Bombay High Court
United India Insurance Co. Ltd vs Soniya Maroti Aghav And Ors on 29 April, 2025
2025:BHC-AUG:12402
FA-4380-2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 4380 OF 2017
United India Insurance Company Ltd.
Through its Branch Manager, Dayawan Complex,
Station Road, Parbhani,
Through its Authorized Signatory / Branch Manager,
Divisional Office, New Osmanpura,
Aurangabad. ... Appellant
[Orig. Respondent No.2]
VERSUS
1. Soniya W/o. Maroti Aghav,
Age: 26 years, Occu: Household,
2. Navnath S/o. Maroti Aghav,
Age: 7 years, Occu: Education,
U/G of mother i.e. petitioner no.1 Soniya Aghav
3. Khanderao S/o. Kishanrao Aghav,
Age: 52 years, Occu: Agriculture,
4. Muktabai W/o. Khanderao Aghav,
Age: 49 years, Occu: Household,
5. Kasabai W/o. Kishanrao Aghav,
Age: 73 years, Occu: Nil,
[Amendment carried out as per Hon'ble
Courts order dt. 5/07/2024 and 11/10/2024]
All R/o: Belkheda, Taluka Jintur,
District Parbhani,
6. Laxman S/o. Shendfad Ukharde,
Age: Major, Occu. Business,
R/o. Tembhurni, Taluka, Jafrabad,
District Jalna. ... Respondents
[Res. Nos.1 to 5 - Orig. Claimants
Res. No. 6 - Orig. Res. No.1]
.....
Mr. Suraj R. Bagal, Advocate for Appellant - Insurance Company,
Mr. S. S. Thombre, Advocate for Respondent Nos.1 to 4,
Mr. Abhishek M. Hajare, Advocate for Respondent No.6.
.....
1
FA-4380-2017.odt
CORAM : NEERAJ P. DHOTE, J.
Reserved On : 08.04.2025
Pronounced On : 29.04.2025
JUDGMENT :
1. This is the First Appeal preferred under Section 173 of
the Motor Vehicles Act, 1988 [hereinafter referred to as the 'M.V.
Act'] by the Appellant - Insurance Company against the Judgment
and Order / Award dated 28/12/2015, passed by the learned Motor
Accident Claims Tribunal, Parbhani [hereinafter referred to as the
'learned Tribunal'], in Motor Accident Claim Petition No.338/2012
[hereinafter referred to as the 'MACP'], awarding the
compensation of Rs.1,01,47,500/- [One Crore One Lakh Forty Seven
Thousand Five Hundred Only] with interest @ 7.5 % per annum
from the date of MACP till realization of the compensation amount
against the Insurance Company and the Owner of motor vehicle.
2. The facts giving rise to the present Appeal are as under :-
[a] The Claimants filed the above referred MACP
contending that, they were Widow, Son, Mother, Father and
Grandmother, respectively of Maroti Khanderao Aghav
[hereinafter referred to as the 'Deceased']. They were resident of
Belkheda, Taluka Jintur, District Parbhani. On 28/05/2012 around
08.:00 p.m., when the Deceased was returning to the village from
Jintur on a motorcycle bearing No.MH-22-L-8010 and came on
Jintur - Jalna road, near L.I.C Office, Jintur, a Tempo bearing
No.MH-04-BG-3572, which was coming from the opposite direction
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in a high speed and in rash and negligent manner, suddenly
crossed the road and came on wrong side and gave dash to the
motorcycle of the Deceased. The Deceased suffered severe injuries
and became unconscious. The Deceased was shifted to the
Hospital, however, he succumbed to the injuries. The Postmortem
was done. The Report was lodged by the Brother [Govind Aghav]
of Deceased with the Jintur Police Station against the Driver of the
said Tempo and Crime No.90/2012 came to be registered for the
offence punishable under Sections 304 [A], 279 and 338 of the
Indian Penal Code, 1860 [hereinafter referred to as 'I.P.C.'] .
[b] The Claimants were dependents on the Deceased. The
Deceased was working as Assistant Teacher in Primary Ashram
School at Wazar [Bk.], Taluka Jintur, District Parbhani on monthly
salary of Rs.26,217/-, after deduction of Rs.200/- towards the
Professional Tax. The Deceased was having the Income by working
as an Agent of Life Insurance Corporation [hereinafter referred to
as 'L.I.C.'] and used to also cultivate the agricultural land and earn
Rs.9,42,900/- per year. The Deceased was 25 years old at the time
of Accidental death and had bright future. They were entitled to
the total compensation of Rs.1,29,44,150/- from the Owner and
Insurer of the said Tempo, jointly and severally.
