[Cites 13, Cited by 0]

Bombay High Court

The National Insurance Co Ltd vs Kailaschand Bhartiya And Ors on 24 March, 2026

2026:BHC-AUG:12432
                                                                       FA-195-2011
                                             -1-

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                             FIRST APPEAL NO. 195 OF 2011
                                         WITH
                          CIVIL APPLICATION NO.3244 OF 2018
                                         WITH
                          CIVIL APPLICATION NO.3623 OF 2013
                                    IN FA/195/2011

            National Insurance Co. Ltd.,
            Having its Head Office &
            Registered Office at 3 Middleton
            Street, Kolkatta, a Branch Office
            at Dhule and a Divisional Office
            at Hazari Chambers, Station Road,
            Aurangabad, Now through the
            Divisional Manager, Aurangabad                  ... Appellant
                                                               [Orig. Oppnt No.3.]

                      Versus
            1.   Kailaschand S/o. Manakchand Bhartiya,
                 Age : about 56 years, Occu. : Business,
                 R/o. Torkheda, Tq. Shahada,
                 Dist. Nandurbar.

            2.   Kum. Preeti D/o. Kailaschand Bhartiya,
                 Age : about 26 years, Occu. : Education,
                 R/o. Torkheda, Tq. Shahada,
                 Dist. Nandurbar.

            3.   Dipak S/o. Kailaschand Bhartiya,
                 Age : about 17 years - a minor,
                 U/g of His father Kailaschand
                 Manakchand Bhartiya,
                 Respondent No.1 herein.                    ... Orig. Petitioners/
                                                              Claimants Nos.1 to 3

            4.   Sapankumar S/o. Shubhash Bos,
                 Age : Adult, Occu. : Driver,
                 R/o. 'Quarter No. L-4/55, Tapti Road,
                 Sanchi-Jamshedpur.                         ... Orig. Opponent No.1


            5.   Sardar Gurdayalsing S/o. Vryamsing,
                 Age : Adult, Occu. : Business & Owner
                 of Truck No. NL-05/A-7051,
                                                             FA-195-2011
                                -2-

     R/o. Merapani, Dist. Vodna (Nagaland).      ... Orig. Opponent No.2


6.   Ghisalal S/o. Tulsiramji Jaiswal,
     Age : Adult, Occu. : Business & the
     Owner of Ambassador Car No.MP-09/
     HB-2533, R/o. Mahu (M.P.)
     Died, through his LRS.

6(a). Smt. Manorama wd/o. Ghisalal Jaiswal,
      Age : Major, R/o. Mahu (M.P.)              ... Respondents

                                .....
Mr. Sudhir V. Kulkarni, Advocate for Appellant.
Mr. M. M. Bhokarikar, Advocate for Respondent Nos.1 to 3.
                                .....
                             CORAM : ABHAY S. WAGHWASE, J.
                      RESERVED ON : 12 MARCH 2026
                   PRONOUNCED ON : 24 MARCH 2026

JUDGMENT :

1. Original defendant no.3 Insurance Company in Claim

Petition No. 112 of 2001 challenges the judgment and award dated

27.04.2004 passed by learned Additional Member, Motor Accident

Claims Tribunal at Shahada, by which death claim has been partly

allowed.

2. In short, heirs of deceased Bebibai set up above claim

petition, on the premise that, on 14.12.1998, while deceased was

traveling in a Car bearing No.MP-09-HB-2533, i.e. vehicle owned by

respondent no.4, and when it was in the vicinity of Malaswada

Shivar, the car was given dash by a truck bearing NL-5-A-7051 FA-195-2011

coming from opposite direction and Bebibai suffered fatal injuries and

died on the spot itself, and therefore, claim was set up by her

husband and two children against the driver, owner of the car, owner

of truck as well as insurer of truck. After appreciating the oral and

documentary evidence, learned Tribunal vide above judgment and

award granted maintenance to the tune of Rs.3,09,500/- along with

interest at the rate of 9% per annum and claim petition was

dismissed against original respondent no.1 driver of the truck as well

as original respondent no.4 owner of the car, and thereby respondent

nos.2 and 3 i.e. owner of the offending truck and its insurer, were

held liable to jointly and severally pay the above compensation.

Feeling aggrieved by the above, Insurance Company has

come up in appeal challenging the judgment and award. Even

claimants have sought just compensation on the ground that

inadequate compensation has been granted. Admittedly, no cross

objection/appeal has been filed by claimants.

3. Learned counsel for Insurance Company has placed on

record written notes of arguments and would also submit that,

learned Tribunal has erred in not considering contributory

negligence of car driver also to the extent of 50% because, according

to him, there is no dispute that accident had taken place in the FA-195-2011

middle of the road, and moreover, claimant has admitted that, there

was head-on collision between two vehicles approaching each other

from opposite directions. He also questions grant of excess

compensation in absence of evidence. Third ground of challenge is

that learned Tribunal erred in applying multiplier in view of the age

of deceased.

