Bombay High Court
The New India Assurance Co. Ltd vs Mrs. Supriya Deepak Hire And Ors on 24 April, 2025
2025:BHC-AS:20614
Digitally
signed by
WAKLE
WAKLE MANOJ Manoj 27-FA-195-2016.doc
MANOJ JANARDHAN
JANARDHAN Date:
2025.05.06
20:01:52
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 195 OF 2016
WITH
CROSS OBJECTION (ST) NO.30571 OF 2024
IN
FIRST APPEAL NO. 195 OF 2016
The New India Assurance Co. Ltd.,
Shivkrupa Commercial Complex,
Gokhale Road, Thane. ...Appellant
V/s.
1. Smt. Supriya Deepak Hire
Age about 28 years.
Widow of deceased.
2. Kumari Sana Deepak Hire,
Age about 2 years,
(Minor daughter of deceased).
3. Haribhau Govind Hire,
Age 64 years, Father of deceased.
4. Smt. Vijya Haribhau Hire,
Age 60 years, Mother of deceased.
Applicant No.2 is minor, hence through
her natural and guardian applicant No.1
All R/at Balaji Palace, 3rd floor,
Dindayal Cross Road, Above Sant Teresa
School, Dombivali (West), Dist. Thane
5. Mr. Chhogala Purbia
S/o. Premshankerji,
130, Tekari, Udaipur, Dist. Udaipur,
Rajasthan 313001. ...Respondents
Mr. D. R. Mahadik, for the Appellant.
Mr. T. J. Mendon a/w T. R. Kale, for the Respondent Nos.1 to 4.
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Manoj 27-FA-195-2016.doc
CORAM : SHYAM C. CHANDAK, J.
DATED : 24th APRIL, 2025
JUDGMENT:
-
. The aforesaid Appeal and the Cross-Objection challenged
the Judgment and Award dated 05/09/2013, in M.A.C.P. No.328 of
2009 ("Claim"), passed by the Motor Accident Claims Tribunal,
Thane thereby said claim filed under Section 166 of the Motor
Vehicles Act, 1988 ("the Act") was partly allowed and Respondent
No.5 (Original Opponent Nos.1/owner) and the Appellant (Original
Opponent No.2/insurer) held jointly and severally liable to pay a sum
of Rs.24,83,000/- as compensation to Respondent Nos.1 to 4
("Original Claimants") alongwith interest at the rate of 9% per
annum from the date of registration of the claim till realization of
said amount.
1.1) The Appeal has been filed by the Insurance Company on
the ground that the compensation awarded is exorbitant, whereas the
cross-objection preferred by the claimant is founded on the premise
that 'just compensation' is not awarded by the tribunal.
2) The Appeal was admitted on 03/08/2016. The Appeal is
old. The learned Advocate for the parties stated that the Appellant
has no statutory defence in this case. Therefore, the appeal may be
taken up for final hearing.
Manoj 27-FA-195-2016.doc
3) Hence, heard Mr. Mahadik, the learned Advocate for the
Appellant and Mr. Mendon, the learned Advocate for the Claimants.
Perused the record.
4) Facts in brief are that, the Respondent No.1 is widow,
No.2 is minor daughter and Respondent No.3 & 4 are aged parents of
late Deepak Haribhau Hire ("deceased"). It is the case of the
claimants that, on 19/03/2009, at about 14:30 hours, when the
deceased was riding his Bullet Motor Cycle No. MXA-8385
("M/cycle") on Mumbra to Panvel road, opposite to Bharat Gear
Company, a Motor Truck bearing No. RJ-27-G-6313 ("truck") gave
dash to his M/cycle. As a result, the deceased fell down and sustained
fatal injuries. It was averred that the accident occurred due to rash
and negligent driving of the truck. On information of the accident,
Shil Daighar Police Station, Thane registered an FIR bearing
CR.No.I-45/2009, under Sections 304-A and 279 of I.P.C. and Secion
184 of the Act, against the driver of the truck.
4.1) It was averred that the deceased was aged 34 years and he
was serving as a Manager with a transport company namely M/s.
