High Court
Legal Reasoning
(1) fa-688-2024IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADFIRST APPEAL NO.688 OF 20241.Mohan s/o Dhanu Rathod,Age: 47 years, Occu- Labour2.Sou. Sunita Mohan Rathod,Age: 42 years, Occu. Household3.Vikas Mohan Rathod,Age- 18 years, Occ.- Education4.Akash Mohan Rathod,Age- 16 years, Occ- EducationU/G of Claimant No.2Sunita Mohan RathodAll R/o. Kaldev Limbala,Tq. Omerga, Dist. Osmanabad...Appellants (Original Claimants)Versus1.Kiran s/o. Sharad Vairagkar,Age- Major, Occ. Business,R/o. Balaji Nagar, Osmanabad,Tq. & Dist. Osmanabad(Owner of Pick Up No.MH-25/P-5926)2.Reliance General Insurance Co. Ltd., Latur,Through: The Branch Manager,Reliance General Insurance Co. Ltd.,Unit No.211 & 212, 2nd Floor, Yash Plaza,Near Shivneri Gate, Kava Road, Latur,Policy No.202422123340018464..Respondents (Original Respondents) …Mr. Y. P. Jadhav, Advocate for Appellants.Mr. S. S. Patil h/f Mr. R. H. Dahat, Advocate for Respondent No.2.Respondent No.1 is served.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 22nd APRIL, 2025.ORDER:- (2) fa-688-20241.Being aggrieved by quantum of compensation awarded byMotor Accident Claims Tribunal, Osmanabad in M.A.C.P.No.40/2022, vide judgment dated 04.11.2023, present Appeal isfiled under Section 173 of the Motor Vehicle Act, 1988 by originalclaimants seeking enhancement of compensation. (Hereinafter,parties are referred to by their original status for the sake ofconvenience and brevity).2.The claimants instituted M.A.C.P. No.40/2022 under Section166 of the Motor Vehicle Act seeking compensation ofRs.20,00,000/- towards accidental death of late Manoj MohanRathod, who was son of claimant nos.1 and 2 and brother ofclaimant nos.3 and 4. On 08.12.2021, while he was proceeding onmotorcycle, offending Mahindra Pick Up bearing RegistrationNo.MH-25-P-5926 gave dash to motorcycle. Late Manoj sufferedfatal injuries. He died on 11.12.2021 while under medicalsupervision. The incident was reported to police station.Eventually, offence was registered against driver of Pick Up van.According to claimants, late Manoj was pursuing education in 12thStandard. He was aged about 19 years.3.The claim was contested by respondent no.2/insurer on allcounts. They raised defence that there was inordinate delay inlodging FIR, which is not explained. The involvement of vehicle isdoubtful. According to them, late Manoj was minor. He drove
Legal Reasoning
(3) fa-688-2024motorcycle without authorization/valid licence. He was notwearing headgear/helmet. As such, he was major contributor incause of accident and consequential death.4.The Tribunal after evaluation of evidence observed that sincedeceased was not holding valid licence to drive motorcycle and hewas not wearing helmet/headgear, his contribution in cause ofaccident has to be assessed to the extent of 20%. The Tribunalassumed notional income of deceased @ Rs.8000/- per month inabsence of income proof and after deducting one half towardspersonal and living expenses, ultimately, passed award ofRs.7,17,600/- alongwith interest @ 9% per annum in favour ofclaimant nos.1 and 2.5.Mr. Jadhav, learned Advocate appearing for appellantssubmits that Tribunal erroneously assumed contributorynegligence of deceased for reason that he was not holding licence ornot wearing headgear/helmet. According to him, Tribunal couldhave assumed his notional income @ Rs.12,000/- per month inconsonance with minimum wages applicable at the time ofaccident. Further nothing is granted towards loss of consortium toclaimants. On this count, he seeks enhancement of compensation.6.Per contra, Mr. Patil, learned Advocate appearing forrespondent no.2/Insurance Company justifies award. According to (4) fa-688-2024him, deceased was minor. He was driving motorcycle withoutauthorization and without wearing helmet/headgear. The conductof deceased was not only contrary to statutory provisions underMotor Vehicle Act, but same was detrimental to his own safety.According to Mr. Patil, Tribunal has rightly deducted 20% amounttowards contributory negligence. Mr. Patil would further submitthat in absence of income proof, Tribunal has rightly worked outcompensation based on notional income. Therefore, he urges tomaintain award as passed by Tribunal.7.Having considered submission advanced, it can be observedthat respondent no.2/insurer has accepted award as passed byTribunal and released compensation amount in favour of claimantnos.1 and 2. Therefore, points for consideration that arises in thisAppeal is as to fixing just compensation and to examine correctnessof findings on the point of negligence. This Court will have toexamine whether quantification of compensation is in consonancewith law laid down by Supreme Court of India in cases ofNational Insurance Company Limited Vs. Pranay Sethi &Ors.1 and Magma General Insurance Co. Ltd vs Nanu RamAlias Chuhru Ram2.8.As far as findings on the point of contributory negligence isconcerned, learned Tribunal relying upon evidence of CW-11(2017) 16 SCC 680.22018 (4) TAC 345. (5) fa-688-2024observed that deceased was not holding valid licence or he was notwearing headgear. Consequently, applied deduction of 20%towards contributory negligence of deceased. It is trite that, issueof negligence has to be decided on the basis of evidence tenderedinto service. The Tribunal has to record findings as to the act ofnegligence or carelessness on the part of driver/rider of vehicle thathas actually contributed in cause of accident.9.In present case, offence has been registered against driver ofoffending vehicle. CW-1 during course of his evidence placed onrecord police papers, which are admitted in evidence. It shows thatafter registration of offence against driver of Pick Up van,investigation was carried and charge-sheet was also filed againsthim. No evidence