Civil Application No. 8951 of 2018 · Bombaybench High Court
Case Details
2025:BHC-AUG:27665 495-19-FA (+).odt {1}IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 495 OF 2019WITHCIVIL APPLICATION NO. 8951 OF 2018(for stay)IN FIRST APPEAL NO. 495 OF 2019The New India Assurance Company Ltd.,D.O. No.1 Adalat Road, Aurangabad,Through its Authorized Signatory,Ahyut S/o. Purushottam Kulkarni,Age: 56 years, Occu.: Service,R/o. Aurangabad.… Appellant(Orig. Resp. No.3)Versus1. Suwarna W/o Amol Sole, Age: 28 years, Occu.: Household, R/o. Pokhari, Tq. Ashti, Dist. Beed2. Shrawani D/o. Amol Sole, Age: 7 years, Occu.: Education, Minor U/G her mother present respondent no.1, R/o. Pokhari, Tq. Ashti, Dist. Beed.3. Janabai W/o. Mohan Sole, Age: 56 years, Occu.: Household, R/o. Pokhari, Tq. Ashti, Dist. Beed. 4. Mohan S/o. Narayan Sole, Age: 60 years, Occu.: Nil, R/o. Pokhari, Tq. Ashti, Dist. Beed.… Respondents(orig. Claimants) (Respondent No.4 deleted as per Court’s order dated 19.07.2024) 5. Hanumant S/o Chandrabhan Bhasat, Age: 50 years, Occu.: Business, Owner of the offending vehicle, R/o. Jamkhed, Karmala Road, Rajnagar, HSH, Opp. Bukule Complex, Tq. Jamkhed, Dist. Ahmednagar. 495-19-FA (+).odt {2}6. Jamil Noor Mohammad Pathan, Age: 45 years, Occu.: Driver R/o: Jamkhed, Karmala Road, Rajnagar, HSH, Opp. Bukule Complex, Tq. Jamkhed, Dist. Ahmednagar. ... Respondents(Ori. Respdt. nos. 1 and 2)…..Mr. M. M. Ambhore, Advocate for the Appellant.Mr. S. B. Choudhari, Advocate for Respondent Nos. 1 to 3.Mr. R. G. Hange, Advocate for Respondent Nos. 5 and 6.…..WITHFIRST APPEAL NO. 1892 OF 2018WITHCIVIL APPLICATION NO. 11786 OF 2018(for withdrawal of amount)IN FIRST APPEAL NO. 495 OF 20191.Suwarna w/o Amol Sole,Age : 28 years, Occu. Household,R/o Pokhari, Taluka Ashti,District Beed.2.Shrawani d/o Amol Sole,Age : 07 years, Occu. Education.[Applicant No.2 is minor u/g ofApplicant No.1 her real mother]3.Janabai w/o Mohan Sole,Age : 55 years, Occu. Household,R/o Pokhari, Taluka Ashti,District Beed.4.Mohan s/o Narayan SoleAge : 60, Occu. Nil,R/o Pokhari, Tal. Ashti,Dist Beed.[Appellant No.4 deleted as perCourt’s order dated 28.02.2025]… Petitioners
Legal Reasoning
495-19-FA (+).odt {3}Versus1.Hanumant s/o Chandrabhan Bhasat,Age : Major, Occu : Business,R/o Pathrud, Taluka Bhoom,District Osmanabad.2.Jamil s/o Noormohammad Pathan,Age : Major, Occu : Driver,R/o Jamkhed – Karmala Road,Rajnagar, H.S.H., Opp. Bukule Complex,Taluka Jamkhed, District Ahmednagar.3.The Branch Manager,The New India Assurance Company Ltd.Sathe Chowk, Jalna Road, Beed,District Beed.… Respondents…..Advocate for the Applicants : Mr. S. B. ChoudhariAdvocate for Respondent Nos. 1 and 2 : Mr. R. G. HangeAdvocate for Respondent No.3 : Mr. M. M. Ambhore…..WITHFIRST APPEAL NO.2075 OF 2018WITHCIVIL APPLICATION NO. 8964 OF 2018 (for stay)IN FIRST APPEAL NO.2075 OF 2018The New India Assurance Company Ltd.,D.O. No.1 Adalat Road, Aurangabad,Through its Authorized Signatory,Ahyut S/o. Purushottam Kulkarni,Age: 56 years, Occu.: Service,R/o. Aurangabad.… Appellant(Orig. Resp. No.3)Versus1. Supria W/o. Sharad Sole, Age: 30 years, Occu.: Household, R/o. Pokhari, Tq. Ashti, Dist. Beed 495-19-FA (+).odt {4}2. Samrudhi D/o Sharad Sole, Age: 7 years, Occu.: Education, Minor U/G her mother present respondent no.1, R/o. Pokhari, Tq. Ashti, Dist. Beed.3. Mandabai W/o. Santram Sole, Age: 56 years, Occu.: Household, R/o. Pokhari, Tq. Ashti, Dist. Beed. 4. Santram S/o. Bhaurao Sole, Age: 60 years, Occu.: Agril. R/o. Pokhari, Tq. Ashti, Dist. Beed.… Respondents(Orig. Claimants)5. Hanumant S/o Chandrabhan Bhasat, Age: 50 years, Occu.: Business, Owner of the offending vehicle, R/o. Jamkhed, Karmala Road, Rajnagar, HSH, Opp. Bukule Complex, Tq. Jamkhed, Dist. Ahmednagar.6. Jamil Noor Mohammad Pathan, Age: 45 years, Occu.: Driver R/o: Jamkhed, Karmala Road, Rajnagar, HSH, Opp. Bukule Complex, Tq. Jamkhed, Dist. Ahmednagar… Respondents(Orig Respdt. 1 & 2)…..Mr. M. M. Ambhore, Advocate for the Appellant.Mr. S. S. Dargad, Advocate for Respondent Nos. 1 to 4.Mr. R. G. Hange, Advocate for Respondent Nos. 5 and 6.…..CROSS OBJECTION NO. 90 OF 2024IN FIRST APPEAL NO.2075 OF 2018WITHCIVIL APPLICATION NO. 13717 OF 2018(for withdrawal of amount)IN FIRST APPEAL NO.2075 OF 20181.Supriya w/o Sharad Sole,Age : 35 years, Occu. Household,
Legal Reasoning
495-19-FA (+).odt {5}2.Samrudhi s/o Sharad Sole,Age : 12 years, Occu. Education,(Applicant No.2 being minor,U/guardianship ofApplicant no.1)3.Mandabai w/o Santram Sole,Age : 61 years, Occu. Household,4.Santram s/o Bhaurao Sole,Age : 65 years, Occu. Agriculture,All R/o. Pokhari, Tq. Ashti, Dist. Beed.… Applicants(Orig. Claimants)Versus1.New India Assurance Co. Ltd.Through Authorized Signatory,Adalat Road, Aurangabad,Tq. & Dist. Aurangabad.2.Hanumant s/o Chandrabhan Bhasat,Age : 55 years, Occu. Business,R/o. Jamkhed, Karmala Road, Rajnagar,HSH, Opp. Bukule Complex, Tq. Jamkhed,Dist. Ahmednagar.3.Jamil Noor Mohammad Pathan,Age : 50 years, Occu. Driver,R/o. Jamkhed, Karmala Road, Rajnagar, HSH, Opp. Bukule Complex,Tq. Jamkhed, Dist. Ahmednagar.… Respondents(R.No.1 Appellant,R.Nos.2 & 3 orig. Respdts)…..Advocate for the Petitioners/Applicants : Mr. S. S. DargadAdvocate for Respondent No.1 : Mr. M. M. AmbhoreAdvocate for Respondent Nos. 2 and 3 : Mr. R. G. Hange….. 