[Cites 18, Cited by 0]
Bombay High Court
Mrunalini Amit Makasare And Anr vs The Union Of India And Others on 13 March, 2026
2026:BHC-AUG:10787
{1} FA 1964 OF 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1964 OF 2015
WITH CIVIL APPLICATION NO.11764 OF 2024 IN FA/1964/2015
WITH CIVIL APPLICATION NO.1679 OF 2015 IN FA/1964/2015
1) The Union of India
2) Air Force Head-quarter,
State of Maharashtra,
3 P & M (U) A.F. 1020,
Area/Akashnagar,
Pune 411 032.
3) Magam Krushnayya Narsayya (MTD)
R/o. Quarter No.650/6,
New Project Area,
Airport Station Lohgaon,
Pune - 32. ..Appellants
(Orig. opponent nos.1 to 3)
Versus
1) Mandakini Suresh Makasare
Age: 59 years, Occu.: Household.
2) Archana Suresh Makasare
Age: 34 years, Occu.: Nil.
3) Nilesh Suresh Makasare
Age: 29 years, Occu.: Nil.
All R/o. Prakashpur Colony,
Near TV Centre, Ahmednagar,
District Ahmednagar ..(Orig. petitioner nos.1 to 3)
4) Mrunalini Amit Makasare
Age: 32 years, Occu.: Service. (Orig. opponent no.4)
5) Tanvi @ Arpita Amit Makasare
Minor through Guardian mother
Respondent no.4, (Orig. opponent no.5)
C/o. Lamuvel Londhe
Both R/o. Londhe Chowk, Camp No.2,
{2} FA 1964 OF 2015
Behind Zilla Parishad School No.14
Yeola Road Manmad, Tq.Nandgaon,
District Nashik. ..Respondents
...
Advocate for Appellants: Shri A.G.Talhar, Additional Solicitor General
and Shri Nandkishore U.Yadav, Standing Counsel
Advocate for Respondent nos.1 to 3 : Shri A.C.Darandale
Advocate for Respondent nos.4 & 5 : Shri D.A.Madake alongwith
Shri Amol Arun Shinde
...
WITH
FIRST APPEAL NO.2900 OF 2015
1) Mrunalini Amit Makasare
Age: 32 years, Occu.: Service.
2) Tanvi @ Arpita Amit Makasare
Age : Minor through Guardian of mother
i.e. Appellant No.1
C/o. Lamuvel Londhe
Both at present R/o. Londhe Chowk,
Camp No.2, Behind Zilla Parishad
School No.14, Yeola Road Manmad,
Tq.Nandgaon, District Nashik. ..Appellants
(Orig. Resp. No.4 & 5/claimants)
Versus
1) Union of India
2) Air Force Headquarter
State of Maharashtra
3 P & M (U) A.F. 1020
Area / Akashnagar, Pune 411 032.
3) Magam Krishnayya Narsayya (MTD)
R/o. Quarter No.650/6, New Project Area,
Airport Station, Lohgaon, Pune -32.
4) Mandakini Suresh Makasare
Age: 59 years, Occu.: Household.
5) Archana Suresh Makasare
Age: 34 years, Occu.: Nil.
{3} FA 1964 OF 2015
(As per Court's order dated 15-07-2019,
Respondent nos.4 & 5 are dead and legal
heir is already on record as Respondent no.6)
6) Nilesh Suresh Makasare
Age : 29 years, Occu.: Nil
(Respondent no.6 at present R/o.
Prakashpur Colony, Near TV Centre,
District Ahmednagar). ..Respondents
(Resp. Nos.1 to 5 are orig. Respondents and
Resp.No.6 is original Petitioner)
...
Advocate for Appellants : Shri D.A.Madake alongwith
Shri Amol Arun Shinde
Advocate for Respondent nos.1 to 3 : Shri A.G.Talhar
Advocate for Respondent nos.4 to 6 : Shri A.C.Darandale
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 27 FEBRUARY, 2026
PRONOUNCED ON : 13 MARCH, 2026
JUDGMENT :
-
1. Dissatisfied by the Judgment and award dated 31-01-2014
passed by learned Member, Motor Accident Claims Tribunal (MACT),
Ahmednagar in MACP No.807 of 2008, original opponent nos.1, 2
and 3 have come up by way of First Appeal No.1964 of 2015
challenging the liability saddled on them and quantum of
compensation.
The original opponent nos.4 and 5 (claimants) have also filed
First Appeal No.2900 of 2015 for enhancement of compensation.
{4} FA 1964 OF 2015
2. As both the appeals are arising out of one and same impugned
judgment, the same are dealt and decided by this common judgment.
