IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 160 OF 2019

1) The New India Insurance Co. Ltd.

Through Authorized Officer Officer at Rahul Chambers, Mumbai – Pune Road, Kasarwadi, Pune ….. Appellant Vs.

1) Smt. Shailaja Santhosh Jagdale Age : 38 years, Occu. Nil, 2) Kum. Sonia Santosh Jagdale Age : 14 years, Occu. Student, 3) Yuvraj Santosh Jagdale Age : 11 years, Occu. Student, 4) Vitthal Maruti Jagdale Age : 67 years, Occu. Nil

5) Sau. Pushpa Vitthal Jagdale Age : 59 years, Occu. Nil All Respondent Nos.1 to 5 residing at Plot No.297, Sector No.27, Pradhikaran Nigdi, Near Rahul Medical, Pune 411 044

6) Shivaji Haribhau Gunjal Age : Adult, Occ. Business, R/at : Post Manchar, Tal. Ambegaon, District Pune.

7) Vishvanath Vishnu Kesarkar Age : 39 years, Occu. Driver, R/at. Gavali Chawal, Near Ganesh Bhaji Market, Bhosari Alandi Road, Bhosari, Native Place & Post – Devale, Tal. Poladpur, District – Raigad. .... Respondents Mr. Himanshu Takke i/b. Mr. Milind More for the Appellant.

Mr. Shridhar Huddar and Mr. Gourav Shahane, Mr. Krushna Jaybhay and Mr. Shreyas Zarkar for Respondent Nos.1 to 5.

Mr. Onkar Gawade i/b. Mr. Sanjay Gunjkar and Mr. Anvil Kale for Respondent Nos.6 and 7.

CORAM : SHYAM C. CHANDAK, J.

RESERVED ON : 08th MAY, 2025 PRONOUNCED ON : 09th MAY, 2025 JUDGMENT :-

. Present Appeal filed under Section 173 of the Motor Vehicles Act, 1998 (“the Act”) is directed against the Judgment and Award dated 17/06/2017, in M.A.C.P. No.51 of 2011 (“Claim”), passed by the Motor Accident Claims Tribunal, at Pune (“Tribunal”) thereby said claim was allowed and Respondent Nos.6, 7 and the Appellant (Original Opponent Nos.1 to 3) held liable to pay the Respondent Nos.1 to 5 (“Claimants”) a sum of Rs.55,46,600/- (including amount of NFL) with interest @ 9% p.a. from the date of the claim till realization of the amount.

2) Appeal was admitted on 14/12/2018. By Order dated 25/07/2024, the Appeal was posted to 16/08/2024, for final hearing. Thereafter, the learned Advocate for the parties submitted the compilation of documents. Hence, taken up for final hearing.

3) Heard Mr. Takke, learned Advocate for the Appellant, Mr.Huddar, learned Advocate for the claimants and Mr. Gawade, learned Advocate for Respondent Nos.6 and 7. Perused the record and the written notes of arguments submitted by the parties.

4) The facts in brief are that Respondent No.1 is widow, Nos.2 and 3 are the children and Nos.4 and 5 are the aged parents of late Shri. Santosh Vitthal Jagdale (“deceased”). It was the case of the claimants that, on 17/01/2010, at about 11:00 p.m., the deceased was driving a Motor Car bearing Regn. No.MH/12/BG/7037 (“the Car”) and proceeding towards Pune, on Pune-Mumbai highway. One Motor Tempo bearing Registration No.MH/14/V/9045 (“the tempo”) was proceeding towards Mumbai, but the driver of the tempo lost his control. Consequently, the tempo climbed over the road divider and dashed against the car. Due to the said impact, the deceased sustained multiple injuries and died on the spot. On receiving information about the accident, Lonavala Gramin Police Station registered an F.I.R bearing No.9/2010 under Sections 279, 337 and 304-A of I.P.C. and under Section 184 of the Act against the driver of the tempo.

4.1) It was averred that the deceased was aged 33 years. He was doing business of mechanical workshop in the name and styled as “M/s. Soniya Industries”, at Nigdi, Pune thereby he was earning monthly income of Rs.35,000/- to Rs.40,000/-. Claimants were dependent on the income of the deceased. Therefore, they prayed to award a sum of Rs.45,00,000/-with interest @ 18% from the date of the claim, from Respondent Nos.6, 7 and the Appellant.

5) Despite notice, Respondent Nos.6 and 7 did not file their appearance and let the claim proceeded ex-parte against them. The Appellant resisted the claim by filing the Written Statement (Exh.15). The Appellant contended that at the relevant time and place, the deceased was driving h