Bombay High Court
The New India Assurance Co. Ltd. Thr Its ... vs Anita Rajendra Sonwane And Others on 3 April, 2025
2025:BHC-AUG:10071
1 FA 1876.24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1876 OF 2024
The New India Assurance Co. Ltd.
Through It's Div. Manager,
Aurangabad Divisional Office, DOI,
Above Mahesh Auto, Ajay Engineering Compound,
Near Kranti Chowk, Adalat Road,
Aurangabad. Appellant/
Orig. opp. no.2.
VERSUS
1. Anita Rajendra Sonwane,
age-37 years, Occ. Nil.
2. Kum. Neha Rajendra Sonawane,
age 15 years, Occ. Education.
3. Kumar Kush Rajendra Sonawane,
age 10 years, Occ. Education.
Resp No.2 and 3 Minor, through
Guardian mother resp. no.1.
4. Smt. Anjanabai Manikrao Sonawane,
age 75 yrs, Occ. Nil.
Res. no.1 to 4 r/o Pimpalner, Tq. Sakri,
District Dhule.
5. Devireddy Venkateshwar Rao Jalait,
Age major, Occ. Business,
R/o. D.No.10-139, Gottumukala Road,
Kanchikacherla, Dist. Kanchikacherla,
Andhra Pradesh.
6. G. Kothi Reddy Pulla Reddy, ...Deleted...
age adult, Occ. Driver.
R/o 485, Paritta, Kanchikacherla Mandal
Krushna District Kanchikacherla (A.P.)
Resp.No.1 orig claimant.
Resp No.2 & 3 Orig
Opp. Nos.1 and 2.
...
2 FA 1876.24.odt
Advocate for Appellant : Mr. A.B Gatne
Advocate for Respondents 1-4 : Mrs. S T Kazi
R/6 Deleted.
...
WITH
CIVIL APPLICATION NO. 7793 OF 2024 IN FA/1876/2024
CORAM : S. G. CHAPALGAONKAR, J.
Reserved on : March 26, 2025
Pronounced on : April 03, 2025.
JUDGMENT :
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1. The appellant/original respondent no.2-insurer
impugns the judgment and award dated 9.6.2015 passed by
the Motor Accident Claims tribunal at Dhule in MACP No.928
of 2010, by which a compensation of Rs.44,95,000/- has been
awarded to the Respondents/claimants. (Parties hereinafter
are referred to as per their original status).
2. Respondent nos.1 to 4 instituted MACP No.928 of
2010 before the MACT, at Dhule raising claim for
compensation under section 166 of the Motor Vehicles Act
towards accidental death of late Rajendra Sonawane. It is the
contention of the claimants that on 26.10.2010 Rajendra was
driving Maruti Car bearing registration No.MH-12/AX-7498
from Dhule towards Sakri. While he reached near Tamaswadi
Fata on Nagpur-Surat Highway, offending truck bearing
registration no.AP-16/TY-3229 came from Sakri side and gave
forceful dash to the Maruti Car. Late Rajendra suffered
multiple injuries in the said accident and lost his life.
According to claimants, late Rajendra was 39 years of age and
employed as teacher. He was holding agricultural land and
3 FA 1876.24.odt
generating income from its cultivation. Claimants were
dependent on him. They lost bread earner of the family.
3. Respondent no.2/insurer contested the claim by
filing written statement firstly on the ground that it is a case of
contributory negligence and claim as raised is excessive and
exorbitant. The Tribunal, after evaluation of the evidence
allowed the claim petition, directed respondent nos.1 to 3 to
jointly and severally pay the compensation of Rs.44,95,000/-
to the claimants alongwith interest @ 8% p.a from the date of
filing of the claim petition.
4. Mr. Gatne, learned advocate appearing on behalf
of the appellant submits that evidence on record clearly depicts
that accident occurred in the center of road. There was head
on collision between two vehicles. As such, Tribunal ought to
have recorded finding of contributory negligence of the
deceased Rajendra/driver of the car. He would further submit
that, as per salary bill for September, 2010, Rajendra received
Rs.21,610/-. Tribunal erroneously considered his earning at
Rs.24,777/- p.m. without statutory deductions towards
Professional Tax, Income Tax, etc. He submits that amount of
Rs.1.00 Lakh each towards loss of consortium and loss of love
and affection is contrary to the law espoused by the Supreme
Court of India.
