High Court
Legal Reasoning
FA-1753-2007.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1753 OF 20071.The State of Maharashtra2.The Executive Engineer,Public Works Division, Ambajogai, Dist. Beed...AppellantsVersus1.Devidas Limba Chavan(Through Lrs) and Ors.1/1.Surekha Devidas ChavanAge 37 years, Occu. Household,1/2.Sneha Devidas ChavanAge 21 years, Occ. Education1/3.Sanika Devidas ChavanAge 18 years, Occu. Education1/4.Sarthak Devidas ChavanAge 14 years, Occu. EducationUnder Guardianship of MotherSurekha Devidas ChavanAll R/o. Chikni Tanda, Andur,Tal. Tuljapur, Dist. Osmanabad2.The Director of State InsuranceNew Administrative BuildingOpposite Mantralaya, Mumbai-32...Respondents***Mr. S. G. Sangle, AGP for the AppellantMr. P. S. Chavan, Advocate for Respondents***CORAM:R.M. JOSHI, J.DATE:OCTOBER 10, 2025Page 1 of 12 FA-1753-2007.odtJUDGMENT:1.This Appeal is preferred by theappellant/registered owners under section 173 of theMotor Vehicles Act, 1988 (for the sake of brevity, “theAct”), takes exception to the judgment and award dated19/07/2007 passed in M.A.C.P No. 219/2004, whereby theLearned Tribunal has partly allowed the claim filed byDeceased Claimant, thereby granting a compensation ofRs. 5,04,000/- along with interest @7.5% per annum from28/04/2004 till the realisation.2.The claimants are the legal heirs of theoriginal claimant, who has passed away, contesting theproceedings before this court.3.For the sake of convenience, the respondentNo. 1 is referred to as “Deceased Claimant”, and therespondent No.2 as “Insurer” and the appellants as“registered owners” of the Car No. MH-23/F-0024,involved in the accident.4.The deceased claimant worked as a Mason. It isthe case of the deceased Claimant that on 16 March2004, the deceased claimant was proceeding from NaldurgPage 2 of 12 FA-1753-2007.odtto his village, Chikani Tanda, taluka Tuljapur. He wasriding a bicycle on the Naldurg-Tuljapur road, near theTuljabhavani Sugar Factory, at the petrol pump inNaldurg.5.At the relevant time, an Ambassador Car No.MH-23/F-0024 came from the back side at high speed andgave a dash to the bicycle of the deceased claimant,resulting in an accident. The deceased claimantsustained serious injuries pursuant to the accident.The driver of the Car was claimed to be responsible forthe accident. The deceased claimant was hospitalisedfrom 16/03/2004 to 25/05/2004 as he had sustainedserious injuries due to the said accident. 6.As a result, there is a total loss of visionin both eyes of the deceased claimant because of graveinjuries sustained. The deceased claimant had to spenda substantial amount for his medical treatment andincidental expenses [like special diet and conveyancecharges]. It was averred that the accident occurred dueto the rash and negligent driving of the car. later, aFirst Information Report (FIR) No. 43/2004 wasregistered in Naldurg under sections 279, 337 & 338Page 3 of 12
Legal Reasoning
FA-1753-2007.odtagainst the driver of the said Ambassador car.7.It was claimed that the deceased claimant wasearning Rs. 4500/- per month before the accident.However, in view of the injuries sustained, he sufferedtotal loss of earnings and earning capacity due to theaccident. The Car was insured by the insurer at thetime of the accident. The deceased claimant claimedthat the registered owner and insurer are liable forpayment of compensation. The deceased claimant prayedfor an award of Rs 6,00,000/-, including pecuniary andnon-pecuniary damages from the registered owners.8.Accordingly, the appellants/registered ownerfiled written statement at Exhibit 38, and denied thematerial contentions raised before the tribunal. It isdenied that the driver of the Car was rash andnegligent. It is contended that the deceased claimant,who was riding bicycle was negligent and that thebicycle came in contact with the Car. Theappellants/registered owners denied their liability andcontended that the claim is false and excessive beforethe tribunal. The insurer filed its written statementat Exhibit 32 stating that the car was not insured atPage 4 of 12 FA-1753-2007.odtthe time of the accident.9.The Tribunal framed issues at Exhibit 51. Thedeceased claimant examined himself at Exhibit 54 andled the evidence of Dr Govind at Exhibit 197 tosubstantiate his claim before the Tribunal. He alsorelied upon the documentary evidence from Exhibit 55 toExhibit 192 and 198. The appellants/registered ownersexamined the driver at Exhibit 200 before the Tribunalin their defence, and the insurer did not adduce anyevidence before the Tribunal. The Tribunal partlyallowed the petition against the appellants/registeredowner, directing compensation of Rs 5,04,000/- to bepaid to the deceased claimant along with interest @7.5% per annum till realisation. 