Bombay High Court
The New India Assurance Co. Ltd., Thr. ... vs Krishna Sakharam Baing And 3 Ors., on 12 September, 2025
2025:BHC-GOA:1702
2025:BHC-GOA:1702 FA 61.2017
Sonam
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 61 OF 2017
The New India Assurance Co. Ltd
a company duly registered under the
Companies Act, 1956
wholly owned by the Government of India
through its Manager,
Having its Branch office at Coscar Corner,
1st Floor, Hotel Bardez, Mapusa Goa. ... Appellant
Versus
1) Mr. Krishna Sakharam Baing,
S/o Late Sakharam Baing,
Aged 58 years and his wife;
2) Mrs. Kavita Krishna Baing,
D/o Late Gangaram Raoji Khamkar,
Aged 52 years,
Both resident of Flat no. 202,
Awing Muskarat Co-operative Society,
Babre Kar Nagar, Kandiwali (w) Mumbai.
3) Mr. Vasu Morajkar,
(Rider of Hero Honda Motorcycle bearing
registration No. GA03 J-9114)
S/o Narayan Morajkar,
Major of age,
R/o House no 482,
20 point Program, Indira Nagar,
Dhanava, Thivim, Bardez- Goa.
4) Narayan Morajkar,
(owner of Hero Honda Motorcycle
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FA 61.2017
Bearing registration No. GA03 J 9114)
Major in age,
R/o house no 482, 20 Point Program,
Indira Nagar, Dhanava,
Thivim, Bardez Goa.
...Respondents
Mr. Amey Kakodkar with Mr. Pankaj Shirodkar, Advocates for
the Appellant.
Mr. Vinoj Daniel with Mr. Nachiket Naik, Advocates for the
Respondents.
CORAM : NIVEDITA P. MEHTA, J.
RESERVED ON : 8TH AUGUST, 2025
PRONOUNCED ON : 12TH SEPTEMBER, 2025
JUDGMENT:
1. This appeal was initially disposed of vide Oral Judgment
dated 17th March, 2022, passed by this Court. The said oral
judgement dated 17th March, 2022 was challenged before
Hon'ble Supreme Court in Civil Appeal No. 252 of 2025, and the
Hon'ble Supreme Court vide Order dated 08th January, 2025 has
remanded the matter back to this Court.
2. Accordingly, this appeal is again taken up for final
disposal.
3. Heard learned Counsel Mr. Amey Kakodkar for the
Appellant-Insurance Company and the learned Counsel Mr.
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FA 61.2017
Vinoj Daniel for Respondent Nos. 1 and 2-the Claimants. Mr.
Salil Saudagar for Respondent Nos. 3 and 4.
4. The present Appeal is preferred against the Judgment and
Award dated 25.10.2016, passed by the Motor Accidents Claims
Tribunal (hereinafter referred as Tribunal), granting
compensation of ₹91,05,000/- (Rupees Ninety One Lakhs Five
Thousand only) with interest at the rate of 9% per annum from
the date of filing claim petition till its realisation from all the
Respondents jointly and severally.
5. The brief facts of the case are that on 15.07.2013, the
deceased, Girish Baing, was riding a Honda Dio scooter bearing
registration No. GA-03-J-2926. Accompanying him at a short
distance were his friend, Sunny Monteiro, who was riding a
Bullet motorcycle, and his cousin brother, Jason Pereira, who
was seated as a pillion passenger behind the deceased. They were
proceeding from Thivim towards Karaswada. At approximately
18:45 hours, near Chaitanya Vyasya Bhavan, Madel Thivim, the
rider of a Hero Honda Passion Pro motorcycle bearing
registration No. GA-03-J-9114 (Respondent No. 3) was
travelling in the opposite direction, from Karaswada towards
Thivim, at a high speed. In the course of overtaking an oncoming
bus, the rider of the Hero Honda Passion Pro motorcycle moved
from his left side to the right, colliding with the Honda Dio
scooter ridden by the deceased. As a consequence of the
collision, both the deceased and the rider of the Hero Honda
Passion Pro motorcycle fell onto the road and sustained injuries.
They were subsequently taken to the hospital for medical
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FA 61.2017
treatment. The deceased, Girish Baing, succumbed to his
injuries while undergoing treatment.
