[Cites 1, Cited by 0]
Bombay High Court
The New India Assurance Co. Ltd. Through ... vs Ashabai Prakash Deshmukh And Ors. on 22 December, 2025
2025:BHC-AS:56788
S.S.Kilaje 18-FA-930-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 930 OF 2023
The New India Assurance Co. Ltd.
Through its Divisional Manager,
Having their office at Yash Vallabh Shopping
Complex, Near Dhule Municipal Corporation,
Dhule, District : Dhule ... Appellant
versus
1 Sau. Ashabai Prakash Deshmukh
Age : 49 years, Occ : Nil
2 Shri. Prakash Popatrao Deshmukh
Age : 53 years, Occ : Nil
Both R/o. Post Zodge, Tal -Malegaon,
District : Nashik
3 Mr. Prashant Prabhakar Deshmukh
Age - Adult, Occ : Owner
R/o. Navin Panyachi Taki (New Water Tank), Respondents
Station Road, Chalisgaon, Dist : Jalgaon ...
WITH
CROSS OBJECTION STAMP NO. 22918 OF 2024
IN
FIRST APPEAL NO. 930 OF 2023
The New India Assurance Co. Ltd. ... Appellant
Yash Vallabh Shopping Complex,
Near Dhule Municipal Corporation,
Dhule, District : Dhule
versus
1 Ashabai Prakash Deshmukh
Age about 60 years
1/6
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S.S.Kilaje 18-FA-930-23.doc
2 Prakash Popatrao Deshmukh
Aged about 64 years,
Both R/o. At- Post Zodge,
Tal -Malegaon, District : Nashik
3 Prashant Prabhakar Deshmukh
R/o. Navin Panyachi Taki (New Water Tank), ... Respondents
Station Road, Chalisgaon, Dist : Jalgaon
............
Mr. Rajesh Kanojia a/w. Ms. Deepika Prabhala i/b. Res Juris, Advocates for
the Appellant.
Mr. T.J.Mendon, Advocate for the Respondents.
CORAM : R. M. JOSHI, J.
DATE : 22nd DECEMBER, 2025.
ORAL JUDGMENT :
1. The Judgment and Award dated 08.05.2018 passed in M.A.C.P. No.
250 of 2013 has been taken exception both by the insurer as well as
claimants.
2. It is the case of the insurer that the Tribunal has committed error in
accepting the contributory negligence of the deceased in the occurrence of
the accident only to the extent of 25% which should be 50%, since
deceased was not wearing helmet and was driving motorcycle along with
two pillion riders. It is also claimed by the insurer that the Tribunal has
erred in accepting the income of the deceased, so also by applying the
future prospects at 50% when there is evidence on record to indicate that
the deceased has obtained Shop Act Licence and was into business.
S.S.Kilaje 18-FA-930-23.doc
3. The claimant seeks enhancement on the ground that the Tribunal
has not framed issue of contributory negligence of the deceased in the
occurrence of the accident and as such it was not open for the Tribunal to
record any findings in this regard. Similarly ,enhancement is sought on the
ground of non payment of consortium to the claimant.
4. Learned counsel for the insurer submits that on the basis of the
evidence available on record before the Tribunal it can be said that the
deceased was riding the said motorcycle without wearing helmet so also
with the two persons on the motorcycle. It is his submission that this
evidence itself is sufficient to hold that he has contributed in the
occurrence of the accident to the extent of 50%. It is further submitted
that there is evidence on record to show that deceased had obtained the
Shop Act Licence which according to him indicates deceased was not
intending to continue with the employment and in such circumstances the
Tribunal has committed error in granting future prospects to the extent of
50%.
5. Learned counsel for the claimant submits that since the issue of
contributory negligence was not framed, the findings recorded to that
extent are not sustainable. Without prejudice to this submission, it is
argued by relying on the Judgment of Hon'ble Supreme Court in the case
of Anjana Narayan Kamble and Ors. Vs. Branch Manager, Reliance General
S.S.Kilaje 18-FA-930-23.doc
Ins. Co. Ltd. And Anr.1, that the violation of traffic rules is no ground to
hold negligence unless there is evidence that either the accident could have
been averted or the impact could have been minimised. It is submitted
that there is absolutely no evidence on record to hold so. He also seeks
enhancement by grant of consortium to the claimants.
6. No doubt the insurer in the written statement has alleged entire
negligence on the part of the rider of the motorcycle in occurrence of the
accident. However, the Tribunal has not framed any issue in this regard.
In absence of framing of any issue with regard to the contributory
negligence, the claimant is deprive of meeting with such issue and to lead
appropriate evidence. In any case, unless there is evidence to indicate that
the deceased has contributed in the occurrence of the accident for the
reason that on account of riding the motorcycle with two pillion riders, he
could not control the vehicle or any other similar evidence to indicate so.
Perusal of the police papers do not indicate any such contributions on the
part of the deceased in the occurrence of the accident.
7. In the Judgment of Hon'ble Supreme Court in the case of Anjana
Narayan Kamble (supra) has held in the similar facts that merely because
the deceased was not wearing a helmet or was riding the motorcycle with
two other pillion riders is not ground to hold him negligent for the
occurrence of the accident unless there is evidence to show that the
1 2023 ACJ 346
S.S.Kilaje 18-FA-930-23.doc
accident could have been averted or the impact could have been
minimised. For want of any evidence to hold so, this Court finds no
justification in the findings recorded by the Tribunal holding deceased
negligent to the extent of 25%. The order impugned therefore deserves
interference to that extent. It is held that the driver of offending vehicle
was solely responsible for causing of accident.
8. As far as the employment and the income of the deceased is
concerned, the claimants apart from the evidence of claimant No.1 led
evidence of the employer Sandip Suryawanshi at Exhibit-39. This witness
categorically states about deceased working with the company as a
Designed Engineer from April-2012 till November 2012. The accident had
occurred on 27.11.2012 in which he died and therefore till death he was
working. He has also placed on record the evidence indicating the
payment of salary of Rs.35,000/- to the deceased. He also placed on
record Form -16. This evidence is more than sufficient to hold that the
deceased was employed and was earning salary as claimed by the
claimant.
9. As far as the obtainment of the Shop Act Licence by the deceased,
there is no cross examination conducted of the claimant to indicate that
the deceased was intending to quit the employment and conduct the
business. From obtainment of Shop Act licence it cannot be assumed that
S.S.Kilaje 18-FA-930-23.doc
he wanted to leave employment and start business. Such presumption is
not permissible, sans any evidence to indicate so. In such circumstances,
50% future income granted by the Tribunal can not be faulted with.
10. The Tribunal however has failed to grant consortium to the claimant
and the same deserves to be directed to be paid. In view of above,
following order:
ORDER
(i) The appeal stands dismissed.
(ii) The cross objection stands partly allowed.
(iii) The filial consortium to the extent of Rs.48,000/- each
deserves to be granted to the claimant.
(iv) The Statutory amount along with accrued interest be
transferred to the Tribunal. The parties are at liberty to
withdraw it.
(v) The claimant shall be entitled to withdraw amount of
compensation with interest accrued.
(vi) Pending applications, if any, stands disposed of.
(vii) R & P be sent back to the Tribunal.
Digitally
(R. M. JOSHI, J.)
signed by
SONALI
SONALI SATISH
SATISH KILAJE
KILAJE Date:
2025.12.23
10:03:57
+0700
