Kalpana Vijaybachchav And 2 Ors vs Eknath Baburao Auchite And 2 Ors
2025 Latest Caselaw 9147 Bom

Bombay High Court

Kalpana Vijaybachchav And 2 Ors vs Eknath Baburao Auchite And 2 Ors on 19 December, 2025

2025:BHC-AUG:36328
                                                                          FA-1123-2011.odt




                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD
                               FIRST APPEAL NO. 1123 OF 2011
          1.    Smt. Kalpana Vijay Bachchhav,
                Age: 37 years, Occ: Household,

          2.    Kumari Vaibhavi Vijay Bachchhav,
                Age: 13 years, Occ: Education,

          3.    Kumari Doly Vijay Bachchhav,
                Age: 9 years, Occ: Education,

                The applicant no. 1 is mother
                and guardian of applicant Nos. 2 and 3

                All R/o Sopa, Tq. Parner,
                                                                  ...Appellants
                Dist. Ahmednagar

                Versus

          1.    Shri. Eknath Baburao Auchite,
                Age: Major, Occ: Business,
                R/o Supra, Tq. Parner,
                Dist. Ahmednagar,
                (Owner of Tempo No. MH-16/B 4127)

          2.    National Insurance Company Ltd.,
                Notice be served on its Divisional Office
                at Raj Chamber, Kothala Maidan,                  ...Respondents
                Ahmednagar, Dist. Ahmednagar

                                                ***
          Mr. S. S. Patil, Advocate h/f Ms. N. R. Suryawanshi, Advocate for Appellants
          Mr. S. D. Jaybhar, Advocate h/f Mr. D. R. Jaybhar, Advocate for Respondent
          No.1
          Mr. S. P. Chapalgaonkar, Advocate for Respondent No. 2
                                                ***

                                                CORAM : ABHAY S. WAGHWASE, J
                                      RESERVED ON : DECEMBER 04, 2025
                                   PRONOUNCED ON : DECEMBER 19, 2025



                                             Page 1 of 13
                                                                     FA-1123-2011.odt




JUDGMENT:

1. This Appeal is preferred under Section 166 of Motor Vehicle

Act, 1988 (for short "the Act") by original claimants taking exception to the

judgment and order dated 05.12.2006 passed in MACP No. 507/2000.

2. Claimants are wife & children of Vijay Sakharam Bachchav, who

died in motor vehicular accident occurred on 19.04.2000. Owner of the

offending vehicle as well as insurer were made party to the claim Petition. It

is the case of the claimants that, on 19.04.2000 deceased was proceeding on

his motorcycle bearing no. MH-16-C-4208. When he reached Parner to Supa

Road in Hanga Village Shiwar, a tempo bearing No. MH-16/B-4127 came

from opposite direction and gave dash to motorcycle of deceased in the

negligent manner. In the said accident, deceased sustained serious head

injury. As a result of fatal injuries, deceased died on the spot.

Claimants being widow and children, filed claim Petition

bearing MACP No. 507/2000 before Tribunal at Ahmednagar claiming

compensation of Rs.17 lacs. It is the case of the Claimants that, deceased

was aged about 37 years at the time of accident and he was working as a

C.D.O. in Z.P. Department and earning Rs. 12,000/- per month.

3. Owner and Insurer have contested the claim petition and filed

their written statements at Exhibits 19 and 20, respectively denying the

claim and contentions of the claimants.

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4. After framing of the issues at Exhibit 31, Claimant No.1 -

Kalpana Bachchav led her evidence. In addition thereto, to prove income of

the deceased, income certificate issued by Dr. Vikramsing Bankarsing Rajput,

District Officer, is placed on record at Exhibit 45. Tribunal by judgment and

award dated 05.12.2006, directed Respondents to pay sum of Rs. 5,65,000/-

along with interest at 9% per annum. Since compensation granted by the

Tribunal is found to be inadequate, Claimants/Appellants preferred this

Appeal.