495-19-FA (+).odt {6}CORAM : ABHAY S. WAGHWASE, J. RESERVED ON: 21 JULY, 2025 PRONOUNCED ON: 04 OCTOBER, 2025JUDGMENT :-1.Both appeals i.e. First Appeal No.495 of 2019 and First AppealNo.2075 of 2018 at the instance of the Insurance Company are arisingout of the same accident, but on account of distinct claim petitionsbearing M.A.C.P. No.168 of 2013 and M.A.C.P. 159 of 2013, decided byorders dated 22.02.2018 and 06.04.2018 respectively.The wives of deceased Amol and Sharad have also preferredFirst Appeal No. 1892 of 2018 and Cross Objection No. 90 of 2024being aggrieved by the quantum of compensation. FACTS GIVING RISE TO THE ABOVE APPEALS ARE AS UNDER:2.On 08.02.2023, both deceased, Amol and Sharad, weretraveling on a motorcycle bearing registration No. MH-23/L-8142. It isthe case of original claimants that, when their motorcycle reached thevicinity of Pandhari Shivar, one Mahindra Jeep bearing registrationNo. MH-25/B-7263, coming from the opposite direction, at anexcessively high speed and being driven in a rash and negligent 495-19-FA (+).odt {7}manner, gave dash to the motorcycle. As a result of which both, Amoland Sharad, sustained multiple and fatal injuries and subsequentlysuccumbed to the same. An offence was registered against the driverof the jeep. Two separate claim petitions were filed by the legal heirsof the deceased (present cross objectioners).3.The Tribunal issued notices to the respondents, i.e. the ownerand driver of the jeep, as well as their insurer. Though all therespondents caused their appearance, only the Insurance Companyseriously contested the claim petitions. After hearing the respectiveparties, the Tribunal was pleased to partly allow each of the claims byits judgments and awards dated 22.02.2018 and 06.04.2018,respectively.Aggrieved by the same, Insurance Company/original respondentNo.3 in both claim petitions, is hereby assailing the judgment andawards in each of the claim petitions by filing the instant appeals. Thelegal heirs of deceased Amol and Sharad have also preferred crossappeals being aggrieved by the quantum of compensation. 4.Heard both the sides at length. Perused the impugnedjudgments and awards in respective claim petitions. 495-19-FA (+).odt {8}5.The grounds raised by learned counsel for the InsuranceCompany are; firstly, the claimants had not cogently proved that theaccident was caused only due to the rash and negligent driving of thedriver of jeep bearing registration No. MH-25/B-7263. Secondly, FIRbeing against unknown vehicle, subsequently by collusion withrespondents (owner and driver of offending jeep), crime has beenregistered and vehicle insured by appellant/Insurance Company istried to be involved. Thirdly, there was inordinate delay in reportingthe registration number of the offending vehicle. Fourthly, theimportant/material witness from whom complainant allegedly gotinformation about involvement of jeep was not examined; and lastly,the driver of the jeep was not holding a valid and effective drivinglicence at the time of the accident, and therefore, there was a breachof the conditions of the insurance policy.6.The sum and substance of the argument put forth before thisCourt on behalf of the appellant/Insurance Company is that, oneSominath Gangadhar Sole is shown to be the informant. However,learned counsel pointed out that the complaint filed at his instance isbased on hearsay information, allegedly received from one Mahesh,who was also said to have been injured in the accident, but the said 495-19-FA (+).odt {9}Mahesh has not been examined for reasons best known to theclaimants. According to the learned counsel, there is no iota ofevidence except complaint regarding involvement of pick-up jeepinsured by the appellant.7.Learned counsel further pointed out that, apart from theclaimant, evidence of Angad Laxman Shinde, Babu Maruti Hambarde,and Krushna Dadasaheb Wandhare is also adduced. However, it is amystery as to how they were witnesses to the alleged occurrencewhich allegedly took place in the night. He pointed out that,consequently they are got up witnesses made to step up into thewitness box after a huge gap of almost four years. Therefore, it isdoubtful that they were able to note the registration number of thevehicle allegedly involved in the accident, more particularly as theincident occurred during night time, and reported the same after fouryears. He further emphasized that none of the witnesses have deposedto have seen the actual occurrence resulting in deaths, so as to holdthe pick-up jeep solely responsible for the dash.8.Learned counsel pointed out that, there is a huge possibility thata false and fabricated claim has been set up by the claimants incollusion with the witnesses, who belong to adjacent village and it 495-19-FA (+).odt {10}seems to be an attempt to extract compensation even when notentitled. He submitted that, the Insurance Company is custodian ofpublic funds and liable to pay only valid claim. According to him, inthe instant case, such frivolous claim ought not to have beenentertained by the Tribunal, and therefore, learned counsel takesserious exception to the judgment and award passed in both claimpetitions. He seeks reliance on the following rulings.(i)Oriental Insurance Company Ltd. Vs. Meena Variyal &Others, (2007) 5 SCC 428.(ii)Anil & others Vs. New India Assurance Company Ltd.,(2018) 2 SCC 482.(iii)National Insurance Copan Ltd. V. Nandabai w/oPrakash @ Pralhad dhumal & Others, [First Appeal No.1565of 2012.