Bombay High Court
Secretary, Maharashtra State Road ... vs Baliram Nagorao Totewad And Ors on 25 March, 2025
2025:BHC-AUG:8701
1 FA116.2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO. 116 OF 2017
Secretary, Maharashtra State
Road Transport Corporation
(ST Central Workshop, Chikallthana)
Through its Divisional Controller,
S.T. Division, Aurangabad. ...Appellant
[Orig. Respondent No.2]
Versus
1. Shri. Baliram Nagorao Totewad,
Age : 58 yrs., Occu. Service,
2. Sau. Savita Baliram Tatewad,
Age : 48 years, Occ. Household,
3. Ku. Meena d/o Baliram Tatewad,
Age : 33 years, Occ. Service,
4. Ku. Savita d/o Baliram Tatewad,
Age : 33 years, Occ. Education,
5. Ku. Jayashree d/o Baliram Tatewad,
Age : 23 years, Occ. Service
All R/o. Mangalsangvi, Tq. Kandhar,
Dist. Nanded. ...Respondent Nos. 1 to 5
[Original Claimant No. 1 to 5]
6. Chhotusingh s/o Sandusingh Rajput,
Age : Major, Occ. Driving,
R/o. Balkeda, Tq. Kannad,
Dist. Aurangabad. ....Respondent
[Original Respondent No. 1]
......
Mrs. Ranjana D. Reddy - Advocate for the Appellant
Mr. Vikas S. Bhale - Advocate for Respondent Nos. 1 to 5
Mr. A. V. Sagar h/f Mrs. N. K. Helkute - Advocate for Respondent No.6
........
2 FA116.2017.odt
CORAM : NEERAJ P. DHOTE, J.
JUDGMENT RESERVED ON : 12.03.2025
JUDGMENT PRONOUNCED ON : 25.03.2025
JUDGMENT :
-
1. This Appeal under Section 173 of the Motor Vehicles Act,
1988 (hereinafter referred to as the 'M.V. Act') is filed by the
Maharashtra State Road Transport Corporation (hereinafter referred to
as 'MSRTC') assailing the Judgment and Order/Award dated 02.09.2016
passed by the Motor Accident Claims Tribunal, Aurangabad, in M.A.C.P.
No. 740 of 2011, granting compensation to the tune of Rs. 44,49,000/-
[Rupees Forty Four Lakh Forty Nine Thousand] to Respondent Nos. 1 to
5 (Claimants) with statutory benefits.
2. The facts giving rise to the present Appeal are as follows :-
(a) Late Pratibha Baliram Totewad [hereinafter referred as
'Deceased'], who was the daughter of Respondent Nos. 1 and 2
and sister of Respondent Nos. 3 to 5, was working as a
Shikshan Sevak at the Zilla Parishad School, Lihakhedi, within
the jurisdiction of the Block Education Officer, Sillod. The
income of the Deceased was Rs. 3,000/- per month for first
three years and thereafter it would be Rs. 21,000/- on
becoming permanent. On 30.06.2011, at about 15:30 hours,
when the Deceased was travelling in the State Transport Bus
belonging to the Appellant, the said bus met with an accident
3 FA116.2017.odt
due to rash and negligent driving of the driver. Due to the
injuries suffered in the accident, Deceased died.
(b) The accident was reported to the Wadod-Bazar Police Station
and Crime came to be registered against the driver of the S.T.
Bus for the offence punishable under Sections 304, 337, 338,
427, 429 of the Indian Penal Code and Section 134 r/w 177 of
the Motor Vehicles Act. The investigation proceeded and the
Report came to be filed before the Competent Court.
(c) Respondent Nos. 1 to 5 approached the learned Tribunal with
the Claim Petition for compensation to the tune of Rs. 1.00
Crore against the Appellant and the driver of the S.T. Bus. The
Claim Petition came to be contested by the Appellant by filing
written statement at Exh. 19B. The Appellant denied the claim
and urged for dismissal of the Claim Petition. The Issues framed
at Exh. 21 and findings recorded thereon, are reproduced
below : -
ISSUES FINDINGS
1. Whether the petitioners proved that
on 30.6.2011, at about 15.30 hours,
on Aurangabad-Sillod road, at
Bankinhola Shivar, Deceased Pratibha ....Affirmative
Baliram Tatewad died in a Motor
Vehicular accident due to rash and
negligent driving of the driver of S.T.
bus bearing registration No. MH-20-
D-8159?
4 FA116.2017.odt
2. Whether the petitioners are entitled .....Yes, from both
for compenation, if yes, how much the respondents
and from whom? jointly and
severally.
3. What order and award? ....Petition is
partly allowed as
per final order.
3. In support of the Claim Petition, Respondent No.1 examined
himself at Exh.22, examined the Cluster Head of the School where the
Deceased was working at Exh. 33, examined the Sister of Deceased at
Exh. 39 and examined the Block Education Officer, Sillod, at Exh. 44.
