Bombay High Court
The New India Assurance Co. Ltd., Thr Its ... vs Suwarna Amol Sole And Ors on 4 October, 2025
2025:BHC-AUG:27663
495-19-FA (+).odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 495 OF 2019
WITH
CIVIL APPLICATION NO. 8951 OF 2018
(for stay)
IN FIRST APPEAL NO. 495 OF 2019
The New India Assurance Company Ltd.,
D.O. No.1 Adalat Road, Aurangabad,
Through its Authorized Signatory,
Ahyut S/o. Purushottam Kulkarni,
Age: 56 years, Occu.: Service,
R/o. Aurangabad. ... Appellant
(Orig. Resp. No.3)
Versus
1. Suwarna W/o Amol Sole,
Age: 28 years, Occu.: Household,
R/o. Pokhari, Tq. Ashti, Dist. Beed
2. Shrawani D/o. Amol Sole,
Age: 7 years, Occu.: Education,
Minor U/G her mother present
respondent no.1,
R/o. Pokhari, Tq. Ashti, Dist. Beed.
3. Janabai W/o. Mohan Sole,
Age: 56 years, Occu.: Household,
R/o. Pokhari, Tq. Ashti, Dist. Beed.
4. Mohan S/o. Narayan Sole,
Age: 60 years, Occu.: Nil,
R/o. Pokhari, Tq. Ashti, Dist. Beed. ... Respondents
(orig. Claimants)
(Respondent No.4 deleted as per Court's order
dated 19.07.2024)
5. Hanumant S/o Chandrabhan Bhasat,
Age: 50 years, Occu.: Business,
Owner of the offending vehicle,
R/o. Jamkhed, Karmala Road, Rajnagar,
HSH, Opp. Bukule Complex,
Tq. Jamkhed, Dist. Ahmednagar.
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6. Jamil Noor Mohammad Pathan,
Age: 45 years, Occu.: Driver
R/o: Jamkhed, Karmala Road,
Rajnagar, HSH, Opp. Bukule Complex,
Tq. Jamkhed, Dist. Ahmednagar. ... Respondents
(Ori. Respdt. nos. 1 and 2)
.....
Mr. M. M. Ambhore, Advocate for the Appellant.
Mr. S. B. Choudhari, Advocate for Respondent Nos. 1 to 3.
Mr. R. G. Hange, Advocate for Respondent Nos. 5 and 6.
.....
WITH
FIRST APPEAL NO. 1892 OF 2018
WITH
CIVIL APPLICATION NO. 11786 OF 2018
(for withdrawal of amount)
IN FIRST APPEAL NO. 495 OF 2019
1. Suwarna w/o Amol Sole,
Age : 28 years, Occu. Household,
R/o Pokhari, Taluka Ashti,
District Beed.
2. Shrawani d/o Amol Sole,
Age : 07 years, Occu. Education.
[Applicant No.2 is minor u/g of
Applicant No.1 her real mother]
3. Janabai w/o Mohan Sole,
Age : 55 years, Occu. Household,
R/o Pokhari, Taluka Ashti,
District Beed.
4. Mohan s/o Narayan Sole
Age : 60, Occu. Nil,
R/o Pokhari, Tal. Ashti,
Dist Beed.
[Appellant No.4 deleted as per
Court's order dated 28.02.2025] ... Petitioners
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Versus
1. Hanumant s/o Chandrabhan Bhasat,
Age : Major, Occu : Business,
R/o Pathrud, Taluka Bhoom,
District Osmanabad.
2. Jamil s/o Noormohammad Pathan,
Age : Major, Occu : Driver,
R/o Jamkhed - Karmala Road,
Rajnagar, H.S.H., Opp. Bukule Complex,
Taluka Jamkhed, District Ahmednagar.
3. The Branch Manager,
The New India Assurance Company Ltd.
Sathe Chowk, Jalna Road, Beed,
District Beed. ... Respondents
.....
Advocate for the Applicants : Mr. S. B. Choudhari
Advocate for Respondent Nos. 1 and 2 : Mr. R. G. Hange
Advocate for Respondent No.3 : Mr. M. M. Ambhore
.....
WITH
FIRST APPEAL NO.2075 OF 2018
WITH
CIVIL APPLICATION NO. 8964 OF 2018 (for stay)
IN FIRST APPEAL NO.2075 OF 2018
The New India Assurance Company Ltd.,
D.O. No.1 Adalat Road, Aurangabad,
Through its Authorized Signatory,
Ahyut S/o. Purushottam Kulkarni,
Age: 56 years, Occu.: Service,
R/o. Aurangabad. ... Appellant
(Orig. Resp. No.3)
Versus
1. Supria W/o. Sharad Sole,
Age: 30 years, Occu.: Household,
R/o. Pokhari, Tq. Ashti, Dist. Beed
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2. Samrudhi D/o Sharad Sole,
Age: 7 years, Occu.: Education,
Minor U/G her mother present
respondent no.1,
R/o. Pokhari, Tq. Ashti, Dist. Beed.
3. Mandabai W/o. Santram Sole,
Age: 56 years, Occu.: Household,
R/o. Pokhari, Tq. Ashti, Dist. Beed.
4. Santram S/o. Bhaurao Sole,
Age: 60 years, Occu.: Agril.
R/o. Pokhari, Tq. Ashti, Dist. Beed. ... Respondents
(Orig. Claimants)
5. Hanumant S/o Chandrabhan Bhasat,
Age: 50 years, Occu.: Business,
Owner of the offending vehicle,
R/o. Jamkhed, Karmala Road, Rajnagar,
HSH, Opp. Bukule Complex,
Tq. Jamkhed, Dist. Ahmednagar.