5. Per contra Smt. S.T Kazi, learned advocate
appearing for respondents supports the judgment and award as
passed by the Tribunal.
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6. I have gone through the pleadings and evidence
recorded before the Tribunal. Apparently, incident was
reported to the police immediately after accident on the
complaint given by Venkat Devrao Pawar, who himself is a
police officer. He records that accident occurred in the center
of road between car and the truck and vehicles were removed
to clear flow of traffic. Spot panchnama also records that
accident occurred in the center of road at the center strip.
Aforesaid documents are admitted in the evidence and placed
at Exhibit-16 and 17 respectively, claimants relied upon the
aforesaid documents to prove the accident. In this
background, Mr.Gatne, learned advocate appearing for the
appellant/insurance company submitted that head on collision
of the vehicles raises presumption of contributory negligence of
both drivers. He places reliance on observations of the
Supreme Court of India in case of Oriental Insurance Co. Ltd vs
Premlata Shukla & Ors. reported in 2007 AIR SCW 3591.
According to him, Tribunal ought to have recorded finding of
contributory negligence and proportionately deducted the
compensation amount.
7. Per contra Smt. Kazi, learned advocate appearing
for respondent relying upon the exposition of law in case of
Jiju Kuruvila and others Vs. Kunjujamma Mohan and others
reported in AIR 2013 SC 2293 and Mangal Ram Vs. Oriental
Insurance Company Ltd and others reported in AIR 2018 SC
1900 and submits that no such presumption can be drawn on
the basis of contents of FIR and panchnama. Claimants are not
required to prove the case beyond doubt.
5 FA 1876.24.odt
8. It is true that FIR and panchnama are relied upon
by the claimants to bring home their case as to the accident.
However, contents of FIR itself shows that it has been lodged
by the P.C. after making inquiry with witnesses who were
present on the spot, who deposed about rash and negligent
driving of the truck. Eventually, offence was registered against
truck driver on the basis of preliminary opinion formed as per
inquiry on the spot. It is true that, it is the accident between
two vehicles approaching each other from opposite directions
and spot of the accident is shown in the center of road,
however, merely on the basis of aforesaid fact, conclusion
drawn by the Investigating Officer cannot be brushed aside.
The Supreme Court of India, in case of Jiju Kuruvila and others
Vs. Kunjujamma Mohan and others (supra) observed in
paragraph no.24, which reads thus :-
"24. The mere position of the vehicles after accident, as
shown in a Scene Mahazar, cannot give a substantial
proof as to the rash and negligent driving on the part of
one or the other. When two vehicles coming from
opposite directions collide, the position of the vehicles
and its direction etc. depends on number of factors like
speed of vehicles, intensity of collision, reason for
collision, place at which one vehicle hit the other, etc.
From the scene of the accident, one may suggest or
presume the manner in which the accident caused, but
in absence of any direct or corroborative evidence, no
conclusion can be drawn as to whether there was
negligence on the part of the driver. In absence of such
direct or corroborative evidence, the Court cannot give
any specific finding about negligence on the part of any
individual."
9. Similarly, in case of Mangal Ram Vs. Oriental
Insurance Company Ltd (supra), supreme court observed in
paragraph no.23 thus :-
6 FA 1876.24.odt
"23. Be that as it may, the next question is whether
the Tribunal was justified in concluding that the
appellant was also negligent and had contributed
equally, which finding rests only on the site map (Exh.
2) indicating the spot where the motorcycle was lying
after the accident? We find substance in the criticism
of the appellant that the spot where the motor vehicle
was found lying after the accident cannot be the basis
to assume that it was driven in or around that spot at
the relevant time. It can be safely inferred that after
the accident of this nature in which the appellant
suffered severe injuries necessitating amputation of his
right leg above the knee level, the motorcycle would
be pushed forward after the collision and being hit by
a high speeding jeep. Neither the Tribunal nor the
High Court has found that the spot noted in the site
map, one foot wrong side on the middle of the road
was the spot where the accident actually occurred.
