Bombay High Court
The Union Of India vs Smt. Geetadevi Narsingdas Holani And ... on 3 April, 2025
HEMANT
CHANDERSEN
2025:BHC-AS:17629
SHIV
H.C. SHIV 10.fa39.01.doc
Digitally signed by
HEMANT
CHANDERSEN SHIV
Date: 2025.04.19
15:42:34 +0300 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.39 OF 2001
The State of Maharashtra ...Appellant
vs.
1. Smt. Geetadevi Narsingdas Holani
Age 39 years, w/o of the deceased ...
2. Mrs. Bhavana Radheshyam Rathi
Age 19 years, daughter of deceased ...
3. Master Gagan Narsingdas Holani
Age 16 years, son of deceased
(Through his mother and next friend
All r/o at Century Staff Quarters
E-2, Pandurang Budhkar Marg,
Mumbai ...
4. Laxminarayan Holani
Age 65 years father of deceased
r/o 161, Gumasta Nagar,
Baslaji Mandir Marg,
Indor (M.P.) ...Respondents
WITH
CROSS OBJECTION STAMP NO.5330 OF 2001
IN
FIRST APPEAL NO.39 OF 2001
The Union of India
Through Asst. Engineer (Electric)
Central Electric Sub Dvi.IV CPWD
B-5/029 1954, Ist Floor CGS Colony
S. M. Plot, Antop Hill,
Mumbai 400 037 ...Appellant
1/18
::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 :::
H.C. SHIV 10.fa39.01.doc
vs.
1. Smt. Geetadevi Narsingdas Holani
Age 39 years, w/o of the deceased ...
2. Mrs. Bhavana Radheshyam Rathi
Age 19 years, daughter of deceased ...
3. Master Gagan Narsingdas Holani
Age 16 years, son of deceased
(Through his mother and next friend
All r/o at Century Staff Quarters
E-2, Pandurang Budhkar Marg,
Mumbai ...
4. Laxminarayan Holani
Age 65 years father of deceased
r/o 161, Gumasta Nagar,
Baslaji Mandir Marg,
Indor (M.P.) ...Respondents
Ms. S. G. Talhar AGP for the Appellant.
Mr. Rajesh Parab i/b D. S. Sawant for the Respondent Nos.1 to 3.
CORAM : SHYAM C. CHANDAK, J.
DATE : 03rd APRIL 2025
JUDGMENT :
. This First Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988 ("the Act") by Original Opponent No.1, against the
Judgment and Order dated 30/06/2000, in M.A.C. Application
No.1674 of 1993 ("Claim"), passed by the Motor Accident Claims
Tribunal, Mumbai thereby said claim filed by Respondent Nos.1 to 3
H.C. SHIV 10.fa39.01.doc
was partly allowed and the Appellant/Original Opposite party was
ordered to pay to Respondent Nos.1 to 4 ("Claimants") a
compensation in the sum of Rs.4,75,264/- alongwith interest at the
rate of 10% per annum from January 1998 till the realisation of the
amount.
2) Appeal is filed on the ground that the compensation
awarded is excessive, whereas Respondent Nos.1 to 3 filed the Cross-
objection claiming that the Tribunal erred in attributing contributory
negligence to the deceased which resulted in awarding lesser
compensation amount.
3) Record shows that the Appeal was admitted on dated
15/01/2001. Thereafter, Mr. A. J.Almeda, the learned Advocate filed
his Vakalatnama dated 14/06/2001, for Respondent No.4. However,
none remain present for Respondent No.4.
4) Heard Mr. Talhar, the learned AGP for the Appellant-
State and Mr. Parab, the learned Advocate for Respondent Nos.1 to 3.
Perused the record.
5) Facts in brief are that Respondent Nos. 1 to 4 are widow,
daughter, son and father of late Narsingdas Laximinarayan Holani.
On dated 21/04/1993, at about 8.30 p.m., at Prabhadevi, Respondent
H.C. SHIV 10.fa39.01.doc
Nos. 1 to 3 alongwith the deceased were crossing Veer Savarkar Marg
to go to Siddhi Vinayak Mandir. A jeep bearing registration No.MH-
01-4082 ("jeep") came there driven in a high speed from Worli side
and dashed the deceased. The deceased was thrown near the rear
wheel of a BEST bus which was moving in the same direction from
right side. As a result, the deceased sustained injuries. The deceased
was removed to K.E.M. Hospital, however, he succumbed to the
injuries before admission. It was averred that the accident occurred
due to rash and negligent driving of the jeep.
