Bombay High Court
Shiamak Fali Marshal And Anr vs Mr. Munir Bashir Shaikh And Anr on 1 April, 2025
2025:BHC-AS:15700
P.H. Jayani 10 FA712.2023 final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 712 OF 2023
1) Shiamak Fali Marshall
Aged 45 years, Husband of the deceased
2) Arish S. Marshall
Aged 8 years, Son of the deceased
Both residing at A/601, Sham's Palace,
98, Hill Road, Bandra (west),
Mumbai - 400050. ..... Appellants
Versus
1) Munir Bashir Shaikh
R/at Dengigalli, Shah Bazaar, Gulbarga,
Karnataka (owner of M/Truck No.KA-32-A
-1778)
2) The Oriental Insurance Company Limited
RO II, Oriental House, J. Tata Road,
Churchgate, Mumbai - 400020.
Policy No.412000 Valid from 16.12.2005
to 15.12.2006 ..... Respondents
Ms. Varsha Chavan for the Appellant.
Mr. Mohit Turakhia a/w. Ms. Ishita Bhole i/b. Mr. S.S. Vidyarthi for
Respondent No.2.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 20th MARCH, 2025
PRONOUNCED ON : 01st APRIL, 2025
JUDGMENT :-
. This First Appeal is filed under Section 173 of the Motor Vehicles Act of 1988 ("the Act") by the legal heirs/Original Claimants 1/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc aggrieved by the Judgment and Order dated 17.12.2013, in M.A.C.P. No.1733 of 2007 ("claim"), passed by the Motor Accident Claims Tribunal, Mumbai thereby said claim filed by the Appellants under Section 166 of the Act has been partly allowed with proportionate costs and Respondents/Original Opponents have been directed to pay the Appellants jointly and severally a compensation of Rs.36,20,666/- inclusive of NFL amount alongwith interest @ 6% p.a. from the date of claim till its realisation.
2) Record shows that the 403 days delay in filing the Appeal was condoned vide Order dated 19.06.2023 in C.A. No.3392 of 2015. Thereafter, Appeal was registered and admitted on dated 31.07.2023.
3) Heard Ms. Chavan, the learned Advocate for the Appellants and Mr. Turakhia, the learned Advocate for the Respondent No.2. Perused the record.
4) Facts in brief are that, the Appellant Nos.1 and 2 are respectively husband and son of late Maharukh Shiamak Marshall ("deceased"). The Appellants' case is that on dated 10.12.2006, at about 16.00 Hrs., the Appellants alongwith the deceased were travelling to Mumbai in their 'Maruti' motor car bearing No. MH- 04/BW-1312 along Mumbai-Ahmedabad Highway. Appellant No.1 was driving the car. The car was behind a motor truck bearing No. KA-32-A-1778 ("truck"). When their car was within the limits of Virar, 2/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc near KM stone No.469/6, the driver of the truck applied sudden breaks to his truck. The Appellant no.1, therefore, swerved his car to the right hand side of the truck to avoid an accident. However, the deceased sustained serious injuries and polytrauma due to the accident. She was rushed to Sanjivani Hospital, Virar and for better medical treatment, she was shifted to Lilawati Hospital, where she succumbed to her injuries after few hours. The Appellants averred that the said accident occurred due to rash and negligent driving of the truck driver. On receiving report of the accident, Virar Police Station registered an F.I.R. bearing Cr. No.I-282/2006, under Sections 304A, 279, 337 and 338 of the I.P.C. and u/Sec.184 of the Act, against the driver of the truck. The Respondent Nos.1 and 2 were the owner and insurer of the truck.
4.1) The Appellants averred that, the deceased was working as an Air-Hostess with Air India thereby she was getting monthly income of Rs.90,000/- including salary and ex-gratia amount paid in cash towards every domestic and international trips. Additionally, she was getting discounted air tickets facility. Therefore, the Appellants filed the claim and prayed to award compensation of Rs.2 Crore including Rs.55,000/- incurred on the medical before death.
5) The claim proceeded Ex-parte against Respondent No.1. Respondent No.2-The Oriental Insurance Company Limited opposed 3/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc the claim by filing written statement at Exh.8. The Respondent No.2 admitted that the truck was insured with the Respondent No.2. However, the Respondent No.2 has not admitted and specifically denied the other material allegations, averments and submissions made against it in the claim. The Respondent No.2 contended that the accident occurred due to rash and negligent driving of the car. In the alternative, it was contended that the accident occurred due to the negligence of the drivers of both the vehicles. There was a breach of the policy terms and conditions. The Respondent No.2, therefore, prayed to dismiss the claim.
6) Pursuant to the Issues framed (at Exh.11), the Appellants adduced the evidence of : AW1-Appellant No.1 on Affidavit (Ex.15), AW2-Mr. Sachin Govind Bhosle, representative of Lilawati Hospital (Exh.18), AW3-Mr. S. Balan, Dy. Manager AIR India (Exh.25), AW4- Mr. Almeda Joseph, Officer Finance Department AIR India (Exh.27), AW5-Dr. Nitin Kurde, RMO Sanjivani Hospital (Exh.30) and AW6- Dr. Pradeep Ginimuge, Ambulance Owner (Exh.31). 6.1) Respondent No.2 did not adduce any evidence.
