Bombay High Court
The New India Assurance Co.Ltd vs Mangala Subhash Chandra Gadhe And Ors on 7 April, 2025
2025:BHC-AS:17641
H.C.SHIV FA710.2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.710 OF 2005
The New India Assurance Company Ltd.
New India Assurance Building,
87, M.G. Road, Bombay ...Appellant
vs.
1. Smt. Mangala Subhash Chandra Gadhe
widow of the deceased Aged 39 years ...
2. Kumari Deepali Subhash Chandra Gadhe
minor daughter of deceased Aged 15 years ...
3. Kumar Manish Subhash Chandra Gadhe
minor son of the deceased Aged 13 years ...
4. Smt. Nadarabai Gendu Gadhe
widowed mother of the deceased
Aged 75 years, Nos. 2 and 3 through their
mother and next friend all residing
at Purnima, 9th Floor,
Sir Pochhkanwala Road, Worli
Mumbai 400 025 ...
5. Suresh Krishna Dange
25-4, Thakar House, Mumbai Marathi
Granth Sangrahalaya Marg, Naigaum (E),
Mumbai 400 014 ...
6. Popatbhai Jivabhai Vadher
At Dayya Taluka Gondal
District Rajkot Gujarat ... Respondents
WITH
CROSS OBJECTION (ST.) NO.9985 OF 2006
IN
FIRST APPEAL NO.710 OF 2005
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H.C.SHIV FA710.2005
Smt. Mangala Subhash Chandra Gadhe
Aged 39 years
all residing
at Purnima, 9th Floor,
Sir Pochhkanwala Road, Worli
Mumbai 400 025 ... Appellant
vs.
1. The New India Assurance Company Ltd.
New India Assurance Building,
87, M.G. Road, Bombay ...
2. Suresh Krishna Dange
25-4, Thakar House, Mumbai Marathi
Granth Sangrahalaya Marg, Naigaum (E),
Mumbai 400 014 ...
3. Popatbhai Jivabhai Vadher
At Dayya Taluka Gondal
District Rajkot Gujarat ... Respondents
Ms. Sayli Apte and Adv. Shreya Shah i/b Mr. P.G. Lad for
the Appellants.
Ms. S. V. Sonawane for the Respondent Nos.1 to 4.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 03rd MARCH, 2025
PRONOUNCED ON : 07th APRIL, 2025
JUDGMENT :
. Present Appeal under Section 173 of the Motor Vehicles
Act, 1998 ("the Act") is directed against the Judgment and Order
dated 30.11.2004, in Application No.3002 of 1995 ("claim"), passed
H.C.SHIV FA710.2005
by the Motor Accident Claims Tribunal, Mumbai ("Tribunal")
thereby the said claim filed under Section 166 of the Act was partly
allowed with proportionate costs and the Appellant and Respondent
No.6, i.e., insurer and owner of the offending vehicle have been held
jointly and severally liable to pay the Respondent Nos.1 to 4 a
compensation in the sum of of Rs.21,25,000/- alongwith 9% interest
from the date of claim till the payment of said amount.
1.1) Respondent No.1/Original Applicant No.1 filed the aforesaid
Cross-Objection and prayed to enhance the compensation amount.
2) Record indicates that the Appeal was admitted on dated
28.03.2005. The notice of admission of the Appeal was served upon
Respondent Nos.5 and 6. However, none appeared for said
Respondents when taken up for hearing.