4. Thus, here, sole ground of challenge in the appeal is, non

consideration of contributory negligence of the car driver also, who

was also rash and negligent and himself died in the said accident

along with deceased Bebibai.

5. On going through the record, it is emerging that, present

appellant Insurance Company - original respondent no.3 before the

Tribunal has not adduced distinct evidence from its side. It is

emerging from their pleadings by way of written statement (Exh.18)

that, there is simpliciter denial of all averments in the claim petition,

and it is put-forth that the truck driver was proceeding in a slow and

moderate speed, but the driver of the car was rash and negligent and

thereby solely responsible, and in the alternative, a plea is raised that

an inference of composite negligence be drawn.

6. In support of plea of contributory negligence, it is tried to

be projected that as the accident had taken place in the middle of the FA-195-2011

road, drivers of both the vehicles, i.e. car and truck, are equally

responsible, more particularly, there being head-on collision.

It is emerging from the spot panchanama that, after the

collision, the truck toppled and fell on the car crushing the vehicle

and its incumbents.

7. It is fairly settled position for fixing liability, best and

valuable piece of evidence is the spot panchanama, which is at

Exh.7/2P. Taking the circumstances at the scene of accident and the

above position of the truck, after turning turtle, directly falling on the

car, is a sufficient indicator to draw a particular inference. With such

situation, unless the speed of truck would have been excessive or on

the higher side, the truck would not have assumed such a position

after the collision.

8. It is tried to be pointed out that, witness PW1

Kailaschand had admitted that there was head-on collision in the

middle of the road. But, admittedly, this witness is not an eye witness

to the accident. Both, driver of the car as well as wife of PW1 has

unfortunately died in the accident. Driver of the truck has not

steeped in the witness box, and therefore, adverse inference can be

drawn against him. Consequently, taking into account the fact that,

truck had fallen and landed over the car, is a sufficient to draw FA-195-2011

inference that truck was with excess speed and being heavy vehicle,

its driver lost control. For said reasons, as put-forth by learned

counsel for appellant - insurance company, it cannot be said that, it

was either contributory negligence or composite negligence.

9. Learned counsel for respondents - original claimants

urged to enhance compensation, it to be meager.

10. Here, admittedly, there is no distinct appeal by claimants

for seeking enhanced compensation on the ground that inadequate

compensation was granted. However, in such circumstances, in the

case of United India Insurance Co. Ltd. v. Kunti Binod Pande & Ors.,

(2020) 1 Bom CR 629, in paragraph 34, this Court observed that, "A

Division Bench of this Court in case of National Insurance Co. Ltd. v.

Vaishali H. Devare & Ors., (2013) 1 Mah LJ 411, has held that even if

there is no cross- appeal or cross-objection preferred by the

claimants, the exercise of determining the just compensation will

have to be carried out. Such adjudication can be made even without

taking recourse to Rule 33 of Order XLI of Code of Civil Procedure.

In similar line, in the case of Manager, National Insurance

Co. Ltd. v. Shri Nilesh Suresh Bhandari & Ors. 2022 SCC Online Bom

4749, the learned Single Judge of this Court considered the aforesaid

observations in Kunti Binod Pande & Ors. (supra) and in paragraph FA-195-2011

17 observed that,

"17. I am in complete agreement with the view expressed in Kunti Pandey (supra), since it is the duty of the Court dealing with a claimant who has incurred a disability on account of an un-fateful event, I do not deem it fit to decline consideration of the claim of the claimant for enhancement of compensation in absence of any independent Appeal or cross Appeal being filed by the claimant."

11. In the case of Solapur Municipal Corporation & Anr. v.

Rupali Rahul Pawar & Anr. in First Appeal No.476 of 2016. In this

case this Court considered the decisions in A.P.S.R.T.C. Rep. by its

General Manager & Another v. M. Ramadevi and Others,

MANU/SC/7008/2008 and Nagappa v. Gurudayal Singh and Ors.,

(2003) 2 SCC 274, and in paragraph 15 held that, "It is thus well

settled that the Tribunal/Court is under an obligation to award just

compensation and there is no embargo in enhancing the

compensation in the absence of appeal or cross objection. ..." As a

result, this Court enhanced the compensation of Rs.12,58,000/- to

Rs.16,06,200/-. Said decision is in line with the earlier decision in

Kelkar and Kelkar v. Shripad Narayan Gore And Ors., 2019 SCC

Online Bom 4140, therein reference was made to the decisions in

Ranjana Prakash and Ors. v. Divisional Manager and Ors.

FA-195-2011

MANU/SC/0897/2011, Nagappa (supra) and National Insurance Co.

Ltd. v. Pranay Sethi and Others, (2017) 16 SCC 680.

