High Court · 2025
Legal Reasoning
-1- FA-3465 & 3556 of 2022IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 3465 OF 20221Parveen Bee Wd/o Shaikh Feroz,Age : 31 years, Occu. : Household, R/o. Pathan Mohalla, Ambad,Tq. Ambad, Dist. Jalna2.Hajra Fatema d/o. Shaikh Mohammad Feroz,Age : 10 years, Occu : Education,U/G of Appellant No.1,R/o. As above.3.Shaikh Habib S/o. Mohammad Feroz,Age: 7 years, Occu. : Education, U/G of Appellant No.1,R/o. As above.4.Shaikh Shamshoddin S/o. Shaikh Habiboddin,Age : 61 years, Occu. : Nil.,R/o. Pathan Mohalla, Ambad,Tq. Ambad, Dist. Jalna5.Saida Begum W/o. Shamshuddin Shaikh,Age : 54 years, Occu. : Nil,R/o. Pathan Mohalla, Ambad,Tq. Ambad, Dist. Jalna.… Appellants(Orig. Claimants)Versus1.United India Insurance Co. Ltd.Through its Branch Manager, Usmanpura, Aurangabad.2.Rahul s/o. Pralhadrao Malode,Age : 36 years, Occu. : Owner & Driver, R/o. House No.14, Near MSEB Office, Paithan, Tq. Paithan, Dist. Aurangabad.Mobile No. : 9767051006.… Respondents……Mr. Shaikh Kayyum Najir, Advocate for Appellants.Mr. Mohit R. Deshmukh, Advocate for Respondent No.1....… -2- FA-3465 & 3556 of 2022WITHFIRST APPEAL NO. 3556 OF 20221.Anisa Begum wd/o. Ayaj Khan,Age : 34 years, Occu. : Household, R/o. Pathan Mohalla, Ambad, Tq. Ambad, Dist. Jalna. 2.Anam d/o. Ayaj Khan Pathan,Age : 15 years, Occu. : Education,U/G of Appellant No.1.R/o. As above.3.Anshara d/o. Ayaj Khan Pathan,Age : 10 years, Occu. : Education, U/G of Appellant No.1,R/o. As above.4.Mahemood Khan S/o. Ashraf Khan Pathan,Age : 75 years, Occu. : Nil, R/o. Pathan Mohalla, Ambad,Tq. Ambad, Dist. Jalna.5.Shakila Begum w/o. Mahemood Khan Pathan,Age : 70 years, Occu. : Nil.,R/o. Pathan Mohalla, Ambad,Tq. Ambad, Dist. Jalna.… AppellantsVersus1.United India Insurance Co. Ltd.,Though its Branch Manager, Usmanpura, Aurangabad.2.Rahul S/o. Pralhadrao Malode,Age : 36 years, Occu. : Owner & Driver, R/o. House No.14, Near MSEB Office,Paithan, Tq. Paithan, Dist. AurangabadMobile : 9767051006.… Respondents……Mr. Shaikh Kayyum Najir, Advocate for Appellants.Mr. Mohit R. Deshmukh, Advocate for Respondent No.1....… -3- FA-3465 & 3556 of 2022 CORAM :ABHAY S. WAGHWASE, J.RESERVED ON :23 JULY 2025PRONOUNCED ON :30 JULY 2025JUDGMENT : 1.Both appeals are arising out of judgment and orderdated 23.08.2022 passed by learned Motor Accident ClaimsTribunal, Aurangabad in M.A.C.P. Nos. 299 of 2018 and 300 of2018, original claimants, who are appellants herein are seekingenhancement of compensation.BRIEF FACTS IN THE APPEAL NO.3465 OF 20222.Appellant’s case is that, on 29.11.2017 deceasedMohammad Feroz Shaikh Shamshuddin was traveling on hisPassion Pro motorcycle to go to Ambad. When he was in thevicinity of Lalwadi Phata, a Vista car coming from his backside inexcessively high speed and being driven in rash and negligentmanner, gave dash to the motorcycle causing serious head injuryand on being shifted to the hospital, he was declared dead. Onreport, crime was registered against respondent no.2 for offenceunder sections 279, 337, 338, 304A and 427 of Indian Penal Codeat Ambad Police Station. 3.Appellants (original claimants) set up a case that, at
Legal Reasoning
-4- FA-3465 & 3556 of 2022the time of accident, deceased Mohd. Feroz was 33 years of age andwas rendering service in Matsodari Cable Network and wasearning Rs.10,000/- per month. He was the sole bread earner andsource of income for his family, which claimants, his heirs havelost permanently and thereby claim of total Rs.25,00,000/- by wayof compensation was asserted under various heads. 4.Insurance Company and respondent driver and ownerof Vista car contested the claim denying negligence, claim to beexorbitant and excess and unsubstantiated. Learned tribunal byjudgment and award dated 23.08.2022 recorded a finding thatclaimants proved that deceased Feroz died in motorcycle accidentdated 29.11.2017 due to rash and negligence driving of offendingvehicle vista car driven and owned by original respondent no.1 andinsured by respondent no.2 and also held claimants to be entitledawarded compensation to the tune of Rs.13,74,600 with @ 7.5%interest per annum and directed it to be paid by respondent nos.1and 2 jointly and severally. 5.Dissatisfied by the quantum of maintenance, presentappeal has been filed on various grounds raised in appeal memo.Heard learned counsel for appellants. He would submit that,claimant was working as Supervisor and earning Rs.10,000/- per -5- FA-3465 & 3556 of 2022month. However, learned tribunal only considered Rs.6,000/- permonth as notional income. That, no amount is granted under lossof consortium and future prospects. Therefore, indulgence of thiscourt is urged for in enhancing compensation. 