High Court
Legal Reasoning
FA236518&318522.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 2365 OF 2018Royal Sundaram General Insurance Co. Ltd.,Subramaniam Building, II Floor, No.1 ClubHouse Road, Annasalai, Chennai-600 002Through its Authorized Officer... AppellantVERSUS1.Sangharsh s/o Suresh SonawaneAge 27 years, Occu: Private Service, at present Nil, R/o Tanhaji Chowk, Jawahar Colony, Aurangabad2.Sopan s/o Bhagwanrao Bhosale,Age Major, Occu: Business,R/o RX 6/4, House NO.8, Swami Samarth Housing Society, Near Mohatadevi Temple,Bajaj Nagar, Aurangabad 3.Sunil s/o Harischandra Athawale,Age: Major, Occu: DriverR/o Sansar Nagar, Kranti Chowk,Aurangabad4.United India Insurance Co. Ltd.,Through its Branch Managar, Aurangabad5. Mahadu s/o Dagduji Paghare,Age: Major, Occu: Business,R/o A-18-34/P, Tulsi Saujanya Nagar,Behind Kushalnagar, Darga Road,Aurangabad.6. Anand s/o Mahaduji PagareAge Major: Occu: BusinessR/o As above.Page 1 of 11 FA236518&318522.odt Mr. S. S. Wagh h/for Mr. A. S. Deshpande, Advocate for the AppellantMr. P. C. Mayure, Advocate for Respondent No.1,Mr. A. A. Puranik, Advocate for Respondent No.2Mr. A. B. Chitne, Advocate for Respondent No.4Mr. A. S. Shejwal, Advocate for Respondent Nos. 5 and 6ANDFIRST APPEAL NO. 3183 OF 2022Sangharsh s/o Suresh SonawaneAge 29 years, Occu: NIL, R/o Tanhaji Chowk, Jawahar Colony, Aurangabad... AppellantVERSUS1.Royal Sundaram General Insurance Co. Ltd.,Through its Branch Manager, Jalna Road,Aurangabad2.Sopan s/o Bhagwanrao Bhosale,Age Major, Occu: Business,R/o Makni Tq. Ahmedpur Dist. Latur 3.Sunil s/o Harischandra Athawale,Age: Major, Occu: DriverR/o Sansar Nagar, Kranti Chowk,Aurangabad4.United India Insurance Co. Ltd.,Through its Branch Managar, Aurangabad5. Mahadu s/o Dagduji Paghare,Age: Major, Occu: Business,R/o A-18-34/P, Tulsi Saujanya Nagar,Behind Kushalnagar, Darga Road,Aurangabad.6. Anand s/o Mahaduji PagareAge Major: Occu: BusinessR/o As above.Mr. P. C. Mayure, Advocate for the Appellant,Mr. S. S. Wagh h/for Mr. A. S. Deshpande, Adv. for Respondent No.1.Page 2 of 11 FA236518&318522.odt Mr. A. A. Puranik, Advocate for Respondent No.2Mr. A. B. Chitne, Advocate for Respondent No.4Mr. A. S. Shejwal, Advocate for Respondent Nos. 5 and 6CORAM :Y. G. KHOBRAGADE, J. DATE:03.10.2025ORDER:-1. In First Appeal No. 2365 of 2018 the appellant Insurancecompany takes exception to the Judgment and Award dated 30.10.2017passed in passed in MACP No.57 of 2016 by the learned Motor AccidentClaim Tribunal, Aurangabad, whereby claim petition filed by theRespondent No. 1/Original claimant is allowed. The present appellant/insurance Company and Owner of the vehicle to jointly and severallydirected to pay compensation amount of Rs.8,86,050 with interest @ 9%from the date of filing of the clam petition i.e. 13.01.2016 till itsrealization including NFL amount.2.In First Appeal No. 3183 of 2022, the appellant/originalclaimant takes exception to the Judgment and Award dated 30.10.2017passed by the learned Motor Accident Claim Tribunal, Aurangabad, inMACP No.57 of 2016 to the extent of denial of compensation in head of40% future prospects. 3. Since both these appeals are arising out of the Judgment and Awarddated 30.10.2017, therefore both these appeals are taken together. ThePage 3 of 11 FA236518&318522.odt Parties in both these appeals hereinafter will be referred in their originalcapacity as claimant and Respondents.4. The learned counsel appearing for the Insurance companyvehemently canvased that as per FIR, the accident was occurred on11.09.2015 at about 2.00 a.m., when the claimant was proceeding in hisTata Safari Car bearing registration No. Mh-20-DJ-3745 and when hereached at Beed bypass Road, opposite Hotel Master Cool, at that time theTractor bearing No. MH-24-AG-1204 attach with Trolley No. MH-24-E-4467 gave dash to his Tata Safari car, due to which, the claimantsustained severe injuries. However, while lodging the FIR, the claimantdisclosed about giving dash to his car by the Red colour Tractor having nonumber and after two month from the date of accident the claimant gavedescription of tractor’s and trolley colour as Blue instead of Red.Therefore, it is submitted that, the Tractor bearing No. MH-24-AG-1204and Trolley No. MH-24-E-4467 was not involved in the accident.Therefore, the Respondent no. 1 Insurance company is not liable to payany compensation. 