BRIEF FACTS OF THE CASE
3. In short, above numbered claim petition was instituted by
mother, sister and brother of deceased Amit, who while proceeding
towards MIDC over Nagar - Manmad road on Motorcycle bearing
No.MH16 Z6584 suffered dash given by Swaraj Mazda vehicle
bearing No.T-3500-04C-071468H belonging to opponent no.2 Air
Force Headquarter. In the above accident, Amit suffered fatal injuries
and succumbed to the same. Consequently, his brother
Nilesh/claimant no.3 lodged FIR, against driver of the Swaraj Mazda
Truck opponent no.3, bearing no.198 of 2008 under Sections 304A,
279, 337, 338 and 427 of the Indian Penal Code (IPC) and under
Section 184 of the Motor Vehicles Act.
4. Respondent nos.1 to 3 herein (original claimants) instituted
above claim petition seeking compensation from appellants in
FA/1964/2015 (original opponent no.1 to 3) and they also arraigned
wife as well as daughter of deceased Amit as opponent nos.4 and 5
alongwith above opponents and sought compensation to the tune of
Rs.10,00,000/-. During pendency of First Appeals, original petitioner
{5} FA 1964 OF 2015
no.1 (mother of deceased) expired. Subsequently, original
petitioner no.2 (sister of deceased) also reportedly died.
5. The above claim petition was opposed by appellants in
FA/1964/2015 (original opponents) primarily on the ground of
deceased to be solely responsible for the accident and therefore, they
are not liable. After appreciating the respective cases, learned
Tribunal passed following order :
"1. Petition is allowed with costs.
Applicant Nos.2 and 3 being major and not dependent, their
claim stands dismissed.
Opponent nos.1 to 3 shall jointly and severally pay
Rs.17,82,256/- (Rs.Seventeen lac eighty two thousand two hundred
and fifty six only inclusive of NFL amount) as compensation to
applicant no.1 and opponent nos.4 and 5. This amount shall carry
interest at the rate of 7.5% p.c.p.a. from the date of filing of the
petition till actual realization of the amount.
Out of this amount Rs.4,90,120/- along with interest be paid
to applicant no.1 and remaining amount along with interest and costs
be paid to opponent nos.4 and 5. Out of said amount Rs.7,00,000/-
be kept in fixed deposit in any nationalized bank in the name of
opponent no.5 under the guardianship of her mother till opponent
no.5 attains age of majority.
All the amounts be paid by account payee cheques, after
recovery of deficit court fee.
Award be drawn accordingly."
GROUNDS
(IN FIRST APPEAL/1964/2015 BY THE APPELLANTS UNION OF INDIA AND OTHERS )
6. The above judgment and order is assailed by the original
opponent nos.1 to 3 on following grounds :
{6} FA 1964 OF 2015
Firstly, that the judgment and award is contrary to the
provisions of Motor Vehicles Act as well as evidence on record.
Secondly, findings of the learned Tribunal holding opponents
to be 50% liable is against the evidence on record.
Thirdly, learned Tribunal erred in not deducting income tax
but considering the gross salary instead of net salary.
Fourthly, exorbitant amounts have been granted under the
heads of consortium and funeral expenses.
SUBMISSIONS
On behalf of Appellants Union of India and others :
7. Shri Talhar, learned ASG for appellants in First Appeal No.1964
of 2015 took recourse to above grounds and would submit that both
vehicles were proceedings towards opposite directions. According to
him, deceased Motorcycle rider had left his correct side and has
crossed over to the extreme right side, which was meant for vehicle
plying towards southern side. Therefore, driver of Swaraj Mazda i.e.
opponent no.3 was not at all responsible. That, the accident occurred
due to sole negligence and rash driving of deceased. Consequently, he
questions the liability of 50% saddled on opponents.
8. He further pointed out that, learned Tribunal has also erred
{7} FA 1964 OF 2015
while computing the compensation. He would submit that, there is
no dispute about employment of deceased as well as his salary
however, according to him, necessary deduction under income tax
was not made by the learned Tribunal and instead of considering net
salary, gross salary is considered, and the same is against settled
principles.
9. He also criticized the grant of compensation under various
heads like consortium, funeral expenses to be excessive and on
higher side and resultantly he urges for indulgence of this court.
On behalf of Original Claimants nos.1 to 3 (mother, sister and
brother of deceased) :
10. Shri Darandale, learned counsel would point out that, mother,
brother and sister of the deceased are original claimants. That,
report was lodged by brother of deceased. That, claimant no.1 had
lost her son whereas claimant nos.2 and 3 have lost their brother.