10.The learned Addl. Government Pleader for theappellants/registered owners submits that the Tribunalhas committed error in awarding amount of Rs. 5,04,000to the deceased claimant on the grounds of medicalexpense, loss of earnings capacity and non-pecuniarydamages and deciding age and income of injured andmultiplier applied. According to him, there is noevidence on record to conclude that the vehicle wasPage 5 of 12 FA-1753-2007.odtdriven in a rash and negligent manner, and further, itis pointed out from the examination of the deceasedclaimant that the road was not much to enable drivingof the vehicle at a high speed.11.The learned counsel for the deceased claimantsupports the judgment passed by the Tribunal and placesreliance upon the following judgment to deal with thecontentions raised by appellants/registered owners.Learned counsel for the deceased claimant has submittedjudgment of Hon'ble Apex Court in National InsuranceCo. Ltd. vs. Pranay Sethi and Others, (2017) 16 SCC680, Pappu Deo Yadav and Ors. vs. Vinod Kumar Lamba andAnr., (2018) 3 SCC 208, M/s. Kelkar and Kelkar vs. Mr.Shripad Narayan Gore and Ors, First Appeal No.956/2002, Oriental Insurance Company Limited vs. Ku.Radhika and Others, 2020(1) ALL MR 78, The APSRTC andAnr vs. M. Ramadevi and Ors, 2008 AIR (SC) 1221, &Jagdish vs. Mohan, AIR 2018 SC 1347, Raj Kumar v. AjayKumar and Anr, AIROnline 2010 SC 125, R. D. Hattangadivs. M/s. Pest Control (India) Pvty. Ltd and Ors, AIR1995 SC 755 & United India Insurance Co. Ltd vs. Smt.Rukmini Deepak alias Dilip Kachare and Ors, FirstPage 6 of 12 FA-1753-2007.odtAppeal No. 105/2007, seeking enhancement ofcompensation on the grounds that filing of an appeal orcross-suit is not mandatory to seek such enhancement.In view of the said law laid down by the Hon’ble ApexCourt, it would be just and proper to grant him thebenefit of enhancement of compensation sought by thedeceased claimant to the extent of 40% to be addedtowards further income for the purpose of calculatingcompensation.12.The evidence led before the tribunal primafacie indicates that findings recorded by Tribunal withregard to the occurrence of the accident involving thecar and negligence on part of the driver andappellant/registered owners, deserve to be accepted.Claimant himself is witness to accident and victimthereof. His cross-examination does not make hisevidence unreliable. In this regard, it's of muchimportance to note that the Spot Panchnama at Exhibit56 recorded by the police after registration of FIR, soalso the injury certificate at Exhibit 60 indicatesthat the Ambassador Car No. MH-23/F-0024 was drivenrashly and negligently by the driver, resulting in thePage 7 of 12 FA-1753-2007.odtoccurrence of the said accident. 13.The driver was examined at Exhibit 200 by theappellants/registered owners, it was stated that theroad was not in good condition, and therefore, he wasdriving slowly. The claimant on bicycle suddenly camefrom the left in contact with car. At the outset, it'snot probable that the driver, if driving slowly, couldnot have seen the deceased claimant soon before theaccident, as it was a National Highway. The versionnarrated by the driver is not supported by the spotpanchnama. On careful assessment of evidence, it couldbe said that the accident in question occurred due tosole negligence of driver of offending vehicle.14.The deceased claimant, in order to demonstratethat he has sustained serious injuries, has examined DrGovind Kokate at exhibit 197 and has placed on recordinjury certificate at exhibit 60, discharge card atexhibit 61, another discharge card at exhibit 63,several medical bills and receipts at exhibit 65 and192 so also deceased claimant has a produced disabilitycertificate at exhibit 198 which duly proved by DrGovind Kokate. Furthermore, from the cross-examinationPage 8 of 12
