FA-1524-2011.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FIRST APPEAL NO. 1524 OF 2011

1.Smt. Shobha wd/o Sampat Shinde,

Age 43 years, Occu. Household,

2.Sujay s/o Sampat Shinde,

Age 24 years, Occu. Education,

3.Dinesh s/o Sampat Shinde,

Age 22 years, Occu. Education,

4.Smt. Sakhubai wd/o Pandurang Shinde,

Age 87 years, Occcu. Nil.

All R/o Shekaiwadi, at Post & Tq. Akole,

Dist. Ahmednagar ...Appellants

VERSUS

1.Gajendra s/o Hanumantappa Mandhare,

Age Major, Occu. Driver,

C/o Divisional Controller,

N.W.K.R.T.C., Haveri Division,

Haveri, Karnataka

2.The Managing Director,

N.W.K.R.T.C.,

Central Office, Haveri Division,

Gokul Road, Hubali, Karnataka ...Respondents

***

Mr. S. T. Shelke, Advocate for Appellants

Mr. Manoj Shinde h/f Mr. M. K. Goyanka, Advocate for Respondent No.2

***

CORAM:ABHAY S. WAGHWASE, J

RESERVED ON :FEBRUARY 16, 2026

PRONOUNCED ON :FEBRUARY 18, 2026

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FA-1524-2011.odt

JUDGMENT:

1. This Appeal is preferred under Section 173 of Motor Vehicle

Act, 1988 (for short “the Act”) by original claimants taking exception to

the judgment and order dated 06.04.2011 passed in MACP No.

147/2007.

2. Claimants are wife, children and parent of deceased Sampat

Pandurang Shinde, who died in motor vehicular accident occurred on

19.06.2007. It is the case of the claimants that, on 19.06.2007 at about

05.00 pm deceased was proceeding on motorcycle bearing no. MH-17-P-

2852. When he reached Nashik Pune Road, a bus bearing No. KA-27-F-

239 came from opposite direction and while overtaking gave dash to

motorcycle of deceased in rash and negligent manner. In the said

accident, deceased sustained serious head injury. As a result of fatal

injuries, deceased died on the spot.

Claimants being widow, children & parent filed above claim

Petition before Tribunal at Ahmednagar claiming compensation of Rs.9

lacs. It is the case of the Claimants that, deceased was aged about 40

years at the time of accident and by doing agricultural work, he was

earning Rs.1 to 1.5 lacs p.a., by doing electric fitting work, he was

earning Rs.70,000/- p.a. and by doing milk selling business, he was

earning Rs.1 lacs p.a.

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3. Respondent No. 1 though appeared in the claim Petition,

failed to file written statement. Respondent No. 2 has contested the

claim petition and filed written statement at Exhibit 19 denying the

claim and contentions of the claimants.

4. After framing of the issues at Exhibit 20, Claimant No.1 –

Shobha Sampat Shinde led her evidence at Exhibit 29. Tribunal by

impugned judgment and award directed Respondents to pay sum of

Rs.2,92,000/- along with interest at 7.5% per annum. Since

compensation granted by the Tribunal is found to be inadequate,

Claimants/Appellants preferred this Appeal.

5. Learned Counsel for the Claimants/Appellants seeks

enhancement of compensation on the ground that, Tribunal has failed to

take into consideration the income of the deceased to the tune of

Rs.6,000/- p.m. That, Tribunal has also not considered the future

prospects of the deceased & has also erred in applying multiplier of 12

instead of 15 in view of judgment of Hon’ble Apex Court in case of

National Insurance Co. Ltd vs. Pranay Sethi, (2017) 16 SCC 680. That,

Tribunal has erred in deducting 1/3rd income towards personal

expenses of the deceased instead of deducting 1/4th. That, even

consortium ought to have been paid at Rs.40,000/- per claimant in view

of the judgment of the Hon’ble Apex Court in case of Magma General

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Insurance Co. Ltd vs. Nanu Ram and Ors, 2018 ALL SCR 2001. Finally,

by relying upon the judgment of Hon’ble Apex Court in case of

Mohammed Siddique and Another vs. National Insurance Company

Limited and Others, (2020) 3 SCC 57, it is vehemently submitted that,

Tribunal has erred in considering contributory negligence of the

deceased in occurrence of accident when, in fact, driver of the bus was

driving vehicle in rash and negligent manner.

6. Learned Counsel for the Respondent No. 2 opposed the

above contentions by pointing out the evidence on record, which

according to him, indicates that, income of the deceased has rightly been

considered by Tribunal. It is his submission that, Tribunal has rightly

deducted the 1/3rd income towards personal expenses of the deceased.

