Bombay High Court

Rajkumar Baburao Chavan And Ors vs Sampat Deoram Dighe And Anr on 2 April, 2025

2025:BHC-AS:16281

            P.H. Jayani                                                                  05 FA1949.2005.doc


                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION
                                      FIRST APPEAL NO. 1949 OF 2005

            1)        Shri. Rajkumar Baburao Chavan
                      Aged 19 years, Occupation : Service

            2)        Kumar Vijay Baburao Chavan
                      Aged 16 years, Occupation : Nil,

            3)        Kumar Mansingh Baburao Chavan
                      Aged 14 YEARS, Occupation : Nil,
                      (Appellant Nos.2 and 3 being minor
                      through Appellant No.1)
                      All are residing at Kailasnagar,
                      Near Narpoli Police Station, Sainath Society,
                      Agra Road, Tal. Bhiwandi, Dist. Thane.        ..... Appellants

                              Vs.

            1)        Mr. Sampat Deoram Dighe,
                      Adult, Occupation : Business,
                      Residing at Bhabaleswar, Post : Bhabaleswar,
                      Tal. Shrirampur, Dist. Ahmednagar, Maharashtra

            2)        The Oriental Insurance Co. Ltd.
                      Office at Gokhale Road, Naupada,
                      Thane - 400602.                                       .... Respondents

            Mr. T.J. Mendon for the Appellants.
            Ms. Minal Chandnani i/b. Mr. J.S. Chandnani for Respondent No.2.

                                                         CORAM : SHYAM C. CHANDAK, J.

                                                      RESERVED ON : 11th MARCH, 2025
                                                   PRONOUNCED ON : 02nd 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 05 FA1949.2005.doc

aggrieved by Judgment and Order dated 05.01.2005, in MACP No.

381/2001 ("claim"), passed by the Motor Accident Claims Tribunal, at

Thane thereby said claim filed under Section 166 of the Act by the

Appellants/Original Claimants has been partly allowed and the

Respondents/Original Opponents have been directed to jointly and

severally pay the Appellants a compensation in the sum of

Rs.67,000/- along with interest @ 9% p.a. from the date of the claim

till realization of the compensation amount.

2) Record indicates that the Appeal was admitted on dated

22.03.2006. However, none appeared for Respondent No.1 when

taken up for hearing.

3) The facts in brief are that, the Appellants filed the said

claim therein they averred that, on dated 15.02.2001, at about 11:00

p.m., their mother late Sakubai Baburao Chavan ("deceased") was

travelling as a passenger in a motor tanker No.MTS-7078 ("tanker")

from Bhiwandi to Sangamner, along Nashik - Pune road. When the

tanker arrived in Saikhindi Shivar on the said road, the tanker tilted

and fell in Karheghat/roadside ditch. As a result, the deceased and

the tanker driver sustained injuries and died on the spot. It was

averred that the accident occurred due to rash and negligent driving

of the tanker. On receiving information of the accident Sangamner

Police Station registered an FIR, under Sections 304A, 279, 337 and

P.H. Jayani 05 FA1949.2005.doc

427 of I.P.C. and u/Sec.184 of the Act against the driver of the tanker.

Respondent Nos.1 and 2 were the owner and insurer of the tanker. It

was averred that the deceased was aged 38 years. She was doing

labour thereby earning Rs.2,400/- per month. The Appellants were

dependent on the income of the deceased. Therefore, the Appellants

prayed to award a compensation of Rs.2,00,000/- alongwith interest

at the rate of 18 % per annum and direct the Respondents to pay the

said compensation.

4) Respondent No.1 proceeded ex-parte. Respondent No.2

filed the written statement at Exhibit-17 and denied the liability to

pay the compensation on the ground that the tanker was a "goods

vehicle"; that, the deceased was travelling in the tanker as a fare

paying passenger; that, the risk of the deceased was not covered by

the said policy of insurance; and that, the deceased was carried by the

driver without consent of the Respondent No.1. Therefore,

Respondent No.2 is not liable to pay the compensation.

5) In order to prove the claim, the Appellant No.1 adduced

his evidence on oath (at Exh.23) and relied upon the copy of the FIR

(Exh.24), spot panchanama (Exh.25), inquest (Exh.26), post-mortem

report (Exh.27) and insurance policy cover note (Exh.28). On the

other hand, Respondent No.2 presented the evidence of Mr. Dinkar

P.H. Jayani 05 FA1949.2005.doc

Nimbaji Wakode, Assistant Divisional Manager (at Exh.30).

