Bombay High Court

Smt. Jayashree Chandrakant Shinde And ... vs Shri. Kalidas Devram Awhale And Ors on 21 February, 2025

   2025:BHC-AS:9171
WAKLE
MANOJ
JANARDHAN             Anand Sudame                                                              FA1351.2019.doc
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WAKLE MANOJ
JANARDHAN
Date: 2025.02.26
17:29:10 +0530
                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION

                                               FIRST APPEAL NO. 1351 OF 2019

                      1.     Jayashree Chandrakant Shinde
                             Age : 41 years, Occ. : Housewife

                      2.     Pooja Chandrakant Shinde
                             Age : 22 years, Occ.: Education

                      3.     Gayatri Chandrakant Shinde
                             Age : 20 years, Occ. : Education

                      4.     Gaurav Chandrakant Shinde
                             Age : 17 years, Occ. : Education

                             Appellant No. 4 being minor
                             Through Appellant No. 1 the natural
                             Guardian mother

                      5.     Shantabai Bhagwan Shinde
                             Age : 74 years, Occ. : Housewife

                             All Nos. 1 to 5, R/o. Wadgaon Shinde,    ....Appellants/
                             Tal. Haveli, District : Pune.            Original Claimants

                                      Vs.

                      1.     Kalidas Devram Awhale
                             Age : Adult, Occ. : Driver
                             R/o. Awhalwadi, Post : Wagholi,
                             Tal. Haveli, District : Pune

                      2.     Tushar Gopinath Awhale
                             Age : Adult, Occ. : Owner
                             R/o. Awhalwadi, Post : Wagholi,
                             Tal. Haveli, District : Pune

                      3.     The New India Insurance Co. Ltd.
                             Office at 12, Sharada Centre,            ......Respondents/
                             Erandwane, Pune - 411 004.               Original Opponents


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Ms. Urmisha Vargante i/b. Mr. Ravindra Pachundkar for the
Appellants.
Mr. Pratik Sarkar i/b. Vidhi Legal & Mr. G. Shyam Kumar, for the
Respondent No. 3 - Insurance Company.
None for Respondent Nos. 1 and 2.


                                          CORAM : SHYAM C. CHANDAK, J.

                                    RESERVED ON : 10th FEBRUARY, 2025.
                                 PRONOUNCED ON : 21st FEBRUARY, 2025.

JUDGMENT :

. Present Appeal is directed against the Judgment and

Order dated 01.02.2019, in M. A. C. P. No.536 of 2016, passed by the

Motor Accident Claims Tribunal at Pune thereby the said Claim

Petition filed under Section 166 of the Motor Vehicles Act of 1988 by

the Appellants, has been partly allowed with proportionate costs and

the Respondents/Original Opponents have been directed to pay the

Appellants jointly and severally a compensation of Rs.12,68,050/-

alongwith 7% interest p.a. from the date of Claim Petition till

realization of the said amount.

2) Heard finally Ms. Vargante, the learned counsel for the

Appellant and Mr. Pratik Sarkar, the learned counsel for the

Respondent No.3. Perused the record. Despite notice, none appeared

for the Respondent Nos.1 and 2.

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3)              The Appellants filed the said M.A.C.P. No.536 of 2016

therein they averred that :

On 18.12.2015 at about 3.30 p. m., the deceased was riding

on a motor cycle (M/cycle) along Kesnand - Wagholi road, District

Pune. One Sanjay Murkute was a pillion with the deceased. When

they reached near Sainath Furniture shop on the said road, one Tata

ACE tempo bearing regn. No. MH-12/MF/0659 ('tempo', for short)

came from opposite side and dashed against the M/cycle. As a result,

the deceased sustained serious injuries. The deceased was removed to

Life Line Hospital and thereafter, he was shifted to Jehangir Hospital,

where he was inpatient from 18.12.2015 to 20.12.2015. However, the

deceased expired on 20.12.2015. It was averred that the accident

occurred due to rash and negligent driving of the tempo. The

deceased was aged 49 years, he was a vegetable vendor thereby he

was earning an income of Rs.3,02,630/- p.a. Besides, the deceased

was also earning an income of Rs.1,00,000/- p.a. by cultivating his

lands. All the Appellants were dependent on the income of the

deceased. Therefore, the Appellants claimed a compensation of

Rs.45,00,000/- from the Respondents who were the driver, owner

and the insurer of the tempo.

4) The Respondent Nos.1 and 2 opposed the Claim Petition

by their Written Statement at Exh.12. The Respondent No.3 also

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resisted the Claim by filing a Written Statement at Exh. 18. The

Respondents contended that the accident occurred due to rash and

negligent riding of the M/cycle by the deceased. The Respondent

Nos.1 and 2 contended that, the tempo was insured with the

Respondent No.3, therefore, they were not responsible to pay the

compensation. However, the Respondent No.3 contended that there

was breach of the policy terms and conditions by Respondent No.2,

therefore, Respondent No.3 was not liable to pay the compensation.