[c] The MACP was resisted by the Owner and Insurer of the
said Tempo by filing their Written Statement at Exhibits - 18 and
19, respectively. They denied that, the motor vehicular Accident
was due to rash and negligent driving of the said Tempo. The
Deceased had contributed to the Accident. According to the said
Tempo Owner, the said Tempo was insured with the Insurance
Company at the time of Accident and, therefore, the Insurance
Company was liable to pay the compensation. The Insurance
Company denied that, the said Tempo was insured with the
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Insurance Company. Both the Respondents in the MACP, prayed
for dismissal of the MACP.
[d] On the basis of pleadings of the parties, the learned
Tribunal framed the following issues below Exhibit - 21 :-
Issues
"1- Whether the claimants have proved that Maroti S/o
Khanderao Aghav died in the vehicular Accident between
motorcycle bearing registration No. MH-22/L-8010 and
tempo bearing No. MH-04/BG-3572 due to rash and
negligent driving of tempo driver ?
2- Whether the respondent No.2 proves that the driver of
tempo was not holding valid and effective driving licence
and committed breach of terms and conditions of insurance
policy ?
3- Whether the claimants are entitled to compensation
amount? If yes, from whom and to what extent ?"
[e] In support of the MACP, Claimant No.1 i.e. Widow
of Deceased, examined herself by filing Evidence Affidavit at
Exhibit - 24. The Claimants examined Witness No.2 below Exhibit
- 25 to prove the Income from salary of the Deceased. The
Claimants examined Witness No.3 below Exhibit - 44 as the
eyewitness to the Accident. All the witnesses examined by the
Claimants were cross-examined on behalf of the Owner and Insurer
of the said Tempo. The Claimants brought on record the Police
Papers, Driving Licence of the Tempo Driver, Registration
Certificate, Certificate of Insurance of the said Tempo, Licence
issued by the Insurance Regulatory and Development Authority in
the name of Deceased as the Insurance Agent, the copies of
Acknowledgment of Income Tax Returns [For short 'ITR
Acknowledgment'] of the Deceased and the Salary Certificate of the
Deceased. The endorsement on the lists of documents, filed by the
Claimants at Exhibits - 4, 27 and 46 shows that, except the Salary
Certificate of the Deceased and receipts issued by the Fruit
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Merchants, all the documents brought on record by the Claimants
were admitted by the Insurance Company of the said Tempo. The
Owner of the said Tempo admitted the documents mentioned below
Exhibit - 4. No evidence was led by the Owner and Insurer of the
said Tempo.
3. It is submitted by the learned Advocate for the
Appellant - pInsurance Company that, the Accident took place due
to contributory negligence of the Deceased. The Driver of the said
Tempo was not joined as the party Respondent in the MACP. The
Driver of the said Tempo was not examined to prove the findings of
negligence, which is must. The Income of Deceased shown by the
Claimants was disputed. In the First Information Report [For
short 'F.I.R.'], it was mentioned that, the Deceased ran a JCB Office
and the aspect of Job of Deceased as Teacher was introduced later
to exaggerate the claim. The Salary Certificate format was
prepared to claim high compensation. No Appointment Order and
Approval Order in respect of the Employment of Deceased were
brought on record. Being the Teacher, the Salary must have been
paid through Bank Account and no Bank Account details were
brought on record. Hence, the Salary Certificate be discarded. The
deduction should have been 1/3rd from the Income of Deceased, the
addition of 50% towards Future Income was incorrect, as there was
no proof of permanent Employment of the Deceased. There was no
proof of agricultural Income. 30% deduction should have been
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made from the Income of Deceased. Only the Income shown in the
I.T.Rs should have been considered. The Father of Deceased was
an agriculturist, therefore, there was no question of Deceased
cultivating the land. In support of his contentions, he relied on the
Judgments, which would be considered in the later part of this
Judgment. Considering the evidence available on record, the
Appeal of Insurance Company be allowed.
