Bombay High Court
SMT.DILKUMARI MANBAHADUR KHATRI @ THAPA AND ORS.versusSHRI.JAMALUDDIN AGWAN NAJIR MOHD.
- Decided
- Disposal
- Disposed Off
Holding
The Tribunal erred in apportioning composite negligence without the other tortfeasor being impleaded, so the truck driver is solely liable and the compensation must be enhanced as per the correct quantum.
Summary
On 4 January 2001 a jeep carrying the deceased Manbahadur Khatri collided with a truck on the Manmad‑Shirdi road, resulting in Khatri's death. The widow, children and mother filed a claim against the truck owner and its insurer, while the truck driver faced criminal charges under the IPC. The Tribunal held the truck driver and the jeep driver equally negligent, awarding the claimants Rs 4,02,500 out of a total compensation of Rs 8,05,000. On appeal, the Court held that the Tribunal erred in apportioning liability because the other tortfeasor (the jeep driver/owner/insurer) was not impleaded, making the truck driver solely liable. The Court also recalculated the compensation, increasing the monthly income to Rs 10,800, applying a multiplier of 14, a 30% future prospect, consortium compensation of Rs 48,000 per claimant and a 1/5 deduction, resulting in an enhanced award of Rs 18,08,476. The appeal was allowed and the respondents were directed to pay the enhanced amount jointly and severally.
Issues considered
- Whether a tribunal can apportion liability between joint tortfeasors when one of them is not impleaded as a party.
- Whether the claimants are entitled to enhanced compensation on the basis of revised income, multiplier, future prospect, consortium and deduction.
- Whether the deceased's legal representatives may elect to sue either the vehicle owner or the insurer.
Legislation cited
- Indian Penal Code, 1860 — s. 279, 304(A), 337, 338
Subjects
- motor vehicle accident
- negligence
- composite negligence
- joint tortfeasors
- compensation calculation
- future prospect
- consortium compensation
- Indian Penal Code
- Motor Vehicles Act
- appeal
Judgment
21. FA 2954 of 2006.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 2954 OF 2006
1. Smt. Dilkumari Manbahadur
Khatri @ Thapa
2. Rajesh Manbahadur Khatri @ Thapa
3. Kum. Dilmaya Manbahadur Khatri @
Thapa
4. Kum. Pratibha Manbahadur Khatri @
Thapa
5. Bharat Manbahadur Khatri @ Thapa
6. Smt. Devki Sherbahadur Khatri @ Thapa
All R/o. B-30, Jay Anand Dham C.H.S. Ltd.
Deen Dayal Road, Thakurwadi,
Dombivali (W), Dist. Thane ...Appellants
Vs.
1. Shri Jamaluddin Agwan Najir
Mohd.
R/o. Malwa Weding, Bus Stand Shamgarh,
Dist. Mandsaur, Madhya Pradesh.
(Owner of Truck No. MP-14/A-4532)
2. New India Assurance Co. Ltd.
Div. Thane, Gokhale Road, Thane. ...Respondent
*****
Mr. T. J. Mendon Advocate for the Appellants
Ms. Poonam Mittal for the Respondent No. 2-Insurance
Digitally
signed by
Company.
SEEMA
SEEMA KSHITIJ
KSHITIJ YELKAR
Date:
YELKAR 2026.08.20
19:03:04 Seema 1/7
+0530
21. FA 2954 of 2006.doc
*****
CORAM : S. M. MODAK, J.
DATE : 18th AUGUST 2026
JUDGMENT :-
1. Heard learned Advocate Shri Mendon for the Appellants-
Claimants and learned Advocate Ms. Mittal for the Respondent No. 2-
Insurer.
2. In fact two vehicles were involved in the accident that took place
on 04th January 2001 on the Manmad Shirdi Road on the junction of
village Savli Vihir in District Ahmednagar. One was jeep in which
deceased-Manbahadur Khatri was travelling i.e. Jeep bearing No.
MH05/F-312. The jeep driver turned the jeep towards the Shirdi Road
from the junction of village Savli Vihir. At that time offending Mal
truck was coming from opposite side collided with the jeep.
3. The deceased sustained injuries and he died. Even wife of the
deceased was travelling in the jeep. There was offence registered against
the driver of the truck under Sections 304(A), 279, 337, 338 of the
Indian Penal Code.
4. The claim was filed against the truck owner and insurer. The
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negligence is denied. The Claimant No. 1 is widow. Whereas Claimant
Nos. 2, 3, 4 and 5 are the children and Claimant No. 6 is mother of the
deceased. The owner of the truck has not contested the proceedings.
