High Court

Legal Reasoning

This judgment is corrected pursuant to the speaking to the minutes of order dated 22.08.2024.{1} 906-fa-4664-2017 II IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD FIRST APPEAL NO. 4664 OF 2017Divisional Controller,N.W. Karnataka State RoadTransport Corporation,Bus Depot Manager,Bus Depot, Division, Bijapur,Tq. & Dist. Bijapur.….APPELLANT VERSUS1. Manjusha Umesh Pawar Age- 34 years, Occ- Education, R/o. Datta Nagar, In Front of Dudhsangh, Aurangabad Road, Osmanabad, Tq. & Dist. Osmanabad.2. Vishaka Umesh Pawar Age- 14 years, Occ. Education, U/g of Real Mother Non-Applicant No. 1, R/o. As above.3. Vishanavi Umesh Pawar Age- 7 years, Occ. Education, U/g of Real Mother Non-Applicant No. 1 R/o. As Above.4. Omkar Umesh Pawar Age- 7 years, Occ. Education, U/g of Real Mother Non Applicant No. 1, R/o. As Above.5. Shakuntala Vitthalrao Pawar Age- 64 years, Occ. Nil, R/o. As Above. 6. Vitthalrao Nivruttirao Pawar, Age- 69 years, Occ. Nil R/o. As above.…..RESPONDENTS…..Mr. V.D. Gunale, Advocate for AppellantMr. P.D. Dadape, Advocate for respondentsBhagyawant Punde This judgment is corrected pursuant to the speaking to the minutes of order dated 22.08.2024.{2} 906-fa-4664-2017 II CORAM : NITIN B. SURYAWANSHI, J. DATE :06th AUGUST, 2024ORAL JUDGMENT :1.By this appeal filed under section 174 of MotorVehicles Act, 1988 (for short “M.V. Act”) appellant/originalrespondent challenges judgment and award dated 06.02.2016,passed by Member, Motor Accident Claims Tribunal, Osmanabadin Motor Accident Claim Petition No. 296/2012.2.Umesh Vitthalrao Pawar, age 34 years was workingas labour in Water Supply Department of Nagar Parishad,Osmanabad. On 21.07.2012 he was going to village Ter onmotorcycle belonging to one Rahul Raibhan bearing registrationNo. MH-25-V-3900 as a pillion rider, along with AkbarRahematulla Shaikh. When the motorcycle reached near villageShingoli on National Highway No. 211 at about 11.00 am, Statetransport bus bearing registration No. KA-28-F-1709 came fromopposite direction in high speed and gave dash to the handle ofmotorcycle, due to which deceased fell on road near right siderear wheel of bus and bus ran over his head, due to which hedied on the spot. The motorcycle and Akbar were thrown awayfrom the road due to the said dash. Claimants, therefore, filedBhagyawant Punde This judgment is corrected pursuant to the speaking to the minutes of order dated 22.08.2024.{3} 906-fa-4664-2017 IIclaim petition under section 166 of M.V. Act, claimingcompensation of Rs. 32,00,000/- due to the death of deceased.3.Appellant opposed the claim petition by filingsay/written statement and claimed that it was the rider ofmotorcycle who was rash and negligent in riding motorcycle andbecause of him accident has taken place. Owner and insurer ofmotorcycle are not made party to the claim, hence claim petitionis not maintainable. Appellant prayed for dismissal of claim.4.Tribunal after recording evidence partly allowed theclaim and awarded compensation of Rs. 23,89,224/- along with9% interest per annum. Appellant is aggrieved by the quantumof compensation.5.Heard learned advocate for appellant and learnedadvocate for respondents.6.Learned advocate for the appellant strenuously urgedthat compensation awarded by the Tribunal is excessive andexorbitant. In fact, accident has taken place due to negligence ofmotorcycle rider. As the motorcycle rider, owner and insurer ofmotorcycle were not made party to the claim petition, claim wasBhagyawant Punde This judgment is corrected pursuant to the speaking to the minutes of order dated 22.08.2024.