The Divisional Manager vs Sushilabai And Others
2017 Latest Caselaw 2144 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                   FIRST APPEAL NO. 461 OF 2002
  WITH CA/4826/1995 IN FA/461/2002 WITH CA/626/1999 IN FA/461/2002
  WITH CA/625/1999 IN FA/461/2002 WITH CA/2053/2002 IN FA/461/2002
                        WITH CA/7726/1995



 The Oriental Insurance
 Company Limited,
 Through Branch manager,
 Nanded                                                  ...Appellant

                  versus

 1.       Sushilabai w/o Ramkishan Waghunde
          Age 29 years, Occ. Household

 2.       Surekha d/o Ramkishan Waghunde
          Age 9 years,

 3.       Suwarna d/o Ramkishan Waghunde
          Age 7 years,

 4.       Vandana d/o Ramkishan Waghunde
          Age 5 years,

 5.       Dattatraya s/o Ramkishan Waghunde
          Age minor

          The claimant Nos. 2 to 5 are u/g
          of claimant No.- the real mother

          All R/o. Suvarnakar Nagar,
          Jalna, Tq. and district Jalna

 6.       Shaikh Jaleel s/o Shaikh Hussain
          Age major, Occ. Business,
          R/o. House No. 1038,
          Sarfraj Nagar, Parbhani
          (owner of tanker No.MUP-9578)

 7.       Sarfrajkhan s/o Lalkhan
          Age 45 years,Occ. Private service
          R/o. Behind Prabhat Talkies
          Parbhani (deleted)



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 8.       The Inspector General of Police
          Bombay, through Superintendent
          of Police, at Jalna
          (the owner of police Jeep No. MZA 361)

 9.       The Constable-Driver
          Anil Prasad s/o Bhikaprasad,
          Age major, R/o. Office of
          Superintendent of Police,
          at Jalna                                          ...Respondents

                                       ...
                    Advocate for Appellant : Mr. Anil A Joshi
              Advocate for Respondents 1to 5 : Mr. R.M. Deshmukh
                                      .....

                                               CORAM : V. K. JADHAV, J.

DATED : 3rd MAY, 2017

ORAL JUDGMENT:-

1. Being aggrieved by the judgment and award dated 20.4.1995

passed by the Member, M.A.C.T. Jalna in M.A.C. No. 37 of 1990 the

original respondent No.3 insurer has preferred this appeal.

2. Brief facts giving rise to the present appeal are as follows:-

a) The deceased Ramkishan was serving as police constable

posted at Asti, Tq. Partur at the relevant time. On 9.12.1989, deceased

Ramkishan was travelling in police jeep and one tanker bearing

registration No. MUP 9578 came from opposite direction and gave dash

to the police jeep. In consequence of which, the deceased Ramkishan

had sustained severe injuries and died on the spot.

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b) The legal representations of deceased Ramkishan approached

the Tribunal by filing M.A.C.P. No. 37 of 1990 for grant of compensation

against the owner and insurer of both the vehicles. It has been

contended that deceased Ramkishan was getting salary of Rs.1514/-

p.m. and claimants were entirely depending upon him.

c) Respondent No.2 owner of the tanker has strongly resisted the

claim petition by filing written statement. It has been contented that the

accident has taken place due to rash and negligent driving of the police

jeep and driver of the tanker is not responsible for the accident.

d) The appellant/insurer has also resisted the claim petition by filing

written statement. It has been contended that the accident taken place

on account of negligence on the part of the driver of the police jeep. In

the alternate the appellant/insurer has raised a plea of contributory

negligence. It has been specifically contended that there is negligence

of 75% on the part of driver of police jeep whereas the driver of tanker is

liable to the extent of 25%.

e) The respondent No.4 has strongly resisted the claim by filing

written statement. It has been contended that the driver of the police

jeep was not responsible of the accident and the tanker driver alone is

reasonable for the accident.

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f) The claimants led oral as well as documentary evidence in

support of their contentions. The respondent No.4 has examined driver

of the police jeep.

g) The learned Member of the Tribunal has partly allowed the claim

petition and thereby directed the respondents to pay compensation of

Rs.2,50,000/- to the claimants. The Tribunal has also directed the

respondent Nos. 1 and 3 to contribute the share of 50% and respondent

Nos. 4 and 5 to contribute 50% share of compensation.

h) Being aggrieved by the same, the appellant/insurer has preferred

this appeal to the extent of negligence and quantum of compensation.

3. Learned counsel for the appellant insurer submits that the

Tribunal has not considered oral and documentary evidence in its

proper perspectives and erroneously held that both the vehicles are

equally responsible for the accident. Learned counsel submits that the

documentary evidence produced on record, unmistakenly points out that

the driver of police jeep was responsible for the accident and tanker

driver is not responsible for the accident. Learned counsel submits that

the Tribunal has awarded exorbitant amount of compensation.

4. Learned counsel for the respondents/original claimants submits

that the Tribunal has awarded just and reasonable compensation and

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on the basis of oral and documentary evidence has rightly directed the

respondents to pay compensation in equal share to the claimants.

There is no substance in the appeal and the appeal is thus liable to be

dismissed.

5. On careful perusal of evidence and the judgment and award

passed by the Tribunal, it appears that the police jeep driver Anil has

stated on oath that he was driving his vehicle in moderate speed. There

was no considerable damage to the police jeep in the accident as small

portion of rear side of the police jeep was damaged to some extent.

From his evidence, it appears that the tanker has given dash to the

police jeep on rear side. Though this witness has denied that he drove

the jeep in negligent manner and in high speed and gave dash to the

tanker, however, from the police documents, it appears that drivers of

both the vehicles, involved in the accident, are responsible for the

accident. The road at the spot of accident was straight and plain and

there was no reason for the drivers of both the vehicles to drive in such

manner to cause the accident. The learned Member of the Tribunal has

rightly held that both the drivers of the vehicles involved in the accident

are equally responsible for the accident. I do not find any fault in the

findings recorded by the Tribunal to that effect.

6. So far as the quantum of compensation is concerned, deceased

Ramkishan was getting salary of Rs.1514/- per month and he was 32

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years of old at the time of accident. Though the learned Member of the

Tribunal has not awarded compensation by applying the multiplier

method, it appears that the Tribunal has awarded just and reasonable

compensation. No interference is required. There is no merit in the

appeal. The appeal is hereby dismissed with costs. The appeal is

accordingly disposed of.

7. As per the order passed by this Court, the amount deposited by

the appellant/insurer has been transferred to the Tribunal. The

respondents/claimants are permitted to withdraw the said amount

before the Tribunal alongwith accrued interest.

8. Pending civil applications are also disposed of.

( V. K. JADHAV, J.)

rlj/