That, deceased was the only earning member of family. That, during
pendency of the first appeal, original claimant no.1 mother and
original claimant no.2 sister have expired. Therefore, original
claimant no.3 Nilesh is only surviving member of family. That,
{8} FA 1964 OF 2015
learned Tribunal has erred in refusing compensation to him as well as
deceased sister and has only granted compensation to mother. That,
even quantum of compensation awarded is less. Moreover, now
having lost original claimant nos.1 and 2 i.e. mother and sister
respectively, original claimant no.3, in the capacity of legal heir of
original claimant no.1, is entitle to receive her share. In support of
above submissions, he seeks reliance on the following rulings :
a) Srikrishna Kanta Singh v. The Oriental Insurance Company Ltd.
And Others (2025) 3 SCR 1113.
b) N.Jayasree and Others v. Cholamandalam MS General
Insurance Coompany Ltd. (2022) 14 SCC 712.
c) Sk.Kader Ali and Others v. Oriental Insurance Company Ltd.
And Others, 2024 SCC Online Cal.2055.
On behalf of original opponent nos.4 and 5 (wife and daughter of
deceased) :
11. Shri Shinde, learned counsel for appellants/claimants (wife
and daughter of deceased) in First Appeal No.2900 of 2015 would
point out that, when original opponent no.3/driver of Swaraj Mazda
being solely responsible, 50% liability ought not to have been
saddled on deceased. On this count, he took this Court to the
findings recorded by learned Tribunal in paragraph nos.19 of the
impugned judgment and also at the same time, he took this Court
{9} FA 1964 OF 2015
through various rulings and would submit that, primarily learned
Tribunal has taken into account spot panchanama for fixing liability.
That, it is incorrect method of fixing liability. He pointed out that,
other circumstances at the scene of occurrence have not been taken
into account while attributing 50% negligence to deceased. He
pointed out that, driver of the Swaraj Mazda has not contested the
claim and therefore, adverse inference ought to have been drawn
against him. According to him, sketch map placed on record makes it
abundantly clear that it was driver of Swaraj Mazda i.e. opponent
no.3, who was rash and negligent.
He seeks reliance on the following citations :
a) Jiju Kuruvila and others v. Kunjujamma Mohan and others,
2013 AIR SCW 3881.
b) Subhada Subhash Dhekne and Anr. V. Suresh Vithoba
Gaonkar and Others, AIR Online 2022 Bom. 6103.
c) Vellagada Durgaprasadarao v. B.Chiranjeevulu, AIR Online
2024 Bom. 1799.
d) National Insurance Company Ltd. v. Pranay Sethi and Others,
AIR 1017 SC 5157.
EVIDENCE BEFORE TRIBUNAL
Before proceeding to analyze and appreciate evidence, it would
be apposite to give brief account of the evidence adduced on behalf
of the parties before the learned Tribunal, which is as under :
{10} FA 1964 OF 2015
12. PW1 Mandakini Suresh Makasare is mother of the deceased.
She has filed affidavit at exh.29. She stated that on 15-10-2008, her
son Amit was proceedings on his Motorcycle No.MH16 Z6584
towards his Office in MIDC for his duty. While he was travelling on
Nagar - Manmad road, at 08:15 hours, Swaraj Mazda vehicle came
from Manmad side in high speed and gave dash to the Motorcycle of
Amit. That, Amit was severely injured and he was taken to Civil
Hospital at Ahmednagar for treatment. Further, as per advice of
Doctor, he was taken to Noble Hospital at Ahmednagar. That, while
taking treatment, Amit succumbed to the injuries at 11:30 a.m.
13. PW2 Balu Shankar Kasar is an employee of BSNL. He deposed
at exh.38 that deceased Amit was working as Sr. Telecom Office
Assistant General. He produced salary certificates of Amit for the
months of September and October, 2008.
