Tatia Credit Corporation vs Bakubai Kisan Pawar & Others
2017 Latest Caselaw 2197 Bom

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                                                     913 FIRST APPEAL 702 OF 2003.odt


           THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    BENCH AT AURANGABAD.


                        FIRST APPEAL NO. 702 OF 2003

Tatia Credit Corporation,
M.G.Road, Chopada, District-Jalgaon,
Through its Partner:
Shri Suresh Anandraj Jain,
Age: Major, Occu: Business,
R/o Jalgaon (Tempo Owner)                        ... APPELLANT
                                               (Original Respondent No.1)

               V E R S U S

1)     Bakubai w/o Kisan Pawar,
       Age: Major, Occu: Household,
       R/o Khandala, Tq. Vaijapur,
       District - Aurangabad.

2)     Popat s/o Kisan Pawar,
       Age: about 33 yrs, Occu: Agril.,
       R/o. as above.

3)     Balu s/o Kisan Pawar,
       Age: about 28 yrs, Occu: Agril.,
       R/o. as above.

4)     Vilas s/o Kisan Pawar,
       Age: about 28 yrs, Occu: Agril.,
       R/o. as above.

5)     Ramesh s/o Pandurang Bodkhe,
       Age: Major, Occu: Truck Owner,
       R/o. At Post Bhoraj, Tq. Jafrabad,
       District - Jalna (Truck Owner).

6)     Ratan s/o Namdeo Telange,
       Age: about 33 yrs, Occu: Driver,
       R/o. Bharoj, Tq. Jafrabad,
       District - Jalna.




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                                                             913 FIRST APPEAL 702 OF 2003.odt



7)        Oriental Insurance Company Ltd.,
          Jalgaon, through its Manager.

8)        United India Insurance Company,
          Aurangabad.                                   ... RESPONDENTS
                                               (Resp.Nos.1 to 4 are Claimants: and
                                                 Rest Resp. are org. Respondents)

                                     ...
Mr. A. P. Bhandari, Advocate for Appellant.
Mr. V. B. Garud, Advocate for Respondent Nos.1 to 4.
Mr. Rupesh Bora, h/f Mr. P. P. Bafna, Advocate for Respondent No.7.
Mr. S. V. Kulkarni, Advocate for Respondent No.8.
                                     ...


                                            CORAM  : V. K. JADHAV, J.

                                            DATE     :  04th May, 2017.


ORAL JUDGMENT: 
 

.                  Being aggrieved by the judgment and award passed by

the learned Member of the Motor Accident Claims Tribunal,

Aurangabad dated 25th September, 1995 in MACP No.250 of 1992,

original Respondent No.1 (Tempo Owner) has preferred this appeal.

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

a) Deceased Kisan was travelling by a tempo

bearing registration No.MH-19-2148. The said

tempo was proceeding towards Vaijapur. On way,

913 FIRST APPEAL 702 OF 2003.odt

the said tempo collided with one truck bearing

registration No.MCB-8833 coming from the

opposite direction. In consequence of which,

three persons died including the driver of the

tempo. The legal representatives of deceased

Kisan have filed MACP No.250 of 1992 for grant

of compensation under the various heads. It has

been contended that deceased Kisan was 45

years of age at the time of his accidental death.

He was cultivating his agricultural land and he was

also doing the labour work in the lands of others.

b) Appellant / owner of the tempo has strongly

resisted the claim by filing the written statement. It

has been contended that the said tempo has been

sold to one Ranganath Jagannath Borde on 16 th

April, 1991 i.e. prior to the accident. It has also

been contended that the vehicle was insured with

Respondent / Oriental Insurance Company and as

such, the Appellant / owner is not liable to pay the

compensation. The other Respondents excluding

913 FIRST APPEAL 702 OF 2003.odt

the Insurer of the vehicle tempo also resisted the

claim petition by raising the appropriate defence.

However, the Respondent / Insurer of the vehicle

tempo has raised the defence that the vehicle

tempo involved in the accident is not at all insured

with it and as such, Respondent / Insurer is not

liable to pay the compensation.

c) The learned Member of the Tribunal vide its

impugned judgment and award directed

Respondent No.1 (Appellant herein) to pay

Rs.26,000/- alongwith interest at the rate of 12%

per annum from the date of filing of the claim

petition till realization and further directed

Respondent Nos.2, 3 and 6 to pay jointly and

severally an amount of Rs.39,000/- alongwith the

same rate of interest. Hence, this appeal.

3 The learned counsel for Appellant submits that the

learned Member of Tribunal has erroneously considered the

contributory negligence on the part of the driver of tempo. In fact, the

913 FIRST APPEAL 702 OF 2003.odt

driver of the truck was entirely responsible for the accident. The

learned counsel submits that the Tribunal has erroneously considered

the percentage of the negligence inter-se between drivers of two

vehicles at 40% x 60%. The learned counsel submits that the

Tribunal has awarded the interest at the rate of 12% instead of 6%

and the same may be corrected.

4 The learned counsel for Respondents / Claimants submits

that the Tribunal has awarded just and reasonable compensation and

considering the evidence on record rightly fixed the inter-se liability on

the Respondents. No interference is required.

5 The learned counsel for Respondent / Insurer submits that

the Tribunal has awarded just and reasonable compensation and

fixed the liability on the owners of the vehicles as per the evidence on

record. No interference is required.

6 On perusal of the evidence and the judgment and award

passed by the Tribunal, it appears that the Tribunal has rightly

considered the negligence on the part of the drivers of both the

vehicles involved in the accident to the extent of 40% on the part of

the driver of the tempo and 60% on the part of the owner of the truck.

913 FIRST APPEAL 702 OF 2003.odt

I do not find any fault in the findings recorded by the Tribunal and as

such, no interference is required in that.

7 So far as the rate of interest as awarded by the Tribunal, it

appears that the Tribunal has awarded the compensation with

excessive rate of interest. The learned counsel for Respondents /

Claimants has pointed out that other joint tort-feasor has already

deposited the amount alongwith interest at the rate of 12% and if the

order is modified to that extent, the Claimants will have to refund the

amount. Considering the entire evidence on record and the fact that

the other joint tort-feasor has already deposited the amount alongwith

interest at the rate as awarded by the Tribunal, the Appellant shall pay

the interest at the rate as awarded by the Tribunal from the date of

application till the judgment and award passed by the Tribunal and

thereafter, at the rate of 6% per annum till realization of the entire

amount. Hence, the following order.

O R D E R

I. The appeal is, hereby partly allowed. No costs.

II. The judgment and award passed by the learned

Member of the Motor Accident Claims Tribunal,

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Aurangabad dated 25th September, 1995 in MACP

No.250 of 1992, is hereby modified in the following

manner:

"Respondent No.1 shall deposit an amount of Rs.26,000/- (Rupees Twenty-Six Thousand Only) alongwith interest at the rate as awarded by the Tribunal from the date of application till the judgment and award passed by the Tribunal and thereafter, at the rate of 6% per annum till realization of the entire amount."

III. Rest of the judgment and award stands confirmed.

IV. Award be drawn up as per the above modification.

V. If any amount is deposited by the Appellant in terms

of the judgment and award passed by the Tribunal,

the same shall be the part of the judgment and

award after modification.

VI. The appeal is accordingly disposed of.

[ V. K. JADHAV, J. ] ndm