THE EXECUTIVE ENGINEERversusSMT.SANDHYA RAJESH MASURKAR and OS.

                                                                              901-FA-745-2002.doc


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION

SATISH                                  FIRST APPEAL NO.745 OF 2002
RAMCHANDRA
SANGAR

Digitally signed by   1.     The Executive Engineer, Transport(Sub), ]
SATISH RAMCHANDRA
SANGAR                       Municipal Corporation of Gr. Mumbai, ]
Date: 2026.09.02
15:34:48 +0530               S. V. Road, Subway, Opp. Milan Cinema, ]      ...Appellant
                             Santacruz (W), Bombay – 400 054.        ] (Original Opponent)

                                         Versus
                      1.     Smt.Sandhya Rajesh Masurkar,              ]
                             Age : 26 Years, Widow of deceased.        ]
                      2.     Shri.Tukaram Narayan Masurkar,            ]
                             Age : 69 Years, Father of the deceased.   ]
                      3.     Kum.Swapnil Rajesh Masurkar,              ]
                             Age : 5½ Yrs., Son of the deceased.       ]
                      4.     Kum.Sanket Rajesh Masurkar,               ]
                             Age : 5 Months, son of the deceased.      ]
                             Respondent Nos.3 and 4 are minors         ]
                             by their mother and Next friend           ]
                             Smt.Sandhya Rajesh Masurkar,              ]
                             Residing at : 364–B, 2nd Floor,           ]
                             R. No.75, New Haji Kasam Chawl,           ]   ...Respondents
                             Lalbaug, Dr. B. A. Road, Bombay–12.       ] (Original Applicants)
                      ====================================================

                      Mr.Drupad Patil a/w Ms.Pallavi Khale Advocates for Appellant.
                      i/b. Ms.Komal Punjabi:-
                      Mr.Saumen Vidyarthi (Through V.C.) Advocates for Respondents.
                      a/w Ms.Ishita Bhole:-

                      ====================================================
                                               CORAM       :       S. M. MODAK, J.
                                               DATE        :       29th AUGUST 2026

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ORAL JUDGMENT :-

1.     The Motor Accident Claims Tribunal – Mumbai (“Tribunal”) as

per the Award dated 14th February 2002, held the Executive Engineer,

Transport (Hub), Municipal Corporation of Greater Bombay

responsible to pay a compensation of Rs.5,00,000/- (Rupees Five

Lakh) to the Claimants who are the legal representatives of the

deceased Rajesh Tukaram Masurkar. The said Rajesh was driving a

kinetic scooter and when it came on the flyover while going towards

Lalbaug Parel, due to pothole or giving a dash to road divider, he has

skidded and he was thrown away to the opposite direction. At the same

time, a dumper driven by Machindra Kondiba Bagate was moving

towards the Devnar dumping ground came on Parel flyover and he

gave a dash to the deceased Rajesh, as a result Rajesh sustained injuries

and he died. The submission of Mr.Drupad Patil for the Appellant is,

in fact, it was a pure accident and the driver of dumper was noway

responsible and the Tribunal ought to have exonerated him.

2.     On the point of accident, there are two versions. One version

which is deposed by Vijay Sitaram Ghag who is the Police-sub

Inspector attached to Bhoiwada Police Station and at the relevant time,

he was returning to the Police Station on his scooter. On the other


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hand, there is version given by dumper driver. The Tribunal favoured

with the version given by PSI. So, the issue involved in this Appeal is

“whether the Tribunal was correct in believing PSI Ghag and not

believing the dumper driver Bagate”. One more issue raised by

Mr.Drupad Patil and “it is about giving 100% rise in the income of the

deceased that is from Rs.2,024/- (Rupees Two Thousand Twenty

Four) per month to Rs.5,450/- (Rupees Five Thousand Four Hundred

Fifty).

3.     On this background, I have heard learned Advocate Shri.Drupad

Patil for the Appellant and learned Advocate Shri.Saumen Vidyarthi

for the Respondents / Claimants. Both of them have taken me through

the oral evidence and documentary evidence which consists of the FIR,

the spot panchnama and the income documents. So, we have got oral

version available along with the contemporaneous documents created

by the Police. The oral version needs to be ascertained on the basis of

contents of the documentary evidence.