Shree Siddhivinayak Enterprises, Charholi, Pune-Alandi Road,
Dighi-Pune on a monthly salary of Rs.18,000/-. The claimants were
dependant on the income of the deceased. Therefore, they prayed to
award a sum of Rs.25,00,000/- as compensation with interest.
Manoj 27-FA-195-2016.doc
5) Despite notice, the Respondent No.5 did not filed his
appearance. Hence, he was proceeded against ex-parte.
6) The Appellant opposed the claim by filing the written
statement (Exh.14). The Appellant denied that the accident occurred
due to rash and negligent driving of the truck. The Appellant did not
admit that the deceased was aged 34 years, he was serving as a
Manager and earning as above. The Appellant contended that the
deceased himself contributed to the accident.
7) Based on the pleadings, the Tribunal framed the relevant
issues for consideration. To prove the clam, Respondent No.1
adduced her evidence on Affidavit (AW1/Exh.20) and relied on
several documents in evidence.
8) On the point of the accident, evidence of AW1 is that, at
the relevant time and place, when the deceased was proceeding on
the M/cycle, the truck dashed the M/cycle. As a result, the deceased
sustained serious injuries and consequently, he died. The accident
occurred due to rash and negligent driving of the truck. This evidence
is supported with the FIR (Exh.21) and Spot Panchnama (Exh.22).
No doubt, AW1 has not witnessed the accident. However, the FIR
clearly recorded that, at the time of the accident, the truck was driven
at a high speed. The Appellant has not explained as to why the police
registered the FIR against the driver of the truck. The Appellant has
Manoj 27-FA-195-2016.doc
not examined the said driver to rebut the evidence of AW1. Therefore,
I am in agreement with the finding of the Tribunal that, the accident
occurred due to rash and negligent driving of the truck. The Post-
Mortem Report (Exh.23) proved that the deceased was aged 34 years
and he died due to injuries sustained in the accident.
9) Now turning to the evidence as to the occupation and
income of the deceased. Evidence of AW1 is that the deceased was
serving as a Manager with M/s. Shree Siddhivinayak Enterprises and
getting monthly salary of Rs.18,000/-. To substantiate this evidence,
the claimants relied upon the Income Tax Returns and the related
Form No.16 for the Assessment Years 2006-2007 (Exh.26/3), 2007-
2008 (Exh.26/2) and 2008-2009 (Exh.26/1). The gross annual
income and deduction declared in the said documents was as under :-
Assessment Year 2006-07 2007-08 2008-09
Gross Salary Rs.151,300/- Rs.182,400/- Rs.2,10,600/-
Tax on Employment Rs.2,500/- Rs.2,500/- Rs.2,500/-
Net Salary Income Rs.1,48,800/- Rs.1,79,900/- Rs.2,08,100/-
10) Considering the aforesaid oral and documentary
evidence, the Tribunal held that the deceased was working as the
Manager and his monthly income was Rs.17,000/- approximately,
which was yearly Rs.2,04,000/-. The claimants were dependant on
the deceased. As such, the Tribunal deducted Rs.51,000/- (1/4 th) as
Manoj 27-FA-195-2016.doc
the personal and living expenses of the deceased. The deceased was
aged 34 years. Therefore, the Tribunal took the multiplier of '16' and
awarded total Rs.24,48,000/- towards the loss of the dependency.
Additionally, the Tribunal awarded Rs.20,000/- as 'consortium',
Rs.10,000/- as 'loss of estate' and Rs.5,000/- as 'funeral expenses'.
Thus, the Tribunal awarded total compensation amount of
Rs.24,83,000/-.
