High Court
Legal Reasoning
35-FA.1860.2024 (modified).odtThis order is modified as per speaking order dtd. 17.03.2025. This order is modified as per speaking order dtd. 17.03.2025. ININ THETHE HIGHHIGH COURTCOURT OFOF JUDICATUREJUDICATURE ATAT BOMBAYBOMBAYBENCH AT AURANGABADBENCH AT AURANGABAD35 FIRST APPEAL NO. 1860 OF 20241. Sarika Vikas Gaikwad,2.Rutvik Vikas Gaikwad,3.Kartik Vikas Gaikwad,4. Sou. Janabai Laxman Gaikwad,5. Laxman Narayan Gaikwad. ….Appellants/ Org. ClaimantsVersus 1. Rahul Gangadhar Mohare,2. The Branch Manager,Cholamandalam M. S. General Insurance Co. Ltd., Branch Office, Opp. Central Jail, Aurangabad road, Osmanabad. ....Respondents_____________________________________________________Mr. Prasanna Shankarrao Chavan, Advocate for Appellants.Mr. Abhijit G. Choudhari, Advocate for Respondent No.2. _____________________________________________________CORAM :S. G. CHAPALGAONKAR, J.DATED : 3rd MARCH 2025P.C.:-. Appellants/Original Claimants filed this appeal seekingenhancement of compensation against the judgment and award dated22nd December 2022 passed by Motor Accident Claims Tribunal,Osmanabad in MACP No.7 of 2021. 1 of 8
Legal Reasoning
35-FA.1860.2024 (modified).odt2. It is the contention of Claimants that Deceased-Vikas wasproceeding on his motorcycle by following traffic rules, suddenlyoffending tipper, which was proceeding ahead, took a turn withoutgiving signals or indicators, so also applied breaks. In result, themotorcycle of Vikas collided on rear tyre of tipper. Eventually, hesuffered fatal injuries. The incident was immediately reported toKarkamb Police Station and was registered vide C.R. No.367 of 2020against tipper driver. The deceased was employed with Sugar Factoryas Electrician and was getting salary of Rs.10,000/- per month, so also,he was holding agricultural land with fruit bearing trees. He wassupervising the same. On account of untimely death of Vikas,Claimants suffered loss of future earning and dependency. The claimwas contested by Respondent-Insurance Company alleging contributorynegligence of the deceased, so also, averments regarding loss ofdependency, occupation and income of deceased were denied. TheTribunal after evaluation of evidence allowed claim and passed anaward for Rs.14,55,000/- along with interest @ 7% per annum fromthe date of filing of claim petition. The Tribunal recorded finding of30% contributory negligence against deceased, therefore, deducted30% amount from excess compensation of Rs.20,77,800/-. 3. Mr. Chavan, learned Advocate appearing for the Appellantssubmits that findings recorded by Tribunal on the point of contributory2 of 8 35-FA.1860.2024 (modified).odtnegligence of deceased is perverse. According to him, there was noreason to discard evidence as to income of the deceased, which hasbeen duly proved by placing documents from the employment. Hesubmits that Motor Accident Claims Tribunal has to decide claim on thebasis of preponderance of probabilities and in summary manner. Theevidence beyond doubt is not required, so as to establish issue ofnegligence. Mr. Chavan would further submit that although Tribunalobserved about agriculture holding of deceased, nothing is awardedtowards loss of supervision. He, therefore, seeks enhancement ofcompensation. 4. Per contra, Mr. Abhijit Chaudhary, learned Advocateappearing for Respondent No.2-Insurance Company submits thatClaimants have based their case on police papers. The contents thereofneed to be read as a whole. According to him, Tribunal has rightlyconcluded that deceased contributed to the extent of 30% in cause ofaccident. Similarly in absence of examination of employee fromaccounts department of Sugar Factory, Tribunal has rightly consideredincome @ Rs.9,000/- per month. Mr. Chaudhary would submit thatwhen deceased was employed as Electrician in Sugar Factory, it cannotbe said that he was cultivating agricultural land. According to him,there is no evidence as to the loss of agriculture income for want ofsupervision of deceased. 3 of 8 35-FA.1860.2024 (modified).odt5.Having considered submissions advanced, three pointsrequire consideration in this appeal, which read as under:-(i)Whether the finding on the point of negligence asrecorded by Tribunal requires modification?(ii)Whether the Tribunal is justified in taking notionalincome of deceased @ Rs.9,000/- per month in wake ofevidence recorded by Claimants from employer?