14. DW4 Mrunalini Amit Makasare is wife of the deceased. She
has filed affidavit at exh.45. She has stated that as original petitioner
nos.2 and 3 are major and earning members, they have no right to
get compensation. That, as per request of the original petitioners,
the learned Tribunal has granted Rs.50,000/- towards no fault
{11} FA 1964 OF 2015
liability and out of the said amount, Rs.15,000/- was directed to be
paid to petitioner no.1 and remaining Rs.35,000/- was directed to be
paid to this witness and her daughter. That, petitioner no.1 is getting
Rs.6,000/- per month as pension. That, petitioner no.2 is doing
service and he is earning Rs.10,000/- per month. That, petitioner
no.3 is working in HDFC as Sales Executive and she is earning
Rs.10,000/- per month. Therefore, petitioner nos.1 to 3 are not
eligible for getting compensation. It is further stated that petitioner
nos.1 to 3 have filed claim petition for getting compensation and as
she has not given consent to them, she and her daughter were driven
out of house for depriving them from getting their share from
compensation. That, she had filed separate Motor Accident Claim
Petition No.297 of 2008, however, as respondent nos.1 and 2 therein
informed the Court that Motor Accident Claim Petition is already
filed in Ahmednagar Court, she had withdrawn the said petition and
she and her daughter are added as respondent nos.4 and 5 in Motor
Accident Claim Petition No.807 of 2008. That, her deceased husband
was working in BSNL at Ahmednagar and his salary was Rs.16,557/-
per month. That, she has no source of income. That, she has to
incur expenses for education of her daughter.
{12} FA 1964 OF 2015
15. It is further stated that, Petitioner Nos.1 to 3 and Vaishali
Anand Kakde had filed a proceedings bearing no.151 of 2009 praying
for apportionment in the compensation and for getting legal heirs
certificate for pension purpose, however, this witness appeared in
said proceedings and after hearing both the sides, the learned Court
rejected the prayers of Petitioner nos.1 to 3 and Vaishali Kakde. She
further stated that, petitioner no.3 and petitioner no.1 had already
received amount of Rs.48,963/- and Rs.63,000/- respectively from
the LIC as they were nominated in the said LIC policies by her
deceased husband.
ANALYSIS
After hearing submissions of all the parties and on going
through the evidence, first, this Court will deal with the objections
raised by the learned ASG for appellant Union of India.
16. First Objection : The judgment and award is contrary to the
provisions of Motor Vehicles Act as well as evidence on record.
With regard to such objection, impugned judgment and award
put to scrutiny. It is noticed that learned Tribunal has taken into
account pleadings raised by claimants in the claim petition, and has
also taken into account say of original opponent nos.1 to 3 at exh.21
{13} FA 1964 OF 2015
and exh.22 as well as say of original opponent nos.4 and 5 at exh.18,
and appreciated the evidence adduced by claimants comprising of
FIR, spot panchanama, inquest panchanama, post mortem report and
has thereafter, reached to a conclusion that it is a case of contributory
negligence and for the same, spot panchanama is taken into account
from which the directions in which the vehicles were proceedings
was ascertainable. Taking into account exact spot of incident, who
was negligent to what extent has been decided. Therefore, the above
submission of learned ASG for Union of India that, findings and
conclusion drawn by learned Tribunal are contrary to evidence on
record, has primarily no foundation.
17. Second Objection - Findings of the learned Tribunal holding
opponents to be 50% liable is against the evidence on record
It is the contention of the learned ASG that sole responsibility
was of deceased. Per contra, it is the contention of claimants that
sole responsibility was of driver opponent no.3 and not of deceased.
Consequently, they both questioned the findings of learned Tribunal
on fixing of liability. The findings of the learned Tribunal about
fixing of liability is as under :
"19. The police papers filed at exh.3 i.e. complaint
{14} FA 1964 OF 2015
clearly show that the offence is registered against the
driver of the offending vehicle. After perusal of the spot
panchanama filed at exh.3/2 clearly shows that the
deceased was proceeding from Ahmednagar to MIDC i.e.
from southern side to northern side. The deceased was
required to drove his motorcycle from left side of the road
i.e. from western edge of the road, however, spot
panchanama shows that he was in the middle of the road
that too on the eastern side of the road. From the spot
panchanama, it is clearly seen that the offending vehicle
was proceedings by its correct side i.e from eastern side of
the road. The spot panchanama further shows that the
deceased had crossed the middle line of the road and was
proceeding from eastern side of the road and therefore,
accident occurred. Deceased was expected to proceed
from the western side of the road while proceeding from
southern side towards northern side, but unfortunately he
was proceeding from eastern side and invited the accident.
At the same time it was also duty of the driver of offending
vehicle to see the traffic condition on the road while
driving the vehicle, but he was failed to consider the same
and contributed to the accident.
20. Learned advocate Mr.S.K.Patil for the opponents, in
support of his contention that there was contributory
negligence on the part of deceased, relied on judgment
Pramodkumar Rasibhai Jhaveri vs. Karmasey Kunvargi Tak
and others reported in A.I.R. 2002 S.C. 2864 : 2002 (3)
{15} FA 1964 OF 2015
T.A.C. 6, wehrein it is held that -
"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 be becomes blameworthy in part
as an 'author of his own wrong'".