5.1) It was averred that the deceased was doing service in
M/s.Century Mills, Worli, Mumbai thereby he was getting monthly
salary of Rs.5,500/-. The Respondents were depending on the income
of the deceased. The jeep was owned by the Appellant and it was
driven by the person instructed by the Appellant. Therefore,
Respondent Nos.1 to 3 filed the said claim arraying Respondent No.4
as Respondent and prayed to award a compensation of Rs.8,00,000/-
along with interest from the date of Application and with costs.
6) The Appellant resisted the claim by filing the written
statement (Exh.7). The Appellant has not admitted and specifically
denied all the material allegations and averments made in the claim.
H.C. SHIV 10.fa39.01.doc
The Appellant contended that at the relevant time, the jeep was
proceeding to Koliwada via Napean Sea road. When the jeep reached
at Prabhadevi, it was in the flow of traffic of other vehicles and BEST
buses, which were on the left side of the jeep and proceeding in the
same direction. When the traffic signal turned green, the jeep was
about to cross the road junction, moving at the speed of 15 to 20 kms
per hour. At this juncture, suddenly the deceased rushed through two
BEST buses on the left and, dashed against the left mud-guard of the
jeep. As a result, the deceased fell under the BEST bus and sustained
injuries. Thus, the accident occurred due to negligence of the
deceased. Therefore, the Appellant prayed to dismiss the claim.
7) In view of the rival pleadings, the tribunal framed the
issues. To prove the claim, the claimants examined Respondent No.1
(AW1/Exh.8) and Ramkrishna Maliram Joshi, employee of M/s.
Century Mills (AW2/Exh.12). The Appellant examined RW1-Krit
Bahadur Thapa, driver of the jeep (Exh.18).
8) Evidence of AW1 is that at the relevant time and place, the
Respondent Nos.1 to3 and the deceased were crossing the road as the
traffic signal was red for vehicles and green for pedestrians. However,
the jeep came there from Worli side and dashed the deceased. The
H.C. SHIV 10.fa39.01.doc
jeep was running in a high speed. The driver of the jeep did not give
horn nor applied breaks. She deposed that due to said dash, the
deceased fell down and suffered head injuries. Immediately the
deceased was removed to K.E.M. hospital but he was dead.
8.1) In the cross examination, AW1 stated that she cannot say
whether they were crossing from the backside of the bus or from the
front side of the buses, which were passing towards Dadar. Number
of vehicles were stopped due to the red signal. They were crossing the
road, separately. BEST buses were going by the same road. She
admitted that the jeep was not standing and it came in speed. There
were no vehicles in front of the jeep. She denied that the BEST buses
were ahead of the jeep. She denied that the deceased was crossing the
road when two BEST buses were passing and he was in between
them. She denied that due to dash by the jeep the deceased fell and
the wheel of the bus ran over him. She admitted that she cannot say
which part of the jeep dashed to the deceased. She denied that the
accident took place because the deceased was dashed by BEST bus.
9) As against this the evidence of RW1-Krit Bahadur, is that
at the relevant time, he was driving the jeep from Churchgate to
Koliwada and he had arrived at Prabhadevi. There, he stopped the
H.C. SHIV 10.fa39.01.doc
jeep as the traffic signal was red. Thereafter, the signal turned green
and the vehicles started to move in queue. He deposed that some
vehicles were ahead of his jeep and some were on its back side. He
deposed that some vehicles were on the left side of the road. He
deposed that he was at 15 ft. distance from the signal. At that time, he
heard a noise. Hence, he stopped the jeep. Then, he saw that the
deceased had come under the wheel of the BEST bus. He deposed
that he stopped the jeep just 2 ft. away from his starting point there.
There was a distance/gap of 2 to 3 ft. between his jeep and the bus.
9.1) In the cross examination, RW1 admitted that, when he
reached at Prabhadevi, there was red signal for the vehicles and green
signal for pedestrian who were crossing the road; that, there was no
crossing for pedestrians at the signal where their vehicles were
stopped; that, the noise he heard was of the deceased; and that, he
was prosecuted by the police. He denied that he was driving the jeep
in speed and that front side portion of the jeep dashed the deceased.