6) The evidence of Appellant No.1 is that the accident

occurred due to rash and negligent driving of the offending vehicle.

But, he has not witnessed the actual accident. Therefore, the police

papers relied in the evidence assume significance. On perusal of the

FIR and the spot panchanama, it is evident that the driver of the

tanker lost his control on the tanker. Therefore, the tanker went of the

road and fell in the road side ditch. This evidence did not see any

challenge in the cross-examination of the witness. Respondent No.2

failed to explain as to how and why the driver lost his control and the

tanker went off the road. Therefore, and considering the principle of

"Res ipsa loquitur", the Tribunal has rightly held that the accident

occurred due to rash and negligent driving of the tanker,

consequently, the deceased sustained serious injuries and died.

Hence, said finding does not call for an interference.

7) In so far as compensation is concerned, the Tribunal held

that the deceased was aged 38 years. She was doing labour thereby

she was getting Rs.80 per day. In the cross-examination, Appellant

No.1 admitted that the deceased was getting work for 20 days in a

month. Accordingly, her monthly income was around Rs.1,600/-.

Therefore, the Tribunal took the monthly income of the deceased as

Rs.1,500/-. Out of the said income of Rs.1,500/-, the Tribunal

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deducted Rs.500 p.m. towards the personal and living expenses of the

deceased. Accordingly, the Tribunal held that the loss of dependency

was Rs.1,000 p.m. The Appellant No.1 was then aged 19 years and he

was earning. The Tribunal held that Appellant No.2 was doing labour

and earning Rs.1,200 p.m. Therefore, the Tribunal held that earning

son cannot be said as dependent on the income of the mother.

However, the Tribunal noted that there was no evidence as to since

when the Appellant No.2 was employed and earning. The Appellant

Nos.2 and 3 were aged 16 and 14 years, respectively. Therefore, the

Tribunal considered the loss of dependency for two years and seven

years in respect of the Appellant Nos.2 and 3, respectively.

7.1) Accordingly, the Tribunal awarded the Appellant No.1

total Rs.9,000/- towards loss of love and affection, funeral expenses

and loss of estate. Further the Tribunal awarded the Appellant No.2

Rs.12,000/- (Rs.500 X 12 X 2) and the Appellant No.3 Rs.42,000/-

(Rs.500 X 12 X 7), towards loss of the dependancy. The Tribunal also

awarded the Appellant Nos.2 and 3 Rs.1,000/- each towards loss of

love & affection and Rs.1,000/- each towards loss of estate. (Total

Rs.67,000/-).

8) However, in my considered view, the Tribunal ignored

that the family of the deceased was economically poor. The Appellant

Nos.2 and 3 were minor. The Appellant No.1 was merely 19 years old.

P.H. Jayani 05 FA1949.2005.doc

The Appellant Nos.1 and 2 were not getting much income. Besides

doing labour to earn livelihood for the family, the deceased was

providing various gratuitous domestic services to the Appellants. Said

gratuitous services have been lost on account of the death of the

deceased. Considering the age of the Appellants and their

requirements of food, clothing, house keeping etc., in my considered

view, said gratuitous services were equal to Rs.600/- per month at the

time of the accident. Accordingly, I hold that, the notional monthly

income of the deceased was Rs.2,200/- and annually as Rs.26,400/-.

9) The deceased was aged 38 years. Her income was not

regular. The Appellant No.1 was major at the time of the accident but

he was just aged 19 years. He was doing labour. He was dependent on

the deceased for the domestic services, like the then minor Appellant

Nos.2 and 3. Therefore, and in view of the decisions in National

Insurance Co. Ltd. v/s. Pranay Sethi and Others1 and Sarla Verma and

others Vs. Delhi Transport Corporation and another 2, 40% of her net

yearly income Rs.26,400/- should be added towards her future

prospects and thereafter 1/3rd from the actual net yearly income

should be deducted towards the personal and living expenses of the

deceased. The applicable multiplier is '15'. As a result, the loss of the

dependency would be Rs.3,69,600/- (26400 + 10560 - 12320 (1/3rd)

1. 2017 ACJ 2700 (SC)

2. 2009 ACJ 1298 (SC)

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= Rs.24,640/- x 15). In view of the decision in Magma General

Insurance Co. Ltd. v/s. Nanu Ram Alias Chuhru Ram & Ors.3, the

Appellants being the children of the deceased are entitled to get

Rs.48,000/- each as parental consortium. Similarly, all the

Appellants are entitled to receive Rs.18,000/- under the head 'funeral

expenses' and Rs.18,000/- under the head 'loss to estate'. Total

compensation thus, comes to Rs.5,49,600/-.

