Bombay High Court
Royal Sundaram Alliance Insurance Co. ... vs Smt. Chitra Siddarth Malve And Others on 27 March, 2025
HEMANT
CHANDERSEN
2025:BHC-AS:17610
SHIV
Digitally signed by
HEMANT
CHANDERSEN SHIV
H.C. SHIV 6.fa733.25.doc
Date: 2025.04.19
15:17:40 +0300
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.733 OF 2025
Royal Sundaram
Alliance Insurance Co. Ltd.
315, Arenja Corner, B-Wing
3rd Floor, Sector-17, Vashi,
Navi Mumbai, District-Thane. ... Appellant
Versus
1. Smt. Chitra Siddharth Malve
Aged about 40 years,
Indian Inhabitant,
Occ. Housewife, residing at
9/2, Jai Padmavati CHS,
Ramdaswadi, Syndicate,
Murbadroad, Opp. Mali Samaj Hall,
Kalyan (W) - 421 301, ...
2. Kumari Asmi Siddharth Malve
Aged about 10 years,
Indian Inhabitant,
Occ. Housewife, residing at
9/2, Jai Padmavati CHS,
Ramdaswadi, Syndicate,
Murbadroad, Opp. Mali Samaj Hall,
Kalyan (W) - 421 301
(The Respondent No.2 is minor
represented through His mother
i.e. Applicant No.1, ...
3. Smt. Sheela D. Malve
Aged about 75 years,
Indian Inhabitant,
Occ. Housewife, residing at
Ashirwad Bungalow
Samarth Nagar, Opposite Majid
Vashind (West), Shahpur, District Thane,
1/12
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H.C. SHIV 6.fa733.25.doc
4. Smt. Jyoti Ganesh Warungase
Warunase Patil Galli,
Warunase Kirana, Trimbakeshwar,
District Nashik. ... Respondents
WITH
INTERIM APPLICATION NO.10075 OF 2024
IN
FIRST APPEAL NO.733 OF 2025
1. Smt. Chitra Siddharth Malve
Aged about 30 years,
Occ. Housewife ...Applicant
In the matter between
Royal Sundaram
Alliance Insurance Co. Ltd.
325, Arenja Corner, B-Wing
3rd Floor, Sector-17, Vashi,
Navi Mumbai, District-Thane. ... Appellant
Versus
1. Smt. Chitra Siddharth Malve
Aged about 40 years,
Indian Inhabitant,
Occ. Housewife, residing at
9/2, Jai Padmavati CHS,
Ramdaswadi, Syndicate,
Murbadroad, Opp. Mali Samaj Hall,
Kalyan (W) - 421 301 ...
2. Kumari Asmi Siddharth Malve
Aged about 10 years,
Indian Inhabitant,
Occ. Housewife, residing at
9/2, Jai Padmavati CHS,
Ramdaswadi, Syndicate,
Murbadroad, Opp. Mali Samaj Hall,
Kalyan (W) - 421 301
(The Respondent No.2 is minor
represented through His mother
i.e. Applicant No.1 ...
2/12
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H.C. SHIV 6.fa733.25.doc
3. Smt. Sheela D. Malve
Aged about 75 years,
Indian Inhabitant,
Occ. Housewife, residing at
Ashirwad Bungalow
Samarth Nagar, Opposite Majid
Vashind (West), Shahpur,
District Thane ...Respondents
Mr. Rahul Mehta i/b KMC Legal Venture for the Appellant.
Mr. Nikhil Ghate for the Respondent No.1 in FA No.773/2025 and for
the Applicant in IA No.10075/2024.
CORAM : SHYAM C. CHANDAK, J.
DATE : 27th MARCH 2025
JUDGMENT :
. Present Appeal impugning a Judgment and Order dated
15.12.2018, in Motor Accident Claim Petition No. 162 of 2013
("claim"), passed by the Motor Accident Claim Tribunal, Kalyan
("Tribunal") thereby said claim filed under Section 166 of Motor
Vehicle Act, 1988 by Respondent Nos.1 to 3 ("the claimants") was
partly allowed and Respondent No.4/original opponent No.1-owner
and the Appellant/original opponent No.2-insurer of the offending
vehicle held liable to jointly and severally pay to the claimants a
compensation in the sum of Rs.83,72,350/- (inclusive of no fault
H.C. SHIV 6.fa733.25.doc
liability) along with interest at the rate of 9% per annum from the
date of application till the realization of entire amount.
2) Record indicates that the notice to Respondent No.4 was
dispensed with in the application seeking condonation of delay in
filing the Appeal. Therefore, and considering the issues involved in
the appeal, the learned Advocate for the parties submitted that the
Appeal be finally heard. Hence, taken up for final hearing.
3) Heard Mr. Mehta, the learned Advocate for the Appellant
and Mr. Ghate, the learned Advocate for the claimants. Perused the
record.
