Bombay High Court
United India Insurance Company Limited vs Smt.Ambubai Guru Kale And Ors on 4 April, 2025
HEMANT
CHANDERSEN
2025:BHC-AS:17675
SHIV
H. C. SHIV 903.fa97.13.doc
Digitally signed by
HEMANT
CHANDERSEN SHIV
Date: 2025.04.21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
10:48:35 +0300 CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.97 OF 2013
United India Insurance Company Ltd.
Mumbai Regional Office II,
Maker Bhavan No.2, 3rd Floor,
Sir V. T. Marg, Mumbai 400 020 ..... Appellant
v/s.
1. Smt. Ambubai Guru Kale
Aged 35 years,
Mother of the deceased .....
2. Ms. Sunder Guru Kale
Aged 13 years,
Sister of the deceased .....
3. Ms. Anju Guru Kale
Aged 10 years,
Sister of the deceased .....
4. Rahul Guru Kale
Aged 6 years,
Brother of the deceased .....
5. Shiva Guru Kale
Aged 4 years,
Brother of the deceased .....
Applicant Nos.2 to 5 are minors
Through their mother and
next friend Smt. Ambubai
Guru Kale, all residing at
Rajaram Wadi, Sambhaji Nagar,
Ambewadi Zopadpatti, Vile Parle,
Mumbai .....
6. Mrs. Ranjana H. Agaskar
701, Jade Gardenor, Ambedkar Road,
Khar (West), Mumbai 400 052
(owner of M/Car No.MMB-8423) ..... Respondents
1/17
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H. C. SHIV 903.fa97.13.doc
WITH
INTERIM APPLICATION NO. 6834 OF 2024
AND
CROSS OBJECTION STAMP NO.6532 OF 2024
IN
FIRST APPEAL NO.97 OF 2013
United India Insurance Company Ltd.
Mumbai Regional Office II,
Maker Bhavan No.2, 3rd Floor,
Sir V. T. Marg, Mumbai 400 020 ..... Appellant
v/s.
1. Smt. Ambubai Guru Kale
Aged 35 years,
Mother of the deceased .....
2. Ms. Sunder Guru Kale
Aged 13 years,
Sister of the deceased .....
3. Ms. Anju Guru Kale
Aged 10 years,
Sister of the deceased .....
4. Rahul Guru Kale
Aged 6 years,
Brother of the deceased .....
5. Shiva Guru Kale
Aged 4 years,
Brother of the deceased .....
Applicant Nos.2 to 5 are minors
Through their mother and
next friend Smt. Ambubai
Guru Kale, all residing at
Rajaram Wadi, Sambhaji Nagar,
Ambewadi Zopadpatti, Vile Parle,
Mumbai .....
2/17
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H. C. SHIV 903.fa97.13.doc
6. Mrs. Ranjana H. Agaskar
701, Jade Gardenor, Ambedkar Road,
Khar (West), Mumbai 400 052
(owner of M/Car No.MMB-8423) ..... Respondents
Ms. Varsha Chavan for the Appellant.
Mr. D. S. Joshi with Ms. S. U. Mehta and Mr. P. S. Thakur Desai for
Respondent Nos.1 to 5.
CORAM : SHYAM C. CHANDAK,J.
DATE : 4th APRIL, 2025
JUDGMENT :
-
. This Appeal under Section 173 of the Motor Vehicles Act, 1988
("the Act") challenged the Judgment and Order dated 07/04/2012, in
Motor Accident Claim Application No.1282 of 2005 ("claim"), passed by
the Motor Accident Claims Tribunal, Mumbai thereby said claim filed
under Section 166 of the Act by Respondent Nos.1 to 5 ("claimants") was
partly allowed with proportionate costs and the Appellant/insurer and
Respondent No.6/Original Opponent No.1-owner of the offending vehicle
held liable to pay the Respondent Nos.1 to 5 the compensation in the sum
of Rs.2,50,000/- including 'No Fault Liability' amount along with interest
at the rate of 8.5% per annum from the date of the claim till the
realisation of entire award amount.
2) Record indicates that Appeal was admitted on 01/07/2015. By
order dated 26/02/2024, the Appeal was posted to 18/03/2024, for the
final hearing. Meanwhile the aforesaid Interim Application and the Cross
objection have been filed by the claimants on dated 06.03.2024.
