Smt. Vanita W/O. Sunil Gayakwad vs Shri. Ajay Bisla Sh. Partap Singh And ...
2026 Latest Caselaw 722 Bom

Bombay High Court

Smt. Vanita W/O. Sunil Gayakwad vs Shri. Ajay Bisla Sh. Partap Singh And ... on 21 January, 2026

2026:BHC-NAG:1113

                2101FA710-22.odt                                  1                                                    Judgment

                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                               NAGPUR BENCH, NAGPUR.
                                                    FIRST APPEAL NO. 710 OF 2022
                1.         Vanita Sunil Gayakwad, Age 37 years, Occ: Housewife.

                2.         Sunil Ramchandra Gayakwad, Age 46 years, Occ: Labour.

                Both R/o At Post Kandhali, Tahsil Katol, District Nagpur.                                     APPELLANTS
                                                                          VERSUS
                1.         Sh.Ajay Bisla Sh.Partap Singh, Age: Major, Owner of
                           Container No.HR-8-U-0202, R/o SH.Partap Singh,
                           VOP, Dayalpur, Tahsil Ballabgarh, Faridabad,
                           Hariyana - 121004.
                2.         Ayub Shyal Lal Khan, Age: Major, Driver of Container
                           No.HR-8-U-0202, R/o Shyamlal, Chhainsa, 211,
                           Hathin Palwal, Hariyana - 121 203.
                3.         The New India Assurance Company Ltd. Having its
                           Regd. Office at New India Assurance Building, 87,
                           M.G. Road, Fort, Mumbai - 400 001.
                           and Branch Office at Main Road, Wardha,
                           Through its Branch Manager.                                                      RESPONDENTS
                ______________________________________________________________
                                               Shri A.R. Rishi, counsel for the appellants.
                                    Smt. Anita Mategaonkar, counsel for the respondent no.3.
                    ---------------------------------------------------------------------------------------------------------------
                CORAM : PRAFULLA S. KHUBALKAR, J.
                DATE ON WHICH ARGUMENTS WERE HEARD    : DECEMBER 10, 2025
                DATE ON WHICH JUDGMENT IS PRONOUNCWED : JANUARY 21, 2026
                JUDGMENT

ADMIT. Heard finally with consent of the learned counsel for the

parties.

2. The appellants herein have challenged the judgment and award

dated 09.02.2022 in M.A.C.P No. 67 of 2018 whereby the learned Member

of Motor Accident Claims Tribunal, Wardha has dismissed the petition

under Section 166 of the Motor Vehicles Act, 1988 (for short, 'the Act of

1988').

2101FA710-22.odt 2 Judgment

3. The appellants, who are the mother and father of the deceased,

were the claimants in the claim petition filed under Section 166 of the Act

of 1988. The parties are hereinafter referred to as the 'claimants' and the

'respondents' according to their status in the claim petition for the sake of

convenience.

4. The factual background is as under:-

On 30.09.2018, the deceased and his friend were going towards

Arvi from Wardha by Motorcycle bearing No.MH-31-DR-5167. The

deceased was pillion rider and his friend was riding the motorcycle. At

the time of accident, the Container bearing No.HR-38-U-0202 came from

Arvi towards Wardha at around 4.00 and pm gave dash to the motorcycle

and ran over the body of rider leading to his death on the spot. The

postmortem was performed at General Hospital Wardha. The First

Information Report was registered at Kharangana Police Station, District

Wardha against the driver of Container.

5. The parents of the deceased pillion rider filed a claim petition

bearing MACP No.67/2018 under Section 166 of the Act of 1988. The

claimants averred that the deceased was 17 years of age and was working

as labour earning income of Rs.300/- per day. The claimants claimed that

the accident was caused solely due to the rash and negligent driving of the

driver of the Container. The claimants therefore, claimed total

compensation of Rs.14,66,000/-, which was although restricted to

Rs.1,00,000/- by reserving their right to enhanced and just compensation.

2101FA710-22.odt 3 Judgment

6. Respondent no.3-The New India Assurance Company Ltd. (for

short, 'the Insurance Company') appeared before the Tribunal and denied

the contentions of the claimants and prayed for dismissal of the petition

on the ground that there was breach of policy on account of lack of fitness

of the vehicle and further that there was no eye witness and there was no

evidence of any rash and negligent driving of the driver of the Container.

On the basis of the evidence before it, the Tribunal held that the claimants

are not entitled to claim compensation in view of their failure to prove the

issue of negligence and dismissed the claim petition. Feeling aggrieved,

the instant appeal is filed under Section 173 of the Act of 1988.

