Bombay High Court
SHANTARAM BAPU JADHAV AND ORS.versusNASHIBALI KHAR HUKUMALI AND ORS.
- Decided
- Disposal
- Disposed Off
Holding
The tempo driver was held fully liable for the accident and the compensation award was modified to Rs.10,68,400 plus interest.
Summary
The appellants, parents of a deceased farmer who died in a road collision, appealed the Motor Accident Claims Tribunal’s (Palghar) award. The Tribunal had held the car driver and the tempo driver equally negligent (50:50) and calculated compensation based on a monthly income of Rs.10,000. The High Court examined eye‑witness testimony indicating the tempo entered the wrong side and caused a forceful impact, and found the Tribunal had over‑relied on the spot‑panchnama without proper appreciation of evidence. Applying the Supreme Court’s principles in Jiju Kuruvila, the Court held that the tempo driver was fully responsible for the accident. It also reassessed the deceased’s monthly income at Rs.7,000 and recomputed the compensation, directing the tempo driver and his insurer to pay Rs.10,68,400 with interest. The appeal was allowed and the Tribunal’s award was modified accordingly.
Issues considered
- Whether the Motor Accident Claims Tribunal correctly apportioned contributory negligence between the car driver and the tempo driver on a 50:50 basis.
- How the deceased's income and dependents should be assessed for the purpose of calculating compensation.
Subjects
- contributory negligence
- motor accident
- compensation calculation
- income assessment
- dependents
- Motor Accident Claims Tribunal
- negligence
- insurance liability
- fatal accident
Judgment
9-FA-570-2005.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.570 OF 2005
Digitally signed
by SATISH
RAMCHANDRA
SATISH SANGAR
RAMCHANDRA
SANGAR Date:
2026.09.07
14:23:14
+0530 1. Shantaram Bapu Jadhav, ]
Age : 54 Years, Occupation : Farmer. ]
2. Malati Shantaram Jadhav, ]
Age : 48 Years, Occupation : Household. ]
3. Harshada Shantaram Jadhav, ]
Age : 20 Years, Occupation : Student. ]
4. Vaishali Shankar Jadhav, ]
Age : 18 Years, Occupation : Student. ]
All Residing at : Bhatam (Thalyan’s Pada)]
Post : Bhatane, Taluka : Vasai, ] ...Appellants
District : Thane. ] (Original Applicants)
Versus
1. Nashibali Khar Hukumali, Adult ]
(Deleted as per order dated 07/01/2020) ]
Occupation : Service, Residing at :- ]
Narishewa Sadan Road, Narayan Nagar, ]
Near Hawa Chawl, Ghatkopar, Bombay. ]
2. Mr.Naser Ali Khan, ]
Plot No.109, Section 23, CIDCO Colony,]
Thurbhe, Vashi, New Bombay. ]
3. New India Assurance Company, ]
New India Assurance Building, ] ...Respondents
87, M. G. Road, Fort, Mumbai–400023. ] (Original Opponents)
====================================================
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Mr.T.J.Mendon:- Advocate for Appellants.
Ms.Swati Sinha:- Advocate for Respondent No.3–
Insurance Company.
====================================================
CORAM : S. M. MODAK, J.
DATE : 1st SEPTEMBER 2026
ORAL JUDGMENT :-
1. Heard learned Advocate for the Appellants / Claimants and
learned Advocate for Respondent No.3 – Insurance Company.
2. Two issues are involved in this Appeal. One is, “whether the
Motor Accident Claims Tribunal – Palghar (“Tribunal”) was correct in
arriving at a conclusion about the contributory negligence, that is to
say, the deceased car driver was responsible for 50% and the tempo
driver responsible for remaining 50%”. The second issue is “about
considering the income and calculating the compensation”.
3. The deceased Ajay Shantaram Jadhav was driving a car on 29 th
August 1990. It was at 9.00 p.m. He was proceeding towards
Ahmadabad side on Mumbai Ahmadabad highway. At the same time,
the motor tempo MCY/5937 owned by original Respondent No.2 and
driven by original Respondent No.1 came from opposite direction. It
was insured with the original Respondent No.3. There was dash, the
deceased sustained injuries and died on the spot.
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4. There is FIR registered with Virar Police Station at the instance
of the Police Head Constable Mr.S.B.Kumawat on 31 st August 1990
against the driver of the tempo and on this background, the parents of
the deceased and his brother and sister have filed a Claim Petition
before the Tribunal at Palghar. It was contested only by the Insurance
Company. There is general defense of denial.
