Future Generali Insurance Co. Ltd., Thr ... vs Mast. Rakshit Sagar Katariya And Ors
2025 Latest Caselaw 3899 Bom

Bombay High Court

Future Generali Insurance Co. Ltd., Thr ... vs Mast. Rakshit Sagar Katariya And Ors on 12 June, 2025

2025:BHC-AUG:14743
                                                                           FA-3693-2019-H.odt


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD
                            FIRST APPEAL NO. 3693 OF 2019
                                        WITH
                         CIVIL APPLICATION NO.14357 OF 2019

          1.    Future Generali Insurance Company,
                Ltd. MARC Squre Building 2nd floor,
                Near Kandariya Automobiles,
                Savedi, Ahmdnagar, Maharashtra,
                Through its Authorized Signatory,
                Future General India Insurance Co.
                Ltd. 3rd Floor, East Wing, Forbes
                Building, Charanjit Wing, Forbes
                Building, Charanjit Rai Marg, Ford,
                Mumbai - 400 001.                          ....Appellant
                                                      [Original Respondent No.2]

                      VERSUS

          1.    Mast. Rakshit Sagar Katariya,
                Age: 10 years, Occu: Education,

          2.    Miss. Tanishka Sagar Katariya,
                Age: 11 years, Occu: Education,
                Nos.1 and 2 minors through natural
                Guardian Resp. No.3.

          3.    Jawaharlal Asraj Katariya,
                Age: 61 years, Occu: Nil,

          4.    Mrs. Shobha Jawaharlal Katariya,
                Age: 52 years, Occu: Household,

                All R/o. Mahavir Park, Sarasnagar,
                Ahmednagar.

          5.    Natha Bandu Thakare,
                Age: 52 years, Occu: Business,
                R/o. Sanjay Smruti Room No.957,
                Daradi Road, Regency Church,
                Prayagnagar, Dombivali,
                Dist. Thane - 421 201.                            .....Respondents
                                                     [Resp. No.1 to 4 are ori. Claimants &
                                                     Resp. No.5 is ori. Resp. No.1]



                                              1
                                                                FA-3693-2019-H.odt



Appearance :
Mr. Abhijit G. Choudhari, Advocate for the Appellants.
Mr. Akshay D. Kulkarni, Advocate for Respondent Nos.1 to 4.
_________________________________________________________________

                            CORAM              : NEERAJ P. DHOTE, J.
                            Reserved On        : 23rd April, 2025
                            Pronounced On : 12th June, 2025

JUDGMENT :

1. This is an Appeal fled under Section 173 of the Motor

Vehicles Act, 1988 [hereinafter referred to as the 'M. V. Act'] by the

Appellant - Insurance Company against the Judgment and Award

dated 03/09/2019, passed by the Motor Accident Claims Tribunal,

Ahmednagar, [hereinafter referred to as the 'learned Tribunal'], in

Motor Accident Claim Petition [hereinafter referred to as the 'Claim

Petition'] No.465/2017, awarding the compensation to the tune of

Rs.47,95,724/- [Rupees Forty Seven Lakhs Ninety Five Thousand Seven

Hundred Twenty Four Only] against the Appellant - Insurance Company

and the owner of ofending vehicle, who is arraigned as Respondent

No.5 in the Appeal, along with interest @ 7% per annum from the date

of Claim Petition till realization of the amount.

2. The facts, in brief, giving rise to the present Appeal are as under :-

[I] Respondent Nos.1 to 4 [hereinafter referred to as the 'Original

Claimants'] fled the above referred Claim Petition before the learned

FA-3693-2019-H.odt

Tribunal under Section 166 of the M. V. Act contending that, Sagar

Jawaharlal Katariya [hereinafter referred to as the 'Deceased'], who

was aged 35 years and was the father of Respondent Nos.1 and 2 and

the son of Respondent Nos.3 and 4 and doing the business of whole

sale medicines in the name and style 'Katariya Agencies', met with an

accidental death when he was travelling in a Car bearing No. MH-16-AT-

7843 with his wife on 20/06/2017. When he was driving the Car and

they reached near Gaimukhwadi Corner on Nagar - Kalyan Highway, one

Innova Car bearing No. MH-05-CH-6001 [hereinafter referred to as 'the

ofending vehicle'], which was coming from the opposite direction in a

rash and negligent manner, gave dash to their Car resulting in a fatal

accident.

