Bombay High Court
Executive Engineer Tr City, Municipal ... vs Smt. Kalpana Rajendra Roka And Ors. on 6 November, 2025
2025:BHC-AS:47787
11-APEAL-738-2025-JUDG.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.738 OF 2025
Executive Engineer TR City }
Municipal Corporation of }
Greater Mumbai }
Dr. E. Moses Road, Worli, } ....Appellant
Mumbai 400 018 } (Original Opp. Party)
Versus
1. Smt. Kalpana Rajendra Roka, }
NILAM
Digitally signed
by NILAM
Aged about 29 years, }
SANTOSH
SANTOSH KAMBLE Widow of the deceased }
KAMBLE Date: 2025.11.11
11:44:46 +0530
2. Kum. Sushant Rajendra Roka, }
Aged about 12 years, }
Son of the deceased }
3. Mr. Dnyanbahadur Roka, }
Aged about 60 years, }
Father of the deceased }
4. Mrs. Maiya Dnyanbahadur Roka, }
Aged about 55 years, }
Mother of the deceased }
(Applicant No. 2 is minor through }
his mother and next friend, }
Smt. Kalpana Rajendra Roka) }
All residing at: }
Room No.1, Chawl No.16, }
Tata Compound Chawl, }
Near Beru Guest House, }
S. S. Chavan page 1 of 12
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11-APEAL-738-2025-JUDG.doc
Parel, Mumbai 400 012 } ...Respondents
Permanent Address - at Gonganpani, } (Original Applicants)
Dist. Danding, Nepal. }
}
----
Adv. Dhrupad Patil a/w Adv. Pradeep M. Patil i/by Komal
Punjabi for Appellant BMC.
Adv. T. J. Mendon for Respondent No.1 to 4.
----
CORAM : R.M. JOSHI, J.
DATE : 06/11/2025
ORAL JUDGMENT :-
1. This appeal under Section 173 of the Motor Vehicles Act,
1988 takes exception to the Judgment and Award dated
28.04.2023 passed in Application filed under Section 166 of the
Motor Vehicles Act, 1988 Act bearing No.2022 of 2019,
whereby Tribunal granted compensation of Rs.50,47,400/- to
the original Claimants.
2. The parties are referred to by their nomenclature in the
original proceeding for the sake of convenience.
S. S. Chavan page 2 of 12
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3. This appeal is hereby heard and decided by consent of both
sides on the basis of statements made by them that calling of
record and proceedings is not necessary as the entire evidence
before the Tribunal alongwith the pleadings is placed before this
Court for its consideration.
4. Claimants are widow, daughter and parents of deceased
Rajendra who died in motor vehicular accident occurred on
19.09.2019. As per the case of the Claimants, at the relevant
time deceased was riding a bicycle on bridge opposite elphinstone
station and at that time offending Motor Vehicle bearing No.
MH-01-AN-0750 (garbage collection dumper of Municipal
Corporation) came in high speed and dashed to the deceased. As
a result of the said dash, deceased fell down on road and sustained
serious injuries. Though he was taken to KEM Hospital, he was
declared dead before admission. F.I.R. came to be lodged by
Crime No.305 of 2019 with N. M. Joshi Marg Police Station
against the driver of offending vehicle for the offences under
Section 279 and 304(A) of the Indian Penal Code, 1860.
Investigation came to be done and charge-sheet is filed against
S. S. Chavan page 3 of 12
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the driver of the said vehicle.
5. Claimants further contended about deceased working as a
Cook on a Chinese Food Stall of Mr. Raju Majkoti and earning
Rs.24,000/- per month. Thus, a claim of total compensation of
Rs.50,00,000/- came to be raised against the Opponents.
6. Opponent MCGM filed Written Statement denying the
averments and contentions of the Claimants. It is specifically
denied that the accident has occurred due to the rash and
negligent driving of the vehicle in question. It is further claimed
that the said vehicle is not involved in the occurrence of the
accident.
