JUDGMENT :

1. This is an Appeal filed under Section 173 of the Motor Vehicles Act, 1988 (the “M. V. Act”) impugning the judgment and award dated 24th August 2016 passed by the Motor Accident Claims Tribunal, Alibaug (the “M.A.C.T.”), directing Appellant and Respondent no.5, owner of the offending vehicle, to jointly and severally pay a sum of Rs.56,48,374/- together with interest at the rate of 7 percent per annum.

2. In view of order dated 3rd October, 2022, this Appeal is being finally heard at the stage of admission on the basis of compilation of documents filed on behalf of the Appellant.

3. The brief facts are that on 4th February 2009, at about 3.00 p.m., one Mr.Tanaji Bhoir was riding a motorcycle bearing No.MH-06-V-626 along with his friend, pillion rider named Mr.Harishchandra Pingale and while intending to take a right turn for Mouje Kalate on NH4 (old Mumbai – Pune Highway) gave right light indication to the vehicles behind, when the offending motorcycle bearing No.MH-06-AT-7975 insured with the Appellant Insurance Company, gave a forceful dash from behind in which mishap Tanaji Bhoir sustained serious injuries, and succumbed to the injuries in the hospital while taking treatment.

4. The widow, parents and minor children of the deceased Tanaji filed a Claim Application before the M.A.C.T. under Section 166 of the M. V. Act on 31st March 2009 for a compensation of Rs.1.25 Crores and the M.A.C.T. has awarded a sum of Rs.56,48,374/- along with interest at the rate of 7 percent per annum which has been accepted by the claimants, as admittedly, no appeal has been filed by them.

5. However, the Insurance Company, being aggrieved by the said judgment and award, has filed this Appeal.

6. Ms. Varsha Chavan, learned Counsel for the Appellant Insurance Company, does not seriously dispute that there was negligence on the part of the driver of the offending vehicle as held by the Tribunal based on statements recorded, First Information Report and Jabab, which led to the accident causing the death of Mr. Tanaji Bhoir, however she submits that the Insurance company is primarily dissatisfied and aggrieved on the issue of quantum primarily on the following grounds (in respect of which Compilation of Documents has been filed on behalf Appellant Insurance Company on 11th October, 2022.) :

(a) Whether trial Court was correct in considering income from transport business when there are no pleadings to that effect?

(b) Whether the trial Court was correct in discarding a clear admission in the cross examination that on the date of accident, the deceased was not employed and already resigned from his previous job ?

7. Learned Counsel for the Appellant Insurance Company, would submit that even though there are no pleadings or evidence led before the trial Court with respect to the deceased’s income from transport business, the trial Court has considered the same in awarding compensation. The trial Court has failed to appreciate the contradiction in the claimants’ evidence. In the Claim Application, the deceased’s occupation is mentioned as “service” and salary income as Rs.37,750/- and there is not even a whisper of transport business in the said application. Learned Counsel also refers to the Claim Application filed before the M.A.C.T. and refers to Items 4 and 5 of the said application and submits that on their own admission, the claimants have indicated the deceased’s monthly income as Rs.37,750/-, and if that be so, the M.A.C.T. could not have considered only the Return of Financial year 2007-08 or the income from the transport business to determine the compensation. Learned Counsel draws the attention of this Court to paragraph 12 of the cross-examination of the widow, where the widow has stated that it is true that in her affidavit of examination in chief it is not stated that her husband had any other source of income other than his service.

8. Further, learned Counsel for the Appellant – Insurance Company, would submit that the Tribunal has,