6. Jamil Noor Mohammad Pathan,
Age: 45 years, Occu.: Driver
R/o: Jamkhed, Karmala Road,
Rajnagar, HSH, Opp. Bukule Complex,
Tq. Jamkhed, Dist. Ahmednagar ... Respondents
(Orig Respdt. 1 & 2)
.....
Mr. M. M. Ambhore, Advocate for the Appellant.
Mr. S. S. Dargad, Advocate for Respondent Nos. 1 to 4.
Mr. R. G. Hange, Advocate for Respondent Nos. 5 and 6.
.....
CROSS OBJECTION NO. 90 OF 2024
IN FIRST APPEAL NO.2075 OF 2018
WITH
CIVIL APPLICATION NO. 13717 OF 2018
(for withdrawal of amount)
IN FIRST APPEAL NO.2075 OF 2018
1. Supriya w/o Sharad Sole,
Age : 35 years, Occu. Household,
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2. Samrudhi s/o Sharad Sole,
Age : 12 years, Occu. Education,
(Applicant No.2 being minor,
U/guardianship of Applicant no.1)
3. Mandabai w/o Santram Sole,
Age : 61 years, Occu. Household,
4. Santram s/o Bhaurao Sole,
Age : 65 years, Occu. Agriculture,
All R/o. Pokhari, Tq. Ashti, Dist. Beed. ... Applicants
(Orig. Claimants)
Versus
1. New India Assurance Co. Ltd.
Through Authorized Signatory,
Adalat Road, Aurangabad,
Tq. & Dist. Aurangabad.
2. Hanumant s/o Chandrabhan Bhasat,
Age : 55 years, Occu. Business,
R/o. Jamkhed, Karmala Road, Rajnagar,
HSH, Opp. Bukule Complex, Tq. Jamkhed,
Dist. Ahmednagar.
3. Jamil Noor Mohammad Pathan,
Age : 50 years, Occu. Driver,
R/o. Jamkhed, Karmala Road,
Rajnagar, HSH, Opp. Bukule Complex,
Tq. Jamkhed, Dist. Ahmednagar. ... Respondents
(R.No.1 Appellant,
R.Nos.2 & 3 orig. Respdts)
.....
Advocate for the Petitioners/Applicants : Mr. S. S. Dargad
Advocate for Respondent No.1 : Mr. M. M. Ambhore
Advocate for Respondent Nos. 2 and 3 : Mr. R. G. Hange
.....
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CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 21 JULY, 2025
PRONOUNCED ON : 04 OCTOBER, 2025
JUDGMENT :
-
1. Both appeals i.e. First Appeal No.495 of 2019 and First Appeal
No.2075 of 2018 at the instance of the Insurance Company are arising
out of the same accident, but on account of distinct claim petitions
bearing M.A.C.P. No.168 of 2013 and M.A.C.P. 159 of 2013, decided by
orders dated 22.02.2018 and 06.04.2018 respectively.
The wives of deceased Amol and Sharad have also preferred
First Appeal No. 1892 of 2018 and Cross Objection No. 90 of 2024
being aggrieved by the quantum of compensation.
FACTS GIVING RISE TO THE ABOVE APPEALS ARE AS UNDER:
2. On 08.02.2023, both deceased, Amol and Sharad, were
traveling on a motorcycle bearing registration No. MH-23/L-8142. It is
the case of original claimants that, when their motorcycle reached the
vicinity of Pandhari Shivar, one Mahindra Jeep bearing registration
No. MH-25/B-7263, coming from the opposite direction, at an
excessively high speed and being driven in a rash and negligent
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manner, gave dash to the motorcycle. As a result of which both, Amol
and Sharad, sustained multiple and fatal injuries and subsequently
succumbed to the same. An offence was registered against the driver
of the jeep. Two separate claim petitions were filed by the legal heirs
of the deceased (present cross objectioners).
3. The Tribunal issued notices to the respondents, i.e. the owner
and driver of the jeep, as well as their insurer. Though all the
respondents caused their appearance, only the Insurance Company
seriously contested the claim petitions. After hearing the respective
parties, the Tribunal was pleased to partly allow each of the claims by
its judgments and awards dated 22.02.2018 and 06.04.2018,
respectively.
Aggrieved by the same, Insurance Company/original respondent
No.3 in both claim petitions, is hereby assailing the judgment and
awards in each of the claim petitions by filing the instant appeals. The
legal heirs of deceased Amol and Sharad have also preferred cross
appeals being aggrieved by the quantum of compensation.
4. Heard both the sides at length. Perused the impugned
judgments and awards in respective claim petitions.
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5. The grounds raised by learned counsel for the Insurance
Company are; firstly, the claimants had not cogently proved that the
accident was caused only due to the rash and negligent driving of the
driver of jeep bearing registration No. MH-25/B-7263. Secondly, FIR
being against unknown vehicle, subsequently by collusion with
respondents (owner and driver of offending jeep), crime has been
registered and vehicle insured by appellant/Insurance Company is
tried to be involved. Thirdly, there was inordinate delay in reporting
the registration number of the offending vehicle. Fourthly, the
important/material witness from whom complainant allegedly got
information about involvement of jeep was not examined; and lastly,
the driver of the jeep was not holding a valid and effective driving
licence at the time of the accident, and therefore, there was a breach
of the conditions of the insurance policy.
