Bombay High Court
Arefabi Ajij Kureshi And Ors vs Abhijit Vasudeo Mirasdar And Anr on 21 August, 2025
2025:BHC-AUG:22897
FA-4516-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 4516 OF 2023
1. Arefabi Ajij Kureshi,
Age: 48 years, Occu: Household,
2. Kureshi Sadek Ajij,
Age: 31 years, Occu: Agriculture,
3. Samir Ajij Kureshi,
Age: 25 years, Occu: Education,
4. Kureshi Shoheb Ajij,
Age: 22 years, Occ: Education,
5. Heena Ajij Kureshi,
Age: 27 years, Occu: Household,
6. Marjina Ajij Kureshi,
Age: 23 years, Occu: Education,
7. Kureshi Cahandbi Abdul Raheman
(Dead)
All R/o. Madalmohi, Tq. Georai,
Dist. Beed. ...Appellants
Versus
1. Abhijit Vasudeo Mirasdar,
Age: 50 years, Occu: Business,
R/o:B-8/3, Gururaj Housing Society
Padmavati, Pune,
Tq & Dist. Pune.
2. The New India Assurance Co.Ltd,
Through its Branch Manager,
Sathe Chowk, Jalna Road,
Beed, Tq & Dist. Beed ...Respondents
***
Mr. S. S. Dargad, Advocate for the Appellants
Mr. M. D. Shinde, Advocate for Respondent No. 2
***
Page 1 of 11
FA-4516-2023.odt
CORAM : R.M. JOSHI, J.
DATE : AUGUST 21, 2025
JUDGMENT:
1. This Appeal is preferred under Section 173 of
Motor Vehicle Act, 1988 (for short "the Act") by
original claimants taking exception to the judgment and
order dated 27.06.2023 passed in MACP No. 289/2019.
2. By consent of both contesting parties, Appeal
is taken up for final hearing at the stage of
admission.
3. Parties are referred to by their nomenclature
in the original proceedings for the sake of
convenience.
4. Claimants are wife, children and mother of
Ajij Abdul Raheman Kureshi who died in motor vehicular
accident occurred on 30.05.2019. Owner and driver of
the offending vehicle as well as insurer were made
party to the claim Petition. It is the case of the
claimants that on 30.05.2019 deceased was proceeding on
his motorcycle bearing no. MH-23-AQ-8054 Madalmohi to
Padalsingi at Pathardi Road. When he reached to the
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spot of accident, a Maruti Swift Car No. MH-12-FY-5011
came from back side and gave dash to motorcycle of
deceased in the negligent manner. In the said accident,
deceased sustained serious injuries. Immediately, he
was taken to Lotus Hospital and from there he was
shifted to Apex Hospital, Aurangabad. He however,
unfortunately succumbed to his injuries on 04.06.2019.
claimants being widow, children and mother filed claim
Petition bearing MACP No. 289/2019 before Tribunal at
Beed claiming compensation of Rs. 60 lacs. It is the
case of the Claimants that deceased was aged about 45
years at the time of accident and he was working as a
Manager at A1 Furniture Shop and earning Rs. 20,400/-
per month. It is also claimed that he was cultivating
agricultural land and was earning Rs. 1,60,000/- per
annum. They further claim medical expenses of Rs. 3
lacs.
5. Owner of the car though appeared before the
Tribunal but failed to file written statement. The
insurer, however, filed written statement at Exh. 14
and denied the claim and contentions of the claimants.
FA-4516-2023.odt
6. After framing of the issues at Exh. 23,
Claimant No. 2 - Sadek Kureshi led his evidence and
placed on record first information report, spot
panchnama, form AA, post postmortem notes, accidental
report, etc. Claimants also examined Atik Pathan, who
witnessed the accident to prove the factum of the
accident. In addition thereto, evidence of Shaikh
Rehman Kadir - CW 3 was led in order to prove the
employer and income of deceased. Respondents failed to
lead any evidence. Tribunal by judgment and award dated
27.06.2023 directed Respondents to pay sum of Rs.