21. In the present case also the record does now show
that the offending vehicle has come to wrong side and
dashed the Motorcycle of the deceased and caused the
accident. On the contrary, the spot panchanama shows
that the offending vehicle was on its correct side, whereas
the deceased went to the right side instead of plying his
vehicle by left side and contributed to the accident.
Therefore, in my opinion the concept of contributory
negligence would apply to the present case."
18. In accident cases, when there is no direct evidence, generally it
is the spot panchanama, which is taken into account and relied for
fixing extent of liability of the vehicles. Here, it is noticed that in
para 19 learned Tribunal has observed that, it was fault of deceased,
however, after discussion of the spot panchanama and hand-sketch
map and taking into account the directions in which each of the
vehicles were proceedings, contradictory finding has been recorded
{16} FA 1964 OF 2015
that there was fault of offending vehicle.
19. Shri Shinde, learned counsel for appellants/claimants (wife
and daughter) has placed reliance on the decision of this Court in the
case of Subhada Subhash Dhekne and Anr. (supra) and would lay
much stress on the observations of this Court in this case and he also
read the Placitum / Head note "A" which is as under "
(A) Motor Vehicles Act (59 of 1988), S.166 - Claim Petition -
Contributory negligence - Minibus dashed to the Scooter -
Panchanama and sketch, produced on record showing that accident
occurred in middle of road - Even sketch shows divider line and spot
of accident on side where minibus should never have been - Damages
to bus, spot of accident, traces of broken glass, and position of two
vehicles do not sustain findings of contributory negligence on part of
deceased. Rather, evidence on record points out rashness and
negligence of bus driver - Bus driver was solely responsible for
accident in which claimants lost their 26-year-old son - Minibus was
heavier and larger vehicle, duty of care of minibus driver was much
greater - Findings about contributory negligence on part of deceased,
reversed.
20. As stated above, in absence of direct, cogent and reliable
evidence, it is the spot panchanama, which is decisive. Here, sketch
map is also placed on record. The authority, who drew the sketch
panchanama has unfortunately not been examined. However, spot is
drawn within couple of hours of the occurrence. There are blood
{17} FA 1964 OF 2015
stains at the spot and this is the vital parameter. Hand-sketch map
shows faint dividing line on the road earmarked for vehicles
proceedings to their respective sides in opposite directions. Going by
such panchanama, it is emerging that, deceased was apparently
proceeding from south to north, whereas Swaraj Mazda was coming
from opposite direction i.e. from north to south direction. Blood is
shown at the spot abutting to the dividing line i.e. it is well within
the zone meant for vehicles proceedings towards north. This shows
that Motorcycle rider was not expected to go towards the extreme
side of his correct side. Similarly, it was broad-day light i.e. around 8
a.m. and driver of Swaraj Mazda had clear visibility of vehicle
coming from opposite direction. He was expected to be vigilant to
the traffic on the road, more particularly, when it was MIDC
industrial area. Being heavy vehicle, it's driver is expected to be
more cautious than the Motorcycle driver.
Therefore, in the totality of the such circumstances, which are
emerging on re-evaluation of the site map / sketch map, there is
indeed fault on the part of deceased Motorcycle rider also but not to
such extent as is held by learned Tribunal.
In the light of above discussion, in the considered opinion of
this court, fixing liability over deceased to the extent of 20% would
{18} FA 1964 OF 2015
be justified in the fitness of things and remaining 80% liability over
the driver of offending vehicle Swaraj Mazda and accordingly,
liability is duly fixed to the ratio of 20% and 80% respectively.
21. Third Objection - Learned Tribunal erred in not deducting income
tax but considering the gross salary instead of net salary
Learned counsel for claimants (wife and daughter) invited
attention of this Court to the judgment of the Hon'ble Apex Court in
the case of Sarla Verma (Smt) and Others v. Delhi Transport
Corporation and Another, (2009) 6 SCC 121, which was also laid
emphasis before the learned Tribunal. Learned counsel for claimants
would point out that, at that time, the income of deceased was not
within the taxable slab.
It is worth noting that deceased was employee of Union
Government. Salary slips are also placed on record. Had there been
amount liable to be deducted under income tax, authorities would
have deducted the same while issuing salary slips. Consequently,
consideration of salary of deceased to the tune of Rs.16,132/- from
the total salary of Rs.16,557/- is just and correct. Salary slip reflects
permissible and standard deductions. Therefore, the net salary of
deceased to the tune of Rs.16,132/- is rightly taken as a base for
{19} FA 1964 OF 2015
further computation. Consequently, calculations made on this basis,
are not erroneous as it is tried to be projected by learned ASG for
appellant Union of India.