12. Learned counsel for original claimants has placed on

record calculation pursis i.e. for just and fair compensation. Before

the learned Tribunal, case was set up that, deceased Bebibai was the

sole bread-earner of the family, who by conducting business of cloth

and by doing tailoring work, earned over Rs.80,000/- to Rs.90,000/-

per year, and thereby claim of Rs.5,00,000/- was set up. However,

from the pleadings that approximate income allegedly earned by

deceased was Rs.7,000/- to Rs.8,000/- per month. But, in the cross

examination of PW1 Kailaschand, he has admitted that, there was no

distinct cloth shop in the name of deceased, rather, he ran cloth shop

that too in the residential house.

PW2 Bhalchandra was also examined. According to him,

he was acquainted deceased for last five years and by rendering

tailoring/cloth business, she earned Rs.7,000/- to Rs.8000/- per

month.

After appreciating such respective cases, learned

Tribunal, in paragraph 24, concluded and recorded a finding that, it

was evident that Bebibai was doing tailoring work and cloth business,

but there was no documentary proof of income and under such FA-195-2011

circumstances, her income was held to be Rs.2,500/- i.e. over

Rs.30,000/- per year. Such computations and figure is questioned

before this Court on the ground that it is inadequate.

13. Admittedly, there was no concrete proof or documentary

evidence about deceased Bebibai herself conducting said business,

however, learned Tribunal held that though there was no distinct

proof of such business, from the evidence of PW1 Kailaschand and

PW2 Bhalchandra, inference was drawn that, she conducted said

business and accordingly held her month income of Rs.2,500/-.

Indeed, said figure seems to be on lower side. A person doing tailor

work equally by also selling cloth might be earning more than the

above quantum held by Tribunal. Therefore, it would be just and

proper to consider income of deceased from both the business to the

tune of Rs.3,000/- instead of Rs.2,500/- per month.

14. While considering the enhancement of compensation

retrospectively on the basis of current judgments of the Hon'ble Apex

Court, it is necessary for the Court to examine the scope and

applicability of such judgment. This court in the case of Reliance

General Insurance Co. v. Manju wd/o Vikram Choudhary and others ,

2021(6) ALL MR 171 , has specifically observed in para 10 as

follows:

FA-195-2011

"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 v. S. N. 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 General Insurance, (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."

From the aforesaid observations, it is clearly evident that

law laid down by the Apex Court applies not only to the prospective

cases, but also to all pending proceedings and even in the pending

appeals.

FA-195-2011

15. From the post mortem report, age of deceased reported to

be 45 years. However, In view of the decision of the Hon'ble Apex

Court in the case of Sarla Verma and Ors. v. Delhi Transport

Corporation and Anr., (2009) 6 SCC 121, for said age group

multiplier applicable is 14.

16. Learned counsel for original claimants has pointed out

that learned Tribunal has not granted amount under the future

prospects.

17. Further, in the considered opinion of this court, learned

Tribunal has granted less amount towards loss of consortium, funeral

expenses and loss of estate. In view of the ratio laid down in Pranay

Sethi (supra); Magma General Insurance Co. Ltd. v. Nanu Ram alias

Chuhru Ram and Others, (2018) 18 SCC 130, claimants are entitled

for Rs.40,000/- each, i.e. 1,20,000 /- towards consortium and loss of

love and affection. Rs.15,000/- towards loss of estate.

In view of the aforesaid discussion, claimants are entitled

for following compensation :

      Sr.                       Heads                     Amount (Rs.)
      No.
       1. Annual Income (i.e. 3000 x 12)                        36,000/-
       2. Future Prospects 25%                                  45,000/-
          i.e. 9,000 (36,000 + 9,000)
                                                                     FA-195-2011



      3. Less 1/3rd deduction towards personal                        30,000/-
         expenses.
         (Rs. 45,000 - Rs. 15,000)
      4. Multiplier of 14 (30,000 X 14)                             4,20,000/-
      5. Loss consortium and Love and affection =                   1,50,000/-
         1,20,000/-

             Loss of Estate = Rs.15,000/-

             Funeral Expenses =15,000/-
      6. Total compensation to be paid                              5,70,000/-
      7. Compensation awarded by Tribunal                           3,09,500/-
      8. Total Enhanced Compensation                                2,60,500/-
         (i.e. Rs.5,70,000 - 3,09,500)


18.            In the result, the following order :

                                      ORDER

      (i)      Impugned judgment and award dated 27.04.2004, passed

by the learned Additional Member, Motor Accident Claims Tribunal,

Shahada in Claims Petition No.112 of 2001, is modified.

(ii) Appellant - insurance company to pay enhanced

compensation of Rs.2,60,500/- to original claimants within 12 weeks

from today along with interest @ 9% per annum from the date of

registration of claim petition till its realization.

(iii) Modified award be prepared accordingly.

(iv) Claimants to pay court fees on enhanced compensation as

per rules.

FA-195-2011

(v) On deposit of the amount by Insurance Company,

claimants are permitted to withdraw the same.