Bombay High Court
Maharashtra State Road Transport ... vs Neha Pramod Vishwanath Kashalkar And ... on 2 April, 2025
2025:BHC-AS:17726
P.H. Jayani 01 FA1712.2008.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1712 OF 2008
WITH
CIVIL APPLICATION NO. 4209 OF 2008
IN
FIRST APPEAL NO. 1712 OF 2008
Maharashtra State Road Transport Corporation
A Corporation incorporated under the
Maharashtra State Road Transport Corporation
Act having its registered office at Vahatuk Bhavan,
Bellasis Road, Bombay Central,
Mumbai - 400 008 ..... Appellant
Vs.
1) Smt. Neha W/o. Pramod Vishwanath Kashalkar
Age - 38 years, Occ. Service
2) Rucha D/o. Pramod Vishwanath Kashalkar
Age - 10 years, minor through her
natural guardian mother Applicant No.1.
3) Prachi D/o. Pramod Vishwanath Kashalkar
Age - 5 years, minor through her
natural guardian mother Applicant No.1,
All R/o. at E/9, Vaibhav Sahar Pipe Line Road,
Andheri (E), Greater Mumbai
4) Sachin Tukaram Dudhane
Age - adult, Occ. Service,
R/o. Hasan Nagar Chawl No.1,
Near Parijat Co-operative Society,
Behind S.T. Workshop, Thane (W)
5) Mrs. Kavita Sunil Bhanushali
Age- Adult, Occu- Business,
R/o. at 204/A, Kapilvastu Housing Complex,
Opposite Pratap Talkies, Thane (W),
Taluka and District Thane
1/16
::: Uploaded on - 21/04/2025 ::: Downloaded on - 26/04/2025 01:30:37 :::
P.H. Jayani 01 FA1712.2008.doc
6) United India Insurance Co. Ltd.
City Branch Office No.2,
Nashish Apartment, Near Vandana Talkies,
1st Floor, Ram Maruti Road,
Taluka and District Thane ..... Respondents
WITH
CROSS OBJECTION (ST.) NO. 4217 OF 2010
IN
FIRST APPEAL NO. 1712 OF 2008
Maharashtra State Road Transport Corporation
A Corporation incorporated under the
Maharashtra State Road Transport Corporation
Act having its registered office at Vahatuk Bhavan,
Bellasis Road, Bombay Central,
Mumbai - 400 008 ..... Appellant
Vs.
1) Smt. Neha W/o. Pramod Vishwanath Kashalkar
Age - 49 years, Occ. Service
2) Rucha D/o. Pramod Vishwanath Kashalkar
Age - 22 years, major, student, through her natural
guardian mother Applicant No.1.
3) Prachi D/o. Pramod Vishwanath Kashalkar
Age - 17 years, minor, student, through her natural
Guardian mother Cross Objector No.1,
All are residing at Building No.45A/24,
Vrindavan Complex, Majiwade,
Thane - 400 601.
4) Sachin Tukaram Dudhane,
Age - adult, Occ. Service,
R/o. Hasan Nagar Chawl No.1,
Near Parijat Co-operative Society,
Behind S.T. Workshop, Thane (West),
5) Kavita Sunil Bhanushali, Adult,
Occu. Business, R/o. at 204/A, Kapilvastu Housing Complex,
Opposite Pratap Talkies, Thane (West),
Taluka and District Thane
2/16
::: Uploaded on - 21/04/2025 ::: Downloaded on - 26/04/2025 01:30:37 :::
P.H. Jayani 01 FA1712.2008.doc
6) United India Insurance Co. Ltd.
City Branch Office No.2, Nashish Apartment,
Near Vandana Talkies, 1st Floor,
Ram Maruti Road, Taluka and District Thane ..... Respondents
Ms. P.M. Bhansali i/b. M/s. G.S. Hegde and Associates for the
Appellant.
Mr. Tejpal S. Ingale a/w. Ms. Priyanka Babar for Respondent
Nos.1 to 3.
Mr. Saumen Vidyarthi a/w. Ms. Ishita Bhole for RespondentNo.6.
CORAM : SHYAM C. CHANDAK, J.
DATED : 02nd APRIL, 2025.