22. Fourth Objection - Exorbitant amounts have been granted
under the heads of consortium and funeral expenses.
It appears from the impugned judgment that the learned
Tribunal has granted Rs.10,000/- towards consortium, Rs.10,000/-
towards loss of love and affection, Rs.10,000/- towards funeral
expenses and Rs.5,000/- towards loss of estate. The amounts
granted under the aforesaid heads cannot be said to be exorbitant.
23. The learned counsel for the appellants/claimants (wife and
daughter) in First Appeal No.2900 of 2015 submits that, learned
Tribunal has granted inadequate consortium to wife as well as
daughter. The learned counsel placed reliance on the decision of the
Hon'ble Apex Court in the case of Magma General Insurance
Company Limited v. Nanu Ram Alias Chuhru Ram and Others,
(2018) 18 SCC 130, and submits that, as per decision in the said
case, Rs.40,000/- each towards consortium needs to be paid to the
claimants.
Now, question is whether when accident is of 2008 and ruling
{20} FA 1964 OF 2015
of Hon'ble Apex Court in the case of Magma General Insurance
Company Limited (supra) came to be delivered in 2018, consortium
awarded as per this judgment could at all be paid to the claimants
retrospectively.
In this regard, it will be fruitful to refer the Judgment of this
Court dated 30-09-2022 passed in First Appeal No.257 of 2003, in
which following observations are made in paragraph no.8 :
"8. It is significant to note that the appellants-claimants had claimed
for compensation to the tune of Rs.9,00,000/-, but it was restricted
for Rs.3,00,000/- for the purpose of court fees. The appeal is flied
mainly on two grounds, that the learned Tribunal instead of holding
respondent No.1 negligent to the extent of 100%, held him
responsible for contributory negligence to the extent of 80%.
Secondly, it is the contention of the appellants-claimants that the
learned Tribunal did not consider the income of the deceased on
account of salary as well as agricultural income properly and also
failed to consider any future prospects. The learned counsel for
respondent No.2 - insurance company ultimately argued that there
cannot be any fresh calculation for enhancement of compensation
retrospectively by considering the current judgments of the Hon'ble
Apex Court. However, this court in the judgment reported in 2021(6)
ALL MR 171 in case of Reliance General Insurance Co. Vs. Manju
wd/o Vikram Choudhary and others has specifically observed in para
10 as follows :
"10. Learned counsel for the appellant has strenuously argued
that the award passed by the Tribunal has to be tested on the
basis of the decision in Sarla Verma [2009(4) All MR 429
(S.C.)] (supra) which was holding the field. It may be
mentioned that in Maj. Genl. A.S. Gauraya and Anr vs S. N.
{21} FA 1964 OF 2015
Thakur AIR 1986 SC 1440 : [1986 All MR ONLINE 227 (S.C.)]
the Hon'ble Supreme Court has held that "there is nothing like
any prospective operation alone of the law laid down by the
Supreme Court. The law laid down by the Supreme Court
applies to all pending proceedings". It is also settled proposition
that the discretion to restrict the operation of a decision
prospectively, vests only with the Supreme Court. In Pranay
Sethi as well as Magma Gen. Inis. Company (2018 ALL SCR
2001] (supra) the Apex Court has no where indicated that the
judgment would apply prospectively and not retrospectively.
This being the case, dictum of the Apex Court in Pranay Sethi
[2018 ALL SCR 953] (supra) as well as Magma General
Insurance (2018 ALL SCR 2001] (supra) would apply to all
pending proceedings. The appeals being continuation of original
proceedings filed before the Tribunal under Section 166 of the
M. V. Act, the compensation has to be computed on the basis of
the law expounded by the Apex Court in the aforesaid cases."
Therefore, in view of aforesaid discussion, this Court is of the
view that the claimants (wife and daughter) are entitled for
Rs.40,000/- each towards consortium. Apart from this, Rs.15,000/-
each is also required to be paid towards loss of estate and funeral
expenses.
However, it is noticed that going by the post mortem, age of
deceased was 27 years. For the said age, as per decision of the
Hon'ble Apex Court in Sarla Verma (Smt) and Others, multiplier
applicable is 17 and not 18. Therefore, Tribunal has apparently
applied wrong multiplier and needs correction to that extent.