6.Learned counsel for Insurance Company supported thejudgment and award by pointing out that there was no oral anddocumentary evidence in support of so called service of deceasedFeroz. That, therefore learned tribunal was left with no otheralternative, but to consider notional income. That, learned tribunalhas correctly awarded amounts under various heads and hence,urges to dismiss the appeal. BRIEF FACTS IN THE APPEAL NO. 3556 OF 20227.Heirs of deceased Ayaz Khan Mahmood Khan Pathanfiled M.A.C.P. No.299 of 2018 setting up a case that, on 29.11.2017Ayaz Khan was a pillion driver of the motorcycle driven bydeceased Feroz and they were proceedings towards Ambad. Whenthey had reached, Lalwadi Phata, offending vehicle Vista car camefrom backside and gave severe dash to the motorcycle causing fatalinjuries to Ayaz, who, while undergoing treatment succumbed. It istheir case that, crime was registered against Vista car driver. -6- FA-3465 & 3556 of 20228.It is their further contention that, deceased Ayaz, whowas 35 years of age, was working as Supervisor with Unity LandDevelopers and earned Rs.10,000 per month and his income wassole source of income for the family, which they have permanentlyloss on account of accidental death of Ayaz and thereby undervarious heads they set up a case of Rs.25,00,000/- and prayed thatthe compensation should be directed to be paid by originalrespondent no.1 owner and driver of Vista Car. 9.Above claim was also resisted by respondent nos.1and 2 denying negligence, income and age etc. 10.Learned tribunal, after appreciating the oral anddocumentary evidence, was pleased to partly alow the judgmentand order directing respondent nos.1 and 2 to jointly payRs.12,99,000 along with interest @ 7.5% per annum Dissatisfied by the above award, instant appeal hasbeen filed on various grounds raised in appeal memo.11.Both, deceased Feroz and deceased Ayaz seem to betraveling on one motorcycle as rider and pillion rider. While theirmotorcycle was in the vicinity of Lalwadi Phata, vehicle owned anddriven by respondent no.2 gave dash to the motorcycle from rear -7- FA-3465 & 3556 of 2022side causing severe injuries to both, who later on succumbed to thesame and hence, heirs of each of the deceased have preferredM.A.C.P. Nos. 299 and 300 of 2018, which are dealt and decided bylearned tribunal on same day i.e. on 23.08.2022. 12.Heirs of deceased Feroz has asserted that, he worked inMatsodari Cable Network and earned Rs.10,000/- per month. But,admittedly, there is no oral and documentary evidence in thatregard. Similarly, even heirs of deceased Ayaz too set up aclaim that, deceased worked as Supervisor with Unity LandDevelopers and earned Rs.10,000/- per month, but again no oral ordocumentary evidence in that direction was placed before tribunal.13.Resultantly, learned tribunal was left with no otheralternative, but to consider notional income. After appreciating thepolice papers, learned tribunal has attributed negligence to theoriginal respondent no.1, who indisputably insured by respondentInsurance Company.14.In appeal, there is no serious challenge to the abovefindings by the present appellants. Only grievance set up is thattribunal has not granted loss of consortium and loss of future -8- FA-3465 & 3556 of 2022income. Learned counsel for Insurance Company would point outto the table drawn by the tribunal in its judgment in paragraph 17and pointed out that, apart from considering notional income asRs.6,000, amount is granted for future prospects as well as loss ofconsortium to wife and parents. 15.Tribunal has granted loss towards consortium to wifeand children Rs.44,000/- each. However, same benefits ought tohave been extended to the parents also i.e. present appellant nos. 4and 5 in both appeals.16.Therefore, in addition to the quantum awarded by thetribunal, parents are also entitled for Rs.40,000/- each plus 10%(Rs.4,000/-), which comes to Rs. 44,000/- each towardsconsortium, in both appeals. 17.In the result, First Appeal Nos. 3465 of 2022 and 3556of 2022 preferred by the original claimants are partly allowed withproportionate costs as under :-Order in First Appeal No. 3465 of 2022(I)Impugned judgment and award dated 23.08.2022, passed byMember of M.A.C.T., Aurangabad in M.A.C.P. No.300 of 2018 ismodified : -9- FA-3465 & 3556 of 2022(a)Respondent no.1 - Insurance Company to payenhanced compensation of Rs.88,000/- to parents i.e.original claimant nos.4 and 5 within 12 weeks fromtoday along with interest @ 7.5% per annum from thedate of registration of claim petition till its realization. Order in First Appeal No. 3556 of 2022(II)Impugned judgment and award dated 23.08.2022, passed byMember of M.A.C.T., Aurangabad in M.A.C.P. No.299 of 2018 ismodified :(a)Respondent no.1 - Insurance Company to payenhanced compensation of Rs.88,000/- to parents i.e.original claimant nos.4 and 5 within 12 weeks fromtoday along with interest @ 7.5% per annum from thedate of registration of claim petition till its realization. (III)Modified award be prepared accordingly. (IV)Rest of the award is maintained. (V)Claimants to pay court fees on enhanced compensation as perrules.(VI)On deposit of the amount by Insurance Company,appellants/claimants are permitted to withdraw the same. (ABHAY S. WAGHWASE, J.)Tandale