JUDGMENT :
-
. Present Appeal challenged the Judgment and Order dated
25.01.2008, in M.A.C.P No.638 of 1999 ("claim"), passed by the
Motor Accident Claims Tribunal, Raigad, at Alibag, thereby said claim
filed under Section 166 of the Motor Vehicles Act, 1988 ("Act") by
RespondentNos.1 to 3 ("claimants") was partly allowed with
proportionate costs and, the Appellant was held liable to pay the
compensation amount in the sum of Rs.22,50,000/- (inclusive of an
amount of No Fault Liability, if any) along with interest at the rate of
7.5% per annum from the date of registration of the claim till
realization of the amount.
1.1) Record indicates that the Appeal was admitted on dated
15.01.2010. The Appeal was dismissed against Respondent No.4 by
P.H. Jayani 01 FA1712.2008.doc
Order dated 26.02.2010. Mr. Sagar Joshi, the learned Advocate
appeared for Respondent No.5 on dated 08.12.2018.
2) Heard Ms. Bhansali, the learned Advocate for the
Appellant, Mr. Ingale, the learned Advocate for Respondent Nos.1 to
3 and Mr. Vidyarthi, the learned Advocate for the Respondent No.6.
None present for Respondent No.5.
3) The claimants are the widow and daughters of late Shri.
Pramod Vishwanath Kashilkar ("deceased"). The claimants' case is
that on dated 05/07/1998, at about 04:45 p.m., on Roha-Thane road,
near Nagothame, when the deceased was travelling in a motor jeep
bearing registration No.MH-04/Q-6024 ("jeep") proceeding from
Thane side towards Roha, ST bus bearing registration No. MH-20/A-
4269 ("bus") came from opposite direction driven in a rash and
negligent manner and dashed against the jeep. Due to said impact,
the deceased sustained injuries and died. On information of the
accident, the police registered an FIR bearing C.R.No.68/1998 under
Sections 304A, 279, 337 and 338 of the I.P.C. and Section 184 of the
Act against the driver of the bus. The deceased was aged 42 years. He
was serving as an Additional Chief Engineer (Mechanical), in R.C.E.
Ltd., Thai Project at Thai, Taluka Alibag. The deceased was drawing a
monthly salary of Rs.18,000/-. Hence, the claimants filed the claim
and prayed to award a compensation in the sum of Rs.45,00,000/-
P.H. Jayani 01 FA1712.2008.doc
against the Appellant, the driver of the bus and Respondent Nos.4 to
6, i.e., the driver, owner and insurer of the jeep (Original Opponent
Nos.1 to 5). The father of the deceased was arrayed as Opponent No.6.
4) Opponent No.2, driver of the bus, proceeded ex-parte. The
Appellant opposed the claim by filing the Written Statement
(Exh.36). Therein the Appellant contended that, at the relevant time,
the jeep was driven at a high speed, on the wrong side of a narrow
road and in a rash and negligent manner. On noticing the bus, the
jeep driver applied the sudden breaks to his jeep. As a result, the jeep
skidded and dashed the bus. Thus, the accident occurred due to sole
negligence of the driver of the jeep. It was contended that the claim
was exorbitant. The Appellant denied that the deceased was working
and earning as averred in the claim. Therefore, the Appellant prayed
to dismiss the claim.
4.1) Respondent Nos.4 and 5 also resisted the claim with their
Written Statement (Exh.38) and contended that the accident
occurred due to negligence of the driver of the bus. In the alternative,
it was contended that in the case of contributory negligence, the
compensation liability be saddled upon Respondent No.6, being the
insurer of the jeep.
4.2) Respondent No.6 opposed the claim by filing the Written
Statement (Exh.45) and contended that the accident occurred due to
P.H. Jayani 01 FA1712.2008.doc
rash and negligent driving of the bus. The deceased was travelling in
the jeep as a fair paying passenger. There was breach of the policy
terms and conditions. Therefore, the claim be rejected.
5) Considering the rival pleadings, the Tribunal framed the
issues. To prove the claim, the claimants presented the evidence of
RespondentNo.1 (AW1/Exh.59) and Shirish Raghunath Chandekar,
Personnel Officer, R.C.F. Company (AW2/Exh.73). Besides, the
claimants relied upon various documents in the evidence. In rebuttal,
the Appellant examined Mr. Prashant Shridhar Manguskar, the
Conductor of the bus (RW1/Exh.77).
