DIVISIONAL MANAGER Vs. SHAFINJAHA

JUDGEMENT

(1.) This appeal under Sec. 173 of the Motor Vehicles Act, 1988 ( for short, the said Act) has been filed by the insurer challenging the award dated 01.07.2016 passed by the Motor Accident Claims Tribunal, Akola in M.A.C.P.No.64/2013.

(2.) The facts in brief are that it is the case of the respondents nos. 1 to 7 that on 15.02.2013 the father of respondent nos. 1 to 4 and husband of respondent no.5 was travelled on motor-cycle from Akola to Kapsi along with two pillion riders when a Maruti car coming from the opposite side which was owned by the respondent no.8 and insured with the present appellant gave a dash to the said motor-cycle. As a result of that accident, the father of respondent nos. 1 to 4 suffered injuries and succumbed to the same. On that premise, Claim Petition under Sec. 166 of the said Act came to be filed. According to the claimants, the deceased was earning Rs.27,000.00 per month and was aged about 35 years when the accident took place. The compensation was accordingly sought on that basis. The owner of the car denied that it was being driven rashly and negligently. The appellant in its written statement at Exhibit 18 took a plea that there were two pillion riders on the motor-cycle and that factor had resulted in the said accident. It was further pleaded that the driver of the car did not posses a valid driving licence. Hence, there was a breach of policy condition. After considering the evidence on record, the learned Member of the Claims Tribunal came to the conclusion that the driver of the car was rash and negligent while driving the said vehicle. The compensation was assessed at Rs.33,85,000.00. Being aggrieved by the quantum of compensation as granted the insurer has filed the present appeal.

(3.) Shri C.A. Anthony, learned counsel for the appellant submitted that the learned Member of the Claims Tribunal committed an error in holding that the driver of the car alone was rash and negligent in driving the said car. He submitted that as per the First Information Report at Exhibit 37 there were two pillion riders along with the deceased. Under Sec. 128 of the said Act, only a single pillion rider was permissible and as there were two pillion riders that aspect had contributed to the accident. Hence the driver of the car alone could not be held to be rash and negligent. The motor-cycle had also contributed to the said accident. Despite the fact that this plea was raised before the Claims Tribunal, the same has not been taken into consideration while adjudicating the claim for compensation. In that regard, the learned counsel placed reliance on the decisions in Kanti Devi Sikarwar Vs. Om Prakash, 2006 4 MPLJ 291 and Angrejo Devi & Ors. Vs. Jai Parkash & Ors., 2014 6 LawHerald(P&H) 5314. It was then submitted that the compensation as assessed was on higher side. There was no evidence as to the income of the deceased and merely on the basis of oral evidence it was found that the income of the deceased was Rs.14,400.00 per month. In absence of any documentary material in that regard the amount of income deserves to be reduced suitably. Further the amount towards future prospects has taken at 50% when in fact it should have been taken 40% considering the law as laid down in National Insurance Company Ltd. Vs. Pranay Sethi, 2018 3 MhLJ 70. It was thus submitted that on these counts the quantum of compensation deserves to be reduced.