M S R T C Ahmednagar Divn.A'Nagar And ANR v. Shaikh N.Janmohmed(Decd)Lrs Lrs Fatimabi And ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD FIRST APPEAL NO.22/2004 1] The Divisional Controller Maharashtra State Road Transport Corporation Division Ahmednagar District Ahmednagar.

2] Abdul Gani Sayyed Yasin Age 32 years, Occ-S.T.Driver Resident of C/o M.S.R.T.C.

Ahmednagar Division, Ahmednagar (formal party) .. APPELLANTS [ORI.OPPONENTS]

VERSUS

Shaikh Nurmohmed JanmohmedDeceased through his L.Rs. 1] Janmohmed Daud Shaikh as deceased 2] Gulshan Janmohmed, Deceased L.Rs. Nos.1 and 2 :- 3] Fatimabi Marda Noormohmed, age 48 4] Nurjahan Babloo Shaikh, age 28 5] Shabina Sadiq Shaikh age 20 6] Rubina Nurmohmed Shaikh age 23 7] Asha Nurmohmed Shaikh age 14 8] Raisa Nurmohmed Shaikh age 11 9] Shahenaz Nurmohmad Shaikh

-2age 16 10] Abukar Nurmohmed, age 16 11] Umar Nurmohmed Shaikh age 14 12] Wasim Nurmohmed age 23 Nos.7 to 11 minors, through respondent No.3.

All r/o Naikwadapura, Tal.Sangamner Dist.Ahmednagar.

.. RESPONDENTS [Orig.Claimants] ...

Shri M.K.Goyanka,Advocate for appellants ...

CORAM : S.V.GANGAPURWALA,J.

DATED : 29TH OCTOBER, 2015 ORAL JUDGMENT :

The respondent had filed application for damages on account of the damage caused to the property in an accident. The said claim petition is partly allowed. Aggrieved thereby, the present appeal. It is submitted that the damage to the property was quantified by the tribunal at Rs.21764/- The tribunal awarded an amount of Rs.22000/- on the ground that the vehicle was lying idle. According to the learned counsel for the appellant, said damage does not come within the ambit and purview of Sections 165 and 166 of the Motor Vehicles Act. The learned counsel submits that there is also no proof or evidence on record to substantiate that the vehicle was lying idle from 27/9/1990 to 9/11/1990.

-32] Though respondents are served, none appears for the respondents.

3] I have considered the judgment. Section 166 of the Motor Vehicles Act more particularly sub section 1 provides the maintainability of application for compensation arising out of an accident in the nature specified in sub section 1 of Section 165 for the injury sustained by person or by owner of the property. In case of death resulting from the accident by legal heirs the owner of the vehicle is entitled to maintain the application for the damage to the vehicle. Section 165 of the Motor Vehicles Act clarifies the said position. The damage to the vehicle has been quantified and the compensation to that effect has been awarded. The Court has not given any cogent reasons while quantifying the damages on account of the vehicle lying idle. Only the contention of the applicant has been believed without any proof for it.

The other concepts such as theory of mitigating damages has also not been applied. It has also not been shown that how the damages on account of the truck lying idle could be awarded by virtue of Section 165 of the Motor Vehicles Act. Considering aforesaid aspect of the matter, appeal is partly allowed. Judgment to the extent of Rs.22,000/- is quashed and set aside and the order is modified to the extent that claimants are entitled to Rs.21,764/- with interest at the rate of 12% p.a. from the date of filing of claim petition till deposit of the amount. It is submitted that the amount is deposited as per the award. The appellant is entitled to withdraw the amount of Rs.22,000/- with interest. First Appeal accordingly partly allowed. No costs. [S.V.GANGAPURWALA,J.]