The only insurer has contested the proceedings. Out of claimants, son
of the deceased has given evidence and relied upon the Police papers
and salary slip. The deceased at the time of the accident was working
with Progressive Co-operative Bank as Sub-staff. His gross-salary was
Rs. 10,800/-. Whereas net salary was Rs. 8,300/-. He also received
bonus in the month of October 2000 and November 2001.
5. The Tribunal held that the driver of the truck was rash and
negligent. There was also issue framed about contributory Negligence
on the point of jeep driver. It was also answered in Negative.
6. The Tribunal has come to conclusion that jeep driver was also
equally contributed to the negligence. The Tribunal has considered the
spot panchnama and the skid marks of the jeep at the middle of the
road. It finds place in para no. 11. That is why, from the awarded
amount of compensation of Rs. 8,05,000/-, the owner and the insurer
of the truck was held responsible to the tune of Rs. 4,02,500/-.
7. The appeal is filed mainly on two grounds. They are as follows:
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(i) Deceased was travelling in a jeep and he has got choice to
proceed against either owner or insurer of the vehicle.
Mr. Mendon relied upon the observations in case of Khenyei Vs.
New India Assurance Co. Ltd. and others1.
(ii) The claimants are asking for enhancement for the following
reasons:-
(A) Less monthly income considered.
(B) Future prospect not considered.
(C) Wrong multiplier is considered.
(D) Consortium compensation was not considered.
(E) Deduction was considered as 1/3rd, it ought to
have been 1/5th.
8. I have gone through the observations in above mentioned
judgment. The principles in case of composite negligence are laid
down. It is for the Claimants to decide to whom he should sue whether
both or any one of the joint tortfeasors. It is further held that the
Tribunal can determine inter-se extent of composite negligence.
However, it is only for the purpose of inter-se liability and one
tortfeasor can recover the amount from the other after making whole of
payment to the Claimant. When other joint tortfeasor is not impleaded
as party, it may not be appropriate for the Tribunal to determine the
1 2015 ACJ 1441
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extent of composite negligence.
9. In this case, admittedly the other tortfeasors i.e. the owner and
driver and the Insurance company of the jeep were not impleaded as
party.
10. In view of that, the Tribunal has committed error in deciding the
decree of the negligence amongst two joint tortfeasors that has to be set
aside. Hence, liberty is granted to the Respondent to file appropriate
proceedings for the recovery of the amount from the Insurer of the
jeep.
11. If it is so, then on the basis of the evidence it has to be held that
the truck driver was entirely responsible on the point of quantum of
income and compensation. My findings are as follows:-
a) The Tribunal has considered the income to the extent
of Rs. 9,000/-. It is true the deductions were
considered and even bonus is not properly considered.
Depending upon the evidence, I feel that Tribunal
ought to have considered Rs. 10,800/- as monthly
income of the deceased.
b) The age of the deceased was 45 years. The Tribunal
ought to have considered the multiplier of 14 instead
of 11.
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c) Considering the age, Claimants are entitled to take
future prospect @ 30%.
d) There are in all six claimants, they are entitled to get
Rs. 48,000/- each towards Consortium compensation.
12. In view of that recalculation of the compensation is as follows:-
Income of deceased Rs. 10,800/- (A)
Future prospect 30% Rs. 3240/- (B)
(Rs. 10,800/- X 30%)
Total A + B Rs. 14,040/- (C)
Personal deduction 1/5 Rs. 2808/- (D)
(Rs. 14,040 X 1/5)
Total C - D Rs. 11,232/- (E)
Multiplier 14 Rs. 18,86,976/- (F)
Rs. 11,232 X 12 X 14
Consortium for 6 Rs. 2,88,000/- (G)
Claimants
(Rs. 48,000X6)
Loss of Estate Rs. 18,000/- (H)
Funeral Expenses Rs. 18,000/- (I)
Total (F+G+H+I) Rs. 22,10,976/- (J)
Tribunal granted Rs. 4,02,500/- (K)
Enhancement amount Rs. 18,08,476/- (L)
(Rs. 2210976-402500)
13. In view of that following order is passed:-
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21. FA 2954 of 2006.doc
ORDER
(i) The First Appeal is allowed.
(ii) The Respondents are directed to pay an amount of Rs.
18,08,476/- (Eighteen Lakhs Eight thousand Four
Hundred and Seventy Six Rupees Only) [Rs.
22,10,976/- (minus) Rs. 4,02,500/- (tribunal granted)]
jointly and severally to the Claimants within a period of
eight weeks from passing of this order @ 8% from the
date of filing of the petition till the realization.
(iii) The Tribunal to decide the apportionment of the
compensation after hearing the Claimants.
(iv) Appellants are entitled to enhanced amount, subject to
deposit of deficit Court fees.
(v) The amount of the statutory deposit be refunded as per
the Rules.
14. With the above observations, the First Appeal is disposed of.
[S. M. MODAK, J.]
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