The New India Assurance Co. Ltd. ... vs Smt. Manjusha Wd/O Pramod Bawane ...
2022 Latest Caselaw 12866 Bom

                            1               416.FA.146-2017 JUDGMENT.odt




    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              NAGPUR BENCH : NAGPUR

              FIRST APPEAL NO. 146 OF 2017


   The New India Assurance Company
   Limited,   Through      its  Regional
   Manager, Regional Office,
   Dr. Ambedkar Bhavan, M.E.C.L.
   Premises, 4th Floor, High Land Drive,
   Seminary Hills, Nagpur                      APPELLANT

     Versus

1. Smt.   Manjusha      Wd/o       Pramod
   Bawane,
   Aged about 28 years,


2. Shiv S/o Pramod Bawane,
   Aged about 4 years,
   Respondent No.2 minor, through his
   Guardian mother, Respondent No.1.


3. Shankar S/o Tulshiram Bawane,
   Aged about 61 years,


4. Sau. Suman W/o Shankar Bawane,
   Aged about 57 years,
   All R/o FDCM Colony, Ballarpur,
   Tahsil Ballarpur, District Chandrapur.


5. Amrapal Singh S/o Triloksingh
   Gandhi,
   R/o Indian Road Lines, Fulchur Road
   Gondia, Tahsil and District Gondia.         RESPONDENTS
                                 2             416.FA.146-2017 JUDGMENT.odt




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Mr. M.B. Joshi, Advocate for the Appellant.

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                     CORAM : AVINASH G. GHAROTE, J.

                     DATED     : 12th DECEMBER, 2022.

ORAL JUDGMENT :-

Heard Mr. Joshi, learned counsel for the appellant.

None appears for the respondents.

2. The appeal is the behest of the appellant/Insurance

Company challenges the judgment and award dated 14.10.2016

passed by the learned MACT Chandrapur in M.A.C.P.

No. 102/2014.

3. Mr. Joshi, learned counsel for the appellant, resist

on two grounds, (i) that there was a contributory negligence on

behalf of the deceased and (ii) the quantum of maintenance

awarded by the learned Tribunal was exorbitant.

4. Based upon the aforesaid submissions, the following

question arises:

                                     3               416.FA.146-2017 JUDGMENT.odt




(i)          Whether the award of the learned Tribunal needs

interference on the ground of contributory negligence and

quantum?

5. Insofar as the plea regarding contributory

negligence is concerned, the accident had taken place on

12.07.2014 at about 21.30 hours when the vehicle (Indica Car)

bearing No. MH-34/AA-3732 being driven by the deceased

Pramod Shankar Bawane on the Gadchiroli to Ballarpur road

met with an accident near Village Chimdha, Tahsil Mul, District

Chandrapur with the Truck bearing registration No. MH-34/K-

5329 which is claimed to have dashed the vehicle by coming on

the wrong side in the process of overtaking another truck in

front of it. The age of the deceased being 34 years at the time of

his demise, is not disputed. Nor it is disputed, that the deceased

was doing the business of decoration and pendal work and was

also a driver. The defence of the appellant/Insurance Company

was that the truck was not at all involved in the accident, as it

was not on the spot at the time of alleged incident, and

therefore, denied its liability. On behalf of the

appellant/Insurance Company, no witnesses have been 4 416.FA.146-2017 JUDGMENT.odt

examined at all and only the documents on record exhibited by

the claimants have been relied upon, to substantiate the above

pleas.

6. The learned Tribunal, while considering the factum

of incident, has relied upon the spot panchnama at Exh. 37 to

hold, that it categorically shows that the offending truck had

slid down the road by coming from the wrong side of the road

and the skid marks of the Inidigo Car as seen on the spot of the

incident which indicate, that the driver applied brakes to avoid

the incident, however the truck coming from the opposite

direction on the wrong side dashed against it causing the

fatality. In absence of any evidence in rebuttal, the plea of

contributory negligence, is clearly not borne out from the

evidence on record including the spot panchnama at Exh. 37,

considering which, the plea of contributory negligence has

rightly been rejected.

7. That takes me to the question of quantum. Though a

plea was raised by the claimants, that the earning of the

deceased was Rs. 10,000/- per month, the evidence of PW-2 5 416.FA.146-2017 JUDGMENT.odt

Vinod Tukaram Vaidya indicates, that the deceased was

employed by him as a driver for the Tata Indigo Car, for the

monthly remuneration of Rs. 4,000/- per month with Rs.50/-

per day additionally. Insofar as, the plea that the deceased was

doing the work of pendal and decoration, no documents have

been placed on record, and therefore, the learned Tribunal, has

rightly rejected the plea and by relying upon the evidence of

PW-2 Vinod, has granted a compensation by accepting the plea

that the deceased was earning a salary of Rs. 4,000/- per

month. That being the position, I do not see any cause to

interfere in the well reasoned judgment of the learned Tribunal,

as the fact that the vehicle was insured, was not disputed.

8. The appeal is therefore dismissed. No costs.

9. Pending applications, if any, shall stand disposed of

accordingly.

( AVINASH G. GHAROTE, J.)

Signed By:SHRIKANT S.D.Bhimte DAMODHAR BHIMTE

Signing Date:14.12.2022 17:42