Bombay High Court
Vasudha Atul Patel And Others vs Rana Tulakraj Khurana And Others on 4 September, 2025
2025:BHC-AUG:23634
..1.. FA2176/2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO.2176 OF 2017
1. Vasudha w/o Atul Patel
Age: 51yrs, Occ: Household,
R/o: Avadhoot Bungalow, Plot no.14,
Survey no. 45/1B, Karna nagar,
Opp. R.T.O office, Peth Road, Nasik-4,
2. Tanmay S/o Atul Patel
Age: 25yrs, Occ: Student,
R/o: Avadhoot Bungalow, Plot no.14,
Survey no. 45/1B, Karna nagar,
Opp. R.T.O office, Peth Road, Nasik-4,
3. Madhukanta w/o Shantilal Patel,
Age: 85yrs, Occ: nil, R/o: Avadhoot Bungalow,
Plot no.14, survey no. 45/1B,
Karna nagar, Opp. R.T.O office,
Peth Road, Nasik-4, ..APPELLANTS
(Ori. Claimants)
Versus
1. Mr. Rana s/o Tulakraj Khurana,
Age: Major, Occ: Business,
R/o: Khurana Travels, Adalat Road,
Aurangabad.
2. The Divisional Manager,
The National Insurance Co. Ltd,
Divisional Office, Kokanwadi, Aurangabad.
3. Rameshwar s/o Devidas Kothe,
Age: Major, Occ: Driver, R/o: Nandura,
Post: Brachanwada, Tq & Dist: Amravati. ..RESPONDENTS
(Ori. Opponents)
.....
Shri. Abhijit C. Darandale, Advocate for the Appellants
Shri. Anand Dale h/f. Shri. Swapnil S. Rathi,
Advocate for Respondent No.1
Shir. V. N. Upadhye, Advocate for Respondent No.2
.....
..2.. FA2176/2017
CORAM : NEERAJ P. DHOTE, J.
RESERVED ON : 13.08.2025
PRONOUNCED ON : 04.09.2025
JUDGMENT :
. This Appeal under Section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as the, 'M.V. Act') is filed by the Orig. Claimants
who are the Widow, Son and Mother of Atul Shantilal Patel (hereinafter
referred to as 'the Deceased') for enhancement in the compensation
awarded by the learned Motor Accident Claims Tribunal, Aurangabad
(for short, 'Tribunal') by the Judgment and Order / Award dated
16.03.2013 in Motor Accident Claim Petition No.480/2009 (for short,
'Claim Petition').
2. The facts in brief, giving rise, to the present Appeal are as under:
2.1. On 10.05.2009 around 07:30 a.m. the Deceased was travelling on
the Motorcycle bearing No.MH-15-D-5569 from Baba Petrol Pump to
Kranti Chowk in Aurangabad City. When he reached near Water Tank of
Samta Nagar, his Motorcycle dashed against the Stationary Bus bearing
No.MH-38-F-1633. The Deceased suffered severe injuries and he was
hospitalized. The accident was reported to the Kranti Chowk Police
Station, Aurangabad and Crime bearing No.303/09 came to be
registered against the Respondent No.3 - Driver of the said Stationary
Bus. On 25.05.2009 he succumbed to the injuries.
2.2. The Deceased was working as the Production Manager with
Balkrishna Industries Ltd, Waluj MIDC, Aurangabad with monthly salary
of Rs.29,001/- (Rs. Twenty Nine Thousand One). He was 52 years old.
The Appellants filed the above referred Claim Petition for compensation
of Rs.50,00,000/- (Rs. Fifty Lakh) with interest @ 10% Per Annum.
The Claim Petition was contested by the Respondent 1 - Owner of the
said Bus and the Respondent No.2 - Insurance Company by filing their
respective Written-statements below Exhs.64 and 13. They denied the
contentions of the Claimants. They pleaded for dismissal of the Claim
Petition.
2.3. The Tribunal framed the issues below Exh.15. Claimant No.1 -
Widow of the Deceased examined herself by filing evidence Affidavit
below Exh.28. She was Cross-examined on behalf of the Respondent
No.2 - Insurance Company. In her evidence, the Police papers and the
Post-mortem Report etc., were brought on record. The Claimants
examined the Manager (Personnel) from the Company where the
Deceased was working, to prove the monthly income of the Deceased.