However, the finding is that as per the site map, the
motorcycle was found lying at that spot. That cannot
be the basis to assume that the appellant was driving
the motorcycle on the wrong side of the road at the
relevant time. Further, the respondents did not
produce any contra evidence to indicate that the
motorcycle was being driven on the wrong side of the
road at the time when the offending vehicle dashed it.
In this view of the matter, the finding of the Tribunal
that the appellant contributed to the occurrence of the
accident by driving the motorcycle on the wrong side
of the road, is manifestly wrong and cannot be
sustained."
10. In light of the aforesaid exposition of law and
particularly in absence of direct evidence, it is difficult to draw
presumption of contributory negligence on the part of the
deceased. Best witness available to prove the manner of
accident was driver of the truck. However, he did not enter in
the witness box. Appellant/insurer also made no attempt to
bring him before the Court. Hence, adverse inference needs to
be drawn against respondents for withholding best evidence.
7 FA 1876.24.odt
In this background, finding as recorded by the Tribunal on the
point of negligence needs no interference.
11. So far as assessment of compensation is
concerned, claimants relied upon the evidence of CW-2
Raosaheb Patil, Head Master of Sant Thakursingh Dnyanpith,
where late Rajendra was employed as teacher. He deposed
that in October 2010 gross salary of Rajendra was Rs.24,477/-
He issued certified at Exhibit 33. He states that in September,
2010 salary of Rajendra was Rs.21,610/-, but, in October,
2010, on completion of twelve years as per time bound
promotion, his salary was Rs.24,477/-. Evidently, no document
is tendered in service to show that salary of the deceased was
actually fixed at Rs.24,477/-. The last salary bill for September
2010 also shows gross salary of the deceased @ Rs.21,620/-.
Therefore, there is substance in contention of Mr. Gatne, that
salary of the deceased could not have been assessed to
Rs.24,477/- in absence of documentary evidence to support the
same.
12. At this stage, Mr. Gatne, learned advocate
appearing for the appellant submits that claimants are entitled
for compensation on the basis of take-home salary of the
deceased. Once salary of the deceased was in the taxable
range of income-tax, appropriate deductions needs to be made
while calculating net income of the deceased. He would
submit that, apart from the income tax, deductions towards P.T.
will have to be applied. In support of his submissions, he relies
upon observations of the Supreme Court in case of Shyamwati
Sharma and others Vs. Karam Singh and others reported in
8 FA 1876.24.odt
(2010) 12 SCC 378. No doubt, that take-home salary shall be
the basis for calculation of the compensation and liability
towards taxes shall be taken into consideration while working
out the compensation. However, for that purpose it is
necessary to bring on record material to indicate that salaried
income of the deceased was in taxable range and even by
applying various rebates available under tax regime, income of
the deceased was taxable. In the present case, salary bill of
the deceased which is on record nowhere shows that income
tax was deductible from Salary of the deceased. The salary
grant bill for last month nowhere depicts that anything was
deducted towards income tax. However, certainly, there is
deductions of Rs.200/- towards the professional tax.
Therefore, contention of Mr. Gatne can be accepted only to the
extent of deductions of professional tax of Rs.200/- from the
salary of the deceased.
13. Similarly, reference can be given to the
observations of the Supreme Court of India in case of Vimal
Kanwar and others Vs. Kishore Dan and others reported in
2010 (3) RCR (civil) 741, in paragraph no.21 observed thus :-
"21. The third issue is "whether the income tax
is liable to be deducted for determination of
compensation under the Motor Vehicles Act" In
the case of Sarla Verma & Anr.(Supra), this
Court held "generally the actual income of the
deceased less income tax should be the starting
point for calculating the compensation." This
Court further observed that "where the annual
income is in taxable range, the word "actual
salary" should be read as "actual salary less tax".
