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
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,
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
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
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
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.
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
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
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
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
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
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
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)
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
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=
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/-
--------------------
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
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
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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
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)
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
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
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
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
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
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
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
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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
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
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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
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)
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
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
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)
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
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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.
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
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