                             Submissions

4.     Learned Advocate Shri.Vidyarthi has relied upon few of the

citations dealing with the aspect of role of Tribunal in appreciating

such evidence. These judgments are as follows:-


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(i)       Haji Zainullah Khan (Dead) By Lrs. V/s. Nagar Mahapalika,
          Allahabad1, wherein, the Tribunal as well as the High Court
          has dismissed the claim Petition. However, it was reversed by
          the Supreme Court. There was version deposed by the eye
          witness Abdul Khalique. He was disinterested and
          independent witness. As against this, there is a version given
          by the Driver and the Assistant Engineer who were
          employees. They were treated as interested witnesses.

(ii)      N.K.V.Bros. (P) Ltd. V/s. M. Karumai Ammal and Others 2.
          The Supreme Court has opined about what should be the
          approach of the Tribunal. On one hand, the Tribunal should
          take special care to see that innocent victims do not suffer
          and at the same time, drivers and owners do not escape
          liability merely because of some doubt here or some
          obscurity there.
(iii)     What should be the duty of a person who is using the road
          towards the other is reiterated in case of Shakuntla Shridhar
          Shetty V/s. State of Maharashtra3. It is observed:-
         “15. It is not necessary to refer to any authority for the
              proposition that when a person is using the road he
              owes a duty to other users of the road who also owe
              a duty to him, but there is no doubt that the driver
              of a vehicle must take reasonable care to avoid acts
              or omissions which can be reasonably foreseen and
              which will be likely to injure other persons on the
              road”.

1     (1994) 5 Supreme Court Cases 667
2     (1980) 3 Supreme Court Cases 457
3     1976 A. C. J. 368

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5.     On this background, when I have perused the issues framed by

the Tribunal, I find there is burden cast on the Applicants to prove the

rash and negligent driving of dumper driver. Whereas, there is also

burden cast on the Corporation to prove that in fact, it was the

deceased who was rash and negligent. The Tribunal has answered Issue

No.1 in positive and accordingly observed, the Appellant has failed to

prove the rashness of the deceased. Mr.Patil has invited my attention to

the findings of Issue No.2. In fact, both the issues are interconnected.

If one will succeed, the other will fail. Both the issues could have been

decided together by the Tribunal. The Tribunal while answering the

Issue No.1 has discussed oral testimony of the PSI Ghag and the driver

Bagate.

6.     It is true, in the First Appeal, re-appreciation of evidence is

possible. Admittedly, Sandhya widow of the deceased is not an eye

witness. She got knowledge from third person. When I have gone

through their evidence, it is important to consider what the PSI Ghat

has deposed. The material facts are as follows:-

                         Evidence of PSI Ghag

(a)    PSI Ghag came on Parel flyover at about 12.00 midnight. At
       that time, he saw one person coming on a kinetic scooter
       from opposite side i.e. Dadar side. The scooter skidded and

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       scooter driver was thrown towards the divider. Whereas, the
       scooter remained on his side only.
(b)    The scooter driver tried to get up. However, at that time, the
       dumper driver came from Lalbaug side in fast speed and
       passed the PSI Ghag from right side and the dumper driver
       went over the scooterist. During the course of cross-
       examination, he has denied the suggestion that dumper
       driver has not come in high speed. Whereas, the dumper
       driver has stated the following facts in his evidence.

                       Evidence of dumper driver

       (i)He was driving the dumper with 30 k.m. per hour. At that
           time, the scooterist came from Dadar side in a fast speed.
       (ii) He heard a sound of impact of back side of dumper and
           hence, he stopped the dumper. He wants to suggest that
           the impact of the scooter was on a back side and the
           driver cannot be held responsible about whatever has
           happened behind his vehicle. This is disbelieved by the
           Tribunal.
       (iii)He got down from the dumper and saw the scooterist
           had fallen down on the divider. At that time, there was
           no vehicle at the spot.
       (iv)The dumper was filled in with garbage. He saw the
           scooterist for the first time from a distance of 35 feet.
           Mr.Vidyarthi has laid emphasis on this answer and
           according to him, the dumper driver ought to have been
           vigilant when he drove the dumper. Whereas, according


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            to Mr.Drupad Patil, this strange answer cannot be
            considered against his client.
       (v)He has denied the suggestion about presence of police
            officer and he overtook the motorcycle of the police
            officer. According to him, the cleaner side wheel of the
            dumper was over the head of the deceased and not the
            front side.
7.     It is always said that a man may lie but not the circumstances.