3) Respondent Nos.1 to 4 ("Claimant") are widow, children
and mother of late Subhashchandra Gadhe ("deceased"). The
claimants filed said claim therein they averred that on 28.05.1995, at
about 7.00 a.m., the deceased was traveling as a passenger in a
tourist Taxi bearing No.MH-01/G-6079 ("taxi") from Dhulia side
towards Jalgaon side, on the National Highway. When the taxi
reached about 2 kilometer away from Subgavan village, a motor lorry
bearing No.GJ-3/U-5959 ("lorry") came from opposite direction
H.C.SHIV FA710.2005
overtaking another vehicle and dashed against the taxi. As a result,
the deceased got injured and succumbed to the injuries. The accident
occurred due to the rash and negligent driving of either of the
vehicles. It was averred that the deceased was aged 43 years, he was
I.P.S. and in police service. The claimants were dependent on the
income of the deceased. Therefore, the claimants prayed to award a
compensation in the sum of Rs.40,00,000/- from the Respondent
Nos.5 and 6/Original Opponent Nos.1 and 2, i.e., respective owners
of the taxi and lorry involved in the accident and the
Appellant/Original Opponent No.3-insurer of both the vehicles.
4) Respondent Nos.5 and 6 were served with the notice of
the claim, however, they did not file their appearance. Therefore,
they were marked ex-parte. The Appellant, however, contested the
claim by filing written statement (Exh.10) therein the Appellant did
not admit that the deceased was a passenger in the taxi, it was
proceeding from Dhulia to Jalgaon by the National Highway and
that, the accident occurred as averred in the claim. The Appellant
denied that the driver of the lorry was driving the lorry in a rash and
negligent manner. It was contended that the claim is excessive.
Therefore, the Appellant prayed for dismissal of the claim.
5) The claimants adduced the evidence of Respondent No.1
H.C.SHIV FA710.2005
(AW1/Exh.5), Mrs. Mrudula Girish Inamdar (AW2/Exh.12), Ashok S.
Sharma (AW3/Exh.16) and Ramsing Pratapsingh Patil, the First
Informant (AW4/Exh.19). Additionally, the claimants relied upon
the Inquest panchnama alongwith the Postmortem Report (Exh.8),
Certificates of Prospective Salary as on February, 2002 (Exhs.13 &
14), Salary Particular (Exh.17), Last Pay Certificate (Exh.18), FIR
(Exh.20), spot panchnama (Exh.21). No evidence was led by the
Appellant in the rebuttal.
6) Evidence of Respondent No.1 is that at the relevant time,
the deceased was traveling in the taxi from Dhulia side to Jalgaon
side. She deposed that when the taxi arrived at the spot of accident,
the lorry came from the opposite direction by overtaking another
vehicle and dashed against the taxi. As a result, the taxi fell in the
ditch. She deposed that the accident occurred due to rash and
negligent driving of either of the drivers. However, the Respondent
No.1 was not a witness to the accident.
7) AW4-Ramsing Patil, was a resident of village Subgavan.
He deposed that, at the time of the incident, he was present in his
Restaurant, which was near the spot of accident. One motor cyclist
came and informed him about the accident. He went to the spot and
found that the lorry had mounted over the taxi. He and others
H.C.SHIV FA710.2005
present there rescued the deceased, who was seriously injured.
Meanwhile, police was informed about the accident. He deposed that
then the police recorded his FIR. He showed the spot of accident to
the police and the panchas. The police recorded the spot panchnama
in their presence. The aforesaid evidence of AW4 was corroborated
with the FIR and the spot panchnama (Exhs.20 & 21). The spot
panchnama indicates that the road was 32 ft. wide where the
accident occurred. The panchnama further noted that the lorry came
from the wrong side of the road and dashed the taxi, while overtaking
another vehicle. As a result, the taxi was pushed up-to 20 ft. and fell
in the road side ditch and the lorry mounted on the taxi. This
evidence did not meet sufficient challenge in the cross-examination
of the witness. Therefore, I am in agreement with the finding
recorded by the Tribunal that the accident occurred due to the rash
and negligent driving of the lorry. The post-mortem report indicates
that the deceased died due to the injuries sustained in the accident.
8) Now turning to the issue of compensation. Respondent
No.1 deposed that at the time of the accident, the deceased was
drawing a monthly salary of Rs.12,500/-. The deceased purchased a
flat/tenement at Worli. The deceased was paying installments of the
tenement. AW2-Mrs. Inamdar, then Officer working in Finance and
H.C.SHIV FA710.2005
Accounts Section Class-I at Mantralaya Mumbai deposed that on
getting the letter from the Director General of Police, Mumbai
thereby seeking information as to the salary of the deceased, she gave
the reply letters (Exhs.13 & 14), therein she stated the details of the
salary of the deceased. AW2 deposed that the basic salary of the
deceased was Rs.5,500/- as on dated 28.05.1995.