10) In view of the aforesaid evidence, the Tribunal noted that
RW1 had heard the noise of the deceased. Therefore, he stopped and
got down from the jeep. Then he saw that the deceased was lying on
the road between the bus and the jeep. There is no evidence except
H.C. SHIV 10.fa39.01.doc
suggestion of denial that the BEST bus gave dash to the deceased. The
evidence of AW1 did not shatter in the cross-examination. The
Tribunal observed that, the Engineer who was travelling in the jeep,
was not examined. Said witness could have thrown some light about
the incident. Therefore, adverse inference can be drawn. RW1 was
prosecuted for the offence of the accident. Therefore, the Tribunal
held that the accident occurred due to negligent driving of the jeep.
10.1) The Tribunal further held that the evidence of AW1 is
completely silent as to whether they were crossing the road from
Zebra crossing or not. Considering the evidence RW1, the Tribunal
held that the deceased and the family members were crossing the
road through vehicles. Otherwise, there was no reason for the jeep to
dash the deceased from its backside. The Tribunal observed that, the
FIR (Exh.11) filed by AW1 also indicates that the family was crossing
the road through vehicles otherwise the deceased would not have
fallen near the rear wheel of the bus. Therefore, the Tribunal held that
the deceased was not crossing the road from designated place, taking
care and caution. As a result, the Tribunal held that the deceased was
also negligent and the negligence of the jeep and deceased was in
ratio of 80 : 20.
H.C. SHIV 10.fa39.01.doc
11) Ms. Talhar, the learned AGP submitted that RW1 clearly
deposed that, at the relevant time the traffic signal was red.
Therefore, RW1 had stopped the jeep there. When the signal turn
green, RW1 started moving ahead, slowly. At that time there was no
signal for pedestrian. However, suddenly, the deceased came on the
road passing through the buses which were to the left of the jeep and
he himself dashed to the jeep. She submitted there was no zebra-
crossing at the spot of the accident. Therefore, Ms. Talhar submitted
that it was proved that the accident occurred only due to negligence of
the deceased. However, the Tribunal held otherwise.
12) Mr. Parab, the learned Advocate for the Respondents
submitted that the plea of the contributory negligence should be
established by the Appellant. The Appellant failed to prove the
contributory negligence. Therefore, the finding of the Tribunal that
the deceased was 20% negligent, is incorrect. To substantiate this
submission, Mr. Parab placed his reliance on the decision in Master
Arjun Fatchand Govindani vs. Balshil Gulati & Anr.1, therein it is held
that burden of proving the contributory negligence of the claimants is
on the Respondents and it is not for the claimants to disprove it. Mr.
Parab also relied on the decision in National Insurance Company
1. 1979 A.C.J. 92
H.C. SHIV 10.fa39.01.doc
Limited vs. Pranay Sethi and Others2, therein the Hon'ble Supreme
Court held that "to prove the contributory negligence, there must be
cogent evidence .... In the absence of any cogent evidence to prove
plea of contributory negligence, the said doctrine of common law
cannot be applied ...."
13) The learned Advocate for the claimants emphatically
argued that there was no zebra crossing for pedestrian to cross the
road from where the deceased and family were crossing the road.
Therefore, the deceased and the family were crossing the road from
the available place. However, in the cross examination of RW1, it has
come that when RW1 reached at the signal, near the spot of accident,
there was red signal for vehicles and green signal for the pedestrian to
cross the road. It is generally noticed that wherever there is traffic
signal for pedestrians, there is a provision of zebra-crossing. The road
where accident occurred is one of the most busiest road in Mumbai.
The temple of lord Ganesh is situated very close to the spot of the
accident. Everyday, innumerable devotees cross the said road to go to
the temple. Therefore, necessary provision of traffic signals is made
there. As such, the existence of the signal for pedestrians itself is
sufficient to infer that there was a zebra-crossing near the spot of the
2. AIR 2017 SC 5157
H.C. SHIV 10.fa39.01.doc
accident. However, AW1 has not deposed that the deceased and
family was crossing the road from the zebra-crossing. AW1 has not
explained as to why they did not use zebra-crossing to cross the road,
even though said facility was available near the traffic signal. In the
FIR AW1 herself stated that after the dash, the deceased fell near the
wheel of the bus. This fact indicates that after the signal turn green,
the vehicles started moving ahead. Therefore, the evidence of RW1 is
acceptable that the deceased tried to cross the road through the buses.