(iv)Mr. Pukh Raj Bumb V. Mr. Jagannath Atchut Naik andothers, [First Appeal No.32 of 2013]; and(v)Vitthal Sopan Suryawanshi, V. Daji Rajkumar Shinde,[First Appeal No.2061 of 2023]9.In answer to above, learned counsel for the respective claimantssupported the impugned judgment by pointing out that the informantwas also travelling in close proximity to both deceased. Learned 495-19-FA (+).odt {11}counsel submitted that the complainant had seen both the deceasedand the injured proceeding ahead of him. That, at a short distancefrom the deceased, one Mahesh, who was also injured, had providedinformation about the alleged accident. Though Mahesh was notexamined, no specific efforts were also made by the InsuranceCompany to engage a private investigator to verify the veracity of thealleged accident. It is pointed out that a prompt FIR was lodged. That,the investigating agency conducted a thorough investigation and acharge-sheet was filed against the driver of the offending jeep and heis also charge-sheeted. Therefore, in view of the availability of thecharge-sheet and the thorough investigation conducted, it is not openfor Insurance Company to allege false implication of the offendingjeep. Allegation of collusion is also refuted by submitting that there isnothing on record to suggest that the complainant and the witnesses,who are residents of distinct villages, are acquainted with each other.For said reasons, it is prayed that such ground be discarded.10.Lastly, it is submitted that, considering the sufficiency andquality of the evidence, the learned Tribunal has correctly appreciatedthe evidence adduced by the claimants as well as the settled legalposition on reliability of FIR, spot panchanama and chargesheet andrightly held that the driver of the offending vehicle was rash and 495-19-FA (+).odt {12}negligent, as well as entitlement of compensation being cogentlyproved and the same has been awarded. But grievance is raised thatunfortunately, the compensation awarded is inadequate, andaccordingly, separate first appeal and cross-objection for enhancementof compensation have been filed by the heirs of deceased Amol anddeceased Sharad, respectively.SUM AND SUBSTANCE OF THE EVIDENCE ADDUCED BYCLAIMANTS BEFORE THE TRIBUNAL IN M.A.C.P NO.168 OF 2013 ISAS UNDER: 11.Wife of the deceased Amol, namely Suvarna Sole, in heraffidavit evidence at Exhibit-46, gave details of her own status, as wellas information regarding her son and in-laws. She stated that on08.02.2013, her husband Amol, along with Sharad, was proceeding ona motorcycle bearing registration No. MH-23-L-8142 from Ashti toJamkhed. At around 08.40 p.m., their motorcycle was given a dash byMahindra Jeep bearing No. MH-25/B-7263 in which her husband andSharad both suffered grievous injuries and died on the spot. That,initially, crime bearing No.34/2013 was registered against anunknown vehicle. However, on investigation, crime has beenregistered against driver of Mahindra Jeep bearing No. MH-25/B-7263. She stated the age of her deceased husband as 28 years and 495-19-FA (+).odt {13}described him as healthy and hearty. He was working as a Manager atPrimeone Workforce Pvt. Ltd., earning a salary of Rs.17,000/- permonth, and also engaged in agricultural activities, earningapproximately Rs.1,00,000/- per annum. Because of the accidentaldeath of her husband, she, her son, and her in-laws, who weredependent on him, have lost their source of income and thereby sheset up a claim of Rs.31,44,000/- under various heads and she soughtthe same from owner, driver of the jeep as well as its insurer i.e.original respondents No.1 to 3.She was cross-examined by learned counsel for the InsuranceCompany, wherein she admitted that, she has not seen the accident.However, she denied all suggestions regarding the age, service, salary,agricultural holdings, income, and dependency to be false. She alsocategorically denied any suggestion that the offending vehicle (jeep)or its driver was not responsible for the accident.12.Crime was registered at Police Station Ashti, bearing No. 34 of2013, at the instance of one Sominath Gangadhar Sole on 09.02.2013,i.e., immediately on the next morning, wherein, Sominath reportedthat he, along with Angad, were proceeding on motorcycle towardstheir village, and at that time, Amol and Sharad, who were also on 495-19-FA (+).odt {14}their motorcycle, met them and all four of them were proceedingtowards Pokhari. Around 08.30 p.m., he and his pillion rider namelyAngad took a brief halt for taking tea, whereas Amol and Sharadproceeded ahead. Around 08.40 p.m., Amol and Sharad were foundlying in injured condition on the road. He has reported that oneMahesh Sole of their village was also lying there in injured conditionand from him it was learnt that dash was given by one pickup jeep toAmol and Sharad and even dash was given to him and pickup driverfled away towards Ashti without waiting. It is further reported thatinformation was passed to the villagers and injured were taken to thehospital. On such report, Ashti Police registered the above crime.13.Sominath was examined by the claimants in MACP 168/2013,and his evidence is recorded at Exhibit-58. He reiterated that on08.02.2013, he and Angad Laxman Shinde had gone to Ashti forpersonal work. While returning, they saw Amol and Sharad on amotorcycle. He reiterated the contents of the report, stating that heand Angad had halted to have tea, while Amol and Sharad wentahead. Around 8:40 p.m., Amol and Sharad were found lyingunconscious and injured on the road. One Mahesh Sole, a resident oftheir village, was also found lying in injured condition at somedistance from the spot and he passed information about dash given by 495-19-FA (+).odt {15}pickup to the motorcycle of Amol and Sharad as well as to him andpickup jeep proceeded towards Ashti direction.The above witness was also cross-examined wherein he hasstated that, the accident had occurred four years back. He furtherstated that Amol was his cousin. He was