Bombay High Court
Smt. Pramila Shivhar Kamble And Ors. vs M/S.B.D.Dhallal And Co. And Anr., on 12 August, 2025
Author: Shivkumar Dige
Bench: Shivkumar Dige
2025:BHC-AS:35188
60-FA-20-2005.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 20 OF 2005
(Amendment carried out in
1. Smt.Pramila Shivhar Kamble } Court in pursuance of order
dated 08/07/2025)
Adult, Occ: Household }
(Since deceased Thr. Her Legal Heirs and }
Representatives) }
1A. Rajmilind Shivar Kamble }
Digitally signed
Age-51 years, Occ: Business }
NILAM by NILAM
SANTOSH
SANTOSH KAMBLE
KAMBLE Date: 2025.08.14
13:41:36 +0530 1B. Kamaljeet Shivhar Kamble }
Age-47 years, Occ: Homemaker }
1A and 1B R/at 748/6, Little Raj Girish }
(Kamble House), Pokhran Road No.1, Opp. }
Khandelwal Estate Upvan Vibhag, Jekgram }
Thane (W)-400 606
}
1C. Vaishali Shivhar Kamble }
Age-52 years, Occ: Homemaker }
R/at B-2/503, Brhamand Phase-5, }
Ghodbunder Road, Brahmand Azad Nagar, }
Thane (W)-400607. }
1D. Shailaja Waghmare }
Age-55 years, Occ: Homemaker }
R/at Shree Ganesh Niwas, Near Khandelwal }
Bus Stop, Pokhran Road No.1, Upvan, }
Thane(w)-400606. }
2. Rajamilind Shivhar Kamble }
Adult, Occ: Student }
}
N.S. Kamble page 1 of 10
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60-FA-20-2005.doc
3. Kamaljit Shivhar Kamble }
Age-Adult, OccL Student }
}
All R/at Little Rajghriha, Upavan, Post-J.K. }
Gram, Thane, District-Thane. } ...Appellants
Versus
1. M/s.B.D. Dhallal And Co. }
OTPC Compound, Rahanal Village, }
Bhiwandi, District-Thane. }
2. The New India Assurance Co. Ltd. }
Shivkurpa Complex, Gokhale Road, }
Naupada, Thane-400 601. } ...Respondents
----
Mr.Rajesh S. Datar, for the Appellants.
Ms.Poonam Mital, for Respondent No.2.
----
CORAM : SHIVKUMAR DIGE, J.
DATE : 12th AUGUST 2025
ORAL JUDGMENT :-
. This appeal is preferred by the Appellants-Claimants
against the judgment and order passed by the Motor Accident
Claims Tribunal, ('The Tribunal', for short), Thane.
2. It is contention of the learned counsel for the
Appellants-Claimants that, the deceased was an Advocate and he
was earning Rs.15,000/- per month. He had practice of around
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25 years, at the time of accident. But the Tribunal has considered
his monthly income at Rs.5,000/-, which is on lower side. The
learned counsel further submitted that, accident occurred due to
sole negligence of the driver of the offending truck. He has been
convicted for the said offence. The Tribunal has considered 75%
contributory negligence of the deceased and 25% of the driver of
the offending vehicle, which is erroneous. Hence, requested to
allow the Appeal.
3. It is contention of learned counsel for the
Respondent-Insurance Company, that no evidence is produced
on record to prove the income of the deceased. The learned
counsel further submitted that the deceased was proceeding from
wrong side lane of the road. The Accident occurred due to sole
negligence of the deceased. The Tribunal has passed well
reasoned order and no interference is required in it and requested
to dismiss the Appeal.
4. I have heard both learned counsel. Perused judgment
and order passed by the Tribunal.
5. It is Claimants' case that, on 5th December 1995 the
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deceased had gone to Bombay in jeep bearing No.MHU-8051.
After completing his work in Bombay, he was returning to Thane.
At about 1.30 a.m. when the jeep was near Kopri Check Post,
Anandnagar Check Post, the traffic was closed from one lane and
it was opened from the other lane, from which the vehicles from
Thane to Bombay were proceeding. The deceased was driving his
jeep on the said road, when he came near the bridge, at that time,
one truck came from Thane from Teen Hat Naka and gave dash
to the jeep. Due to said dash the jeep turned turtled. The
deceased was thrown out of the said vehicle and received head
injuries and died while taking treatment. The offence was
registered against the driver of offending truck.
6. To prove the negligence of driver of offending truck
the Claimants have relied on Police papers and has examined PW-
3-Arun Innerkar, Investigating Officer of the offence registered
against the driver of the offending truck. He has stated that, on
the day of accident there was heavy traffic on that road hence one
passage lane was only available for ingress and egress of the
vehicles. During that period, the light vehicles were diverted
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from Bombay to Thane side from another way. He has further
stated that, as one truck was stopped, two-four light vehicles were
required to be passed from another way. After passing of 3-4
vehicles, the traffic could not be regularized. Hence, he boarded
in one jeep to see as what had happened. When the said jeep
came near divider, he jumped on divider, at same time one truck
came from opposite side with full speed and within a fraction of
second, gave dash to the jeep. Due to the impact, the jeep was
lifted and thrown in the air and took 2 to 3 collapses. Mr.Kamble
had suffered serious injuries.