5) In order to prove the claim, the Appellants adduced the

evidence of the Appellant No.1. on Affidavit at Exh.22. Additionally,

the Appellants examined CW2-Hemantkumar Champaklal Shah, a

Chartered Accountant (Exh.52) and CW3-Subhash Dattatray Kodre,

Sr. Billing Executive of Jehangir hospital, Pune (Exh.54). Besides, the

Appellants have relied upon various documents in evidence.

6) After considering the evidence, the Tribunal held that the

accident occurred due to rash and negligent driving of the offending

vehicle, which caused injuries to the deceased and, it led to his death.

However, the Tribunal held that the notional monthly income of the

deceased was Rs.8000/- only. Accordingly, the tribunal awarded the

compensation totaling to Rs.12,68,050/- inclusive of the medical

expenses. Lastly the Tribunal held that the offending vehicle was

validly insured with the Respondent No.3, therefore, directed the

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Respondents to pay the compensation as stated above. But, according

to the Appellants, the compensation is inadequate. Hence, Appeal.

7) On the point of accident, the evidence of Appellant No.1 is

that on the relevant date, at time and place of the accident, the tempo

came from opposite direction, driven in a high speed and, in a rash

and negligent manner. Consequently, the tempo dashed against the

M/cycle and the deceased suffered serious injuries. The deceased was

treated in the aforesaid hospitals, however, he expired on 20.12.2015

on account of accidental injuries. This evidence is corroborated with

the FIR (Exh.23), the spot panchanama (Exh.24) and the postmortem

report (Exh.27). The Respondent Nos. 1 and 2 remained absent at the

time of cross-examination of the Appellant No.1. Nothing material

has emerged in the cross-examination of the Appellant No.1 on behalf

of the Respondent No.3 to disbelieve her version and the police

papers on the point that, the accident occurred due to rash and

negligent driving of the tempo. The aforesaid evidence is not

challenged by the Respondent No.3 by putting the driver of the tempo

in the witness box. Therefore, I am in unison with the finding

recorded by the Tribunal that, the accident occurred due to rash and

negligent driving of the tempo.

8) As to the occupation and the income, the evidence of the

Appellant No.1 is that at the time of accident, the deceased was doing

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the business of vegetables at Lohegaon Market as well as weekly

bazaar of Vadgaon Shinde, Golegaon, Moshi and Alandi thereby the

deceased was getting income of Rs.3,02,630/- per annum. Besides,

the deceased was cultivating the agricultural land of the family and

getting Rs.1,00,000/- per annum from the agriculture. To accept this

evidence, the Appellants have heavily relied upon the evidence of

CW2-Hemantkumar Shah and the 7/12 extracts of the agricultural

lands at Exhs.30 to 47.

9) The evidence of CW2-Hemantkumar Shah is that, since

1987 he has been working as a Chartered Accountant. The deceased

was his client and he used to file his income tax returns. The annual

income of the deceased was Rs.3,02,560/- for the Financial Year

2015-16 and the deceased had paid a sum of Rs.1,088/- towards the

income tax for the Assessment Years 2016-17. In this regard CW2

referred the income tax return at Exh.53 for the Assessment Years

2016-17.

9.1) In the cross-examination, CW2 admitted that an income

tax payer shall submit his income tax return with the CPC, Bangalore

under the payer's signature; that, the deceased died on 20.12.2015;

that, the income tax returns were transmitted to the Income Tax

Department on 23.06.2016; that, the income tax return does not bear

signature of the deceased; that, if the income tax return signed by the

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tax payer is not submitted within 120 days of filing the income tax

return electronically, then it is presumed that income tax return is not

filed; that, the deceased had not given him any document while

preparing the income tax return; that, the income tax return was

prepared on the basis of the "self assessment" made by the Appellant

No.1. CW2 denied that the deceased had not submitted any income

tax return prior to the income tax return at Exh. 53. CW2 denied that

he has shown the income of the deceased on higher side.

10) In view of the aforesaid admissions by CW2, the Tribunal

noted that the income tax return were submitted after the death of the

deceased. Said returns were not signed by the deceased. The profit

and loss account, the balance sheet and the income tax returns were

prepared without any document. CW2 stated that he used to file the

income tax returns of the deceased. However, such returns of the

previous years were not produced. There is no corroborative evidence

such as Shop Act licence as vegetable vendor. Therefore, the Tribunal

held that, the evidence as to the income tax return cannot be believed

and the income from vegetable business is not proved.

