[Cites 2, Cited by 0]
Bombay High Court
The Regional Manager, Icici Lombard ... vs Bhushan S/O Madhukar Dhole And Another on 29 April, 2026
2026:BHC-NAG:6677
27.fa.573.24.jud.doc 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.573 OF 2024
Appellant : The Branch Manager,
(Ori. N.A. 2)
(On R.A.) ICICI Lombard General Insurance Co. Ltd.,
5th Floor, Land Mark, Plot No.5 & 6, Wardha Road,
Ramdaspeth, Nagpur, Through its Manager (Legal)
- Versus -
Respondents : 1. Bhushan s/o Madhukar Dhole,
(Ori. Claimant)
(On. R.A.) Age 36 years, Occ: Private Job,
R/o C/o Vasant Brigade, Plot No.6, Gavandipura,
Sakkardara, Nagpur
(Ori. N.A.1)
(On. R.A.)
2. Madhukar s/o Shankar Dhole,
Age Major, Occ : Owner,
R/o At Post Borgaon (Dhole), Junapani,
Tq. Karanja (Ghadge), Dist. Wardha- 442203.
CROSS APPEAL ST. NO.2069 OF 2026
Appellant : The Regional Manager,
(Orig. Respondent No.2)
The ICICI Lombard Gen. Ins. Co. Ltd.,
5th Floor, Landmark, Plot No.5 & 6, Wardha Road,
Ramdaspeth, Nagpur.
- Versus -
Respondents : 1. Bhushan s/o Madhukar Dhole,
Cross Objector
(Original Claimant - Aged about 37 yrs. Occ. - Pvt. Job,
Now Respondent No.1)
R/o C/o Vasant Birgade, Plot No.6, Gavindipura,
Sakkardara, Nagpur
(Original Respt. No.1-
Now Respondent No.1)
2. Madhukar s/o Shankar Dhole,
Aged about Major, Occ : Owner,
R/o At Post Borgaon (Dhole), Junapani,
Tq. Karanja (Ghadge), Dist. Wardha- 442203.
27.fa.573.24.jud.doc 2/12
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Mr. R.D. Bhuibhar, Advocate for the Appellant.
Ms. M.M. Zunke, Advocate for the Respondents/Cross Objector
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : Y.G. KHOBRAGADE, J.
RESERVED ON : 18th APRIL, 2026.
PRONOUNCED ON : 29th APRIL, 2026.
JUDGMENT :
01. Admit. With the consent of both the parties it is heard finally at
the stage of the admission.
02. The present appeal under Section 173 of the Motor Vehicles Act,
1988 is directed against the judgment and award dated 16/06/2023 passed in
Claim Petition No.842/2017 by the learned Member, Motor Accident Claims
Tribunal, Nagpur (hereinafter referred to as "the Tribunal" for the sake of
brevity), thereby holding that, the respondent No.1/claimant is entitled to
receive an amount of Rs.33,93,672/- towards compensation under all heads,
on account of sustaining 80% functional disability in a vehicular accident
occurred on 02/05/2017.
03. The appellant-Insurance Company is the original respondent
No.2 and present respondent No.2 is the original respondent No.1, i.e., the
owner of the tractor, whereas present respondent No.1 is the original
petitioner in Claim Petition No.842/2017. For the sake of brevity, the parties
to the present appeal are hereinafter referred to in their original capacities.
04. In a nutshell, the facts giving rise to the present appeal are as
under:
i. On 02/05/2017, the driver of the tractor bearing No. MH-32-P-
5871, owned by respondent No.1, was taking the tractor out of
the Courtyard in reverse without taking proper care, due to
which said tractor hit the petitioner-claimant and ran over his
right leg, which resulted in amputation of right leg of the
claimant above knee. According to the claimant, the said
accident occurred due to rash and negligent driving on the part
of the driver of the tractor.
ii. The said tractor was insured with respondent No.2-Insurance
Company. The claimant incurred huge expenses towards medical
treatment and also suffered loss of earnings, expenses towards
conveyance, attendant charges, special diet, as well as pain, loss
of amenities of life and hardship, etc.
iii. According to the claimant, he sustained 80% permanent
disability; however, due to amputation of his right leg above the
knee, he suffered 100% loss of earning capacity. At the relevant
time, he was about 30 years of age and he was engaged in
private employment. Beside this he was drawing income of Rs.
