Final Order 1

Order Details: Order Number
Pdf Text: 1 MACP NO.643/2003.
Received on : 09.06.2003
Registered : 09.06.2003
Decided on : 09.05.2011
Duration : 7Y.11M.0Dys.
In the Court of the Additional Member, Motor Accident Claims
Tribunal, Pune at Pune.
(Before Hemant S Mahajan)
District Judge-13, Pune.
Claim Application No.643/2003.
Exh. No._______.
1]Sou. Shashikala Ramesh Waghole, ]
Age 38 years, Occup. Household, ]
]
2]Shri Ramesh Dadu Waghole, ].........Applicants.
Age 44 years, Occup. Service, ]
All Res. At: 504, Bhawani Peth, ]
pUNE-411042. ]
Versus
1]Shri Usman Madar Nalband, ]
Age Adult, Occup. Business, ]
Res. At: 634, Guruwar Peth, ]
Satara-415001. ]
]...........Opponents.
2]The New India Insurance Company Ltd., ]
Office- 2nd floor, Sharda Center, ]
11/1, Erandawane, Karve Road, ]
Pune-411004. ]
Appearance:
Mr. JP Shitole Advocate for applicants.
Mr. KM Hosurkar Advocate for opponent no.2.
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2 MACP NO.643/2003.
ORAL JUDGMENT
(Delivered on 09.05.2011)
The petitioners are claiming compensation towards motor vehicular
accidental death of their daughter Kumari Smita alias Varsha Ramesh Waghole,
who had died in motor vehicular accident on 08.05.2003.
According to petitioners on the date of accident deceased was about 16
years old and was taking her education. The petitioners alleged that on
8.5.2003 about 4.40 pm deceased was proceeding as a pillion rider by Kinetic
Moped no.MH-12-BQ-7213 and particularly by Pune-Solapur Road. According
to petitioners one Smt. Anita Digamber Salunke was riding aforesaid moped at
the relevant time fairly, properly and according to traffic norms. The petitioners
alleged that when the deceased was passing from Hadapsur area a truck bearing
no.MHT-7502 rushed in an excessive speed as well as rashly and negligently
and gave dash to the moped by which deceased was proceeding. According to
petitioners on account of aforesaid impact moped rider and deceased were fell
down on road and sustained severe multiple injuries and the deceased
succumbed to those injuries on the same day. As such, the petitioners alleged
that aforesaid accident occurred due to sole rash and negligent driving of
aforesaid truck by its driver.
2] The petitioners alleged that on account of untimely death of the deceased
they have not only lost earning from the deceased but the love and affection
which they were getting from her. As such, over all the over heads of
compensation petitioners are claiming compensation to the tune of
Rs.2,00,000/- with interest thereon. According to petitioners on the date of
aforesaid accident offending truck belongs to opponent no.1 and duly insured
with opponent no.2, therefore both the opponents are jointly and severally
liable to pay aforesaid compensation amount.
3] The opponent no.1 fails to file written statement, therefore, matter
ordered to be proceeded without written statement of the opponent no.1.
4] The opponent no.2 resisted the claim by filing written statement vide
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3 MACP NO.643/2003.
exh. 16. The opponent no.2 denied all adverse averments made in the petition.
According to opponent no.2 deceased himself was riding the moped under
reference without having due valid license and, hence, opponent no.2 not at all
responsible for payment of compensation in the matter. Otherwise also
according to opponent no.2 accident was not held due to any fault or negligence
on the part of truck driver. On the other hand, it is the case of opponent no.2
that the deceased was solely responsible for the aforesaid accident. Otherwise
also according to opponent no.2 the claim is exorbitant.
5] In the light of rival claims of parties to the proceedings I have framed
the issues vide exh 17 and I am reproducing them same as below along with
my findings thereon for the reasons stated there below.
ISSUES FINDINGS
1]Whether petitioners proved that
on 8.5.2003 deceased Simita alias
Varsha Ramesh Waghole was
involved and demised during the
course of vehicular accident is a
result of use of motor vehicular
bearing no.MH-12-BQ-7213 and
MHT-7502 ? …....In affirmative.
2]Whether petitioners proved that
above mentioned motor vehicle
bearing no.MHT-7502 was being
driven in rash and negligent manner
and as such accident occurred ? …......In affirmative.
3]Whether petitioners are entitled
to receive the compensation ? If yes,
to what extent and from whom ? ….As per discussion.
4]What relief and order ? ….....As per final order.
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4 MACP NO.643/2003.
REASONS
As to issue nos. 1 to 4:
6] All these issues are interlinked with each other therefore I have decided
to answer them at once. In order to prove the claim on behalf of petitioners
Ramesh Dadu Waghole who is father of the deceased examined himself at exh.