Otherwise there was no reason for the deceased to dahs the jeep and
fell near the bus wheel. This fact is also discernible from the spot
panchnama. However, AW1 did not refer the same. Thus, it is safe to
conclude that the deceased was also responsible for the accident.
14) Be that as it may, the fact remains that when the deceased
started to cross the road, he must be within the vision of RW1 because
in the cross-examination, RW1 admitted that there were no vehicles
in front of the jeep. Therefore, RW1 was required to drive slow down
the jeep and stop. However, it appears that the jeep was running fast.
Therefore, RW1 could could not control and stop it, instantly.
Needless to mention that even a small dash by a fast moving four
wheelers cause serious injury. However, the evidence indicates that
H.C. SHIV 10.fa39.01.doc
RW1 ignored that aspect while driving the jeep from the busy road.
Therefore, I am in agreement with the finding recorded by the
Tribunal that the negligence on the part of RW1 was higher than the
deceased. However, considering the evidence as a whole, the said
negligence was in the ratio 85:15.
15) AW2-Ramkrishna Joshi, was the deceased was working
there as Senior Assistant with M/s. Century Mills. The evidence of
AW1, AW2 coupled with the School Leaving Certificate (Exh.9) and
Salary Register Extract of March & April 1993 indicates that, the
deceased was aged 47 years, he was in permanent employment of
M/s. Century Textiles and drawing a monthly salary of Rs.5,477/-. As
stated in the Salary Certificate (Exh.15) issued by the manager of the
Companion, his monthly salary was Rs.5,540/-. The aforesaid oral
and documentary evidence did not meet any challenge in the cross-
examination. Hence, the Tribunal correctly held that the monthly
income was Rs.5,470/-, which was annually Rs.65,640/-. All the
claimants were dependent on the income of the deceased. Therefore
and in view of the decisions in Pranay Sethi (supra) and Sarla Verma
and others vs. Delhi Transport Corporation and another 3, 30% of the
established net annual income should be added towards the future
3. 2009 ACJ 1298 (SC)
H.C. SHIV 10.fa39.01.doc
prospects of the deceased and thereafter 1/4th from the actual net
yearly income should be deducted towards the personal and living
expenses of the deceased. The applicable multiplier is '13'. Thus, the
loss of the dependency comes to Rs.8,31,987/-. [65,640 + 19,692
(30%) = 85,332 - 21,333 (1/4th) = 63,999/- x 13]. In view of the
decision in Magma General Insurance Co. Ltd. vs. Nanu Ram Alias
Chuhru Ram & Ors.4, Respondent Nos.1 to 4 are entitled to receive
Rs.48,000/- each as spousal, parental and filial consortium,
respectively. Additionally they are entitled to receive Rs.18,000/-
towards 'funeral expenses' and Rs.18,000/- under the head 'loss to
estate'. As a result, total compensation comes to Rs.10,59,987/-. Out
of this amount 15% (Rs.1,58,998/-) should be deducted towards the
15% contributory negligence of the deceased. Accordingly, the
claimants are entitled for the enhanced compensation as under :-
Total compensation : Rs.9,00,989/-
Compensation
awarded by the Tribunal : - Rs. 4,75,264/-
------------------
Enhanced compensation : = Rs. 4,25,725/-
------------------
16) Considering the facts and circumstances of the case, the
claimants are entitled for some interest on the compensation amount.
4. 2018 ACJ 2782 (SC)
H.C. SHIV 10.fa39.01.doc
There is no straight jacket formula to award the interest at a
particular rate. It depends on the fact and circumstances of each case.
16.1) In this case, the claim was filed on dated 16/06/1993.
There was deficit Court fee. After depositing the requisite Court fee,
notice u/sec.166 of the Act was issued to the Opposite Party and the
insurer. Later on, Opposite Party No.2 was deleted. The case was
adjourned for one reason or the other. As noted by the Tribunal, the
Applicants were not present on any date of hearing nor they pressed
the matter before the Tribunal for trial. The evidence was started in
the year 1999. Therefore, the Tribunal granted the interest from
January 1998 at the rate of 10% per annum.