H. C. SHIV 903.fa97.13.doc
3) The Appeal is filed on the ground that the subject vehicle was
not involved in the accident but some other vehicle caused the accident;
that, there was no negligence on the part of the driver of the said vehicle;
that, in the alternative, this is a case of contributory negligence. The
Interim Application seeking condonation of delay in filing the cross-
objection.
3.1) In the Cross-objection the claimants contended that the
compensation awarded is not adequate because the Tribunal wrongly
held that the deceased was only helping her mother in the flower
business, therefore, her notional income was Rs.15,000/- per annum;
that no compensation has been awarded towards the future prospects and
that, the rate of the interest is on lower side.
3.2) Hence, the Appeal, the Interim Application and the Cross-
objection are being disposed of together.
4) Heard Ms.Chavan, the learned Advocate for the Appellant and
Mr.Joshi, the learned Advocate for Respondent Nos.1 to 5.
5) Facts in brief are that the Respondent No.1 is mother and
Respondent Nos.2 to 5 are siblings of late Ms. Renuka Guru Kale
("deceased"). The Respondent Nos.1 to 5 ("claimants") filed the said
claim, therein they averred that on dated 20/07/2003, at about 5 pm, the
deceased was selling flower garlands on the Western Express Highway,
Opposite Centaur Hotel, Vile Parle, Mumbai. Suddenly, the traffic signal
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of western side turned on and vehicles from Bandra side started moving
towards Andheri side. One of the said vehicles, i.e., Motor Car bearing
No.MMB-8423 ("car"), was proceeding in a high speed and in a rash and
negligent manner. As a result, the car dashed the deceased and ran over
her body. The deceased sustained serious injuries and died on the spot.
On receiving report of the accident, Vile Parle police station registered an
FIR No.239 of 2003 against the driver of the car. It was averred that the
deceased was a 'Flower Seller' thereby she was getting monthly income of
Rs.3,000/-. The claimants were depending on the income of the
deceased. Besides, she was rendering valuable service(s) to the family.
Therefore, the claimants prayed to award a compensation of
Rs.5,00,000/- with interest and to direct Respondent No.6 and the
Appellant to pay the same.
6) Respondent No.6 was marked ex-parte. The Appellant
opposed the claim by filing written statement at Exh.15, wherein it was
contended that the car was not involved in the accident. That the
deceased was dashed by one unknown motor lorry. Accordingly, the FIR
was lodged against an unknown vehicle. Therefore, the Appellant prayed
to dismiss the claim.
7) In view of the rival pleadings, the Tribunal framed the issues.
To prove the claim Respondent No.1 adduced her evidence (AW1/Exh.17)
and examined Kasturabai (AW2/Exh.26), an eye witness to the incident.
H. C. SHIV 903.fa97.13.doc
Besides, the claimants have relied upon several documents.
7.1) Considering the evidence, the Tribunal held that the accident
occurred due to rash and negligent driving of the car. The deceased was
selling flower garlands on the public road but she was not doing that
business independently. However, the Tribunal held that the deceased
must be helping her mother in the said business. Therefore, the Tribunal
held that the notional monthly income of the deceased was Rs.15,000/-
per annum and applied the multiplier of '15'. Further, the Tribunal
respectively awarded Rs.5,000/-, Rs.10,000/- and Rs.10,000/- under the
heads 'funeral expenses', 'loss of love and affection' and 'loss of estate'.
8) Learned Advocate Ms.Chavan for the Appellant submitted
that although Respondent No.1 and AW2 claimed to have witnessed the
accident, their evidence suggest that they have only heard the sound of
the accident and then they saw towards the spot of the accident. This fact
indicates that they have not seen the actual accident. Therefore, their
evidence is of no help to decide the question of negligence. She submitted
that on the date of filing of the report (Exh.21), the police had no
information or clue that the accident occurred due to rash and negligent
driving of the car. Therefore, the FIR was registered against an unknown
driver. In the alternative, Ms.Chavan submitted that at the relevant time
the signal was red. However, the deceased was dangerously moving on
the road. As a result, the deceased dashed the moving car and suffered
H. C. SHIV 903.fa97.13.doc
the injuries. As such, the Appellant cannot be held liable for the
compensation.
9) In contrast, Mr.Joshi, the learned Advocate for the claimants
submitted that AW2 clearly deposed that she saw the accident. There is
no suggestion in the cross-examination of AW2 that she was not facing
towards the spot of the accident. He submitted that even though the FIR
was lodged against unknown driver, the FIR clearly recorded that the
driver of the said car was present at the spot of the accident when the
police visited there. He submitted that in her statement recorded on
dated 21/07/2003, AW2 has specifically stated that the accident occurred
due to rashness and negligence of the driver of the car. Therefore, there is
no reason to disagree with the finding recorded by the Tribunal that the
incident occurred due to rash and negligent driving of the car.