He further submitted that, deceased also responsible for occurrence of

accident as he is driving motorcycle rash and negligently and without

following traffic rules. On these amongst other contentions, he seek

dismissal of the Appeal.

7. There is no dispute about the occurrence of the accident and

involvement of the offending vehicle therein. Tribunal has held that, the

accident has occurred due to the negligence of the driver of the bus so

also deceased also negligent, however, held that, the claimants are

entitled for compensation after deducting amount towards contributory

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FA-1524-2011.odt

negligence.

8. The issues, which arises for consideration at the hands of

this Court, are in respect of non consideration of future prospects,

consortium & other heads, deduction of 1/3rd amount towards personal

expenses & deceased can be held to be guilty of contributory negligence.

9. The claimants have contended that the deceased was

earning income from multiple sources. However, the Tribunal has

considered the deceased’s income only to the extent of Rs. 3,000/- per

month, i.e., from agricultural work.

10. In this regard, it is pertinent to note that, the claimants, in

support of their case, examined two independent witnesses. Claimant

Witness No. 2, in his examination-in-chief, stated that, the deceased

owned two cows and one calf and was selling approximately 30 liters of

milk per day. At that time, the price per liter of milk was between Rs. 14

and Rs. 15. He also issued a certificate regarding the deceased’s milk

business, which is marked as Exhibit 32. However, in cross-

examination, this witness retracted from his earlier statement.

Similarly, Claimant Witness No. 3 stated in his

examination-in-chief that, he undertook contracts for electrical fitting

and plumbing work and used to assign electrical fitting work to the

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FA-1524-2011.odt

deceased. He deposed that, the work assigned to the deceased was

worth Rs. 15,000/- to Rs. 20,000/-, and after paying a 50% share to his

co-worker, the deceased was earning Rs. 8,000/- to Rs. 10,000/- per

month. However, this witness also retracted from his statement during

cross-examination. In view of this, Tribunal was justified in ignoring

income from these source.

However, the learned Tribunal has gravely erred in failing

to consider the agricultural income of the deceased while assessing the

compensation. The claimants had specifically pleaded and deposed that,

the deceased was earning approximately Rs. 1,50,000/- per annum from

agricultural activities. Even otherwise, having regard to the prevailing

agricultural conditions and minimum earning capacity at the relevant

time, the deceased could reasonably have earned at least Rs. 6,000/- per

month from agricultural operations.

The Tribunal, without assigning cogent reasons, discarded

this material aspect and assessed the income on a notional basis, which

has resulted in gross under-assessment of compensation. It is a settled

principle of law that, while determining just compensation, the Court

must take into consideration all sources of income of the deceased,

including agricultural income, if supported by oral and documentary

evidence.

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FA-1524-2011.odt

In view of above, in considered opinion of this Court, the

conclusion reached by Tribunal with regard to monthly income of

deceased is not just & proper, needs interference and income of deceased

needs to be considered at Rs.6,000/- p.m.

11. Insofar as the question of non-grant of future prospects is

concerned, the evidence on record clearly establishes the age of the

deceased at the time of death. The wife of the deceased, in her

deposition, has specifically stated that, the deceased was 40 years old at

the time of the accident. Her testimony remains unshaken and there is

no material brought on record to discredit the same.

12. Further, the inquest panchnama prepared

contemporaneously with the incident also records the age of the

deceased as approximately 40 years. Being a document prepared in the

regular course of duty, the inquest panchnama carries corroborative

evidentiary value with regard to the particulars of the deceased,

including age. Thus, both oral and documentary evidence consistently

point to the deceased being about 40 years of age at the time of death.

13. In view of the settled principles laid down by the Hon’ble

Apex Court in Pranay Sethi (Supra), addition towards future prospects

is permissible, even in the case of self-employed or fixed salary persons,

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depending upon the age bracket of the deceased. Hence, future

prospects are also required to be considered and it should be granted @

50% when deceased is aged between 40 to 50 years and self employed.

Admittedly, deceased was aged about 40 years at the time of accident

and hence, 50% addition needs to be given.

14. So far as grant of multiplier is concerned, admittedly,

deceased was 40 years of age. In view of judgment of Hon’ble Apex

Court in case of Sarla Verma (supra) and Pranay Sethi (supra), it can

safely be held that, Tribunal has erred in awarding less multiplier

looking to age of deceased. Considering above judgments and age of

deceased, multiplier of 15 would be justified.

15. As far as the amount of consortium is concerned, in view of

the judgment in case of Magma General Insurance Co. Ltd (supra),

consortium @ Rs. 40,000/- towards per dependent needs to be allowed.