The claimants brought on record the Police Papers and service
documents of the Deceased. No evidence was adduced by the Appellant.
Appreciating the material available on record, the learned Tribunal
passed the impugned Judgment and Award/Order.
4. Heard learned Advocate for the Appellant - MSRTC and the
learned Advocate for Respondent Nos. 1 to 5. None for Respondent
No.6 / driver of the Bus.
5. Learned Advocate for the Appellant submitted that the
impugned Judgment and Award/Order is challenged only on the aspect
of compensation. Though the evidence on record show the monthly
salary of the Deceased to the tune of Rs.3,000/-, the learned Tribunal
considered monthly income of the Deceased to the extent of
5 FA116.2017.odt
Rs. 27,000/-, without there being any evidence. Learned Tribunal
considered the higher income on the basis of the assumptions. Though
the Deceased was temporary in service, the income considered by the
learned Tribunal was that of permanent employee. The compensation in
respect of future prospects was wrongly considered as 50% and it should
have been 40% as Deceased was temporary in the service. As Claimant
No. 1 was the father and Claimant Nos. 3 to 5 were the Sisters of the
Deceased, they cannot be the dependents. The learned Tribunal erred in
granting huge compensation without any basis. The Appeal be allowed.
In support of her submission, she relied on the following Judgments :-
[i] Harpreet Kaur Versus Mohinder Yadav, LAWS(SC) 2022 12 53
[ii] Sarla Verma & Ors. v. Delhi Transport Corporation & Anr.,
2009 AIR(SC) 3104
[iii] National Insurance Company Limited Versus Pranay Sethi
and others, (2017) 16 SCC 680
[iii] Maharashtra State Road Transport Corporation through Divisional
Controller, Aurangabad Versus Shalini Rajendra Lavale and others
[First Appeal No. 730 of 2014, decided on 01.10.2021].
6. It is submitted by the learned Advocate for Respondent Nos.
1 to 5 Claimants that, the post on which the Deceased was working was
the Permanent Post and, therefore, the learned Tribunal has rightly
considered the per month salary of the deceased, which is payable to the
Permanent Teacher. There was sufficient material before the learned
Tribunal in support of the impugned Judgment and Award/Order. He
6 FA116.2017.odt
submitted that there is no merit in the Appeal and same be dismissed. In
support of his submission, he cited the following Judgments of this
Court.
[i] National Insurance Company Ltd. Versus Santosh Banshi Kudale
and another [First Appeal No. 2369 of 2018, decided on
04.10.2024].
[ii] Shriram General Insurance Company Ltd., Versus Rahimabi wd/o
Ayyub Khan and others [First Appeal No. 1252 of 2016, decided
on 17.04.2017 (Nagpur Bench)].
7. On hearing both the sides, following points arise for my
consideration.
[i] Whether the learned Tribunal has rightly considered the
income of Deceased?
[ii] Whether the impugned Judgment and Order/Award
requires interference?
8. There is no dispute on the aspect that, Deceased who was
the daughter of Respondent Nos. 1 and 2 died due to the motor
vehicular accident while she was travelling in the S.T. Bus bearing No.
MH-20/D-8159 on 30.06.2011, on Aurangabad - Sillod road within
Bankinhola Shivar. In support of the Claim Petition, Respondent No. 1
filed evidence affidavit at Exh. 22. The Cluster Head of Central Primary
School, Palod, was examined as Witness No. 2 at Exh. 33. The Block
Education Officer, Sillod, was examined as PW4 at Exh. 44. Their
evidence shows that Deceased was appointed as a Shikshan Sevak on
7 FA116.2017.odt
temporary basis from 30.12.2010 for the period of three years and she
was getting fixed salary of Rs. 3000/- per month without any allowance.
There is no dispute on the aspect that Deceased was working as the
Shikshan Sevak and was on probation period. The evidence of PW2
shows that, after verifying the records, Shikshan Sevaks are generally
made permanent, and the six month's tenure of the Deceased was
satisfactory. Whether to make Shikshan Sevak permanent or not was the
decision to be taken by the Government as per the Rules. The evidence
of PW4 shows that he was a Public Servant and was looking after the
salary of employees at the relevant time. There is positive evidence of
this witness that the other Shikshan Sevaks appointed on the same day
along with the Deceased were made permanent on 30.12.2013 and after
becoming permanent, their basic pay was Rs.9260/-, Grade Pay Rs.
2800/-, DA Rs. 13628/-, Conveyance Rs.400/- and HRA Rs. 1363/-. He
deposed that, had the Deceased been alive, she would have received the
above salary, and her work was satisfactory and he had personally
verified the record of Deceased. Nothing has come in their evidence to
discard their said testimony. The relevant documents showing the salary
of Shikshan Sevaks who became permanent and the calculation of the
salary of Deceased had she been alive and working on the said post, is
brought on record, at Exh. 53 and 54.
