Bombay High Court
Kanchan Vikas Walimbe vs M/S. Aqsa Travels And Tours Pvt.Ltd. And ... on 5 March, 2025
2025:BHC-AS:11758
WAKLE
MANOJ P.H. Jayani 901 FA1870.2010.doc
JANARDHAN
Digitally signed by
WAKLE MANOJ
JANARDHAN IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date: 2025.03.13
14:29:58 +0530 CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1870 OF 2010
1. Kanchan Vikas Walimbe
Age 46, Occ - Housewife
2. Miss Kavita Vikas Walimbe
Age 22, Occu -
3. Miss Kirti Vikas Walimbe
Age 15, Occu -
(No.3, minor, through her
natural mother and guardian
Applicant No.1)
All residing at NL 6/10/02, Greenfield Soc.,
Sector 8, Nerul, Navi Mumbai,
Tal. and Dist. Thane ..... Appellants
Vs.
1. M/s Aqsa Travels & Tours Pvt. Ltd.
Asha Motor Garage Compound,
Dahisar Mori, Shil Phata Road,
Dist. Thane
(Owner of Mini-bus No.MH 04 G 4246)
2. New India Assurance Co. Ltd.
Shiv Kripa Commercial Complex,
Gokhale Road, Naupada, Thane.
(Policy No.130100/31/04/01554
Valid from 6th August 2004 to 5th August 2005
issued by D.O. No.130100, Plot No. C-6,
Bandra Kurla Complex, Bandra East,
Mumbai - 400051.
3. Smt. Shanta Shankar Walimbe
Age 78 years, Occ. Nil
Residing at - A/6, Tushar CHS,
V P Road, Dombivali (E),
Tal. Kalyan, Dist. Thane
1/16
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P.H. Jayani 901 FA1870.2010.doc
3(a) Mrs. Urmila R. Bhopatkar,
Age : 62 yrs, Occ : Housewife,
R/at : A/7, Monika Apartments,
Behind Kothrud Bus Stand,
Dahanukar Colony, Kothrud,
Pune : 400 038.
3(b) Mr. Vishwas S. Walimbe
Age : 59 years, Occ. Service,
R/at : A/6, Tushar C.H.S.,
V.P. Road, Dombivali (East), Dist. Thane
3(c) Dr. Mrs. Vanita A. Kulkarni
Age : 50 yrs, Occ : Doctor,
R/at : Ashok Kulkarni Hospital,
Opp. Wantamure Corner,
Near Hiremath Photo Studio,
Miraj, Sangli - 416 410.
Ms. Krupali Rajani a/w. Adv. Dipti Jadhav, Adv. Nikita Bhosale and
Adv. Shivani Jadhav for the Appellants.
Mr. A. K. Sharma i/b Ms. Gandhi & Associates for the Respondent
No.2.
Ms. Divya Parab for the Respondent Nos.3(a) to 3(c).
CORAM : SHYAM C. CHANDAK, J.
DATE : 5th MARCH, 2025.
JUDGMENT :
-
. Present Appeal impugning a Judgment and Order dated
20th February 2009, in MACP No.61/2005, passed by the Motor
Accident claims Tribunal, Thane thereby said Tribunal allowed the
said Claim under Section 166 of the Motor Vehicles Act, 1988 ("the
P.H. Jayani 901 FA1870.2010.doc
Act") and ordered the Respondent Nos.1 and 2 to pay the Appellants a
compensation of Rs.27,62,000/- with interest @ 7.5% p.a. from the
date of claim till realisation of the compensation.
1.1.) The Appellants were the original claimants. Respondent
Nos.1 and 2 were the original Opponent Nos.1 and 2, respectively. The
Appellant No.1 is widow and Appellant Nos.2 and 3 are daughters of
late Vikas Shankar Walimbe ("the deceased"). Respondent No.3 was
mother of the deceased, who has expired and represented through the
LRs. Appellant Nos.2 and 3 were minor at the time of filing the claim.
1.2) Record indicates that, Appeal was admitted on 20th
September 2010. Despite notice none appeared for Respondent No.1.