The circumstances on the spot were recorded by the Police by way of

spot panchnama. It will be material to consider its contents. They are as

follows:-

                              Spot panchnama

(a)    The deceased was found on the spot and his brain has come
       out of the head. There is blood lying.
(b)    There are scratches on road divider on northern side of the
       dead body and there were scratches on east side for 20 feet.
(c)    There were flesh stuck to the front cleaner side wheel of the
       dumper. This suggestion has to be considered while
       appreciating the version given by dumper driver that there
       was a dash to his dumper from back side.
(d)    Whereas in the FIR given by Mr.Ghag, there is also
       reference that the kinetic scooter driver has dashed to the
       road divider and the scooter fell on that side. Whereas, the
       scooter driver fell on the other side. (Page No.14). According
       to him, the dumper driver was responsible to the accident.

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                        Situation at the spot

8.     According to Mr.Vidyarthi, there was pothole and the deceased

Rajesh tried to avoid that pothole and that is how, he lost his control.

The Tribunal in the introductory paragraph of the judgment has

referred about this pothole. However, PSI Ghag has not said about this.

Even in the spot panchnama, there is no reference about pothole.

There are two aspects. One how the deceased Rajesh was thrown on

the other side of the road divider from where the dumper driver is

coming. Where it is due to pothole or due to scratching of the scooter

to the road divider and that his how, the deceased Rajesh was thrown

on the other side. The dumper driver has not said anything about this.

Even PSI Ghag has not said anything about this. But the reference

about the scratches to the road divider speaks for itself. There is reason

to believe that the deceased Rajesh has touched the road divider and

that is why, there are scratches and that is how, he was thrown on other

side of the road.

9.     The argument of Mr.Drupad Patil is for this act, his client cannot

be held responsible. According to him, it was the fault of the deceased

Rajesh to hit the road divider and his client cannot be held responsible.

Whereas, according to Mr.Vidyarthi, in fact the dumper driver was at


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great speed and he has seen the scooterist from the distance of 35 feet

and he ought to have driven the dumper at such a speed so that he can

stop the dumper when he has noticed some person or vehicle on his

way.

10.     There is one reason for not believing the version of dumper

driver that there was dash from the backside because this fact is not

stated by PSI Ghag and in fact, in the written statement, in paragraph

No.9 filed by the Appellant, the plea taken is,

       “one motorcycle came in a very fast speed from the opposite
       direction beyond divider and suddenly his motorcycle dashed
       against the divider and came down right rear wheel of the
       vehicle of the opposite party”.

There is one more reason for falsifying this plea. Flesh was stuck to the

front side cleaner side wheel of the dumper. If there was dash from the

rear side, how there can be a flesh on front side. Mr.Patil has also

submitted that the position of the dead body was such that his legs

were on the divider. When there is flesh on front cleaner side, it means

the dash was given by the dumper from the front side only.

11.     In fact, the dumper driver ought to have been vigilant and he

ought to have taken care in considering the situation prevailing on the

road at that time. No doubt, it was a midnight but it does not mean


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that he can drive the dumper at a great speed and in such a speed that

he cannot control it when there is some obstruction. If the dumper

driver could have driven the dumper in moderate speed, probably he

could have avoided that accident. It is important to note that there is

slope on that bridge towards Dadar side. So, I am not impressed by the

arguments of Mr.Patil that his client was not rash and negligent. When

the deceased was thrown on that side if the dumper driver was not at

speed, the accident could have been avoided. But it suggests that the

dumper driver was not in a moderate speed. In fact, when there are

scratches, even the deceased Rajesh is also responsible if he could not

have dashed the road divider, he was not thrown on the other side. So,

to certain extent, he was responsible and contributed to the accident.

12.    Learned Advocate Shri.Vidyarthi submitted that there is no such

pleadings or any suggestion is given. Learned Advocate for the

Appellant also submitted that in fact their driver is not at all negligent.

