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2 FIRST APPEAL 1714 OF 2012.odt

THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD.

APPELLATE SIDE JURISDICTION

FIRST APPEAL NO. 1714 OF 2012

1]

Anita w/o Netaji Bhong,

Age : 31 years, Occ. Household,

2]

Pratiksh d/o Netaji Bhong,

Age: 14 years, Occ. Education,

3]

Somnath s/o Netaji Bhong,

Age: 11 years, Occ. Education,

4]

Jeevan s/o Rangnath Bhong,

Age: 61 years, Occ. Nil,

5]

Indubai w/o Jeevan Bhong,

Age: 55 years, Occ. Nil.

All r/o: Jayphal, Tq. Ausa, Dist: Latur.

[Appellant 2 and 3 are since minors

under guardianship of applicant no.1

their natural mother.]

... APPELLANTS

[Original Claimants]

V E R S U S

1]

Shrikrishna Construction Company,

Through its Manager, R/o: Mitra Nagar,

Near Post Office, Latur, Tq. Dist. Latur.

2]

ICICI Lombard General Insurance Company,

Through its Branch Manager,

above Parijat Mangal Karyalaya,

Ausa Road, Latur. Tq. Dist. Latur.

... RESPONDENTS

...

Mr. S. S. Shinde, Advocate for the Appellant.

Mr. Abhijeet Choudhari, Advocate for Respondent No.2.

...

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2 FIRST APPEAL 1714 OF 2012.odt

CORAM :

P. R. BORA, J.

DATE : 22^nd August, 2016.

JUDGMENT:

.

Heard.

2

Admit.

3

By consent of the learned counsel appearing for the

respective parties, the appeal is taken up for final disposal.

4

The Appellants have filed the present appeal seeking

enhancement in the amount of compensation awarded by the Motor

Accident Claims Tribunal, Latur, in Motor Accident Claim Petition

No.119 of 2011.

5

The Appellants had filed the aforesaid claim petition under

Section 163 (A) of the Motor Vehicles Act, 1988 (hereinafter referred

to as “the Act”) seeking compensation on account of death of one

Netaji Jeevan Bhong, who died in a vehicular accident on 7^th March,

2011, having involvement of a Bajaj motorcycle and a Telco Tipper

bearing registration No.MH.24.A.3963. The Appellants had claimed

the compensation of Rs.4,00,000/-. As was averred in the claim

petition, the age of deceased Netaji at the time of his death was 35

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2 FIRST APPEAL 1714 OF 2012.odt

years and his income was stated to be Rs.5,000/- per month. The

learned Tribunal after having assessed the oral and documentary

evidence brought before it, awarded the compensation of

Rs.2,45,000/- to the Claimants jointly and severally from the owner

and the insurer of the Tipper alongwith interest thereon at the rate of

7.5% per annum from the date of petition till the realization of the

compensation amount. Dissatisfied by the amount of compensation

so awarded, the original Claimants have filed the present appeal.

6

The following facts are not disputed by the Respondents :

i.

That Netaji Jeevan Bhong died in vehicular

accident occurred on 7^th March, 2011, having

involvement of Telco Tipper bearing registration

No.MH.24.A.3963.

ii

That Tipper was validly insured with Respondent

No.2 – Insurance Company and the insurance

policy was in force.

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The learned counsel for the Appellants submitted that

though there was evidence as about the income of deceased Netaji,

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2 FIRST APPEAL 1714 OF 2012.odt

the learned Tribunal has failed in appreciating the evidence. The

learned counsel submitted that even in absence of any evidence as

about the income of deceased Netaji, the Tribunal ought to have

determined the amount of compensation on the basis of notional

income to the tune of Rs.36,000/- per annum. The learned counsel

submitted that the Tribunal has held the annual income of deceased

to the tune of Rs.21,000/- and had accordingly awarded the

compensation. The learned counsel further submitted that the

Tribunal has also awarded inadequate amount towards non-pecuniary

damages. The learned counsel, therefore, prayed for enhancement in

the amount of compensation and to accordingly modify the award,

impugned in the present appeal.

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Shri Choudhari, the learned counsel for Respondent No.2

– Insurance Company supported the impugned judgment. The

learned counsel submitted t