The statements of salary of the Deceased were brought on record in his
evidence. The Claimants examined the Accountant from the Kamalnayan
Bajaj Hospital, where the Deceased was hospitalized, to prove the
medical bills.
2.4. The Respondent No.1 - Vehicle Owner examined its
Manager as the Witness. He was Cross-examined on behalf of the
Claimants. After the evidence of both the sides was closed, the learned
Tribunal heard the parties and passed the above referred Judgment and
Award granting compensation of Rs.10,29,700/- (Rs. Ten Lakh Twenty
Nine Thousand Seven Hundred) with interest @ 9 % Per Annum from
the date of filing of the Claim Petition till its realization.
3. Heard learned Advocate for the Appellants, learned Advocate for
Respondent No.1 - Owner of the Vehicle and learned Advocate for
Respondent No.2 - Insurance Company. Perused the record.
4. It is submitted by learned Advocate for the Appellants that, the
evidence on record goes to show that the Bus was parked in the middle
of the road which was contrary to the provisions of Section 122 and 126
of the M.V. Act. No parking lights were lit as required by Rule 109 of the
Central Motor Vehicle Rules, 1989. The accident occurred due to such
negligent parking of the said Bus in the middle of the road and the
learned Tribunal erred in holding that it was the case of contributory
negligence and 50% negligence is attributed to the Deceased. There was
no evidence to show that, the Deceased was rash and negligent while
driving the Motorcycle. The learned Tribunal presumed wrongly and
contrary to the evidence on record. It is further submitted that, at the
most 10% contributory negligence could have been attributed to the
Deceased. In support of his contentions, he relied on the Judgments in
(i) Sushma vs. Nitin Ganapati Rangole and Others, 2024 AIR (SCW)
4627, (ii) Mohammed Siddique and Another vs. National Insurance
Company Limited and Others, (2020) 3 SCC 57, and (iii) New India
Assurance Company Limited Vs. Anita Rajendra Sonwane, 2025 (4)
MhLJ 252.
5. It is submitted by learned Advocate for the Respondent No. 1 -
Owner of the Bus that, the learned Tribunal has rightly appreciated the
evidence on record and rightly attributed 50% contributory negligence
on both i.e. Bus Driver and the Deceased. The Bus was partly on road as
can be seen from the evidence on record. It was broad day light and the
vehicle was clearly visible. No interference is called for in the finding of
the contributory negligence recorded by learned Tribunal.
6. It is submitted by learned Advocate for the Respondent No.2 -
Insurance Company that, all the necessary documents were available on
record. The Spot Panchanama at Exh.31 shows that the Bus was not
completely on the road, but was partly on the kaccha road. There was
ample space to move on the road. The Bus was stationary and was
parked. The accident took place in the morning. The learned Tribunal
has rightly considered the entire scenario and attributed 50%
contributory negligence to the Bus Driver and by the Deceased. The
learned Tribunal has rightly appreciated the evidence available on
record and there was no illegality in the finding in respect of
contributory negligence. In support of his contentions, he relied on the
Judgment in Raj Rani and Others vs. Oriental Insurance Company
Limited and Others, (2009) 13 SCC 654.
7. In the case of Sushma (supra) the Appeal was under the Motor
Vehicles Act. The Car collided with fourteen wheeler trailer which was
left abandoned in the middle of the Highway without any warning signs
in the form of indicators or parking lights. The collision resulted into
the death of the passengers in the car. The Tribunal held that, it was the
case of contributory negligence by the Drivers of both the vehicles. The
finding recorded by the Tribunal was concurred in the Appeal.
By considering the evidence on record and the provisions of Section 2
(34), 121, 122, 126, 127 (2) of the Motor Vehicles Act, 1988 and
Regulation 15 of the Rules of Road Regulation, 1989, it was held that
the entire responsibility for the negligence leading to the accident was of
the Truck Owner / Driver. It was observed that, ' there was nothing to
indicate that the Car was being driven at an excessively high speed or
that the Driver failed to follow the traffic rules.'