10) In view of the rival submissions, the evidence of AW1 and
AW2 needs to be considered. Both these witnesses specifically stated that
at the relevant time and place the deceased was selling flower garlands.
AW1 stated that suddenly the traffic signal turned on and the car
proceeding towards Andheri side came in a high speed and driven in a
rash and negligent manner. Consequently, the car dashed the deceased.
The deceased was thrown on the road and the car ran over her body. As a
result, the deceased died on the spot. In the cross examination of AW1, it
has come that at the time of the accident, she was near the spot of
H. C. SHIV 903.fa97.13.doc
incident and she heard the noise of the accident.
11) Evidence of AW2 is that at the relevant time she and AW1
were fetching water. The deceased was selling garlands. The car dashed
the deceased. AW2 deposed that she saw the accident from a distance of
20 feet when the deceased was hit by a car. The driver of the car tried to
run away, but he was obstructed. She deposed that thereafter police
arrived at the spot and gave the registration No. of the car.
11.1) In the cross examination, AW2 admitted that they were
returning after fetching water. She admitted that she heard the noise of
the accident. She denied that she did not see the accident; that the
deceased was dashed by an unknown vehicle; and that the Respondent
No.6 was arrayed as the opposite party merely on suspicion.
12) I have carefully considered the oral and the documentary
evidence on record. There is no suggestion to AW1 and AW2 that at the
relevant time, they were not facing towards the spot of the accident. It is
not the case that their vision was obstructed and therefore, they could not
see the accident. In her statement under Section 161 of the Cr.P.C., AW2
has clearly stated that when the deceased was on the road the offending
car gave dash to her. This fact indicates that the deceased was clearly
within the vision of the driver of the car. Therefore, it was duty of the
driver of the car to slow down and stop the car, which he did not. Hence,
the conclusion is inevitable that the driver of the car did not keep a proper
H. C. SHIV 903.fa97.13.doc
look out at the road and instead drove the car at a high speed even though
he had just started to move ahead of the signal. Looking at the evidence of
AW1 and AW2 coupled with the FIR Exh.18 filed by police Naik
Budheshwar, one fact is clear that the offending car driver was present at
the spot, when the police arrived there. However, the FIR recorded that
the car driver claimed that he saw the actual accident. Further the FIR
recorded that an unknown driver drove his motor vehicle in a rash and
negligent manner and dashed the deceased and then, said driver fled
away. Yet, considering the evidence as a whole, it appears that the car
driver gave an incorrect information to the police that an unknown driver
dashed the deceased. Because it is not the case of Respondent No.6 that
immediately after the accident the car driver phoned the police and
informed that an unknown motor vehicle dashed the deceased and fled
from the spot. The copy of the Final Report Form (Exh.25) states that the
driver of the car stood chargesheeted for causing this accident by driving
the said car rash and negligently. The Appellant and Respondent No.6
have not explained as to why the police chargesheeted the said driver.
Therefore, I am in agreement with the finding of the Tribunal that the
accident occurred due to rash and negligent driving of the car.
13) Evidence of AW1 is that the deceased was aged 15 years. Said
fact is also recorded in the FIR Exh.18, Spot panchnama Exh.19 and
Inquest panchnama Exh.20. This evidence is not controverted by the
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Appellant. Therefore, the Tribunal held that the deceased was aged 15
year, and relying upon the decision in Manju Devi and Ors. vs.
Musafir Paswan & Ors.1, the Tribunal fixed the income of the deceased at
Rs.15,000/- per annum and applying the multiplier of '15', awarded the
compensation of Rs.2,25,000/- towards loss of dependency. The
Appellant has not challenged the award on the ground that it is excessive.
However, Mr.Joshi submitted that the deceased was selling flower
garlands at one of the busiest roads in Mumbai. Her family comprised of
six members. She was elder to her siblings and helping her mother daily.