7) As to the manner of the accident, the Appellant No.1 in his evidence-on-Affidavit stated that at the time of the accident, the truck driver suddenly applied the breaks without giving any signal. He, therefore, swerved his car to the right and applied breaks, to avoid the 4/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc accident. Still, the truck driver could not control the truck and the rear/back side of the truck skidded to its right. Consequently, the front left side of the car collided with the truck. Thus, according to the Appellant No.1, the accident occurred due to rash and negligent driving of the truck. To accept the said evidence, the Appellant No.1 relied upon the F.I.R. (Exh.43) and spot panchnama (Exh.45). 7.1) In the cross-examination, Appellant No.1 admitted that he was driving the car in a speed of around 70 to 80 kmph on the road curving to the left; that, the distance between the truck and his car was around 20 feet; that, at the particular junction he was driving his car in a slow lane, i.e., on left side of the road and there was no vehicle on his right-hand side; that, the road was curve there; and that, he was not aware which was the vehicle in front of offending truck. He has admitted that since the time when the car was following the truck, the truck driver did not apply breaks at any time prior to the accident. The spot panchanama recorded that not only the car sustained damage to its left hand side door but also to its front wind screen, radiator, bonnet, head light, roof of the car and to its right door.
8) In view of the above evidence, the Tribunal observed that, if the substantive evidence of the Appellant No.1 is considered, then the car would have damaged only to its left hand front side. But the entire front portion of the car rammed with the rear portion of the 5/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc truck. Hence, the Tribunal held that the claim of the Appellant as to the manner of the accident appears to be improbable. 8.1) The Tribunal noted that as there was a curve on the road towards the left hand side, it was duty of the Appellant No.1 to control the speed of the car. Yet, the Appellant No.1 was driving the car at a speed of around 70 to 80 kmph. The Tribunal noted that, the Appellant No.1 had noticed the truck from a distance of about 20 feet and therefore, he could have easily slowed down his car on perceiving that the truck had applied the sudden breaks. But the Appellant No.1 did not keep safe distance between the two vehicles. The Tribunal noted that the Appellant No.1 failed to explain as to how the damages were caused to the entire front side of the car when he pleaded that the damages were caused only on the left hand side of the car. Said fact itself speaks that the Appellant No.1 was not diligent while driving the car. Therefore, the Tribunal held that, the Appellant No.1's driving was negligent in the peculiar circumstances of the road. 8.2) The Appellant No.1 admitted that since the time he was following the truck, the truck driver did not apply unnecessary breaks up-to the incident. Therefore, the Tribunal inferred that, the truck driver must have applied urgent breaks due to some situation, which could have been properly explained by the driver himself. However, the Respondent No.2 did not adduce the evidence of the said driver. 6/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 :::
P.H. Jayani 10 FA712.2023 final.doc Yet the Tribunal observed that, unless initial burden is discharged by a claimant to prove the negligence of driver of offending vehicle, the onus will never shift on the opposite party or the insurer to disprove the said fact.
8.3) The Tribunal observed that, there was no vehicle on the right hand side of the car. Therefore, if the Appellant No.1 had driven the car with proper care and thinking the situation on the road, he could have avoided the accident either by applying breaks or by swerving the car on extreme right hand side of the road. But the Appellant No.1 failed to avoid the accident. Therefore, the Tribunal held that the uncontrollable speed of the car and failure to maintain safe distance between the two vehicles made it impossible to avoid the accident on noticing that the truck applied the breaks. Thus, the velocity of the car must be on the higher side than claimed and probably, it was one of the reasons for causing the accident. As per the settled preposition of law, the Tribunal has to consider the substantive evidence and not only the F.I.R. Therefore, and considering principle of "Res Ipsa Loquitor", the Tribunal held that even though the F.I.R. was lodged against the driver of the truck, the Appellant No.1 also contributed to the accident and without his contribution the accident would not have occurred. Accordingly, the Tribunal held that, the accident occurred due to negligence of the 7/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc truck driver and the Appellant No.1 and said negligence was in the ratio 80:20.
9) Evidence of Appellant No.1, CW2-Mr. Bhosle of Lilawati Hospital and AW6-Dr.Ginimuge indicate that initially, the deceased was admitted in Sanjivani Hospital, Virar and after short treatment, she was shifted to Lilawati Hospital in the ambulance of AW6. But AW5-Dr. Kurde of Sanjivani Hospital has not stated about the bills amount or its payments. Hence, relying upon the evidence of CW2, AW6, the case papers (Ex.20) with bills (Exh.21) of Lilawati Hospital and receipt from AW6 (Exh.32), the Tribunal awarded the said bills amount of Rs.37,449/- and Rs.10,000/- for the ambulance services.
10) Evidence of the Appellant No.1 is that as per the Income Tax Returns, the last salary of the deceased was total Rs.5,94,766/-, whereof the taxable part was Rs.5,67,741/-. He stated that, the deceased was also earning outstation allowances in cash @ US$ 100 per day i.e., Rs.5,000/-.
11) Evidence of AW3-Mr.S Balan is that at the relevant time he was working as Dy. Manager, HR Department, Air India. The deceased was working there as Sr. Check Air Hostess. She joined the employment there w.e.f. 01.02.1999. At the time of the accident, the deceased was drawing basic salary of Rs.7,550/- plus Rs.200/- as personal pay. She was also earning flying duty allowance. Her gross 8/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc salary was Rs.55,000. To support this evidence, AW3 has referred the Salary Certificate dated 15.04.2006 and deposed that the same bears signature of Mr. Dipak Soste, then Dy. Manager HRD. In the cross- examination, AW3 admitted that he cannot give a break up of Rs.55,000 referred in the salary certificate (Exh.26). That, the said Certificate was signed on dated 12.04.2006 (before the accident). However, the Tribunal did not depend much on his oral evidence and the Salary Certificate (Exh.26).