9) AW3-Ashok Sharma, the then D.I.G. (Establishment)
referred the service record of the deceased and deposed that he gave
the service particulars (Exh.17) of the deceased to the claimants.
AW3 deposed that the deceased was appointed in the I.P.S. cadre on
dated 12.07.1976. On dated 13.02.1993 the deceased was promoted as
D.I.G. in the Maharashtra State. The Central government revised the
pay scale on dated 01.01.1996. The deceased was due for retirement
on dated 31.05.2012. AW3 produced the 'Last Pay Certificate'
(Exh.18) of the deceased. In the cross-examination AW3 admitted
that all the statutory deductions were made from the gross salary.
10) The 'Last Pay Certificate' (Exh.18) shows that at the time
of the accident, the monthly salary of the deceased was Rs.12,447/-.
The break of the monthly salary and deductions were as follows :
Substantive pay-5,500; Deputation allowance-400; K.M.A-80;
I.R.-100; DA-5217; CCA-100; HRA-1000; G.P.F.-1800; Income
H.C.SHIV FA710.2005
Tax-1500; G.I.S.-120 and professional tax-70.
10.1) As stated in the service particular (Exh.17), in view of the
new pay scale declared by the Central Government, the pay scale for
the post of D.I.G. w.e.f., date 01.01.1996 was : 16400-450-20,000.
Mr. K. Subramanyam, Junior to the deceased in the same rank was
also drawing the basic pay of Rs.5,500/- plus allowances in the scale
of 5100-150-5400-150-6150 and his pay fixed at Rs.16,850/- in the
revised pay scale 16400-450-20000.
10.2) The letter dated 26.02.2002 (Exh.14) issued under the
signature of AW2-Mrs.Inamdar states that if the deceased would
have been in service, his basic salary as on 1 st October 2001 would
have been Rs.19,100/- + 45% D.A. amounting to Rs.8,595/- totaling
to Rs.27,695/-. Since 1992 the deceased was residing in his own flat.
Therefore, he was entitled for HRA of Rs.5,730/- (30% of the basic
salary). The deceased was also entitled for City Allowance-Rs.300/-
and TA-Rs.800/-. Thus, as on dated o1.02.2002, the total
emoluments of the deceased would have been Rs.34,525/-.
11) The aforesaid oral and documentary evidence did not
meet any challenge in the cross-examination of the witnesses. The
deceased was aged 43 years. His date of retirement was 31.05.2012.
As such, 17 years of the service was left with the deceased.
H.C.SHIV FA710.2005
12) Considering the aforesaid evidence, the Tribunal held
that the gross monthly salary of the deceased can be said to be
Rs.27,000/- to Rs.28,000/- as on dated 01.01.2001. Further, the
Tribunal held that after the permissible deduction, if the average of
the monthly salary of Rs.12,447/- and Rs.28,000/- is taken into
consideration for the purpose of computation of the compensation,
then it can be reasonably believed that the monthly earning of the
deceased was Rs.20,000/- at the time of the accident. Accordingly,
the Tribunal held that the monthly salary of the deceased was
Rs.20,000/-. Out of the said amount the Tribunal deducted
Rs.6,667/- towards the personal and living expenses of the deceased.
As a result, the loss of the dependency was held as Rs.13,333/- per
month, which annually comes to Rs.1,59,000/- rounded of
Rs.1,60,000/-. Then the Tribunal applied the multiplier of '13', as the
deceased was aged 43 years. Accordingly, the Tribunal awarded
Rs.20,80,000/- towards the loss of the dependency. Additionally, the
Tribunal awarded Rs.15,000/- as 'loss of consortium', Rs.15,000/- as
'loss of estate', Rs.5,000/- for carrying the dead body and funeral and
Rs.10,000/- towards 'pain and suffering' as the deceased survived for
some time. Thus, the Tribunal awarded total Rs.21,25,000/- as the
compensation, inclusive of the 'No fault liability'.