6. The sum and substance of the argument put forth before this
Court on behalf of the appellant/Insurance Company is that, one
Sominath Gangadhar Sole is shown to be the informant. However,
learned counsel pointed out that the complaint filed at his instance is
based on hearsay information, allegedly received from one Mahesh,
who was also said to have been injured in the accident, but the said
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Mahesh has not been examined for reasons best known to the
claimants. According to the learned counsel, there is no iota of
evidence except complaint regarding involvement of pick-up jeep
insured by the appellant.
7. Learned counsel further pointed out that, apart from the
claimant, evidence of Angad Laxman Shinde, Babu Maruti Hambarde,
and Krushna Dadasaheb Wandhare is also adduced. However, it is a
mystery as to how they were witnesses to the alleged occurrence
which allegedly took place in the night. He pointed out that,
consequently they are got up witnesses made to step up into the
witness box after a huge gap of almost four years. Therefore, it is
doubtful that they were able to note the registration number of the
vehicle allegedly involved in the accident, more particularly as the
incident occurred during night time, and reported the same after four
years. He further emphasized that none of the witnesses have deposed
to have seen the actual occurrence resulting in deaths, so as to hold
the pick-up jeep solely responsible for the dash.
8. Learned counsel pointed out that, there is a huge possibility that
a false and fabricated claim has been set up by the claimants in
collusion with the witnesses, who belong to adjacent village and it
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seems to be an attempt to extract compensation even when not
entitled. He submitted that, the Insurance Company is custodian of
public funds and liable to pay only valid claim. According to him, in
the instant case, such frivolous claim ought not to have been
entertained by the Tribunal, and therefore, learned counsel takes
serious exception to the judgment and award passed in both claim
petitions. He seeks reliance on the following rulings.
(i) Oriental Insurance Company Ltd. Vs. Meena Variyal &
Others, (2007) 5 SCC 428.
(ii) Anil & others Vs. New India Assurance Company Ltd. ,
(2018) 2 SCC 482.
(iii) National Insurance Copan Ltd. V. Nandabai w/o
Prakash @ Pralhad dhumal & Others , [First Appeal No.1565
of 2012.
(iv) Mr. Pukh Raj Bumb V. Mr. Jagannath Atchut Naik and
others, [First Appeal No.32 of 2013]; and
(v) Vitthal Sopan Suryawanshi, V. Daji Rajkumar Shinde ,
[First Appeal No.2061 of 2023]
9. In answer to above, learned counsel for the respective claimants
supported the impugned judgment by pointing out that the informant
was also travelling in close proximity to both deceased. Learned
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counsel submitted that the complainant had seen both the deceased
and the injured proceeding ahead of him. That, at a short distance
from the deceased, one Mahesh, who was also injured, had provided
information about the alleged accident. Though Mahesh was not
examined, no specific efforts were also made by the Insurance
Company to engage a private investigator to verify the veracity of the
alleged accident. It is pointed out that a prompt FIR was lodged. That,
the investigating agency conducted a thorough investigation and a
charge-sheet was filed against the driver of the offending jeep and he
is also charge-sheeted. Therefore, in view of the availability of the
charge-sheet and the thorough investigation conducted, it is not open
for Insurance Company to allege false implication of the offending
jeep. Allegation of collusion is also refuted by submitting that there is
nothing on record to suggest that the complainant and the witnesses,
who are residents of distinct villages, are acquainted with each other.
For said reasons, it is prayed that such ground be discarded.
10. Lastly, it is submitted that, considering the sufficiency and
quality of the evidence, the learned Tribunal has correctly appreciated
the evidence adduced by the claimants as well as the settled legal
position on reliability of FIR, spot panchanama and chargesheet and
rightly held that the driver of the offending vehicle was rash and
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negligent, as well as entitlement of compensation being cogently
proved and the same has been awarded. But grievance is raised that
unfortunately, the compensation awarded is inadequate, and
accordingly, separate first appeal and cross-objection for enhancement
of compensation have been filed by the heirs of deceased Amol and
deceased Sharad, respectively.
SUM AND SUBSTANCE OF THE EVIDENCE ADDUCED BY
CLAIMANTS BEFORE THE TRIBUNAL IN M.A.C.P NO.168 OF 2013 IS
AS UNDER:
11. Wife of the deceased Amol, namely Suvarna Sole, in her
affidavit evidence at Exhibit-46, gave details of her own status, as well
as information regarding her son and in-laws. She stated that on
08.02.2013, her husband Amol, along with Sharad, was proceeding on
a motorcycle bearing registration No. MH-23-L-8142 from Ashti to
Jamkhed. At around 08.40 p.m., their motorcycle was given a dash by
Mahindra Jeep bearing No. MH-25/B-7263 in which her husband and
Sharad both suffered grievous injuries and died on the spot. That,
initially, crime bearing No.34/2013 was registered against an
unknown vehicle. However, on investigation, crime has been
registered against driver of Mahindra Jeep bearing No. MH-25/B-
7263. She stated the age of her deceased husband as 28 years and
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described him as healthy and hearty. He was working as a Manager at
Primeone Workforce Pvt. Ltd., earning a salary of Rs.17,000/- per
month, and also engaged in agricultural activities, earning
approximately Rs.1,00,000/- per annum. Because of the accidental
death of her husband, she, her son, and her in-laws, who were
dependent on him, have lost their source of income and thereby she
set up a claim of Rs.31,44,000/- under various heads and she sought
the same from owner, driver of the jeep as well as its insurer i.e.
original respondents No.1 to 3.
She was cross-examined by learned counsel for the Insurance
Company, wherein she admitted that, she has not seen the accident.
However, she denied all suggestions regarding the age, service, salary,
agricultural holdings, income, and dependency to be false. She also
categorically denied any suggestion that the offending vehicle (jeep)
or its driver was not responsible for the accident.