also questioned about thegeographical direction of the spot of accident. He answered that,Mahesh was also his distant cousin. He answered that, when he metMahesh, he did not give number of pickup vehicle as he was notknowing, and it was rather stated by Mahesh that dash was given byunknown vehicle. Rest of suggestions are denied by him.14.Witness No. 2 Satish Gaikwad seems to be the spot pancha. Hewas examined by the claimants at Exhibit-55. It has come in hisevidence that on 09.02.2013, he was called by Ashti Police and spotwas shown to him and in his presence, panchanama was drawn. Heidentified the contents of panchanama Exhibit-50.In cross, he has denied almost all suggestions except stating thathe had accompanied Sarpanch to whom police had called and in hispresence panchanama was drawn. He has also stated aboutmotorcycle bearing No. MH-23-L-8142 to be lying there. Rest allsuggestions are denied. 495-19-FA (+).odt {16}15.Witness No. 4 Hemant Kudale in his evidence at Exhibit-65testified that he was working in Primeone Workforce Pvt. Ltd. since2013. That, Amol was serving in the said company. The company paidsalary to deceased Amol and the salary slips placed on record are trueand correct.He is also cross-examined, wherein the above aspect appearingin his chief has not been dislodged. Certificate of employment contractand salary slips are also identified by this witness to be true andcorrect. 16.Claimants have also produced certified copies of evidence ofwitnesses in another claim petition, i.e. MACP No. 159/2013, namelyWitness No. 5 Angad Laxman Shinde (Exhibit-76), Witness No. 6 BaluHambarde at Exhibit-77, and Witness No. 7 Krushna Wandhare atExhibit-78 (r/o Pokhari and Pandhri respectively).17.Balu Hamdarde, who was examined by the claimants in MACPNo. 159/2013, testified that on 08.02.2013, he, Suresh, Balu, Krsuhaand Manohar were sitting in front of his house. Around 08.30 to 8.45p.m. they went to the spot and they saw pickup jeep bearing No. MH-25-B-7263 coming from Jamkhed side and giving dash to motorcycle. 495-19-FA (+).odt {17}He has deposed that, at that time, Angad Shinde came and told themthe names of Amol and Sharad and they to be from his village.Above witness is cross-examined, where he admitted that therewas darkness on the spot. He denied that Amol and Sharad weredrunk and they were driving the vehicle in zigzag manner. He deniedthat there was no negligence or rashness or the fault of the pickupdriver. In cross on behalf of Insurance Company, he answered that hewas residing opposite side to the road and there were 4 to 5 houses,where 15-20 people were residing in the locality. He has answeredthat 7 to 8 person gathered at the spot. He specifically answered that,at the time of accident, he was sitting near the road. He admitted that,he does not keep a note of the vehicles passing on the road. Headmitted that he himself did not lodge the report. He answered that,on the next day, police made an inquiry and occurrence was reported.Rest all suggestions are denied. 18.Similar is the evidence of Krushna (examined as witness inMACP 159/2013) wherein he has stated that on 08.02.2013, around08.30 p.m., accident occurred and therefore, he himself, BaluHambarde, Manohar and Shashikant were sitting and chatting and at 495-19-FA (+).odt {18}that time, Mahindra Jeep MH-25/B-7263 came at high speed andgave dash to the motorcycle and also gave dash to another person.The said pickup jeep fled away. At that time, Angad had reached thereand he had provided names of injured persons.In cross at the hands of Insurance Company, the abovetestimony has not been shaken.19.Apart from the oral account, claimants have placed on recorddocumentary evidence comprising of driving licence of deceased Amol,SCC certificate and graduation certificate, bona fide certificate,contract agreement between employer and deceased (Exhibit-43),salary certificate and 7/12 extract of agricultural land. 20.Precisely pointing to the above evidence of Sominath, learnedcounsel for the Insurance Company has raised the issue about theinvolvement of the offending vehicle jeep. However, here, there isprompt lodgment of complaint by Sominath, upon which thoroughinvestigation has been carried out and thereafter charge-sheet hasbeen filed against the driver of offending vehicle jeep. True it is thatMahesh has not been examined, but the charge-sheet is accepted inthe trial Court and moreover, Insurance Company, as submitted by 495-19-FA (+).odt {19}learned counsel for claimants, has not been diligent in engaging itsown investigator and further has also failed examine InvestigatingOfficer, who was a crucial witness so as to demonstrate their stand offalse implication of vehicle. Merely because the witnesses, namely,Balu and Krushna deposed before the Court at the time of trial, whichactually commenced after four years, it cannot be directly inferred thatthey are got-up witnesses. It is pertinent to note that, the InsuranceCompany has not adduced any evidence of engaging a privateinvestigator, and there is no precedent or judgment laying down theratio that a claim based on an FIR against an unknown vehicle or hitand run case is not maintainable. On the contrary, law has been settledby the Hon’ble Apex Court in the case of Kuncham Lavanya and othersv. Bajaj Allianz 2025 DGLS (SC) 513 wherein, in para 17 it has beenobserved as under :“17.The very fact that the case was registered against anunknown vehicle initially would indicate that theoffending vehicle was not identified. However, since andFIR is not expected to be encyclopaedic and is only