5,73,000/- along with interest at 7% per annum. Since
compensation granted by the Tribunal is found to be
inadequate, Claimants/Appellants preferred this Appeal.
7. Learned Counsel for the Claimants/Appellants
seeks enhancement of compensation amongst other
contentions on following grounds:
(i) Tribunal has failed to taken into
consideration the income of the deceased
and has erroneously rejected the evidence
of the employer with regard to the
employment and monthly income of the
deceased. He placed reliance on the
judgment of Hon'ble Supreme Court in case
FA-4516-2023.odt
of Amarveer Kaur and Others vs. Reliance
General Insurance Company Limited and
Others, 2025 DGLS(SC) 640, to argue that in
view of the judgment in case of National
Insurance Co. Ltd vs. Pranay Sethi, (2017)
16 SCC 680, future prospects needs to be
considered.
(ii) He also relied upon the judgment in case of
Rajawati @ Rajjo and Others vs. United
India Insurance Co. Ltd and Others, 2022
DGLS(SC) 1577.
(iii) Tribunal has erred in deducting 1/3rd
income towards personal expenses of the
deceased instead of deducting 1/5th in view
of the total seven number of dependents. It
is submitted that considering age of the
claimants, they need to be treated as
dependents upon the deceased. To support
this submission, he placed reliance on the
judgment in case of Seema Rani and Others
vs. Oriental Insurance Co. Ltd and Others,
2025 DGLS(SC) 183.
(iv) Medical bills though original placed on
record are not considered. To support his
submissions, he placed reliance on the
judgment of Coordinate Bench of this Court
in case of Pratikala Gambir Patil and
Others vs. Ramsing Ramswaroop and Others,
FA-4516-2023.odt
2024 DGLS(Bom.) 3195.
(v) Filial consortium ought to have been paid
at Rs. 40,000/- per claimant in view of the
judgment of the Hon'ble Supreme Court in
case of Magma General Insurance Co. Ltd vs.
Nanu Ram and Ors, 2018 ALL SCR 2001.
8. Learned Counsel for the Insurer opposed the
said contentions by pointing out the evidence on
record, which according to him, indicates that income
of the deceased has not been proved. It is his
submission that in absence of any specific pleadings
raised by the claimant with regard to the educational
qualification etc of the deceased, it cannot be
accepted that he was working as a Manager in the shop
belonging to Shaikh Rehman Kadir CW 3. He further
argued that the eldest son of the deceased seems to be
aged 27 years and agriculturist and therefore, he
cannot be held to be dependent. On the point of amount
of medical bills, it is contended that the medical
bills are not proved since the claimant's witness also
has not referred and proved the same, leave apart, the
author of the bills having proved it. On these amongst
other contentions, he seeks dismissal of the Appeal.
FA-4516-2023.odt
9. There is no dispute about the occurrence of
the accident and involvement of the offending vehicle
therein. Tribunal has held that the accident has
occurred due to the negligence of the driver of the car
and that the claimants are entitled for compensation.
Insurer or owner have not challenged the said judgment.
The issue remains, therefore, in respect of enhancement
of the compensation.
10. Claimants though have made claim of deceased
of receiving salary of Rs. 20,400/- per month and being
working as Manager in the A1 Furniture Shop, except for
salary certificate, there is no evidence to indicate
that in fact such salary was paid to him. There ought
to have been more evidence than this to prove actual
income. If not I.T. returns at least wage registers or
vouchers signed by deceased while receiving salary
ought to have been brought on record.
11. As far as the employment of the deceased with
the deceased is concerned, the Shop Act license
produced by him at Exh. 44 indicates that he is
employing about 9 workers. Thus, it must be held that
FA-4516-2023.odt
deceased was working with the said witness. However,
question still remains as to the proof of income of the
deceased. As rightly pointed out by the Counsel for the
Insurer that there is no pleading with regard to the
educational qualification and no material to hold that
the deceased was working as a Manager. Even if it be
so, the minimum wages, which could be paid to the
lowest grade of a person working in a shop, needs to be
considered. On the basis of notification dated
03.10.2020 issued under the Workmen Compensation Act
indicates that the minimum wages at the relevant time
i.e., prior to notification was Rs. 8,000/- per month.