5.It is further canvass that, the Respondent no. 2 owner of theoffending vehicle filed written statement and denied involvement of theTractor bearing No. MH-24-AG-1204 and Trolley No. MH-24-E-4467.The claimant had described the tractor and trolley's colour as red but thePage 4 of 11 FA236518&318522.odt after two month from the accident, the complainant described colour oftractor was blue . Therefore, the claimant fail to prove involvement of saidtractor in the accident, hence, the learned Member, MACT wronglyallowed the claim petition, hence, prayed for quash and set aside theimpugned judgment and award. 6.It is further canvass on behalf of the Respondent no. 1Insurance company that, the Respondent no. 2 owner of the tractor andtrolley filed Written Statement 25 and denied claim of the petition. Soalso, the Respondent no. 1 has filed Evidence Affidavit Exh. 52 and statedthat, the Tractor bearing No. MH-24-AG-1204 and Trolley No. MH-24-E-4467 was not involved in the said accident. Therefore, the learnedMember, MACT, out not to have allow the claim petition, hence, impugnedjudgment and award is illegal bad in law.7. The learned counsel appearing for the appellant insurance companyfurther canvassed that the learned trial court fail to consider the defenceof Respondent No.2-owner of the vehicle and only considered the FIRregistered with the police station. The recital of FIR does not prove that,Tractor bearing No. MH-24-AG-1204 and Trolley No. MH-24-E-4467 wasinvolved in the said accident. However, the learned Tribunal illegally heldthat, the tractor bearing No. MH-24-AG-1204 and Trolley No. MH-24-E-4467 owned by Respondent No.2 was involved in the accident.Page 5 of 11
Legal Reasoning
FA236518&318522.odt Therefore, the findings of the learned trial court are illegal and perverseand need to be quashed and set aside. 8. Learned counsel for the Respondent no. 1 present AppellantInsurance company further canvassed that, the learned tribunal wronglyconsidered Rs.4500/- per month as notional income of the appellant andgranted excess compensation of Rs.8,86,050/- without applying propermultiplier and other heads. Therefore, the impugned judgment and awardis liable to be quashed and set aside.9. Per contra the learned counsel appearing for the presentRespondent/ claimant canvassed that, very meager amount of notionalincome has been considered by the learned tribunal though at the relevanttime, notional income was more than Rs.4500/-. Therefore, the impugnedjudgment and award needs to be quashed and set aside to the extent ofquantum of compensation and it is liable to be enhanced.10.The learned counsel for the claimant further canvassed thatwhile determining the compensation of Rs.8,86,050/-, the learned tribunalfail to consider 40% future prospects of the claimant as per the ratio laiddown in case of National Insurance Company Ltd. Vs. Pranay Sethi andothers, AIR 2017 SC 5157, hence. prayed for modification of the award tothe extension of quantum of compensation by addition of 40% amountPage 6 of 11 FA236518&318522.odt towards future prospects.11. Having regard to the submissions canvassed on behalf of both sides,I have gone through the record. It is not in dispute that, on 11.09.2015 atabout 2.00 a.m., the claimant was proceeding in his Tata Safari Carbearing registration No. Mh-20-DJ-3745 and when he reached near HotelMaster Cool, at that time, the offending vehicle Ttractor bearing No. MH-24-AG-1204 with Trolley No. MH-24-E-4467 gave dash to Tata Safari carof the claimant. It is a matter of record that the claimant washospitalized at Kamalnayan Bajaj Hospital, for medical treatment from11.09.2015 to 21.09.2015 and he incurred Rs. 1,00,000/- towardsmedical expenses. As per the Disability Certificate, the claimant suffered80% disability due to amputation of his left upper limb as it wascompletely crushed in the accident. Though the respondent/claimantclaimed that, he was the Manager in a Hotel and he was drawingRs.15,000/- per month, however, the Claimant fail to produce anydocumentary evidence about his monthly income. Therefore, the learnedTribunal considered the notional income of Rs.4500/- per month. At thetime of accident, the claimant was 26 years old, therefore, as per tableprescribed in case of Sarla Verma, the learned Tribunal applied multiplier17 and determined compensation as Rs. 4,500 X 12 X (multiplied)17=9,18,000/-. Since the claimant sustained 80% disability/loss of earningPage 7 of 11 FA236518&318522.odt capacity, therefore, the learned trial court ascertained the compensation asunder:1)Loss of incomeRs.7,34,400/-2)Loss of income during period oftreatment i.e. 11 days.Rs. 16503)Towards pain and sufferingRs.25,000/-4)Towards medical expenses Rs.1,00,000/-5)Loss of amenities, happiness andenjoyment of lifeRs.25,000Total :Rs.8,86,050/-12. Therefore, it appears that, the learned Member, MACT failedto consider loss of future prospect. In case of National Insurance CompanyLtd. Vs. Pranay Sethi (supra), 40% compensation requires to be grantedtowards future prospects. At the time of accident, the claimant was 26years old. Therefore, the claimant is entitled for 40% future prospects.However, the learned trial court failed to consider 40% future prospects.Therefore, the impugned award needs to be modified and the appeal filedby the claimant needs to allowed to the extent of grant of 40% futureprospects, hence, the First Appeal No. 3183 of 2022 needs to granted bymodifying the impugned Judgment and award to the extent of addition of40% of future prospect. 