2) Heard Ms. Rajani, the learned counsel for the Appellants,
Mr. Sharma, the learned counsel for Respondent No.2 and Ms. Divya
Parab, learned counsel for Respondent Nos.3 (a) to 3 (c). I have
perused the record and considered the submissions advanced by the
learned counsel for the respective parties.
3) The facts in brief are that, the Appellants filed the said
MACP No.61/2005 therein they averred that on 23rd November 2004,
at about 05:30 a.m., opposite to Sagar Darshan Society, to the South
of Sarsole Junction, on Palm Beach road, in Nerul Sector 18, when
the Appellant No.1 and the deceased were walking from the left side
of the road, a Mini Bus bearing registration No.MH-04-G-4246 ("the
P.H. Jayani 901 FA1870.2010.doc
bus") came from Vashi direction and gave a forceful dash to the
deceased from his behind. As a result, the deceased sustained serious
injuries. The deceased was removed to Shushrusha Hospital, at Nerul,
where he succumbed to the injuries at about 06:00 a.m. The
Appellants alleged that the accident occurred due to rash and
negligent driving of the bus. On receiving First Information Report of
the accident, Nerul Police Station registered the same at C.R.No.I-
386/2004, under the relevant Sections of the I.P.C. and the Act,
against the driver of the bus. The Appellants averred that, the
deceased was aged 49 years, he was serving with M/s. Hidustan
Construction Company Limited ("HCCL") thereby he was getting
monthly salary of Rs.60,918/-. The deceased was the only earning
member in their family. Therefore, the Appellants claimed to award a
compensation of Rs.1 Crore, on all counts.
4) The Claim Petition proceeded ex-parte against the
Respondent No.1. The Respondent No.2, however, filed its written
statement and opposed the Claim Petition entirely. The Respondent
No.2 denied that accident occurred due to rash and negligent driving
of the bus. Further, it denied that, the deceased was working and
earning as stated above. It contended that, the claim is exorbitant. It
contended that the police papers do not describe the situation
considering which a general presumption can raised as to the
P.H. Jayani 901 FA1870.2010.doc
happening of the accident. Looking at the time of the accident, it
cannot be said that the bus driver alone was responsible for causing
the accident. For these and other reasons, Respondent No.2 prayed to
dismiss the claim.
5) To prove the claim, the Appellants adduced the evidence
of Appellant No.1 (CW2/Exh.29). Additionally they have examined
Manjunath Sundar Bhandarkar (Exh.43), Ramkrishna Raghvendra
Lingsur (CW3/Exh.51) and Suresh Vithal Mohabadi (CW4/Exh.55),
who were employed with M/s.HCCL at the time of accident. The
Appellants also presented certain documents in evidence. No
evidence is adduced in the rebuttal by Respondent No.2.
5.1) After considering the oral and documentary evidence, the
learned Chairman of the Tribunal awarded the compensation as
above. However, grievance of the Appellants is that the compensation
is inadequate. Hence, Appeal.
6) It is well-settled that in the proceedings of Section 166 of
the Act, the issue of negligence has to be decided on the basis of
preponderance of probabilities and that, standard of proof beyond
reasonable doubt cannot be made applicable in such cases.
7) Now turning to the evidence. The Appellant No.1 deposed
that, on the date, at time and place of the accident she and the
deceased were walking by the left side of the road. The bus came
P.H. Jayani 901 FA1870.2010.doc
from Vashi side driven at a high speed and dashed the deceased from
back side. As a result, the deceased was thrown and he sustained
serious injuries. She has stated that immediately, the deceased was
removed to the hospital, however, he succumbed to the injuries while
undergoing the medical treatment. This oral evidence is corroborative
with the F.I.R. (Exh.32), spot panchnama (Exh.33), inquest
panchnama (Exh.34), the Cause of death Certificate (Exh.35) and the
Final Report (Exh.46). The F.I.R. clearly indicates that the bus and
the deceased were proceeding in the same direction. The deceased
was walking from the left side of the road. The road was 30 feet wide.
It was not the case that there was heavy traffic at the spot at the time
of the accident. Nevertheless, the bus driver failed to avoid the
accident. This indicates that the bus driver did not keep proper look
out at the road and drive the bus vigilantly. Driving a four wheeler in
such a manner is always dangerous to other road users. Yet, the driver
of the bus completely ignored that danger without any excuse. Thus,
the aforesaid facts and circumstances amply prove that the accident
occurred due to rash and negligent driving by the bus. The driver of
the bus has not stepped in the witness box to explain the situation
and circumstances which caused the accident. Therefore, necessary
adverse inference is permissible against the driver.