16. As far as issue with regard to deduction of 1/3rd income

towards personal expenses is concerned, this position was made also

clear by Hon’ble Apex Court in case of Sarla Verma and Ors. v. Delhi

Transport Corporation & Another, (2009) 6 SCC 121, wherein, it is

observed as under:

“14. Though in some cases the deduction to be made

towards personal and living expenses is calculated on

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the basis of units indicated in Trilok Chandra [(1996)

4 SCC 362], the general practice is to apply

standardized deductions. Having considered several

subsequent decisions of this Court, we are of the view

that where the deceased was married, the deduction

towards personal and living expenses of the deceased,

should be one-third (1/3rd) where the number of

dependent family members is 2 to 3, one-fourth

(1/4th) where the number of dependent family

members is 4 to 6, and one-fifth (1/5th) where the

number of dependent family members exceeds six.”

In view of the above position, it can safely be held that, the

Tribunal was not justified in deducting one-third of the income of the

deceased towards personal and living expenses, as there were four

dependents. The said deduction is not in consonance with the settled

principles of law and, therefore, calls for interference by this Court.

17. Now, the last issue remains for determination is of

contributory negligence. Here, fruitful reference can be made on the

judgment of Hon’ble Apex Court in case of Kumari Kiran Thr. Her

Father Harinarayan vs. Sajjan Singh and Ors, 2015 (3) MhLJ 626,

wherein, Hon’ble Apex Court relying upon judgment in case of Juju

Kuruvila & Ors, vs. Kunjujamma Mohan & Ors., (2013) 9 SCC 166, held

in paragraph 13 as under:

13. With regard to the apportionment of contributory

negligence at 25% on the part of the appellant-father

and 75% on the driver of the offending tractor as

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FA-1524-2011.odt

determined by the High Court, we refer to the

judgment of this Court in Juju Kuruvila & Ors. v.

Kunjujamma Mohan & Ors.[5] as it is applicable to

facts of the case on hand. In the above case, Joy

Kuruvila (the deceased) had a head-on collision with a

bus approaching from the opposite side. Joy Kuruvila

sustained serious injuries and died on the way to the

hospital. The Tribunal found that the accident

occurred due to the rash and negligent driving of the

bus driver. It apportioned the contributory negligence

between the driver and the deceased in the ratio of

75:25%. On the basis of the pleadings & evidence on

record, in the above said case, this Court has held

thus on the negligence of the driver of the bus:-

“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.

20.6. The post mortem report, Ext. A-5 shows the

condition of the deceased at the time of death. The

said report reflects that the deceased had already

taken meal and his stomach was half-full and

contained rice, vegetables and meat pieces in a fluid

with strong smell of spirit. The aforesaid evidence,

Ext.A-5 clearly suggests that the deceased had taken

liquor but on the basis of the same, no definite finding

can be given that the deceased was driving the car

rashly and negligently at the time of the accident. The

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mere suspicion based on Ext. B-2 “scene mahazar”

and Ext. A-5 post-mortem report cannot take the place

of evidence, particularly, when the direct evidence like

PW3 (independent eyewitness), Ext. B-1 (FI

statement) are on record.”

The observations made by this Court in the case of

Juju Kuruvila (supra) surely apply to the fact

situation on hand. Upon thorough examination of the

facts and legal evidence on record in the present case,

it cannot be said that the appellant-father was rash

and negligent just on the assumption made by the

Tribunal that the collision occurred in the middle of

the road since the two vehicles were approaching from

opposite directions of the road. However, the only

aspect of the case on hand that we can reasonably

assume is that the appellant-father would have taken

sufficient caution while riding the motorcycle since he

was travelling with his two minor children (appellant-

minors). Further, upon examining the evidence

produced on record, there is no proof showing

negligence on the part of the appellant-father. Thus in

our view, the contributory negligence apportioned by

the High Court at 25% on the appellant-father and

75% on the driver of the offending tractor is erroneous

keeping in view the legal principles laid down by this

Court on this aspect in the above referred case. Thus,

we are of the firm conclusion that the negligence is

wholly on the part of the driver of the offending

tractor since he was driving the heavier vehicle.

Therefore, we set aside the 25% contributory

negligence on the part of the appellant-father as

apportioned by the High Court. (Emphasis supplied)

18. In this case, Hon’ble Apex Court has held that, there was no

direct or corroborative evidence to establish rash or negligent driving on

the part of the motorcycle rider. The finding of contributory negligence

was based only on assumptions drawn from the position of the vehicles

and the fact that the collision occurred mid-road, which is legally

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insufficient. In the absence of proof showing negligence on the part of

the motorcycle rider, he cannot be held responsible for the accident.