The Constitution Bench of the Supreme Court in case of
Pranay Sethi (supra) has held that future prospects ae
also required to be considered. Admittedly, deceased
was aged about 55 years as per postmortem notes at
Exhibit 29 and hence, 10% addition needs to be given to
the deceased.
12. In so far as dependency is concerned, perusal
of the record indicates that except for the eldest son
of the deceased who is aged about 27 yeas, others were
taking education and hence, are necessarily required to
FA-4516-2023.odt
be held as dependent upon the deceased. As such, the
dependency upon the deceased needs to be considered to
the extent of all dependents. It being so, 1/4th amount
needs to be deducted towards personal expenses of
deceased and amount of compensation is calculated
accordingly.
13. As far as the amount of consortium is
concerned, in view of the judgment in case of Magma
General Insurance Co. Ltd (supra), consortium Rs.
40,000/- towards per dependent needs to be allowed and
it is accordingly granted.
14. In so far as medical bills are concerned, no
doubt the Hon'ble Supreme Court in case of Rekha Jain
and Anr vs. National Insurance Co. Ltd., 2013 AIR(SC)
3458, has held that the medical bills can be considered
by the Tribunal without examination of witnesses.
However, claimant had referred to the medical bills and
there was no rebuttal from the other side. Thus, in
that case medical bills were proved through claimant.
It cannot be accepted by way of principle that medical
bill even if not proved needs to be considered.
FA-4516-2023.odt
15. The Hon'ble Apex Court in case of Pranay Sethi
(supra) has held that in case of self employed deceased
person an addition of 10% of the income should be
granted towards future prospectus. By following the
said dictum 10% addition to the future prospectus needs
to be considered. Learned Tribunal has granted Rs.
25,000/- towards loss of love and affection and
consortium. By following the dictum of Hon'ble Apex
Court in case of Magma General Insurance Co. Ltd
(supra), this Court finds it appropriate to grant Rs.
40,000/- towards filial consortium. Hence, amount of
compensation payable is determined as follows:
Sr. Heads Calculations in
No. Rs.
1. Income Rs. 8,000/- per months
+ 10% addition = Rs.8,800/-
Rs. 8,800/- x 12 = Rs. 105,600/-
2. Rs. 1,05,600/- divided by 1/4th of the 79,200/-
expenses, deceased would have incurred
towards maintaining him and his wife and
mother (Rs. 1,05,600 - Rs. 26,400/-)
3. Rs. 79,200 x 11 (age factor) 8,71,200/-
4. Funeral and Incidental expenses 10,000/-
5. Loss of estate 10,000/-
6. Loss of love and affection and 2,80,000/-
consortium (Rs. 40,000 x 7)
7. Hence, the claimants are totally 11,71,200/-
entitled for (8,71,200/- +
10,000/- + 10,000/- + 2,80,000/-)
16. As a result of above, Appeal stands partly
FA-4516-2023.odt
allowed. Hence, the order:
O R D E R
(a) Appeal is partly allowed. Impugned
judgment and award dated 27.06.2023 passed
in MACP No. 289/2019 is modified. Total
compensation is Rs. 11,71,200/- along with
interest at 7% per annum as determined
above.
(b) Claimants to pay Court fee on enhanced
compensation as per rules.
(c) Rest of judgment and award to remain
unchanged.
(d) Amount deposited (along with interest) by
insurer is permitted to be withdrawn by
Claimants.
(e) No order as to costs.
(f) In view of disposal of Appeal, pending
applications, if any, stands disposed of.
(g) The difference of compensation be deposited
within a period of six weeks.
(R. M. JOSHI, J.)
Malani