{22} FA 1964 OF 2015
Entitlement of compensation and apportionment :
24. In paragraph no.30 of the impugned judgment, learned
Tribunal, while recording entitlement of compensation and
apportionment, has made following observations :
30. So far apportionment of the amount of compensation is
concerned, applicant nos.1 to 3 and and opponent nos.4 and 5 have
filed joint pursis vide exh.50 that 27.5% amount of compensation be
awarded to applicant nos.1 to 3 and 72.5% amount of compensation
be awarded to opponent nos.4 and 5. However, I have already held
that applicant nos.2 and 3 being major and not dependent on the
deceased, they are not entitled to any compensation. Therefore, the
entire 27.5% amount will be awarded to applicant no.1 only."
Thus, learned Tribunal taking note of brother and sister
attaining majority, refused to grant compensation to both of them,but
directed 27.5% amount to original petitioner no.1 - Mandakini, who
was mother of deceased.
Now, during pendency of First Appeal, it is informed that both
mother Mandakini and sister Archana have expired. Therefore, only
brother Nilesh, who was informant and also original petitioner no.3,
is surviving member of the family. As stated above, Tribunal has held
him to be major at the time of accident and disqualified him from
entitlement of compensation.
Said brother Nilesh has joined in this First Appeal at the
{23} FA 1964 OF 2015
instance of appellant Union of India, questioning the award on the
point of both contributory negligence as well as quantum of
compensation. In this appeal, he has intervened in the capacity of
legal heir of original petitioner no.1 - Mandakini without filing
distinct appeal for enhancement or getting dissatisfied by refusal by
Tribunal disqualifying him from receiving compensation on account
of attaining majority. Shri Darandale, learned counsel for original
petitioner nos.1 to 3 placed reliance on the Judgment of the Hon'ble
Apex Court in the case of N.Jayasree and Others (supra).
25. On going through the judgment of Hon'ble Apex court in case
of N.Jayasree and Others (supra), more particularly paragraph nos.
14, 15 and 16, it is emerging that the Hon'ble Apex Court discussed
the issue of entitlement in the capacity of legal representative. For
proper comprehension, paragraph nos. 14, 15 and 16 are reproduced
as under :
"14. The MV Act does not define the term "legal
representative". Generally, "legal representative" means a
person who in law represents the estate of the deceased
person and includes any person or persons in whom legal
right to receive compensatory benefit vests. A "legal
representative" may also include any person who
intermeddles with the estate of the deceased. Such person
{24} FA 1964 OF 2015
does not necessarily have to be a legal heir. Legal heirs are
the persons who are entitled to inherit the surviving estate
of the deceased. A legal heir may also be a legal
representative.
15. Indicatively for the present inquiry, the Kerala
Motor Vehicles Rules, 1989, define the term "legal
representative" as under:
2. (k) "Legal representative" means a person who in
law is entitled to inherit the estate of the deceased if
he had left any estate at the time of his death and also
includes any legal heir of the deceased and the
executor or administrator of the estate of the
deceased."
16. In our view, the term "legal representative" should be
given a wider interpretation for the purpose of Chapter XII
of the MV Act and it should not be confined only to mean
the spouse, parents and children of the deceased. As
noticed above, the MV Act is a benevolent legislation
enacted for the object of providing monetary relief to the
victims or their families. Therefore, the MV Act calls for a
liberal and wider interpretation to serve the real purpose
underlying the enactment and fulfill its legislative intent.
We are also of the view that in order to maintain a claim
petition, it is sufficient for the claimant to establish his loss
of dependency. (emphasis laid) Section 166 of the MV Act
makes it clear that every legal representative who suffers
{25} FA 1964 OF 2015
on account of the death of a person in a motor vehicle
accident should have a remedy for realisation of
compensation."
26. On the other hand, Shri Shinde, learned counsel for claimants
(wife and daughter) had placed on record a copy of Judgment and
order dated 02-02-2011 passed in Enquiry Application No.151 of
2009 conducted by learned 3rd Joint Civil Judge, Senior Division,
Ahmednagar, on application at the instance of Mandakini, one
Vaishali, sister Archana and brother Nilesh seeking share in the
compensation of deceased Amit and by a a reasoned order, said Court
rejected that application.
27. Further, from the decision of the Hon'ble Apex Court in the
case of N.Jayasree and Others (supra), which is relied by brother
Nilesh, more particularly paragraph 16, which is reproduced above, it
is clear that, firstly "legal representative" has to establish loss of
dependency. It is elaborated that Section 166 of the Motor Vehicle
Act makes it clear that every "legal representative" who suffers on
account of death of a person in Motor Vehicle accident, should have
remedy of realization of compensation.