(iii)Whether Tribunal could have considered loss ofsupervision of agricultural land and grantedcompensation for that purpose?6. Insofar as first point as to the finding of contributorynegligence recorded by Tribunal is concerned, Tribunal held thatdeceased was following offending vehicle and he dashed from the rearside. The Tribunal records that in the aforesaid background, thecontributory negligence of the deceased and tipper driver can beassumed. It is difficult to countenance with the observations of theTribunal. There cannot be presumption of contributory negligence. Ithas to be established by leading cogent evidence. In present case, FIRhas been admitted in evidence by consent of parties. The FIR itselfrecords that tipper driver took turn without giving signal or blowingindicator. In result, the motorcycle of deceased collided on rear wheel4 of 8 35-FA.1860.2024 (modified).odtof tipper. It is pertinent to note that the tipper driver has not steppedinto witness box to rebut contents of FIR. In that view of the matter,the presumption drawn by Tribunal regarding contributory negligenceof deceased cannot be countenanced. Recently, Supreme Court of Indiain case of Prabhavathi & Ors. Vs. Managing Director of BangaloreMetropolitan Transfer Corporation (Civil Appeal Nos.3465-3466 of2025) decided on 28th February 2025, held that contributorynegligence cannot be presumed on main allegation of high speed ofdriving without directs or corroborative evidence. The fact as tocontributory negligence must be established through direct orcorroborative evidence. While observing so, Supreme Court reliedupon earlier judgment in case of Jiju Kuruvila & Ors. Vs. KunjujammaMohan & Ors.1. Taking into account aforesaid observations and factualscenario discerned from FIR and spot Panchanama, it can be observedthat tipper driver was sole responsible for the accident. Further,adverse inference will have to be drawn against him, as he failed tostep into witness box and explained the circumstances leading to theaccident. 7. In that view of the matter, this Court holds that accidentoccurred due to sole negligence on the part of tipper driver. 8. Insofar as income of deceased is concerned, Claimants relied1 (2013) 9 SCC 1665 of 8 35-FA.1860.2024 (modified).odtupon evidence of Dinkar Ambure, Clerk from Pandurang Sugar Factory,where deceased was employed as Electrician. The said witness placedon record the authority letter issued to him by Sugar Factory. Apartfrom that, he placed on record cheque payment vouchers, extract offinal payment register of November 2020. The aforesaid evidencewould show that an average earning of deceased was Rs.10,000/- permonth. The Claimants have pleaded his income as Rs.10,000/- permonth. In light of this material, there was no reason to considernotional income of deceased @ Rs.9,000/- per month. This Court,therefore, holds that Claimants have proved income of deceased @Rs.10,000/- per month from his employment. 9. Insofar as the loss of supervision of agriculture holding,Claimants have placed on record 7/12 extracts depicting that thedeceased was holding agriculture land with Orchard of Pomegranate.It is true that, deceased was employed in Sugar Factory, therefore, hecould not have personally cultivated the land, but fact remains thatClaimant Nos.4 and 5 are old age persons. Claimant Nos.2 and 3 areminor sons. Therefore, it can be presumed that deceased must besupervising agricultural land. In absence of any material as regards toactual production from agriculture land, it would be appropriate toconsider loss of supervision @ Rs.1,000/- per month and @Rs.12,000/- per annum. The gamut of aforesaid discussion is that6 of 8 35-FA.1860.2024 (modified).odtdeceased was earning total amount of Rs.11,000/- per month. Thedependency of the Claimants will have to be assessed on the basis ofaforesaid income. The liability to pay compensation will have to befixed entirely against Respondents. 10. In that view of the matter, award needs to be modified as perthe following calculations shown in tabular form:-SrNo.ParticularsAmount in Rs.1.Monthly salary of the deceased.11,000/-2.Annual loss of earning Rs.11,000/- (MonthlySalary) Rs. 11000 x 12 =1,32,000/-3.Addition of 40% towards future prospects (Rs.1,32,000+ 52,800=1,84,800/-4.Less: 1/4 deduction towards personal and livingexpenses. Rs. 1,84,800 – 46,200 = 1,38,600/-5.Applying Multiplier of “17” (Rs. 1,38,600 x 17) 23,56,200/-6.Consortium & Funeral Expenses.1,50,000/-7.Total 25,06,200/-8.Tribunal granted14,55,000/-9.Enhancement10,51,200/-11.In that view of the matter, the appeal needs to be partlyallowed and the award passed by the Tribunal needs to be partlymodified. Hence, following order:-ORDER(i). In result, first appeal is partly allowed.(ii). Judgment and award passed by Motor Accident Claims7 of 8 35-FA.1860.2024 (modified).odtTribunal, Osmanabad in MACT No.7 of 2021 ismodified. The Claimants are held entitled for totalcompensation of Rs.25,06,200/- from Respondent Nos.1and 2, who shall be jointly and liable to pay the samealong with interest @ 7% per annum from the date offiling the claim petition, till realisation.(iii)The compensation amount paid/deposited byRespondents in tune with the award passed by theTribunal shall be appropriated.(iv)Rest of the award passed by the Tribunal shall applymutatis mutandis to the modified award passed underthis order. The deficit Court fees shall be paid. Themodified award be drawn accordingly. (S. G. CHAPALGAONKAR, J.)Tauseef8 of 8