[Cites 5, Cited by 0]

Bombay High Court

Shaikh Nazer Shaikh Afsar And Anr vs Kadoji Narayan Ghodke (Patil) And Anr on 3 December, 2025

2025:BHC-AUG:33362
                                                 -1-
                                                                          FA-1694-2017

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                  FIRST APPEAL NO. 1694 OF 2017

              1.     Shaikh Nazer S/o. Shaikh Afsar,
                     Age : 36 years, Occu. : Labour,

              2.     Shaikh Altamash S/o. Shaikh Nazer,
                     Age : 6 years, Occu. : Minor,
                     U/g of Applicant No.1 real father,

                     Both R/o. Mahatma Phule Nagar, Risod,
                     Tq. Risod, Dist. Washim.                       ... Appellant
                                                                       (Orig. Claimant)
                                 Versus

              1.     Kadoji S/o. Narayan Ghodke (Patil),
                     Age : Major, Occu. : Business,
                     R/o. Aundha Nagnath, Dist. Hingoli,

              2.     The United India Insurance Company Ltd.,
                     Through its Branch Manager,
                     Dayawan Complex, Station Road,
                     Parbhani.                                      ... Respondents

                                                 ......
              Mr. V. B. Dhage, Advocate for Appellant.
              Mr. S. S. Naikwade h/f. Mr. R. J. Nirmal, Advocate for Respondent No.1.
              Mr. S. V. Kulkarni, Advocate for Respondent No.2.
                                                 ......

                                                 CORAM : ABHAY S. WAGHWASE, J.
                                          RESERVED ON : 14 NOVEMBER 2025
                                      PRONOUNCED ON : 03 DECEMBER 2025

              JUDGMENT :

1. This appeal is by original claimants, who had instituted

M.A.C.P. No.14 of 2011 seeking compensation on account of death of

FA-1694-2017

Rubina bee in road traffic accident dated 24.12.2010. The appellants are

dissatisfied by both, quantum as well as finding of learned tribunal

attributing contributory negligence.

FACTS GIVING RISE TO THE APPEAL ARE AS UNDER

2. On 24.12.2010, deceased was one of the passenger in a

cruiser jeep bearing No. MH-28-C-3550. While traveling on the Aundha-

Hingoli road, near Narsi T point, Rubina bee complained of sickness and

alighted from the jeep. While she was vomiting, it is alleged that, tractor

bearing No.MH-38-B-2472 gave dash by coming in rash and negligent

manner, causing fatal injuries, to which she succumbed and crime was

registered against the said tractor driver. Husband and son of Rubina bee

set up above accident claim by invoking section 166 of Motor Vehicles

Act and seeking compensation of Rs.4,00,000/- under various heads.

3. The claim was resisted by respondent no.1 and respondent

no.2. Respondent no.2 insurance company denied the contentions and

averments of the claim petition and principle ground raised that there

was breach of conditions by the driver of the tractor. That, claimant had

failed to prove that there was rash and negligent solely on the part of

tractor driver. There being no evidence to that extent, they prayed to

dismiss the claim petition.

FA-1694-2017

4. After appreciating the respective cases and the evidence on

record, learned tribunal was pleased to frame the issues and by order

dated 23.12.2016 allowed the claim petition directing payment of

compensation to the tune of Rs.5,92,000/- with interest at the rate of 9%

per annum. However, learned tribunal recording the finding that jeep

driver was also 50% liable equally with the tractor driver and deducted

the amount accordingly.

It is the above judgment which is impugned herein.

5. Learned counsel for claimant would submit that, there was

clearly rashness and negligence solely on the part of tractor driver. He

pointed out that, there was no evidence to arrive at the conclusion that

both the drivers of tractor as well as jeep, were negligent. According to

him, tractor of the driver has not entered in the witness box and

therefore, adverse inference ought to have been drawn. He further

pointed out that, even spot panchanama clearly depicts that the tractor

driver was solely responsible.

6. According to him, the Hon'ble Apex Court has clarified this

position more than once and more particularity in the case of Khenyei v.

New India Assurance Company Limited and Ors., (2015) 9 SCC 273 as

well as in First Appeal No. 447 of 2013 in the case of Vikrant S/o.

FA-1694-2017

Vinodkumar Shukla and Anr. v. Smt. Shardamma W/o. B.G.

Venkatechhalapathy and Ors., this court has also clarified the legal

position on above point of contributory negligence and composite

negligence.

7. The second ground of challenge is quantum as according to

appellants, learned tribunal ought not to have considered mere

Rs.3,000/- as notional income and instead ought to have considered to

Rs.4,500/-. There is no grant of quantum under the head of future

prospects; no grant of parental consortium to minor and less/no amount

granted under the head of funeral expenses and loss of estate.

8. Learned counsel for original respondent nos.1 and 2 justify

the award and urged not to disturb it.

