Bombay High Court
Dagdu S/O Kanhaiyalal Patil And Ors vs The New India Assurance Co. Ltd., Thr Its ... on 1 August, 2025
2025:BHC-AUG:20316
3408-21-FA.odt
{1}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.3408 OF 2021
WITH
CIVIL APPLICATION NO.14053 OF 2021 IN FA/3408/2021
WITH
CIVIL APPLICATION NO.13043 OF 2024 IN FA/3408/2021
The New India Assurance Co. Ltd.,
Through its In-charge (Legal Hub),
D.O. No. I, Adalat Road, Aurangabad,
Avinash Achyutrao Bugdani,
Age 56 Yeard, Occu.: Service,
Assistant Manager,
R/o. Aurangabad, Dist. Aurangabad. ... APPELLANT
(Orig. Respondent No.2)
Versus
1. Dagdu S/o. Kanhaiyalal Patil,
Age: 51 years, Occu.: Nil.
2. Sau. Mangalabai Dagdu Patl,
Age: 46 years, Occu.: Household,
Both R/o. Vishwanath,
Tq. Dist. Dhule.
3. Rameshwar S/o. Pandharinath Gawade,
Age Major, Occu.: Driver,
R/o. Mohadi Upnaga,
Tq Dist. Dhule.
(Deleted as per Court's Order
dated 24.06.2025)
4. Ratnabai Icharam Choudhary,
Age Major, Occu: Owner of India Car
No.MH-04/DN-8871
R/o. Gagne, Tq. Dist. Dhule. ... RESPONDENTS
(R-1 & 2 Orig. Claimants)
( R-3 & 4 Orig. R-1 &2)
3408-21-FA.odt
{2}
......
Mr. S.R. Bodade, Advocate for Appellant
Mr. Mahesh Patil, Advocate for Respondents No.1 and 2
......
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 15 JULY 2025
PRONOUNCED ON : 01 AUGUST 2025
JUDGMENT:
-
1. This appeal is at the instance of the insurance
company/original respondent No.3, hereby taking exception to
the judgment and award dated 23.08.2021 in M.A.C.P. No.42 of
2015 filed by present respondents No.1 and 2/original claimants
on account of accidental death of Vijay on 19.11.2014.
BRIEF FACTS GIVING RISE TO THE APPEAL ARE AS UNDER:
2. On 19.11.2014, the deceased Vijay Dagdu Patil was
riding his motorcycle bearing registration No. MH-18/AH-8260,
accompanied by his friend Hiralal. While they were in the
vicinity of the Dhule-Amalner Road, an Indica car bearing
registration No. MH-04/DN-8871, coming from the opposite
direction in a rash and negligent manner, and gave dash to the
motorcycle of the deceased Vijay, causing grievous and fatal
injuries. His parents, i.e., his father and mother, filed Accident
Claim Petition No. 42 of 2015, holding the driver of the Indica
3408-21-FA.odt
{3}
car solely responsible for the accidental death of their son, and
sought compensation to the tune of Rs. 10,00,000/-. It was
their case that, deceased Vijay was the contractor of digging
wells and earned Rs.10,000/- per month. That he was barely 22
years of age at the time of the accident. Due to his untimely
death, the claimants lost their source of earning. That the
deceased Vijay was the sole bread earner of the family, and
therefore, the claimants sought compensation under various
heads from the driver of the vehicle, the owner, as well as the
insurer.
3. On issuance of notices, respondents No. 1 and 2, i.e., the
driver and owner of the vehicle, failed to appear before the
Tribunal; therefore, the petition proceeded ex parte against
them. Only the insurance respondent No. 3, i.e., the present
appellant, appeared and resisted the claim, denying all
contentions raised in the claim petition, including the
involvement of the Indica car. The insurance company has also
taken the statutory defence that the driver of the Indica car did
not possess a valid and effective driving licence. That, there was
no evidence of negligence on the part of the Indica car driver,
and that the driver of the motorcycle was solely responsible for
the accident.
3408-21-FA.odt
{4}
4. After appreciating the entire evidence on record, the
learned Tribunal held that the driver of the Indica car, its owner,
and the insurer are jointly and severally liable to pay
compensation of Rs. 10,85,000/- along with interest at 8% per
annum.
Feeling aggrieved by the award dated 23.08.2021, the
insurance company has preferred the instant appeal on various
grounds mentioned in the appeal memo.
5. Learned counsel for the insurance company would
submit that there is incorrect appreciation of evidence as well as
law by the Tribunal. That the Tribunal has not considered that
the driving licence of the deceased, Vijay, was not on record;
therefore, an adverse inference needs to be drawn.
Consequently, the FIR was lodged at a belated stage, for which
no plausible explanation was given. He pointed out that, in fact,
the FIR was against an unknown vehicle, and since there was no
distinct evidence of the involvement of the Indica car, the
Tribunal ought not to have directed the insurance company to
bear the responsibility of compensation. He further pointed out
that the deceased, Vijay, was admittedly a bachelor; therefore,
3408-21-FA.odt
{5}
50% of the amount ought to have been deducted towards his
personal expenses. However, the Tribunal failed to do so and
instead deducted only one-third of the amount towards personal
and living expenses. Therefore, the entire approach of the
Tribunal is improper. He also claimed that the compensation
awarded was exorbitant and excessive, even when the claimants
failed to prove the actual income of the deceased, Vijay. On
these grounds, he urges to allow the appeal by setting aside the
impugned judgment and award.
6. Learned counsel for respondents No.1 and 2/original
claimants supported the findings and urged not to disturb the
well reasoned order passed by the Tribunal.
