Bombay High Court
Nilam Tanaji Taralekar And Ors vs Bharat Shamrao Bansode And Ors on 7 April, 2025
HEMANT
2025:BHC-AS:19177
CHANDERSEN
SHIV
H.C. SHIV 202.fa755.06.doc
Digitally signed by
HEMANT
CHANDERSEN SHIV
Date: 2025.04.28
20:22:26 +0300
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.755 OF 2006
1. Smt. Nilam Tanaji Taralekar
Age 32 years, Occ. Household ...
2. Sujata Tanaji Taralekar
Age 13 years Occ. Education ...
3. Rupali Tanaji Taralekar
Age 11 years Occ. Education ...
4. Vijay Tanaji Taralekar
Age 10 years Occ. Education ...
5. Ajay Tanaji Taralekar
Age 10 years, Occ. Education
Appellant Nos.2 to 5 are minors,
Through their G.A.L. Appellant No.1. ... Appellants.
vs.
1. Shri Bharat Shamrao Bansode
Age Major, Occ. Owner R/o. Uran
Islampur Tal. Walwa Dist. Sangli ...
2. United India Company Ltd.
Islampur
(Policy No.161105/31/33/883/97-98
valid for 29/08/1997 to 28/08/1998,
(Summons to be served on its Br.at
Vakharabhag, Sangli) ...
3. Shivaji Rajaram Kadam
Age 28 years, Occ. Driver
R/o Islampur, Tal.Walwa, Dist. Sangli ... Respondents
Mr. Tejpal S. Ingale with Ms.Priyanka A. Babar for the Appellants.
Ms. Poonam Mital for the Respondent No.2
1/13
::: Uploaded on - 28/04/2025 ::: Downloaded on - 02/05/2025 23:52:51 :::
H.C. SHIV 202.fa755.06.doc
CORAM : SHYAM C. CHANDAK, J.
DATED : 07th APRIL, 2025
JUDGMENT:
. Present Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988 ("the Act") by the original claimants against the
Judgment and Order dated 28.11.2005, in M.A.C. Petition No.52 of
1998, passed by the Motor Accident Claims Tribunal, Sangli thereby
the said claim was partly allowed and Respondent Nos.1 and 2
(Insured and Insurer) have been directed to jointly and severally pay
the compensation amount of Rs.2,78,000/- to the Appellants,
including the amount of Rs.50,000/- as 'No fault liability' along with
interest at the rate of 9% per annum from the date of claim till its
realisation.
2) Heard Mr. Ingale, the learned Advocate for the Appellants
and Ms.Mital, the learned Advocate for the Respondent No.2.
3) Record indicates that the Appeal was admitted on 12 th
April 2006. Thereafter the Respondents have been duly served with
the notice of this Appeal.
4) Facts in brief are that :-
On 8th November 1997, at about 10:15 a.m. late Tanaji
Taralekar (deceased) alighted from a bus at Bavchi-phata on Sangli-
H.C. SHIV 202.fa755.06.doc
Islampur road. From that place, the deceased started walking towards
his office which was situated at a distance of 1 km from the said place.
At about 10.20 am, Respondent No.3 came there driving the Jeep
No.MH-10/C-1065 from western direction. Then, the Respondent
No.3 drove the jeep in reverse direction without giving any signal and
at a high speed. As a result, the jeep dashed the deceased, who was
walking towards eastern direction, and caused him grievous injuries.
Immediately, the deceased was taken to the Public Health Center,
Bavchi and thereafter, he was being taken to Civil Hospital, Sangli but
he succumbed to the injuries on the way. It was averred that the
accident occurred due to rash and negligent driving of the jeep by the
Respondent No.3.
5) The deceased was serving as a 'Pump Operator' with
Environmental Engineering Works Division, Jalbhavan, Sangli,
thereby the deceased was earning salary of Rs.3,800/- per month.
The deceased was aged 35 years. Appellant No.1 is the widow and
Appellant Nos.2 to 5 are the children of the deceased. Therefore, the
Appellants filed the said claim and prayed to award compensation of
Rs.15,20,000/- under the admissible heads but restricted to
Rs.5,00,000/- for the purpose of Court fees.
