has been substantiated. Thus, no
error has been pointed out in awarding such compensation. Point
No.(ii) is answered accordingly.
7. In view of above, this appeal is dismissed with no order as to
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costs. If the appellant-Insurance Company has deposited any amount
either in this Court or in the Tribunal, the same shall be permitted to
be withdrawn by the claimants along with interest, if any accrued
thereon.
JUDGE.
Lanjewar
