Smt.Shyla Parambaloth ... vs The New India Assurance Company ...
2021 Latest Caselaw 8703 Bom

P.H. Jayani                                                   04 CAF2904.2018.doc

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

                       CIVIL APPLICATION NO. 2904 OF 2018
                                       IN
                          FIRST APPEAL NO. 1237 OF 2019

Shyla Parambaloth Joseph and anr.                                .... Applicants

In the matter between :-
The New India Assurance Company
Limited                                                          .... Appellant
           v/s.
Shyla Parambaloth Joseph and anr.                                .... Respondents

Mrs. Rina Kundu for the Applicants.
Ms. Deepika Prabhale i/b. Res Juris for the Respondents.


                                   CORAM: SMT. ANUJA PRABHUDESSAI, J.

DATED : 02nd JULY, 2021.

P. C. :-

. The Applicants have filed this Civil Application for withdrawal of

compensation deposited by the Appellant - Insurance Company

pursuant to the judgment and award dated 30/03/2016 passed by the

Member, MACT, Kalyan in MACP No.144/2007. By the impugned

judgment, the Claims Tribunal has computed compensation at

Rs.21,68,624/- and after deducting 60% towards contributory

negligence of the deceased, the Tribunal has awarded compensation of

Rs.8,67,450/- to the Applicants-Claimants.

P.H. Jayani 04 CAF2904.2018.doc

2. Ms. Deepika Prabhale, learned counsel for the Appellant -

Insurance Company vehemently opposes to the payment of the

compensation to the Applicants on the ground that the accident was

caused solely due to rash and negligent driving by the deceased

himself. She submits that the FIR was also lodged against the deceased

for driving the motorcycle in rash and negligent manner.

3. The Applicants-Claimants are the parents of the deceased who

expired in a motor vehicular accident on 09/07/2005. The Tribunal

has recorded a finding that a vehicle bearing truck no.MH-18/M-2491

had turned turtle on the road as a result the road was blocked. It is in

evidence that the motorcycle of the deceased dashed against the said

truck which had turned turtle on the road. The only negligence

attributed to the deceased is that one of the police man on the

patrolling duty had flashed torch light as to signal to the deceased

about obstruction on the road. The Tribunal has recorded a finding that

mere flashing torch light was not sufficient to alert the deceased. The

Tribunal has also noted that the driver of the truck had not put any

signal or obstruction on the road to indicate that the truck had turned

turtle on the road. Despite these observations, the Tribunal has

deducted 60% towards contributory negligence of the deceased.

P.H. Jayani 04 CAF2904.2018.doc

4. Prima facie, the deduction of 60% appears to be on unreasonable.

Considering this aspect and considering the reasons stated by the

Applicants in the Application for withdrawal, 50% of the compensation

deposited by the Appellant - Insurance Company along with

proportionate interest is ordered to be paid to the Applicants in equal

proportion. Suffice it to say that that the withdrawal shall be subject

to the final outcome of the Appeal. The Applicants shall give an

undertaking before the Tribunal that they shall abide by the order that

may be passed in the Appeal.

5. Civil Application stands disposed of.

(SMT. ANUJA PRABHUDESSAI, J.)