8. In the case of Mohammed Siddique (supra) the Deceased was the
Pillion Rider on the Motorcycle which was hit by the Car from behind.
Learned Tribunal and the Appellate Court held that the case was of
contributory negligence. It was observed that there was nothing to show
that wrongful act on the part of the Deceased Victim contributed either
to the accident or to nature of injuries sustained and the Victim Pillion
rider could not have been held guilty of contributory negligence and the
reduction of 10% towards contributory negligence was set aside.
9. In the case of New India Assurance Company Limited (supra) the
accident was between the Truck and the Car which was bring driven by
the Deceased. It was recorded by the Police in the Police Papers that the
accident occurred in the center of the road. The finding recorded by
learned Tribunal in respect of negligence on the part of the Truck Driver
was not interfered in the Appeal.
10. In Raj Rani and Others (supra), the Deceased was driving Maruti
Car. One Truck was parked in middle of the road. It was the case of the
Claimants that although the Car was being driven at a nominal speed,
owing to another vehicle coming from the other side and as the parking
lights of the Truck being not on, it was sighted at the last minute and the
Deceased tried to take the Car towards left side, but it dashed against
the Truck resulting in the death of the Deceased. The Tribunal held the
case as that of contributory negligence. In the said case, the finding of
the contributory negligence to the extent of 50% was upheld.
NEGLIGENCE :-
11. Coming to the case at hand, the Appellants relied on the Police
Papers to substantiate their claim. Undisputedly, the Appellant No.1
who was examined as the Witness in support of the Claim Petition
admitted in the Cross-examination that, she did not witness the
accident. The Respondent No.1 - Owner of the Bus examined the
Witness below Exh.68 on the point of Motor Vehicular Accident. This
Witness deposed that he was present in the office of the Respondent
No.1 - Travels on the date of accident from 06:00 a.m. and the said Bus
arrived from Mumbai in between 07:00 a.m. to 07:30 a.m. and it was
standing in front of their office beyond the road. According to him, the
Motorcycle came from the back side and dashed against the Bus. The
Motorcycle Driver was removed to the hospital. According to him, he
witnessed the said accident which occurred due to negligence of the
Deceased. He denied the suggestions that he was giving false evidence.
12. The Police Papers show that pursuant to the registration of the
Crime against the Driver of the said Bus, the Spot Panchanama was
prepared. As per the Spot Panchanama, the Bus was halted by the
Driver on the road, due to which the Motorcycle dashed against the Bus
and the Deceased suffered injuries. The sketch of the spot of accident is
also drawn in the Spot Panchanama. The said sketch show that the road
was divided into two parts by divider and the said Bus was standing on
the road towards northern side. The learned Tribunal in the Judgment
observed that, 'it is well settled that in the case of accident the principle
of Res Ipsa Loquitur plays an important role. Therefore, the factual
position depicted in the Spot Panchanama Exh.31 would be more
helpful to decide the issue than the oral evidence of interested
witnesses.' It is not in dispute and it is clearly seen from the evidence on
record that, the said Bus was stationary on the road. It is observed by
the Tribunal that, 'Had the said Bus been stationed away from the
northern edge of the said road, perhaps the accident would not have
happened'. The learned Tribunal further observed that, from the Spot
Panchanama Exh.31, it was clear that, there was sufficient space
available between the southern side of the said Bus and the divider for
the Deceased to take his Motorcycle safely ahead of the Bus. It further
noted that the accident took place at 07:30 a.m. and by that time the
vehicles on the road must be quite visible, however instead of taking
Motorcycle ahead of the said Bus from the available space, he dashed
the rear portion of the said Bus from its Driver side and further observed
that, it seems that either the Deceased was not vigilant while riding on
the Motorcycle or due to its high speed he could not control it and
consequently the Motorcycle dashed against the Bus and held that, the
Deceased was also responsible for occurrence of the accident. The
Tribunal further noted that, the facts and circumstances stated above
clearly disclose that the Respondent No. 3 and the Deceased were
equally responsible for the accident.
