Advocates:
['BHOKARIKAR MADHAV M', 'H A PATANKAR', '', 'VP IN CA', 'R/ SERVED']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FIRST APPEAL NO. 1013 OF 2014

1.

Shri Dnyaneshwar Adhar Chaudhari

Age 36 years, Occ. Agriculturist

2.

Roshan Dnyaneshwar Chaudhari

Age 8 years, Occ. Education

3.

Deepali Dnyaneshwar Chaudhari

Age 6 years, Occ. Education

Appellant Nos. 2 and 3 are minors and

appellant No.1 is the father hence natural

guardian.

All R/o. Bornar, Ta. And Dist. Jalgaon

...Appellants

Versus

1.

Shri Aslam Ibrahim Patel

Age major, Occ. Owner and driver

R/o. Pimpalkotha,

Tal. Erandole, Dist. Jalgaon

2.

The Branch Manager

The National Insurance Company Ltd.

299, Baliram Peth,

Behind Kelkar Market, Jalgaon

...Respondents

.....

Mr. M.M. Bhokarikar, advocate for the appellants

Mr. H.A. Patankar, advocate for respondent No.2

.....

CORAM : V. K. JADHAV, J.

Date of Reserving

the Order : 15.06.2016

Date of pronouncing

the Order: 16.08.2016

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PER COURT :-

1.

By consent, heard finally.

2.

Being aggrieved by the judgment and award dated 7.4.2012

passed by the learned Member, Motor Accident Claims Tribunal,

Jalgaon, in M.A.C.P No. 36 of 2008, the appellants-original claimants

preferred this appeal to the extent of quantum.

3.

Brief facts, giving rise to the present appeal, are as under:-

a)

On 16.8.2007, deceased Ashabai, wife of appellant No.1

and mother of appellant Nos. 2 and 3, was travelling in an

auto rickshaw bearing registration No. MH-19/AE-5788 owned

and driven by respondent No.1, from Paldhi to Ringangaon.

The said rickshaw was driven by respondent No.1 in high

speed and he lost control over the auto rickshaw, it went

beside the road and dashed against a tree. As a result of

which, deceased Ashabai had received serious injuries.

Immediately after the accident, deceased Ashabai was

admitted to Sahyog Critical Care Center, Jalgaon where she

was indoor patent in ICU from 16.8.2007 to 22.8.2007 and

ultimately on 22.8.2007 she succumbed to the injuries. At the

time of accident death, deceased Ashabai was pregnant and

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due to the accident, foetus in her womb also died. Deceased

Ashabai was agriculture labourer and was earning Rs.3000/-

p.m.. The appellants had spent huge amount over her medical

treatment. It is with these contentions, the appellants had

filed claim petition for grant of compensation amount of

accidental death of deceased Ashabai.

b.

Respondent No.1 owner and driver of offending auto

rickshaw contested the claim petition by filing written statement

at Exh.15 thereby denying that he was driving the said

rickshaw in rash and negligent manner. It was contended that

at the time of accident, the said rickshaw was insured with

respondent No.2 insurer and therefore, if it is found that

accident had occurred due to the fault on his part, then the

amount of compensation may be recovered from insurer.

c.

Respondent No.2 insurer had also contested the claim

petition by filing written statement contending that the accident

arose due to the fault of deceased Ashabai herself and not

because of rash and negligent driving of respondent No.1.

Respondent No.2 insurer had denied that the contentions of

the appellants that they have incurred huge amount for

medical treatment of deceased Ashabai and prayed for

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dismissal of claim petition.

d.

After hearing the respective parties and on going the

pleadings, learned Member of the Tribunal, by judgment and

award dated 7.4.2012 held the respondents jointly and

severally liable and directed them to pay an amount of

Rs.4,82,975/- to the applicants. inclusive of an amount under

no fault liability, with interest @ 7.5% p.a. from the