Bombay High Court
Prashant S/O Babarao Bhongale ... vs Mohan S/O Anyaji Farfad And Another on 2 January, 2025
2025:BHC-NAG:269
J FA-250-2022.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.250 OF 2022
APPELLANTS : Prashant s/o Babarao Bhongale- Since
(Ori. Petitioners) deceased, through his legal representatives:
(On. R.A.)
1 Sadhana wd/o Prashant Bhongale,
Age- about 48 years; Occu- Housewife
2 Ku. Shubhangi d/o Prashant Bhongale,
Age- about 27 years; Occu- Student
3 Surbhi d/o Prashant Bhongale,
Age- about 24 years; Occu- Student
4 Sau. Shantabai w/o Babarao Bhongale,
Age- about 78 years; Occu- Housewife, All
R/o At Yamuna Bhawan, Gajanan Mandir
Road, Wadgaon, Tahsil and District-
Chandrapur.
..VERSUS..
RESPONDENTS : 1 Mohan s/o Anyaji Farfad,
(Ori. Respondents)
(On R.A.)
Age- about 53 years; Occu- Service, C/o
Shri Ghume, Near Ganpati Temple, Jatpura
Ward No.1, Ramnagar, Chandrapur, Tahsil
and District - Chandrapur.
2 Kunal s/o Vijay Kakde,
Age - about 21 years; Occu- Education,
R/at - Behind Gajanan Temple, Wadgaon
Road, Chandrapur, Tahsil and District-
Chandrapur.
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Mr M. P. Khajanchi, Advocate for Appellants.
Mr T. S. Deshpande, Advocate for Respondent No.1.
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CORAM : M. W. CHANDWANI, J.
RESERVED ON : 9th OCTOBER, 2024.
PRONOUNCED ON : 2nd JANUARY, 2025.
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2
JUDGMENT
1. Heard.
2. Correctness of the impugned award dated
26.04.2021 passed by the Motor Accident Claims Tribunal,
Chandrapur (hereinafter referred to as "the Tribunal") has been
challenged in the instant appeal, whereby the Tribunal awarded
a compensation of Rs.32,68,427/- to the original petitioners
towards loss of dependency on account of death of Prashant
Babarao Bhongale, who died on 12.01.2019 in a vehicular
accident that occurred on 20.02.2015.
3. Bare facts, which give rise to the present appeal, can
be summarized as under :
On 20.02.2015, deceased Prashant Bhongale was
proceeding towards Chandrapur on his motorcycle Honda
Activa bearing No.MH-34-AR-5544. However, when he
reached near Bapat Nagar Square, Chandrapur, a motorcycle
Hero Passion Pro bearing No.MH-34-AG-0708 (hereinafter
referred to as "the offending vehicle") driven by respondent
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No.2 came at a high speed and gave a dash from the rear end to
Prashant's motorcycle wherein he fell down, sustained severe
head injury and became unconscious on the spot itself.
Immediately, he was taken to the Government Hospital at
Chandrapur and later shifted to Neuron Hospital at Nagpur.
For better treatment, he was then hospitalized at Christ
Hospital in Chandrapur and subsequently transferred back to
Neuron Hospital at Nagpur but unfortunately, he remained
unconscious and did not regain consciousness. Initially,
appellant No.1, the wife of deceased Prashant, filed an injury
claim petition as a next friend of the deceased. Pending the
petition, deceased Prashant died on 12.01.2019 and the present
appellants were substituted as legal representatives of Prashant.
The appellants converted the injury claim petition into death
claim for a compensation of Rs.94,10,000/-.
4. Respondent No.1 is the owner of the offending
vehicle. At the time of the accident, respondent No.2 was
driving the offending vehicle. Respondent No.3 is the owner of
the motorcycle Honda Activa and respondent No.4 is the
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insurer of the said motorcycle. Respondent Nos.1 and 2 filed
their written statements and resisted the claim. The Tribunal
opined that Prashant died on 12.01.2019 due to a head injury
sustained by him in the accident that occurred on 22.02.2015.
The Tribunal partly allowed the petition directing respondent
Nos.1 and 2 to pay the amount of Rs.32,68,427/- jointly and
severally. Feeling aggrieved with the quantum of compensation
awarded by the Tribunal, the petitioners filed the present
appeal for enhancement of compensation.