10.1) Insofar as the income from the agriculture is concerned,

the Tribunal held that the lands shown in 7/12 extracts are joint

family properties and the deceased was not the sole owner thereof.

That, Mr. Ravindra Shinde and Respondent No.5 are the co-owners of

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the lands. The Tribunal observed that there is no document such as

receipts of sale of agricultural produces, Market cess etc. to prove the

agricultural income of the deceased. It is noted that after the death of

the deceased, the names of the Appellant Nos.1 to 4 have been

mutated in the revenue record. The said lands are still in existence

and cultivated by the claimants. Even otherwise, the agricultural

income was pleaded as Rs.1,00,000/- p.a. Accordingly, the Tribunal

held the agriculture income as Rs.8,000/- per month, notionally.

11) Further, the Tribunal held that all the Appellants were

dependent on the income of the deceased. Therefore, 1/4th of the

annual income of the deceased was deducted towards his personal

and leaving expenses. Accordingly, the Tribunal held that the family

contribution of the deceased was Rs.6,000/-, which annually comes

to Rs.72,000/-. It is held that, the deceased was aged 49 years as per

his date of birth 05.07.1966 vide income tax return (Exh.53.). Hence,

the Tribunal applied the multiplier of 13 and quantified the loss of

dependency as Rs.9,36,000/-. The Tribunal awarded Rs.40,000/- to

Appellant No.1 as spousal consortium, Rs.15,000/- as the funeral

expenses and Rs.15,000/- as the loss of estate. Lastly, the Tribunal

awarded the entire medical expenses of Rs.2,62,047/- which the

Appellants had incurred over the medical treatment of the deceased.

Thus, the Tribunal awarded a total compensation of Rs. 12,68,050/-.

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12)             The learned counsel for the Appellants submitted that

there is no dispute that, the deceased was cultivating the lands and

getting the income as held by the Tribunal. But the said income from

the agriculture was not enough to fulfill the basic needs of the family.

Therefore, the deceased was doing the vegetable business to earn

more. He submitted that, the evidence on the point of occupation and

income of the deceased was not challenged by adducing evidence in

the rebuttal. The deceased was maintaining the family of six

members. As such, and considering the living costs prevailing in the

year of the accident, the Appellants' assertion and evidence as to the

income from the vegetable business was worthy of reliance. However,

the Tribunal unreasonably rejected the said evidence. He, submitted

that as per the income tax returns for the assessment year 2016-17,

the annual income from the vegetable business was Rs.2,78,454/-. He

submitted that no compensation is awarded towards the future

prospects and as consortium to the other Appellants. As such, the

impugned Judgment and Order is erroneous and it be modified.

13) As against this, the learned counsel for the Respondent

No.3 supported the impugned Judgment and Order stating that, the

same is based on appreciating the evidence in its correct perspective.

However, the learned counsel is in favour of awarding an appropriate

compensation towards the future prospects and the consortium.

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14)             The 7/12 extracts produced in the evidence indicate that,

the deceased was not the sole owner of the lands nor the Appellants

so specifically pleaded. It is not the case of the Appellants that the

said lands have been sold meaning thereby they are cultivating the

lands and getting income from it. However, it cannot be ignored that

after the death of the deceased, the Appellants must be hiring some

labour to manage the lands. As such there was loss of managerial

skills/servicers on account of the death of the deceased. And,

considering the total land and the rate of inflation prevailing at the

time of the accident, I am in agreement with the Tribunal that the loss

towards agriculture income/managerial skills was Rs.8000/- p.m.

15) Considering the evidence, it is probable that, all the joint

owners must be cultivating the said lands and sharing its income. As

noted above, there were six members in the family of the deceased;

his daughters-Appellant Nos.1 and 2 were of marriagable age; his

mother was aged, as such, the family expenses must be on higher

side. At the same time, the deceased must have been planning for the

daughters' marriage as both daughters were aged 20 years. It is

common experience that, one is not required to cultivate his land

throughout the year. As such, it is probable that besides agriculture,

the deceased was also doing the vegetable business to earn more, to

meet the financial needs of his family. Therefore, even if the income

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tax returns cannot be relied upon and there is no other document to

prove the income from the vegetable business, there is no hurdle to

hold some income from the vegetable business. And considering the

deceased was doing the vegetable business at several places and

looking at the size of his family, it is probable that, excluding the

vegetable business related expenses, the income of the deceased from

the vegetable business was Rs.7,000/- p.m. Thus, in my considered

view, the total notional monthly income of the deceased was

Rs.15,000/- and annually Rs.1,80,000/-.

16) In accordance with the decision in National Insurance Co.

Ltd. v/s. Pranay Sethi and others.1, some amount shall be added to

the net annual income of the deceased towards his future prospects.