7. Tribunal framed issues. Claimant No. 1 examined herself
at (Exhibit - 14) and placed reliance on police papers, including
FIR (Exhibit - 15), Spot Panchanama (Exhibit-16), Inquest
Panchnama (Exhibit - 17), Cause of Death Certificate (Exhibit-
18), R.C. Book of the vehicle in question (Exhibit -19) and other
documents to substantiate the case. On behalf of the Claimants
S. S. Chavan page 4 of 12
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Mr. Raju Nabraj @ Raju Majakoti came to be examined at
Exhibit - 30 to prove the employment and income of the
deceased. MCGM examined driver of the vehicle in question
Mr. Amod Satpute at Exhibit-33. Tribunal allowed the
application and directed Opponent to pay compensation of
Rs.50,47,400/- alongwith interest @ 7% p.a. from the date of
filing of claim till realization of the amount.
8. Ld. Counsel for MCGM submits that the impugned
Judgment and Award is sought to be taken exception on two
counts i.e. firstly the non-involvement of the vehicle in question
in the occurrence of the accident and secondly, failure on the part
of the Claimants to prove the employment and income of the
deceased. In this regard he drew attention of the Court to the
pleadings in the written statement filed before the Tribunal
raising the said issues and referred to the evidence of the driver of
the vehicle who has deposed about non-involvement of the
vehicle in the accident in question. On the point of employment
and income of the deceased it is his submission that the burden is
upon the Claimants to prove atleast on preponderance of
S. S. Chavan page 5 of 12
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probability the employment and income which in the present
case Claimants have failed to establish. It is his statement that the
Tribunal has committed error in accepting the case of the
Claimants with regard to the employment not on the basis of
evidence on record but on surmises and conjunctures, to support
his submission he placed reliance on following Judgments :
1. Future General India Insurance Company Limited Vs.
Mumtaz Begum and Others; 2020 SCC OnLine
Mad15431 :(2020) 2 TN MAC 398;
2. Sh. Ashok Kumar Vs. Sh. Suraj Pal and Others; 2009 SCC
OnLine Del 681;
3. Sahana Khatoon and Others Vs. New India Assurance Co.
Ltd., Through its Branch Manager and Others; 2021 SCC
OnLine Bom 3695.
9. Ld. Counsel for the Claimants supported the impugned
Judgment. It is his submission that the MCGM has failed to
prove that the vehicle in question was not involved in the
accident. In this regard reference is made to the cross-
examination of the witness examined by MCGM. On the point
of income, it is sought to be argued on behalf of the Claimant
that there is no cross-examination of the employer with regard to
the quantum of income of the deceased and therefore, said
S. S. Chavan page 6 of 12
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quantum accepted by the Trial Court deserves no interference.
To support his submission, he has placed reliance on Judgment of
the Division Bench of this Court in Sakharibai Hasanali Mkani
and others Vs. Girish Kumar Rupchand Gadia and others; 1997
ACJ 95 and Sushila and another Vs. National Insurance Co. Ltd.
and others; 2018 ACJ 2820. Without prejudice to these
submissions he sought to rely upon Judgments of Hon'ble
Supreme Court in case of Maheshwari and others Vs.
Ramachandran and others; 2023 ACJ 1210 to argue that in any
case the notional income of the deceased could not be less than
Rs.15,000/- per month.
10. Perusal of the evidence on record indicates that the dispute
has not been made before the Tribunal with regard to the death
of the deceased in a motor vehicular accident occurred on
19.09.2009. MCGM has sought to contend that the vehicle in
question belonging to it is not involved in the accident. Perusal
of the Police Papers, more particularly First Information Report
indicates that offence has been registered against the driver of the
said vehicle causing accident in question and after investigation
S. S. Chavan page 7 of 12
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charge-sheet has been filed against him. Claimants on the basis
of the said documentary evidence have proved the involvement
of the vehicle in question in the occurrence of the accident. The
burden therefore, shifted upon MCGM to prove otherwise.
Though the driver was examined at (Exhibit - 33), the Police
Papers indicate that the vehicle was seized from the spot and that
not only First Information Report was lodged against the driver
of the said vehicle but on conclusion of the investigation charge-
sheet came to be filed against him. At this stage it would be
relevant to take note of the cross-examination of this witness,
wherein he admits of FIR being lodged against him and he not
taking any exception to the same. Even otherwise from the
perusal of the evidence on record of this witness, it cannot be said
that MCGM was in a position to disprove the facts established by
the Claimants regarding involvement of offending vehicle in the
accident.
11. There is evidence on record to indicate that the age of the
deceased was 32 years at the time of occurrence of the accident.