for thepurpose of putting into motion criminal law such thatthorough and full-fledged investigation by the policeensues, it is the duty of the investigating agency to findout the identity of the culprit which in the present casewould be the offending car and driver and take action in 495-19-FA (+).odt {20}accordance with law. Thus, the mere fact that initially theFIR records the vehicle as unknown would not be fatal forthe prosecution/claimants to later come up with thespecific identity of the vehicle/driver, with the obviouscaveat that the connection of the accident with the saidvehicle has to be based on cogent and reliable evidence.”Insurance Company is expected to demonstrate that the vehicleallegedly insured by it was not at all involved. No evidence either oralor documentary has been adduced in this regard. On the contrary, evidence of complainant Sominath and otherwitnesses, namely, Baban, Angad, Balu and Krushna has remainedintact and nothing adverse is brought in the cross of even complainantSominath so as to doubt that false and frivolous complaint has beenlodged by colluding with the owner or driver of the offending vehicle.Even the nature of suggestions like deceased were whether drunk,goes to show that there is no serious challenge to such evidence.Above named witnesses are villagers and therefore, they may not havebeen diligent in giving their statements on their own. Only whenpolice approached them, they seem to have given their statements. 495-19-FA (+).odt {21}21.Though plea of statutory breach of non-availability of drivinglicence is also raised by the learned counsel for Insurance Company,however, the Insurance Company has failed to prove the same.22.Learned counsel for Insurance Company has submitted thatcompensation awarded by the Tribunal is exorbitant. However, theevidence on record before the Tribunal, i.e. both oral anddocumentary evidence, clearly shows that deceased Amol wasemployed as a Manager and was earning a monthly salary ofRs. 17,000/-. Witness No. 4 Hemant Kudale, Assistant BranchManager of the employer, has been examined at Exhibit 65. Salarycertificates of deceased are at Exhibits 66 to 71.23.Resultantly, with such quality of evidence on record, no faultcan be found in the findings of the Tribunal regarding salary income aswell as agricultural income. Findings recorded by the Tribunal appearto be based on judicial precedent. No perversity or illegality is broughtto the notice of this Court so as to interfere in the same. 495-19-FA (+).odt {22}SUM AND SUBSTANCE OF THE EVIDENCE ADDUCED BYCLAIMANTS BEFORE THE TRIBUNAL IN M.A.C.P NO. 159 OF 2013 ISAS UNDER: 24.Father of deceased Sharad, namely Santram Sole in his affidavitevidence at Exhibit-33 has given his own status, details of his wife,grand-daughter and daughter-in-law. He stated that on 08.02.2013,his son Sharad along with Amol was proceeding on motorcyclebearing No. MH-23-L-8142 from Ashti to Jamkhed to their villagePokhari. At around 08.40 p.m., their motorcycle was given dash byMahindra Jeep bearing No. MH-25-B-7263 in which his son Sharad,and Amol both suffered grievous injuries and died on the spot. That,initially crime bearing No.34/2013 was registered against unknownvehicle. However, on investigation, crime has been registered againstdriver of Mahindra Jeep bearing No. MH-25-B-7263. He gave age ofhis deceased son as 32 years and to be healthy and hearty and to beworking as a Manager in Kisan Kranti Cotton Industries and earningsalary of Rs.27,500/- per month and also conducted milk business andearned Rs.6,000/- per month. Because of the accidental death, he,along with his wife, daughter-in-law, and grand daughter, who weredependent on him, lost their source of income and thereby set up aclaim of Rs. 75,00,000/- under various heads, which he sought to 495-19-FA (+).odt {23}recover from the owner, driver of the jeep, and its insurer, i.e. originalrespondents No. 1 to 3.He is cross-examined by learned counsel for InsuranceCompany, wherein he has admitted that he has not seen the accident,but he has denied all suggestions about service and dependency. Healso completely denied falls implication of offending vehicle jeep ordriver of the vehicle to be not responsible for the accident. 25.The details of crime registered at the instance of Sominath arealready discussed in the foregoing paragraphs.26.Witness No. 2 Sunil Bhogade in his evidence at Exhibit-54testified that he knows claimant Santram. He further deposed that hesold a jersey cow to deceased Sharad on 05.09.2011 for Rs.23,250/-.The receipt of the same was also issued, which is at Exhibit-55.In his cross, receipt regarding selling of jersey cow is alsoidentified by this witness to be true and correct. 27.Witness No.3 Eknath Bhogade, in his evidence, has deposed thathe is Chairman of Milk Dairy and his wife is Secretary. He stated that,he looks after the day-to-day affairs of the dairy. He further deposedthat, deceased Sharad was regularly supplying milk to his dairy from 495-19-FA (+).odt {24}09.06.2011 till 08.02.2013 and he also issued the payment slips forthe same.In his cross, consolidated payment slips at Exhibit-57 are alsoidentified by him to be true and correct.28.Claimants have also adduced evidence of Witness No. 4 Babanat Exhibit-62, Witness No. 5 Angand at Exhibit-67, Witness No.6 Baluat Exhibit-69, and Witness No.7 Krushna Wandhare at Exhibit-70.29.PW-4 Baban in his evidence at Exhibit-62 testified that he wasworking as a Manager in Kisan Kranti Cotton Industries, Ashti since2008. That, Sharad was serving as Manager in the said company. Thecompany paid salary of Rs.27,500/- to deceased Sharad and he alsoidentified the salary certificate placed on record to be true and correct.He is also cross-examined, however the above aspect appearingin his chief has not been dislodged. Salary certificate and salaryregister are also identified by this witness to be true and correct. 