16.2) It appears that the deceased was earning less and
shouldering the responsibility of 4 members. The family was residing
in Mumbai, where, normally, the personal and living expenses are on
higher side. The Respondent No.1 was doing household, Nos.2 and 3
were minor and No.4 was aged. Therefore, it is probable that they
could not pay the entire Court fee at a time. As noted above, the claim
was filed on dated 16.06.1993 and decided on dated 30/06/2000, i.e.,
after 7 years. As per the Order of the Tribunal, the claimants got the
interest for 3 years and 6 months at the rate of 10% per annuam. As
H.C. SHIV 10.fa39.01.doc
such, the claimants received an average interest at the rate of 5% per
annum. However, the Tribunal has not explained in detail as to why
the case was adjourned for one reason or the other and how the
claimants or their absence alone was responsible on every occasion of
the adjournments from 1994 to 1997. The roznamas of the case
indicates that on some occasions, longer dates were given in the
claim. Needless to mention that an insurer is liable to pay "just
compensation" immediately after the accident. However, the Tribunal
did not consider as to how the claimants widow, minor children and
aged father survived in Mumbai after losing the sole earning member.
16.3) In Abati Bezbaruah vs Dy. Director General Geological
Survey5, the Hon'ble Supreme Court in paragraph 18 observed that ;-
"... No rate of interest is fixed under Section 171 of the Motor
Vehicles Act, 1988. Varying rates of interest are being
awarded by Tribunals, High Courts and the Supreme Court.
Interest can be granted even if claimant does not specifically
plead for the same as it is consequential in the eye of law.
Interest is compensation for forbearance or detention of
money and that interest being awarded to a party only for
being kept him out of the money which ought to have been
paid to him. No principle could be deduced nor any rate of
interest can be fixed to have a general application in motor
5. 2003 SCC OnLine SC 216
H.C. SHIV 10.fa39.01.doc
accident claim cases having regard to nature of provision
under Section 171 giving discretion to Tribunal in such matter.
In other matters, awarding of interest depends upon the
statutory provisions, mercantile usage and doctrine of equity.
Neither Section 34 CPC nor Section 4-A (3) of the Workmen's
Compensation Act are applicable in the matter of fixing rate
of interest in a claim under the Motor Vehicles Act. The courts
have awarded the interest at different rates depending upon
the facts and circumstances of each case. Therefore, in my
opinion, there cannot be any hard and fast rule. in awarding
interest and the award of interest is solely on the discretion of
the Tribunal or the High Court as indicated above."
16.4) In view thereof, it would be just and reasonable to grant
the interest at the rate of 7.5 % per annum from the date of the claim
till realisation of the amount, in the interest of the justice.
17) Upshot of the above discussion is that the Tribunal rightly
held that the accident in question occurred only due to rash and
negligent driving of the lorry. However, the Tribunal erred in
ascribing 20% contributory negligence to the deceased, which should
have been held as 15%. No compensation was awarded towards the
future prospects of the deceased. Similarly, the Tribunal erred in
holding the claimants responsible for the delay in adjudication of the
claim, which led to grant of lesser interest. As a result, "just
H.C. SHIV 10.fa39.01.doc
compensation" was not awarded. Therefore, and considering the
reported decisions referred above, the claimants are entitled to get
the compensation as quantified above alongwith the interest.
17.1) In view thereof, the Appeal is liable to be dismissed and
the Cross-objection deserves to be allowed, accordingly. Looking at
the facts and circumstances of the case, the Appellant shall bear the
costs of the Appeal and the Cross-objection.
18) Hence following Order is passed.
(i) First Appeal is dismissed with proportionate costs.
(ii) The Cross-Objection is partly allowed with costs.
(iii) The impugned Judgment and Order dated
30/06/2000, in M.A.C. Application No.1674 of 1993,
passed by the Motor Accident Claims Tribunal, Mumbai is
modified.
(iv) The Appellant shall pay the compensation of
Rs.9,00,989/- (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.
(v) The Appellant is directed to comply with this
Judgment and Order within a period of four months from
this Order, by depositing the amount in the Tribunal.
H.C. SHIV 10.fa39.01.doc
(vi) The Appellant will be entitled to adjustment of the
amount against the already paid under the impugned
Award.
(vii) 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 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.
(viii) The entire amount of the enhanced compensation
alongwith interest shall be equally paid to the claimants,
in the ratio 70:10:10:10, subject to payment of deficit
Court fee, if any.
(ix) Record and Proceedings of the Tribunal shall be
immediately sent back.
(SHYAM C. CHANDAK, J.)
