Bombay High Court
Future Generali Insurance Co. Ltd., Thr ... vs Mast. Rakshit Sagar Katariya And Ors on 12 June, 2025
2025:BHC-AUG:14740
FA-3692-2019-W.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 3692 OF 2019
WITH
CIVIL APPLICATION NO.14352 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
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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.466/2017, awarding the compensation to the tune of
Rs.16,42,800/- [Rupees Sixteen Lakhs Forty Two Thousand Eight
Hundred Only] against the Appellant - Insurance Company and the
owner of the 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
Tribunal under Section 166 of the M. V. Act contending that, Shweta
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Sagar Katariya [hereinafter referred to as the 'Deceased'], who was
aged 33 years and was the mother of Respondent Nos.1 and 2 and
daughter-in-law of Respondent Nos.3 and 4 and doing the work of
account writing and business of flower decoration, having monthly
income of Rs.12,500/-, met with an accidental death when she was
travelling in a Car bearing No. MH-16-AT-7843 with her husband on
20/06/2017. When her husband 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.35,30,000/-
with interest @ 18% per annum, from the date of accident till the
Award.
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[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 husband of 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 Claimants examined
Witness No.2 - Shailesh Purushottam Devi to prove the monthly
income of the Deceased. The Insurance Company examined the Driver
of the ofending vehicle - Pravin Bhagwan Jadhav in connected Claim
Petition No.465/2017, which was in respect of the husband of
Deceased and fled a Purshis that, the said evidence be read in Claim
Petition No.466/2017. The Driver was cross-examined on behalf of the
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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. The income of
Deceased considered by the learned Tribunal was excessive and
notional income of Rs.6,000/- per month ought to have been
considered. The learned Tribunal made no deductions towards the
personal and living expenses from the income of Deceased. There is no
evidence that, after the death of husband of Deceased, the shop was
closed and, therefore, there was no total loss of income 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. It is submitted by the learned Advocate for the Claimants
that, the learned Tribunal has properly considered the evidence
available on record and has given the reasons as to why no deductions
towards personal and living expenses of the Deceased was made. The
learned Tribunal ought to have awarded the compensation towards
consortium and the same may be awarded, though no Appeal is
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preferred by the Claimants. The 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-in-law 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
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that, the accident was a result of negligence by the Driver of ofending
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. The Claimant No.3, who examined himself as the Witness,
deposed of monthly income of the Deceased to the extent of
Rs.12,500/- [Rs.7,500/- as the salary by working as an Accountant and
Rs.5000/- towards the flower decoration work]. Though, Witness No.2
was examined by the Claimants in support of the monthly salary of
Rs.7500/-, on appreciating the evidence available on record, the
learned Tribunal discarded the same and considered the notional
monthly income of the Deceased as Rs.6,000/- per month. The accident
was of the year - 2017. The said notional income of the Deceased
considered by the learned Tribunal does not call for any interference.
11. As regards the deductions towards personal and living
expenses, the same are not deducted by the learned Tribunal by
observing that, the Deceased was a house wife and her income was
assessed on notional basis and, therefore, nothing can be deducted
from her annual income towards personal expenses, on the basis of the
decision of Madhya Pradesh High Court in Ranveer Singh and Others
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Vs. Vishan Singh and Others; 2018 ACJ 1408, which was cited on
behalf of the Claimants. Perusal of the said decision shows that, it was
in respect of death of a house wife in motor vehicular accident and as
the income of Deceased therein was assessed on the basis of the
services rendered by her in the capacity of a house wife, no deduction
under the head of personal expenses was made. The said decision was
primarily based on the decision in Lata Wadhwa and Others Vs. State
of Bihar and Others ; MANU/SC/0456/2001.
12. In the case at hand, though, it was the case of Claimants
that, Deceased was working, it was not established that, the Deceased
was in the employment or earning from work of flower decoration and,
therefore, the learned Tribunal considered the notional income of
Rs.6000/- by considering the Deceased as house wife. On the basis of
the aforesaid decision, the learned Tribunal did not deduct the amount
towards personal expenses. Normally, the deduction towards living and
personal expenses are to be made. However, considering the reasons
given by the learned Tribunal, interference in the same is uncalled for.
13. In view of the above discussion, the consideration of
notional income of the Deceased by the learned Tribunal do not call for
any interference. Even, as seen from the notes of arguments dated
29/08/2019 submitted on behalf of the Appellant - Insurance Company
before the learned Tribunal, it was their contention to assess the
monthly income of Deceased notionally @ Rs.5000/- per month.
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14. 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.
15. It is submitted by the learned Advocate for the Appellant -
Insurance Company that, no Appeal is fled by the Claimants and,
therefore, the prayer for consortium cannot be considered. He cited
the Judgments in Ranjana Prakash and Others Vs. Divisional
Manager and Another; [2011] 14 SCC 639 and New India Assurance
Co. Ltd. Vs. Pratiksha Hemchandra Kulkarni and Others passed by
this Court in First Appeal No.2106/2018 on 16/04/2019.
16. Perusal of the above referred Judgments cited by the
learned Advocate for the Claimants show that, the compensation
under the head of consortium is to be granted in the Claim Petitions for
compensation under the M. V. Act. In the above referred decisions
cited by the learned Advocate for the Appellant - Insurance Company
show that, the Court cannot increase the compensation in an Appeal by
the Owner / Insurer for reducing the compensation, nor can it reduce
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the compensation in an Appeal by the Claimants seeking enhancement
of compensation. It is also observed in the above referred Judgment in
Ranjana Prakash and Others Vs. Divisional Manager and Another
[Supra] that, where an Appeal is fled challenging the quantum of
compensation, irrespective of who fles the Appeal, the appropriate
course is to examine the facts and by applying the relevant principles,
determine the just compensation. This Judgment is more helpful for
the Claimants.
17. In light of the above, the amount @ Rs.40,000/- each, for
two [2] children of Deceased as parental consortium is to be included in
the compensation determined and awarded by the learned Tribunal.
On addition of Rs.80,000/- towards parental compensation, the amount
of total compensation would come to Rs.17,22,800/-. The impugned
Award stands modifed to that extent only. The Appeal stands
disposed of accordingly. In view of the disposal of Appeal, Civil
Application is also disposed of.
[NEERAJ P. DHOTE, J.]
Sameer/-
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LATER ON :-
1. On the request made by the learned Advocate for the
Claimants, the amount deposited by the Appellant - Insurance
Company in this Court towards impugned Award if any, be allowed to
be withdrawn by the Claimants if not withdrawn earlier, along with
interest accrued thereon.
[NEERAJ P. DHOTE, J.]
Sameer/-
Signed by: Md. Sameer Q.
Designation: PA To Honourable Judge
