Bombay High Court
Parvatiben Rajeshbhai Radiya And Ors vs Babasaheb S/O. Sahebrao More And Ors on 30 April, 2025
2025:BHC-AS:21960
P.H. Jayani 10 FA1316.2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1316 OF 2024
1) Parvatiben Rajeshbhai Radiya
Aged about 35 years
2) Yogesh Rajeshbhai Radiya
Aged about 21 years
3) Nitixaben Rajeshbhai Radiya (Minor)
Aged about 16 years
4) Ajaybhai Rajeshbhai Radiya (Minor)
Aged about 11 years
Applicant No.1 for self and natural guardian
of minor Applicants No.3 and 4 as next friend
All R/o. 11, Khadkipada, Kilvani, Morkhal,
Randha, Dadra & Nagar Haveli. ..... Appellants
Vs.
1) Babasaheb S.o. Sahebrao More
R/o. Baliram Govind Amnare,
Pradipbhai Solanki Chawl,
Room No.2, Vad Faliya, Naroli, Silvassa,
Dadra & Nagar Haveli - 396230.
2) Baliram Govind Amnare
R/o. Pradipbhai Solanki Chawl,
Room No.2, Vad Faliya, Naroli, Silvassa,
Dadra & Nagar Haveli - 396230
3) The Divisional Manager,
Cholamandalam MS General Ins. Co. Ltd.,
Plot No.209, 2nd floor, Girnar Khushboo Plaza,
2nd Phase, Shop No.35, GIDC Vapi,
Tal. Vapi, Dist. Valsad, Gujarat State ..... Respondents
Mr. T.J. Mendon for the Appellants.
Mr. Sarthak S. Diwan for Respondent No.3.
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P.H. Jayani 10 FA1316.2024.doc
CORAM : SHYAM C. CHANDAK, J.
DATED : 30th APRIL, 2025.
JUDGMENT :
-
. Present Appeal under Section 173 of the Motor Vehicles
Act, 1998 ("the Act") is directed against the Judgment and Award
dated 15/06/2024, in M.A.C.P. No.44 of 2021 ("claim"), passed by the
Motor Accident Claims Tribunal, Dadra & Nagar Haveli, at Silvassa
("Tribunal") thereby said claim filed by the Appellants ("Claimant")
under Section 166 of the Act was partly allowed and Respondent
Nos.1 to three held jointly and severally liable to pay the claimants a
sum of Rs.6,44,120/- as compensation along with interest at the rate
of 6% per annum from the date of the claim/petition till realisation of
the amount.
2) Mr. Mendon, the learned Advocate for the Appellants, at
the outset, stated that the Appellants have challenged the said
Judgment and Award on the premise that no compensation has been
awarded towards the future prospects, by the Tribunal. Mr. Diwan,
the learned Advocate for Respondent No.3 stated that, he is
defending the Appeal on the ground of negligence. Respondent Nos.1
and 2, who were the driver and owner of the offending vehicle,
appeared before the Tribunal, but did not file their Written Statement
P.H. Jayani 10 FA1316.2024.doc
nor they have filed a separate Appeal or a Cross-objection challenging
the said Judgment and Award or the finding of 'rash and negligent'
driving recorded against Respondent No.1-driver. Therefore, the
notice to Respondent Nos.1 and 2 has been dispensed with. The
Appellants are economically poor. In this background, both the
learned Advocate submitted that the Appeal may be finally heard for
which compilation of documents is submitted by Mr. Mendon.
3) Hence, heard Mr. Mendon, the learned Advocate for the
Appellants and Mr. Diwan, the learned Advocate for Respondent
No.3-Insurance Company. Perused the record.
4) The Appellants filed the said claim wherein they averred
that on 02/02/2021, at about 01:00 a.m., opposite farm of Adit
Noons, late Shri. Rajeshbhai Soniabhai Radiya was walking on
Kilvani to Morkhal road. At that time, a Tata Motor Tempo bearing
registration No.DD-01-A-9386 ("tempo") came there driven at a high
speed, rashly and in a negligent manner by Respondent No.1. As a
result, the tempo gave a dash to the deceased. Due to said impact, the
deceased sustained serious injuries and died on the spot.
Consequently, FIR No.24/2021 was registered with Silvassa Police
Station for offences punishable under Sections 279 and 304-A of the
Indian Penal Code and Sections 134, 184 and 177 of the Act, against
Respondent No.1.
P.H. Jayani 10 FA1316.2024.doc
4.1) It was averred that, the deceased was aged 38 years, he
was doing labour work and thereby he was earning Rs.15,000/- per
month. All the Appellants were dependent on the income of the
deceased. Therefore, the Appellants prayed to award a sum of
Rs.30,00,000/- along with interest @ 12% p.a.
5) Respondent No.3 filed the Written Statement (Exh.73)
and opposed the claim. Respondent No.3 denied the accident
occurred due to rash and negligent driving of the tempo. It was
denied that the deceased was working and earning as above. It was
contended that at the time of accident, the deceased was drunk and
he was crossing the road, but all of a sudden, the deceased came in
front of the tempo and therefore the accident occurred. In this
background, Respondent No.3 prayed to dismiss the claim with costs.