5. Before I proceed to deal with the grounds raised in
the appeal by the appellants for enhancement of compensation,
it will be appropriate to deal with the objection raised by
respondent No.1 - the registered owner of the offending vehicle
regarding maintainability of the appeal. It is appropriate to
mention here that, after passing of the impugned award by the
Tribunal, the appellants filed proceedings before the Tribunal
for execution of the impugned award claiming an amount of
Rs.50,74,821/- including the interest and cost of the claim
petition. During the pendency of the execution proceedings,
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the matter was referred to Lok Adalat, where the appellants and
respondent No.2 - the driver of the offending vehicle settled
the dispute for Rs.40,00,000/- (forty lacs only). In the
compromise, it was agreed that the appellants will not be
entitled to recover the remaining amount or enhanced amount
of award, if any, by the High Court in this appeal from
respondent No.2. The said responsibility i.e. payment of
remaining amount or enhanced amount of the award, if any,
shall be of respondent No.1 and it was specifically mentioned
that the compromise will not affect the right of the appellants
to recover the remaining amount of impugned award from
respondent No.1. Needless to mention that, respondent No.2
paid the amount of Rs.40,00,000/- to the appellants.
Consequently, the liability of respondent No.2 was
extinguished and therefore, the appellants did not press the
appeal against respondent No.2.
6. Mr T. S. Deshpande, learned counsel appearing for
respondent No.1 vehemently submits that since the appellants
have already compromised and settled the matter with
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respondent No.2 for Rs.40,00,000/- towards full and final
settlement in Lok Adalat and since respondent No.2 has
already paid the amount of Rs.40,00,000/- in satisfaction of the
award passed in Lok Adalat, the appellants are not entitled to
file an appeal for enhancement of compensation amount
against respondent No.1 as well. According to him, no appeal
shall lie against the award passed in Lok Adalat. Therefore, the
appeal filed by the appellants is not maintainable at all. To
buttress his submission, he seeks to rely on the case of Sonba vs.
Sunil, 2017 SCC OnLine Bom 9889, wherein this Court in
para 20 has observed as under :
"20. It is to be seen that the Award of learned Claims Tribunal
was for the total compensation of Rs.2,20,500/-. The appellant-
claimant after negotiation settled amicably the quantum of
compensation to be recovered from respondent. He agreed and
accepted the amount of Rs.1,92,500/- and relinquished the right
to recover rest of the balance decreetal amount of Rs.28,000/-
from the respondent-owner of vehicle. These circumstances
reflect that the settlement of dispute in Lok Adalat was not
pertaining to mode and manner in which the decreetal amount
determined by the Claims Tribunal to be recovered. But, there
was compromise for the full and final quantum of compensation
to be recovered from the respondent in this case. Therefore,
once he has finalized the quantum of compensation amount to
be recovered from respondent-owner of offending vehicle, then
he has no locus standi to seek further enhancement of
compensation. In such peculiar circumstances, the prayer of
appellant-original claimant for enhancement of compensation is
not sustainable and considerable one. In case of any
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enhancement of compensation in this appeal, it would negate
the very purpose and object of negotiation taken place in the
Lok Adalat for amicable settlement of issue in controversy. It
would also conjure up an image of mischief with the respondent
while compromise in the Lok Adalat. Hence, claim of appellant
for enhancement of compensation would not be amenable
within the ambit of law for consideration in this appeal.
Therefore, appeal deserves to be dismissed being devoid of
merits."
7. Taking his argument further, Mr. Deshpande would
submit that though the award was passed holding both the
respondents jointly and severally liable but the release of one
joint tortfeasor releases all the others because the cause of
action is one and it is indivisible. In cases where the joint
tortfeasors are sued in several actions; satisfaction by one would
discharge the others. Though, the compromise between the
appellants and respondent No.2 suggests that it is only
respondent No.2 who has been discharged from his liability
after the payment of Rs.40,00,000/- but, in view of the above
legal position, the discharge of respondent No.2 from the
liability imposed in the award by the Tribunal also discharges
respondent No.1 and therefore, once the appellants agree for a
particular amount in compromise with respondent No.2, the
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appeal against respondent No.1 for enhancement of
compensation amount is not maintainable at all. To buttress his
submission, he seeks to rely on the decision of the Hon'ble
Supreme Court in the case of Khushro S. Gandhi and Ors. vs.