Therefore, it was probable that the deceased was earning atleast
Rs.3,000/- per month and Rs.36,000/- per annum. Looking at the said
submissions by Mr. Joshi, I have considered the following decisions in the
field.
i) Kurvan Ansari and anr. Vs. Shyam Kishore Murmu and
Anr.2. This case dealt with the question of compensation
u/Sec. 163-A of the Act relating to the death of a boy aged 7 years
and studying in class II. The Tribunal took the notional income of
the deceased as Rs.15,000/- per annum and applied the
multiplier of '15' as per the Schedule II and awarded
Rs.2,25,000/-, which was enhanced to Rs.2,40,000/- by the High
Court. But the Hon'ble Supreme Court observed that the accident
occurred in the year 2004. The Schedule II is not amended
despite directions in its previous judgment and "the notional
1. 2005 ACJ (SC) 99
2. 2022 ACJ 166
H. C. SHIV 903.fa97.13.doc
income Rs.15,000/-" continued to exist since 1994. In the case of
Kisan Gopal Vs. Lala3, where the deceased was 10 years old child,
the Apex Court fixed his notional income as Rs.30,000/- per
annum, and taking into consideration the inflation, devaluation of
rupee and cost of living, the Hon'ble Supreme Court observed that
the notional income as Rs.15,000/- per annum for a non-earning
person as fixed under II schedule in 1994 is not reasonable.
Hence, fixed the notional income at Rs.25,000/- per annum and
adopting multiplier of '15', awarded Rs.3,75,000/- for the loss
dependency, Rs.40,000/- to each parent as filial consortium and
Rs.15,000/- for funeral expenses.
ii) Kanwaljit Kaur and ors. Vs. Dharam Pal and ors. 4. In this
case, the deceased was a boy aged 3 months and his father had
also died in the same accident. The claimant-mother had three
minor daughters and the deceased was her only son. Therefore,
the High Court observed that as per Indian customs, the
deceased boy was to look after his parents in their old age.
Hence, the High Court awarded a lump-sum compensation of
Rs.5,00,000/- to the mother for loss of love and affection and
loss of future support of the claimant-mother.
iii) H.D.F.C. Ergo Gen. Insu. Co.Ltd. Vs. Ghanshyam
Harichandra Wandhare and ors.5. This was a case of claim u/Sec.
166 of the Act, on account of the accidental death of a boy, aged
11 years, occurred in 2010. Therefore, and considering the case of
Kisan Gopal (supra), this Court enhanced the compensation to
Rs.3,00,000/- from Rs.1,50,000/- as was awarded by the
3. 2013 ACJ 2594 (SC)
4. 2020 ACJ 324 (P&H)
5. 2019 (6) ALL MR 256
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Tribunal.
iv) Rajendra Singh and ors. Vs. National Insurance Co.Ltd. and
ors.6. In this case of claim u/Sec. 166 of the Act, a school going
girl child, aged 12 years, died in the accident occurred on dated
25/12/2012. The learned Tribunal took the income of the
deceased as Rs.36,000/- per annum, deducted 50% towards
personal expenses and after applying the multiplier of 15,
awarded the compensation of Rs.2,70,000/- plus Rs.25,000/-
towards funeral expenses. (Total compensation was
Rs.2,95,000/-). This was upheld by the Hon'ble Supreme Court
in view of the case of R.K.Malik Vs. Kiran Pal7.
v) Kaushlya Devi Vs. Karan Arora and ors. 8. In this case of a
claim u/Sec. 166 of the Act, a boy, aged 14 years, died in the
accident that occurred on dated 05/02/1997. The boy was
brilliant student of standard 'VIII'. The boy was the only son of
the parents/claimants. Hence, the Tribunal awarded
Rs.1,00,000/- as compensation, which was upheld by the
Hon'ble Supreme Court, in May 2007.
vi) Oleti Mohan Naidu Vs. R.K.Vidyalaya9. In this case of claim
u/Sec. 166 of the Act, a boy, aged 11 years, studying in standard
'VI', died on account of the accident occurred on dated
08/04/2008. Out of a claim of Rs. 2,00,000/-, the Tribunal
awarded Rs. 1,30,000/-.
6. 2020 ALL SCR 1243
7. (2009) 14 SCC 1
8. 2007 ACJ 1870
9.(2020) Acci. C.R. 546 (A.P.)
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In view of the decision in R.K.Malik (Supra), the High Court
took the notional income as Rs.15,000/- per annum, deducted
1/3rd from it towards out of pocket expenses, and applying
multiplier of '15', awarded Rs.1,50,000/- towards loss of income,
Rs.15,000/- towards loss of estate, Rs.15,000/- towards funeral
expenses, Rs.40,000/- towards filial consortium and
Rs.1,00,000/- towards future prospects, totalling to
Rs.3,20,000/-.