12. Crime was registered at Police Station Ashti, bearing No. 34 of
2013, at the instance of one Sominath Gangadhar Sole on 09.02.2013,
i.e., immediately on the next morning, wherein, Sominath reported
that he, along with Angad, were proceeding on motorcycle towards
their village, and at that time, Amol and Sharad, who were also on
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their motorcycle, met them and all four of them were proceeding
towards Pokhari. Around 08.30 p.m., he and his pillion rider namely
Angad took a brief halt for taking tea, whereas Amol and Sharad
proceeded ahead. Around 08.40 p.m., Amol and Sharad were found
lying in injured condition on the road. He has reported that one
Mahesh Sole of their village was also lying there in injured condition
and from him it was learnt that dash was given by one pickup jeep to
Amol and Sharad and even dash was given to him and pickup driver
fled away towards Ashti without waiting. It is further reported that
information was passed to the villagers and injured were taken to the
hospital. On such report, Ashti Police registered the above crime.
13. Sominath was examined by the claimants in MACP 168/2013,
and his evidence is recorded at Exhibit-58. He reiterated that on
08.02.2013, he and Angad Laxman Shinde had gone to Ashti for
personal work. While returning, they saw Amol and Sharad on a
motorcycle. He reiterated the contents of the report, stating that he
and Angad had halted to have tea, while Amol and Sharad went
ahead. Around 8:40 p.m., Amol and Sharad were found lying
unconscious and injured on the road. One Mahesh Sole, a resident of
their village, was also found lying in injured condition at some
distance from the spot and he passed information about dash given by
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pickup to the motorcycle of Amol and Sharad as well as to him and
pickup jeep proceeded towards Ashti direction.
The above witness was also cross-examined wherein he has
stated that, the accident had occurred four years back. He further
stated that Amol was his cousin. He was also questioned about the
geographical direction of the spot of accident. He answered that,
Mahesh was also his distant cousin. He answered that, when he met
Mahesh, he did not give number of pickup vehicle as he was not
knowing, and it was rather stated by Mahesh that dash was given by
unknown vehicle. Rest of suggestions are denied by him.
14. Witness No. 2 Satish Gaikwad seems to be the spot pancha. He
was examined by the claimants at Exhibit-55. It has come in his
evidence that on 09.02.2013, he was called by Ashti Police and spot
was shown to him and in his presence, panchanama was drawn. He
identified the contents of panchanama Exhibit-50.
In cross, he has denied almost all suggestions except stating that
he had accompanied Sarpanch to whom police had called and in his
presence panchanama was drawn. He has also stated about
motorcycle bearing No. MH-23-L-8142 to be lying there. Rest all
suggestions are denied.
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15. Witness No. 4 Hemant Kudale in his evidence at Exhibit-65
testified that he was working in Primeone Workforce Pvt. Ltd. since
2013. That, Amol was serving in the said company. The company paid
salary to deceased Amol and the salary slips placed on record are true
and correct.
He is also cross-examined, wherein the above aspect appearing
in his chief has not been dislodged. Certificate of employment contract
and salary slips are also identified by this witness to be true and
correct.
16. Claimants have also produced certified copies of evidence of
witnesses in another claim petition, i.e. MACP No. 159/2013, namely
Witness No. 5 Angad Laxman Shinde (Exhibit-76), Witness No. 6 Balu
Hambarde at Exhibit-77, and Witness No. 7 Krushna Wandhare at
Exhibit-78 (r/o Pokhari and Pandhri respectively).
17. Balu Hamdarde, who was examined by the claimants in MACP
No. 159/2013, testified that on 08.02.2013, he, Suresh, Balu, Krsuha
and Manohar were sitting in front of his house. Around 08.30 to 8.45
p.m. they went to the spot and they saw pickup jeep bearing No. MH-
25-B-7263 coming from Jamkhed side and giving dash to motorcycle.
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He has deposed that, at that time, Angad Shinde came and told them
the names of Amol and Sharad and they to be from his village.
Above witness is cross-examined, where he admitted that there
was darkness on the spot. He denied that Amol and Sharad were
drunk and they were driving the vehicle in zigzag manner. He denied
that there was no negligence or rashness or the fault of the pickup
driver.
In cross on behalf of Insurance Company, he answered that he
was residing opposite side to the road and there were 4 to 5 houses,
where 15-20 people were residing in the locality. He has answered
that 7 to 8 person gathered at the spot. He specifically answered that,
at the time of accident, he was sitting near the road. He admitted that,
he does not keep a note of the vehicles passing on the road. He
admitted that he himself did not lodge the report. He answered that,
on the next day, police made an inquiry and occurrence was reported.
Rest all suggestions are denied.
18. Similar is the evidence of Krushna (examined as witness in
MACP 159/2013) wherein he has stated that on 08.02.2013, around
08.30 p.m., accident occurred and therefore, he himself, Balu
Hambarde, Manohar and Shashikant were sitting and chatting and at
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that time, Mahindra Jeep MH-25/B-7263 came at high speed and
gave dash to the motorcycle and also gave dash to another person.
The said pickup jeep fled away. At that time, Angad had reached there
and he had provided names of injured persons.
In cross at the hands of Insurance Company, the above
testimony has not been shaken.
19. Apart from the oral account, claimants have placed on record
documentary evidence comprising of driving licence of deceased Amol,
SCC certificate and graduation certificate, bona fide certificate,
contract agreement between employer and deceased (Exhibit-43),
salary certificate and 7/12 extract of agricultural land.