H.C. SHIV 202.fa755.06.doc
6) The parents of the deceased expired during pendency of
the claim. Hence, their names were deleted from array of the title vide
order below (at Exh.29).
7) Respondent Nos.1 and 3 opposed the claim by their
written statement at (Exh.28) while Respondent No.2 resisted the
claim by filing the written statement at (Exh.14). The Respondents
have not admitted and specifically denied each and every material
allegation, averment and submission made in the claim against them.
8) Respondent Nos.1 and 3 contended that at the relevant
time the deceased was alighting from the bus in an inebriated
condition. Consequently, the deceased lost his balance and he himself
dashed against the rear portion of the jeep and fell on the road. As a
result the deceased sustained fatal injuries.
8.1) Respondent No.2 contended that the deceased was
traveling in the jeep as fare paying passenger. When the jeep stopped
near the bus stop at Bavchi village, the deceased, in a hurry to attend
his office, recklessly tried to alight from the jeep. At the same time
other passengers were boarding the jeep while some of the passengers
were alighting from the jeep. In that process the deceased fell down
from the jeep and suffered injuries leading to his death.
H.C. SHIV 202.fa755.06.doc
9) In order to prove the claim, the Appellants adduced the
evidence of Appellant No.1-Nilam Tanaji Taralekar (AW1/Exh.33)
and Vasant Dudappa Saundade (AW2/Exh.46).
10) Respondent No.2 also examined the same AW2-Vasant
Dudappa Saundade in their defence as RW1 (Exh.55). Respondent
Nos.1 and 3 examined Mr.Rajesh Bhaurao Patil (RW2/Exh.78).
11) The evidence of AW1 is that on the relevant date, at time
and place the deceased was going on foot to attend the office at village
Bavachi. At that time, the jeep was going ahead of the deceased.
However, from some distance the jeep driver took the jeep in reverse
direction. In that process, the jeep dashed the deceased. AW1
deposed that immediately after the accident, the deceased succumbed
to the injuries. In the cross-examination, AW1 admitted that she did
not witness the incident.
12) In contrast, the evidence of RW2 is that on 08/11/1997, he
had gone to Sangli and the Respondent No.3 was driving the said
jeep. At about 10.00 am, they were going from Sangli to Islampur. On
the way, they stopped at Bavachi Phata. After five minutes, one S.T.
bus came there and stopped. The deceased alighted from the rear
door of the bus. There was heap of stones on the road in front of the
H.C. SHIV 202.fa755.06.doc
rear door where the deceased alighted. Therefore, the deceased fell
down and sustained injuries. RW2 deposed that thereafter, they
shifted the deceased to Islampur. In the cross-examination for the
claimants, RW2 admitted that the police did not record his statement.
13) In the written statement of the Respondent Nos.1 and 3, it
was contended that when the deceased alighted from the bus, he was
under the influence of liquor, therefore, the deceased lost his control
and dashed on the backside of the jeep and fell down.
14) In the written statement, Respondent No.2 has taken a
completely contradictory stand that, when the jeep stopped near the
bus stop, the deceased, in a hurry to reach his office, tried to step
down from the jeep, recklessly. At the same time, other passengers
were trying to board the jeep and some passengers were trying to get
down, due to which the deceased fell down and sustained injuries.
Therefore, the police papers are significant. The FIR (Exh.36) clearly
states that after the deceased alighted from the jeep at Bavachi phata,
one passenger standing at the bus stop waived hand, indicating that,
he intends to travel in the jeep. Therefore, the driver of jeep took the
jeep in reverse. At that time, the left rear corner portion of the jeep
dashed the deceased and caused him injury. Thereafter, immediately
H.C. SHIV 202.fa755.06.doc
the deceased was taken to Public Health Center, Bavchi and from
there he was being taken to Sangli. However, the deceased expired
on the way. Therefore, the FIR was registered at Ashta Police Station
under Sections 279, 304-A of I.P.C. and 184 of the Act against the
driver of the jeep. The FIR was filed by Head Constable Mr.Kamble,
Buckle No.6 at Astha Police Station, after recording the statement of
the eye witness. The Spot Panchnama (Exh.37) supports the contents
of the FIR. Both documents remained unaffected in the cross-
examination of AW1. Therefore, the Tribunal rightly held that the
accident occurred due to negligent driving of the jeep.