5. The Claimants examined Shantaram Jadhav. He is father of the
deceased. He is not the eye–witness. So also, they have examined one
Chandrakant Madhavi who is the eye witness. The Witness No.3
Dharamsi Patil who is the Sarpanch is examined on the point of
owning a house and carrying on brickkiln business. Whereas, the
Insurance Company has not adduced independent evidence.
6. On the basis of above evidence, the Tribunal held the car driver
and tempo driver responsible equally. According to Mr.Mendon, this
finding is erroneous. In paragraph No.9, the Tribunal held thus:-
“In the given circumstances, I hold that both the drivers of the
vehicles involved in the accident were guilty of negligence to
the extent of 50:50 percent for the said accident”.
7. According to Mr.Mendon, when there is oral evidence in the
form of eye–witness, the Tribunal was wrong in concluding about the
contributory negligence only on the basis of spot panchnama.
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According to him, the spot panchnama only records the situation
prevailing at the spot after the accident. It cannot throw any light about
manner of the accident. The Tribunal in paragraph No.9 has
considered the width of the road as 22 feet and kaccha road as 5 feet.
The Tribunal considered that the accident took place at the center of
the road as mentioned in the spot panchnama. The Tribunal concluded
that both these car drivers have dashed each other at the center and it
indicates that they have not driven their vehicles on the extreme left or
extreme right side of their respective road.
8. Whereas, according to learned Advocate for the Insurance
Company, these findings are perfect and no interference is warranted.
Mr.Mendon relied upon the observations in case of Jiju Kuruvila and
others V/s. Kunjujamma Mohan and others1 and more specifically, the
observations in paragraph Nos.22 to 24.
9. I have gone through the evidence of the eye–witness
Chandrakant Madhavi. On the date of incident, at about 8.30 p.m., he
had gone to Virar phata. He seems to be a natural witness. He has seen
the Maruti car which has crossed him and proceeded further for 100 to
150 feet. He had also seen the tempo coming from opposite side and
1 2013 ACJ 2141
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on coming wrong side gave dash to the car. He has seen, due to dash,
the car changed its side and turned as if it is going towards Mumbai.
The deceased was going to Ahmadabad side.
10. If we read the cross-examination, I do not find that his evidence
is shaken during the course of cross-examination so as to make him
unbelievable. In fact, he was asked about contents of his Police
statement. He stated before the Police that accident occurred at the
center, but he denied it. But his Police statement is not shown to him
during cross-examination. On this background, I have seen the spot
panchanama carried on 30th August 1990. It is true, there is mention
that the Maruti car has changed its direction and it is parked as if it is
going towards Mumbai side. There is damage to car to the extent of
Rs.50,000/- and there is damage to the tempo to the extent of
Rs.12,000/-. Admittedly, this was done after the accident has taken
place. There is damage to front portion and driver side. It indicates
there is dash by the tempo on right side of car. Damage caused to the
tempo is also on driver side.
11. It is true from the spot panchnama, we can infer about the
damage to the vehicles involved, the marks on the road, and the
situation prevailing at the site. The Tribunal has correctly observed
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about the width of the road and the width of kaccha road. However,
while appreciating the evidence, the Tribunal has not considered one
fact and it is the fact that direction of the car has changed. It was
proceeding towards Ahmadabad side, however, due to impact, it has
changed as if it is going towards Mumbai side. This itself suggests that
there was a forceful impact by the driver of the tempo. No doubt, the
car is a lighter vehicle as compared to the tempo. But it is important to
note that the car driver has sustained injuries and he died on the spot.
There is more damage of car than tempo. Furthermore, the fact stated
by eye–witness that tempo driver came on wrong side is overlooked by
the Tribunal. This Court feels that these factors are not considered by
the Tribunal.
12. The Hon’ble Supreme Court in case of Jiju Kuruvila (supra), had
an occasion to consider the accident involving a bus which is the
offending vehicle and a car. There was eye–witness examined on behalf
of the Claimants. In paragraph No.24, the Supreme Court observed:-
“24. The mere position of the vehicles after accident, as
shown in a scene mahazar, cannot give a substantial
proof as to 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
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and their directions, etc. depends on a number of
factors like 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
occurred, but in 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”.
13. The emphasis of Supreme Court is merely on the basis of spot
panchnama, we cannot infer about the negligence aspect unless there is
direct or corroborative evidence. In the case at hand, the Tribunal has
given more weightage to the spot panchnama by overlooking the
evidence given by the eye–witness. So, the findings given by the
Tribunal are not on the basis of correct appreciation of evidence. It
requires interference. I conclude that it is the tempo driver who is fully
responsible for this accident and he was rash and negligent. There is
also FIR registered against him.