7. In cross-examination he has stated that, it was not
possible to notice the incoming vehicle from Bombay side. He
admits that, accident spot was hardly at the distance of 2 feet
from divider. He has further admitted that, the deceased was
driving the vehicle and Mr.Jadhav was setting next to him.
8. While dealing with the issue of negligence, the
Tribunal has observed that, the topography of spot panchnamma
at Exhibit-41 shows that, traffic was on left side of the road and
jeep was also showed on the left side, but the spot of accident is in
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the middle of the road and it appears that the truck driver tried to
avoid the accident and during that moment, he took left turn and
stopped the vehicle. On that ground, the Tribunal has
considered negligence of truck driver at 25% and negligence of
the deceased at 75 % for the said accident. I am unable to
understand the observations of the Tribunal, as admittedly PW-3
who has Investigated the said offence, has stated that, due to
traffic jam one lane of the road was closed. Hence, deceased was
forced to go from lane which was open for the traffic. Moreover,
it has come in the evidence of PW-3 that the offending truck was
in high and excessive speed and due to dash of the said truck, the
jeep was lifted in the air and turned turtle. When the truck driver
was aware that one side of the road was closed, he drove the truck
in high and excessive speed, due to which the accident occurred.
Moreover, the truck driver has been convicted for the said
offence, but this fact has not considered by the Tribunal. The
truck driver did not step into witness box to prove negligence of
the deceased. Considering the evidence on record, I hold that,
accident occurred due to 75% negligence of the truck driver and
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25% of the deceased.
9. To prove the income of the deceased the Claimants
have examined Smt.Pramila Kamble at Exhibit38. She has stated
that, her husband was practicing Advocate since 1971 at District
and Sessions Court, Thane. His practice was basically in Criminal
side. Mr.Hemand Londe and Mr.Satish Gaikwad were his
juniors. Her husband was earning around Rs.15,000/- p.m. She
has further stated that her husband used to give Rs.10,000/- to
her for household expenses. At the time of the accident, the
deceased was 56 years old.
10. In cross-examination she has stated that her husband
was not filing Income Tax Returns. To prove the income of the
deceased, the Claimants have examined PW-2 Mr.Hemant
Londe. He has stated that, he was junior of the deceased and
deceased used to give him and other collogues Rs.1,500/- to
Rs.2,000/- per month as honorarium. His cross-examination has
been declined.
11. Considering evidence on record, the Tribunal has
considered monthly income of the deceased at Rs.5,000/-. I am
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unable to understand the observations of the Tribunal as at the
time of the accident the deceased was 56 years old. He had
around 24 years in practice in legal field. He was paying
honorarium to his juniors. Considering these facts, I am
considering monthly income of the deceased at Rs.10,000/- per
month.
12. The Claimants are entitled for 10% future prospects,
as per view of the Hon'ble Apex Court in the case of National
Insurance Co. Ltd. V/s. Pranay Sethi 1. The proper multiplier is 9.
As per view of Hon'ble Apex Court in case of Magma General
Insurance Co. Ltd. V/s. Nanu Ram2, each claimant is entitled for
Rs.48,000/- as consortium amount, Rs.18,000/- for funeral
expenses and Rs.18,000/- for loss of estate. Considering this
calculation, the Claimants are entitled for following
compensation.
Particulars Amount
Monthly Income Rs.10,000.00
(+) Future Prospects (10%) Rs.1,000.00
----------------
Rs.11,000.00
1 2017 ACJ 2700 (SC)
2 2018 ACJ 2782 (SC)
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1/4th Deduction of Income for
personal expenses Rs.2,750.00
Remaining Income of the deceased Rs.8,250.00
for the family
Dependency Rs.8,250/- x 12 x 9 Rs.8,91,000.00
Multiplier
Conventional Heads with 10%
increase
Consortium (Rs.48,000 x 4) Rs.1,92,000.00
Loss of Estate Rs.18,000.00
Funeral Expenses Rs.18,000.00
Total Just Compensation Payable Rs.11,19,000.00
Amount awarded by the Tribunal Rs.1,08,880.00
Total Amount Claimed Rs.10,10,120.00
75% of total amount Claimed Rs.7,57,590.00
13. In view of above, I pass following order.
ORDER
(i) The Appeal is allowed.
(ii) The Claimants are entitled for enhanced
compensation of Rs.7,57,590/- @ 7.5% interest per
annum from the date of the filing of Claim Petition
till realization of the amount. Out of this amount
Rs.2,28,000/- is consortium amount, the Claimants
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are entitled @ 7.5% interest on it from 1st November
2017, till realization of the amount.
(iii) The Respondent-Insurance Company shall
deposit compensation amount along with accrued
interest thereon, within eight weeks from the receipt
of this order.
(iv) The Claimants are permitted to withdraw the
deposited amount alongwith interest.
(v) The Claimants shall pay deficit Court Fees on
enhanced amount, as per Rules.
(vi) Record and Proceedings be sent back to the
Tribunal.
(vii) All pending Civil and Interim Applications are
disposed of.
(SHIVKUMAR DIGE, J.)
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