30.Evidence of PW-6 Balu Hamdarde and PW-7 Krushna Wandharehas already been discussed in the foregoing paragraphs. Therefore, itneed not be reiterated here. 495-19-FA (+).odt {25}31.Claimants of this claim have relied on the judgment of theTribunal in Claim Petition no. 168 of 2013 decided on 22.02.2018. Onanalyzing the evidence of above witnesses it is emerging that WitnessSantram happens to be the father of deceased Sharad. Substance ofhis evidence is already dealt above. He too has also deposed aboutdash being given to the motorcycle of which Amol was rider and hisson Sharad was pillion rider. He has also given the vehicle number ofthe jeep and further deposed about report of the occurrence beinglodged by Sominath. While under cross, he has admitted that though,on complaint of Sominath crime was registered against unknownvehicle, according to him, investigation revealed that offending vehicleMahindra jeep was involved in the said accident.PW5 Angad whose evidence is discussed in above claim, alsogoes to show that along with Sominath, he too was a witness. That, hewas in the very company of complainant Sominath who lodged report.Again, PW6 Balu Hambarde also deposed about hearing sound around8.30 to 8.45 p.m. and when he rushed to the spot with others, theysaw jeep bearing no. MH 25-B-7263 to have given dash. He furtherstated that, Angad told that deceased were of his village. The mannerof cross of this witness clearly shows that only length, breadth of road 495-19-FA (+).odt {26}and geographical directions of the spot are questioned. His statementis also recorded by police.Similarly PW7 Krishna also deposed on above lines and even inhis cross, except admitting that pick up van sped away in westerndirection and not informing at toll naka, there is no other suggestion.He admitted that his statement was not recorded by the police. 32.On complete re-appreciation of the above available evidence,here also, informant is Sominath. At the time of accident, he wasaccompanied by Angad. Their evidence about seeing both, deceasedAmol and Sharad travelling in their direction itself, and going ahead ofthem, has remained intact. Here also, though rest of the witnesseshave deposed after a lapse of years after the occurrence, it has comeon record that police have recorded their statements and afterthorough investigation, charge sheet has been filed against offendingjeep. As stated above, steps to examine Investigating Officer toquestion involvement are also not taken by the present appellant-respondent Insurance Company. In the light of such availableevidence, and evidence of Sominath and Angad to be suggesting thatthey were both in proximity of time and place to the deceased, there isno valid reason to discard their evidence. 495-19-FA (+).odt {27}CROSS OBJECTION NO. 90 OF 2024 & FIRST APPEAL NO. 1892 OF 2018 33.Instant cross objections/appeals are by wives of deceasedSharad and Amol, who were proceeding on motorcycle and hadallegedly met road traffic accident and had succumbed to the injuriestherein. Supriya (wife of deceased Sharad) had set up accident claimpetition bearing MACP No. 159 of 2013 for herself as well as for otherheirs of Sharad i.e. compensation to the tune of Rs.75,00,000/-.Similar objection has been raised by Supriya (wife of deceased Amol). Claims bearing MACP Nos. 159 of 2013 and 168 of 2013 weredecided by judgment and orders dated 06.04.2018 and 22.02.2018respectively. The learned Tribunal considered contributory negligenceon the part of Amol and held 60% negligence on the part of offendingvehicle jeep and directed compensation to be paid by its ownerrespondent no.1, driver respondent no.2 and its insurer respondentno.3, and also held 40% contributory negligence on the part of Amoli.e. rider of the motorcycle. 34.In First Appeal No. 1892 of 2018, it is tried to be submitted that,there was no evidence whatsoever to also hold contributorynegligence on the part of rider Amol and therefore it was not open forlearned Tribunal to apply principles of composite negligence whilefixing responsibility and considering entitlement of compensation. 495-19-FA (+).odt {28}Whereas learned counsel for cross objectioner in CrossObjection No. 90 of 2024 pointed out that here, undisputedly, Amolwas rider whereas deceased Sharad was a pillion rider. Under suchcircumstances, it is put forth that Sharad was not responsible for theaccident in any manner. If at all there is negligence, it is on the part ofrider Amol. Resultantly, it is submitted that, learned tribunal ought notto have deducted 40% from the entitled compensation under the headof contributory negligence. He seeks reliance on the judgment of theHon’ble Apex Court in the case of Khenyei v. New India Assurance Co.Ltd. & Ors. AIR 2015 SC 2261. 