The deceased was aged 49 years. His income was not regular. Hence,

the addition towards his future prospects should be 25% of his yearly

income Rs.1,80,000/- as held above. Accordinlgy, the actual yearly

income of the deceased comes to Rs.2,25,000/- (1,80,000 + 45,000).

17) In accordance with the decision in Sarla Verma and others

v/s. Delhi Transport Corporation and another 2, in paragraph 14,

where the deceased was married, the deduction towards personal and

living expenses of the deceased should be one-forth (¼ th) where the

number of dependent family members is 4 to 6.

1. 2017 ACJ 2700 (SC).

2. 2009 ACJ 1298 (SC).

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17.1)             In the case in hand, the Appellant No.1 is the widow,

Appellant Nos.2 and 3 are the daughters, Appellant No.4 was the

minor son and the Appellant No.5 is aged mother of the deceased. All

the five were dependent on the income of the deceased. As such, it

would be appropriate to deduct 1/4th of the actual yearly income of

deceased towards his personal and living expenses. On the 1/4th

deduction, the yearly contribution to the family come to Rs.1,68,750/-

(Rs.2,25,000 - Rs.56,250/-). Considering the deceased was aged 49

years, the justifiable multiplier would be '13'. Applying this multiplier

to the yearly family contribution i.e., multiplicand of Rs.1,68,750/-,

the actual loss of dependency would be Rs.21,93,750/-.

17.2) As per the ratio in the case of Pranay Sethi (supra) and

Magma General Insurance Co. Ltd. v/s. Nanu Ram Alia Chuhru Ram

& ors.3, the Appellants being the widow, daughters, minor son and

mother of the deceased, they are entitled to receive Rs.48,000/- each

as spousal, parental and filial consortium, respectively. Further, all

the Appellants are entitled to receive Rs.18,000/- under the head

'funeral expenses' and Rs.18,000/- under the head 'loss to estate'.

Thus, total compensation comes to Rs.22,77,750/-.

17.3) From the evidence of the Appellant No.1, CW3-Subhash

Kodre and the hospital bills at (Exh.56), it is established that, the

3. 2018 ACJ 2782 (SC).

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deceased was inpatient in Jehangir Hospital from 18 th to 20th

December 2015 and Rs.2,62,047/- were spent on his medical

treatment. Therefore, the Appellants are entitled to receive the same.

17.4) Thus, the Appellants are entitled to receive total

compensation of Rs.25,39,797/-.

18) The Claimants are entitled for some interest on the

compensation amount. Rate of such interest is required to suit the

prevailing rate of interest at the time of accident. There is no

straitjacket formula for awarding interest at a particular rate. It

depends on facts and circumstances of each case. This accident

occurred in the year 2015, the Claim Petition was filed in the year

2016 and decided in the year 2019. The deceased was the only earning

member of the family. Having regard to these circumstances and the

average rate of interest prevailing between 2015-2019, grant of

interest @ 7.5% p.a. will be just and proper.

19) In the case, the Respondent No.3 has already deposited

the compensation amount awarded by the Tribunal then, the

Appellants will be entitled to receive only the enhanced compensation

as under :-

        Total compensation amount          :      Rs.25,39,797/-
        Minus the compensation amount :         - Rs.12,68,050/-
        awarded by the Tribunal and paid.
        Enhanced compensation amount :          = Rs.12,71,747/-





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20)             Now the Appellant No.5 has attained majority. He must be

cultivating the lands of the family and doing some labour. In this

background I deem it appropriate that the entire amount of the

enhanced compensation should be paid to the Appellant Nos.1 to 3 in

the ratio 50:25:25.

21) In the backdrop of the aforesaid discussion, the Appeal

partly succeeds. Hence, following Order is passed :-

-ORDER-

(a) First Appeal is partly allowed with proportionate

costs.

(b) The impugned Judgment and Order dated 01st

February, 2019 passed by the Motor Accident Claims

Tribunal, Pune in M.A.C.P. No. 536 of 2016 is modified.

(c) Respondents are directed to jointly and severally pay

compensation of Rs.25,39,797/- (inclusive of no fault

liability) together with interest thereon at the rate of 7.5 %

per annum from the date of the Claim Petition till

realisation of the amount.

(c-1) The Respondents shall be entitled to proportionate

costs of the Appeal.

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                (d)     Respondent No.3/insurance company is directed to

comply with this Judgment and Order within a period of

three months from today, by depositing the amount in the

Tribunal.

(e) Respondent No.3 will be entitled to adjustment of

the amount against the already paid under the impugned

Award.

(f) On deposit of the amount the Tribunal shall

immediately inform about the deposit to the Appellants.

(g) The amount deposited in the Tribunal shall not be

invested for a period of eight weeks from the date of

deposit.

(h) The entire amount of the enhanced compensation