23. The evidence of petitioner Ramesh is in the line of averments made in the
petition. According to his evidence on the date of accident deceased was
proceeding as a pillion rider by the Kinetic Moped under reference and one
Anita Salunke was riding the same fairly and properly. Petitioner Ramesh
further categorically stated that near Hadapsur area offending truck rushed from
behind in an excessive speed that too rashly and negligently and gave dash to
the moped by which the deceased was proceeding. Petitioner Ramesh further
categorically stated about motor vehicular accidental injuries to the deceased in
aforesaid accident. According to evidence of petitioner Ramesh the deceased
had succumbed to those injuries. The petitioner Ramesh further refers the
documents with list exh. 6 which includes FIR, spot panchanama, inquest
panchanama, PM Report etc.
7] According to learned counsel for petitioners the deceased being third
party they are entitled to receive compensation. On the other hand the learned
Counsel for opponent no.2 objected the claim by pointing out that deceased was
herself riding the moped under reference at the time of accident and was not
holding due valid license and therefore petitioners are not entitled to claim any
compensation.
8] Certainly, if accident occurred on account of negligence on the part of
deceased then only the defence so raised by the opponent no.2 can be looked
into. However, it reveals from report lodged by PSI Shaikh that aforesaid
accident occurred due to sole rash and negligent droving of offending truck by
its driver. Therefore, deceased being third party the claim of petitioners needs to
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5 MACP NO.643/2003.
be looked into. In such circumstances, I have no hitch to observe that accident
under reference occurred in reality and it was so held due to sole rash and
negligent driving of offending truck by its driver and the deceased had
sustained injuries due to the accident and further succumbed to those injuries
on same day.
9] The question now pose regarding compensation amount payable to the
petitioners and liability amongst opponents to pay it. In this respect,
considering the position that the deceased was having no any earning and,
hence, the compensation needs to be awarded by keeping in mind the provision
of Schedule-II of the Motor Vehicles Act and other circumstances. In this
respect it reveals from the evidence of petitioner Ramesh that deceased was
student of 8th std. Further, on the date of accident deceased was about 16 years
old. In such circumstances, in my mind by keeping in mind the provision of
Schedule-II of the Motor Vehicles Act and other circumstances it reveals that
an amount of Rs.1,25,000/- awarded to the petitioners towards compensation
over pecuniary heads then it would met with ends of justice.
10] Apart from compensation over pecuniary heads if an amount of
Rs.25,000/- awarded to the petitioner towards non-pecuniary heads particularly
towards funeral expenses, loss of estate etc then it would met with ends of
justice. Therefore, over all the heads of compensation in total petitioners are
entitled to receive compensation of Rs.1,50,000/- with interest thereon. On the
date of accident offending truck belongs to opponent no.1 and insured with
opponent no.2, therefore both the opponents are jointly and severally liable to
pay aforesaid compensation amount. In the light of my discussion in the
foregoing paras, I answer issue no.1 and 2 in affirmative, issue no.3 according
to discussion and issue no.4 as per final order and pass the following order.
O R D E R
1. The petition is partly allowed with proportionate costs.
2. Opponent nos. 1 and 2 are hereby directed to pay jointly and severally
an amount of Rs.1,50,000/ (inclusive of NFL amount) if any, to petitioners
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6 MACP NO.643/2003.
with interest at the rate of Rs.6% p. a. from the date of petition till realization
of entire amount. The opponents are further directed to deposit account payee
cheque for the aforesaid amount with interest in the Court.
3. On depositing the aforesaid amount it be apportioned in the following
manner:
A) Out of the total amount of compensation, interest and cost as above, an
amount of Rs.25,000/ each be paid to petitioner no. 1 and 2 by issuing
account payee cheque in their name of any Nationalized Bank.
a) On payment (as per clause 'A' above) to petitioners the rest of the
amount be equally divided amongst them and it be invested in Fixed Deposit in
the name of respective petitioner no. 1 and 2, for the period of Five Years in
any Nationalized Bank.
4. Further, on its maturity the amount be delivered to petitioner no. 1
and 2, respectively.
5. An award be drawn if entire court fee is paid on claim amount.
Sd/
Dated: 09.05.2011. (Hemant S. Mahajan)
Addl. Member, M. A. C. T.
and District Judge13, Pune.
'' I affirms that the contents of this P. D.F. File Judgment are same word for
word as per original Judgment.
Name of steno : V. B. Diwikar.
Court Name : H. S. Mahajan, District Judge13, Pune.
Date: : 10.05.2011.
Judgment signed by
presiding officer on : 10.05.2011
Judgment uploaded on : 10.05.2011''
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