9. Much emphasis is laid by learned counsel for appellants on

the judgment of Hon'ble Apex Court in the case Khenyei (supra) and

therefore, the same is visited. However, it is noticed that in this case,

before the Hon'ble Apex Court, there was head on collision between bus

and trailor-truck and both vehicles were in motion. Here, deceased

suffered dash while jeep was halted and deceased had alighted to ease

herself. Therefore, on facts at least above judgment, with due respect to

the Hon'ble Apex, cannot be taken aid of.

FA-1694-2017

Likewise, in the judgment of this court in First Appeal No.

447 of 2013 in the case of Vikrant S/o. Vinodkumar Shukla (supra) also,

facts are distinct as therein Maruti Car itself went and rammed over the

truck, which was parked without signal or indicator, and as such, this

court found fault on the part of tribunal therein by taking recourse to

above referred judgment of Hon'ble Apex Court, wherein the difference

between contributory negligence and composite negligence were

distinguished by relying on the judgment of Anthony v. Karvarnan and

Ors. [2008 (3) SCC 748].

10. On the contrary, on visiting the impugned judgment and

order, learned tribunal seems to have dealt with issue nos. 2 and 7 in

paragraph 13, 14, 15, 16 and 17 and analysis part is done in paragraph

no.18. Situation at the scene of occurrence i.e. at the spot, has also been

discussed apart from taking into account the directions in which both

vehicles were proceeding and were situated at the time of actual mishap.

Further, there is no evidence on behalf of respondent nos.1 and 2.

11. Therefore, on re-appreciation of the said findings, this court

also agrees with the tribunal on the point that, here, jeep was in

stationary, but was not halted appropriately, rather, it was halted on

wrong side. The aspect of deceased suffering dash while she was on the

FA-1694-2017

tar portion of road itself shows that, driver of the jeep had not taken care

to halt the vehicle to his extreme left side i.e. on the side of the road and

therefore, finding recorded by tribunal that there is 50% negligence on

the part of each driver of both vehicle, cannot be said to be erroneous.

Resultantly, this court refrains from interfering in the findings of learned

trial court to above extent.

12. As regards to entitlement of compensation is concerned,

tribunal seems to have made discussions in issue no.8. In absence of any

evidence of earning by deceased, tribunal seems to have considered

notional income of Rs.3,000/-. Accident is of 2010. Therefore, notional

income in the considered opinion of this court is on the lower side and

the same is required to be raised to Rs.4,000/- per month.

13. Further, learned tribunal also seems to have incorrectly

calculated amount of Rs.50,000/- towards loss of consortium and

Rs.1,00,000 towards love and affection. Even Rs.10,000/- is awarded

under the head of funeral expenses.

14. In view of the ratio laid down in National Insurance

Company Limited vs. Pranay Sethi and others, 2017 (16) SCC 680, and

Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram and

FA-1694-2017

Others, (2018) 18 SCC 130, claimants are entitled for Rs. 40,000/- each,

i.e. 80,000/- plus 30% (Rs.24,000/-) which comes to Rs.1,04,000/-

towards consortium and loss of love and affection. Rs. 15,000/- plus 30%

(Rs.4,500/-), which comes to Rs.19,500/- towards loss of estate and

Rs.15,000/- plus 30% (Rs.4,500/-), which comes to Rs.19,500/- towards

funeral expenses.

15. Claimants are also entitled for future prospects. Considering

that the age of deceased at the time of accident, 40% needs to be

awarded towards future prospectus in view of ratio in Magma General

Insurance Co. Ltd. (supra).

16. In view of the aforesaid discussion, claimants are entitled for

following compensation.

   Sr.                        Heads                          Amount (Rs.)
   No.
      1. Annual Income (Rs.4,000 x 12 )                            48,000/-

      2. Future Prospects 40%                                      67,200/-
         i.e. 19,200 (48,000 + 19,200)
      3. Less 1/3rd deduction towards personal                     44,800/-
         expenses.
         (Rs. 67,200 - Rs 22,400)
      4. Multiplier of 18 (44,800 X 18)                          8,06,400/-

      5. Loss of consortium                                      1,04,000/-
      6. Funeral Expenses                                          19,500/-

                                                               FA-1694-2017


        7. Loss of Estate                                         19,500/-
        8. Total compensation to be paid                         9,49,400/-
        9. Compensation awarded by Tribunal                      5,92,000/-
       10. Total Enhanced Compensation                           3,57,400/-
           (i.e. Rs.9,49,400 - 5,92,000)
       11. Contributory Negligence 50 : 50                       1,78,700/-
        12 Compensation to be paid by respondent                 1,78,700/-

17. In view of above, appellants are entitled for the amount of

Rs.9,49,400/-. It is held that, the jeep owner and its insurer are

responsible to pay 50% and respondent Nos.1 and 2 are responsible for

50% compensation granted above. Hence, the following order is passed :

ORDER

(i) Appeal is partly allowed with proportionate costs.

(ii) Impugned judgment and award dated 23.12.2016, passed by the

learned Member, M.A.C.T., Hingoli, Dist. Hingoli, is modified.

(iii) Respondent nos.1 and 2, jointly and severally to pay enhanced

compensation of Rs.1,78,700/- to claimants within 12 weeks from today

along with interest @ 9% per annum from the date of registration of

claim petition till its realization.