{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, 2026:BHC-AUG:10785

{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 statedthat, 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 3

rd

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.

No.

Particulars

(Rs.)

Amount

(Rs.)

1Monthly Income = 16,132 p.m.

Add Future Prospects = 8,066 p.m.

Total = 24,198 p.m.

2Less 1/3rd deduction towards personal expenses

(24,198 – 8,066) = 16,132

3Annual Income = 16,132 x 12 1,93,584

4Multiplier of 17 (1,93,584 x 17) 32,90,928

5Amount of total Income after deducting 20% amount

towards negligence on the part of deceased

(32,90,928 – 6,58,186)

26,32,742

5Non-pecuniary Losses :

A)Loss of consortium (40,000 x 2)= Rs.80,000

B) Loss of Estate = Rs.15,000

C) Funeral Expenses= Rs.15,000

1,10,000

6Total Compensation 27,42,742

7Less - amount of compensation granted by MACT 17,82,256

8Total 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