{26} FA 1964 OF 2015
28. In the light of above, firstly, learned Tribunal has turned down
entitlement of original petitioner no.3 Nilesh (brother of deceased) to
receive compensation, being major. Secondly, in the pleadings put-
forth at the time of original claim petition, Nilesh projected that he
was younger to deceased but was on temporary employment.
Therefore, his pleadings are not that he was completely dependent
on deceased. Thirdly, attempt to seek share before the Civil Court
by holding it as property of deceased, was also turned down by the
Civil Court.
As stated above, original petitioner no.3 Nilesh has also not
filed distinct appeal against judgment and order of Tribunal rejecting
his and his sister's entitlement to receive compensation. For above
reasons, when real dependents are wife and daughter of deceased,
the instant First Appeal No.2900 of 2015 for enhancement of
compensation is considered only to their extent, mother being
already expired.
29. Now, as this Court has held that, there is contributory
negligence on the part of deceased to the extent of only 20%, the
calculation of the compensation would be as under :
{27} FA 1964 OF 2015
Sr. Particulars Amount
No. (Rs.) (Rs.)
1 Monthly Income = 16,132 p.m.
Add Future Prospects = 8,066 p.m.
Total = 24,198 p.m.
2 Less 1/3rd deduction towards personal expenses
(24,198 - 8,066) = 16,132
3 Annual Income = 16,132 x 12 1,93,584
4 Multiplier of 17 (1,93,584 x 17) 32,90,928
5 Amount of total Income after deducting 20% amount 26,32,742
towards negligence on the part of deceased
(32,90,928 - 6,58,186)
5 Non-pecuniary Losses : 1,10,000
A)Loss of consortium (40,000 x 2)= Rs.80,000
B) Loss of Estate = Rs.15,000
C) Funeral Expenses= Rs.15,000
6 Total Compensation 27,42,742
7 Less - amount of compensation granted by MACT 17,82,256
8 Total enhanced amount of compensation 9,60,486
30 . Considering the aforesaid discussion and computation of
compensation, the wife and daughter of the deceased are entitled for
the enhanced compensation of Rs.9,60,486/-. Accordingly, following
order is passed :
ORDER
I. First Appeal No.1964 of 2015 is dismissed.
II. First Appeal No.2900 of 2015 is partly allowed.
III. Impugned judgment and award dated 31-01-2014
passed by the Member, MACT, Ahmednagar in MACP
No. 807 of 2008 stands modified.
{28} FA 1964 OF 2015
IV. The Appellants in First Appeal No.2900 of 2015
(original opponent nos.4 and 5) i.e. Mrunalini Amit
Makasare and Tanvi @ Arpita Amit Makasare are
entitled for enhanced compensation of Rs.9,60,486/-
along with interest @ 7.5% per annum from the date
of petition till the date of realization of the amount.
V. Respondent nos.1 to 3 (original opponent nos.1 to 3)
to pay enhanced compensation amount of
Rs.9,60,486/- to Appellants in First Appeal No.
2900 of 2015 within 12 weeks from today along with
interest @ 7.5% per annum from the date of petition
till its realization.
VI. Out of enhanced compensation of Rs.9,60,486/-, an
amount of Rs.3,60,486/- be paid to Appellant No.1 -
Mrunalini Amit Makasare and the remaining amount
of Rs.6,00,000/- be deposited in any Nationalized
Bank by way of two Fix Deposits of Rs.3,00,000/-
each in the name of Appellant No.2 Tanvi @ Arpita
Amit Makasare for a period of three months each.
VII. Respondent nos.1 to 3 (original opponent nos.1 to 3)
to deposit the amount of enhanced compensation
along with interest thereon in this Court within 12
weeks from today.
VIII. On deposit of amount by the Respondent nos.1 to 3
(original opponent nos.1 to 3), the Appellant no.1
Mrunalini Amit Makasare is permitted to withdraw
her share along with interest, if any.
{29} FA 1964 OF 2015
IX. Appellant no.2 - Tanvi @ Arpita Amit Makasare is
entitled to withdraw Rs.6,00,000/- of her share after
maturity of the FDs.
X. Modified award be prepared accordingly.
XI. Claimants to pay Court fees on enhanced
compensation as per Rules.
XII. The Appeals are disposed of in above terms.
XIII. The applicants in Civil Application No.11764 of 2024
are permitted to withdraw the amount lying in this
Court alongwith interest, to the extent of their shares
as determined by the Tribunal. Civil Application
No.11764 of 2024 is accordingly disposed of.
XIV. Pending Civil Application is disposed of.
( ABHAY S. WAGHWASE )
JUDGE
SPT