Here it be noted that the aforesaid Salary Certificate was referred to and identified by AW3 during his deposition on dated 11.02.2013. Therefore, it was marked at Exh.26. This same document was referred in the cross-examination of AW3. However, it appears that the correct Exhibit No.26 remained to be written on it.
12) AW4-Almeda Joseph deposed that he was working as Salary Section Officer, in Finance Department, with Air India. AW4 produced and referred a Salary Slip for the month of December 2006 and deposed that the monthly salary of the deceased was Rs.29,936/-. Additionally, she was paid allowance for flying duty, as per the actual flying hours. Domestic flying hours were paid in Indian rupees, whereas her international flying hours were paid in dollars. AW4 supported this evidence with the statement about the flying hours and its payment (at Exh.28). Further, he referred the due & drawn 9/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc statement for the years 1997-2006 (at Exh.29).
12.1) In the cross-examination AW4 admitted that, the record based on which the statement (Exh.28) was prepared, was not brought in the Court; that, the terminal on which the statement (Exh.28) was printed, was not under his control; that, he has no personal knowledge of how the said terminal operates; that, the due & drawn statement (Exh.29) was not authenticated by anybody; that, the copy of the Order of the writ petition was not with him on the basis of which due & drawn statement (Exh.29) was prepared; and that, the cheques of the amount referred in the statement (Exh.29), were not collected by the nominees.
13) It appears that the Salary Slip for the month of December 2006 remained to be marked in the evidence of AW4. The break-up of the monthly salary of the deceased as stated in the said Salary Slip, is as under :-
December - 2006 Salary Slip As per Revised Pay (Provisional) Basic Pay 13,000.00 Conveyance Allowance 800.00 Service Allowance 500.00 City Comp Allowance 300.00 House Rent Allowance 3,900.00 Education Allowance 350.00 Kit Maint Allowance 2,100.00 Remb Telephone Allowance 500.00 Dearness Allowance 8,486.40 Gross Total 29,936.40 10/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc
13.1) Vide statement Exh.28, in the year 2006, the flying allowances were paid as under :
Mrs. M.S. Marshal ST. NO.37666 Addl. Sr. Chk Air Hostess Month Flying Allowance Flying Allowance US$ in INR in US$ Lay Gross Tax Net Gross Tax Net over MAR 06 19650.73 5221 14429.89 1060.80 68 992.68 APR 06 14146.20 4185 9961.24 1777.78 141 1636.45 120 MAY 06 24317.88 8171 16147.06 2856.44 217 2639.90 120 JUN 06 18272.66 5767 12506.01 2730.05 197 2533.45 160 JUL 06 26553.20 8922 17631.34 1734.57 94 1640.32 AUG 06 29340.23 9337 20003.55 2709.19 188 2521.32 40 SEP 06 6944.26 1796 5148.59 178.07 0 178.07 NOV 06 11278.81 2509 8769.97 723.38 64 659.87 DEC 06 1486.45 499 987.00 44.79 0 44.79 Total 151990.42 46,407 105584.65 13,815.07 969 12,846.85 440
14) On appraisal of the aforesaid oral and documentary, the Tribunal observed that the due & drawn statement (Exh.29) was based on the revision in the pay scale pursuant to orders of the Patna High Court. But the witness (AW4) did not produce the service book or other record to substantiate the revised pay scale. Therefore, the Tribunal discarded the due & drawn statement (Exh.29). In this backdrop the Tribunal relied upon the testimony of AW4 and Salary Slip/Certificate for the month of December 2006 and held that the monthly salary of the deceased was Rs.29,936/-. The Tribunal further held that, although the statement (Exh.28) and due & drawn 11/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc statement (Exh.29) were obtained from a Computer System, no Affidavit is filed in support of the contents thereof, claiming it to be true to the best of the knowledge and belief of person so stating.
However, this being a claim under the Motor Vehicles Act, as per settled preposition, strict rules of Evidence Act are not applicable. Further, it is noted that, there is no suggestion of the insurer's Advocate thereby challenging the genuineness of the said documents. The fact that the deceased was an Air hostess was not challenged.
15) However, the Tribunal noted that the due & drawn statement (Exh.29) was of the period from dated 01.01.1997 to 31.12.2006. As per the settled proposition, the actual earning of the deceased at the time of accident has to be considered. Hence, the Tribunal relied upon the Salary Slip/Certificate for the month of December 2006 referred in the evidence of AW4. Accordingly, the Tribunal held that the monthly gross income of the deceased was Rs.29,936.40ps., plus her flying allowances of Rs.1486.45 plus $44.79, i.e., Rs.1,992/- (as per then Exchange Rate of $ @ Rs.44.44 ps.) for the month of December 2006, as stated in the statement (Exh.28). Thus, the Tribunal held that the monthly income of the deceased was Rs.33,414.85 ps. Rounded off Rs.33,500/-.
16) The Tribunal held that, the Appellants failed to adduce sufficient and corroborative evidence as regards the other benefit 12/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc enjoyed by the deceased i.e., free or concessional Air Tickets, free lodging and boarding abroad, free Ration etc. Therefore, the Tribunal did not consider the said benefit for the compensation purpose.