35.In view of above points raised, impugned judgments arerequired to be visited. While answering point nos. 1 and 2, learnedtribunal has held that, there was contributory negligence also on thepart of deceased Amol and Sharad, and after reflecting on thechargesheet papers, more particularly spot panchanama, it is heldthat, rider of the motorcycle was also contributory party in negligenceand fixed 40% liability accordingly.36.Observations of learned tribunal in regard to above two pointsare dealt by way of issue nos. 1 and 2 together. As regards todiscussion on these two issues, there are observations in para 24 of the 495-19-FA (+).odt {29}judgment in MACP No. 168 of 2013. Learned tribunal seems to havemeticulously examined the available evidence, more particularlyreport lodged by Sominath, as well as spot panchanama filed alongwith the charge sheet, and has noted that, motorcycle was lyingtowards the southern side of the road going from Jamkhed to Ashtiwhich runs east-west. It is also noted that there are brake marks offour-wheeler from east side to west side to the extent of 10 to 15 feet.Width of the road is taken into account as 21 feet, marking of whitestrip over middle portion of the road is also noted and after takingsuch spot details and also on the strength of hand sketch map, findinghas been recorded that accident took place on southern side ofJamkhed-Ashti road which runs east-west. Considering the directionsin which both vehicles i.e. motorcycle as well as offending jeep wereproceeding, it is held that deceased Amol, who was rider of motorcycleand he left his correct side and had gone to some extent towards themiddle strip, which was not his correct part of road and hence learnedTribunal has rightly considered contributory negligence on the part ofAmol also. Except raising ground in cross appeal, no distinct materialin support of above contention has been placed on record by theoriginal claimants. There being no perversity in fixing contributorynegligence of Amol also, such finding need not be disturbed. 495-19-FA (+).odt {30}However, as regards to objection raised by heirs of deceasedSharad is concerned, there is a valid point. Admittedly, Sharad wasmere pillion rider. Therefore it would be unjust and improper to alsofix responsibility of pillion rider when Amol was rider and was solelyresponsible by contributing to the mishap. For such reasons, learnedtribunal ought not to have deducted 40% towards contributorynegligence from the compensation entitled by heirs of deceasedSharad. Therefore, order of the Tribunal is required to be interfered tothat extent.37.Second objection is regarding less quantum. However,considering the nature of evidence adduced by witness Hemant inMACP/168/2013, father of deceased Sharad as well as witnessesSunil, Eknath and Baban in MACP/159/2013, it cannot be said thatthere is inappropriate calculation or computation of annual income.However, there seems to be error on the part of learned Tribunalin not awarding loss of consortium to each of the claimants. Theobservations regarding consortium are reflected in para 35 of MACPNo. 168 of 2013 and para 31 of MACP No. 159 of 2013. In MACP No.168 of 2013, learned Tribunal has awarded consortium only toclaimant no.1 i.e. wife of deceased Amol, whereas, in MACP No. 159of 2013, learned Tribunal has awarded lump-sum amount of 495-19-FA (+).odt {31}Rs.70,000/- towards consortium, love and affection, loss of estate andfuneral expenses. So also, in MACP No. 168 of 2013, the learnedTribunal erred in deducting 40% towards contributory negligence afteraddition of non pecuniary losses. In fact, 40% deduction towardscontributory negligence ought to have been made first and then thecompensation under non pecuniary heads ought to have beenconsidered. Here, claimants in MACP No. 168 of 2013 are also assertingfuture prospects for its non-consideration by learned Tribunal. LearnedTribunal has made observations for dis-entitlement of future prospectsin para 33. View taken seems to be that, there is no strong positiveevidence on record suggesting definite prospects of increase in theincome of deceased in future. On such count, future prospects arerefused. In the considered opinion of this Court, it has come on recordby way of evidence that deceased was working as manager and wasearning salary. It is also not in dispute that said services were oncontractual basis. However, it has not come on record that under nocircumstances the contractual service would be extended in future.Even witness who has appeared on behalf of employer on the point ofsalary has not been questioned by insurance company that, the aboveservices were only for a fixed period and not beyond it. Therefore, 495-19-FA (+).odt {32}there is no reason to infer that there would not be future prospects tothe deceased. In view of ratio laid down by the Hon’ble SupremeCourt in National Insurance Company Limited v. Pranay Sethi and Ors.AIR 2017 SC 5157, claimants in MACP No. 168 of 2013 are entitledfor addition of 40% of established income towards future prospects.Hence, interference to that extent in the order of Tribunal is called for.38.In view of the ratio laid down in National Insurance CompanyLimited v. Pranay Sethi and others 2017 (16) SCC 680 and MagmaGeneral Insurance Co. Ltd v. Nanu Ram and others (2018) 18 SCC130, claimants in MACP No. 168 of 2013 are entitled for consortiumof Rs.40,000/- each, i.e. Rs.1,60,000/- plus 20% (Rs.32,000/-) whichcomes to Rs.1,92,000/- towards consortium.Similarly, claimants in MACP No. 159 of 2013 are also entitledfor consortium of Rs.40,000/- each, i.e. Rs.1,60,000/- plus 20%(Rs.32,000/-) which comes to Rs.1,92,000/- towards consortium.Claimants are also entitled for compensation Rs.15,000/- towards lossof estate and Rs.15,000/- towards funeral expenses, in stead of lumpamount of Rs.70,000/-. Further, on perusal of paragraph no. 28 of thejudgment in the said claim petition, the tribunal seems to havededucted 40% (Rs.1,34,400/-) towards personal expenses instead ofdeducting 1/4th amount of yearly income which comes to Rs.84,000/- .