5. Learned Counsel for the Claimants/Appellants seeks

enhancement of compensation on the ground that, Tribunal has failed to

take into consideration the income of the deceased to the tune of

Rs.11,760/- p.m when there is income certificate on record. That, Tribunal

has also not considered the future prospects of the deceased in view of

judgment of Hon'ble Apex Court in case of National Insurance Co. Ltd vs.

Pranay Sethi, (2017) 16 SCC 680. That, Tribunal has erred in deducting

1/3rd income towards personal expenses of the deceased instead of

deducting 1/4th. That, even filial consortium ought to have been paid at

Rs.40,000/- per claimant in view of the judgment of the Hon'ble Apex Court

in case of Magma General Insurance Co. Ltd vs. Nanu Ram and Ors, 2018

ALL SCR 2001. Finally, by relying upon the judgment of Hon'ble Apex Court

in case of Kumari Kiran Thr. Her Father Harinarayan vs. Sajjan Singh and

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Ors, 2015 (3) MhLJ 626, it is vehemently submitted that Tribunal has erred

in considering contributory negligence of the deceased in occurrence of

accident when in fact driver of the tempo was driving vehicle in rash and

negligent manner.

6. Learned Counsel for the Respondents opposed the said

contentions by pointing out the evidence on record, which according to

them, indicates that income of the deceased is rightly considered by

Tribunal. It is their submission that, Tribunal has rightly deducted the 1/3rd

income towards personal expenses of the deceased. They further submitted

that, deceased also responsible for occurrence of accident as he is driving

motorcycle rashly and negligent and without following traffic rules. On

these amongst other contentions, they seek dismissal of the Appeal.

7. There is no dispute about the occurrence of the accident and

involvement of the offending vehicles therein. Tribunal has held that the

accident has occurred due to the negligence of the driver of the temp so also

deceased also negligent and that the claimants are entitled for

compensation.

8. The issues, which arises for consideration at the hands of this

Court, are in respect of non consideration of future prospects & filial

consortium, deduction of 1/3rd amount towards personal expenses &

deceased can be held to be guilty of contributory negligence.

FA-1123-2011.odt

9. Claimants though have made claim regarding deceased

receiving salary of Rs. 11,760/- per month, Tribunal has considered the

salary of the deceased only to the tune of Rs. 9,965/- per month. In this

regard, it is pertinent to note that, claimants have placed on record salary

certificate of the deceased at Exhibit 45, which was duly proved by Dr.

Vikramsing Bankarsingh Rajput, District Officer. Though the witness has

stated in cross-examination that the net salary of the deceased was Rs.

9,965/- per month, the Salary Certificate at Exhibit 45 belies this statement

and would prevail. The documentary evidence clearly prevails over the oral

testimony, and therefore, the income reflected in Exhibit 45 deserves

acceptance.

In view of above, in considered opinion of this Court, the

conclusion reached by Tribunal with regard to monthly income of deceased

is not just & proper, needs interference.

10. As far as non grant of future prospects and filial consortium are

concerned, law to that extent is fairly settled by the Constitution Bench of

the Apex Court in case of Pranay Sethi (supra) has held that future

prospects are also required to be considered and it should be granted @

50% when deceased is aged below 40 years and having permanent job.

Admittedly, deceased was aged about 38 years, hence, 50% addition needs

to be given to the deceased.

FA-1123-2011.odt

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.

11. As far as issue with regard to deduction of 1/3rd income

towards personal expenses is concerned, this position was made clear by

Hon'ble Apex Court in case of Sarla Verma and Ors. v. Delhi Transport

Corporation & Another, (2009) 6 SCC 121, wherein it is observed as under:

"14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra [(1996) 4 SCC 362], the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six."

In view of the above position, it can safely be held that the

Tribunal was justified in deducting one-third of the income of the deceased

towards personal and living expenses, as there were three dependents. The

said deduction is in consonance with the settled principles of law and,

therefore, calls for no interference by this Court.

