[Cites 2, Cited by 0]
Bombay High Court
Dashrath Shantaram Ganve And Anr. vs The Shriram General Ins Co. Ltd. on 5 December, 2025
2025:BHC-AS:53534
FA-793-2025 (B).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 793 OF 2025
WITH IA/7026/2025 WITH IA/12966/2025
Shriram General Insurance Co. Ltd
Office No.106, Excelsia Lodha
Suprums-2, Wagle Estate
Near New Passport Office
Thane West 400604 ...Appellant
Versus
1. Dashrath Shantaram Ganve,
Age-50 Years, Occu-Nil
2. Darshana Dashrath Ganve
Age-45 Years, Occu- Housewife
Both Are Resident At 230, Chavkuteechawal
21 Road Dandpada, Khar (W)
SONALI by
Digitally signed
SONALI
SATISH KILAJE
Mumbai-400052 ...Original Applicants
SATISH Date:
2025.12.08
KILAJE 11:53:25
+0700
3. Taufiq Shah Muhammad Khan
Aman Co-Op Housing Society
Busy Tower-2 R.No.504, Sector-5
Kalamboli Nod, Kalamboli
Dist-Raigad Maharashtra-410218
4. Bajaj Allianz Gen. Insurance Co.Ltd
Rustamji Aspire, 3rd Mala
Everad Nagar, Priyadarshani Circle
Near Eastern Express Highway
Chunabhatti, Sion Mumbai-22
5. Dattareya Balkrishna Patil
At Targhar, Post Ulva
Tal.Panvel, Dist Raigad ... Respondents
***
Ms. Shalini Shankar, Advocate for the Appellant
Mr. T. J. Mendon, Advocate for Respondent Nos. 1 and 2 /Claimants
Mr. Sarthak Diwan, Advocate for Respondent No. 4
***
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FA-793-2025 (B).odt
CORAM : R.M. JOSHI, J.
DATE : DECEMBER 05, 2025
JUDGMENT:
1. This Appeal filed under Section 173 of the Motor Vehicles Act, 1988,
takes exception to the judgment and award dated 29.11.2024 passed in M.A.C.P No.
23/2018, whereby the learned Tribunal accepted the claim of claimants and directed
payment of compensation of Rs. 49,37,000/- along with interest @ 8% p.a..
2. Insurer has challenged the said judgment and award on the ground
that the claim allowed by the Tribunal is excessive. In this regard, it is contended by
Counsel for the Insurer that before Tribunal the claimants have not proved that the
deceased was also working as a pigmy agent and earning Rs. 18,000/- per month. It
her contention that once the full time employment of deceased is accepted as a clerk
in Stemekor Company, it is practically impossible that he would have done any other
work and second employment is ruled out. It is her submission that in such
circumstances unless there is sufficient evidence to indicate the second employment,
Tribunal ought not to have accepted the claim of the claimants. It is also argued that
merely on the basis of a certificate, which is not supported by any other document,
the said claim should have been rejected.
3. Learned Counsel for the Claimants supported the impugned judgment
and award. In this regard, it is his contention that the claim have not only led oral
evidence of claimant no. 1 in support of the employment and income of deceased,
but also examined witnesses to support the same. It is submitted that time and again
FA-793-2025 (B).odt
it is held by Hon'ble Supreme Court that on the basis of statement on oath and
supported by salary certificate, the claim of the claimants about income and
employment deserves to be accepted.
4. There cannot be any dispute made with regard to the position of law
that in case a person claims on oath about employment and income of the deceased
and it is supported with the examination of the employer, ordinarily Tribunal is
expected to accept said evidence. However, in this case, claimants have claimed dual
employment by stating that deceased was working as a Clerk in Stemekor Company
and earning Rs. 12,000/- per month and also working as pigmy agent and earning
Rs. 18,000/- per month. The burden would always be on claimants to prove their
claim including employment and income of deceased, of course on preponderance
of probabilities. When the claimants have claimed dual employment of the deceased,
the burden would be on the claimants to substantiate the said fact and proof thereof
cannot be dispensed with.
5. In order to accept the contention of the claimants with regard to dual
employment, particulars with regard to timing of work in both establishments needs
to be pleaded. This will become necessary when there is specific claim of claimants
about employment being part time. The claimants, therefore, have to show that
there was sufficient time left out for the deceased to get engaged in second
employment. There is absence of such pleadings as well as evidence. In such
circumstances, it would not be possible for the Court to accept the second
FA-793-2025 (B).odt
employment unless there is substantive evidence led in this regard. Moreover, from
the cross-examination of the witness from the Co-operative Credit Society, it is clear
that except for the salary certificate, no other evidence is placed before the Tribunal
to indicate payment of salary @ Rs. 18,000/- per month. There is no appointment
order nor any other evidence indicating any amount being paid to deceased. It was
very much possible for claimants to bring such evidence as a credit society would
certainly maintain record of respondent made to agent. Adverse inference needs to
be drawn for non production of relevant records showing payments to deceased. On
the basis of said evidence, Tribunal ought not to have accepted the case of dual
employment.
6. In such circumstances, this Court finds substance in the challenge to
the impugned judgment and award of Tribunal and the claim of the claimants with
regard to amount of Rs. 18,000/- per month deserves to be rejected. In view of this,
income of the deceased needs to be considered @ Rs. 12,000/- per month. There is
no dispute about age, marital status of deceased and multiplier applicable. In view of
judgment of National Insurance Company Limited vs. Pranay Sethi, AIR 2017 SC
5157, future prospects are added.
7. On the basis of it, following calculations are made:
Sr No. Header Calculation in Rs.
1. Income of Rs 1,44,000 per annum x 18 (multiplier)
= Rs. 25,92,000 (+) 50% future prospects
= Rs. 38,88,000/-
(-) 1/2 deductions towards personal and living
expenses = Rs.19,44,000/- 19,44,000/-
FA-793-2025 (B).odt
2. Loss of Filial Consortium 44,000/-
3. Loss of Estate 16,500/-
4. Expenses of Funeral 16,500/-
Hence, claimants are entitled for total Compensation
of Rs. (19,44,000+ 44,000 + 16,500+16,500) 20,21,000/-
8. In view of above, following order is passed:
ORDER
(a) First Appeal is partly allowed. Impugned judgment and award
dated 29.11.2024 passed in M.A.C.P No. 23/2018 is modified.
Total compensation is determined to the tune of Rs. 20,21,000/-
along with interest at 8% per annum.
(b) Rest of judgment and award to remain unchanged.
(c) Modified award be prepared accordingly.
(d) Original claimants are permitted to withdraw remaining amount,
if any.
(e) Appellant - Insurance Company is permitted to recover the
difference amount from claimants, if any, as per law.
(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.)
Umesh
