RATNAPRABHA VITTHAL BHISE Vs. GIRISHKUMAR RUPCHAND GADIA

JUDGEMENT

(1.) THIS First Appeal is preferred by the window - Appellant, against the award passed on 29th June 1987 by the Motor Accidents Claim Tribunal Pune in Claim Application No.416 of 1983. By the said award the Tribunal dismissed the application preferred by the present appellant who is wife of her deceased husband Vitthal Bhise. It is the case of the appellant that her husband was going for Company's work by Taxi from Pune to Bombay, as he wanted to obtain foreign exchange for proceeding to England with few days from the date of the accident. Unfortunately the accident took place on Bombay Pune road at Kilometer No.49/2 at about 7.15 a.m. on 9th September 1983. The said accident took place within the jurisdiction of Vadgaon Maval police station. At the relevant time the deceased was travelling as a passenger in Taxi No.MTD 6740. The accident according to the appellants took place because of rash and negligent driving of the driver of the truck Dattatray Anantrao Renuse. The truck was insured with Respondent No.2. The appellant claim that her husband was earning Rs.2722.50 per month at the time of accident and he was 42 years old. After return from England, the deceased was to get promotion and increase in his salary. The appellant therefore claimed an amount of Rs.6,09,952.00 as compensation. In this matter the Opponent No.1 was the owner of the truck, the Opponent No.2 was the insurance company. Though both the Opponents were served, from the record it appears that Opponent No.1 remained absent and ex-parte and the second Opponent only appeared before the court without filing written statement. The trial court by its judgment and order held that the appellant proved that deceased Bhise died in the accident on account of use of motor vehicle. However, the tribunal held that the appellant failed to prove that taxi No. 6740 met with an accident due to rash and negligent driving of the truck driver. Giving the aforesaid finding the tribunal dismissed the appellant's application on 29th June 1987.

(2.) AT the outset we may point out that on the same ground the Accident Tribunal dismissed the claim of the heirs of the deceased Hasan Ali who was driving the taxi No.MTD 6740 in which at the relevant time the husband of the appellant was travelling. Against the said award the heirs of said Hasan Ali preferred First Appeal No. 1086 of 1987 and division bench of this Court by its judgment dated 9th February 1995 set aside the judgment and decree passed by the tribunal and allowed the appeal. In the said appeal this High Court has given the finding that the accident took place by rash and negligent driving of the truck driver and awarded compensation to the heirs of the deceased Hasan Ali, the driver of the taxi. Since the aforesaid judgment given by this High Court, held that the finding given by the trial court is incorrect and therefore set aside the said finding, on the basis of the same reasoning, the finding given by the tribunal in award dated 29th June 87 in the present appellant's case is also liable to be set aside, as we entirely agree with the reasoning given by the division bench and we do not see any reason to take different view.

(3.) MR .Kamat, learned counsel for the Insurance Company, respondent No.2 contended that as per the terms of the Insurance Company's policy and as per the Motor Vehicle's Act as on the date of accident the insurance company was liable only up to an amount of Rs. 1,50,000/-. In view of this we order respondent No.2, Insurance Company to deposit the amount of Rs.1,50,000/- plus interest calculated at the rate of 12% p.a. from the date of application till the date of realisation. The balance amount i.e. Rs.1 lakh plus interest at the rate of 12% p.a. from the date of application till the date of realisation will be deposited by the Respondent No.1 in the trial court. Hence this first appeal is allowed. Tribunal's award dated 29th June 1987 in Claim Application No.416 of 1983 is not aside. The respondent No.2, Insurance Company, is directed to deposit the amount of Rs.1,50,000/- with interest at 12% p.a. from the date of application till payment or realisation thereof within four week from the date of receiving certified copy of this order. Tribunal is directed to guard the interest of minors. Appellant No.2, if he is minor on the date of realisation of the aforesaid amount. No costs C.C.expedited.