6) On appraisal of the evidence adduced by the parties, the
Tribunal held that the accident occurred due to rash and negligent
driving of the bus. That, the deceased was serving in R.C.F. Ltd.,
thereby he was getting annual income of Rs.1,92,004/-. However, the
deceased was to pay income tax. The decease was aged 42 years. The
age of retirement of the deceased might be 58 or 60 years.
Accordingly, the Tribunal held that the actual yearly income of the
deceased was Rs.2,20,000/- including the future prospects. Out of
the said amount, 1/3rd amount was deducted towards personal and
living expenses of the deceased. Thus, the loss of the dependency was
quantified at Rs.22,50,000/-. Additionally, the Tribunal awarded
Rs.5,000/- towards 'funeral charges', Rs.15,000/- for the 'loss of
P.H. Jayani 01 FA1712.2008.doc
consortium' and Rs.30,000/- as the 'loss of the estate'.
7) Ms. Bhansali, the learned Advocate for the Appellant
submitted that the accident occurred due to rash and negligent
driving of the jeep. In the alternative, she submitted that considering
the manner of the accident, the Tribunal should have held that the
accident occurred due to contributory negligence on the part of the
drivers of both the vehicles and that, the negligence of the jeep driver
was on higher side. According to Ms. Bhansali, the Tribunal wrongly
held that the annual income of the deceased was Rs.2,20,000/-,
which is on higher side. As such the compensation amount is
exorbitant. Therefore, Ms. Bhansali urged that the impugned
Judgment and Order requires an interference to modify the same.
8) Mr. Ingale, the learned Advocate for the claimants
submitted that the deceased was the only earning member of the
family. There is sufficient evidence on record that both the vehicles
were involved in the accident. That, the deceased was in service and
getting the annual income of Rs.1,92,004/-. However, the Tribunal
did not add sufficient amount towards the future prospects, which
resulted in awarding an inadequate compensation.
9) Mr. Vidyarthi, the learned Advocate for Respondent No.6,
on the other hand, submitted that the conductor of the bus did not
specifically deposed that he saw the actual collision between the two
P.H. Jayani 01 FA1712.2008.doc
vehicles. Therefore, his evidence is of no assistance to decide the
question of negligence. He submitted that considering the principles
of "Res ipsa loquitur", it is evident that the accident occurred only due
to rash and negligent driving of the bus. Therefore, the Tribunal
absolved the Respondent Nos.3 to 5 from the compensation liability.
10) The evidence of Respondent No.1 is that at the time and
place of the accident, the bus came from opposite direction driven in
a rash and negligent manner. As a result, the bus dashed against the
jeep and caused the accident. However, Respondent No.1 was not an
eye witness to the accident. Therefore, the claimants mainly relied
upon the police papers i.e., FIR (Exh.34) and Spot Panchanama
(Exh.65), on the strength which the Respondent No.1 asserted that
the accident occurred due to rash and negligent driving of the bus.
11) In contrast, RW1-Mr. Prashant Manguskar, the Conductor
of the bus deposed that at the time of the accident, he saw that the
jeep was driven in a zigzag manner and high speed. As a result, the
jeep dashed to the ST bus on its driver side.
12) In view of the rival evidence, I have carefully perused the
police papers and the typed copy of the spot panchnama produced by
Ms. Bhansali, the learned Advocate.
13) The spot panchnama clearly recorded that the road on
P.H. Jayani 01 FA1712.2008.doc
which the accident occurred, runs north to south. The width of the
road was 24 feet. This fact is admitted by RW1 in his cross-
examination. It is, therefore, safe to infer that before the accident,
both the vehicles had a 12-foot wide road from the centre of the road.
RW1 admitted that the width of the ST buses was about 8 feet and the
approximate width of the jeep may be 4 to 5 feet. Admittedly, the bus
and the jeep were proceeding in the opposite direction. It is not the
case that any vehicle was running in front of the jeep. As deposed by
RW1 only a scooter was running in front of the bus. RW1 admitted
that the road was straight at the spot of the accident. RW1 deposed
that he was seated just behind the bus driver and facing the road,
therefore, entire road was visible to him. This evinces that the vision
of the drivers of the bus and the jeep was not obstructed. As such, the
bus and the jeep could have easily and safely passed over one another.