7. Shri A.R. Rishi, learned counsel for the appellants/claimants

vehemently argued that the Tribunal has mechanically decided the claim

petition by drawing inferences only on the basis of the spot panchnama

and by adopting a perverse approach misdirected itself to the conclusions

thereby ignoring the beneficial character of legislation. The Tribunal has

erred in holding that the Container was not in high speed by misreading

the spot panchnama about absence of tyre marks on the road. The

Tribunal wrongly inferred that the Container was not in high speed and

was not driven rashly and negligently. The Tribunal also erred in drawing

inferences based on possible directions from which the two vehicles were

driven. It is submitted that since the spot panchnama reflected that

immediately after the accident, the motorcycle was lying under the chassis

of the Container, it was clear that the Container gave dash to the

motorcycle due to which the rider and the pillion rider came under the 2101FA710-22.odt 4 Judgment

Container causing their death on the spot. The Tribunal ought to have

seen that in the spot panchnama, the position of the body of the rider of

the motorcycle was shown as lying exactly in middle portion of the road.

He submitted that it can be very well inferred from the perusal of the spot

panchnama that there was negligence on the part of the driver of the

Container. He also submitted that the Tribunal completely ignored the

beneficial purpose of the legislation and adopted a pedantic approach.

8. Per contra Smt. Anita Mategaonkar, learned counsel for the

respondent no.3-Insurance Company vehemently opposed the appeal and

justified the impugned judgment and order. She submitted that the

Tribunal has passed the judgment after considering the Spot panchnama

and on proper appreciation of the oral evidence adduced by the claimant

no.2 arrived at proper conclusion. She also submitted that this is a case of

composite negligence and the Tribunal rightly held that the claimants

failed to prove that accident occurred due to the rash and negligent

driving of the Container and on the basis of all these submissions prayed

for dismissal of the appeal.

9. In the light of above mentioned submissions, rival contentions now

fall for my consideration and following points arise for my consideration:-

(i) Whether the accident was caused due to the rash and negligent

driving of the Container bearing No.HR-38-U-0202 ?

(ii) Whether the judgment and award passed by the Tribunal needs

interference?

2101FA710-22.odt 5 Judgment

10. It is not in dispute that there was a collision between Motorcycle

bearing No.MH-31-DR-5167 driven by the friend of the deceased and

Container No.HR-38-U-0202 driven by the respondent no.2. It is also not

in dispute that deceased Sahil Sunil Gaykwad had expired as a result of

the injuries sustained in the said accident. Further, there is no dispute

that the Container was validly insured with the respondent no.2 on the

date of accident.

11. In the instant case, the evidence on record indicates that the

Container was heading towards Wardha from Arvi whereas the deceased

was heading on Motorcycle towards Arvi from Wardha. There was

collision between both these vehicles in front of the main gate of

Mangalmurti Cotex Ginning and Pressing. No eye witness was examined

before the Tribunal.

12. Perusal of the Spot Panchnama, which is not in dispute, reveals that

Arvi to Wardha Road runs from West to East direction. The Container was

heading towards Wardha in the East direction, whereas the Motorcycle

was heading towards Arvi in the west direction. The panchnama reveals

that the road, where the accident occurred, was 18 feet wide with slope

towards North-South direction and the Container was stopped at 30 feet

away from the spot of accident on the left side of the road and the

motorcycle was under the chassis of the Container in broken condition.

The dead body of the bike rider was exactly in the centre of the road and

since the Container ran over him, his head was crushed and his brain had

popped out of the skull and was lying at about 8 feet away from the body, 2101FA710-22.odt 6 Judgment

on the road. Also, the deceased pillion rider was lying 8 feet away from

the dead body of the bike rider in northern direction.

13. In the present matter Tribunal has proceeded ex-parte against the

respondent no.1 and no. 2 who are the owner and driver of the Container

respectively. No eye witness was examined to prove the exact manner in

which the accident occurred. The claimant no. 2, father of deceased is

examined who not being an eye witness, has not deposed about manner in

which the accident occurred. As such, no conclusion could be drawn on

the basis of oral evidence much less cross examination of this witness.

Thus, the other piece of evidence viz. the spot panchnama was required to

be properly appreciated. Pertinent to note, the Tribunal has based its

inferences on the basis of spot panchnama and concluded that the

Container was not in high speed and that the motorcycle was in high

speed. It is however crucial to note the Tribunal has misread the spot

panchnama which makes a reference to the tyre marks of the Container

and that the Container was stopped at a distance of about 30 feet from the

spot of incidence. All these facts if cumulatively considered were sufficient

enough to conclude that the Container was in high speed.

14. A perusal of the impugned judgment shows that the Tribunal has

drawn the inferences about the rash driving of the motorcycle rider on the

basis of spot panchnama. On giving anxious consideration to the

documents on record and after a careful reading of the spot panchnama, I

am of the firm opinion that no conclusive inferences can be drawn in this

case on the basis of spot panchnama. In absence of any cogent and 2101FA710-22.odt 7 Judgment

conclusive evidence about rash and negligent driving of the motorcycle,

the Tribunal has committed an illegality in dismissing the claim petition.

15. It is trite law that the claim petitions are required to be decided by

considering the beneficial nature of the legislation. The inferences drawn

by the Tribunal based on possible rashness of the motorcycle, depicts a

hyper technical and pedantic approach, definitely not in tune with the

objects and purpose of the beneficial piece of legislation.