10) The Respondent No.2 has deposited the compensation

amount awarded by the Tribunal. Therefore, the Appellants are

entitled to receive only the enhanced compensation as under :-

          Total compensation amount          :    Rs.5,49,600/-
          Minus the compensation amount : - Rs. 67,000/-
          awarded by the Tribunal           -----------------
          Enhanced compensation amount :         = Rs.4,82,600/-
                                                   =========

11)               Now question is, whether the Respondents are jointly and

severely liable to pay the compensation. There is no dispute that, the

tanker was a "goods vehicle" and the deceased was travelling in the

tanker. As stated in the claim, the deceased was a gratuitous

passenger. In the cross-examination, Appellant No.1 has admitted

that the tanker was not for carrying passengers. He admitted that,

fare was not paid by the deceased to the person in charge of the

tanker.

3. 2018 ACJ 2782 (SC)

P.H. Jayani 05 FA1949.2005.doc

12) RW1-Mr. Dinkar Wakode, Assistant Divisional Manager of

Respondent No.2 deposed that the tanker was a commercial vehicle.

Respondent No.2 had issued the policy alongwith the schedule of the

policy with the terms and conditions. One of the terms and conditions

was that, the tanker being the commercial vehicle, it was not available

for carrying passengers. He deposed that, as per the investigation

conducted by Respondent No.2, the deceased was a passenger in the

tanker. Hence, he contended that the Respondent No.2 was not liable

to pay the compensation.

12.1) In the cross-examination, RW1 admitted that, the original

of the photocopy of the cover-note (Exh.28) was initially issued from

their Branch Office at Shrirampur District Ahmednagar (now

Ahilyanagar ). He admitted that in every insurance policy, the owner

of the vehicle has to submit a proposal form. He did not produced the

proposal form in this case. He did not call the proposal form from the

Shrirampur Office. He admitted that own damage claim was not

passed in this case in favour of Respondent No.1. He admitted that he

has no document to support this fact. He came to know this fact from

Shrirampur office. He had called the original policy of this case from

Shrirampur Branch. He admitted that he does not know whether the

office at Shrirampur had issued any letter to the Respondent No.1.

He admitted that the original terms and conditions were supplied to

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the Respondent No.1. He admitted that the Respondent No.2 did not

make any attempt to call the original insurance policy.

13) In view of the aforesaid evidence, the Tribunal held that,

Even after the amendment in the Act in the year 1994, the risk of a

gratuitous passenger is not covered by the policy if an additional

premium was not paid. Therefore, carrying passenger for fare or

otherwise was not allowed. In the Written Statement, the Respondent

No.2 has not denied the fact of payment of the additional premium.

The Respondent No.2 did not prove that the deceased had paid fare to

travel as the passenger. The fact of the payment of the premium was

within the knowledge of the owner or the insurer of the offending

vehicle. That fact could have been proved by documentary evidence.

Therefore, the Tribunal held that the Respondent No.2 failed to prove

that the deceased was travelling in the tanker as the fare paying

passenger; that, the risk of the deceased was not covered by the

insurance policy; and that, there was a breach of the policy terms and

conditions. Consequently, the Tribunal held that the Respondents

were jointly and severally liable to pay the compensation amount.

14) Mr. Mendon, the learned Advocate for the Appellants

submitted that the Respondent No.2 has not filed a Cross-objection or

Cross-Appeal and challenged the finding of the Tribunal that the

Respondent No.2 failed to prove that the deceased was travelling in

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the tanker as a fare paying passenger. He submits that, the

Respondent No.2 also failed to prove that, an additional premium

was not paid to cover the risk of the deceased. Therefore, now, the

Respondent No.2 cannot deny its liability to pay the compensation.

15) However, Ms. Chandnani submitted that the tanker was a

commercial vehicle and that the deceased was travelling in the tanker

as a gratuitous passenger. This fact has been admitted in the claim

and in the evidence of Appellant No.1. Therefore, and in view of the

evidence of RW1, Ms. Chandnani submitted that the Respondent No.1

is not liable to pay the compensation claimed by the Appellants.