H.C.SHIV FA710.2005
13) Ms. Apte, the learned Advocate for the Appellant
submitted that compared to the monthly salary drawn by the
deceased at the time of the accident, his average monthly salary held
by the Tribunal is on the higher side. She submits that the fixation of
such a higher monthly income is erroneous, and it resulted in
awarding an exorbitant compensation. Therefore, the impugned
compensation award should be modified.
14) Ms.Sonawane, the learned Advocate for the Respondents,
on the other hand, submitted that the Tribunal erred in taking the
average monthly income of the deceased as Rs.20,000/- for the
purpose of computing the loss of dependency. She submitted that
considering the nature of the evidence presented by the claimants,
the average actual monthly income of the deceased should have been
taken at Rs.25,000/-. To substantiate this submission, Ms.Sonawane
relied upon the decision in National Insurance Co. Ltd. v/s. Pranay
Sethi and Others1, therein in paragraph 57 the Hon'ble Supreme
Court held observed that,
"57.... The conception of "just compensation" has to be
viewed through the prism of fairness, reasonableness and
non violation of the principle of equitability. In a case of
death, the legal heirs of the claimants cannot expect a
windfall. Simultaneously, the compensation granted
1. 2017 ACJ 2700 (SC)
H.C.SHIV FA710.2005
cannot be an apology for compensation. It cannot be a
pittance. Though the discretion vested in the tribunal is
quite wide, yet it is obligatory on the part of the tribunal
to be guided by the expression, that is, "just
compensation". The determination has to be on the
foundation of evidence brought on record as regards the
age and income of the deceased and thereafter the
apposite multiplier to be applied. ... It is a well accepted
norm that money cannot substitute a life lost but an effort
has to be made for grant of just compensation having
uniformity of approach. There has to be a balance
between the two extremes, that is, a windfall and the
pittance, a bonanza and the modicum. ... ."
14.1) Ms. Sonavane also highlighted the following observation
in paragraph 59 of the said decision.
"59. ... Though it may seem appropriate that there
cannot be certainty in addition of future prospects to the
existing income unlike in the case of a person having a
permanent job, yet the said perception does not really
deserve acceptance. We are inclined to think that there
can be some degree of difference as regards the
percentage that is meant for or applied to in respect of the
legal representatives who claim on behalf of the deceased
who had a permanent job than a person who is self-
employed or on a fixed salary. But not to apply the
principle of standardization on the foundation of
perceived lack of certainty would tantamount to
H.C.SHIV FA710.2005
remaining oblivious to the marrows of ground reality.
And, therefore, degree-test is imperative. Unless the
degree-test is applied and left to the parties to adduce
evidence to establish, it would be unfair and inequitable.
... ."
15) However, the aforenoted submission of Ms.Sonawane
cannot be accepted. In this regard it is significant to note that in
paragraph 61 of the said judgment the Hon'ble Supreme Court
approved an addition of 30% of the actual salary to the actual salary
income of the deceased towards future prospects where the deceased
had a permanent job and if the age of the deceased was 40 to 50. In
the case in hand, the total monthly salary of the deceased was
Rs.12,447/- at the time of the accident. Out of the said amount,
Rs.1,500/- were deducted as the income tax and Rs.70 as
professional tax. Thus, the total tax liability was Rs.1,570/-, i.e.,
12.60% of the monthly salary of Rs.12,447/-. Such a 12.60% tax on
the average monthly income of Rs.20,000/- will come to Rs.2,520/-.
Meaning thereby the gross average monthly salary of the deceased
considered by the Tribunal was Rs.22,520/-. Thus, the Tribunal has
added exactly 80.93% of the monthly salary of Rs.12,447/- towards
the future prospects of the deceased, which is 2.70 times the 30%
addition approved by the Hon'ble Supreme Court in such cases.