4. It is submitted by the learned Advocate for the
Claimants that, there was sufficient proof on record in support of
the MACP. The Involvement of the said Tempo in the Accident was
proved by examining the eyewitness. The Accident was due to the
negligence of the Driver of the said Tempo. The Income of Deceased
was sufficiently proved. To show the Income from Salary, the
Headmaster of the School was examined. The Deceased was also
having Income by working as the L.I.C Agent. The 7/12 extracts
brought on record show the name of Deceased. The receipts on
record shows the Income from the agricultural land. The ITR
Acknowledgment shows the total Income of the Deceased. The
learned Tribunal has rightly considered the evidence available on
record and allowed the MACP. Hence, the Appeal be dismissed.
5. The learned Advocate for Respondent No.6 i.e. Owner of
the said Tempo, advanced no submissions.
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6. After hearing both the sides, the following points arise
for my determination in this Appeal ;
[i] Whether non-impleadment of the Driver of the said Tempo as
the party Respondent to the MACP would be fatal to the
Claimants and whether the impugned Judgment and Award
vitiates ;
[ii] Whether there was contributory negligence on the part of
Deceased in the motor vehicular Accident ;
[iii] Whether the compensation determined by the learned
Tribunal was proper ;
7. As regards Point No.[i] is concerned, it is the contention
of the learned Advocate the Appellant - Insurance Company that,
the Driver of the said Tempo, who was the necessary party, was not
impleaded as the party in the MACP. In support of his contention,
he relied on the following Judgments of this Court :-
[a] United India Insurance Co. Ltd. Vs. Ratna Popat Patil and
Another ; 2011 [03] Mh.L.J 582;
[b] New India Assurance Company Ltd., Aurangabad Vs. Suman
Bhaskar Pawar and Others ; 2010 [2] Mh.L.J 177;
7.1 Both the Judgments are in the Appeals filed
against the Judgments and Awards passed by the learned Tribunal
under the M.V. Act. In first Judgment, one of the question was
whether after compliance of Rule of 260 of the Maharashtra Motor
Vehicles Rules, 1989 [hereinafter referred to as the 'Rules of
1989'], will it be necessary to examine the Driver of the offending
vehicle as a witness and it is observed that, the answer lies in the
wish of the parties and the parties to decide in the facts and
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circumstance of the case in that respect whether to examine the
Driver as a witness to prove negligence or to prove breach of policy
or any defect under Section 149 [2] of the said Act, since it would
be a question of burden of proof . This Court in the said Judgment
observed that, the Driver of the offending vehicle was not
impleaded as the party to the Claim Petition and the adverse
findings in respect of his negligence was recorded behind his back
and in his absence by the Tribunal by the impugned Judgment and
Award, and therefore, same would be vitiated and, therefore, on the
said ground itself, the Appeal was partly allowed and the matter
was remanded back to the Tribunal to follow the mandate of the
above referred Rule.
7.2 In second Judgment, one of the contention raised
in the Appeal by the Insurance Company was that, the Driver of the
offending vehicle was not joined as the party to the Claim Petition
and in his absence, the Tribunal could not have recorded the
finding of negligence on the part of the said Driver and the Claim
Petition was therefore liable to be dismissed on this sole ground.
This Court, after considering the Judgments cited by the parties,
recorded the findings as :-
"(i) Meena Varial's Case decided by the Apex Court does not lay
down a law that driver of offending vehicle is necessary
party in all cases and in his absence, the Judgment and
Award shall vitiate.
FA-4380-2017.odt
(ii) In an unreported Judgment of this Court in First Appeal
No.3839/2008 (National Insurance Company Ltd., V/s
Vachista) decided on 14.09.2009, it has not been laid down
that driver of the offending vehicle was not necessary
party, in case of claim petition under Motor Vehicles Act.
(iii) In Machindranath's case the contention that, the driver of
the offending vehicle was necessary party in a claim
petition and in his absence the entire judgment and award
would vitiate, has been rejected.
(iv) In view of the Judgment of the Apex Court in
Machindranath's case, the driver of the offending vehicle
would be a proper party or he should at least be examined,
as witness on the allegations of rash and negligent driving
on his part and without his involvement, no adverse finding
on negligence can be made against him and if any such
finding is recorded, same would vitiate the proceedings.
(v) No decree or award can be made personally against the
driver of the offending vehicle unless he is involved in a
claim petition either as party or at least as witness.
(vi) If there are specific rules involving the driver in a claim
petition in particular manner, then the matter would be
governed by the said rules and its compliance will have to
be shown.