6. The Respondent Nos. 1 and 2, the parents of the deceased,
filed the claim for compensation of ₹75,00,000/- along with
₹10,000/- towards loss of consortium, ₹50,000/-, towards
funeral and medical expenses incurred, as they were dependent
on their son, the deceased, who was aged 25 years.
7. The Appellant/original Respondent No. 3, in his written
statement, contended that at the time of the accident, the
deceased was under the influence of liquor. He dashed with the
Hero Honda Passion Pro motorcycle driven by Respondent No.
3/original Respondent No. 1 and thus, contributed to the
accident. The Respondent No. 1 was not having a valid licence at
the time of the accident. There is a breach of policy condition,
and therefore, the insurance company is liable to pay
compensation as calculated by the learned Tribunal.
8. The Respondent Nos. 3 and 4/ original Respondent Nos. 1
and 2, driver and owner of the offending vehicle, contended by
filing a reply that the Respondent No. 1 had a valid licence at the
time of the accident. It was further contended that the
Respondent No.1 was not at fault when the accident occurred,
and they are not liable to pay compensation.
9. The learned Tribunal, after taking into consideration the
documents as well as evidence, granted compensation of
₹91,05,000/- along with interest at the rate of 9% from the date
of filing of the claim petition i.e. 14.08.2015 till the date of
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FA 61.2017
realisation. The Appellant-insurance company deposited a sum
of ₹1,05,67,420/- on 02.08.2017 before the Registry of this
Court, and the claimants i.e. Respondent Nos. 1 and 2 have
withdrawn a sum of ₹85,88,154/- as per the order dated
07.03.2022 of this Court.
10. The Appellant argues that the deceased was driving Dio
scooter under the influence of liquor and dashed the Hero
Honda Passion Pro vehicle coming from the opposite direction.
Thus, the deceased contributed to the accident. The deceased has
violated the Rules of Road Regulations, 1989 under the Motor
Vehicles Act, 1988 framed by the Central Government, the Rule
of Road i.e. to keep left and he drove the vehicle in the middle of
the road and caused the accident by giving dash to Hero Honda
Passion Pro motorcycle coming from the opposite direction. The
per month income of US $1242 was calculated by the learned
Tribunal which is incorrect. In the light of his abovesaid
submissions, he prayed for quashing and setting aside the
Judgment and Award dated 25.10.2016 of the learned Tribunal.
The Appellant relied on the Judgments reported in (i) Sabino
Tolentino Fernandes & anr. V/s Rohidas N. Naik &
anr.1, (ii) Mr. Somnath Suresh Mogal V/s Maharashtra
State Regional Transport Corporation in FA No. 2414
of 2019, passed by the Aurangabad Bench, (iii) Municipal
Corporation of Greater Bombay V/s Laxman Iyer and
2014 SCC OnLine Bom 5098
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FA 61.2017
another2, in support of his contentions regarding contributory
negligence.
11. The Counsel for the claimants i.e. Respondent Nos. 1 and
2 argued that the learned Tribunal wrongly quantified the
compensation by ignoring earning towards future prospects of
the deceased. If the future prospects are added to the annual
income, then the claimants would be entitled for a compensation
of ₹1,23,39,476/- (Rupees One Crore Twenty Three Lakhs Thirty
Nine Thousand Four Hundred and Seventy Six only). The
learned Counsel for the claimants relied on the Judgment
reported in Babu K. & anr V/s Union of India3, (ii)
Bangalore Metropolitan Transport Corporation V/s
Padma & ors4, (iii) K. Anusha & ors V/s Regional
Manager Shriram General Insurance Company Ltd.5,
(iv) Shyam Prasad Nagalla & ors V/s Andra Pradesh
State Borad Transport Corporation and ors.6 and (v)
Sunita and ors V/s Rajasthan State Road Transport
Corporation & ors.7, in support of his submissions.
12. The learned Counsel for the Respondent Nos.3 and 4
adopted the arguments advanced by the Appellant-Insurance
company.
13. Having heard the learned Counsel for the respected parties
and going through the pleadings, oral and documentary evidence
(2003) 8 Supreme Court Cases 731
2017, SCC, OnLine, Kerala, 10117
(2009) 3 Supreme Court Cases 285
(2021) SCC OnLine SC 3339
2025 SCC Online SC 282
(2020) 13 Supreme Court Cases 486.
12th September, 2025.