Decision
FA-1753-2007.odtof Dr. Govind Kokate, it is clear that the deceasedclaimant suffered permanent disablement due to 100%loss of vision in both eyes as a result of the saidaccident. 15.As per evidence led by Claimant at exhibit 54,its elicited that he was working as a mason, was about25 years of age when the accident occurred, was earningabout Rs 150/- to Rs 200/- per day, was hospitalisedfor 2 and ½ month at Solapur and was required to spendabout Rs 2,50,000/- to Rs 3,00,000/- in connection tothe medical treatment. It's also evident that hesustained 100% loss of vision in both eyes due to saidaccident, and thus, total loss of earning capacity hasoccurred. 16.In view of the above, there is no reason notto accept that the Deceased claimant was earning aminimum of Rs 1500 per month. Therefore, the annualloss of earnings assessed by the tribunal at Rs 18,000per annum is bona fide. The total amount covered bybills and receipts after hospitalisation came toapproximately Rs 79,000, and the tribunal asserted theamount to the tune of Rs 80,000 under the head ofPage 9 of 12 FA-1753-2007.odtmedical expense. Further, considering the age of thedeceased claimant at the time of the accident, theTribunal deemed it appropriate to use a multiplier of18. Taking into account all the above arithmetic, i.e.the total loss of earnings capacity, which is Rs 18,000x 18 (Multiplier) comes to Rs 3,24,000/-. So far thenon-pecuniary damages are concerned, the tribunaldetermined the same at Rs 1,00,000. Thus, the totalcompensation as construed by the Tribunal comes toRs.80,000/- (medical expenses) + Rs.. 3,24,000/- (Lossof earning or earning capacity) + Rs 1,00,000/- (nonpecuniary damages) = Rs. 5,04,000/- along with [email protected]% per annum from the date of the claim of petition.17.The conclusions drawn by Tribunal are inconsonance with the material placed on record andhence, the order passed by Tribunal requires nointerference. Accordingly, the appeal deserves to bedismissed and accordingly stands dismissed.18.Now coming to the claim of enhancement soughtto be made by claimant without filing Appeal or Cross-objection is concerned, in view of the settled law byHon’ble Supreme Court in case of Pranay Sethi (supra)Page 10 of 12 FA-1753-2007.odtand Pappu Deo Yadav (supra), it is open for theclaimant to seek enhancement even without formallyfiling Appeal or Cross-objection. Hence, claim forenhancement is entertained.19.Learned Counsel for Claimant seeks enhancementon sole ground that future prospects are not consideredby Tribunal while granting compensation. A referencecould be made to judgment of Hon’ble Supreme Court incase of Pranay Sethi (supra) and Pappu Deo Yadav(supra). By following the said judgment, claimant isentitled for additional compensation towards futureprospects.20.Thus, having regard to age and income ofclaimant and by following the judgment of the Hon'bleSupreme Court in the case of Pappu Deo Yadav (supra),40% income is required to be added towards prospects.Sr No.HeaderCalculation inRs.1.Income of Rs 18,000 per annum + 40%(Addition of future prospects) = Rs. 25,200/-Per AnnumIncome of Rs. 25,200/- per annum x 18(multiplier) = Rs. 4,53,6004,53,600/- 2.Non pecuniary damages 1,00,000/- 3.Medical Expense80,000/- Hence, the deceased claimant is entitled fortotal Compensation of Rs. ( 4,53,600+1,00,000 + 80,000) 6,33,600/- Page 11 of 12 FA-1753-2007.odt21.Since the claimant has not filed any Cross-suit or Appeal, he is not entitled to interest thereontill decision of this Appeal. 22.However, if the amount is not paid within aperiod of 8 weeks from today, the claimant will beentitled to interest receive @ 7% till realization ofthe amount. The claimant to pay deficit Court Fees.23.Appeal stands disposed of in above terms.24.Pending civil application, if any, standsdisposed of. (R. M. JOSHI, J.)RDPage 12 of 12