(vii) The requirement of Rule 260(1) and (2) of the
Maharashtra Motor Vehicles Rules, 1989 is mandatory and
the Tribunal shall send to the owner or driver of the vehicle
or both, involved in the Accident and its insurer, a copy of
the application and annexures thereto, together with notice
of the date on which the parties shall enter their
appearance.
(viii) The service of notice shall be effected on owner, driver and
insurer of the offending vehicle in question, as the case may
be, by way of personal service, through the bailiff or by
Registered Post A/D or both, as the Tribunal may deem fit
and proper.
(ix) If the driver or owner or insurer of the offending vehicle
does not respond to the notice so issued and duly served,
the Tribunal may proceed exparte and pass an award
against any of them or all of them and the proceedings shall
not vitiate for not calling a driver and examining him as
witness."
8. Coming to the case on hand, on perusal of the Written
Statement filed by the Appellant - Insurance Company goes to show
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that, there are no pleadings regarding non-joinder of the Driver of
the said Tempo. In absence of pleadings regarding non-joinder of
Driver in the MACP, there was no occasion for the learned Tribunal
to frame the issue in respect of non-joinder of Driver of the said
Tempo. It is for the first time in the Appeal, the issue of non-joinder
of the Driver as party Respondent in the MACP has been raised. In
this regard, profitable reference can be made to the decision of this
Court in National Insurance Company Limited Vs. Ashok Rajaram
Bambulkar and Others ; 2022 ACJ 2188, which was an Appeal
under the M.V. Act from the decision of the MACP for compensation
in respect of death from the motor vehicular Accident, wherein,
one of the point for consideration was whether non-impleadment of
the Driver of the offending vehicle or absence of notice to the
Driver under Rule 260 of the Rules of 1989, vitiated the
proceedings before the Tribunal. This Court elaborately considered
the said issue in the light of the above referred Judgment in New
India Assurance Company Ltd., Aurangabad Vs. Suman Bhaskar
Pawar and Others [Supra], and the Judgments in Machindranath
Kernath Kasar Vs. D. S. Mylarappa and Others ; AIR 2008 SCC
2545 and New India Insurance Company Limited Vs. Sitaram
Devidayal Jaiswal and Others ; [2012] ACJ 2647, and rejected the
contention of the Appellants therein that, non-impleadment of the
Driver of the offending car or absence of notice to the Driver, under
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Rule 260 of the Rules of 1989 vitiated the proceedings before the
Tribunal. The relevant Paragraphs for the said Judgment of this
Court are reproduced below :-
17. The nature of the proceeding for compensation for death or injury,
caused in a motor vehicle Accident, and the liability of the owner and driver of
the offending vehicle came up for consideration before the Supreme Court in
the case of Machindranath Kernath Kasar vs. D. S. Mylarappa and Others ;
[2008] 13 Supreme Court Cases 198. After adverting to the object of the
enactment of the MV Act, and the various provisions of the Act, Supreme Court
expounded the legal position in the following words:
"28. When a damage is caused by an act of negligence on the part of
a person, the said person is primarily held to be liable for payment of
damages. The owner of the vehicle would be liable as he has permitted
the use thereof. To that effect only under the Motor Vehicles Act, both
driver and owner would be jointly liable. This, however, would not
mean that they are joint tortfeasers in the strict sense of the term.
There exists a distinction between the liability of the owner of a
vehicle which was used in commission of the Accident and that of the
driver for whose negligence the Accident was caused, but the same
would not mean that the owner and the driver are joint tortfeasers in
the sense as it is ordinarily understood.
29. The Karnataka Rules, therefore, were required to be construed
having regard to the appropriate interpretative principles applicable
thereto. Common law principles were therefor required to be kept in
mind. In this case, we are not required to lay down a law that even in
absence of any rule, impleadment of the driver would be imperative.
30. It is however, of some interest to note the provisions of Section
168 of the Motor Vehicles Act. In terms of this aforementioned
provision, the Tribunal is mandatorily required to specify the amount
which shall be paid by the owner or driver of the vehicle involved in
the Accident or by or any of them. As it is imperative on the part of the
Tribunal to specify the amount payable inter alia by the driver of the
vehicle, a fortiori he should be impleaded as a party in the proceeding.
He may not, however, be a necessary party in the sense that in his
absence, the entire proceeding shall not be vitiated as the owner of the
vehicle was a party in his capacity as a joint tortfeaser.