{4} 906-fa-4664-2017 IIliable to be dismissed on that ground alone. He submits thatrider of motorcycle was not examined by claimants in support oftheir claim and this aspect is ignored by the Tribunal. He furthersubmits that calculations made by the Tribunal are wrong. Infact, 1/6th deduction to be made from the earning of thedeceased is not properly calculated while assessing earning ofthe deceased. The Tribunal has committed an error in awarding50% future prospects, which is on higher side. Similarly, theTribunal has awarded excessive non pecuniary damages andtherefore, appeal deserves to be allowed and compensationawarded by the Tribunal may be reduced.7.Per contra, learned advocate for respondents/originalclaimants submits that calculations made by the Tribunal areproper. Taking into consideration the permanency granted to thedeceased, Tribunal is justified in awarding 50% towards futureprospects. He submits that order granting permanency benefit todeceased was confirmed up to the Apex Court. According to himas per the calculations of difference of salary which the deceasedwould have been entitled to receive after conferring permanencybenefit is rightly taken into consideration by the Tribunal whileawarding 50% future prospects. He submits that Tribunal hasBhagyawant Punde This judgment is corrected pursuant to the speaking to the minutes of order dated 22.08.2024.{5} 906-fa-4664-2017 IIproperly appreciated the evidence and has rightly awardedcompensation, which is not liable to be interfered with.8.Heard learned advocate for appellant and learnedadvocate for respondents at length. Perused the record.9.Record indicates that FIR of the accident was lodgedby Akbar Shaikh who was riding the motorcycle. In the FIR hehas stated that the bus was coming from the opposite side andwas proceeding towards Osmanabad and it gave dash to thehandle of motorcycle, due to which deceased who was pillionrider was thrown on the road and rear wheel of bus ran over hishead. Spot panchnama and police papers show that the busdriver was rash and negligent in driving the bus, due to whichaccident has taken place. Merely because bus driver is acquittedin a criminal case that would not help the appellant in anymanner as considerations while deciding claim petition andcriminal case are different.10.Though, appellant has examined bus driver hisevidence is rightly discarded by the Tribunal being contrary tothe police papers. If at all his version that rider was negligent inriding motorcycle was right then he would have gone andBhagyawant Punde This judgment is corrected pursuant to the speaking to the minutes of order dated 22.08.2024.{6} 906-fa-4664-2017 IIreported the accident to the police station.11.There is no merit in the submission of learnedadvocate for appellant that the Tribunal has committed an errorin calculating income of the deceased. Record indicates that bydeducting 1/6th share of deceased from the monthly income ofdeceased of Rs. 7,768/- his monthly income is rightly assessedat Rs. 6,473/-. No fault can be found with the calculations madeby the Tribunal.12.Next submission of appellant that 50% futureprospects awarded by the Tribunal is excessive is also notacceptable in the peculiar facts of the present case, as it is amatter of record that deceased was granted permanencybenefits prior to his death and as stated by learned advocate forclaimants said order is confirmed up to the Apex Court. Byplacing reliance on Munna Lal Jain and Anr. vs. Vipin KumarSharma & Anr, 2015(3) T.A.C. 1 (S.C.), the Tribunal has rightlyawarded 50% future prospects. 13.In the light of decision in Khenyei vs. New IndiaAssurance Co. Ltd. and Ors, 2015(2) T.A.C. 677 (SC), Tribunalhas rightly rejected contention of appellant that for not makingBhagyawant Punde This judgment is corrected pursuant to the speaking to the minutes of order dated 22.08.2024.{7} 906-fa-4664-2017 IIrider of the motorcycle, its owner and insurer as partyrespondents claim petition was liable to be dismissed.14.The Tribunal has properly appreciated the material onrecord and has rightly awarded compensation. No fault can befound with the reasoning adopted by the Tribunal. No case ismade out by appellant to interfere in the impugned judgmentand award. First Appeal being devoid of merit is dismissed. [NITIN B. SURYAWANSHI, J.] Bhagyawant Punde