Advocates:
['GOVT PLEADER', 'CHINCHOLKAR G N', '', 'G N CHINCHOLKAR']

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F.A.No. 322/ 2013

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD

FIRST APPEAL NO. 322 OF 2013

The Executive Engineer,

Mechanical Division,

U.P.P., Nanded

..APPELLANT

(Orig. Respondent)

VERSUS

Vidyabai Udaysinh Thakur & anr.

..RESPONDENTS

(Orig. Claimants)

Mrs V.A. Shinde, A.G.P. for the appellant;

Mrs S.G. Chincholkar, Advocate holding for Mr G. N. Chincholkar for

respondents

CORAM : MRS MRIDULA BHATKAR, J.

DATE : 23rd September, 2013

PER COURT

This appeal is directed against the judgment and award dated

25.11.2011, passed by the Extra Joint Ad hoc District Judge and ex officio

Member of Motor Accident Claims Tribunal, Nanded, in M.A.C.P. No.554

of 2005.

2.

The appellant is original respondent, under whose vehicle, i.e. a

tanker, daughter of the original claimants, by name Pooja, was killed.

The accident had taken place on 21.3.2005, at about 8.00 p.m., at

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F.A.No. 322/ 2013

Nandanvan Colony, Nanded. Deceased Pooja, on that fateful evening

had gone to the grocery shop and after purchasing the articles when she

was returning home, a tanker bearing No.MH-Q-3944 came from opposite

direction and dashed her. Pooja died immediately due to head injury.

She was studying in VIth standard. The original claimants, parents of

Pooja, filed application seeking compensation before the Motor Accident

Claims Tribunal, Nanded. The original claimants adduced evidence that

deceased Pooja was an intelligent girl and used to help parents in the

household work. There was a loss of love and affection to the parents,

especially mother has suffered a mental trauma. Pooja had good career.

They, therefore, claimed compensation of Rs.4 Lacs. The Tribunal partly

allowed the claim and granted compensation of Rs.2,90,000/- with

interest. The appellant/original respondent, being aggrieved by the said

judgment and award, has filed the instant appeal.

3.

Learned A.G.P. appearing on behalf of the appellant submitted that

appellant raises three grounds in the appeal. The Tribunal has committed

an error in holding that the accident has taken place due to impugned

tanker. There is no evidence to show that the impugned tanker dashed

Pooja and she died due to the dash given by the tanker. The Driver of

the tanker was examined by the respondent and he has denied that he

was responsible for the accident. The Driver is acquitted from the

criminal case. Learned A.G.P. further submitted that the case of the

original claimants, that the Driver ran away from the spot and thereafter

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4-5 persons followed him on motorcycle and then he was nabbed, beaten

up and produced before the police, is false. On the contrary, the Driver

was unaware of the accident and he did not run away from the spot.

Learned A.G.P. submitted that on the point of multiplier, the Tribunal has

committed an error in law. Pooja was studying in VIth standard and she

was aged about 13 years and the Tribunal has applied multiplier of 18.

Instead, the multiplier of 15 should have been applied as per second

schedule of the Motor Vehicles Act, 1988.

4.

In support of her submission, learned A.G.P. relied on the decision

of the Supreme Court in the case of R.K. Malik & anr. vs. Kiran Pal &

ors., AIR 2009 S.C. 2506. She submitted that this case was decided on

15.5.2009, i.e. after decision in the case of Smt. Sarala Verma & ors. vs.

Delhi Transport Corporation & anr., reported in AIR 2009 SC 3104,

which was decided on 15.4.2009 and hence ratio in the case of R.K Malik

(supra), especially in paragraphs 17 and 18 thereof is to be applied. She

further submitted that the Tribunal has committed error in accepting the

age of the deceased for the purpose of multiplier, instead, age of the

parents ought to have been considered as a yardstick. On these

grounds, the appeal be allowed and the impugned judgment and award

be quashed and s