FA-1123-2011.odt

12. Now, the last issue remains for determination is of contributory

negligence. Learned Counsel for the Appellants/claimants has placed heavy

reliance on the judgment of Hon'ble Apex Court in case of Kumari Kiran

(supra), wherein, Hon'ble Apex Court relying upon judgment in case of Juju

Kuruvila & Ors, vs. Kunjujamma Mohan & Ors., (2013) 9 SCC 166, held in

paragraph 13 as under:

13. With regard to the apportionment of contributory negligence at 25% on the part of the appellant-father and 75% on the driver of the offending tractor as determined by the High Court, we refer to the judgment of this Court in Juju Kuruvila & Ors. v. Kunjujamma Mohan & Ors.[5] as it is applicable to facts of the case on hand. In the above case, Joy Kuruvila (the deceased) had a head-on collision with a bus approaching from the opposite side. Joy Kuruvila sustained serious injuries and died on the way to the hospital. The Tribunal found that the accident occurred due to the rash and negligent driving of the bus driver. It apportioned the contributory negligence between the driver and the deceased in the ratio of 75:25%. On the basis of the pleadings & evidence on record, in the above said case, this Court has held thus on the negligence of the driver of the bus:-

"20.5. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court

FA-1123-2011.odt

cannot give any specific finding about negligence on the part of any individual.

20.6. The post mortem report, Ext. A-5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal and his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext.A-5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of the accident. The mere suspicion based on Ext. B-2 "scene mahazar" and Ext. A-5 post-mortem report cannot take the place of evidence, particularly, when the direct evidence like PW3 (independent eyewitness), Ext. B-1 (FI statement) are on record."

The observations made by this Court in the case of Juju Kuruvila (supra) surely apply to the fact situation on hand. Upon thorough examination of the facts and legal evidence on record in the present case, it cannot be said that the appellant-father was rash and negligent just on the assumption made by the Tribunal that the collision occurred in the middle of the road since the two vehicles were approaching from opposite directions of the road. However, the only aspect of the case on hand that we can reasonably assume is that the appellant-father would have taken sufficient caution while riding the motorcycle since he was travelling with his two minor children (appellant-minors). Further, upon examining the evidence produced on record, there is no proof showing negligence on the part of the appellant-father. Thus in our view, the contributory negligence apportioned by the High Court at 25% on the appellant-father and 75% on the driver of the offending tractor is erroneous keeping in view the legal principles laid down by this Court on this aspect in the above referred case. Thus, we are of the firm conclusion that the negligence is wholly on the part of the driver of the offending tractor since he was driving the heavier vehicle. Therefore, we set aside the 25% contributory negligence on the part of the appellant- father as apportioned by the High Court. (Emphasis

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supplied)

13. In this case, Hon'ble Apex Court has held that there was no

direct or corroborative evidence to establish rash or negligent driving on the

part of the motorcycle rider. The finding of contributory negligence was

based only on assumptions drawn from the position of the vehicles and the

fact that the collision occurred mid-road, which is legally insufficient. In the

absence of proof showing negligence on the part of the motorcycle rider, he

cannot be held responsible for the accident. Consequently, the entire

negligence is attributable to the driver of the offending tractor, and the

appellant-father bears no contributory negligence.

14. Bearing in mind the above position, facts and reasoning of the

Tribunal are put to scrutiny.

15. In the present case, although there is a report of the occurrence

of the accident given to the police by one Balashaeb Auchite, the same

cannot be considered to be prompt, as the accident occurred at about 02:30

p.m., whereas the report was lodged at about 03:30 p.m. It is pertinent to

note that, this witness is the driver of the offending vehicle in question. In

the report, he has stated that after the occurrence of the accident, he was

frightened and, therefore, went to the police station. However, it is

significant to note that, he approached the police station only after a delay

of about one hour or more from the time of the accident. Such unexplained

FA-1123-2011.odt

delay creates a serious doubt about the spontaneity and genuineness of the

report and gives rise to a reasonable inference that the report may have

been lodged as an afterthought, with an intention to give a self-serving

version of the incident.