14. On the point of income, learned Advocate Mr.Mendon
submitted that there was sufficient evidence in the form of father of the
deceased and the Sarpanch. There are two sources of income. One is
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agricultural income and second is brickkiln business. It is true that the
Sarpanch has produced the certificate showing that he was the owner of
the house at village Bhatane. There is also a certificate issued by Thane
Zillha Sahakari Krushi Gramin Bahu-Udeshiya Vikas Bank Limited
dated 6th November 2003. The deceased had taken a loan of
Rs.20,000/- on 5th March 1988 and it was repaid on 16th May 1988.
That is how, the Appellants contend that his monthly income was
Rs.10,000/- (Rupees Ten Thousand).
15. Learned Advocate for the Insurance Company made following
submissions:-
(a) There is no finding about monthly income.
(b) The computation arrived at of Rs.4,32,000/- (Rs.2,000/-
X12X18) is wrong. She supported that the brother and sister
were rightly not considered as dependents.
(c) Whereas, according to Mr.Mendon, the deceased was a
bachelor and brother and sister are the legal representatives.
16. It is true, the brother and sister are the legal representatives. The
Tribunal observed that the sister must have married up till that time . I
could have considered the brother and sister as dependents provided
there ought to have been clear evidence. I do not find such evidence in
the deposition of Shantaram, being father of the deceased. So, I
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consider only the parents as dependents. If it is so, there has to be 50%
towards the personal expenses and 50% towards the dependency.
17. Learned Advocate for Respondent Insurance Company relied
upon the judgment in case of Preetha Krishnan V/s. The United India
Insurance Co. Ltd.2 to submit that income at the date of incident has to
be considered. There cannot be dispute about this proposition. The
Appellants can be granted compensation on all heads as observed in
case of National Insurance Company Limited V/s. Pranay Sethi 3 and
Magma General Insurance Co. Ltd. V/s. Nanu Ram Alias Chuhru Ram
and Ors.4
18. After considering the evidence adduced, I consider the monthly
income of the deceased as Rs.7,000/- (Rupees Seven Thousand) per
month. Admittedly, no 7X12 extracts are produced. But, I presume
that he was doing some brickkiln business because it is deposed by
father of the deceased. Except asking about production of documents,
this theory is not seriously challenged. But, I am not considering to the
fullest extent. I could have considered the repayment of loan certificate
provided the father could have referred it in his evidence. So, on the
basis of this computation, the compensation is calculated as below:-
2 2025 INSC 1293
3 AIR 2017 Supreme Court 5157
4 Civil Appeal No.9581 of 2018 : Supreme Court of India : 18 th September 2018
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Sr.No. Heads Compensation Awarded/Stepped up
(i) Monthly Income:- Rs.7,000/-
(ii) Future Prospects:- Rs.2,800/-
(40% of the monthly Income)
(iii) Deduction towards Rs.4,900/-
Personal Expenditure (50% of Rs.9,800/-).
and Dependency:-
(iv) Multiplier:- Rs.10,58,400/-
(Rs.4,900/-X12X18).
(v) Funeral Expenses:- Rs.18,000/-
(vi) Loss of Estate:- Rs.18,000/-
(vii) Loss of Consortium:- Rs.1,92,000/-
(Rs.48,000/- per head)
(a) Total Compensation Rs.12,86,400/-
Awarded:-
(b) Compensation awarded Rs.2,18,000/- + 6% per annum
by the Tribunal:- simple interest
Amount to be paid Rs.10,68,400/- + 6% per annum
now:- interest.
19. In view of that, following order is passed:-
-: O R D E R :-
(a) The Appeal is allowed.
(b) The Award dated 4th November 2004 passed by the Motor
Accident Claims Tribunal–Palghar is modified as follows:-
(i) The Respondent No.2–Mr.Naser Ali Khan and the
Respondent No.3–New India Assurance Company are
directed to pay jointly and severally Rs.10,68,400/-
(Rupees Ten Lakh Sixty Eight Thousand Four
Hundred) to the Original Claimant No.1–Shantaram
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Bapu Jadhav and Original Claimant No.2–Malati
Shantaram Jadhav being father and mother of the
deceased along with the interest at the rate of 6% per
annum from the date of Claim Petition till the date of
payment.
(ii) The Claimants are directed to pay additional Court
Fee.
(iii) The Tribunal at Palghar is directed to pay the amount
to the Original Claimant No.1–Shantaram Bapu Jadhav
and Original Claimant No.2–Malati Shantaram Jadhav
being father and mother of the deceased in equal
proportion as per the Rules.
(iv) The Record and Proceeding be sent back to the
Tribunal on priority basis.
20. In the light of the above observations, the Appeal is disposed of.
21. Pending Applications, if any, also stand disposed of.
[S. M. MODAK, J.]
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