FA 61.2017
filed on record, it appears to this Court that undisputedly, there
was an accident, where Hero Honda Passion Pro motorcycle
bearing registration No. GA-03-J-9114 driven by the
Respondent No. 3 herein and the Dio scooter bearing
registration No. GA-03-J-2926 driven by the deceased, was
involved. At the time of the accident, the deceased was
proceeding from Thivim to Karaswada and the Respondent No.
3 was proceeding towards Karaswada to Thivim. It is the case of
the claimants that the Respondent No. 3, driver of the Hero
Honda Passion Pro, rashly and negligently gave dash to the Dio
scooter of the deceased due to which he suffered grievous
injuries and was hospitalized, where he succumbed to his
injuries. The jurisdictional police station registered crime
against Respondent No. 3 under Section 279 and 304 of IPC.
Autopsy of dead body of the deceased was done at the hospital.
Autopsy report is filed on record. As per the learned Counsel for
the Appellant, the deceased was driving his vehicle under the
influence of liquor and he relied on the Autopsy report wherein
it is mentioned in column No. 21 Abdomen (e) stomach and its
contents with condition of walls and mucosa, remark of the
medical officer states smell of Alcohol present.
14. The eye witness Jason to the incident deposed the manner
in which the accident occurred. He testified in his evidence that
he was a pillion rider on the Bullet which was proceeding behind
the Dio scooter driven by the deceased and the distance between
both vehicles was not more than 10 meters. As per this witness,
Respondent No. 3 was riding Hero Honda Passion Pro
motorcycle, overtook a bus in a fast speed and in the said process
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FA 61.2017
he came on the wrong side of the road and dashed Dio scooter
driven by the deceased. From the said evidence, it can be
reasonably inferred that the Respondent No. 3 was riding his
vehicle in rash and negligent manner, which led to registration
of a crime with the concerned police station for having driven his
motorcycle dangerously. Thus, the arguments of the Appellant
that the deceased contributed to the accident pales into
insignificance.
15. The Hon'ble Apex Court in the case of Sajeena Ikhbal
and ors V/s Mini Babu George & ors8, held that the
claimants have to merely establish their case on the touchstone
of preponderance of probability, and the standard of proof
beyond a reasonable doubt cannot be applied in motor accident
cases.
16. It is the contention of the Appellant that Jason Pereira is
an interested witness as the deceased was driving the Dio scooter
owned by his mother and therefore his evidence cannot be relied
upon. In the investigation, crime registered against the
Respondent No. 3, Jason Pereira is one of the eye witness, who
has witnessed the manner in which the accident occurred. Same
witness has deposed before the learned Tribunal and
categorically stated in evidence that the accident occurred due to
rash and negligent driving of Respondent No. 3.
17. From the aforesaid material, it can be inferred that the
deceased was not driving his scooter under the influence of
2024 SSC Online SC 2883
12th September, 2025.
FA 61.2017
liquor. The mere smell of alcohol in the stomach is not sufficient
to conclude that the deceased was under the influence of liquor
at the time of the accident.
18. Learned Counsel Mr. V. Daniel for respondent no. 1 and 2
has relied upon ruling of Babu K. and another vs. Union of
India9, where the High Court of Kerala has observed with
reference to Section 185 of the Motor Vehicles Act, that at least
there should be presence of exceeding 30 mg of alcohol per 100
ml of blood detected by a breath analyser and that mere
consumption of alcohol or alcohol contained drink alone will not
bring a person within the sweep of Section 185 of Motor Vehicles
Act. In this case, there is no blood test report at all.
19. Further, it is submitted by learned Counsel Mr. V. Daniel
for respondent nos. 1 and 2, that no plea was taken before the
learned Tribunal that the deceased was driving under the
influence of alcohol. It is correct that no such plea is there in the
written statement filed by the appellant before the learned
Tribunal.
20. In this regard, reliance is placed by learned Counsel Mr. V.
Daniel for respondent no. 1 and 2 on the ruling of Bangalore
Metropolitan Transport Corporation Vs. Padma &
Ors10 where it is confirmed by the Hon'ble Supreme Court that
any absence of pleading and evidence as regards pointing out
any accident occurred on account of deceased being in an
(2017) SCC Online Ker 10117
(2009) 3 SCC 285,
12th September, 2025.
FA 61.2017
intoxicated state of mind, such plea cannot be taken for the first
time before the High Court.
21. Thus, the deceased was driving under the influence of
liquor is not substantiated from the material on record. The
eyewitness account indicates complicity of Respondent No. 3 in
the accident. Therefore, the argument that the deceased
contributed to the accident by driving his vehicle from the
middle of the road is not established.