20. Precisely pointing to the above evidence of Sominath, learned
counsel for the Insurance Company has raised the issue about the
involvement of the offending vehicle jeep. However, here, there is
prompt lodgment of complaint by Sominath, upon which thorough
investigation has been carried out and thereafter charge-sheet has
been filed against the driver of offending vehicle jeep. True it is that
Mahesh has not been examined, but the charge-sheet is accepted in
the trial Court and moreover, Insurance Company, as submitted by
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learned counsel for claimants, has not been diligent in engaging its
own investigator and further has also failed examine Investigating
Officer, who was a crucial witness so as to demonstrate their stand of
false implication of vehicle. Merely because the witnesses, namely,
Balu and Krushna deposed before the Court at the time of trial, which
actually commenced after four years, it cannot be directly inferred that
they are got-up witnesses. It is pertinent to note that, the Insurance
Company has not adduced any evidence of engaging a private
investigator, and there is no precedent or judgment laying down the
ratio that a claim based on an FIR against an unknown vehicle or hit
and run case is not maintainable. On the contrary, law has been settled
by the Hon'ble Apex Court in the case of Kuncham Lavanya and others
v. Bajaj Allianz 2025 DGLS (SC) 513 wherein, in para 17 it has been
observed as under :
"17. The very fact that the case was registered against an
unknown vehicle initially would indicate that the
offending vehicle was not identified. However, since and
FIR is not expected to be encyclopaedic and is only for the
purpose of putting into motion criminal law such that
thorough and full-fledged investigation by the police
ensues, it is the duty of the investigating agency to find
out the identity of the culprit which in the present case
would be the offending car and driver and take action in
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accordance with law. Thus, the mere fact that initially the
FIR records the vehicle as unknown would not be fatal for
the prosecution/claimants to later come up with the
specific identity of the vehicle/driver, with the obvious
caveat that the connection of the accident with the said
vehicle has to be based on cogent and reliable evidence."
Insurance Company is expected to demonstrate that the vehicle
allegedly insured by it was not at all involved. No evidence either oral
or documentary has been adduced in this regard.
On the contrary, evidence of complainant Sominath and other
witnesses, namely, Baban, Angad, Balu and Krushna has remained
intact and nothing adverse is brought in the cross of even complainant
Sominath so as to doubt that false and frivolous complaint has been
lodged by colluding with the owner or driver of the offending vehicle.
Even the nature of suggestions like deceased were whether drunk,
goes to show that there is no serious challenge to such evidence.
Above named witnesses are villagers and therefore, they may not have
been diligent in giving their statements on their own. Only when
police approached them, they seem to have given their statements.
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21. Though plea of statutory breach of non-availability of driving
licence is also raised by the learned counsel for Insurance Company,
however, the Insurance Company has failed to prove the same.
22. Learned counsel for Insurance Company has submitted that
compensation awarded by the Tribunal is exorbitant. However, the
evidence on record before the Tribunal, i.e. both oral and
documentary evidence, clearly shows that deceased Amol was
employed as a Manager and was earning a monthly salary of
Rs. 17,000/-. Witness No. 4 Hemant Kudale, Assistant Branch
Manager of the employer, has been examined at Exhibit 65. Salary
certificates of deceased are at Exhibits 66 to 71.
23. Resultantly, with such quality of evidence on record, no fault
can be found in the findings of the Tribunal regarding salary income as
well as agricultural income. Findings recorded by the Tribunal appear
to be based on judicial precedent. No perversity or illegality is brought
to the notice of this Court so as to interfere in the same.
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SUM AND SUBSTANCE OF THE EVIDENCE ADDUCED BY
CLAIMANTS BEFORE THE TRIBUNAL IN M.A.C.P NO. 159 OF 2013 IS
AS UNDER:
24. Father of deceased Sharad, namely Santram Sole in his affidavit
evidence at Exhibit-33 has given his own status, details of his wife,
grand-daughter and daughter-in-law. He stated that on 08.02.2013,
his son Sharad along with Amol was proceeding on motorcycle
bearing No. MH-23-L-8142 from Ashti to Jamkhed to their village
Pokhari. At around 08.40 p.m., their motorcycle was given dash by
Mahindra Jeep bearing No. MH-25-B-7263 in which his son Sharad,
and Amol both suffered grievous injuries and died on the spot. That,
initially crime bearing No.34/2013 was registered against unknown
vehicle. However, on investigation, crime has been registered against
driver of Mahindra Jeep bearing No. MH-25-B-7263. He gave age of
his deceased son as 32 years and to be healthy and hearty and to be
working as a Manager in Kisan Kranti Cotton Industries and earning
salary of Rs.27,500/- per month and also conducted milk business and
earned Rs.6,000/- per month. Because of the accidental death, he,
along with his wife, daughter-in-law, and grand daughter, who were
dependent on him, lost their source of income and thereby set up a
claim of Rs. 75,00,000/- under various heads, which he sought to
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recover from the owner, driver of the jeep, and its insurer, i.e. original
respondents No. 1 to 3.
He is cross-examined by learned counsel for Insurance
Company, wherein he has admitted that he has not seen the accident,
but he has denied all suggestions about service and dependency. He
also completely denied falls implication of offending vehicle jeep or
driver of the vehicle to be not responsible for the accident.
25. The details of crime registered at the instance of Sominath are
already discussed in the foregoing paragraphs.
26. Witness No. 2 Sunil Bhogade in his evidence at Exhibit-54
testified that he knows claimant Santram. He further deposed that he
sold a jersey cow to deceased Sharad on 05.09.2011 for Rs.23,250/-.
The receipt of the same was also issued, which is at Exhibit-55.