Consequently, the entire negligence is attributable to the driver of the

offending tractor, and the appellant-father bears no contributory

negligence.

19. Bearing in mind the above position, facts and reasoning of

the Tribunal are put to scrutiny.

In the present case, the findings recorded by the Tribunal in

paragraphs 9 and 10 of the impugned judgment do not justify

attributing contributory negligence to the deceased.

20. In paragraph 9, the Tribunal has relied upon the spot

panchnama and has categorically observed that, while taking a turn,

the bus had come about four feet on the wrong side of the road and

dashed against the motorcycle. The spot panchnama, being a

contemporaneous document prepared immediately after the accident,

clearly indicates that the bus driver encroached upon the incorrect side

of the road. Such encroachment constitutes a clear breach of the duty of

care expected from a heavy vehicle driver. When a large vehicle like a

bus moves to the wrong side while taking a turn, it creates an imminent

and foreseeable risk to oncoming traffic. Therefore, the primary and

proximate cause of the accident, as borne out from the documentary

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evidence itself, is the negligent act of the bus driver.

21. In paragraph 10, the Tribunal has observed that the wife of

the deceased admitted that the deceased was not wearing a helmet.

However, merely because the deceased was not wearing a helmet, it

cannot automatically be inferred that he contributed to the occurrence

of the accident. Non-wearing of a helmet may have relevance while

considering the nature or extent of injuries sustained, but it has no

nexus with the causation of the collision itself. Contributory negligence

must have a direct connection with the happening of the accident. In the

present case, there is no material on record to suggest that the absence

of a helmet in any manner caused or contributed to the accident. The

accident occurred due to the bus coming to the wrong side and hitting

the motorcycle; the question of helmet usage is wholly irrelevant to the

manner in which the collision took place.

22. It is a settled principle of law that contributory negligence

cannot be presumed; it must be established by cogent evidence showing

that the victim’s own negligence contributed to the accident. In the

absence of any such evidence, and particularly when the spot

panchnama clearly attributes fault to the bus driver, fastening any

percentage of negligence upon the deceased is legally unsustainable.

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23. Therefore, the Tribunal erred in drawing an inference of

contributory negligence merely on the basis of the wife’s statement

regarding non-wearing of a helmet. The material on record

unequivocally establishes that the accident occurred solely due to the

rash and negligent driving of the bus driver, and consequently, the

deceased cannot be held responsible for the accident in any manner.

24. In view of above and by following the dictum of Hon’ble

Apex Court in case of Magma General Insurance Co. Ltd, Sarla Verma

& Pranay Sethi (supra), this Court finds it appropriate to grant

Rs.40,000/- each towards consortium plus 10% increase per three years,

50% addition towards future prospects, multiplier of 15 and enhanced

amount for loss of estate and funeral expenses of Rs.15,000 plus 10%

increase per three years. Hence, amount of compensation payable is

determined as follows:

Sr.

No.

Heads Calculations in

Rs.

1.Annual Income

Rs. 6,000 pm x 12 = Rs.72,000

+ 50% addition towards future prospects= Rs.36,000/-

Rs.72,000 (+) Rs. 36,000 = Rs.1,08,000/-

2.Rs.27,000/- divided by 1/4th of the personal expenses

(Rs.1,08,000 – Rs. 27,000/-) = Rs.81,000

3.Multiplier Rs. 81,000 x 15 12,15,000/-

4.Love and affection 15,000/-

5.Loss of Estate 25,000/-

6.Funeral expenses including increase 24,000/-

7.Consortium including increase 2,56,000/-

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8.Hence, total compensation to be paid Rs. 15,35,000/-

9.Compensation awarded by Tribunal Rs.2,92,000/-

10.Total enhanced Compensation Rs.12,43,000/-

25. As a result of above, Appeal stands allowed. Hence, the

order:

O R D E R

(a)First Appeal is allowed. Impugned judgment and award

dated 05.12.2006 passed in MACP No. 507 of 2000 is

modified. Total compensation is Rs.15,35,000/- along

with interest @ 7.5% per annum from the date of

registration of claim petition till its realization.

(b)Respondents are held jointly and severally liable to pay

compensation to claimants.

(c)Claimants to pay Court fee on enhanced compensation

as per rules.

(d)Rest of judgment and award of Tribunal to remain

unchanged.

(e)The difference of compensation amount be deposited

within a period of six weeks.

(f)Amount deposited (along with interest) by Respondents

is permitted to be withdrawn by Claimants/Appellants.

(g)No order as to costs.

(h)In view of disposal of Appeal, pending applications, if

any, stands disposed of.

(ABHAY S. WAGHWASE, J.)

Malani

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