22. The role of the learned Tribunal is to award just
compensation. In that respect the Hon'ble Apex Court in Sunita
& ors(supra) observed in paragraph No. 22, which read thus:
"22. It is thus well settled that in
motor accident claim cases, once
the foundational fact, namely, the
actual occurrence of the accident,
has been established, then the
Tribunal's role would be to
calculate the quantum of just
compensation if the accident had
taken place by reason of negligence
of the driver of a motor vehicle and,
while doing so, the Tribunal would
not be strictly bound by the
pleadings of the parties. Notably,
while deciding cases arising out of
motor vehicle accidents, the
standard of proof to be borne in
mind must be of preponderance of
probability and not the strict
standard of proof beyond all
reasonable doubt which is followed
in criminal cases."
12th September, 2025.
FA 61.2017
23. In the Judgment of the learned Tribunal, there is reference
of loss of dependency/income, loss of love and affection to both
the claimants, loss of estate, loss of expectation of life, funeral
and obsequies expenses and litigation expenses. Interest
awarded is 9%. However, amongst the head under which the
compensation is awarded, what is conspicuously absent is the
head of the future prospects. The Hon'ble Supreme Court in the
case of National Insurance Company Ltd. V/s Pranay
Sethi11, has held that the grant of compensation on account of
future prospects is available to the victim who was self-employed
or on salary. In the case of Sarla Verma and ors. V/s Delhi
Transport Corporation and ors.12, two guidelines were laid
down in respect of future prospects in relation to the deceased
who had permanent job i.e. 50% of the actual salary. The second
guideline was awarding a 40% of the established income towards
self-employed or on a fixed salary. In the case of Pranay Sethi
(supra), 40% increase was granted to the deceased, though he
was not a permanent employee. The deceased was employed on
a contractual basis as Seamen and was earning monthly
wages/salary in US $. Thus, in this matter, it is 40% of the actual
salary.
24. It is well settled that the Motor Vehicle Act, 1988, is a
beneficial piece of legislation, and therefore, while dealing with
compensation, once the actual occurrence of the accident has
been established, the learned Tribunal's role would be to award
just and fair compensation. Moreover, as laid by the Hon'ble
(2017) 16 SSC 680
(2009) 6 Supreme Court Cases 121
12th September, 2025.
FA 61.2017
Supreme Court, strict rules of evidence as applicable in a
criminal trial are not applicable in motor accident compensation
cases. In an Appeal from the Award of the learned Tribunal, this
Court can enhance the compensation awarded by the learned
Tribunal, even if it is not sought by the claimants, by filing a
cross-appeal.
25. It is relevant to note that ruling of National Insurance
Co. Ltd vs. Pranay Sethi (Supra) was invoked in the appeal
pertaining to the claim petition with regard to accident of the
year 2005 by Allahabad High Court in the ruling of Smt. Shanti
And 4 Others vs. Anil Awasthi @ Anil Kumar Awasthi.
Therefore, under the same principle, ruling of National
Insurance Co. Ltd vs. Pranay Sethi (Supra) can be
invoked in the present case pertaining to the accident which took
place in the year 2013.
26. The learned Counsel Mr. V. Daniel for respondent no. 1
and 2 has given Chart of conversion rate, showing conversion of
US Dollars to Indian Rupee and as on 14.08.2015 it is shown as
₹63.7386.
27. The learned Tribunal has recorded the monthly salary of
₹80,000/-, considering the monthly salary of $1242 . As per the
above chart, is does appear that figure arrived at by the learned
Tribunal is close to the conversion rate submitted for the
Respondent Nos. 1 and 2 before this Court ie. ₹65/- x $1242=
₹ 80,730/-. Thus, ₹80,000/- as fixed by the learned Tribunal is
proximate figure.
12th September, 2025.
FA 61.2017
28. The accident in question took place in July 2013, and the
last pay slip of the deceased person prior to the accident is of
April 2013, which show monthly salary of $1296.53. The learned
Tribunal has also recorded the monthly salary of the deceased as
$1,242. This figure of $1242 is also proximate to the figure as per
the exchange rate as on date of filing of the appeal.
29. This figure of $1242/- is not otherwise disputed by the
claimant. Thus, by accepting salary of $1242/- per month and
the conversion rate of ₹65/-, it is quite clear that the learned
Tribunal has not committed any perversity in recording the
income of ₹80,000/- per month. The learned Counsel Mr. V.