13. Though the Witness examined by the Respondent No.1
deposed that, the accident took place due to the mistake of the Deceased
and the Bus was stationed at the side of the road, no Report was lodged
against the Deceased for rash and negligent driving of the Motorcycle.
Undisputedly, and on which aspect there is no dispute, the Crime came
to be registered against the Driver of the said Bus for the offence under
Section 304A of the Indian Penal Code which deals with causing death
by negligence. Sofar as the evidence of the Witness examined by
Respondent No.1 is concerned, it nowhere shows that the Deceased was
driving the Motorcycle in rash and negligent manner. The observation
by learned Tribunal that, either the Deceased was not vigilant while
driving the Motorcycle or due to the high speed he could not control the
Motorcycle and dashed the Bus, is without any evidence on record. The
said finding finds no support from the material available on record.
When it was observed by learned Tribunal that, the accident would not
have occurred had the Bus been stationed away from the northern edge
of the road, the finding of attributing negligence to the Deceased runs
contrary to the said observation. The learned Tribunal gave contrary
finding on the point of negligence.
14. The provisions of Section 122 of the M.V. Act provides that,
'No person in charge of a motor vehicle shall cause or allow the vehicle
or any trailer to be abandoned or to remain at rest on any public place
in such a position or in such a condition or in such circumstances as to
cause or likely to cause danger, obstruction or undue inconvenience to
other users of the public place or to the passengers .' In the Judgment of
Raja Rani and Others (supra) it was observed in paragraph no.17 as
under:
"17. So for as the issue of "contributory negligence" is
concerned, we may notice that the Tribunal has deducted
1/3rd from the total compensation on the ground that
deceased had contributed to the accident. The same, we find,
has been upheld by the High Court. This court in Usha
Rajkhowa and Ors. v. Paramount Industries and Ors. [Civil
Appeal No.1088 of 2009 (arising out of SLP (C) No.16647 of
2008)] discussed the issue of contributory negligence
noticing, inter alia, earlier decisions on the same topic. It was
held that :
"20. The question of contributory negligence on the part of
the driver in case of collision was considered by this Court in
Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak
and Ors. reported in (2002) 6 SCC 455. That was also a case
of collusion in between a Car and a truck. It was observed in
Para 8:
`8. ... The question of contributory negligence arises
when there has been some act or omission on the claimant's
part, which has materially contributed to the damage caused,
and is of such a nature that it may properly be described as
`negligence'. Negligence ordinarily means breach of a legal
duty to care, but when used in the expression "contributory
negligence", it does not mean breach of any duty. It only
means the failure by a person to use reasonable care for the
safety of either himself or his property, so that he becomes
blameworthy in part as an author of his own wrong."
15. As discussed above, there is no iota of evidence to show
that, the Deceased was negligent in any manner. There is clear evidence
on record to show that, the Bus was stationed or stopped on the road
without there being any compliance of the above referred provisions of
the M.V. Act. The crime was registered against the Driver of the said
Bus. When such is the material on record, it is not possible to draw
presumption of contributory negligence on the apart of the Deceased as
drawn by the learned Tribunal. In the light of the above discussion, the
only reasonable and possible conclusion emerges is that, the Bus Driver
was responsible for the said accident in which the Deceased lost his life.
In this background, the finding of the learned Tribunal in respect of
negligence on the part of the Deceased requires interference.
Quantum :
16. It is submitted by learned Advocate for the Appellants that
in the light of the Judgment in National Insurance Company Ltd Vs.
Pranay Sethi and Others, (2017) 16 SCC 680 appropriate addition is to
be made in the income of the Deceased towards future prospects as he
was aged 53 years and consortium @ Rs.40,000/- for each Appellant is
to be added in the light of the Judgment in Magma General Insurance
Company Limited vs. Nanu Ram alias Chuhru Ram and Others, (2018)
18 SCC 130. He further submitted that expenses of Rs.15,000/-
(Rs. Fifteen Thousand) towards transportation of the Deceased to the
hospital, Rs.15,000/- (Rs. Fifteen Thousand) towards funeral expenses
and Rs.15,000/- (Rs. Fifteen Thousand) towards loss of estate be
included in the amount of compensation.
