| SooperKanoon Citation | sooperkanoon.com/368765 |
| Subject | Motor Vehicles |
| Court | Mumbai High Court |
| Decided On | Nov-16-2009 |
| Case Number | First Appeal No. 1312 of 2004 and Civil Application No. 6813 of 2009 in First Appeal No. 1312 of 200 |
| Judge | N.D. Deshpande, J. |
| Reported in | 2010(112)BomLR239 |
| Appellant | The United India Insurance Company Ltd. Through Its Divisional Office, Divisional Manager, United In |
| Respondent | Bhausaheb S/O Bapu Wahul and ors.;The United India Insurance Company Ltd., Through Its Divisional of |
| Appellant Advocate | S. V. Kulkarni and ;S.M. Jawale, Advs. |
| Respondent Advocate | S.M. Jawale, Adv. for Respondents No. 1 and 2, ;Dhananjay Deshpande, Adv. for Respondent No. 5 and ;S.V. Kulkarni, Adv. for the Respondent No. 1 |
| Disposition | Appeal dismissed |
Excerpt:
- bombay stamp act, 1958. schedule 1, article 36: [y.r. meena, cj & d.a. mehta & a.s. dave, jj] deed of mortgage liability to pay stamp duty held, any instruments in respect of transactions, relating to loans and advances, loans and mortgages, cash credit or overdraft bonds, agreements of pawn or pledge and letters of hypothecation executed by farmers for agricultural and land development purposes in favour of all commercial bank etc. are entitled to remission of entire duty chargeable under the stamp act with effect on and from 1.4.1979 under government notification dated 23.3.1979. thus, where loan was granted by bank of india under agricultural finance scheme towards purchase of air compressors, drilling rods and other accessories. use of the air compressors, drilling rods and other accessories in case of applicant who is a farmer can only be for purpose of drilling a bore-well for purpose of irrigation in process of carrying on agricultural activities. thus, it is apparent that loan was availed of by applicant-farmer for agricultural and land development purposes because a bore-well would go to increase the utility of agricultural land by ensuring round the year irrigation. the instrument in question would therefore fall within scope of complete remission granted to instrument of mortgage under government notification dated 23.3.1979 and hence not liable to stamp duty under article 36 of schedule i of the act. - the total award of the learned tribunal is sound, well reasoned and call for no interference, and therefore, upheld.n.d. deshpande, j.1. heard shri kulkarni, the learned counsel for the appellant/the united india insurance company and shri jawale, the learned counsel for the respondents no. 1 and 2.2. today, the matter is fixed for hearing of application for withdrawal of amount of rs. 90,617/which is deposited in fixed deposit receipt no. em/tba 0702401 dated 25.07.2005 with union bank of india, branch osmanpura, aurangabad. this application is opposed for withdrawal of entire amount by the insurance company mainly on the ground that, the respondents no. 1 and 2/claimants have already received rs. 50,000/under no fault liability and rs. 39,500/which they were permitted to withdraw when the stay application was granted while admitting the appeal and application for stay of execution. on the last date itself it was put on notice to both parties that, present appeal would be decided finally by this court.3. i have heard submissions of shri kulkarni, the learned counsel for the appellant/insurance company and shri jawale, the learned counsel for the respondents no. 1 and 2. the present dispute is narrow and limited to the quantum in this appeal. the learned member, motor accident claims tribunal, aurangabad awarded compensation of rs. 1,59,500/, since it involves a death of child of five years old named akash, in a road accident of two vehicles i.e. mini door auto rickshaw bearing no. mh20/a7951 and metadoor bearing no. mh21/6236.4. perused the impugned judgment and award dated 06.05.2004 passed by learned member, motor accident claims tribunal, aurangabad in m.a.c.p. no. 401/1999. out of the two vehicles the learned tribunal described metadoor bearing no. mh21/6236 belonging to original respondent no. 1 as offending vehicle. therefore, made the original respondent no. 2, the 'insurer' liable to pay the compensation. the said judgment and award is impugned in this appeal by the appellant/united india insurance company ltd. also on the ground of contributory negligence. on behalf of insurance company it was submitted that, for the death of child in a road accident