Decision
495-19-FA (+).odt {33}39.In view of the above discussion, in the considered opinion ofthis Court, the claimants in MACP No. 168 of 2013 are entitled forfollowing compensation :Sr.No.HeadsAmount (Rs.)1Monthly Income (as computed by the Tribunal) Rs.11,929/-2After addition of 40% future prospects(11929 + 4771)Rs.16,700/-3Annual Income from salary (16700 X 12)Rs.2,00,400/-4After addition of annual managerial loss i.e.Rs.5,000/- (as computed by the Tribunal)Rs.2,05,400/-2After 1/4th deduction towards personalexpenses (205400 – 51350)Rs.1,54,050/-3Multiplier of 17 ( 154050 X 17)Rs.26,18,850/-4After deduction of 40% towards contributorynegligence i.e. Rs.10,47,540/-(26,18,850 – 10,47,540)Rs.15,71,310/-5Non-pecuniary Loses :-Loss of consortium = Rs.1,92,000/-Loss of Estate = Rs.15,000/-(as awarded by Tribunal)Funeral Expenses = Rs.15,000/-(as awarded by Tribunal)Rs.2,22,000/-6Total compensation to be paid(i.e. 11,33,332 + 2,22,000/-)Rs.17,93,310/-7Compensation awarded by the TribunalRs.11,75,330/-8Total Enhanced Compensation( 17,93,310 – 11,75,330)Rs.6,17,980/- 495-19-FA (+).odt {34}40.Similarly, the claimants in MACP No. 159 of 2013 are entitledfor following compensation :Sr.HeadsAmount (Rs.)1Annual Income (as computed by the Tribunal) Rs.3,36,000/-2After 1/4th deduction towards personalexpenses(3,36,000 – 84,000)Rs.2,52,000/-3Multiplier of 16 (2,52,000 X 16)Rs.40,32,000/-4Non-pecuniary Loses :-Loss of consortium = Rs.1,92,000/-Loss of Estate = Rs.15,000/-(as awarded by Tribunal)Funeral Expenses = Rs.15,000/-(as awarded by Tribunal)Rs.2,22,000/-5Total compensation to be paid(i.e. 24,19,200 + 2,22,000/-)Rs.42,54,000/-7Compensation awarded by the TribunalRs.20,09,000/-8Total Enhanced Compensation(26,41,200 – 20,09,000)Rs.22,45,000/-41.In the result, following order is passed :ORDERI.First Appeal No. 495 of 2019 and First Appeal No. 2075 of 2018filed by the Insurance Company are hereby dismissed.II.In view of dismissal of First Appeal No. 495 of 2019 and FirstAppeal No. 2075 of 2018, the Civil Application No.8951 of 2018and Civil Application No. 8964 of 2018 also stand disposed off. 495-19-FA (+).odt {35}First Appeal No. 1892 of 2018III.First Appeal No. 1892 of 2018 filed by the claimants in MACPNo. 168 of 2013 is partly allowed with proportionate costs.IV.The impugned judgment and award dated 22.02.2018 passedby Adhoc District Judge-1 and Member of M.A.C.T., Beed inM.A.C.P. No. 168 of 2013 is modified.V.Respondent Nos. 1 to 3 in First Appeal No. 1892 of 2018 to payenhanced compensation of Rs.6,17,980/- to the claimantswithin 12 weeks from today along with interest @ 6% perannum from the date of registration of claim petition till itsrealization.VI.Modified award be prepared accordingly.VII.Claimants to pay court fees on additional compensation as perRules.VIII.On deposit of amount by the Insurance Company,appellants/claimants are permitted to withdraw the same.Cross Objection No. 90 of 2024IX.Cross Objection No. 90 of 2024 filed by the claimants in MACPNo. 159 of 2013 is partly allowed with proportionate costs. 495-19-FA (+).odt {36}X.The impugned judgment and award dated 06.04.2018 passedby Member of M.A.C.T., Beed in M.A.C.P. No. 159 of 2013 ismodified.XI.Respondent Nos. 1 to 3 in Cross Objection No. 90 of 2024 topay enhanced compensation of Rs.22,45,000/- to the claimantswithin 12 weeks from today along with interest @ 6% perannum from the date of registration of claim petition till itsrealization.XIII.Modified award be prepared accordingly.XIII.Claimants to pay court fees on additional compensation as perRules.XIV.On deposit of amount by the Insurance Company,appellants/claimants are permitted to withdraw the same.Civil Application No. 11786 of 2018andCivil Application No. 13717 of 2018XV.Both the Civil Applications are allowed. The applicants-claimants in both the Applications are permitted to withdrawthe entire amount deposited in this Court along with interestaccrued thereon, on furnishing usual undertaking to thesatisfaction of the Registrar (Judicial) of this Court. 495-19-FA (+).odt {37}42.Learned counsel Mr. Ambhore for the Insurance Company hadalso prayed for stay to the effect and implementation of this order, if atall the Court is inclined to enhance the compensation, so as to enablethe Insurance Company to approach the Hon’ble Supreme Court.However, as 12 weeks time has already been granted for payment ofenhanced compensation along with interest, stay to the effect andimplementation of this order for six weeks is unwarranted. Hence, theprayer for stay stands refused. [ABHAY S. WAGHWASE, J.]vre