8) The evidence of AW1-Appellant No.1, PW2-Manjunath
P.H. Jayani 901 FA1870.2010.doc
Bhandarkar, CW3-Ramkrishna Lingsur and CW4-Suresh Mohabadi is
that the deceased was serving as Works Manager Grade E-3 with
M/s.HCCL and, he was holding the charge of technical wing of the
construction project of Bandra-Worli Sea Link. Appellant No.1
deposed that, the deceased was B.E. (Civil) and getting monthly
salary of Rs.60,000/- by way of the said service. In this regard she
has relied upon the I.T. Return of the deceased (at Exhs.39 & 40).
8.1) CW2-Manjunath Bhandarkar deposed that at the time of
accident, he was working as Manager, Personnel in M/s.HCCL. He
was looking after the wages, administration and settlement of
separated employees. CW2 deposed that, as per the office record the
deceased had joined the said company in the year 2000. CW3-
Ramkrishna Lingsur deposed that, at the relevant time he was
working with M/s.HCCL as a Vice President (Group Taxation). CW3
deposed that he had issued the Income Tax Form No.16 in the name
of the deceased (at Exhs.52 to 54); that, it bears his signature; and
that, its contents are correct and true.
8.2) In the cross-examination of CW2 it has come that he was
authorized by his Company to depose on its behalf. However, he has
stated that the Company has not issued a specific authority letter in
his favour to depose in the Court. Except this nothing significant has
emerged in the cross-examination of the CW2. Insofar as the cross-
P.H. Jayani 901 FA1870.2010.doc
examination of CW3 is concerned, except a suggestion of denial
nothing is asked to him. The documents referred in the evidence by
the Appellant No.1 and CW3 have not been challenged in their cross-
examination on behalf of the Respondent No.2. Moreover, no
evidence was adduced by the Respondent No.2 to rebut the evidence
as to the occupation and income of the deceased. The I.T. Returns
bear acknowledgment of receipt by the Income Tax Office concerned.
It was not the case that the I.T. Returns were disputed by the Income
Tax Office. The details of the Income Tax deposited with the banks in
the respective Financial Year have been enclosed with the relevant
I.T. Form No.16. Therefore, and in view of a decision in Anjali Vilas
Deshpande and others Vs. Prabha Rajendra Gupta and another1. I
have no hesitation to place implicit reliance upon the same.
9) As stated in the I.T. Returns for the FY 2000-01 (at
Exh.39), I.T. Returns for the FY 2001-02 (at Exh.40), Form No.16 for
FY 2001-02 (at Exh.54), Form No.16 for the FY 2002-03 (at Exh.52)