14) Admittedly, the bus was proceeding from north-to-south
direction and the jeep was proceeding from south-to-north direction.
Accordingly, the correct/left side of the bus was to the east and that of
the jeep to the west. The spot panchanama noted that the accident
occurred at the 10 feet mark towards the east from the western edge
of the road. Meaning thereby the bus came inside the south-to-north
track meant for the jeep. Therefore, the Appellant was required to
P.H. Jayani 01 FA1712.2008.doc
explain as to why the bus had come 2 feet inside the 12-foot wide
south-to-north track available for the jeep. However, there is no
explanation for the same. RW1 being the conductor of the bus, tried
to salvage the situation, stating that the said road was not too broad
to allow a single vehicle to pass at a time. However, as noted above,
the road was 24 feet wide. This contradiction indicates that RW1
deposed incorrect just to ascribe entire negligence to the jeep.
15) Ms.Bhansali, the learned Advocate for the Appellant
emphatically submitted that the jeep was driven in a zigzag manner
and at high speed. According to RW1, by the time he saw the jeep, it
was at about 100 meters distance from the bus. From this assertion it
can be said that before the jeep caught the attention of RW1, it was
already noticed by the driver of the bus. Therefore, the bus driver
could have immediately stopped the bus on his 12 feet wide north-to-
south track, but he did not stop for the reasons best known to him.
Except bald assertion that the jeep was driven at a high speed,
nothing additional is deposed by RW1 to hold that indeed the jeep
was driven at a high speed. Therefore, I do not find any justifiable
reason to accept that the jeep was driven in a zigzag manner and at
high speed. That apart, the Appellant and RW1 did not explain as to
how the driving of the jeep in a zigzag manner and at high speed
P.H. Jayani 01 FA1712.2008.doc
prevented the bus driver from avoiding this accident particularly
when the bus had empty road in the front and there was no vehicle to
the left of the bus to restrict it from swerving to the left.
16) Conspectus of the above discussion is that, without any
reason the driver of the bus drove the bus partially on the wrong side.
As a result the bus came in the way of the jeep. This all indicates that
the driver of the bus failed to keep proper look out at the road at the
time of the accident. As a result the bus dashed the jeep and caused
the accident. Therefore, I hold that the instant accident occurred due
to the rash and negligent driving of the bus.
17) Insofar as the quantum of the compensation is
concerned, the evidence of AW1 and AW2 is that at the time of the
accident the deceased was working as an Additional Chief Engineer
(Mechanical), on promotion. AW1 deposed that the deceased was
drawing a monthly salary of Rs.26,000/- and referred the Salary
Certificate (Exh.63). AW2 deposed that the deceased was drawing a
monthly salary of Rs.23,052/- and referred the Salary Certificate
(Exh.74). However, the relevant Order of Promotion is not filed on
record. Therefore, I find it difficult to hold the monthly salary either
Rs.26,000 or Rs.23,0052/-.
17.1) Mr. Ingale, the learned Advocate for the claimants
P.H. Jayani 01 FA1712.2008.doc
conceded the aforesaid shortcomings and he, therefore, submitted to
consider the Form No.2A of Income Tax Return alongwith Form
No.16 (Exh.70), referred by AW1. Additionally, Mr. Ingale submitted
the calculation sheet, accordingly. Said documents (Exh.70) clearly
show that in the financial year 1997-98 the gross annual income of
the deceased was Rs.1,92,004/-, out of which Rs.9,543/- were
deducted towards the income tax. The Net Annual Income was
Rs.1,82,461/-. The deceased was in the permanent employment and
aged just 42 years. The father of the deceased/Original Opponent
No.6 was aged 87 years. Thus, it was clear that all the claimants and
the aged father were dependent on the income of the deceased. From
the cause title of the impugned judgment it appears that the father of
the deceased expired during pendency of the claim, therefore, his
name was deleted. However, as held in the case of Kirti and others V.
Oriental Insurance Co. Ltd.1, "Claims and legal liabilities crystallize at
the time of the accident itself and, changes post thereto ought not to
ordinarily affect pending proceedings. Just like how Appellant-
claimants cannot rely upon subsequent increases in minimum wages,
the Respondent-insurer too cannot seek benefit of the subsequent
death of a dependent during the pendency of legal proceedings." In
view thereof and the decisions in Sarla Verma and others V. Delhi
1. 2009 ACJ 1298 (SC)
P.H. Jayani 01 FA1712.2008.doc
Transport Corporation and another2 and National Insurance Co. Ltd.