[II] The said accident was reported to the Otur Police Station and

Crime bearing No.102/2017 came to be registered against the Driver of

the ofending vehicle for the ofences punishable under Sections 304-

A, 279, 337, 338 and 427 of the Indian Penal Code, 1860 [hereinafter

referred to as 'IPC'] and Section 184 of the M. V. Act. The necessary

investigation was done by the Investigating Ofcer.

[III] At the time of said accident, the ofending vehicle was insured

with the Appellant - Insurance Company and registered in the name of

Respondent No.5. On the basis of monthly income and the age of

Deceased, the Claimants claimed the compensation of Rs.64,10,000/-

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with interest @ 18% per annum, from the date of accident till the

Award.

[IV] The Claim Petition was contested and opposed by the Appellant -

Insurance Company by fling the Written Statement below Exhibit - 14.

The case of Claimants was denied. It was pleaded that, there was no

eyewitness to the accident, the accident occurred due to the

negligence of the Deceased, who came on the wrong side of the road

and contributed 75% in the accident. The monthly income of the

Deceased was denied. It was further pleaded that, the Claim Petition

be dismissed.

[V] As the vehicle owner failed to contest the Claim Petition, the

order to proceed ex-parte against him came to be passed by the

learned Tribunal.

[VI] The learned Tribunal framed the necessary issues below Exhibit -

16. The Original Claimant - Jawaharlal Asraj Katariya examined himself

by fling the Evidence Afdavit below Exhibit - 19 and he was cross-

examined on behalf of the Insurance Company. In his evidence, the

Police Papers, copy of death certifcate of the Deceased and other

relevant documents were brought on record. The Insurance Company

examined the Driver of the ofending vehicle - Pravin Bhagwan Jadhav

as Witness No.2. The Driver was cross-examined on behalf of the

FA-3693-2019-H.odt

Claimants. On appreciating the evidence available on record, the

learned Tribunal passed the impugned Judgment and Award, partly

allowing the Claim Petition as referred above in Paragraph No.1.

3. Heard both the sides. Perused the record.

4. It is submitted by the learned Advocate for the Appellant -

Insurance Company that, the motor vehicular accident occurred due to

the negligence of the Driver of Car, in which, the Deceased was

travelling. It was the case of contributory negligence. On the point of

the earning of Deceased, it is contention of the learned Advocate for

the Appellant - Insurance Company that, though Income Tax Returns

[hereinafter referred to as the 'ITRs'] were brought on record by the

Claimants, there is no evidence to show that, the shop was closed after

the death of Deceased and so, there was total loss from the business.

In support of his contention, he relied on the Judgments, which would

be considered in the later part of this Judgment.

5. On the other hand, it is contention of the learned Advocate

for the Claimants that, the learned Tribunal has considered the ITRs

and properly considered the earnings of Deceased. He further

submitted that, the learned Tribunal has properly considered the

evidence available on record. The learned Tribunal ought to have

awarded the compensation towards consortium and the same may be

awarded, though no Appeal is preferred by the Claimants. The

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evidence available on record clearly shows that, the accident was due

to the negligence of the Driver of ofending vehicle. It was not the

case of contributory negligence. In support of his contention, he relied

on the Judgments, which would be considered in the later part of this

Judgment.

6. The impugned Judgment and Award is challenged on two

[2] grounds ; frst is the aspect of negligence and second is the monthly

income of Deceased.

'Negligence'

7. From the pleadings and evidence available on record, it is

clear that, there is no dispute about the death of Deceased in the

motor vehicular accident. The Postmortem Report, which forms the

part of Police Papers, shows the cause of death as "Cardio-respiratory

arrest due to hemorrhagic shock followed by RTA". The learned Tribunal

had framed Issue No.2 in respect of the negligence. Claimant No.3,

who is the father of Deceased, examined himself as the Witness in

support of the Claim Petition. In his cross-examination, he admitted

that, he was not the eyewitness to the accident. The Appellant -

Insurance Company examined the Driver of the ofending vehicle. He

deposed that, the Driver of the Car, in which, the Deceased was

travelling, was negligent and responsible for the accident. His cross-

examination shows that, a question on the Spot Panchnama was put to

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him. It has come in his evidence that, there was white strip in the