20,000/- per month by cultivating the land. Therefore, he
claimed compensation of Rs.32,00,000/- under the different
heads, as enumerated in paragraph 25-(B) of the claim petition.
Therefore, the respondent/owner and the Insurance Company
are jointly and severally liable to pay the said compensation.
iv. After service of notice, respondent No.1-tractor owner appeared
but failed to file a written statement. Respondent No.2-
Insurance Company filed its written statement at Exh.14 and
denied the claim of the claimant. According to respondent No.2,
the claim is false and vexatious; the claimant is the son of
respondent No.1, who is owner of the vehicle; the F.I.R. was
lodged after 78 days by creating a false and fabricated story; the
claimant is not a third party and the accident did not occur in a
public place. The Insurance Company denied all the averments
made in the petition, except the ownership of the vehicle by
respondent No.1.
v. On the basis of the rival pleadings of both sides, the learned
Tribunal framed Issues at Exh.17. During the course of trial, the
claimant filed his evidence affidavit at Exh.18 and proved Form
Comp AA (Exh.23), F.I.R. dated 19/07/2017 registered with
Karanja Police Station (Exh.24) and Spot Panchnama (Exh.25).
The claimant examined Dr. Samir Chandrakant Raghatate as
PW-2, who medically treated the claimant and proved the
Discharge Card (Exh.31). The claimant further examined Mr.
Vishwas Waman Jadhav as PW-3 at Exh.38 and proved salary
slips for the months of March 2017, April 2017 and May 2017,
which are marked at Exh.45A, Exh.45B and Exh.45C,
respectively. The claimant also examined Dr. Rakeshkumar s/o
Ramswarup as PW-5 at Exh.41, who proved the estimated cost of
the artificial limb (Exh.42A and Exh.42B). Besides this, the
claimant proved receipts (Exh.47A and Exh.47B), 7/12 extract
(Exh.48), and Disability Certificate (Exh.26).
vi. By the judgment and award dated 16/06/2023, the learned
Tribunal held that, the claimant is entitled to receive
compensation of Rs.33,93,672/- under the various heads i.e.
medical expenses, loss of earnings, conveyance, attendant
charges, special diet, pain and suffering, loss of amenities of life,
hardship, etc. Being aggrieved by the said judgment and award,
the appellant-Insurance Company has instituted the present
appeal.
05. Heard Mr. R.D. Bhuibhar, learned Counsel appearing for the
appellant and Ms. A.A. Zunke, learned Counsel appearing for respondent
No.1-claimant (Cross Objector). None appears for respondent No.2.
06. The learned Counsel for the appellant canvassed in vehemence
that, at the time of the accident, the respondent-claimant was allegedly in
private employment and produced salary slips for the months of March, April,
and May 2017 (Exh.45A to Exh.45C). However, as per the salary slips, the
claimant was drawing gross salary of Rs.8,656/-. Besides, the claimant was
receiving variable incentives, which were not fixed. Therefore, the learned
Tribunal ought to have ascertained the loss of income of the claimant on the
basis of the average incentives received by him for the months of March,
April, and May 2017. However, the Tribunal has only considered monthly
income of the claimant at Rs.15,000/-, which is excessive, hence, prayed for
modification of impugned judgment and award.