6) Hence, the Tribunal framed the issues. To prove the claim,
Appellant No.1 adduced her evidence on affidavit (AW1/18) and relied
upon various documents in evidence. In rebuttal, Respondent No.3
examined OW-1 Rameshbhai Ramubhai Dadhav, the then Head
Constable, who carried out the investigation in the crime.
7) On appreciating the oral and the documentary evidence
on record, the Tribunal held that the accident occurred due to rash
and negligent driving of the tempo. The deceased was aged 38 years
and his notional monthly income was Rs.9,735/- per month as per the
P.H. Jayani 10 FA1316.2024.doc
Minimum Wages Act prevailing at the time of accident. The
Appellants were dependent on the income of the deceased. Therefore,
the Tribunal awarded the compensation with interest, as stated
above.
8) Mr. Mendon, the learned Advocate submitted that the
Tribunal has rightly held that the accident occurred due to rash and
negligent driving of the tempo. He submitted that the deceased was
doing labour, therefore, the Tribunal did not err in treating his
monthly income at Rs.9,735/-, notionally. However, the Tribunal did
not add the future prospects as per the settled law. He submitted that
the Appellant No.1 had no income, No.2 was was a student, aged 18
years and Nos.3 & 4 are still minor. Thus, the Appellants-claimants
were dependent on the income of the deceased. However, by mistake,
the Tribunal deducted 3/4th of the annual income towards personal
and living expenses of the deceased instead of 1/4th such permissible
deduction. This resulted in awarding inadequate compensation.
9) Mr. Diwan, the learned Advocate for Respondent No.3, on
the other hand, submitted that Appellant No.1 did not witness the
accident. According to him, the evidence of DW1 indicates that as per
statement of Respondent No.1 recorded by DW1 and the conclusion of
the investigation, at the relevant time, the deceased was in drunken
state and he suddenly came in front of the tempo. Consequently, the
P.H. Jayani 10 FA1316.2024.doc
deceased sustained fatal injuries and died. Mr. Diwan, therefore,
submitted that considering the evidence on record, the compensation
awarded is sufficient. As such, there is no merit in the Appeal.
10) AW1 clearly deposed that the accident occurred due to
rash and negligent driving of the tempo. This evidence is supported
with the FIR and the Spot Panchnama. Even though DW1 tried to
impress upon the Tribunal that the accident occurred due to fault of
the deceased, in the cross-examination, he admitted that the FIR was
registered against Respondent No.1, whom he finally chargesheeted.
He admitted that at the time of the accident, the deceased was
standing at the edge of the road, however, he was thrown away by the
tempo. Therefore, the Tribunal has rightly held that the accident
occurred due to rash and negligent driving of the tempo. Said finding
of facts is not challenged by the Respondents filing an Appeal or
Cross-Objection.
11) The deceased was maintaining the family of 5 members
including himself. There is nothing on record indicating that the
Tribunal erred in taking the notional monthly income of the deceased
as Rs.9,735/-, which annually comes to Rs.1,16,820/-. The deceased
was aged 38 years and he was not in permanent employment.
Therefore, in view of the settled law, 40% of the net annual income
should be added towards the future prospects of the deceased.
P.H. Jayani 10 FA1316.2024.doc
Accordingly, the actual annual income of the deceased comes to
Rs.1,63,548/-. Since the dependents were four, 1/4th of the actual
income should be deducted towards the personal and living expenses
of the deceased. On such deduction, the annual loss of the
dependency comes to Rs.1,22,661/-. The applicable multiplier is '15'.
As a result, the Appellants are entitled to receive total Rs.18,39,915/-
for the loss of dependency. Additionally, the claimants are entitled to
get Rs.1,76,000/- towards the loss of the 'spousal' and the 'parental'
consortium, Rs.16,500/- as the 'funeral expenses' and Rs.16,500/- as
the 'loss of estate'. Thus, the Appellants are entitled to get total
compensation of Rs.20,48,915/-. Having had regard to the facts and
circumstances of the case, the interest granted by the Tribunal is on
lower side, which is hereby increased to 7.5% p.a.
12) In view of the infirmities noted above, the impugned
Judgment and Award warranted an interference by this Court to
enhance the compensation and modify the Award, accordingly. Thus,
the Appeal partly succeeds.
13) Hence, following Order is passed :-
(i) Appeal is partly allowed with proportionate costs.
(ii) The impugned Judgment and Award dated
15/06/2024, in M.A.C.P. No.44 of 2021, passed by the
Motor Accident Claims Tribunal, Dadra & Nagar Haveli,
P.H. Jayani 10 FA1316.2024.doc
at Silvassa, is modified.
(iii) The Respondents shall jointly and severally pay a
sum of Rs.20,48,915/- (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) The Respondents are directed to comply with this
Judgment and Order within a period of four months from
today, by depositing the amount in the Tribunal.
(v) On deposit of the amount, the Tribunal shall
immediately inform about the deposit to the Appellants.
(vi) The deposited amount shall be apportioned, paid
and invested as directed by the Tribunal, subject to
payment of a deficit Court fee, if any.
(vii) Respondent No.3-Insurance Company will be
entitled to the adjustment of the amount against the
already paid, if any, under the impugned Award.
14) Appeal is disposed of in aforesaid terms.
PREETI
HEERO (SHYAM C. CHANDAK, J.)
JAYANI