17. It is submitted by learned Advocates for the Respondent
No.1 - Owner of the Vehicle and the Respondent No.2 - Insurance
Company that, there is no dispute about the position under the law in
respect of future prospects, consortium and compensation under the
conventional heads, such as, Funeral Expenses and Loss of Estate.
However, they opposed the contention in respect of the addition of
transportation charges.
18. The age of the Deceased as seen from the evidence on
record was above 50 years of age. The evidence on record shows that,
Deceased had a permanent job having monthly salary. Under such
circumstances, as per the said Judgment in the case of Pranay Sethi
(supra), the addition of 15% is to be made in the monthly income of the
Deceased between the age of 50 to 60 years and the amount of
Rs.15,000/- (Rs. Fifteen Thousand) each, towards the Funeral Expenses
and Loss of Estate is to be added in the amount of compensation.
19. As regards the Consortium is concerned, the Appellants
being the Widow, Son and Mother of the Deceased, the amount of
Rs.40,000/- (Rs. Forty Thousand) each, will have to be added towards
Spousal Consortium, Parental Consortium and Filial Consortium,
respectively, as per the Judgment in Magma General Insurance
Company Limited (supra).
20. As regards the expenses towards the transportation, there is
no evidence to support the said amount. The learned Tribunal has
considered and granted the compensation towards medical expenses.
21. In the light of the above discussion, the compensation
awarded by the Tribunal needs recalculation.
22. The learned Tribunal held the Appellants entitled to get the
total compensation of Rs.20,59,400/- (Rs. Twenty Lakh Fifty Nine
Thousand Four Hundred). However, considering 50% contributory
negligence, divided the said amount and held the Appellants entitled to
the amount of Rs.10,29,700/- (Rs. Ten Lakh Twenty Nine Thousand
Seven Hundred). As on re-appreciation of the evidence on record, the
accident is found to be the result of complete negligence on the part of
the Bus Driver, the amount of compensation is recalculated by including
the amount towards above referred conventional heads and Consortium
as under :-
Particulars Amount
Monthly income of Deceased proved Rs.21,300/-
before the Tribunal.
Addition of 15% towards Rs. 3,195/-
Loss of Dependency
Total Monthly Income Rs.21,300/- + Rs.3,195/- = Rs.24,495/-
1/3rd deduction towards personal Rs.24,495/- ÷ 3 = 8,165/-
and living expenditure
Net Monthly income after 1/3rd Rs.24,495/- - Rs. 8,165/- = Rs. 16,330/-
deduction
Net Yearly income Rs.16,330/- (Net monthly income ) x 12
months = Rs.1,95,960/-
Multiplier of 11 Rs.1,95,960/- x 11 = 21,55,560/-
Towards Medical Expenses Rs.85,000/-
(considered by the learned Tribunal)
Expenditure towards purchase of Rs.10,000/-
medicines (considered by the learned
Tribunal)
Towards loss of Consortium Rs.1,20,000/-
(Rs.40,000/- x 3 dependents)
Towards Loss of Estate Rs.15,000/-
Towards Funeral Expenses Rs.15,000/-
Total Compensation : Rs.24,00,560/-
23. In light of the above, amount of compensation awarded by
the learned Tribunal to the Appellants is modified to Rs.24,00,560/-
(Rs. Twenty Four Lakh Five Hundred Sixty) with the same rate of
interest as granted by the learned Tribunal. The above referred
compensation be apportioned with proportionate costs and interest in
the same proportion as done by the learned Tribunal.
24. The share of enhanced compensation be deposited in the account
maintained by the Appellants in the Nationalized Bank.
25. The amount of compensation paid by the Respondents to the
Appellants, if any, shall be adjusted towards satisfaction of the modified
Award.
26. The Appellants shall not be entitled for interest for the delayed
period as observed in the order dated 13.06.2017 and the
apportionment be accordingly made.
27. First Appeal stands disposed off accordingly.
[ NEERAJ P. DHOTE ]
JUDGE
GGP
Signed by: Gajanan G. Punde
Designation: PA To Honourable Judge
Date: 04/09/2025 17:05:14