9. In the case of Sarla Verma (supra), the contention made
therein on behalf of the Claimants that, the actual future Pay Revisions
8 FA116.2017.odt
should be taken into account for the purpose of calculating the income
was held not to be sound. In the case at hand, the learned Tribunal has
not taken into consideration the future Revision in the pay scale of the
Deceased. What is considered is the salary which the Deceased would
have received on the post she was working on completion of her
probation period as Shikshan Sevak.
10. In National Insurance Company Ltd. Versus Santosh Banshi
Kudale, First Appeal No. 2369/2018 (supra), which was the Appeal
against the Judgment and Award passed by the Tribunal under the
Motor Vehicles Act, this Court had considered the very aspect. The
claimant therein who was working as a Shikshan Sevak had filed the
Claim Petition claiming compensation towards his injuries. The relevant
observations from the said Judgment are reproduced below : -
"12. Claimant has brought evidence on record to show that
he has completed. M.A., B.Ed. and was appointed as
Shikshan Sevak in Vagheshwar Vidyadham of Shirur
Shikshan Prasarak Mandal, Mandavgan Farata, Tal. Shirur,
District Pune, just before few days of accident and he was
getting Rs.8,000/- per month by way of salary. After
completing three years service as Shikshan Sevak, he would
have been appointed as full time teacher in High School and
would have earned salary upto Rs.35,000/- to Rs.40,000/-
per month. In future he could have got promotion and his
salary would have been increased many times.
13. Sub-section (2A) of Section 5 of the Maharashtra
Employees of Private Schools (Conditions of Service)
Regulation Act (3 of 1978), provides that,
"(2A) Subject to the provisions of sub-sections (3) and
9 FA116.2017.odt
(4), Shikshan Sevak shall, on completion of the probation
period of three years, be deemed to have been appointed
and confirmed as a teacher."
14. In the light of aforesaid provision and considering the
claimant's salary certificate placed on record (Exhibit-36), no
fault can be found with the assessment of monthly income of
claimant at Rs.35,000/-."
11. In Shriram General Insurance Company Ltd., (supra), which
was the Appeal by the Insurance Company against the Award of
compensation granted towards the accidental death of Deceased therein
who was working as Shikshan Sevak, had completed his three years as a
Shikshan Sevak prior to his accidental death, however, he was drawing
salary of Rs. 3,000/- per month. Considering the evidence on record, it
was noted that there was enough material on record that, immediately
after the completion of period of three years as Shikshan Sevak,
Deceased was entitled to full salary.
12. The case at hand is more or less similar with the above
referred Judgments relied upon by the learned Advocate for the
Respondents / Claimants on the point of employment as Shikshan
Sevaks. Therefore, the consideration and determination of the monthly
income of the Deceased by the learned Tribunal cannot be faulted.
13. As regards the contention of learned Advocate for the
Appellant that 50% addition considered by the learned Tribunal for
10 FA116.2017.odt
future prospects needs to be brought down to 40% in view of the
judgment in the case of Pranay Sethi (supra), as discussed above, the
employment of the Deceased as Shikshan Sevak was on permanent post
and there was positive evidence on record that Shikshan Sevaks who
joined the services with Deceased had become permanent. It is nobody's
case that the post of Shikshan Sevak on which the Deceased was
appointed and working at the time of accidental death was a temporary
post. There is no dispute on the aspect that Deceased was below the age
of 40 years at the time of accidental death. Therefore, addition of 50%
towards the future prospects considered and granted by the learned
Tribunal cannot be faulted as the aforesaid Judgment provides for the
same where Deceased was working on the permanent job.
14. As regards the contention of the learned Advocate for the
Appellant that the siblings were not the dependent is concerned, they
were the Applicants in the Claim Petition along with their parents. The
provisions of Section 166(C) of the M.V. Act permits filing of the
Application for compensation by all or any of the legal representatives of
the Deceased..... Hence, there is no merit in the said contention.
15. In view of the above discussion, no case exists for
interference in the impugned Judgment and Order/Award passed by the
learned Tribunal. The Appeal fails and hence, the following order.
11 FA116.2017.odt
ORDER
[i] The Appeal is dismissed.
[ii] The Record & Proceedings be sent back to the learned
Tribunal.
[iii] The amount deposited by the Appellant, if any, shall be
disbursed to the Respondents/Claimants in accordance with
the Judgment and Award/Order passed by the learned
Tribunal.
[NEERAJ P. DHOTE]
JUDGE
SG Punde
Signed by: Sandeep Gulabrao Punde
Designation: PS To Honourable Judge
Date: 25/03/2025 14:19:54