17) In view thereof, considering that the deceased was aged 40 years, that she was in the permanent employment and the decision in Reshma Kumari and Ors. v/s Madan Mohan and Anr. 1, the Tribunal deducted 10% of the proved monthly income, i.e., Rs.3,350/- towards the income tax and Rs.250/- as the profession tax. Accordingly, the Tribunal considered the net monthly salary as Rs.29,900/- and added 30% of the net salary, i.e., Rs.8,970/- towards the future prospects. Accordingly, the Tribunal considered the net monthly salary of the deceased as Rs.38,870/-. In view of the decision in Sarla Verma and others Vs. Delhi Transport Corporation and another.2, the Tribunal deducted a 1/3rd (Rs.12,957/-) of the net monthly salary of Rs.38,870/- towards personal and living expenses of the deceased. Accordingly, the loss of the dependency was taken at Rs.25,913/- per month, which annually comes to Rs.3,10,956/-. And applying the multiplier of '14', the Tribunal determined the loss of the dependency as Rs.43,53,384/-. The Appellant No.1 being the husband of the deceased, the Tribunal awarded Rs.1 Lac as consortium and amount of Rs.25,000/- towards the funeral expenses.
1. (2013) 9 SCC 65
2. 2009 ACJ 1298 (SC) 13/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc
18) Thus, the Tribunal awarded total compensation amount of Rs.45,25,833/-. However, 20% of the said amount, i.e., Rs.9,05,166/- was deducted towards the 20% contributory negligence of the Appellant No.1. Accordingly, the Tribunal held that, the Appellant were entitled to receive total compensation of Rs.36,20,666/- only.
Submissions :
19) Ms. Chavan, the learned Advocate for the Appellants, at the outset, submitted that the Appellant No.1 himself was the victim and an eye witness to the accident. His evidence that accident occurred due to rash and negligent driving of the truck is supported by the F.I.R. and the spot panchnama. She submitted that at the time of the accident, the truck driver suddenly applied the breaks of the truck without any reason and without giving signal. Said act is violation of Rules 13 (a) and 24 of 'Rules of the Road Regulations, 1989'. Said Rule 13 (a) mandates that, " When about to slow down, a driver shall extend his right arm with the palm, downward and to the right of the vehicle and shall move the arm so extended up and down several times in such a manner that the signal can be seen by the driver of any vehicle which may be behind him ." Similarly, said Rule 24 requires that, "No driver of a vehicle shall apply brake abruptly unless it is necessary to do so for safety reasons ." Therefore, the F.I.R.
was registered against the truck driver and the Appellant No.1 was not 14/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc made co-accused in the said F.I.R. However, the truck driver was not examined by the Respondents to contradict the said evidence of the Appellant No.1 to explain the reason which forced to apply the sudden breaks to the truck and on the point of the negligence. As such, an adverse inference was permissible against the truck driver. Therefore, the entire or say 100% negligence should have been ascribed only to the truck driver but the Tribunal attributed the said negligence in the ratio 80:20. According to Ms. Chavan said finding is based on mere surmises and conjecture.
19.1) Ms. Chavan, the learned Advocate for the Appellant emphatically submitted that the award towards the loss of dependency is on lower side. On dated 20.03.2025 Ms. Chavan submitted a fresh calculation sheet (Exh."X") and urged that as per the evidence on record, the Tribunal should have awarded total Rs.1,54,55,252/- towards the loss of the dependency. Said calculation has been based on the Salary Slip for the month of December 2006 and the statement of net payment towards flying hours (at Exh.28). The said calculation is as under :-
Heads of compensation Compensation
proposed
Annual salary income exclusive of travel allowance Rs.3,59,232
Rs.29936/- p.m. x 12 =
Add: average annual travel allowance exclusive of tax Rs.9,11,596.20/-
76996.35 x 12=
15/37
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P.H. Jayani 10 FA712.2023 final.doc
Less: Income tax @10% after giving effect to standard Rs.7923/-
deduction and deduction u/s 80C
Net income available at the hand of deceased post tax Rs.12,62,905.2/-
Add: future prospects 30% Rs.3,78,872/-
--------------------
Total income Rs.16,41,777/-
rd
Less 1/3 Rs.5,47,259/-
Income available to claimants (2/3rd) Rs.10,94,518/-
Multiplier 14
--------------------
Dependency Rs.1,53,23,252/-
Add: consortium (2 dependents) Rs. 96000/-
Add: Funeral expenses Rs. 18000/-
Add: Loss of estate Rs. 18000/-
Total Rs.1,54,55,252/-
19.2) To substantiate her submissions, Ms. Chavan relied upon
following reported decisions. I have carefully considered the same.
i) Bimla Devi and Ors vs. Himachal Road Transport Corp. and Ors.3. In this decision in paragraph 15 it is enunciated that, "...The claimants are merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
ii) Sushma vs. Nitin Ganapati Rangole & Ors. 4. In this case in paragraph 19, the Hon'ble Supreme Court held that, "... the contributory negligence on the part of a driver of the vehicle involved in the accident cannot be vicariously attached to the passengers so as
3. AIR 2009 SC 2819
4. 2024 INSC 706 16/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc to reduce the compensation awarded to the passengers or their legal heirs as the case may be."
iii) Union of India vs. United India Insurance Co. Ltd. 5. In this case in paragraph 10 it is held that, "There is well-known principle in the law of Torts called the 'doctrine of identification' or 'imputation'. It is to the effect that the defendant can plead the contributory negligence of the plaintiff or of an employee of the plaintiff where the employee is acting in the course of employment. But it has also been held in Mills v. Armstrong, (1888) 13 AC 1, (also called the Bernina Case) that the principle is not applicable to a passenger in the vehicle in the sense that the negligence of the driver of the vehicle in which the passenger is traveling, cannot be imputed to the passenger."