07. Per contra, the learned Counsel appearing for respondent No.1-
claimant supported the findings recorded by the Tribunal. The learned
Counsel for the claimant canvassed that, PW-3 Mr. Vishwas Waman Jadhav
deposed at Exh.38 that, respondent No.1-claimant was working with PNB
Housing Finance Limited as a Sales Officer since past two years and he was
drawing monthly remuneration of Rs.7,200/-, besides incentives, which were
generally paid in the month of March. Therefore, the salary/pay slips
(Exh.45A to Exh.45C) proves that, the claimant drawn monthly income of
Rs.30,262/- for the month of March 2017, Rs.21,468/- for the month of April
2017 and Rs.7,223/- for the month of May 2017. Therefore, considering the
average income of respondent No.1-claimant, the Tribunal granted
compensation, which is just and proper. Therefore, the appellant failed to set
out substantial grounds to interfere with the findings recorded by the
Tribunal. Therefore, prayed for dismissal of the appeal.
08. The Respondent/Claimant has filed Cross Appeal and claimed
that, at the time of the accident, he was 30 years old. He was engaged in
private employment and he was also cultivating the land. He was drawing
income of Rs.20,000/- per month. The learned counsel for the claimant
canvassed that, the respondent-claimant adduced evidence and examined
PW-3 to prove that he was earning Rs.21,000/- per month. However, after
occurrence of the accident, the respondent-claimant resigned from his job due
to his inability to discharge his duties on account of amputation of his leg. It is
further canvass that, the respondent-claimant is not in a position to perform
the agricultural operations. Therefore, considering 80% permanent disability,
the respondent/claimant has suffered 100% loss of earning capacity. However,
the learned trial Court committed grave error in awarding meagre amount of
compensation without consideration of future required expenses for the
artificial limb, hence, prayer for enhancement of compensation.
09. In the present appeal, the Insurance Company has challenged
only the quantum of compensation mainly on the ground that, the learned
Tribunal failed to consider actual monthly income of respondent
No.1/claimant but considered monthly income of Rs.15,000/-.
10. In order to ascertain the income of the claimant, I have gone
through the R & P (Record and Proceedings). It is not in dispute that, on
02/05/2017, at about 08:00 p.m., when the driver of the tractor bearing No.
MH-32-P-5871, owned by present respondent No.2, was taking the tractor in
reverse, the said Tractor hit the claimant and ran over his right leg, which
resulted in serious injury. Ultimately, right leg of the claimant amputated
above the knee. The occurrence of the accident and amputation of the right
leg above the knee of the claimant are not disputed by the appellant-
Insurance Company.
11. As per the spot-panchnama (Exh.25), the accident occurred
when the driver - Pradip Dobale took the tractor in reverse from the courtyard
of respondent No.2- the owner of the tractor. As per the medical report
(Exh.31), the claimant sustained multiple injuries to his right leg, which
resulted in amputation above the knee. As per the Disability Certificate
(Exh.26) issued by the Medical Board, the claimant has sustained 80%
disability. The fact of amputation of the right leg of the claimant is not denied
by the appellant-Insurance Company. The appellant has also not seriously
disputed the grant of compensation under the heads of medical expenses,
conveyance, attendant charges, special diet, pain and suffering, loss of
amenities of life, hardship, etc. However, only dispute is with regard to the
quantum of loss of earnings.
12. In the case at hand, it prima facie appears that, at the time of the
accident, the claimant was aged about 32 years. Therefore, as per the table
prescribed in Sarla Verma and others vs. Delhi Transport Corporation and
another - 2009(5) Mh.L.J. 775, the multiplier of 16 would apply. As per the
evidence of PW-4 Vishwas Jadhav, at the time of the accident, the claimant
was serving as a Marketing Officer/Sales Officer since 2016. PW-4 produced
salary slips (Exh.45A to Exh.45C) for the months of March 2017, April 2017,
and May 2017. However, the claimant failed to prove his salary slips for the
preceding 12 months of the accident. As per the salary slips (Exh.45A to
Exh.45C), the claimant was drawing a fixed salary of Rs.8,656/- excluding
house rent allowance of Rs.1,044/- and statutory bonus of Rs.722/-,
aggregating to Rs.10,422/- per month. However, the salary slips (Exh.45A to
Exh.45C) proves that the claimant received incentives in each month i.e.