15) The evidence of AW2 is that, at the relevant time, he was
serving as a Junior Clerk in the Public Welfare Department. The
deceased was serving there as pump operator. The deceased had
joined the service on 17/04/1991. Before that, the deceased worked
for five years in the same office on daily wages. In October 1997, the
gross salary of the deceased was Rs.4,052/-. AW2 deposed that, in
normal course, on getting an increment as usual in January 2005, the
salary of the deceased would have increased to Rs.6,858/-. The 5 th Pay
Commission was made applicable from 01/01/1996. Normally, the
deceased would have received pension of Rs.2,342/- plus other
H.C. SHIV 202.fa755.06.doc
allowances.
16) Record indicates that, after examining AW2 on
23/03/2005, on the same day, the Appellant closed his evidence.
Thereafter, said AW2 was examined as RW1 by Respondent No.2. At
that time, AW2/RW1 produced the report about the absence of the
deceased from duty (Exh.57) and the show cause notice/memo
(Exh.58), issued to the deceased. In the cross-examination RW1
admitted the the salary and allowance certificate (Exh.61).
17) In view of the evidence of RW1 that as on 08/01/1997, the
deceased was getting basic pay of Rs.1,050/- and D.A. Rs.1,018/-,
the Tribunal held that, the monthly salary of the deceased was
Rs.2,068/- because the report (Exh.57) showed that the deceased was
remaining absent from duty without payment and, therefore, the
memo (Exh.58) was served to him. Accordingly, the Tribunal held
that the deceased was getting Rs.2,100/- and deducted Rs.700/-
(1/3rd) towards the personal and living expenses of the deceased.
Thus, the Tribunal took the net salary income as Rs.16,800/- per
annum and taking the multiplier of '16', quantified the loss of the
dependency at Rs.2,68,800/-. The Tribunal awarded Rs.5,000/- for
the loss of consortium, Rs.2,000/- for funeral expenses and
H.C. SHIV 202.fa755.06.doc
Rs.2,000/- for the loss of estate. Thus, the Tribunal awarded total
compensation of Rs.2,78,800/-.
18) However, the Tribunal did not considered the evidence of
said Vasanth Saundade, when he was examined as AW2, wherein he
stated that the deceased had joined the service on 17/04/1991. Before
that, the deceased served for five years on daily wages. In October
1997, the gross salary of the deceased was Rs.4,052/-. Even though,
same AW2 deposed as RW1 that the deceased was served with the
memo etc. for absence on duty, in the chief-examination, he stated
that before taking an action by the department, the deceased died in
the accident. The salary-cum-allowance certificate (Exh.61) clearly
states that since the deceased died on 08/11/1997, his monthly salary
for October 1997 was of Rs.4,052/- and it comprised of : Basic
Salary-Rs.3,275/-, DA-Rs.426/-,HRA-Rs.246/-, T.A.-Rs,75/- and
Washing Allowance-Rs.30/-. It is not clear that in the months
previous to 1997, the deceased was paid less than Rs.4,052/-.
Therefore, I am of the considered view that the monthly income of the
deceased was Rs.4,052/-. Accordingly, I hold the same.
19) The evidence of AW2 clearly established that the date of
birth of the deceased is 21/09/1962, so, he was aged 35 years and two
H.C. SHIV 202.fa755.06.doc
months. The deceased was in the regular employment. Therefore, in
accordance of the decisions in National Insurance Co. Ltd. Vs. Pranay
Sethi and Others1 and Sarla Verma and others Vs. Delhi Transport
Corporation and another2, 50% of the established net annual income
should be added towards the future prospects of the deceased.