iv) N.K.V. Bros (P.) Ltd. vs. M. Karumai Ammal And Others. 6, therein it is enunciated that, "...culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes."
v) Helen C. Rebello and Ors vs. MSRTC and Anr. 7. In this decision the Hon'ble Supreme Court in paragraph 38 held that, " ... Section 92- B ensures that the claim for compensation under section 92-A is in addition to any other right to claim compensation in respect whereof
5. 1998 ACJ 342
6. (1980) 3 SCC 457
7. 1999 (1) SCC 90 17/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc under any other provision of this Act or any other law for the time being in force. This clearly indicates that intention of the Legislature which is conferring larger benefit to the claimant. Interpretation of such beneficial legislation is also well settled. Whenever there be two possible interpretations in such statue then the one which subserves the object of legislation, viz., benefit to the subject should be accepted. ..."
vi) Dr. Sunil Shankar Patil and Ors. vs. Suhel Shaukat Shaikh and Ors.8 In this case the deceased was aged 48 years. She was in service. Three LRs/dependents of the deceased filed the claim for the loss of dependency etc. Additionally, they claimed compensation towards the loss of domestic services, which was not considered by the Tribunal. However, considering the evidence, the Division Bench of this Court awarded Rs.9,00,000/- towards the loss of domestic services.
20) Mr. Turakhia, the learned Advocate for the Respondent No.2, on the other hand, submitted that at the relevant time, there was no situation before the truck driver to apply sudden breaks to his truck without giving any signal. The Appellant No.1 admitted that until the happening of accident, the truck driver did not apply break to his truck. Therefore, the evidence of the Appellant No.1 is not reliable that the accident occurred because the truck driver suddenly
8. 2024 BHC-AS:14873-DB 18/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc applied the brakes. He submitted that Rule 23 of the said Rules also provide that, "The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop." He submitted that, admittedly, the Appellant No.1 was driving his car at a speed of 70 - 80 kmph. At the same time, he did not maintain safe trailing distance from the truck. As a result, the car rammed into the truck in less than 2 seconds time, when the truck lowered its speed due to curve on the road at the spot. Thus, it is evident that the accident occurred due to sole negligence of Appellant No.1 as he violated the Rule 23. To accept the submission, the learned advocate has relied upon a decision in Nishan Singh and Ors. vs. Oriental Insurance Co. Ltd. and Ors.9. In this reported case, the car driver did not maintain requisite distance from the truck running ahead of it. Neither the truck was in speed nor it applied the brakes suddenly. Breadth of the road was just 14 ft. Therefore, the car driver was held guilty of causing the accident.
20.1) Mr. Turakhia, the learned Advocate further submitted that, as per the evidence of AW3, in April 2006 the monthly salary of the deceased including allowances was total Rs.55,000/- only, ( vide Salary Certificate Exh.26). He submitted that the Salary Certificate
9. 2018 ACJ 1466 (SC) 19/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc (Exh.26) was obtained before the accident. He submitted that as per Form No.3 for the financial year 2004-2005, the gross annual income of the deceased was Rs.7,38,388/- only. However, there is huge difference in the monthly income of the deceased stated in the calculation sheet (Exh."X"). He submitted that no Form No.16 of the financial year 2005-2006 and 2006-2007 were produced in the evidence to substantiate the income stated in the calculation sheet. Therefore, Mr. Turakhia urged that the compensation awarded by the Tribunal is just and fair and it need not be interfered with.
21) It is well-settled that in the proceedings of Section 166 of the Act, the issue of negligence has to be decided on the basis of preponderance of probabilities and that, standard of proof beyond a reasonable doubt cannot be made applicable in such cases. However, as held in case of Surendra Kumar Arora and Anr. vs. Dr. Manoj Bisla & Ors10, if claimants failed to establish the negligence of the driver of the alleged offending vehicle before the Tribunal, they are not entitled for compensation U/s.166 of the Act.
21.1) It is trite that, where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either
10. (2012) 4 SCC 552 20/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc party could, by exercise of reasonable care, have avoided the consequence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. It is well settled that in the case of contributory negligence, Courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage are reduced to such an extent as the Court thinks just and equitable having regard to the claim shared in the responsibility for the damage.
21.2) Where a person is injured or died without any negligence on his part but as a result of combined effect of the negligence of two other persons, it is a case of composite negligence.
22) In the case in hand, on perusal of the F.I.R. it appears that 21/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc
the Inquiry Officer, on inquiry, has found that the driver of the truck was prima facie responsible for causing the accident by driving the said truck rash and negligently. Therefore, charge-sheet was filed against the said driver. However, when the substantive evidence is available in the case, the F.I.R. alone cannot be dependable to lay a definite finding as to the negligence of the truck driver or the Appellant No.1 or both.
23) As pleaded in the claim, the driver of the truck applied sudden breaks to his truck. The Appellant No.1, therefore, swerved his car to the right hand side of the motor truck to avoid the accident. However, in the evidence the Appellant added that at that very juncture, "the truck driver could not control the truck and the rear/back side of the truck skidded to its right. Consequently, the front left side of the car collided with the truck. Thus, according to the Appellant No.1, the accident occurred due to rash and negligent driving of the truck only." This is nothing but an attempt to make the Appellants' claim better to ascribe entire negligence to the truck.