31. Appellant not only made averments as regards absence of
negligence on his part; he made specific allegations against the driver
of the truck. The driver of the truck alone would have been competent
to depose. In a given case, like the present one, the owner of the truck
may not defend the action at all keeping in view the fact that the
vehicle was an insured one. There are some decisions of this Court,
where even a plea has been raised that the insured company would not
be an aggrieved person in such an extent although such a contention
has been negatived by this Court.
FA-4380-2017.odt
32. The principles of natural justice demand that a person must be
given an opportunity to defend his action. (emphasis supplied)
18. The necessity of impleading the driver as a party to the proceeding is
indicated in the aforesaid pronouncement. However, the Supreme Court has
categorically observed, in clear and explicit terms, that the driver of the
offending vehicle was not a necessary party in a claim petition so as to entail the
consequence of vitiating the judgment and award, where a driver has not been
impleaded as party respondent. The import of the aforesaid judgment of the
Supreme Court is that, in a given case, the driver of the offending vehicle may
be a proper party or, in the least, he ought to be examined as a witness before an
adverse finding on negligence can be made against him.
19. In the case of Sitaram Jaiswal (supra) this Court adverted to the aforesaid
pronouncement in the case of Machindranath Kasar (supra) and the judgment of
this Court in the case of Suman Pawar (supra) and also noted the text of Rule
260 of the Rules, 1989 extracted above. Thereafter, the legal position was culled
out in paragraph Nos. 10 and 11 as under :
10. Thus, the law is that the claimant while filing a claim
application is under no obligation to ensure that all necessary and
proper parties are impleaded as opponents to the claim petition.
Considering the nature of the proceedings, the responsibility is of the
Tribunal to ensure that the notices are issued to all the necessary
parties. This power can be exercised by the Tribunal at any stage of the
proceedings.
11. It is a matter of common knowledge that while defending a
claim petition, diverse defences are raised fa-1142-2019.doc in the
written statements by the owners and especially the Insurers. However,
in many cases, we find that all the defences pleaded are not pressed
into service at the time of final hearing. Whenever a contention is
pressed into service by any of the opponents to the claim petition or the
persons to whom the notice of the claim petition is issued under Rule
260 that the driver of a vehicle is a necessary party, the Tribunal is
under an obligation to examine the said contention and if found correct,
issue a notice to the driver. It is obvious that if such contention is not
pressed by the party to whom the notice is served, the said party cannot
be allowed to raise the said contention for the first time in the appeal. A
claimant cannot be allowed to suffer as he is under no obligation to
implead any party as the opponent to the claim petition. In such a case,
if the driver is aggrieved by the adverse finding recorded against him
by the award of the Tribunal, he has a remedy of preferring an appeal
against the award after obtaining a leave of the Appellate Court. If
neither the owner nor the Insurer raises a contention before the
Tribunal regarding the non-joinder of the driver, it is not open for them
to contend in the appeal that the driver was a necessary party and that
the award is vitiated because of non-joinder of the driver. The
observations made by this Court in the case of New India Asurance
Company Ltd. Vs. Suman Bhaskar Pawar and others, 2010 (2) Mh L J
177 in clause (iv) of paragraph No.16 will apply only when specific
defence of non-joinder of the driver is pressed into service either by the
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owner or by the Insurer. If they fail to raise the said contention, the
same is not available for them in the appeal. Needless to say that the
same will remain available to the driver who is not made party. As the
law is that the responsibility of issuing the notice to the proper parties
is entrusted to the Tribunal, if a contention regarding non-joinder is not
raised, the claimant cannot be allowed to suffer on the ground that the
Tribunal has failed to perform its duty. Even if a contention regarding
non-joinder of driver is raised at the time of final hearing of a claim
petition, if the said condition is correct, the Tribunal can issue notice to
the driver at any stage. (emphasis supplied)
20. This Court has held in no uncertain terms that a claimant is under no
obligation to ensure that necessary and proper parties are impleaded as opponent
to the petition. Conversely, it is the obligation of the Tribunal to ensure that
notice is issued to all the necessary parties. The Tribunal is empowered to do so
at any stage of the proceeding. However, a claimant cannot be made to suffer the
consequences of non-impleadment as the claimant is under no obligation to
implead any party as the opponent to the claim petition. This Court has gone a
step further to hold that even where the ground of non-joinder or no notice to the
driver is raised in the written statement, the owner or the insurer cannot be
permitted to draw mileage therefrom if the said ground was not effectively
pursued."