4) Facts in brief are that, on dated 30.06.2013, at about 9:00
p.m., late Siddharth Malve ("deceased") was proceeding towards his
house by travelling in a Maruti Car ("car") alongwith his friends, by
Mumbai-Agra Highway, on Nashik lane. One of his friends was
driving the car. When the car reached within the limits of
Koshimbigaon, near Vaisnadevi temple, one Bolero Jeep bearing
No.MH-15-CM-4323 ("Jeep") came from behind, driven in a high and
excessive speed, rash and negligent manner and gave a dash to the car
on its rear side. As a result, the deceased sustained serious injuries.
Immediately, the deceased was taken to Aayush Hospital. On
H.C. SHIV 6.fa733.25.doc
receiving information of the accident, Padgha Police Station
registered an FIR bearing Crime N0. I-91 of 2013, under Sections 279,
337 and 427 of I.P.C.,and Section 184 of the Act against the driver of
the Jeep. The deceased succumbed to the injuries on dated
03.07.2013 while undergoing the medical treatment.
4.1) It was averred that the deceased was aged 36 years and
employed with ICICI Bank thereby he was getting a monthly salary of
Rs.52,854/-. The claimants are the widow, daughter and mother of
the deceased and, they were dependent on the deceased. Therefore,
the claimants prayed to award a compensation of Rs.1,00,00,000/-.
5) Respondent No.4 filed his written statement (Exh.22) and
opposed the claim, contending that the accident took place due to the
sole negligence of the driver of the car. In the alternative, it was
contended that there was contributory negligence on the part of the
drivers of both the vehicles in the ratio 50:50. It was contended that
the offending vehicle was insured with the Appellant. Therefore, the
Appellant was liable to indemnify the Respondent No.1.
6) The Appellant also filed the written statement at Exh.16
and challenged the claim. The Appellant contended that the driver of
the Jeep was not holding a valid and effective driving licence at the
H.C. SHIV 6.fa733.25.doc
time of the accident. It was contended that the driver of the car was
90% negligent in causing the accident whereas, the driver of the Jeep
was negligent only to the extent of 10%. The Appellant, therefore,
prayed that the claim be dismissed with costs.
7) In order to prove the claim, the claimants presented the
evidence of Respondent No.1 on Affidavit (CW1/Exh.24) and Asha
Gole (CW2/Exh.37), Manager, ICICI Bank Ltd., Bandra Kurla
Complex, Bandra (East). Besides, the claimants have relied upon
various documents in the evidence.
8) Mr. Mehta, the learned Advocate for the Appellant
submitted that the claimants failed to prove that the accident
occurred due to rash and negligent driving of the Jeep. The claimants
could have established the fact of negligent driving of the Jeep by
examining the investigation officer, but they did not. Therefore,
adverse inference shall be drawn against the claimants. He submitted
that the reasons recorded to foist the negligence on the Jeep driver
are perverse. Mr. Mehta submitted that the Tribunal erred in holding
the income of the deceased based on the Form No.16 of the
assessment year 2013-2014 instead of taking an average monthly
income of the last three years based on Form No.16 adduced in the
H.C. SHIV 6.fa733.25.doc
evidence. He submitted that instead of the 1/3rd, the Tribunal has
deducted ¼th of the actual yearly income of the deceased towards his
personal and living expenses. This lead to awarding an exaggerated
compensation of Rs.83,72,350/-. Thus, there are infirmities in the
impugned Judgment and Order, according to Mr. Mehta.
9) Mr. Ghate, the learned Advocate for the claimants, on the
other hand, submitted that there is overwhelming evidence by the
claimants which proved that the accident occurred only due to rash
and negligent driving of the Jeep. He submitted that the evidence as
to the occupation and income of the deceased is sufficient, cogent and
reliable. Hence, the Tribunal rightly held that the net yearly income of
the deceased was Rs.5,51,848/- excluding the income tax of
Rs.24,714/-. He submitted that the deceased was in the regular
employment. Therefore, the award of 40% of the proved net annual
income of the deceased towards his future prospects is incorrect and,
it be corrected as 50% of the net annual income. He submitted that
only Rs.40,000/- has been awarded as cumulative consortium, which
should be separate. Hence, Mr. Ghate submitted that the award be
modified and just compensation be awarded as per the settled law.
10) Looking at the rival submission first it must be seen as to
H.C. SHIV 6.fa733.25.doc
whether it has been proved that the accident occurred due to rash and
negligent driving of the Jeep or not. In this regard, the evidence of the
Respondent No.1 is that on at the relevant time and place, the Jeep
was driven in a high speed and in a rash and negligent manner. As a
result, the driver of the Jeep lost his control and the Jeep dashed the
car from the back side. To corroborate her evidence, Respondent No.1
relied on the FIR (Exh.27). Mr.Gaurav Kashinath Khairnar, one of the
occupants of the car, filed the FIR therein he narrated that at the
relevant time and place, when he was driving the car, the Jeep gave a
forceful dash to the car from behind. As a result, the car and the Jeep
turned turtle. He and others sustained injuries. The FIR is consistent
with the spot panchnama (Exh.28). Thus, both the documents
supported the version of the Respondent No.1. The Appellant did not
explain as to why the Jeep dashed the car on its back side. This fact
indicates that the driver of the Jeep did not keep proper lookout at
the road. The deceased died due to the injuries sustained in the
accident. In view thereof, I hold that the accident occurred due to
negligent driving of the Jeep.