16. Even if the version of the witness is assumed to be true, the

same stands in clear contradiction to the findings recorded by the Tribunal.

In paragraph 8 of the impugned judgment, the Tribunal has observed that

the width of the road was 12 feet, whereas the width of the tempo was

approximately 8 to 10 feet. The witness has stated that while overtaking the

jeep ahead of him, the deceased collided with the tempo, resulting in the

accident.

Such a version is inherently improbable. When the width of the

road is only 12 feet and the tempo itself occupies 8 to 10 feet of that width,

even assuming the width of the jeep to be around 8 feet, more than half of

the road would already be occupied by the tempo alone. In such

circumstances, there would be virtually no space left for the motorcycle of

the deceased to overtake the jeep. Therefore, the story narrated by the

witness, read in conjunction with the Tribunal's own observations, does not

inspire confidence and cannot form the basis for holding that the deceased

was guilty of contributory negligence.

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17. Furthermore, in paragraph 9 of the judgment, the Tribunal has

relied upon the panchnama, wherein it is noted that blood was found on the

middle portion of the road. Merely because blood was found in the middle

of the road, it cannot be presumed that the deceased was riding in the

middle of the road or that he was negligent. Such an inference is purely

hypothetical and unsupported by any direct or cogent evidence. Several

material factors, including the speed, position and condition of the vehicles

and the directions in which they were proceeding, must be taken into

consideration. There is no material on record to establish that the accident

occurred due to any act of negligence on the part of the deceased. In the

absence of corroborative evidence, the Tribunal has committed a grave error

in holding the deceased guilty of contributory negligence.

18. In view of the foregoing discussion, this Court has no hesitation

in holding that the deceased cannot be saddled with contributory

negligence. On the contrary, the evidence on record clearly establishes that

the accident occurred due to the rash and negligent driving of the tempo by

its driver.

19. In view of above and by following the dictum of Hon'ble Apex

Court in case of Magma General Insurance Co. Ltd & Pranay Sethi (supra),

this Court finds it appropriate to grant Rs. 40,000/- towards filial

consortium & 50% addition towards future prospects. Hence, amount of

FA-1123-2011.odt

compensation payable is determined as follows:

Sr.                              Heads                         Calculations in Rs.
No.
1. Annual Income

Rs. 1,62,235 + 87,296/- (difference of 5th pay scale) = Rs. 2,49,531/- (-)Rs. 28,486/- Deduction towards income tax = Rs. 2,21,045/-

+ 50% addition towards future prospects= Rs.1,10,523/- Rs. 2,21,045 (+) Rs. 1,10,523 = Rs. 3,31,568/-

2. Rs. 3,31,568/- divided by 1/3rd of the personal expenses (Rs. 3,31,568 - Rs. 1,10,522/-) = Rs. 2,21,046

3. Multiplier Rs. 2,21,046 x 15 33,15,690/-

4. Love and affection 10,000/-

5. Loss of Estate 25,000/-

6. Funeral expenses 25,000/-

7. Consortium Rs. 40,000 x 3 1,20,000/-

8. Hence, total compensation to be paid Rs. 34,95,690/-

9. Compensation awarded by Tribunal Rs. 5,65,000/-

10. Total enhanced Compensation Rs. 29,30,690/-

20. As a result of above, Appeal stands partly allowed. Hence, the

order:

ORDER

(a) Appeal is partly allowed. Impugned judgment and award dated 05.12.2006 passed in MACP No. 507/2000 is modified. Total compensation is Rs. 34,95,690/- along with interest at 9% 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) The difference of compensation amount be deposited within a period of six weeks.

(e) Amount deposited (along with interest) by insurer is permitted to be withdrawn by Claimants.

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(f) No order as to costs.

(g) In view of disposal of Appeal, pending applications, if any, stands disposed of.

(ABHAY S. WAGHWASE, J.) Malani