rs. 1,00,000/would be 'just and reasonable' compensation relying on the authority reported in 2007 air scw 3424 in the case of kaushlya devi v. karan arora and ors.. it was also urged that, the award be suitably modified and slashed by 50% of the compensation payable to the claimants.5. both the parties agreed to refer to impugned award on the point of the alleged 'contributory negligence' and also the quantum. for disposal of the present first appeal at this stage, i do not find any difficulty, since there is marginal difference regarding quantum. therefore, i have gone through the grounds of appeal and also the impugned award dated 06.05.2004.6. the relevant discussion is found in paragraph no. 11, 12 and 13. it is held that, accident took place due to rash and negligence driving of the metadoor no. mh21/6236. it was in high speed and was responsible for dash to the mini door auto rickshaw, which was used by deceased akash for travelling. the police record and charge sheet also held the same vehicle as offending vehicle for prosecuting its driver at the relevant time. thus, there is no case of contributory negligence appearing on record, though in written statement a defence has been taken. when a party assert in pleading, a particular fact to prove or disprove the case, then it must substantiate it by some evidence. no burden can be cast on the claimants in such claim petitions who knew nothing about the accident and had no personal knowledge. they based their claim on the police papers and they are relevant to that extent. those have been accepted as evidence of the matter in issue.7. upon considering of record and after hearing both the sides i find no fault in the impugned judgment and award and the observations made by the learned tribunal holding the metadoor no. mh21/6236 as a offending vehicle and the respondent no. 2 is the insurer of the said vehicle is certainly liable to pay the compensation. so far the quantum is concerned, it is seen that, akash aged five years died on 08.04.1999 in a road accident. thus no case of contributory negligence is established on record.8. the hon'ble apex court considered rs. 1,00,000/as just compensation in an accident of a child which took place two years prior. moreover, shri jawale, the learned counsel for the respondents no. 1 and 2 relied on the authority reported in 2005 acj 99 in the case of manjudevi and anr. v. musafir paswan and anr.. the supreme court has laid down the principles of assessment and multiplier method for award of compensation.quantum fatal accident principles of assessment multiplier method award of compensation should be made by multiplier method as it ensures payment of just compensation and it brings uniformity and certainty to the awards.quantum fatal accident deceased boy aged 13 claimants: parents tribunal awarded rs. 90,000 apex court assessed notional income for a nonearning person at rs. 15,000/p. a., adopted multiplier of 15 and allowed rs. 2,25,000 award of rs. 90,000 enhanced to rs. 2,25,000.9. upon considering of record and after hearing both the sides, in my opinion no interference is required. the total award of the learned tribunal is sound, well reasoned and call for no interference, and therefore, upheld. since the balance of the award is lying as deposit in the form of fixed deposit receipt the same shall be made payable to the respondents no. 1 and 2/claimants as per the award immediately.the appeal stands dismissed on merits with no order as to costs.the civil application allowed and disposed of accordingly.
Judgment:N.D. Deshpande, J.
1. Heard Shri Kulkarni, the learned Counsel for the Appellant/the United India Insurance Company and Shri Jawale, the learned Counsel for the respondents No. 1 and 2.
2. Today, the matter is fixed for hearing of application for withdrawal of amount of Rs. 90,617/which is deposited in Fixed Deposit Receipt No. EM/TBA 0702401 dated 25.07.2005 with Union Bank of India, Branch Osmanpura, Aurangabad. This application is opposed for withdrawal of entire amount by the Insurance Company mainly on the ground that, the respondents No. 1 and 2/claimants have already received Rs. 50,000/under no fault liability and Rs. 39,500/which they were permitted to withdraw when the stay application was granted while admitting the appeal and application for stay of execution. On the last date itself it was put on notice to both parties that, present appeal would be decided finally by this Court.