14) In the case of Rajendra Singh (supra), the deceased had died
prematurely due to the accident at a very tender age for no fault of hers
even before she could start to understand the beauty and joys of life with
all its ups and downs. Therefore, in paragraphs 12 and 13 the Hon'ble
Supreme Court observed that :-
"12. ...The loss of a human life untimely at childhood can never be
measured in terms of loss of earning or monetary loss alone. The
emotional attachments involved to the loss of the child can have a
devastating effect on the family which needs to be visualised and
understood. Grant of non-pecuniary damages for the wrong done
by awarding compensation for loss of expectation in life is
therefore called for.
13. Undoubtedly the injury inflicted by the deprivation of the life
of the child is very difficult to quantify. The future also abounds
with uncertainties. Therefore, the Courts have used the
expression "just compensation" to get over the difficulties in
quantifying the figure to ensure consistency and uniformity in
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awarding compensation. This determination shall not depend
upon financial position of the victim or the claimant but rather on
the capacity and ability of the deceased to provide happiness in
life to the claimants had she remained alive. The compensation is
for loss of prospective happiness which the claimant would have
enjoyed had the child not died at the tender age. Since the child
was studying in a school and opportunities in life would
undoubtedly abound for her as the years would have rolled by,
compensation must also be granted with regard to future
prospects. It can safely be presumed that education would have
only led to her better growth and maturity with better prospects
and a bright future for which compensation needs to be granted
under non-pecuniary damages".
15) In the case in hand the deceased was aged 15 years. If the
deceased had not died, she would have helped her mother more to
increase the income of the family as the years would have rolled by. This
was essential looking at the size of the claimants' family. Due to
premature death of the deceased, the claimants have been deprived of the
prospective happiness which they would have enjoyed had the deceased
not died at the tender age. The accident occurred in the year 2003.
16) In the case of Kurvan (supra), keeping in mind the accident
occurred in the year 2004, the Hon'ble Supreme Court observed that
taking notional income as Rs.15,000/- fixed under the II schedule, which
continued to exist since 1994, is not reasonable and considering the
H. C. SHIV 903.fa97.13.doc
inflation, devaluation of rupee and cost of living fixed the notional income
as Rs.25,000/- per annum. In Kanwaljit Kaur (supra), the Hon'ble High
Court awarded a lump-sum compensation of Rs.5,00,000/- for death of a
child aged 3 months.
17) In the backdrop of the above discussion, in my considered
view an award of a lump-sum compensation of Rs.5,00,000/- towards
the loss of future support of the claimants and for loss of love and
affection would be adequate. Additionally, the claimants are entitled to
receive Rs.18,000/- towards 'loss of estate' and Rs.18,000/- towards
'funeral expenses'. Accordingly, the claimants are entitled to receive the
enhanced compensation as under :-
Total compensation : Rs.5,36,000/-
Compensation
awarded by the Tribunal : - Rs.2,50,000/-
------------------
Enhanced compensation : = Rs.2,86,000/-
------------------
18) In so far as the interest is concerned, considering the facts and
circumstances of the case, the claimants are entitled to receive the
interest at the rate of 7.5% towards the enhanced compensation.
19) Upshot of the above discussion is that, interference is
warranted in the impugned Judgment and Order as the Tribunal did not
award the "just compensation". Therefore, the compensation amount
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needs to be enhanced as quantified above. As a result, the Appeal fails
and the cross-objection succeeds.
20) Hence following Order is passed.
(a) First Appeal is dismissed with proportionate costs.
(a-1) The Cross-Objection is allowed.
(b) The impugned Judgment and Order dated 07/04/2012,
in Motor Accident Claim Application No.1282 of 2005, passed
by the Motor Accident Claims Tribunal, Mumbai, is modified.
(c) the Appellant shall pay the additional compensation of
Rs.2,86,000/- 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 inform
about the deposit to Respondent Nos.1 to 5.
(f) The amount deposited in the Tribunal shall not be
invested for a period of eight weeks from the date of deposit.
(g) The enhanced compensation amount shall be disbursed
amongst the Respondent Nos.1 to 5 in the ratio
60:10:10:10:10.
(g-1) The Respondent Nos.1 to 5 are permitted to withdraw
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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.
(j) the Appeal and the Cross-objection are disposed of in
the aforesaid terms.
(k) As a result, Interim Application No. 6834 of 2024 does
not survive, and it stands disposed of accordingly.
(l) R & P received from the Tribunal concerned be
immediately sent back.
(SHYAM C. CHANDAK, J.)