16) Considering the aforesaid rival submissions, I have

carefully scrutinized the policy Cover Note (Exh.28). As per the

limitation clause in the policy, the licenced carrying capacity for

goods was limited to 16,200 Kgs. and for passengers, said capacity

was limited to 2 persons (1 + 1). Accordingly, in all, the risk of two

passengers was covered in the subject policy. It is not the case that the

premium to cover that risk of two passengers was not paid by the

Respondent No.1. It is also not the case that the risk liability to that

extent was earlier claimed and it has been already satisfied by

Respondent No.2. The Appellants are poor. The deceased was doing

labour to earn the livelihood for the family. Considering the text of

the FIR, it appears that it being night time, proper public transport

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may not have been available. Therefore, the deceased woman decided

to travel in the tanker to safely reach her destination. The Respondent

No.2 has not filed a separate Appeal or Cross-Objection and

challenged the award on the ground that there was a breach of the

policy terms and condition. That apart, the documents containing the

policy terms and conditions are not proved in the evidence to

substantiate the evidence of RW1 that the Respondent No.2 was not

liable to pay the compensation on the ground that the deceased was

the gratuitous passenger in the tanker. The only policy document

produced in the evidence, i.e., the policy Cover Note (Exh.28) is not

carrying the terms and conditions of the insurance policy to support

the evidence of RW1. Therefore, and to do a complete justice, both the

Respondents can be directed to pay the compensation. However,

considering the fact that in all three persons were travelling in the

tanker against the limited capacity of two passengers, I hold that

there must be a breach of the permit at least. In view thereof, the

Respondent No.2 is not liable to pay the compensation quantified

above. However, considering the facts and circumstances of the case,

it would be appropriate that the insurer shall pay the claim amount

worked out above to the Appellants in the first instance, with liberty

to recover the same from the Respondent No.1, in accordance with

law.

 P.H. Jayani                                                                    05 FA1949.2005.doc


17)               To fortify my conclusion above, I have relied upon the

decision in the case of Satya Prakash Dwivedi vs Munna Alias

Chandrabhan Yadav and Ors.4, therein in paragraph 13 the Hon'ble

Supreme Court held as under :-

"Upon a plain reading of Order XLI Rule 33 of the CPC, it reveals that the Appellate Court has the power to pass any decree or order which ought to have been passed, and to pass such other decree or order as the case may require. Notwithstanding that the appeal is against a part of the decree, this power may be exercised by the court in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. However, the said power must be exercised with caution or circumspection, particularly, in the absence there being any cross objection or appeal filed by the respondents. Such a power has to be exercised in exceptional cases when its non-exercise will lead to difficulties in the adjustment of rights of the parties."

18) Now turning to the question of the interest on the

compensation amount. The claim was filed in the year 2001 and

decided in January 2005. Therefore, and considering the facts and

circumstances of the case, I deem it appropriate to award the interest

at the rate of 7.5% per annum from the date of the claim till

satisfaction of the award.

4. (2021 SCC OnLine SC 3435)

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19) In the backdrop of the aforesaid discussion, the Appeal

partly succeeds. Hence, following Order is passed :-

(i) First Appeal is partly allowed with proportionate costs.

(ii) The impugned Judgment and Order dated 05th January 2005, passed by the Motor Accident Claims Tribunal, Thane in MACP No.381/2001 is modified.

(iii) Respondent No.2-insurance company shall pay the compensation of Rs.5,49,600/- (inclusive of NFL amount) together with interest thereon at the rate of 7.5 % per annum from the date of the claim petition till realisation of the amount with liberty to recover the same from the Respondent No.1 by filing execution proceedings.

(iv) Respondent No.2 is directed to comply with this Judgment and Order within a period of two months from today, by depositing the amount in the Tribunal.

(v) Respondent No.2 will be entitled to adjustment of the amount against the already paid amount under the impugned Award.

(vi) On deposit of the amount, the Tribunal shall immediately inform the Appellants and call upon them to collect the said amount. However, the deposited amount shall not be invested for a period of eight weeks from the date of the deposit. If the amount is not withdrawn within

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the given period of the eight weeks, then the Tribunal will be at liberty to invest the same.

(vii) The entire amount of the enhanced compensation alongwith interest shall be equally paid to the Appellants, subject to payment of deficit Court fees, if any.

(viii) On receipt of an appropriate/lawful notice by Respondent No.1 of the execution proceedings filed by Respondent No.2 as permitted above, the Respondent No.1 shall satisfy the said execution proceedings within two months from the date of the receipt of the said notice, failing which, Respondent No.2 will be at liberty to take lawful steps in the proceedings.