H.C.SHIV FA710.2005
Therefore, the said 80.93% addition is in line with the observations
of the Hon'ble Supreme Court that, "... there can be some degree of
difference as regards the percentage that is meant for or applied to in
respect of the legal representatives who claim on behalf of the
deceased who had a permanent job than a person who is self-
employed or on a fixed salary ." In this background it cannot be said
that no degree test was applied by the Tribunal while quantifying and
awarding the compensation in the case in hand.
16) To fortify the conclusion above it is apposite to consider
the decision in Dr. Sunil Shankar Patil and Ors. vs. Suhel Shaukat
Shaikh and Ors.2, therein, the evidence of Mr.Kumbhar,
representative of the employer of the deceased, had stated that the
deceased was always at the best because of her expertise and
specialization in breaking systems and, she in the future could have
been entitled to the position of Senior General Manager or Vice
President. In the said evidence, it was also stated that if she had
continued till her retirement, and her salary raise every year would
have been 11%, then the projected emoluments at the end of her
retirement would have been Rs.3,16,17,837/-. This was on the basis
that she would continue at her current position without future
promotion and if she had been promoted then the said emoluments
2. 2024 SCC Online Bom 927
H.C.SHIV FA710.2005
would have increased further. In the evidence, her academic
achievement was also stated and, because of her expertise, she
represented the company in various foreign countries. In the cross-
examination there was no rebuttal to the same. The deceased therein
was aged 48 years. Considering the evidence, the Tribunal held that
the yearly emoluments of the deceased were Rs.11,59,808/- and
added 30% thereof towards the future prospects. The Appellants
relied upon the case of Hemraj vs. Oriental Insurance Co. Ltd.3, and
sought for increase of the percentage to 50%.
16.1) In view thereof and considering the entire evidence, first
the Division Bench held that the yearly emoluments of the deceased
were Rs.13,10,464/-. Then the Division Bench referred the decision
in Hemraj (supra) therein in paragraph 32 the Hon'ble Supreme
Court observed that there is no bar to future prospectus being taken
at level higher than that specified in Pranay Sethi's case when there is
actual evidence led to the satisfaction of the Court that future
prospectus were higher than the standard percentage. Therefore, and
having had analysed the evidence of said Mr. Sandip Kumar
Kumbhar, the Division Bench held that the said evidence would
certainly justify adoption of higher percentage than standardized in
the case of Pranay Sethi. (supra). However, the Division Bench also
3. 2018 ACJ 5
H.C.SHIV FA710.2005
observed that one cannot by mathematical precision arrive at the
future prospects percentage. As a result, the Division Bench held that
40% future prospects would be reasonable to meet the ends of justice
in the facts of the present case. Thus, from this decision it is
understandable that even if the higher percentage than standardized
in Pranay Sethi's case can be granted, it cannot be unreasonably
higher as if a bonanza.
17) Now turning to the submission by Ms. Apte, the learned
Advocate of the Appellant that the compensation award is exorbitant.
18) In this context I noted that the deceased died on dated
28.05.1995. As per the service particulars in the letter (Exh.17), in
view of the new pay scale declared by the Central Government, the
pay scale for the post of D.I.G. w.e.f. dated 01.01.1996 was : 16400-
450-20,000. AW2 deposed that the basic salary of the deceased was
Rs.5,500/- as on dated 28.05.1995. The letter (Exh.17) mentions that
Mr. K. Subramanyam, Junior to the deceased in the same rank was
also drawing the basic pay of Rs.5,500/- plus allowances in the scale
of 5100-150-5400-150-6150 and his pay was fixed at Rs.16,850/- in
the revised pay scale 16400-450-20000 made applicable from dated
01.01.1996. Thus, it is apparent that if the deceased was alive as on
dated 01.01.1996 (for 7/8 months) he would also have received the
H.C.SHIV FA710.2005
increased/revised monthly salary of Rs.16,850/- like Mr.K.