S. S. Chavan page 8 of 12
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Similarly, there is no serious dispute made with regard to the
dependency of the Claimants upon the deceased. The Claimants
have come out with the case that the deceased was working as a
Cook on a Chinese Food Stall of Mr. Raju Majakoti and earning
Rs.24,000/- per month. Though Claimant No. 1 in her
testimony has stated so, during the cross-examination she has
admitted that there is no evidence to indicate that her husband
has done any course in cooking. Claimants examined Mr. Raju
Majakoti who claimed to have engaged deceased as a Cook and
he being paid Rs.24,000/- per month. In the cross-examination
however, it has come on record that he does not have license to
run the stall nor has any evidence in the form of receipt / record
to prove the payment of salary to the deceased. No doubt, the
Claimants are required to prove the employment and income of
the deceased on preponderance of probability. However, the said
proof cannot be dispensed with and cogent and reliable material
needs to be placed on record for accepting case sought to be made
out by the Claimants regarding employment and income.
S. S. Chavan page 9 of 12
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12. Evidence on record more particularly, cross-examination of
Mr. Raju shows that there is absolutely no evidence to indicate
that he was running any Chinese Food Stall or was employing
deceased and paying Rs.24,000/- per month. Ld. Tribunal went
on to observe that it is commonly known that the Food Stalls are
run without licence and record of cash transaction are not
maintained. These observations are not based on the evidence on
record but clearly are surmises and conjunctures. If such findings
are accepted, no Claimants would not be required to bring any
cogent evidence to prove the employment and income. Though
the Claimants cannot be called upon to substantiate the said
claim strictly, it should be a probable claim atleast. In facts of the
case this Court finds no hesitation to hold that the Claimants
have failed to prove employment with Mr. Raju and income of
the deceased @ Rs.24,000/- p.m.
13. Now question arises as to what would be the income to be
considered for the purpose of computation of compensation. In
the cross-examination of the Claimant No. 1 it is suggested that
S. S. Chavan page 10 of 12
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Claimants were not dependent upon the income of the deceased.
This suggestion implies that the deceased had his independent
income. Now question arises as to what would be the amount
considered by way of notional income of the deceased. In this
regard, reference can be made to the Judgment of the Hon'ble
Supreme Court in case of Maheshwari & Ors. (supra) wherein
the notional income was accepted as Rs.15,000/- per month. The
deceased was staying at Mumbai and had 4 dependents upon
him. It would be just and reasonable to hold that he was atleast
earning Rs.500/- per day and hence his income is considered as
Rs.15,000/- per month. There is no dispute about the
correctness of the other factors considered by the Tribunal while
determining the amount of compensation. Thus the amount of
compensation is determined as under :
Sr. Heads Calculation in
No. Rs.
1. Monthly income of the deceased Rs.2,52,000/-
Rs.15,000/- X 12 + 40% Future
Prospects = (Rs.1,80,000/- + 72,000/-)
2. 1/4 of the income of the deceased for the Rs.1,89,000/-
personal and living expenses of deceased
(as per the judgment of Pranay Sethi's
S. S. Chavan page 11 of 12
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Case (Supra) (Rs.2,52,000/- divided by
04 Rs.63,000/-) Actual income
3. Deceased was 32 years old, hence, Rs.30,24,000/-
multiplier '16' is applicable.
Rs.1,89,000/- X 16 = 30,24,000
4. Spousal Consortium for wife (applicant Rs.1,76,000/-
No.1-Rs,40,000/- + 10%), Parental
Consortium for children (applicant
No.2-Rs,40,000/- + 10%) Filial
Consortium for mother (applicant Nos.3
and 4-Rs.40,000/- + 10%)
5. Loss of Estate (Rs.15,000/- + 10%) Rs.16,500/-
6. Funeral Expenses (Rs.15,000/- + 10%) Rs.16,500/-
TOTAL Rs.32,33,000/-
Thus, the Claimants are entitled to compensation amount of
Rs.32,33,000 /- alongwith interest as directed by Tribunal.
14. In view of the above discussion, appeal deserves to be partly
allowed. The Application No. 2022 of 2019 stands partly
allowed. The impugned award is modified to the extent of
computation of compensation. Rest of the award to remain
unchanged.
(R.M. JOSHI, J.)
S. S. Chavan page 12 of 12