V. Pranay Sethi and Others3 30% of the established net annual
income should be added towards the future prospects of the deceased
and thereafter 1/4th of the actual net yearly income should be
deducted towards the personal and living expenses of the deceased.
The applicable multiplier is '14'. As a result, the loss of the
dependency comes to Rs.24,90,586/-. (Rs.1,82,461+ Rs.54,738/-
(30%) - 59,300 (1/4th) = Rs.1,77,899/- x 14). in view of the decision
in Magma General Insurance Co. Ltd. V. Nanu Ram Alias Chuhru
Ram & Ors.4 the Respondent Nos.1, 2 and 3 are entitled to receive
Rs.48,000/- each as spousal and parental consortium, respectively.
Similarly, the father of the deceased was also entitled to get
Rs.48,000/- as filial consortium but since he has expired during the
pendency of the claim, said amount of Rs.48,000/- should be paid to
claimants/Respondent Nos.1 to 3. Additionally, the claimants are
entitled to receive Rs.15,000/- under the head 'funeral expenses' and
total Rs.15,000/- under the head 'loss to estate'. Thus, the total
compensation comes to Rs.27,12,586/-. The rate of interest granted
by the Tribunal is reasonable. Accordingly, the claimants are entitled
for the enhanced compensation as under :-
2. 2009 ACJ 1298 (SC)
3. 2017 ACJ 2700 (SC)
4. 20218 ACJ 1 (SC)
P.H. Jayani 01 FA1712.2008.doc
Total compensation : Rs.27,12,586/-
Compensation
awarded by the Tribunal : - Rs.22,50,000/-
------------------
Enhanced compensation : = Rs. 4,62,586/-
------------------
18) Upshot of the above discussion is that the Tribunal rightly
held that the subject accident occurred only due to rash and negligent
driving of the bus. Therefore, exoneration of the Respondent Nos.4 to
6 from the compensation liability cannot be termed as erroneous.
However, the Tribunal failed to award an adequate compensation as
quantified above. As a necessary corollary thereof, the Appeal is liable
to be dismissed and the Cross-objection deserves to be allowed.
Looking at the facts and circumstances of the case, the Appellant shall
bear the costs of the Appeal and the Cross-objection.
19) Hence following Order is passed.
(a) First Appeal is dismissed with proportionate costs.
(a-1) The Cross-Objection is partly allowed.
(b) The impugned Judgment and Order dated
25.01.2008, in M.A.C.P No.638 of 1999, passed by the
Motor Accident Claims Tribunal, Raigad, at Alibag, is
modified.
(c) The Appellant shall pay the additional compensation
P.H. Jayani 01 FA1712.2008.doc
of Rs. 4,62,586/- together with interest thereon at the rate
of 7.5% per annum from the date of the Claim Petition till
realization of the amount.
(d) The Appellant is directed to comply with this
Judgment and Order within a period of four months from
today, by depositing the amount in the Tribunal.
(e) On deposit of the amount the Tribunal shall
immediately inform about the deposit to Respondent
Nos.1 to 3.
(f) The amount deposited in the Tribunal shall not be
invested for a period of eight weeks from the date of
deposit.
(g) The compensation amount shall be disbursed
equally among the Respondent Nos.1 to 3.
(g-1) The Respondent Nos.1 to 3 are permitted to
withdraw the deposited amount from the Tribunal within
a period of eight weeks from the date of the deposit,
subject to payment of a deficit Court fees, if any.
(h) In the event the amount is not withdrawn within a
period of eight weeks from the date of deposit the same
shall be invested by passing appropriate directions by the
Tribunal.
(i) The Appellant will be entitled to adjustment of the
amount against the already paid under the impugned
Award.
P.H. Jayani 01 FA1712.2008.doc
(j) The Appeal and the Cross-objection are disposed of
in the aforesaid terms.
(k) In view of the disposal of the Appeal, Civil
Application No.4209 of 2008 does not survive and stands
disposed of.
(l) R & P received from the Tribunal concerned be
immediately sent back.
PREETI
HEERO (SHYAM C. CHANDAK J.)
JAYANI
