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2022 DIGILAW 1028 (BOM)

New India Assurance Co. Ltd. v. Rosa Maria Erena Pereira, major of age, widow of late Sebastian Pereira

2022-04-07

M.S.SONAK

body2022
JUDGMENT : 1. Heard Mr. U.R. Timble, learned Counsel for the appellant-Insurance Company, Mr. F. Dias, learned Counsel for respondent nos.1 & 2 and Ms. A. Ujjwala, learned Counsel for respondent no.4. 2. On 01.04.2022, following order was passed in the present matter : “P.C.: 1. Stand over to 07.04.2022 for directions. 2. Ms. Yadika Mandrekar, learned counsel for the appellant admits that there was no leave obtained under Section 170 of the Motor Vehicles Act from the Motor Accident Claims Tribunal. She however points out to an apparent error of calculation at paragraph 49 of the impugned award based on which an amount of almost Rs.9 lakhs in excess has been awarded to the claimants. She submits that since this is an arithmetical error, the same may be corrected by this Court itself rather than relegating the insurance company to obtain such correction from the Tribunal by resort to the provisions of Section 152 of the Code of Civil Procedure. 3. Mr. Ryan Menezes states that he was earlier appearing for the claimants but now they have taken back the brief. He states that he has also issued NOC to the claimants. He however states that he will telephonically try to contact the claimants and inform them that the matter is fixed on 07.04.2022. 4. Stand over to 07.04.2022.” 3. Since no leave was obtained under Section 170 of the MV Act, this appeal will have to be dismissed as not maintainable following the law laid down by the Division Bench of this Court in I.C.I.C.I. Lombard General Insurance Co. Ltd., Amravati V/s. Surekha w/o. Prakash Ghurde and Ors., (2020) 2 Bom.CR 465 . 4. However, the dismissal of this appeal will not preclude the appellant-Insurance Company from instituting any other proceedings, if maintainable in law 5. On the aspect of arithmetical error, reference is necessary to the calculations in paragraph 49 of the impugned award dated 01.09.2017, which reads as follows : “49. Therefore, the claimants, in the case at hand, are entitled for the compensation of Rs.1,23,30,000/-(towards loss of dependency) + Rs.1,00,000/-(towards loss of estate) + Rs.1,00,000/-(towards loss of consortium) + Rs.1,00,000/- (towards loss of love and affection to the minor child) + Rs.50,000/- (towards funeral expenses and costs for securing witness), which totally amounts to Rs.1,35,80,000/-, alongwith interest at the rate of 9% per annum.” 6. From the aforesaid, it is quite apparent that the total of the compensation awarded comes to Rs.1,26,80,000/-and not Rs.1,35,80,000/-. This is obvious calculation error about which there is no dispute raised by the learned Counsel for the respondents. This error calls for correction by resort to the provisions or in any case principles in Section 152 of the CPC. 7. Therefore, though this appeal is being dismissed, the impugned award is corrected. The award amount will now read as Rs.1,26,80,000/-in place of Rs.1,35,80,000/-. The rest of the directions in the impugned award remain unaltered. 8. The respondent nos.1 & 2-claimants will be entitled to withdraw the deposited amount together with interest, if any, that might have accrued thereon, after six weeks from today, unless in the meanwhile, there is any restraint order. The claimants will have to furnish proper identification papers and bank details so that the amounts can be directly deposited in their bank accounts. 9. The appeal is disposed of in the aforesaid terms. There shall be no orders for costs. Misc. Civil Applications, if any, do not survive and even they are disposed of.