Daniel for Respondent nos. 1 and 2 has relied upon ruling of the
Hon'ble Supreme Court cited as Shyam Prasad Nagalla and
Others (supra) where the Hon'ble Supreme Court has Cleary
confirmed the position of law that the date of filing of claim
petition is the proper date for fixing rate of exchange for
computing compensation.
30. However, it is seen that the learned Tribunal has awarded
excessive amount under that is sum of ₹2,00,000/- under the
head Loss of love and affection, ₹1,00,000/- under loss of estate,
and has also separately awarded ₹1,00,000/- as loss of
expectation of life, and ₹50,000/- under funeral expenditure.
31. In the ruling of National Insurance Co. Ltd vs Pranay
Sethi (Supra) decided by the Hon'ble Supreme Court in the
year 2017, the specific sum is mentioned under conventional
heads. ie. ₹ 15,000/- for the loss of estate, ₹40,000/- loss of
12th September, 2025.
FA 61.2017
consortium and ₹15,000/-, funeral expenses, subject to
increase.
32. Therefore, the Award needs to be modified accordingly
and also by adding compensation towards future prospect.
Accordingly, fresh chart of compensation is as under:
Sr. Description Amount
No
i Annual income of the ₹80,000/- x 12 = ₹9,60,000/-
deceased
ii Total Annual Income = ₹9,60,000/- + ₹3,84,000/- =
Annual Income + Future ₹13,44,000/-
Prospects (Annual
Income x 40%)
iii Annual Dependency = ₹13,44,000 - ₹6,72,000/- =
Annual Income - 50% ₹ 6,72,000/-
deduction towards
personal expenses
iv Total dependency = ₹6,72,000/- x 18=
Annual Dependency x ₹ 1,20,96,000/-
Applied Multiplier
v Claimant entitlement ₹15,000/- + ₹15,000/- + (₹
towards conventional 40,000 x 2)= ₹1,10,000/-
Heads = Loss of Estate +
Funeral Expenses +
Dependents Consortium
vi Litigation cost ₹15,000/-
The total compensation would therefore work out to a
figure as under:
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FA 61.2017
₹1,20,96,000/- + ₹1,10,000/- + ₹15,000/- =
₹ 1,22,21,000/-
33. The learned Tribunal has added new heads that is Loss of
love and affection, and loss of expectation of life ie. ₹2,00,000/-
and ₹1,00,000/-. Thus, ₹3,00,000/- needs to be deducted from
total amount awarded.
34. In addition, under the head of Loss of Estate ₹1,00,000/-
is awarded, which is excessive. ₹15,000/- needs to be
maintained, and thus ₹85,000/- is excess amount. Similarly,
under the head Funeral cost ₹50,000/- was awarded. From this
₹15,000/- has to be maintained and accordingly ₹35,000/- is
the excess amount.
35. In short, ₹2,00,000/- + ₹1,00,000/- + ₹85,000/- + ₹
35,000/- = ₹4,20,000/- is the total excess amount under the
above heads.
36. Thus, the total amount of ₹1,22,21,000/- is the
appropriate and just amount of compensation, and from the just
compensation amount, above excess amount of ₹4,20,000/- has
to be deducted as follows:
₹1,22,21,000/- - ₹4,20,000/- = ₹1,18,01,000/-
37. Thus, the figure ₹1,18,01,000/- is the final amount
which the claimants are entitled to and the Appellant herein and
Respondent Nos. 3 and 4 are accordingly directed to pay the
balance amount with 9% interest from the date of filing of claim
12th September, 2025.
FA 61.2017
petition till today after deducting the amount already deposited
before this Court.
38. The claimants will be entitled to withdraw the balance
amount deposited with the Registry of this Court, together with
interest after furnishing the necessary identity documents and
bank details. The Registry will ensure that the amounts are
directly remitted to the claimant's bank account
39. The Appellant and Respondent nos.3 and 4 are now
directed to deposit the additional compensation amount now
determined within a period of eight weeks from today, after due
intimation to the learned Counsel for the claimants. Once this is
done, the claimant will be entitled to withdraw this additional
amount on the above terms.
40. Award be drawn accordingly.
41. In view of the above, the present appeal stands disposed of
accordingly.
NIVEDITA P. MEHTA, J.
12th September, 2025.