19.1) Appellant No.1 was doing household work and Appellant
Nos.2 to 5 were minors. Original Claimant Nos.6 and 7, i.e., parents
of the deceased were aged. As such, all the 7 claimants were
depending on the income of the deceased. No statutory defence was
available to the Insurance Company-Respondent No.2. As such,
immediately after the accident, all the claimants were entitled to be
compensated towards the loss of the dependency. Although Original
Claimant Nos.6 and 7 expired during pendency of the claim, they are
represented by the remaining claimants. As held in the case of Kirti
and others Vs. Oriental Insurance Co. Ltd.3, "Claims and legal
liabilities crystallize at the time of the accident itself and, changes
post thereto ought not to ordinarily affect pending proceedings. Just
like how Appellant-claimants cannot reply upon subsequent increases
in minimum wages, the Respondent-insurer too cannot seek benefit
1. 2017 ACJ 2700 (SC)
2. 2009 ACJ 1298 (SC)
3. (2021) 2 SCC 166
H.C. SHIV 202.fa755.06.doc
of the subsequent death of a dependent during the pendency of legal
proceedings." Hence, 1/5th from the actual net yearly income should
be deducted towards the personal and living expenses of the
deceased. The multiplier is of '16'. Accordingly, the claimants are
entitled to receive Rs.9,33,584/- towards the loss of the dependency.
20) As held in the case of Magma General Insurance Co. Ltd.
Vs. Nanu Ram Alias Chuhru Ram & Ors. 4, Appellant No.1 is entitled
to get Rs.48,000/- towards 'spousal consortium' and Appellant Nos.2
to 5 are entitled to receive Rs.48,000/- each as 'parental consortium'.
Similarly, Original Claimant Nos.6 and 7 would have received the
'filial consortium' of Rs.48,000/- each if they had not expired. Be that
as it may, as noted above, they are represented by the remaining
claimants. Therefore, the entire 'filial compensation' amount of
Rs.98,000/- of the share of Original Claimant Nos.6 and 7 should be
paid to the remaining claimants. Additionally, the claimants are
entitled to receive Rs.18,000/- under the head 'funeral expenses' and
Rs.18,000/- under the head of 'loss to estate'. Thus, the claimants are
entitled for total compensation of Rs.13,05,584/-.
21) Learned Advocate for Respondent No.2 stated that the
original award amount of Rs.2,78,000/- granted by the Tribunal has
4. 2018 ACJ 2782 (SC)
H.C. SHIV 202.fa755.06.doc
been deposited by Respondent No.2. Therefore, the Appellants are
entitled to receive only the enhancement of compensation amount of
Rs.10,27,584/-. Considering the facts and circumstances of the case,
the Appellants are entitled to receive the enhanced compensation
amount along with interest at the rate of 7.5% from the date of claim
till realisation of said amount.
22) In view of the above discussion the Appeal partly
succeeds.
23) Hence, following order is passed :-
(i) First Appeal is partly allowed with proportionate
costs.
(ii) The impugned Judgment and Order dated 28th
November 2005, in MACP No.52/1998 passed by the
learned II-Additional District Judge & Member, Motor
Accident Claim Tribunal, Sangli is modified.
(iii) Respondent No.1-insured and Respondent Nos.2-
insurer shall jointly and severally pay the additional
compensation of Rs.10,27,584 (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.
(iv) Respondents are directed to comply with this
H.C. SHIV 202.fa755.06.doc
Judgment and Order within a period of three months
from today, by depositing the amount in the Tribunal.
(v) The entire amount of the compensation alongwith
interest shall be disbursed amongst Appllent Nos.1 to 5 as
directed by the Tribunal, subject of payment of deficit
Court fee, if any.
(vi) Statutory deposit be transferred to the Tribunal. It
be disbursed in accordance with law.
(vii) Record and Proceedings of the Tribunal shall be
immediately sent back.
24) The Appeal stands disposed of in the aforesaid terms.
(SHYAM C. CHANDAK, J.)