24) Admittedly, there was a curve at the spot of the incident. The Appellant No.1's evidence is that the front left side of the car collided with the truck when the truck applied its break. But the Appellant No.1 admitted that at the particular junction he was driving his car in a slow lane, i.e., on left side of the road and there was no 22/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc vehicle on his right hand side; that, the road was curve there; and that, he was not aware which vehicle was in front of the offending truck. All this evidence indicates that at the time of the accident, when the truck applied the breaks and lowered its speed, the Appellant No.1 did not maintain sufficient trailing distance from the truck. At the same time, the Appellant No.1 was driving the car in uncontrollable speed of 70 to 80 kmph. Consequently, the car collided with the rear side of the truck. However, the Respondent No.2 has not examined the truck driver to explain the real reason behind applying the sudden breaks to the truck without giving signal on the public road. The truck must have rear view mirrors. Therefore, the truck driver was in a position to see the car coming from behind. As such, before applying the breaks, the truck driver was duty bound to follow the said Rules 13 (a) and 24, which he did not. Therefore, the conclusion was inevitable that the truck was not driven in a diligent and careful manner. Driving a heavy vehicle on a public road in such a manner is always dangerous to other road users. This danger, however, was ignored by the driver of the truck, which gave birth to this accident. Similarly, it being the day time, the truck was clearly visible. The Appellant No.1, therefore, was duty bound to maintain a sufficient trailing distance from the truck, by driving his car in a moderate speed, to avoid an untoward. However, the 23/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc Appellant No.1 also failed to observe the caution, as mandated by said Rule 23. Thus, it is apparent that the Appellant No.1 was also not driving his car with diligence and care, which endangered his family. If the Appellant No.1 was little watchful, he could have avoided the accident. Therefore, some negligence is imputable to Appellant No.1.
25) To support the conclusion above, a useful reference can be made to a decision in United India Insurance Co. Ltd. vs. Smt. Mary and Others11, wherein, in paragraph 9 and 10, the High Court observed that :
"9. ........ The general rule is that the vehicle should be driven at a speed which enables the driver to stop within the limits of his vision and failure to do this will almost always result in the driver being held, in whole or in part, responsible for the collision. [See: CLERK AND LINDSELL ON TORTS, ELEVENTH EDITION, 1954 PAGES 368-370]. It is equally well settled legal proposition that burden of proving negligence lies on the person who alleges it. However, facts of the accident may by themselves constitute evidence of negligence and to such a case the Doctrine of 'res ipsa loquitor' apply which means the things speak for itself. The aforesaid rule is one of the exception to the general rule that burden of proving negligence lies on the person who alleges it.
10. In Sharadabai vs. Karnataka State Road Transport Corporation, [ILR 1987 KAR 2730], a division Bench has held that in order to discharge the burden of proof with regard to
11. 2020 SCC OnLine Kar 3387 24/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc contributory negligence, it is unnecessary for the propounder of that defence to adduce evidence about the matter and contributory negligence can be and very often is inferred from the evidence already adduced by the claimants or from the perceptive facts. However, the finding with regard to contributory negligence has to be recorded on the basis of proper consideration of the pleadings and legal evidence adduced by both the parties and the same cannot be based merely on police records. [Minurout vs. Satya Pradyumna Mohapatra, [(2013) 10 SCC 695] and Sarla Devi vs. Royal Sundaram Alliance Insurance Co. Ltd.,', [(2014) 15 SCC 450]. It is well settled in law that burden to prove breach of duty on the part of the victim lies on the insurance company and the insurance company has to discharge the burden."
26) On evaluating the evidence, the Tribunal noted that it was the duty of the truck driver to drive his vehicle by considering the situation of the road and control the truck in case of necessity, either by adjusting its speed or otherwise, so as to stop the truck without causing danger to other vehicles on the road. In the instant case, admittedly the Respondent No.2 has failed to adduce any substantive evidence about the care and caution of the truck driver to avoid the accident. The truck driver was only material witness who was able to explain the circumstances in which he was required to apply the sudden breaks to the truck. However, he was not produced before the Tribunal to explain the situation. Hence, in the absence of such 25/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc evidence the Tribunal had to consider the truck driver's contribution to the accident on higher side than the Appellant No.1. Accordingly, their negligence was held in the ratio 80:20. Considering the evidence as a whole, in my view, there is no reason to take a different view than the plausible view taken by the learned Member of the Tribunal. Thus, I am in unison with the finding of the Tribunal that the accident occurred due to rash and negligent driving of the truck and the car of the Appellant No.1 in the ratio 80:20.
27) Now question is "whether the Appellants are entitled for enhancement of the amount of compensation?".
28) In this regard I noticed that as per the Salary Slip for the month of December 2006, the monthly salary of the deceased was was Rs.29,936.40/-. However, as stated in the due and drawn statement (Exh.29), the salary for the month of December 2006 was Rs.24,736/- only. There is no head and mention of the 'house rent allowance' of Rs.3,900/-' in the due and drawn statement (Exh.29). The aforesaid differences are not explained by the Appellants.