and Form No.16 for FY 2003-04 (at Exh.53), the gross income and
income tax deductions in rupees were as under :-
Financial Year 2000-01 2001-02 2002-03 2003-04
Gross Income Rs.1,72,186/- Rs.3,81,501/- Rs.4,26,705/- Rs.5,22,115/-
Income Tax Rs.24,600/- Rs.61,017/- Rs.78,811/- Rs.1,05,967/-
1. AIR Online 2022 BOM 469.
P.H. Jayani 901 FA1870.2010.doc
10) In his evidence PW4-Suresh Mahabadi has referred the
salary certificate (at Exh.56) of the deceased and deposed that, it
bears his signature and its contents are correct and true. As stated in
the salary certificate the gross monthly and yearly salary of the
deceased was as under :-
Basic 21870
HRA 50% 10935
UTL Allowance 9900
Site Allowance 20% 4374
Ad-Hoc 3380
LTA 12.49 % 2732
Medical 8.33 % 1822
PF 12 % 2624
Sup. Annu. 3281
Total per month 60918
Total per annum 731016
Gross minus per month 49983
Gross minus per annum 599796
Executive health check-up 633
Mediclaim 228
Gross per month 61799
Gross per annum 741348
10.1) However, the Tribunal disbelieved the salary certificate
(Exh.56) for the reason that it does not mention the date and the year
for which it was issued. That apart, CW4 has not specifically deposed
that at the time of accident the deceased was getting gross monthly
salary of Rs.61,799/-, which annually was Rs.7,41,348/-. No other
P.H. Jayani 901 FA1870.2010.doc
document is produced in the evidence to show that, the deceased was
earning Rs.61,799/- per month salary at the time of accident. It is
significant to note that, 'Date 03.12.2014' is typed to the side of the
signature of CW4 appearing in the salary certificate (Exh.56), which
fact indicates that the said document was typed/created on that very
date. However, CW4 has not informed as to on what basis the said
salary certificate was prepared. On the contrary, in the cross-
examination CW4 has admitted that said salary certificate was issued
at the request of the Claimants. He has not produced the original
salary record of the deceased. There is huge difference in the gross
annual income of Rs.5,22,115/- for the FY 2003-04 and the gross
annual income Rs.7,41,348/- stated in the salary certificate. CW4 has
not explained as to how the income of the deceased increased so
much within six moths, just before his death. CW4 has not deposed
that in the last month preceding to the death the deceased was paid
Rs.61,799/- as the monthly salary. The Appellants or their witnesses
have not informed as to why they did not produce the original salary
record before the Tribunal. Therefore, adverse inference should be
drawn. In this background I find it difficult to hold the gross annual
income as Rs.7,41,348/- at the time of accident. However, considering
the above referred I.T. Returns and Forms No.16 are reliable, the
Tribunal held that at the time of accident the gross annual income of
P.H. Jayani 901 FA1870.2010.doc
the deceased was Rs.5,15,877/-, Profession Tax Rs.2,500/- and
Income Tax was Rs.1,05,967/-.
10.2) The Tribunal further observed that, there is nothing on
record to show exactly what amount was deducted towards the
allowances, paid towards LIC, Society charges and H.B.A. The
Tribunal, therefore, held that after deducting the Income Tax,
Professional Tax and lawful deductions, the net annual income of the
deceased might be Rs.3,75,000/-. Yet, no reason is recorded in this
regard. On the contrary, Form No.16 for the FY 2003-04 (Exh.53)
clearly states that the gross annual income of the said FY was
comprised as under :-
Basic 208590
UTL/PRJ/AH 113100
HRA 104295
Site Allowance 41718
Conv. Allo. 2400
LTA 12.49 % 2732
Int. Relief 23490
LTA 22284
Total 515877
10.3) Additionally the deceased received perquisites of
Rs.21,238/- towards Medical Gr., out of which Rs.15,000/- were
exempted and balance amount of Rs.6,238/- was considered as the
income. However, it is not clear as to whether the said exempted
amount of Rs.15,000/- was part of the salary or not. Thus, the total
P.H. Jayani 901 FA1870.2010.doc
gross annual income for the FY 2003-04 was taken as Rs.5,22,125/-.
Further, the standard deduction was taken as Rs.20,000/-, deduction
under VI-A was taken as Rs.10,000/-, investments of the deceased
were Rs.94,649/- (PF-2506, LIP(D)-14623, PPF-25000, Shares/Deb-
30000) and accordingly, the Rebate u/Sec.88 of the IT Act was
considered as Rs.14,197/-. As a result, the Income Tax was quantified
at Rs.1,05,967/-. In the backdrop, in my considered view the net
annual income of the deceased was Rs.4,13,658/- at the time of his
death, and not Rs.3,75,000/- as incorrectly considered by the learned
Member of the Tribunal.
11) In accordance with the decision in National Insurance Co.
Ltd. vs. Pranay Sethi and others.2, some amount shall be added to the
net annual income of the deceased towards his future prospects. The
deceased was aged 49 years at the time of the accident as per his date
of birth 24.02.1955 vide I.T. Retun (at Exh.40). He was in the regular
employment. Hence, the addition towards his future prospects should
be 30% of his yearly income of Rs.4,13,658/- as held above. On such
addition, the actual yearly income of the deceased comes to
Rs.5,37,755/- (413658 + 124097).
12) In accordance with the decision in Sarla Verma and others
vs. Delhi Transport Corporation and another3, paragraph 14, where
2. 2017 ACJ 2700 (SC).
3. 2009 ACJ 1298 (SC).