16. In a case like this which was required to be decided without there

being any eye witness it was appropriate to have resort to the principle of

res ipsa loquitur whereby negligence may be presumed from the mere fact

of accident; of course, the presumption depends upon the mere fact of

accident and surrounding factors.

17. In order to understand the operation of the maxim res ipsa loquitur,

we may usefully refer to a couple of the decisions of Hon'ble Supreme

Court. In Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co.

(P) Ltd. [AIR 1977 SC 1735], this Court explained the application of the

principle of res ipsa loquitur and explained various features thereof in the

following words:-

"6. The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the word's res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in 2101FA710-22.odt 8 Judgment

which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Edn.) at p. 306 states: "The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused". In Halsbury's Laws of England, 3rd Edn., Vol. 28, at p. 77, the position is stated thus: "'An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence "tells it own story of negligence on the part of the defendant, the story so told being clear and unambiguous." Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. ..........."

18. Further, it is beneficial to refer to the position of law laid down by

the Hon'ble Supreme Court in the case of Jiju Kuruvila Vs. Kunjujamma

Moha [(2013) 9 SCC 166] from which relevant paragraph is reproduced

below:-

20.5. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.

2101FA710-22.odt 9 Judgment

19. In the instant case the Tribunal has not at all considered the

maxim of res ipsa loquitur which is guiding principle in the case

where there is no eye witness and claimant does not know the exact

course of accident. In the present matter I am of the firm opinion

that the principle of res ipsa loquitur need to be applied. In the

instant case, the Container was validly insured. The Insurance

Company has not at all set up any defence of contributory

negligence, neither any witness is examined by the Insurance Company. As

such, claimants are entitled to get compensation from the Insurance

Company.

20. Hence, no negligence can be attributed to the deceased solely on

the ground that the motorcycle was found on the northern side of the

road. Nevertheless, the fact that there are tyre marks of the Container on

the road indicated that the Container was at a high speed. In view of

the position of law laid down by the Apex Court Jiju Kuruvila (Supra)

in absence of any conclusive and direct evidence, no conclusion could

have been drawn about negligence on the part of the motorcycle

rider. Therefore, considering above mentioned factual and legal

aspects, point no.1 is answered in affirmative and it is held that the

driver of the Container had driver the vehicle in rash and negligent

manner. Accordingly, the judgment and award passed by the Tribunal

deserves to be quashed and set aside and the claim petition deserves to be

allowed.

2101FA710-22.odt 10 Judgment

21. As regards the quantum of compensation, it has to be noted that

the deceased was doing labours work and has to be treated to be an

unskilled labour and hence compensation need to be computed on the

basis of wages paid to unskilled workers/labours as per the rates of the

year 2018. Deceased was 17 years of age at the time of accident and

considering all the relevant factors, the entitlement of compensation has

to be calculated thus:-

Sr. No.                        Heads                       Amount in Rupees
1.        As       per   the   Notification   No.    File 373/-    x    30    =
          No.1/38(1)/2018-LS-II       dated   28.09.2018 11,190        (monthly

issued by the Government of India, Ministry income) of Labour and Employment through office of the Chief Labour Commissioner (C) New Delhi.

As per this notification minimum wage for unskilled labour has to be treated as 373/-

per day.

2. Monthly income of the deceased 11,190 x 12 1,34,280 = Annual Income

3. Addition of 40% towards future prospects 1,87,992 1,34,280 + 53,712.

4. Deduction of 50% towards personal and 93,996 living expenses 1,87,992= 93,996/-

5. Multiplier of '18'- 93,996 x 18 16,91,928

6. Loss of Consortium 40,000 X 2 80,000

7. Funeral Expenses + Loss of Estate (15,000 + 30,000 15,000) Total: 18,01,928 2101FA710-22.odt 11 Judgment

22. Having regard to the above mentioned factual and legal aspects, the

following order is passed:-

                               I.     The appeal is allowed.
                               II.    The appellants are entitled for total compensation of Rs.18,01,928/-

including the compensation towards 'No Fault Liability' and the respondent no.1 and the respondent no.3-Insurance Company are held liable to pay the amount jointly and severally. They are directed to pay the amount of compensation to the appellants alongwith interest at the rate of 9% per annum from the date of claim petition till today. The compensation be deposited in this Court.

III. Award be drawn up accordingly.

IV. In case, the respondent no.3-Insurance Company fails to pay the compensation within thirty days from today, the appellants will be entitled for further interest at the rate of 12% per annum, till its realization.

V. The appellants are permitted to withdraw the amount of compensation only on payment of deficit Court fees.

23. The first appeal is disposed of in aforesaid terms with no order as to

costs. Pending civil applications, if any, also stand disposed of.

(PRAFULLA S. KHUBALKAR, J.)

APTE

Signed by: Apte Designation: PS To Honourable Judge Date: 23/01/2026 13:24:59