29) The Appellants produced a photocopy of an income tax returns, i.e., Form No.3 for the financial year 2004-2005 (Below list at Exh.14/Document No. viii), which was signed by the deceased on dated 26.07.2005, at Mumbai. As declared in this Form No.3, in the year 2004-2005 the gross annual income of the deceased was 26/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc Rs.7,38,388/- only and the total income tax deducted/collected was Rs.1,92,101/- (i.e., 26.44 % income tax charged on the taxable income of Rs.7,26,662/-). This Form No.3 was 'Verified from original' as endorsed thereon with the signature and stamp of the Additional Registrar of the MACT, Mumbai. Yet, this Form No.3 or its original was not referred to and relied in the evidence by the Appellant No.1 for the reason best know to him, even though he has been well experienced businessman. Withal, accordingly to Ms. Chavan, the learned Advocate for the Appellants, in the financial year 2006-2007 the net annual income of the deceased was Rs.12,62,905.2/- including the flying hours allowance but the income tax was Rs.7,923/- only. To accept this submission Ms. Chavan wants this Court to accept the average monthly flying hours allowance as Rs.76,996.35, exclusive of the income tax, which annually comes to Rs.9,11,596.20/- In this regard, Ms. Chavan, heavily relied upon the statement of the payment towards the flying hours (at Exh.28), which shows that it was exclusive of the income tax. Meaning thereby Mr. Milind Naidu, the Dy. Manager-Finance who prepared that statement, was having the income tax record of the deceased for the financial year 2006-2007. However, that best evidence/record or Form No.3 or Form No.16 of the financial years 2005-2006 and 2006-2007 is not produced in the evidence. No excuse is shown for not producing the said record or 27/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc Forms either by Appellant No.1 or the witnesses, who came from the office of Air India. Hence, an adverse inference must be drawn. 29.1) AW4 did not inform the record based on which the statement of the payment towards the flying hours (at Exh.28) was prepared. AW3 categorically deposed that the monthly basic salary of the deceased was Rs.7,550/- at the time of the accident. This is matching with the old basic salary of December 2006 stated in the due & drawn statement (Ehx.29). It is not the case that AW3 deposed incorrect or false that the monthly salary of the deceased was Rs.55,000/- at the time of the accident and that, the Salary Certificate (Exh.26) referred by AW3 is also incorrect or false. As stated in the due & drawn statement (Exh.29), the revised monthly salary for April 2006 was Rs.23,914.54/- only. The Appellants have not explained as to how the average monthly flying hours allowances of the deceased increased to Rs.76,996.35/-. This monthly allowance is almost three times to such monthly allowance included in the monthly salary of Rs.55,000/- which the deceased was getting at the time of the accident as deposed by AW3 and vide Exh.26. Neither the Appellants nor Ms.Chavan, the learned Advocate explained as to how the income tax could be Rs.7,923/- only, after the standard deduction and deductions under Section 80C of the Income tax Act, but against the total average gross annual income of Rs.12,70,828.20/-. Hence, I find 28/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc it difficult to place implicit reliance on the statement of payment towards the flying hours (Exh.28) and the calculation sheet (Exh."X"). As held in K. Suresh v/s. New India Assurance Co. Ltd. And Anr. 12, "2. ... There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity "the Act") stipulates that there should be grant of "just compensation." Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance." In view thereof and considering the evidence as a whole, it would be appropriate to rely upon the evidence of AW3 that the monthly income of the deceased as Rs.55,000/- per month including the allowances, as stated in the Salary Certificate (Exh.26). And taking assistance or clue from the details of the income stated in the income tax return/Form No.3 verified by the Additional Registrar of the Tribunal, as noted above, it would be appropriate to consider the average gross annual income of the deceased as Rs.8,00,000/- for the financial year 2006-2007 and to deduct from it 25% as the income tax, i.e., at par with 26.44 % income tax charged on the taxable
12. (2012) 12 SCC 274 29/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc income of Rs.7,26,662/- stated in the said Form No.3 for the financial year 2005-2006. Even otherwise, as deposed by the Appellant No.1, as per the Income Tax Returns the last salary of the deceased was total Rs.5,94,766/-, whereof the taxable part was Rs.5,67,741/-. However, as noted above, this Income Tax Return is also not produced in the evidence. Hence, I hold that at the time of the accident the average net annual income of the deceased was Rs.6,00,000/- only.
30) As noted in the medical papers, postmortem report and police papers, the deceased was aged 41 years. She was in the permanent employment. Therefore, and in accordance with the decision in National Insurance Co. Ltd. v/s. Pranay Sethi and Others13, 30% of her proved net annual income shall be added towards her future prospects. Accordingly, the actual yearly income of the deceased comes to Rs.7,80,000/- (600000 + 180000).
31) In accordance with the decision in Sarla Verma (supra), where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 2 to 3.
31.1) In the case in hand, the Appellant No.2 was minor at the time of the accident, therefore, he was definitely dependent on the
13. 2017 ACJ 2700 (SC) 30/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc deceased. In the cross examination, the Appellant No.1 admitted that since last thirty years he has been doing business in IT Sector. His income was Rs.39 lacs per annum at the time of the accident. He admitted that directly, he was not economically dependent on the deceased. Nevertheless it cannot be ignored that the Appellant No.1 was dependent on various gratuitous domestic services rendered by the deceased despite she was in the service. Such gratuitous services were personal care and attention given by the deceased, cooking for the family, necessary housekeeping etc. It is probable that after the death of the deceased, the Appellant No.1 was more dependent on domestic help for all the household. In the decision between Arun Kumar Agrawal and Anr. v/s. National Insurance Co. Ltd and Ors. 14, in paragraphs 26 and 27, the Hon'ble Supreme Court observed as under :
"26. In India the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and
14. AIR 2010 SC 3426 31/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.
27. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term 'services' is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependents cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier."