Rs.21,639/- for the month of March 2017, Rs.12,689/- for the month of April
2017, and Rs.3,000/- for the month of May 2017. Therefore, it prima facie
appears that, besides the gross pay, the claimant was receiving variable
incentives, which were not fixed. The claimant has not brought on record any
evidence to establish that he was receiving a specific amount of incentives
throughout the year.
13. The learned Tribunal passed the impugned judgment and award
and granted compensation under the heads of medical expenses, conveyance,
attendant charges, special diet, pain and suffering, loss of amenities of life,
hardship etc. Besides this, the claimant examined PW-5 Dr. Rakeshkumar
s/o Ramswarup, who has given an estimate (Exh.42A) in respect of the
artificial limb. However, the claimant has not brought any material on record
to show that he has purchased the said artificial limb. The quotation
(Exh.42A) appears to have been issued on 10/01/2022, much prior to the
filing of the affidavit (Exh.18) by the claimant. The claimant has not placed
on record any material to show that he has incurred said expenditure.
However, considering the necessity of an artificial limb and future expenses
which may incurred by the claimant it would be just and proper to assess the
cost of Artificial Limb to the tune of Rs.5,00,000/-. Therefore, on the basis of
the average incentive amount as well as fixed monthly income drawn by the
claimant, the compensation can be determined as under:
S.N. Particulars Amount in Rs.
a. Salary (Rs.8,656/- x 12) Rs. 1,03,872.00
b. Multiplier of 16 (Rs.1,03,872 x 16) Rs.16,61,952.00
c. Future Prospects 40% Rs. 6,64,780.00
d. Functional Disability 80% Rs.19,94,342.00
(i.e. Rs.16,61,952 x 80% = Rs.13,29,561 + Rs,6,64,780 = Rs.19,94,342)
e. Medical Expenses Rs. 18,072.00
f. Conveyance, Attendant Charges, Special Diet etc. Rs. 40,000.00
g. Pain and suffering Rs. 40,000.00
h. Loss of amenities of Life Rs. 70,000.00
i. Artificial Limb Rs. 5,00,000.00
Total Compensation (d+e+f+g+h+i) Rs.26,62,414.00
14. Therefore, considering the evidence available on record, this
Court is of the view that respondent No.1-claimant is entitled to receive
compensation to the tune of Rs.26,62,414/- under all the heads. However, the
learned Tribunal has granted exorbitant compensation of Rs.33,93,672/-,
which is not justifiable. Therefore, the impugned judgment and award needs
to be modified. Accordingly, I proceed to pass the following order:
ORDER
I. First Appeal No.573/2024 is hereby partly allowed. Cross Appeal Stamp
No.2069/2026 is dismissed.
II. The impugned judgment and award dated 16/06/2023 passed in Claim
Petition No.842/2017 by the learned Member, M.A.C.T., Nagpur is
hereby quashed and set aside to the extent of compensation and is
modified accordingly.
III. Respondent No.1-claimant is entitled to receive total compensation of
Rs.26,62,414/-.
IV. The appellant and respondent No.2-owner of the tractor are jointly and
severally liable to pay the said compensation of Rs. 26,62,414/- to
respondent No.1-claimant with interest at the rate of 7.5% per annum
from the date of the claim petition till its realization.
V. In pursuance of the order dated 01/12/2023, the appellant-Insurance
Company had deposited an amount of Rs.49,60,499/- with the Registry
of this Court on 07/03/2024. This Court had permitted respondent
No.1-claimant to withdraw 50% of the said amount on furnishing an
undertaking.
VI. Since respondent No.1-claimant is held entitled to receive total
compensation of Rs.26,62,414/- with interest at the rate of 7.5% per
annum from the date of institution of the claim petition till its
realization, the excess amount, after adjusting the compensation with
accrued interest, shall be refunded to the appellant/Insurance
Company within a period of two months.
VII. The record and proceedings be remitted back to the trial Court.
VIII. Decree be drawn up accordingly.
(Y.G. Khobragade, J.)
*sandesh
Signed by: Mr. Sandesh Waghmare
Designation: PS To Honourable Judge
Date: 29/04/2026 19:38:49