Subramanyam. Said increase in that short time was 35.37% of the
monthly salary of Rs.12,447/-. The date of birth of the deceased was
19.05.1952. The deceased was due for retirement on dated
31.05.2012. As on dated 01.01.1996, more than 16 years service was
left with the deceased. As such, there would have been considerable
increase in his monthly salary. Moreover, there was loss of the
gratuity on account of the premature death of the deceased.
Therefore, I am in disagreement with the submission made by Ms.
Apte, the learned Advocate for the Appellant.
19) However, the submission by Ms.Sonavane is acceptable
that since there were four dependents, the deduction towards the
personal and living expenses should have been 1/4 th and not 1/3rd.
Similarly, as per the settled law, the multiplier should have been '14'
and not '13' applied by the Tribunal. Accordingly, the loss of
dependency would come to Rs.32,76,000/- (2,40,000 + 72,000 -
78,000 (1/4th) = Rs.2,34,000 x 14). In view of the decision in Magma
General Insurance Co. Ltd. V. Nanu Ram Alias Chuhru Ram & Ors. 4,
the claimants/Respondent Nos.1 to 4 being widow, children and
mother of the deceased, they are entitled to receive Rs.48,000/- each
as spousal, parental and filial consortium, respectively. Further the
4. 2018 ACJ 2782 (SC)
H.C.SHIV FA710.2005
claimants are entitled to receive Rs.18,000/- under the head 'funeral
expenses' and total Rs.18,000/- under the head 'loss to estate'. As a
result, the total compensation comes to Rs.35,04,000/-. Thus, the
claimants are entitled for the enhanced compensation as under :-
Total compensation : Rs. 35,04,000/-
Compensation
awarded by the Tribunal : - Rs. 21,25,000/-
------------------
Enhanced compensation : = Rs. 13,79,000/-
------------------
20) Considering the facts and circumstances of the case and
the evidence on record, the claimants are entitled to get interest at
the rate of 7.5 % per annum on the enhanced compensation amount.
21) Upshot of the above discussion is that the Tribunal rightly
held that the accident in question occurred only due to the rash and
negligent driving of the lorry. Further, considering the evidence as to
the prospective income of the deceased the loss of dependancy
quantified by the Tribunal is justifiable. However, the Tribunal erred
in deducting the income towards personal and living expenses and
taking a proper multiplier to award the "just compensation", as
quantified above. As a result, 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
H.C.SHIV FA710.2005
costs of the Appeal and the Cross-Objection.
22) Hence following Order is passed.
(a) First Appeal is dismissed with proportionate costs.
(a-1) The Cross-Objection is partly allowed with costs.
(b) The impugned Judgment and Order dated
30.11.2004, in Application No.3002 of 1995, passed by
the Motor Accident Claims Tribunal, Mumbai, is
modified.
(c) the Appellant and Respondent Nos.5 and 6 shall
jointly and severally pay to the Respondent Nos.1 to 4 the
additional compensation in the sum of Rs. 13,79,000/-
(inclusive of NFL amount) 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 and Respondent Nos.5 and 6 are
directed to comply with this Judgment and Order within
a period of four months from today, by depositing the
amount in the Tribunal.
(d-1) On deposit of the amount the Tribunal shall
immediately inform about the deposit to the Respondent
Nos.1 to 4.
(e) The additional compensation amount shall be
disbursed amongst Respondent Nos.1 to 4 in the ratio
70:10:10:10. The Respondent Nos.1 to 4 are permitted to
H.C.SHIV FA710.2005
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.
(f) The amount deposited in the Tribunal shall not be
invested for a period of eight weeks from the date of
deposit. 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.
(g) The Appeal and the Cross-Objection are disposed of
in the aforesaid terms.
(h) R & P received from the Tribunal concerned be
immediately sent back.
Digitally
signed by
PREETI
(SHYAM C. CHANDAK, J.)
PREETI HEERO
HEERO JAYANI
JAYANI Date:
2025.04.19
16:30:58
+0530
