Smt. Shakuntala Hindurao Kumbhar and Ors v. Shri. Vilas Balkrishna Ubare and Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION FIRST APPEAL NO. 1195 OF 2013

¶1Shakuntala Hindurao Kumbhar ) Aged: 40 years, Occ: Housewife )

¶2Swati Hindurao Kumbhar ) Aged: 21 years, Occ: Housewife )

¶3Sheetal Hindurao Kumbhar ) Aged: 19 years, Occ: Housewife )

¶4Shubham Hindurao Kumbhar ) Aged: 19 years, Occ: Housewife )

¶5Harshvardhan Hindurao Kumbhar ) Aged: 08 years, Occ: Housewife )

¶5Rajvardhan Hindurao Kumbhar ) Aged: 08 years, Occ: Housewife ) Appellant No.1 is natural guardian ) of Appellant Nos. 4 to 6. ) All resident of Plot No.B/2-1, ) Pandurang Nagari, Devkar Panand, ) Kolhapur. ) ….Appellants (Orig.Claimants) Versus

¶1Vilas Balkrushna Ubare ) Aged: 50 years, Occ: Business ) R/o. 258, Bhagyarekha, R. K. Nagar, ) At Post. Morewadi, Tal: Karveer ) Dist. Kolhapur. ) SHANTANU SHANKARSA DHUDUM by SHANTANU SHANKARSA DHUDUM Date: 2024.02.13 07:14:20 +0530

¶2Cholemandal M. S. General Insurance ) Company Limited ) 1446, 13/C, Ward, 5th Floor, ) Empire Tower, Opp. Titan Showroom ) Dasara Chowk, Kolhapur. ) ….Respondents (Org. Respondents) -----Mr. Jayant j. bARDESKAR, Advocate for the Appellant. Mr. Rajesh Kanojia, Advocate for the Respondent Nos. 1 & 2. -----

CORAM : SHIVKUMAR DIGE, J.

DATE : 29th JANUARY, 2024.

Oral Judgment. :

¶1The issues involved in this appeal are contributory negligence of 50% fied on the deceased and consortium amount awarded on lower side.

¶2It is contention of learned counsel for the Appellants/Claimants that accident occurred due to sole negligence of the driver of ofending Santro Car but this fact is not considered by the Tribunal and has fied 50% contributory negligence on the deceased, which is erroneous. Learned counsel further submitted that the Tribunal has awarded consortium amount on lower side, it be awarded. Hence, requested to allow the Appeal.

¶3It is contention of learned counsel for the Respondent No.2/Insurance Company that it has come on record that deceased was riding on motorcycle and while over taking tractor trolly, the deceased gave dash to the Santro Car. There was no negligence of the driver of Santro Car but, Tribunal has fied 50% liability on Santro car. Learned counsel further submitted that accident occurred due to sole negligence of the deceased. The order passed by the Tribunal is legal and valid and no interference is required in it.

¶4I have heard both learned counsel. Perused judgment and order passed by the Motor Accident Claims Tribunal, Kolhapur (for short "the Tribunal").

¶5It is claimant's case that on 8th February, 2009 deceased Hindurao Kumbhar was riding on his motorcycle registration No. MH-09-BG-5066 from village Talve to Kolhapur, at that time one tractor trolly was proceeding ahead of his motorcycle, he tried to over take the said tractor by giving proper indicator. When, he was proceedings ahead, the Santro Car which was coming from opposite direction came in eicessive and high speed and it was being driven rashly and negligently by the driver of the car and gave dash to the motorcycle of the deceased. The said car dragged motorcycle of the deceased for few distance and ran away. Due to dash the deceased sustained injuries and died on the spot. The ofence was registered against the driver of Santro Car.

¶6To prove the defense, the driver of Santro Car Tushar Ubare eiamine himself at Eihibit-63, he has stated that on the day of accident, he was driving the said car in moderate speed on Ratnagiri - Kolhapur road. At the relevant time, one person riding on motorcycle suddenly came from backside of tractor trolly and gave dash to his car. By giving dash the said motorcycle rider fell on ground. Due to fear of people he ran away from the accident place. To prove the negligence of car driver, the claimants have eiamined Baburao Chaughule eye witness to the incident, he has stated that he saw the accident. At the relevant time, he was going on the said road, he saw that one motorcycle tried to over take the tractor trolly at that time one Santro Car came from opposite direction in rash and negligently manner and gave dash to the motorcycle of the deceased and dragged him for some distance and then ran away. He has stated that accident occurred due to negligence of the car driver. Nothing elicited in the cross-eiamination of this witness to disbelieve his evidence.

¶7While dealing with the issue of negligence, the Tribunal has considered that there was 50% negligence of the car driver and 50% negligence of the deceased in the said accident. I am unable to understand the observations of the Tribunal regarding 50% negligence of the deceased as, the eye witness Baburao Chaughule, who is independent witness, who has seen the accident, has stated that accident occurred due to sole negligence of the driver of ofending car. Moreover, it has come on record that ofending car dragged the deceased for some distance. It shows that the ofending car was in high and eicessive speed and the driver of ofending car could not control his car immediately. The spot panchanama shows that there were brake mark of the Santro Car of 10 feets but, this fact is not considered by the Tribunal.

¶8Considering the evidence on record, I hold that there was negligence of 75% of the driver of ofending car and 25% of the deceased instead of 50% as held by the Tribunal. While awarding the compensation, the Tribunal has awarded consortium amount on lower side. As per the view of Hon'ble Apei Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram, 2018 ACJ 2782 (SC), each claimant is entitled for Rs.48,000/- for consortium amount and Rs.18,000/- for funeral eipenses and Rs.18,000/- for loss of estate.

¶9Considering the above calculations, the claimants are entitled for following compensation. Monthly Income Rs.5993/-Annual Income Rs.5993/-X 12 Rs.71,916/-Yearly income of LIC Rs.32,070/-Yearly income from agriculture Rs.20,000/-Total Yearly Income Rs.1,23,986/-Add: 10% future prospects Rs.12,398/-Total Rs.1,36,384/-1/3 deduction Rs.34,096/-Total Income Rs.1,02,288/-Multiplier Rs.1,02,288/- X 11 Rs.11,25,168/-Deduction of amount received from LIC Rs.1,00,000/-Total Rs.10,25,168/-Consortium Rs.48,000/-X 6 (claimants) Rs.2,88,000/-Funeral Expenses Rs.18,000/-Loss of estate Rs.18,000/-Total Rs.13,49,168/-Deduction 25% negligence of deceased Rs.3,37,292/-Total Compensation Rs.10,11,876/-Less awarded by the Tribunal Rs.5,77,239/-Enhanced amount Rs.4,34,637/-

¶10In view of above, I pass following order; ORDER i. Appeal is allowed. ii. The claimants are entitled for enhanced amount of Rs.4,34,637 @ 7.5% per annum from date of fling claim petition till realisation of the amount, out of this amount Rs.3,24,000/- is consortium amount. The claimants are entitled @ 7.5% interest on this amount from 1st November, 2017, till realisation of the amount. iii. The Respondent No.2/Insurance Company shall deposit the enhanced amount along with accrued interest thereon, within sii weeks after receipt of the order. iv. The Claimants are permitted to withdraw the deposited amount along with accrued interest thereon.

¶11All pending applications, if any, stand disposed of. (SHIVKUMAR DIGE, J.)