13. Needless to say that the Insurance Company filed written statementPage 8 of 11 FA236518&318522.odt and claimed that, the respondent No.2- owner of the Tractor and Trolleyfiled W.S., and denied about the involvement of the tractor and trolley inthe accident. Therefore, burden was lies upon the claimant to prove aboutinvolvement of the said offending vehicle in accident. Needless to saythat, the Respondent no. 2/Owner of offending vehicle filed EvidenceAffidavit at Exh. 52 and reiterated the fact that, while lodging the FIR, theclaimant had described without number and red colour Tractor and aftertwo months the claimant described blue colour of the offendingvehicle/Tractor. The Respondent no. 2 Owner further stated the policereleased said tractor on bond in his favour after obtaining his falsesignature no cross examination was conducted on behalf of theRespondent no. 1 Insurance Company. So also, the Respondent no. 2owner of the Tractor has not lodged any report when his bogus signaturewas obtained on the Bond. The Respondent no. 2 owner of the tractoradmitted in his cross examination of he is owner of Tractor MH-24-AG-1204 and Trolley MH-24-E-4467 and he had obtained said vehicle onsupurtnama. It is further submitted that, though the Respondent no. 1Insurance company filed written statement and denied the claim of theRespondent claimant, however, no witness was examined on behalf of theRespondent no. 1 Insurance company to prove its defence, hence, defenceof the Respondent no. 1 can not said to be proved substantially. Therefore,I do not find that, the findings recorded by the learned Member, MACT arePage 9 of 11 FA236518&318522.odt perverse, bad in law, hence, appeal filed by the Respondent no. 1Insurance company has no merit and it is liable to be dismissed.14. In view of above discussion in foregoing paras, First Appeal No.3183 of 2022, filed by the the claimant needs to be allowed and theimpugned judgment award dated 30.10.2017 passed in passed in MACPNo.57 of 2016 by the learned Motor Accident Claim Tribunal, Aurangabadneeds to be modified to the extent of addition of 40% future prospectsdue to 80% disability/loss of income suffered by the claimant and he was26 years old at the time of accident. The learned tribunal has consideredloss of income to the tune of Rs.7,34,400/-. Therefore, addition of 40%towards future prospects (i.e. 7,34,400 x 40% ) comes to Rs.2,93,760/-.As such the claimant is entitled for the compensation amount as follows:Sr. No.Particulars of headsAmount (Rs.)1)Loss of income734400.002)Addition of 40% towards future prospects ((i.e. 7,34,400 x 40% )293760.003)Loss of income during period of treatment i.e. 11 days.1650.004)Towards pain and suffering25000.005)Towards medical expenses 100000.00Loss of amenities, happiness and enjoyment of life25000.00Total :1179810.00Page 10 of 11 FA236518&318522.odt 15. In view of the above, I pass the following Order.O R D E R(i) First Appeal No. 2365 of 2018, filed by the ori. Respondent no. 1Insurance company is hereby dismissed.(ii) First Appeal No. 3183 of 2022 filed by the ori. claimant is partlyallowed with proportionate cost.(ii) The Judgment and Award dated 30.10.2017 passed in passed inMACP No.57 of 2016 by the learned Motor Accident Claim Tribunal,Aurangabad is hereby modified and additional amount under thecomponent of future prospects @ 40% is granted to the claimantwhich comes to Rs.2,93,760/-.(iii) The Ori. Respondent no. 1 Insurance Company i.e. Royal SundaramGeneral Insurance Co. Ltd. is hereby directed to additionally payRs.2,93,760/- to the claimant with interest @ 9% per annum fromthe date of filing of the claim petition i..e. 13.01.2016 till itsrealization, within eight weeks from today.(vi) The amount if any already paid or deposited in pursuance of theaward passed by the Tribunal shall be appropriated.(v) The claimant is at liberty to withdraw the amount, if any, alreadydeposited by the Insurance company.(vii) Modified award be drawn Accordingly.( Y. G. KHOBRAGADE, J. )JPChavanPage 11 of 11