N. A. Guzder and Ors., (1969) 1 SCC 358.
8. Conversely, learned counsel appearing for the
appellants vehemently submitted that the award was passed
against respondent Nos.1 and 2 who were held jointly and
severally liable to pay the compensation amount by virtue of
the impugned award. According to him, when a decree is
passed against multiple persons holding them jointly and
severally liable, it is the discretion of the decree holder to
recover a portion of the amount from one, a portion from
another or the entire amount from any of the judgment
debtors. By settlement before the Lok Adalat, it was specifically
agreed between the appellants and respondent No.2 that by the
said compromise, only respondent No.2 will be discharged and
the remaining amount under the award as well as enhanced
compensation, if any, after judgment of the High Court will be
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recovered from respondent No.1. Having agreed so specifically
in the settlement, the appellants are entitled not only to recover
the remaining amount of the award from respondent No.1 but
also the enhanced amount of compensation, if any, awarded by
this Court in this appeal. It is also submitted that, in wake of
the specific condition mentioned in the compromise agreement
itself, the decision cited by respondent No.1 will not be
applicable and consequently, the appeal is maintainable against
respondent No.1.
9. Having heard the counsel for respective parties, now
the first question that arises is, whether the settlement done by
the appellants with respondent No.2 will absolve the liability of
respondent No.1, in spite of the rider clause in the settlement.
10. Needless to mention that, where a decree is passed
against multiple defendants holding them jointly and severally
liable to pay a sum, then each defendant is jointly and severally
liable to pay the entire amount of decree. It is the plaintiff's
choice to recover the amount of decree from either any one or
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both of the defendants. Thus, the position of law that a decree
holder has the right to proceed against all judgment debtors or
against any one of them cannot be disputed. No right is vested
with the judgment debtor to question such step taken by the
decree holders. In a compromise, if a decree holder, by
accepting a part of the decretal amount, relinquishes his right to
recover the remaining part of the decretal amount against a
particular judgment debtor, it will not absolve the remaining
judgment debtors so far as the remaining unsatisfied part of
decree is concerned. The effect of compromise with one of the
joint tortfeasors is that, it does not amount to a covenant not to
recover the unsatisfied part of decree from the remaining
tortfeasors because this is not a full satisfaction for the tort
alleged to have been committed by the other tortfeasors. This
was an election on the part of the decree holder to pursue the
several remedies against a particular joint tortfeasor. Thus the
release of one joint tortfeasor from the decree will not release all
the joint tortfeasors.
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11. From the case of Sonba (supra) relied upon by the
learned counsel for respondent, it can be deduced that the
learned Single Judge of this Court has held that once the
claimant has agreed to take the compensation amount towards
full and final settlement as per the award of Lok Adalat, then it
will be final and binding on the parties and the appeal for
enhancement of compensation will not be maintainable.
However, in the present case, the full and final settlement was
to the extent of absolving respondent No.2 only with a rider
clause to recover the balance amount of award from the
remaining respondent i.e. present respondent No.1. Therefore,
the decision in the case of Sonba (supra) will not be applicable.
12. So far as the case of Khushro (supra) is concerned,
in that case the plaintiffs had filed a suit for damages against six
defendants alleging that they were jointly and severally liable.
The sixth defendant rendered an apology which was accepted
by the plaintiffs and a decree was passed in terms of the
compromise with the sixth defendant. The Supreme Court held
that the compromise with the sixth defendant will not operate
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as a bar to sue the remaining defendants. Relevant portion of
the judgment has been reproduced as under:
"17. It seems to us, however, that the rule of
common law prior to Brown v. Mooton, 80 HR 47 and
the rule adopted by the United States Supreme Court is
more in consonance with equity, justice and good
conscience. In other words, the plaintiff must have
received full satisfaction or which the law must consider
as such from a tortfeasor before the other joint tortfeasors
can rely on accord and satisfaction. This rule would
recognise that the liability of tortfeasors is joint and
several.
What is full satisfaction will depend on the facts and
circumstances of the case. For example, the acceptance of
Rs. 25 in the of case of Ram Kumar Singh v. Ali Hussain,
ILR (1909) 31 All 759 would not be a case of full
satisfaction.
18. In this case an apology was received from the
defendant Rabadi and accepted and embodied in a
decree. This cannot be treated to be a full satisfaction for
the tort alleged to have been committed by the appellants
defendants. But this must be treated as an election on the
part of the plaintiffs to pursue his several remedy against
the defendant Rabadi."