P.H. Jayani 901 FA1870.2010.doc
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.
12.1) In the case in hand, all the Appellants were dependent on
the income of the deceased. As such, it would be proper to deduct
1/4th of the actual yearly income of the deceased towards his personal
and living expenses. On the 1/4th deduction, the yearly contribution to
the family comes to Rs.4,03,316/- (537755 - 134439). 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.4,03,316/-, the actual loss of dependency would be
Rs.52,43,108/-.
12.2) As per the ratio in the case of Magma General Insurance
Co. Ltd. vs. Nanu Ram Alia Chuhru Ram & ors.4, the Appellants and
the deceased Respondent No.3 being widow, daughters and mother of
the deceased, they are entitled to get Rs.48,000/- each as spousal,
parental and filial consortium, respectively. Further, all the
Appellants and the deceased Respondent No.3 (through LRs.) should
get Rs.18,000/- under the head 'funeral expenses' and Rs.18,000/-
under the head 'loss to estate'. Thus, total compensation comes to
Rs.54,71,108/-.
4. 2018 ACJ 2782 (SC).
P.H. Jayani 901 FA1870.2010.doc
13) The Claimants are entitled for some interest on the
compensation amount. The rate of such interest is required to suit the
rate of interest, prevailing at the time of the accident. There is no
straitjacket formula for awarding interest at a particular rate. It
depends on facts and circumstances of each case.
13.1) Mr. Sharma, learned counsel for the Respondent No.2
submitted that looking at the facts and circumstances of the case, the
interest rate may be reduced. However, it is important to note that,
this accident occurred in the year 2004. The deceased was the only
earning member of the family. The Claimants were entitled to get the
compensation amount immediately after the accident. Having regard
to these circumstances and the average rate of interest prevailing
between 2004-2010, the interest rate @ 7.5% p.a. as fixed by the
Tribunal, is just and proper.
14) The Respondent No.2 has already deposited the
compensation amount awarded by the Tribunal. Therefore, the
Appellants and the LRs of Respondent No.3 are entitled to receive
only the enhanced compensation as under :-
Total compensation amount : Rs.54,71,108/-
Minus the compensation amount : - Rs.27,62,000/-
awarded by the Tribunal and paid. ---------------
Enhanced compensation amount : = Rs.27,09,108/-
----------------
15) The Tribunal divided the compensations amongst the
P.H. Jayani 901 FA1870.2010.doc
Appellants and deceased Respondent No.3 in the ratio 35:25:25:15.
However, in their Affidavits produced in this Appeal, the Respondent
Nos.3 (a) to 3 (c) have stated that they have no objection to give the
Appellants the said 15% of the compensation.
16) In the backdrop of the aforesaid discussion, the Appeal
partly succeeds. Hence, following Order is passed :-
-ORDER-
(a) First Appeal is partly allowed.
(b) The impugned Judgment and Order dated 20th
February 2009 passed by the Motor Accident Claims
Tribunal, Thane in M.A.C.P. No.61 of 2005 is modified.
(c) Respondents are directed to jointly and severally pay
compensation of Rs.54,71,108/- (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.
(d) The Appellants will be entitled to the proportionate cost
of the Claim Petition.
(e) Respondents are directed to comply with this Judgment
within a period of four months from today, by
depositing the amount in the Tribunal.
P.H. Jayani 901 FA1870.2010.doc
(e-1) On deposit of the amount the Tribunal shall
immediately inform about the deposit to the Appellant.
(f) The amount deposited shall be apportioned amongst
the Appellants in the ratio 50:25:25 as the Respondent
Nos.3 (a) to 3 (c) gave up their claim.
(f-1) The Appellants are permitted to withdraw the amount
from the Tribunal within a period of eight weeks from
the date of the deposit, subject to payment of a deficit
Court fees, if any.
(g) The amount deposited in the Tribunal shall not be
invested for a period of eight weeks from the date of the
deposit. In the event the amount is not withdrawn
within a period of eight weeks from the date of deposit,
the same shall be invested by the Tribunal, passing
appropriate directions
(h) Respondent No.2/insurance company will be entitled to
adjustment of the amount against the already paid
under the impugned Award.
(SHYAM C. CHANDAK, J.)