7. Heard learned counsel for appellant/insurance company
and learned counsel for respondents No.1 and 2/original
claimants. Perused the impugned judgment and award.
8. On re-appreciation of the entire evidence, it is emerging
that there is no serious challenge to the occurrence of accident
on 19.11.2014, wherein deceased Vijay was riding motorcycle
bearing No. MH-18/AH-8260 and the said vehicle met with an
accident with indica car bearing No. MH-04/DN-8871.
3408-21-FA.odt
{6}
9. Here, it is noted that there is eyewitness account from
almost five witnesses, namely Dnyaneshwar Suklal Patil,
Sandeep Daga Patil, Duryodhan Dharmi Patil, Nilesh Prabhakar
Patil, and Hiralal Gopichand Pawar. Coupled with their evidence
and taking into account the FIR, though lodged at a belated
stage, and the investigation revealing the involvement of the
Indica car, there is no reason to doubt its involvement. Spot
panchanama clearly shows that there is negligence on the part
of the indica car driver in giving dash to the motorcycle. there is
no reason to doubt the prosecution's story, despite the FIR being
lodged against an unknown vehicle, particularly in light of the
statements of independent witnesses.
10. Another ground agitated before this Court by the
insurance company is that the claimants failed to produce the
driving licence for the motorcycle rider, and there is an
admission on behalf of the father that he is unable to furnish a
copy of the licence. Therefore, learned counsel for the insurance
company urges this Court to draw an adverse inference
3408-21-FA.odt
{7}
11. Going by the law settled in National Insurance Company
Limited v. Swaran Singh, (2004) 3 SCC 297, wherein it has
been held that the mere absence of a licence, or the production
of a fake or invalid licence at the relevant time, is not a valid
defence available to the insurer against the insured or a third
party. The burden lies on the insurer to establish a breach of the
policy. It is categorically observed that mere non-production of
licence or evidence by the insured cannot be considered as
discharging of burden of the insurer. Having regard to such
observations of the Hon'ble Apex Court, this Court finds no
merit in the ground raised that an adverse inference should be
drawn on failure of the father of the deceased to produce the
driving licence on record. No such automatic adverse inference
can be drawn in view of the above settled law.
12. As regards the third ground of challenge that the
Tribunal has failed to deduct 50% towards personal expenses is
concerned, it appears that the Tribunal has deducted one-third
of the income amount. In view of the ratio laid down in
National Insurance Company Limited Vs. Pranay Sethi and
Others, (2017) 16 SCC 680, since the deceased was a bachelor
at the time of the accident, 50% ought to have been deducted.
Therefore, this ground has substance and requires consideration.
3408-21-FA.odt
{8}
13. Learned counsel for the insurance company also
submitted that there was contributory negligence on the part of
both vehicles. However, apart from such plea, there is no
evidence to support such a submission. On visiting spot
panchanama and statement of eyewitness, it is a clear case that
the Indica car is solely responsible for the accident. Therefore,
the question of contributory negligence does not arise.
14. The last ground raised before this Court is that an excess
and exorbitant income was considered in the absence of
evidence. On perusal of the impugned judgment, it is emerging
that claimants had set up a case that deceased Vijay was a
contractor of digging wells and earning Rs.10,000/- per month.
In paragraph 13, the Tribunal has categorically noted that there
is no evidence in this regard; therefore, notional income of Rs.
5,000/- per month has been considered. This Court finds that
the consideration of such income is justified.
15. In view of the above discussion, this Court is of the
opinion that the Tribunal has erred in deducting 1/3 amount
towards personal and living expenses from the total income of
the deceased, which should ought to have been deducted 50%.
3408-21-FA.odt
{9}
16. Having regard to the above reasons and discussion, the
award of the Tribunal is reassessed as under:
Head Amount (Rs.)
1 Annual Income Rs.60,000/-
(Rs.5,000 x 12)
2. Future Prospects 40% i.e. 24,000 Rs.84,000/-
(60,000 + 24,000)
3. (-) 1/2 deduction towards Rs.42,000/-
personal and living expenses
(84,000 - 42,000/-)
4. Multiplier 18 Rs.7,56,000/-
(42,000 x 18 )
5. Non-pecuniary Losses:- Rs. 77,000/-
Loss Filial Consortium = Rs.44,000/-
Loss of Estate = Rs.16,500/-
Funeral Expenses = Rs.16,500/-
6. Total compensation awarded Rs. 8,33,000/-
7. Compensation awarded by the Rs. 10,85,000/-
Tribunal
8. Excess Compensation Rs. 2,52,000/-
(10,85,000 - 8,33,000)
16. In the result, the following order:
3408-21-FA.odt
{10}
ORDER
(I) The First Appeal is partly allowed as under:
(II) Impugned judgment and award dated 23.08.2021,
passed by the Member of M.A.C.T., Dhule in M.A.C.P.
No.42 of 2015 is modified.
(III) The over all compensation is reduced from
Rs.10,85,000/- to Rs.8,33,000/-, which shall carry
interest @ 8% per annum.
(IV) The excess amount of Rs.2,52,000/- along with
proportionate interest accrued during the pendency of
the present Appeal shall be refunded to the
Appellant/Insurance Company.
(V) The balance amount along with interest, if any, shall
be released to respondents No.1 and 2/original
claimants in terms of the order passed by the Claims
Tribunal.
(VI) Modified award be prepared accordingly.
(VI) The Appeal is allowed in above terms.
(VII)Civil Application Nos.14053 of 2021 and 13043 of
2024 are also stand disposed of
ABHAY S. WAGHWASE,
JUDGE
S P Rane