In his cross, receipt regarding selling of jersey cow is also
identified by this witness to be true and correct.
27. Witness No.3 Eknath Bhogade, in his evidence, has deposed that
he is Chairman of Milk Dairy and his wife is Secretary. He stated that,
he looks after the day-to-day affairs of the dairy. He further deposed
that, deceased Sharad was regularly supplying milk to his dairy from
495-19-FA (+).odt
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09.06.2011 till 08.02.2013 and he also issued the payment slips for
the same.
In his cross, consolidated payment slips at Exhibit-57 are also
identified by him to be true and correct.
28. Claimants have also adduced evidence of Witness No. 4 Baban
at Exhibit-62, Witness No. 5 Angand at Exhibit-67, Witness No.6 Balu
at Exhibit-69, and Witness No.7 Krushna Wandhare at Exhibit-70.
29. PW-4 Baban in his evidence at Exhibit-62 testified that he was
working as a Manager in Kisan Kranti Cotton Industries, Ashti since
2008. That, Sharad was serving as Manager in the said company. The
company paid salary of Rs.27,500/- to deceased Sharad and he also
identified the salary certificate placed on record to be true and correct.
He is also cross-examined, however the above aspect appearing
in his chief has not been dislodged. Salary certificate and salary
register are also identified by this witness to be true and correct.
30. Evidence of PW-6 Balu Hamdarde and PW-7 Krushna Wandhare
has already been discussed in the foregoing paragraphs. Therefore, it
need not be reiterated here.
495-19-FA (+).odt
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31. Claimants of this claim have relied on the judgment of the
Tribunal in Claim Petition no. 168 of 2013 decided on 22.02.2018. On
analyzing the evidence of above witnesses it is emerging that Witness
Santram happens to be the father of deceased Sharad. Substance of
his evidence is already dealt above. He too has also deposed about
dash being given to the motorcycle of which Amol was rider and his
son Sharad was pillion rider. He has also given the vehicle number of
the jeep and further deposed about report of the occurrence being
lodged by Sominath. While under cross, he has admitted that though,
on complaint of Sominath crime was registered against unknown
vehicle, according to him, investigation revealed that offending vehicle
Mahindra jeep was involved in the said accident.
PW5 Angad whose evidence is discussed in above claim, also
goes to show that along with Sominath, he too was a witness. That, he
was in the very company of complainant Sominath who lodged report.
Again, PW6 Balu Hambarde also deposed about hearing sound around
8.30 to 8.45 p.m. and when he rushed to the spot with others, they
saw jeep bearing no. MH 25-B-7263 to have given dash. He further
stated that, Angad told that deceased were of his village. The manner
of cross of this witness clearly shows that only length, breadth of road
495-19-FA (+).odt
{26}
and geographical directions of the spot are questioned. His statement
is also recorded by police.
Similarly PW7 Krishna also deposed on above lines and even in
his cross, except admitting that pick up van sped away in western
direction and not informing at toll naka, there is no other suggestion.
He admitted that his statement was not recorded by the police.
32. On complete re-appreciation of the above available evidence,
here also, informant is Sominath. At the time of accident, he was
accompanied by Angad. Their evidence about seeing both, deceased
Amol and Sharad travelling in their direction itself, and going ahead of
them, has remained intact. Here also, though rest of the witnesses
have deposed after a lapse of years after the occurrence, it has come
on record that police have recorded their statements and after
thorough investigation, charge sheet has been filed against offending
jeep. As stated above, steps to examine Investigating Officer to
question involvement are also not taken by the present appellant-
respondent Insurance Company. In the light of such available
evidence, and evidence of Sominath and Angad to be suggesting that
they were both in proximity of time and place to the deceased, there is
no valid reason to discard their evidence.
495-19-FA (+).odt
{27}
CROSS OBJECTION NO. 90 OF 2024 & FIRST APPEAL NO. 1892 OF 2018
33. Instant cross objections/appeals are by wives of deceased
Sharad and Amol, who were proceeding on motorcycle and had
allegedly met road traffic accident and had succumbed to the injuries
therein. Supriya (wife of deceased Sharad) had set up accident claim
petition bearing MACP No. 159 of 2013 for herself as well as for other
heirs of Sharad i.e. compensation to the tune of Rs.75,00,000/-.
Similar objection has been raised by Supriya (wife of deceased Amol).
Claims bearing MACP Nos. 159 of 2013 and 168 of 2013 were
decided by judgment and orders dated 06.04.2018 and 22.02.2018
respectively. The learned Tribunal considered contributory negligence
on the part of Amol and held 60% negligence on the part of offending
vehicle jeep and directed compensation to be paid by its owner
respondent no.1, driver respondent no.2 and its insurer respondent
no.3, and also held 40% contributory negligence on the part of Amol
i.e. rider of the motorcycle.
34. In First Appeal No. 1892 of 2018, it is tried to be submitted that,
there was no evidence whatsoever to also hold contributory
negligence on the part of rider Amol and therefore it was not open for
learned Tribunal to apply principles of composite negligence while
fixing responsibility and considering entitlement of compensation.
495-19-FA (+).odt
{28}
Whereas learned counsel for cross objectioner in Cross
Objection No. 90 of 2024 pointed out that here, undisputedly, Amol
was rider whereas deceased Sharad was a pillion rider. Under such
circumstances, it is put forth that Sharad was not responsible for the
accident in any manner. If at all there is negligence, it is on the part of
rider Amol. Resultantly, it is submitted that, learned tribunal ought not
to have deducted 40% from the entitled compensation under the head
of contributory negligence. He seeks reliance on the judgment of the
Hon'ble Apex Court in the case of Khenyei v. New India Assurance Co.