11) CW2-Asha Gole, has been Manager at ICICI Bank Ltd.,
Bandra Kurla Complex, Bandra (East). The evidence of Respondent
H.C. SHIV 6.fa733.25.doc
No.1 and CW2 indicates that from dated 15.04.2008 the deceased was
working with ICICI bank. CW2 stated that the deceased was Assistant
Manager-II in the said bank and he was the permanent employee.
CW2 stated that the deceased was getting salary of Rs.5,65,603/- per
annum. To support this evidence, CW2 has referred the Offer Letter
(Exh.41) and Form No.16 of the financial years 2012-2013, 2013-
2014, 2014-2015 (Exh.42, 43 & 44). Besides, CW2 has produced the
computerized salary slips for the months of May, June and July of the
year 2013 (Exh.45, 46 and 47). The aforesaid oral and documentary
evidence did not meet sufficient challenge in the cross examination.
12) The Form No.16 of the financial year 2013-2014 (Exh. 43)
was submitted on dated 06.06.2013, i.e., just before the accident. The
gross annual income of the deceased was Rs.5,51,848/-, out of which
Rs.24,714/- deducted towards the income tax. Therefore, the Tribunal
considered the Form No.16 (Exh.43) and accordingly held that the net
annual income was Rs.5,27,134/-. The learned Advocate for the
parties did not take any exception to the said finding. I am, therefore,
in agreement with the said finding recorded by the Tribunal.
13) The evidence of Respondent No.1 and CW2 clearly
established that, deceased was aged below aged 38 years, he was in
H.C. SHIV 6.fa733.25.doc
regular/permanent employment. All the claimants were dependent
on the income of the deceased. Therefore and in view of the decisions
in National Insurance Co. Ltd. v/s. Pranay Sethi and Others1 and
Sarla Verma and others Vs. Delhi Transport Corporation and
another2, 50% of the established net annual income should be added
towards the future prospects of the deceased and thereafter 1/3 rd from
the actual net yearly income should be deducted towards the personal
and living expenses of the deceased. The applicable multiplier is '15'.
As a result, the loss of the dependency comes to Rs.79,07,010/-.
(Rs.5,27,134 + Rs.2,63,567 - 2,63,567 (1/3rd) = Rs.5,27,134/- x 15). In
view of the decision in Magma General Insurance Co. Ltd. v/s. Nanu
Ram Alias Chuhru Ram & Ors.3, the Respondent Nos.1 to 3 are
entitled to receive Rs.40,000/- each as spousal, filial and parental
consortium, respectively. The Tribunal, awarded Rs.15,000/- towards
'funeral expenses' and Rs.15,000/- under the head 'loss to estate',
which is just. Thus, the total compensation comes to Rs.80,57,010/-.
14) Upshot of the above discussion is that the Tribunal erred
in adding just amount (percentage) as the future prospect, deducted
lesser amount towards the personal and living expenses and did not
1. 2017 ACJ 2700 (SC)
2. 2009 ACJ 1298 (SC)
3. 2018 ACJ 2782 (SC)
H.C. SHIV 6.fa733.25.doc
award sufficient consortium. Therefore, the impugned Judgment and
Order warranted an interference by this Court to modify the award.
Thus, the Appeal partly succeeds. Hence, following Order is passed :-
(a) The Appeal is partly allowed. The parties shall
bear their own cost.
(b) The impugned Judgment and Order dated 15th
December 2018, in M.A.C.P. No.162 of 2013, passed by
the Motor Accident Claims Tribunal at Kalyan, is
modified.
(c) Appellant and Respondent No.4 shall jointly and
severally pay to the claimants the compensation in the
sum of Rs.80,57,010/- (inclusive of NFL amount)
together with interest thereon at the rate of 9% per
annum from the date of the Claim Petition till
realization of the amount.
(d) The Appellant and Respondent No.4 are directed
to comply with this Judgment and Order within a
period of four months from today, by depositing the
amount in the Tribunal, if not deposited earlier.
(e) On deposit of the amount the Tribunal shall
immediately inform about the deposit to Respondent
H.C. SHIV 6.fa733.25.doc
Nos.1 to 3.
(f) The award amount shall be disbursed and
invested as directed by the Tribunal.
(g) Appellant/insurance company will be entitled to
refund of the excess compensation amount, if any,
alongwith proportionate interest accursed thereon till
date.
(h) Appeal stands disposed of in the aforesaid terms.
(i) In view of the disposal of the Appeal, Interim
Application No.10075 of 2024, does not survive and is
disposed of, accordingly.
(SHYAM C. CHANDAK, J.)