is brought on record to show how deceased hascontributed in cause of accident. Assuming that the deceased wasnot duly authorized to drive the motorcycle or was not wearingheadgear, both acts are punishable with a fine for infractionprovisions under Motor Vehicles Act or Rules framed thereunder.However, that itself cannot be ground to charge contributorynegligence against deceased. The Supreme Court of India in caseof Sudhir Kumar Rana and Surinder Singh and Ors.3 heldthat negligence cannot be attributed against victim only because hedriven his vehicle without valid authorization at the time ofaccident. If third party vehicle driver because of his rashness and32008 (12) SCC 436. (6) fa-688-2024negligent act gave dash to vehicle of victim, contributory negligenceof victim cannot be assumed. The relevant observations ofSupreme Court states as under:“8. If a person drives a vehicle without a licence, hecommits an offence. The same, by itself, in our opinion,may not lead to a finding of negligence as regards theaccident. It has been held by the courts below that it wasthe driver of the mini-truck which was being driven rashlyand negligently. It is one thing to say that the appellantwas not possessing any licence but no finding of fact hasbeen arrived at that he was driving the two-wheeler rashlyand negligently. If he was not driving rashly andnegligently which contributed to the accident, we fail to seeas to how, only because he was not having a licence, hewould be held to be guilty of contributory negligence.”10.Applying aforesaid exposition of law in facts of case, inabsence of any evidence to indicate rash and negligent driving onthe part of deceased, findings of contributory negligence asrecorded by Tribunal cannot be countenanced. In result, this Courtholds that there is no rational for holding 20% contributorynegligence of deceased and consequential deduction ofcompensation on that count.11.Even non-wearing of headgear by deceased at the time ofaccident, ipso facto does not constitute reason for attributingcontributory negligence against victim. The violation of traffic rulewould be definitely punishable under Rule, that attracts penalty orfine, but concept of contributory negligence is based on act ofcarelessness of driver while driving vehicle, which formulated (7) fa-688-2024cause of accident. Even assuming that deceased was not wearingheadgear, that has no relevance with cause of accident. Non-wearing of headgear or helmet has no resemblance with cause ofaccident. Those are two independent facts and cannot be mixedtogether to draw any inference to make out case of contributorynegligence. The respondents have not brought any material onrecord to indicate that because deceased was not wearing helmet orheadgear, accident in question occurred. In result, findings ofcontributory negligence is liable to be set aside.12.So far as submissions advanced by learned Advocatesappearing for appellants, notional income of deceased could havebeen considered @ 12,000/- per month, there is nothing on record tosubstantiate such contentions. The Tribunal considered age ofdeceased as 19 years. Admittedly, he was a student of 12thStandard. There is no evidence that deceased was contributing toparents or adding to family income. Nothing is brought on recordthat minimum wages as on date of accident for particular area orsector would apply in fact of the case. In absence of any suchmaterial, this Court do not find merit in contentions that notionalincome of deceased needs consideration @ Rs.12,000/- per month.13.Last submissions advanced on behalf of appellants is thatnothing is granted towards loss of consortium. The claimant nos.1and 2 are parents of deceased, whereas claimant nos.3 and 4 are (8) fa-688-2024siblings. In case of death of bachelor son, unless specificcircumstances are brought on record, only mother can beconsidered as dependent of deceased. However, loss of consortiumcan be considered to both parents. In this case, claimant nos.3 and4 being siblings are not entitled for compensation, since they aredependents on their father. In that view of matter, particularly,considering law laid down by Supreme Court of India in case ofMagma General Insurance Co. Ltd (supra) claimant nos.1 and 2needs to be compensated towards loss of consortium @ Rs.40,000/-each. In that view of matter, claimant nos.1 and 2 are entitled forcompensation as per following table:-Sr.No.HeadsAmount (Rs.)1Annual Income (Rs.8000 x 12)Rs.96,000/-2Addition of 40% towards future prospects(Rs.96,000/- + Rs.38,400/-) =Rs.1,34,400/-3One half deduction towards personal andliving expenses. Rs.1,34,400 / 2 = Rs.67,200/-Rs.67,200/-4Apply multiplier of ‘18’ (Rs.67,200 x 18)Rs.12,09,600/-5Rs.40,000/- to claimant nos.1 and 2 eachtowards loss of consortium (Rs.40,000/- x 2) Rs.80,000/-6Rs.15,000/- towards funeral expensesRs.15,000/-7Rs.15,000/- towards loss of estateRs.15,000/-TOTALRs.13,19,600/-14.In that view of the matter, the appeal deserves to beallowed. Hence, following order: -ORDERi.First Appeal is partly allowed. (9) fa-688-2024ii.The judgment and award dated 04.11.2023 passed by theMotor Accident Claim Tribunal, Osmanabad in M.A.C.P.No.40/2022 is modified.iii.The respondents shall jointly and severally pay compensationof Rs.13,19,600/- (Rs. Thirteen Lakhs Nineteen Thousand SixHundred only) alongwith interest at the rate of 6% per annum fromthe date of filing of the claim petition till realization of the amountto claimant nos.1 and 2 (inclusive of amount of ‘NFL’).iv.The compensation amount shall be apportioned in proportionof 30% and 70% to claimant nos.1 and 2 respectively.v.On deposit of compensation amount, same be released infavour of claimant nos.1 and 2.vi.Award be drawn up on payment of deficit court fees, if any.(S. G. CHAPALGAONKAR)JUDGEDevendra/April-2025