13. Applying this ratio to the present case, it can be
observed that the compromise clearly mentions that this
settlement absolves respondent No.2 - the driver of the
offending vehicle and the petitioner shall be free to recover the
balance amount of the award as well as enhanced amount of
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compensation after the judgment of the High Court, if any
from respondent no.1- the owner of the offending vehicle. The
settlement with respondent No.2 cannot be termed to be full
accord and satisfaction of the decree as mentioned in the case
referred above on the ground that the petitioner accepted the
part payment of the award in the form of Rs 40,00,000/- out of
the total amount of 50,74,821/-. In these peculiar
circumstances, it is not open to respondent No.1 to claim the
benefit of settlement at par with respondent No.2 when the
terms of the settlement clearly state otherwise. Therefore, the
case of Khushro (supra) will also not be helpful to respondent
No.1. Rather, it supports the contentions of the appellants.
14. In wake of the above said discussion, I do not find
substance in the objection raised by respondent No.1, hence,
the objection is overruled.
15. Now, let me consider the appeal on merits. The main
contention in this appeal is that the Tribunal erred in not
considering the deceased's income mentioned in the income
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tax return for the year 2015-16 at Exh-83, which was filed after
the death of the deceased and this omission led to an incorrect
assessment of the deceased's income and consequently, an
improper award was passed by the Tribunal.
16. Perusal of the impugned award goes to show that the
Tribunal, in para 28 of its judgment considered the income of
the deceased as Rs.2,03,300/- for the year 2013-14 and
Rs.2,27,600 for the year 2014-15. However, the Tribunal
refused to take into consideration the income of the deceased
for the year 2015-16 mentioned in the income tax return i.e.
Rs.4,32,000/- on the ground that it is not a reliable document.
The Tribunal, by taking into account the growth in income of
the earlier year, assessed the income of the deceased for the year
2015-16 and on the basis of projection, added the amount of
Rs.24,300/- in income for the year 2014-15.
17. The contention of the learned counsel for the
appellants is that, just because the income tax return for the
year 2015-16 was filed after the death of the deceased, it cannot
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be ignored. To buttress his submission, he seeks to rely on the
case of Meena Pawaia and Ors. vs. Ashraf Ali and Ors., (2021)
17 SCC 148, wherein the income tax return filed after the
death of the deceased was considered while assessing the
income of deceased. The appellants also placed reliance on the
case of Malarvizhi and Ors. vs. United India Insurance
Company Limited and Anr., (2020) 4 SCC 228.
18. As against this, the learned counsel for the
respondent seeks to rely on the decision of the Hon'ble
Supreme Court in the case of V. Subbulakshmi and Ors. vs. S.
Lakshmi and Anr., (2008) 4 SCC 224, wherein the income tax
return filed after the death of the deceased was not considered.
19. I have gone through the decisions of the Supreme
Court relied upon by the parties. In Meena Pawaia (supra) and
Malarvizhi (supra), the income tax return filed after the death
of the deceased came to be relied upon, whereas in the case of
V. Subbulakshmi (supra), the same has not been considered.
However, none of these Authorities laid down any ratio that an
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income tax return filed after the death of the deceased must be
considered by the Court. Thus, the consideration of income
shown in the income tax return submitted before the Income
Tax Authority after the death of the assessee will depend upon
the facts and circumstances of each case. The tribunal has to
take into consideration the surrounding circumstances.
20. In the present case, the appellants have produced
income tax return of the deceased for the years 2013-14,
2014-15 and 2015-16. The difference of income between the
years 2013-14 and 2014-15 was Rs.24,300/-. The income of
the deceased was increased by this figure in the year 2014-15.
However, the income tax return for the year 2015-16, which is
admittedly filed after the death of the deceased as well as after
filing of the petition shows a surge in the income from
Rs.2,27,600/- for 2014-15 to Rs.4,34,000/- for 2015-16, which
is almost double the income for the year 2014-15. That too, in
spite of the fact that the deceased was bedridden and in an
unconscious state from the date of the accident i.e. from
20.02.2015 till the time of his death and even thereafter, no
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explanation has been given with respect to the steep surge in
the income of the deceased, particularly in those ten months of
the year 2015-16. Therefore, I do not see any discrepancy in the
findings of the Tribunal in rejecting the income of deceased
shown in the income tax returns for 2015-16. Hence, no
interference is required in the findings of the Tribunal. Rather,
the assessment of loss of dependency has been done on the
basis of the best judgment of the Tribunal; therefore, I do not
find merit in the submission of the learned counsel for the
appellants and it is liable to be dismissed. Accordingly, the
appeal is dismissed.
(M. W. CHANDWANI, J.)
Signed by: Mr. Ashish Tambe
TAMBE
Designation: PA To Honourable Judge
Date: 10/01/2025 18:45:14