Ltd. & Ors. AIR 2015 SC 2261.
35. In view of above points raised, impugned judgments are
required to be visited. While answering point nos. 1 and 2, learned
tribunal has held that, there was contributory negligence also on the
part of deceased Amol and Sharad, and after reflecting on the
chargesheet papers, more particularly spot panchanama, it is held
that, rider of the motorcycle was also contributory party in negligence
and fixed 40% liability accordingly.
36. Observations of learned tribunal in regard to above two points
are dealt by way of issue nos. 1 and 2 together. As regards to
discussion on these two issues, there are observations in para 24 of the
495-19-FA (+).odt
{29}
judgment in MACP No. 168 of 2013. Learned tribunal seems to have
meticulously examined the available evidence, more particularly
report lodged by Sominath, as well as spot panchanama filed along
with the charge sheet, and has noted that, motorcycle was lying
towards the southern side of the road going from Jamkhed to Ashti
which runs east-west. It is also noted that there are brake marks of
four-wheeler from east side to west side to the extent of 10 to 15 feet.
Width of the road is taken into account as 21 feet, marking of white
strip over middle portion of the road is also noted and after taking
such spot details and also on the strength of hand sketch map, finding
has been recorded that accident took place on southern side of
Jamkhed-Ashti road which runs east-west. Considering the directions
in which both vehicles i.e. motorcycle as well as offending jeep were
proceeding, it is held that deceased Amol, who was rider of motorcycle
and he left his correct side and had gone to some extent towards the
middle strip, which was not his correct part of road and hence learned
Tribunal has rightly considered contributory negligence on the part of
Amol also. Except raising ground in cross appeal, no distinct material
in support of above contention has been placed on record by the
original claimants. There being no perversity in fixing contributory
negligence of Amol also, such finding need not be disturbed.
495-19-FA (+).odt
{30}
However, as regards to objection raised by heirs of deceased
Sharad is concerned, there is a valid point. Admittedly, Sharad was
mere pillion rider. Therefore it would be unjust and improper to also
fix responsibility of pillion rider when Amol was rider and was solely
responsible by contributing to the mishap. For such reasons, learned
tribunal ought not to have deducted 40% towards contributory
negligence from the compensation entitled by heirs of deceased
Sharad. Therefore, order of the Tribunal is required to be interfered to
that extent.
37. Second objection is regarding less quantum. However,
considering the nature of evidence adduced by witness Hemant in
MACP/168/2013, father of deceased Sharad as well as witnesses
Sunil, Eknath and Baban in MACP/159/2013, it cannot be said that
there is inappropriate calculation or computation of annual income.
However, there seems to be error on the part of learned Tribunal
in not awarding loss of consortium to each of the claimants. The
observations regarding consortium are reflected in para 35 of MACP
No. 168 of 2013 and para 31 of MACP No. 159 of 2013. In MACP No.
168 of 2013, learned Tribunal has awarded consortium only to
claimant no.1 i.e. wife of deceased Amol, whereas, in MACP No. 159
of 2013, learned Tribunal has awarded lump-sum amount of
495-19-FA (+).odt
{31}
Rs.70,000/- towards consortium, love and affection, loss of estate and
funeral expenses. So also, in MACP No. 168 of 2013, the learned
Tribunal erred in deducting 40% towards contributory negligence after
addition of non pecuniary losses. In fact, 40% deduction towards
contributory negligence ought to have been made first and then the
compensation under non pecuniary heads ought to have been
considered.
Here, claimants in MACP No. 168 of 2013 are also asserting
future prospects for its non-consideration by learned Tribunal. Learned
Tribunal has made observations for dis-entitlement of future prospects
in para 33. View taken seems to be that, there is no strong positive
evidence on record suggesting definite prospects of increase in the
income of deceased in future. On such count, future prospects are
refused. In the considered opinion of this Court, it has come on record
by way of evidence that deceased was working as manager and was
earning salary. It is also not in dispute that said services were on
contractual basis. However, it has not come on record that under no
circumstances the contractual service would be extended in future.
Even witness who has appeared on behalf of employer on the point of
salary has not been questioned by insurance company that, the above
services were only for a fixed period and not beyond it. Therefore,
495-19-FA (+).odt
{32}
there is no reason to infer that there would not be future prospects to
the deceased. In view of ratio laid down by the Hon'ble Supreme
Court in National Insurance Company Limited v. Pranay Sethi and Ors.
AIR 2017 SC 5157, claimants in MACP No. 168 of 2013 are entitled
for addition of 40% of established income towards future prospects.
Hence, interference to that extent in the order of Tribunal is called for.
38. In view of the ratio laid down in National Insurance Company
Limited v. Pranay Sethi and others 2017 (16) SCC 680 and Magma
General Insurance Co. Ltd v. Nanu Ram and others (2018) 18 SCC
130, claimants in MACP No. 168 of 2013 are entitled for consortium
of Rs.40,000/- each, i.e. Rs.1,60,000/- plus 20% (Rs.32,000/-) which
comes to Rs.1,92,000/- towards consortium.
Similarly, claimants in MACP No. 159 of 2013 are also entitled
for consortium of Rs.40,000/- each, i.e. Rs.1,60,000/- plus 20%
(Rs.32,000/-) which comes to Rs.1,92,000/- towards consortium.
Claimants are also entitled for compensation Rs.15,000/- towards loss
of estate and Rs.15,000/- towards funeral expenses, in stead of lump
amount of Rs.70,000/-. Further, on perusal of paragraph no. 28 of the
judgment in the said claim petition, the tribunal seems to have
deducted 40% (Rs.1,34,400/-) towards personal expenses instead of
deducting 1/4th amount of yearly income which comes to Rs.84,000/- .