3. I have heard submissions of Shri Kulkarni, the learned Counsel for the appellant/insurance company and Shri Jawale, the learned Counsel for the respondents No. 1 and 2. The present dispute is narrow and limited to the quantum in this appeal. The learned Member, Motor Accident Claims Tribunal, Aurangabad awarded compensation of Rs. 1,59,500/, since it involves a death of child of five years old named Akash, in a road accident of two vehicles i.e. Mini door auto rickshaw bearing No. MH20/A7951 and metadoor bearing No. MH21/6236.
4. Perused the impugned judgment and award dated 06.05.2004 passed by learned Member, Motor Accident Claims Tribunal, Aurangabad in M.A.C.P. No. 401/1999. Out of the two vehicles the learned Tribunal described metadoor bearing No. MH21/6236 belonging to original respondent No. 1 as offending vehicle. Therefore, made the original respondent No. 2, the 'insurer' liable to pay the compensation. The said judgment and award is impugned in this appeal by the appellant/United India Insurance Company Ltd. also on the ground of contributory negligence. On behalf of insurance company it was submitted that, for the death of child in a road accident Rs. 1,00,000/would be 'just and reasonable' compensation relying on the authority reported in 2007 AIR SCW 3424 in the case of Kaushlya Devi v. Karan Arora and Ors.. It was also urged that, the award be suitably modified and slashed by 50% of the compensation payable to the claimants.
5. Both the parties agreed to refer to impugned award on the point of the alleged 'contributory negligence' and also the quantum. For disposal of the present first appeal at this stage, I do not find any difficulty, since there is marginal difference regarding quantum. Therefore, I have gone through the grounds of appeal and also the impugned award dated 06.05.2004.
6. The relevant discussion is found in paragraph No. 11, 12 and 13. It is held that, accident took place due to rash and negligence driving of the metadoor No. MH21/6236. It was in high speed and was responsible for dash to the mini door auto rickshaw, which was used by deceased Akash for travelling. The police record and charge sheet also held the same vehicle as offending vehicle for prosecuting its driver at the relevant time. Thus, there is no case of contributory negligence appearing on record, though in written statement a defence has been taken. When a party assert in pleading, a particular fact to prove or disprove the case, then it must substantiate it by some evidence. No burden can be cast on the claimants in such claim petitions who knew nothing about the accident and had no personal knowledge. They based their claim on the police papers and they are relevant to that extent. Those have been accepted as evidence of the matter in issue.
7. Upon considering of record and after hearing both the sides I find no fault in the impugned judgment and award and the observations made by the learned Tribunal holding the metadoor No. MH21/6236 as a offending vehicle and the respondent No. 2 is the insurer of the said vehicle is certainly liable to pay the compensation. So far the quantum is concerned, it is seen that, Akash aged five years died on 08.04.1999 in a road accident. Thus no case of contributory negligence is established on record.
8. The Hon'ble Apex Court considered Rs. 1,00,000/as just compensation in an accident of a child which took place two years prior. Moreover, Shri Jawale, the learned Counsel for the respondents No. 1 and 2 relied on the authority reported in 2005 ACJ 99 in the case of Manjudevi and Anr. v. Musafir Paswan and Anr.. The Supreme Court has laid down the principles of assessment and multiplier method for award of compensation.
Quantum Fatal accident Principles of assessment Multiplier method Award of compensation should be made by multiplier method as it ensures payment of just compensation and it brings uniformity and certainty to the awards.
Quantum Fatal accident Deceased boy aged 13 Claimants: parents Tribunal awarded Rs. 90,000 Apex Court assessed notional income for a nonearning person at Rs. 15,000/p. a., adopted multiplier of 15 and allowed Rs. 2,25,000 Award of Rs. 90,000 enhanced to Rs. 2,25,000.
9. Upon considering of record and after hearing both the sides, in my opinion no interference is required. The total award of the learned Tribunal is sound, well reasoned and call for no interference, and therefore, upheld. Since the balance of the award is lying as deposit in the form of Fixed Deposit Receipt the same shall be made payable to the respondents No. 1 and 2/claimants as per the award immediately.
The appeal stands dismissed on merits with no order as to costs.
The civil application allowed and disposed of accordingly.