Therefore, it is clear that if the annual income
comes within the taxable range income tax is
required to be deducted for determination of the
9 FA 1876.24.odt
actual salary. But while deducting income-tax
from salary, it is necessary to notice the nature
of the income of the victim. If the victim is
receiving income chargeable under the head
"salaries" one should keep in mind that under
Section 192 (1) of the Income-tax Act, 1961 any
person responsible for paying any income
chargeable under the head "salaries" shall at the
time of payment, deduct income-tax on
estimated income of the employee from
"salaries" for that financial year. Such deduction
is commonly known as tax deducted at source
('TDS' for short). When the employer fails in
default to deduct the TDS from employee salary,
as it is his duty to deduct the TDS, then the
penalty for non-deduction of TDS is prescribed
under Section 201(1A) of the Income-tax Act,
1961. Therefore, in case the income of the
victim is only from "salary", the presumption
would be that the employer under Section 192
(1) of the Income- tax Act, 1961 has deducted
the tax at source from the Page no.8 out of 14
pages 8 of 14 FAO-28-2019 (O&M) employee's
salary. In case if an objection is raised by any
party, the objector is required to prove by
producing evidence such as LPC to suggest that
the employer failed to deduct the TDS from the
salary of the employee."
In the present case, respondents failed to show
deduction towards TDS or bring material showing default on
part of employer of deceased.
14. So far as compensation towards non-pecuniary
heads is concerned, Tribunal granted amount of Rs.1.00 Lakh
towards loss of consortium, Rs.1 Lakh towards loss of love and
affection and Rs.25,000/- for funeral exegeses. In fact, there
were four dependents of the deceased. All of them were
entitled for Rs.40,000/- towards loss of consortium as per the
law laid down by the Supreme Court of India in case of Magma
10 FA 1876.24.odt
General Insurance Company Limited Versus Nanu Ram Alias
Chuhru Ram & Ors. reported in (2008)18 SCC 130. In
addition to that claimants are entitled for Rs.15,000/- each
towards funeral expense and loss of Estate. There cannot be
double compensation towards loss of consortium and loss of
love and affection. Therefore, compensation granted towards
loss of love and affection independently cannot be
countenanced. In the result, appeal needs to be partly allowed
and compensation needs to be re-assessed in tabular form as
follows :-
Sr. No. Heads Amount
1. Monthly income of the deceased Rs.2,56,920/-
Rs.21,410 x 12 (annual income)
(after deducting PT)
2. Addition of 50% towards future prospects Rs.3,85,380/-
2,56,920 + 1,28,460.
3. Deduction of 1/4th towards personal and Rs.2,89,035/-
living expenses
Rs.3,85,380/4 = 96,345/-
4. Multiplier of '14' - 2,89,035 x 14 Rs.40,46,490/-
5. Loss of consortium Rs.40,000/- x 4 Rs.1,60,000/-
6. Funeral expenses + loss of estate Rs.30,000/-
(Rs.15,000 + Rs.15,000)
Total : - Rs.42,36,490/-
(Rs. Forty Two Lakh thirty six thousand four hundred
and ninety only). In the result, following order is passed
ORDER
i. First Appeal is partly allowed.
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ii. The judgment and award dated 9.6.2015 passed
by the Motor Accident Claims Tribunal at Dhule in
MACP No.928 of 2010 is modified.
iii. The claimants are held entitled for total
compensation of Rs.42,36,490/- (Rs. Forty Two
Lakh thirty six thousand four hundred and ninety
only) from respondent nos.1 to 3 jointly severally
alongwith interest @ 8% p.a. including the
amount towards NFL.
iv. The compensation amount paid/deposited as per
the award passed by the Tribunal be appropriated.
v. In case the appellant/insurer has deposited
excessive amount, balance be refunded to them
after releasing compensation amount in favour of
the claimants as per modified award.
vi. First appeal stands disposed of. Pending civil
application, if any, also stands disposed of.
vii. Apportionment made by the Tribunal shall mutatis
mutandis apply to the modified award.
( S. G. CHAPALGAONKAR )
JUDGE
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