9. In view of the above settled legal positions, the non-
impleadment of the Driver of the aforesaid Tempo in the MACP
preferred by the Claimants will not be fatal for the Claimants and
the impugned Judgment and Award will not stand vitiated on that
sole ground and, therefore, the first contention of the learned
Advocate for the Appellant regarding non-impleadment of the
Driver of the Tempo Driver melts down.
10. As regards the second contention of the learned
Advocate for the Appellant in respect of contributory negligence by
the Deceased is concerned, it would be necessary to scrutinize the
evidence available on record. The Claimants claimed the
compensation on account of death of their family members i..e
Maroti Khanderao Aghav [Deceased] in the motor vehicular
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Accident due to rash and negligent driving of the said Tempo by its
Driver. Claimant No.1, who was the Widow of Deceased, though
examined herself as the Witness in support of the MACP candidly
admitted in her cross-examination that, she was not the witness to
the Accident. The Claimants examined Witness No.3 by name
Laxman Babarao Budhawant as the eyewitness to the Accident.
His evidence shows that, on 28/05/2012, when he had gone to an
Automobile Shop situated at Jalna Road, Jintur for purchasing the
battery around 7:30 p.m. and when he was present there, he
witnessed the Accident between the said Tempo and the motorcycle
of Deceased. According to him, the said Tempo was on wrong side
of the road and was being driven in rash and negligent manner and
gave dash to the motorcycle of Deceased, due to which, the
Deceased suffered multiple injuries and Deceased was shifted to
the Hospital. His cross-examination shows that, the Deceased was
his relative and his statement was recorded by the Police after two
[2] days, as he was under grief. His evidence finds corroboration
by his previous statement recorded by the Police on 30/05/2012 in
respect of the motor vehicular Accident.
10.1. Even if, for the sake of argument, the testimony of
said eyewitness is discarded, there is no dispute on the aspect that,
the Crime was registered against the Driver of the said Tempo with
the Jintur Police Station in respect of the said Accident for rash
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and negligent driving of the vehicle. The Police Papers comprises
of the Crime Details Form, Inquest, Statements of Witnesses,
Postmortem Report etc. As noted above, all the Police Papers are
admitted by the Appellant - Insurance Company and, therefore, it
is clear that, the rash and negligent driving of the said Tempo,
which resulted into the Accident and death of Deceased, is not in
dispute. There is nothing even remotely to suggest that, the said
Accident was due to contributory negligence of the Deceased.
There can be no dispute on the aspect that, while deciding the
MACP under the M.V. Act, the Police Papers can be looked into by
the learned Tribunal /Court to determine the issue of negligence in
the MACP. In these facts and circumstances of the case, no fault
can be found with the answering of Issue No.1 in respect of
negligent driving of the said Tempo and death of Deceased due to
the said Accident, in the affirmative by the learned Tribunal.
11. As regards the third contention of the learned Advocate
for the Appellant - Insurance Company in respect of the Income of
Deceased, considered by the learned Tribunal, according to the
Claimants, the Deceased was in the services as Assistant Teacher
and used to receive monthly Salary of Rs.26,417/- per month and
was earning Rs.1,14,000/- per year by doing the work of L.I.C.
Agent and further was earning Rs.2,00,000/- per annum from the
agricultural land and total Income of Deceased per year was more
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than [9] Nine Lakhs.
11.1 As regards the Income from the Salary is
concerned, the Claimants examined Witness No.2 by name Gajanan
Vithalrao Ghete below Exhibit - 25. His evidence shows that, he
was a Headmaster of Primary Ashram School at Wazar [Bk] Taluka
Jintur, District Parbhani and knew the Deceased. The Deceased
was Arts Graduate and having B.Ed Degree and was in the services
of the said School as Assistant Teacher and used to receive monthly
Salary of Rs.26,217/- after deduction of Rs.200/- towards the
Professional Tax. A Salary Certificate is brought on record in his
evidence. Though in his cross-examination, it has come that, he
brought the Muster Roll and the Original Record of the School
showing the Salary of Deceased, except the Salary Certificate at
Exhibit - 42, no document is brought on record in respect of
service of the Deceased as the Assistant Teacher in the said School.