middle of road showing two sides of the road. Suggestion is given to

him that, he came in the wrong lane of the road and lost the control

over the vehicle and gave dash to the other Car. The Spot Panchnama,

which was prepared during the course of investigation, becomes

relevant. There is sketch of the spot of accident in the Spot

Panchnama. It shows that, the Highway was the East - West road. The

road towards East is shown going towards Nagar and the road going

towards West is shown going towards Kalyan. The road is shown

demarcated in two [2] parts with the white strip in the middle of road.

It shows that, the Northern side road / lane was for the vehicles going

towards Nagar and the Southern side road / lane was for the vehicles

going towards Kalyan. It clearly shows that, the accident did not occur

in the middle of road. As seen from the pleadings and evidence on

record, the Car of Deceased was going towards Nagar. The accident is

shown in the Northern side road / lane, which was for the vehicles

going towards Nagar. The ofending vehicle was coming from the

opposite side and going towards Kalyan. The ofending vehicle should

have been on the Southern side road / lane. However, the spot of

accident clearly shows that, the ofending vehicle came on the

opposite side / lane of the road and the accident occurred. It is clear

from the sketch that, the vehicle, in which, the Deceased was travelling,

was on its proper side of the road. The learned Tribunal has rightly

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observed that, the principles of res-ipsa-loquitur were applicable to the

case at hand. This material piece of evidence on record supports the

case of Claimants that, the accident occurred due to the negligence of

the Driver of ofending vehicle. This material piece of evidence do not

corroborate the version of the Appellant - Insurance Company.

8. In T. O. Anthony Vs. Karvarnan and Others [2008] 3 SCC

748, cited by the learned Advocate for the Appellant - Insurance

Company, it is observed that, in an Accident involving two or more

vehicles, where a third party (other than the drivers and / or owners of

the vehicles involved) claims damages for loss of injuries, it is said that

compensation is payable in respect of the composite negligence of the

drivers of those vehicles. But in respect of such an Accident, if the claim is

by one of the drivers himself for personal injuries, or by the legal heirs of

one of the drivers for loss on account of his death, or by the owner of one

of the vehicles in respect of damages to his vehicles, then the issue that

arises is not about the composite negligence of all the drivers, but about

the contributory negligence of the driver concerned.

9. In the case at hand, the case of Claimants was of negligence

by the Driver of ofending vehicle. The Appellant - Insurance Company

failed to prove their case that, the accident was due to contributory

negligence. The learned Tribunal rightly answered the issue of

negligence. From the evidence available on record, it is established

that, the accident was a result of negligence by the Driver of ofending

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vehicle, which was admittedly insured with the Appellant - Insurance

Company at the relevant time. Hence, the contention of the learned

Advocate for the Appellant - Insurance Company that, the accident was

the result of contributory negligence, has no merits.

'Income of the Deceased'

10. To prove the income of Deceased, the Claimants brought

on record the ITRs of the Deceased for the assessment years - 2014 -

2015, 2015 - 2016 and 2016 - 2017. There is no dispute on the aspect

that, the ITRs can be considered to determine the compensation. There

are licence below Exhibits - 32 and 33 in the name of Deceased

towards proprietary concern. The learned Tribunal has accepted the

said evidence and observed that, the fact that, the Deceased was

running a Pharmacy shop, was in dispute. The learned Tribunal arrived

at the amount towards income of Deceased on the basis of the ITRs.

There is no ground or reason to interfere in the same.

11. According to the learned Advocate for the Claimants, the

learned Tribunal did not grant compensation towards consortium. He

relies on the Judgments in the case of Chandra and Ors. Vs. Mukesh

Kumar Yadav and Ors.; MANU/SC/0752/2021, United India Insurance

Vs. Satinder Kaur and Ors.; MANU/SC/0500/2020, Sarla Verma and

Ors. Vs. Delhi Transport Corporation and Anr.; MANU/SC/0606/2009,

National Insurance Company Limited Vs. Pranay Sethi and Ors.;

MANU/SC/1366/2017.