31.2) In view thereof, 1/3rd of the actual yearly income of deceased should be deducted towards her personal and living 32/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc expenses. On the 1/3rd deduction, the yearly contribution to the family come to Rs.5,20,000/-. As noted above, the deceased was aged 41 years. Hence, the proper multiplier would be '14'. Applying this multiplier to the yearly family contribution, i.e., multiplicand of Rs.5,20,000/-, the actual loss of dependency would be Rs.72,80,000/-. As held in the case of Magma General Insurance Co. Ltd. v/s. Nanu Ram Alias Chuhru Ram & Ors.15, the Appellants being the husband and son of the deceased, they are entitled to receive Rs.48,000/- each as spousal and parental consortium respectively. In addition, they shall get Rs.18,000/- under the head 'funeral expenses' and total Rs.18,000/- under the head 'loss to estate'. There is nothing on record to disagree with the expenses incurred on the medical and ambulance services totalling to Rs.47,449/-. The Appellants have not proved the service conditions of the deceased to award any compensation towards discounted ticket facilities etc. There is no specific claim for the loss of the domestic services. On the contrary, Appellant No.1 admitted that there was domestic help in the house prior to the marriage. As such, no compensation is possible under the said heads. Thus, the total compensation comes to Rs.74,59,449/-.
32) However, in view of the finding that the negligence on the part of the truck driver and the Appellant No.1 was in the ratio
15. 2018 ACJ 2782 (SC) 33/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc 80:20., there shall be 20% deduction from the compensation amount worked out above. Because said 20% negligence of Appellant No.1 resulted in the loss of his own personal care and attention etc. which he was getting gratuitously from the deceased. No doubt, Appellant No.2 was passenger in the car and the 20% contributory negligence was composite negligence in respect of the claim of Appellant No.2. However, it cannot be ignored that both Appellants were depending on the deceased. Therefore, even if this claim would have been filed by the Appellant No.2 individually for himself, he was required to array the Appellant No.1 as the opposite party. And in that case also the Tribunal would have dealt with the question of composite/ contributory negligence and deduction/apportionment in the compensation, accordingly.
32.1) As observed by the Hon'ble Supreme Court in Sushma (supra), the principle of contributory negligence is confined to the actual negligence on the part of the plaintiff. In that case, the claimants/plaintiffs were the injured and LRs of deceased passengers. Therefore, the Hon'ble Supreme Court held that the claim of the deceased driver of the car involved in the accident would stand on a different footing. In the case in hand the Appellant No.2 is not the only plaintiff, but a co-plaintiff with the Appellant No.1. They were travelling in the car as the driver and passenger. In view of this 34/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc peculiar fact the Appellants and in particular the Appellant No.1 cannot derive any benefit from the decision in Sushma (supra) and Union of India (supra) to escape the deduction of Rs.14,91,890/- towards the 20% contributory negligence of the Appellant No.1. Accordingly, the Appellants are entitled to receive only 80% of the compensation amount i.e. Rs.59,67,559/- (inclusive of NFL) from the Respondent Nos.1 and 2.
33) Respondent No.2 has deposited the compensation amount awarded by the Tribunal. The Appellants, therefore are entitled to receive only the enhanced compensation as under :-
Total compensation amount : Rs.59,67,559/-
Minus the compensation amount : - Rs.36,20,666/-
awarded by the Tribunal and paid. -----------------
= Rs.23,46,893/-
34) The Claimants are entitled for some interest on the
compensation amount. Rate of such interest is required to suit the prevailing rate of interest at the time of accident. This accident occurred in the year 2006. The deceased was aged 41 years only. Therefore and considering other facts and circumstances of each case, grant of interest @ 7.5% p.a. will be just and proper.
35) As a result, the question of enhancement of the compensation stands answered, accordingly.
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P.H. Jayani 10 FA712.2023 final.doc 36) Upshot of the above discussion is that the Tribunal rightly
held that the accident occurred due to rash and negligent driving of the truck and the car in the ratio 80:20 and that, there should be deduction in the compensation amount on account of the 20% contributory negligence. However, the Tribunal erred in not relying upon the evidence of AW3, the Salary Certificate (Exh.26) and the other material on record to quantify and award "just compensation". The impugned Judgment and Order, therefore, warranted an interference to modify the award. The Appeal partly succeeds. Hence, following Order is passed :-
(a) First Appeal is partly allowed with proportionate costs.
(b) The impugned Judgment and Order dated 17.12.2013, in M.A.C.P. No.1733 of 2007, passed by the Motor Accident Claims Tribunal, Mumbai is modified.
(c) The Respondents are directed to jointly and severally pay compensation of Rs.59,67,559/- (inclusive of no fault liability) together with interest thereon at the rate of 7.5 % per annum from the date of the Claim Petition till realisation of the amount.
(d) Respondents are directed to comply with this Judgment and Order within a period of two months from 36/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 ::: P.H. Jayani 10 FA712.2023 final.doc today, by depositing the amount in the Tribunal.
(e) Respondent No.2-Insurance Company will be entitled to adjustment of the amount against the already paid under the impugned Award.
(f) On deposit of the amount, the Tribunal shall immediately inform about the deposit to the Appellants. However, the deposited amount shall not be invested for a period eight weeks form the date of the deposit. If the amount is not withdrawn within the period of the eight weeks, then the Tribunal will be at liberty to invest the same.
(g) The entire amount of the enhanced compensation alongwith interest shall be paid to the Appellant Nos.1 and 2 in the ratio 30:70.
37) Appeal is disposed of in above terms. PREETI (SHYAM C. CHANDAK, J.) HEERO JAYANI Digitally signed by PREETI HEERO JAYANI Date: 2025.04.04 19:19:21 +0530 37/37 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:52:22 :::