Except the oral version of the said witness and Salary Certificate,
there is no evidence to show the Income of Deceased from the
Salary. There is no evidence as to when the Deceased was
appointed as the Assistant Teacher and in what manner. The
Appointment Order and Approval Order of his appointment are not
available on record. Perusal of the said Salary Certificate shows
that, it was a format and blank spaces were filled having a stamp of
the Headmaster of the Primary Ashram School, Wazar, Taluka
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Jintur, District Parbhani. The said format appears to have been a
ready made format from Hindustan Stores S. H. Road, Aurangabad,
as is clear from the extreme upper right side of the Salary
Certificate. It is strange, as to how the Salary Certificate of the
School is having the stamp of the said store. Even the year shown
below the date 10th June as appointment date, is not clear and
appears to have been written in such a manner so as to keep
oneself guessing. The Salary Certificate is reproduced below :-
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11.2 In absence of any other proof in respect of the
service and Income from the Salary of the Deceased, it is not
possible to accept the evidence of this Witness No.2 and the said
Salary Certificate. There is one more reason to discard the said
evidence in respect of Income from the Salary and that is the First
Information Report [FIR] in respect of the said Accident, which is
lodged by non-other than the Brother of Deceased. In his Report to
the Police, he stated that, the Deceased was running the JCB Office
and the Accident took place when the Deceased was going on the
motorcycle towards his JCB Office. There is no reference in the
said Report that the Deceased was working as the Teacher. The
only inference which can be drawn from the evidence available on
record is that, the evidence in respect of the Employment and
Income from Salary of the Deceased is neither concrete nor
convincing and the same is, therefore, liable to be discarded and
kept aside out of consideration for computing the compensation.
12. The other evidence in respect of Income of Deceased, are
the copy of Licence issued by the Insurance Regulatory and
Development Authority in the name of Deceased, as the Insurance
Agent, the copy of Form No.16-A issued by the L.I.C., Nanded
Division Office and Acknowledgments of I.T.R. The learned
Advocate for the Appellant - Insurance Company relied on the
Judgments in Malarvizhi and Ors. Vs. United India Insurance
FA-4380-2017.odt
Company Limited and Anr. ; AIR 2020 SC 90, and in Shyamwati
Sharma and Ors. Vs. Karam Singh and Ors. ; 2010 AIR SCW 4391,
on the point that, wherever there are ITRs, the determination of
annual Income must proceed on the basis of ITRs and the decision
in the First Appeal towards deduction of 30% amount towards
Income Tax was not interfered with. The Acknowledgments of ITRs
at Exhibits - 38 to 40, are in the name of Deceased for the
Assessment Years 2009 - 2010, 2010 - 2011 and 2012 - 2013
showing the total Income for the said years as Rs.35,315/-,
1,07,920/- and 1,13,998/-, respectively. The said three [3]
Acknowledgments of the ITR show that, there was increase in the
annual Income of the Deceased. Though the deduction towards Tax
deducted at source [TDS] is shown in all the said three [3]
acknowledgments as Rs.3,638/-, Rs.11,116/- and 11,400/-, the said
Tax is shown to have been refunded. The reason may be that, the
Income was not taxable. The last I.T.R Acknowledgment bears the
stamp of the concerned Office of the Income Tax Department as
18/05/2012, which date is admittedly prior to the death of
Deceased. This shows that, the Annual Income of the Deceased of
the previous year before his death was Rs.1,13,998/- and this will
have to be considered as Income of Deceased for computing the
compensation. It is also the highest Income per annum if seen
from all the I.T.R Acknowledgment. As observed earlier, the
FA-4380-2017.odt
documents, which are admitted by the Appellant - Insurance
Company, includes these acknowledgments of ITRs.
13. As regards the Income of Deceased from the agricultural
operations is concerned, the Widow of Deceased, who was
examined as Witness No.1, in her cross-examination admitted that,
she had not produced on record the documents showing the
agricultural Income. There are receipts brought on record by the
Claimants issued by the Fruit Merchants showing supply of Water
Melon and Orange. Perusal of the same, shows that, the first name
of Deceased appears to be inserted subsequently, except in the
receipts towards supply of Oranges. The said receipts, as is clear
from Exhibit - 46, the list of documents, were not admitted by the
Appellant - Insurance Company. True it is that, the 7/12 extracts
are brought on record by the Claimants. The 7/12 extracts
available on record show that, apart from the name of Deceased,
there are other names also. This would only show that, the
Deceased was an agriculturist and not his Income. There is one
receipt of Maharashtra Cotton Growers Society showing supply of
Cotton by the Deceased and an amount of Rs.35,000/- was remitted
through Bank. This shows that, the Deceased must be getting some
Income from Agriculture. In absence of any other document to
show the Income from the agricultural operations, it would not be
possible to include an imaginery figure as the agricultural Income
FA-4380-2017.odt
of the Deceased. It is needless to state that, the Income from the
agriculture alone is exempted from Tax. As the copies of I.T.Rs are
not available on record, it is not possible to know whether the
Income from agriculture was shown in the I.T.R with the Income
from work as the L.I.C. Agent and the Income shown therein was
inclusive of Income from agriculture. Thus, in absence of any
documentary evidence, there is no question of considering an
imaginery amount as the Income of the Deceased from the
agricultural, in addition to the Income shown in the
acknowledgments of the ITRs. On the basis of evidence on record,
the per year Income of Deceased is considered as Rs.1,13,998/-
which is rounded off to Rs.1,14,000/-.