11) The aforesaid Income Tax Returns and the Form No.16
were supported with the Annual Statement of the EPF contribution
for the financial years 2002-03, 2004-05 and 2007-08 (Exh.27
colly.). There is nothing in the evidence indicating that the aforesaid
documents related to the employment and income of the deceased
are false or fabricated. Therefore, said documents are safe to rely
upon. The Income Tax Return for the financial year 2007-2008 was
submitted on 31/07/2008, i.e., much before the death of the
deceased. The deceased was maintaining the family of 5, including
himself. The family of the deceased was residing in Mumbai, which is
a financial and commercial city. Compared to smaller cities and
towns, personal and living expenses of people living in Mumbai are
on the higher side. Additionally, the deceased was maintaining a
costly M/cycle 'Bullet, which fact itself indicates that the deceased
was earning enough. As such, I have no hesitation to hold that at the
Manoj 27-FA-195-2016.doc
time of the accident, the deceased was working as Manager and his
net yearly income was Rs.2,08,100/-.
12) It is not disputed that the deceased was in the permanent
employment and he was aged 34 years. All the four claimants were
dependant on the income of the deceased. Therefore, in accordance
with the decision in National Insurance Co. Ltd. Vs. Pranay Sethi
and Others1 and Sarla Verma and others Vs. Delhi Transport
Corporation and another2, 50% of the net yearly salary income
should be added towards the future prospects of the deceased and
then 1/4th of the actual yearly income should be deducted towards the
personal and living expenses of the deceased. Accordingly, the loss of
dependency comes to Rs.37,45,800/-. (Rs.2,08,100 + Rs.1,04,050/-
(50%) = Rs.3,12,150/- - Rs.78,037.50/- (1/ 4th) = Rs.2,34,112.50/-
x 16). As held in the case of Magma General Insurance Co. Ltd. Vs.
Nanu Ram Alias Chuhru Ram & Ors. 3, Respondent Nos.1 to 4 are
entitled to get Rs.48,000/- each towards 'spousal', 'parental' and
'filial' consortium, respectively. Besides, the Respondents are entitled
to get Rs.16,500/- under the head 'funeral expenses' and Rs.15,000/-
under the head 'loss of estate'. Thus, the claimants are entitled to
receive total compensation of Rs.39,70,800/-.
1. 2017 ACJ 2700 (SC)
2. 2009 ACJ 1298 (SC)
3. 2018 ACJ 2782 (SC)
Manoj 27-FA-195-2016.doc
12.1) The claimants are entitled to receive some interest on the
said compensation amount. Considering the facts and circumstances
of the case, grant of interest @ 7.5% p.a. will be just and proper.
13) Upshot of the above discussion is that, there is nothing in
the evidence to accept that the compensation awarded by the
Tribunal is excessive or exorbitant. On the contrary, the Tribunal
considered the net annual income of the deceased on lower side,
which should have been taken as Rs.2,08,100/-, declared in the
Income Tax Return and Form No.16 for the Assessment Year 2008-
2009 (vide Exh.26/1). The compensation awarded under the
statutory heads is on lower side. However, the rate of interest granted
is on little higher side. Said infirmities in the impugned Judgment
and Award therefore, warranted an interference to modify the award.
As a result, the Appeal is liable to be dismissed and the Cross-
objection should be allowed, accordingly.
14) Hence, following Order is passed :-
(i) First Appeal is dismissed with proportionate costs.
(ii) The Cross-Objection is partly allowed with
proportionate costs.
(iii) The impugned Judgment and Award dated
05/09/2013, in M.A.C.P. No.328 of 2009, passed by
Manoj 27-FA-195-2016.doc
the Motor Accident Claims Tribunal, Thane, is
modified.
(iv) Appellant and Respondent No.5 shall jointly and
severally pay the compensation of Rs.39,70,800/-
(inclusive of NFL amount) together with interest
thereon at the rate of 7.50 % per annum from the
date of the Claim Petition till realisation of the
amount.
(v) The Appellant and Respondent No.5 are directed to
comply with this Judgment and Order within a
period of four months from today, by depositing the
amount in the Tribunal.
(vi) On deposit of the amount the Tribunal shall
immediately inform about the deposit to Respondent
Nos.1, 3 and 4.
(vii) The deposited amount shall be apportioned, paid and
invested as directed by the Tribunal in the impugned
Award, subject to payment of a deficit Court fee, if
any.
(viii) Appellant/Insurance Company will be entitled to the
adjustment of the amount against the already paid
under the impugned Award.
(SHYAM C. CHANDAK, J.)