495-19-FA (+).odt
{33}
39. In view of the above discussion, in the considered opinion of
this Court, the claimants in MACP No. 168 of 2013 are entitled for
following compensation :
Sr. Heads Amount (Rs.)
No.
1 Monthly Income Rs.11,929/-
(as computed by the Tribunal)
2 After addition of 40% future prospects Rs.16,700/-
(11929 + 4771)
3 Annual Income from salary (16700 X 12) Rs.2,00,400/-
4 After addition of annual managerial loss i.e. Rs.2,05,400/-
Rs.5,000/- (as computed by the Tribunal)
2 After 1/4th deduction towards personal Rs.1,54,050/-
expenses (205400 - 51350)
3 Multiplier of 17 ( 154050 X 17) Rs.26,18,850/-
4 After deduction of 40% towards contributory Rs.15,71,310/-
negligence i.e. Rs.10,47,540/-
(26,18,850 - 10,47,540)
5 Non-pecuniary Loses :- Rs.2,22,000/-
Loss of consortium = Rs.1,92,000/-
Loss of Estate = Rs.15,000/-
(as awarded by Tribunal)
Funeral Expenses = Rs.15,000/-
(as awarded by Tribunal)
6 Total compensation to be paid Rs.17,93,310/-
(i.e. 11,33,332 + 2,22,000/-)
7 Compensation awarded by the Tribunal Rs.11,75,330/-
8 Total Enhanced Compensation Rs.6,17,980/-
( 17,93,310 - 11,75,330)
495-19-FA (+).odt
{34}
40. Similarly, the claimants in MACP No. 159 of 2013 are entitled
for following compensation :
Sr. Heads Amount (Rs.)
1 Annual Income Rs.3,36,000/-
(as computed by the Tribunal)
2 After 1/4th deduction towards personal Rs.2,52,000/-
expenses
(3,36,000 - 84,000)
3 Multiplier of 16 (2,52,000 X 16) Rs.40,32,000/-
4 Non-pecuniary Loses :- Rs.2,22,000/-
Loss of consortium = Rs.1,92,000/-
Loss of Estate = Rs.15,000/-
(as awarded by Tribunal)
Funeral Expenses = Rs.15,000/-
(as awarded by Tribunal)
5 Total compensation to be paid Rs.42,54,000/-
(i.e. 24,19,200 + 2,22,000/-)
7 Compensation awarded by the Tribunal Rs.20,09,000/-
8 Total Enhanced Compensation Rs.22,45,000/-
(26,41,200 - 20,09,000)
41. In the result, following order is passed :
ORDER
I. First Appeal No. 495 of 2019 and First Appeal No. 2075 of 2018
filed by the Insurance Company are hereby dismissed.
II. In view of dismissal of First Appeal No. 495 of 2019 and First
Appeal No. 2075 of 2018, the Civil Application No.8951 of 2018
and Civil Application No. 8964 of 2018 also stand disposed off.
495-19-FA (+).odt
{35}
III. First Appeal No. 1892 of 2018 filed by the claimants in MACP
No. 168 of 2013 is partly allowed with proportionate costs.
IV. The impugned judgment and award dated 22.02.2018 passed
by Adhoc District Judge-1 and Member of M.A.C.T., Beed in
M.A.C.P. No. 168 of 2013 is modified.
V. Respondent Nos. 1 to 3 in First Appeal No. 1892 of 2018 to pay
enhanced compensation of Rs.6,17,980/- to the claimants
within 12 weeks from today along with interest @ 6% per
annum from the date of registration of claim petition till its
realization.
VI. Modified award be prepared accordingly.
VII. Claimants to pay court fees on additional compensation as per
Rules.
VIII. On deposit of amount by the Insurance Company,
appellants/claimants are permitted to withdraw the same.
IX. Cross Objection No. 90 of 2024 filed by the claimants in MACP
No. 159 of 2013 is partly allowed with proportionate costs.
495-19-FA (+).odt
{36}
X. The impugned judgment and award dated 06.04.2018 passed
by Member of M.A.C.T., Beed in M.A.C.P. No. 159 of 2013 is
modified.
XI. Respondent Nos. 1 to 3 in Cross Objection No. 90 of 2024 to
pay enhanced compensation of Rs.22,45,000/- to the claimants
within 12 weeks from today along with interest @ 6% per
annum from the date of registration of claim petition till its
realization.
XIII. Modified award be prepared accordingly.
XIII. Claimants to pay court fees on additional compensation as per
Rules.
XIV. On deposit of amount by the Insurance Company,
appellants/claimants are permitted to withdraw the same.
Civil Application No. 11786 of 2018
and
Civil Application No. 13717 of 2018
XV. Both the Civil Applications are allowed. The applicants-
claimants in both the Applications are permitted to withdraw
the entire amount deposited in this Court along with interest
accrued thereon, on furnishing usual undertaking to the
satisfaction of the Registrar (Judicial) of this Court.
495-19-FA (+).odt
{37}
42. Learned counsel Mr. Ambhore for the Insurance Company had
also prayed for stay to the effect and implementation of this order, if at
all the Court is inclined to enhance the compensation, so as to enable
the Insurance Company to approach the Hon'ble Supreme Court.
However, as 12 weeks time has already been granted for payment of
enhanced compensation along with interest, stay to the effect and
implementation of this order for six weeks is unwarranted. Hence, the
prayer for stay stands refused.
[ABHAY S. WAGHWASE, J.]
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