14. The other aspect is in respect of addition of Future
Income. The learned Tribunal in the impugned Judgment has
considered 50% towards addition in Future Prospects. When the
evidence that, the Deceased was working as the Teacher is
discarded and in absence of evidence that Deceased had a
permannent Job, and was aged 25 years, the addition will have to
be considered @ 40% of the established Income i.e. last annual
Income shown in the acknowledgment of ITRs, being self employed,
as per the Judgment in the case of National Insurance Company
Limited Vs. Pranay Sethi and Ors. [2017] 16 SCC 680.
FA-4380-2017.odt
15. As regards the deduction towards Personal and Living
Expenses is concerned, in Paragraph No.14 of the impugned
Judgment, it seen that, the learned Tribunal deducted under the
said head 1/4th from the Income of Deceased, whereas, in
Paragraph No.16 of the impugned Judgment, the learned Tribunal
held the Claimant No.5 - Kasabai not entitle for any compensation
being the Grandmother of Deceased and also, Claimant No.3 -
Khanderao, the Father of Deceased, who was an agriculturist, not
entitle for the compensation by observing that, he cannot be said to
be dependent on the Deceased. The learned Tribunal considered
the Widow, Son and Mother of Deceased entitled for the
compensation. On the basis of these observations, the contention of
the learned Advocate for the Appellant - Insurance Company that,
the deduction towards Personal and Living Expenses of the
Deceased should have been 1/3rd, is well founded.
16. The learned Advocate for the Appellant - Insurance
Company has cited the Judgment in K. Suresh Vs. New India
Aussurance Company Limited and Anr. ; [2012] 12 SCC 274, on the
aspect that, the amount of compensation should be Just and Proper
and should not be a bonanza. In view of the above discussion based
on the evidence available on record, the amount of compensation
arrived at by the learned Tribunal needs interference and calls for
re-calculated as under :-
FA-4380-2017.odt
Nos. Particulars Amount
A Total income per year 1,14,000/-
B 40% addition towards Future 1,14,000 + 45,600 1,59,600/-
Prospects
C 1/3rd deduction towards Personal 1,59,600 ÷ 3 53,200/-
and Living Expenses
1,59,600 - 53,200 1,06,400/-
D After applying Multiplier of 18 1,06,400 x 18 19,15,200/-
E Add : Funeral Expenses 15,000/-
F Add : Loss of Estate 15,000/-
G Add: Rs. 40,000/- each towards 40,000 x 4 1,60,000/-
Spousal, Filial and Parental
Consortium
H Total Compensation payable to Claimants 21,05,200/-
17. In light of the above discussion, the Appeal deserves to
be partly allowed with the following order :-
ORDER
[a] The Appeal is partly allowed.
[b] The amount of total compensation arrived at by the learned
Tribunal in the impugned Judgment is modified as
Rs.21,05,200/- [Twenty One Lakhs Five Thousand Two
Hundred Only]. The said amount of compensation be
apportioned between the Widow, Son and the Mother of the
Deceased as :-
1. Widow - 12,00,000/-
2. Son - 8,00,000/-
3. Mother - 1,05,200/-
[c] The amount of Son be kept in Fixed Deposit, if he has not
attained the majority. If the Son has attained majority,
the amount of compensation be disbursed to the said three
FA-4380-2017.odt
[3] Claimants i.e. Widow, Son and Mother along with
interest and costs of MACP.
[d] Appeal stands disposed off accordingly.
[NEERAJ P. DHOTE, J.]
Sameer/April-2025
Signed by: Md. Sameer Q.
Designation: PA To Honourable Judge