It is true, no case is put forth about contributory negligence by the

Corporation. Be that it may, Court has to appreciate the evidence and

come to right conclusion. In fact, the Claimants could have explained

as to how the deceased Rajesh was thrown on the other side and his

scooter remained on his original side. This absence and coupled with


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the scratches on road divider, this Court holds that he was also

responsible to certain extent. I consider him negligent for 10% and the

dumper driver for 90% because the dumper driver if at a moderate

speed, he could have avoided the accident. The deceased died on the

spot, the impact was so forceful that the brain has come out from the

head.

                          Income of deceased

13.     Now coming to the monthly income, there is evidence given by

the employer–Satyabhan Singh. The deceased was working as Khalashi

in Railway and he joined the duty on 20 th August 1992 and promoted

on 20th August 1993. He was drawing salary of Rs.2024/-. He could

have been further promoted provided he has passed departmental

examination. According to the employer, he could have got salary of

Rs.5,450/-. He was due to retire in the year February–2027. About his

employment and salary, there is no much dispute. The dispute is about

considering his monthly salary at the double of Rs.2,040/-. Whereas,

according to Mr.Vidyarthi, various judgments given by the Supreme

Court were not in force at that time and even if we consider the income

by considering the future prospects, the income will be on higher side.

He has tendered a table of calculation. The calculation suggested by


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him is as follows:-

Sr.No.               Heads            Compensation Awarded/Stepped up
   (i)     Monthly Income:-           Rs.2,024/-
  (ii)     Future Prospects:-         Rs.1,012/-/-
                                      (50% of the Income)
  (iii) Annual Income:-               Rs.2024/-+1012/-=3036/-,
                                      Annually it comes to Rs.36,432/-

  (iv)     Dependency 3/4th           Rs.27,324/-
  (v)      Multiplier:-               Rs.27,324/-X17=4,64,508/-
  (vi)     Funeral Expenses:-         Rs.18,000/-
  (vii) Loss of Estate:-              Rs.18,000/-
 (viii) Loss of Consortium:-          Rs.1,92,000/-
                                      (Rs.48,000/- per head)
   (a)     Total     Compensation Rs.6,92,508/-
           Awarded:-

14.      This amount has to be bifurcated. It is as follows:-

         The Appellant is liable to pay Rs.6,23,257.20/- (being 90% of

Rs.6,92,508/-). The Appellant has deposited Rs.18,15,562/- (Rs.5 lakh

towards the principal and remaining amount towards the interest) in

this Court. The Appellant is required to deposit remaining amount of

Rs.1,92,508/- (Rupees One Lakh Ninety Two Thousand Five

Hundred Eight) plus interest at the rate of 9% from the date of Petition

till realization.

15.      Mr.Vidyarthi has invited my attention to the portion from



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paragraph No.17. Even though the compensation calculated by the

Tribunal was Rs.7,94,300/-(Rupees Seven Lakh Ninety Four

Thousand Three Hundred), learned Advocate for the Claimants has

restricted it to Rs.5,00,000/- (Rupees Five Lakh) as claimed in the

Application and that is why Rs.5,00,000/- (Rupees Five Lakh) is

awarded by the Tribunal. Learned Advocate Shri.Vidyarthi relied upon

the observations in case of Prakash Chandra Swain and others V/s.

Bikash Gadanaik and another.4 He is right.

16.    The Respondent No.2 Shri.Tukaram Narayan Masurkar who is

the father of the deceased has expired. The submission of Mr.Vidyarthi

is the Court has to consider the dependents at the time of accident and

if any dependent has expired, the percentage of dependency will not be

affected. He relied upon the observations in case of Kirti and others

V/s. Oriental Insurance Co. Ltd.5. He is right.

17.    The Tribunal has granted interest at the rate of 9% from 1 st

November 1994 whereas,according to learned Advocate Shri.Vidyarthi,

it ought to have been 12%. He relied upon the observations in case of

Hemant Krishnanath Wadke V/s. Patheja Forging & Auto Parts

Manufacturing Co. Pvt. Ltd. and others6, wherein 12% interest was not

4   2026 ACJ 164
5   2021 ACJ 1
6   2005 ACJ 1202

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altered considering the circumstances mentioned therein. I am not

impressed by this argument. The observations are on the basis of facts

of this case.

18.      On the point of granting compensation on one head which is not

awarded by the Tribunal, he relied upon the observations in case of

United India Insurance Co. Ltd. V/s. Kunti Binod Pande and others 7.

It is held “even though there is no cross objection, the Court can grant

compensation because the duty is cast to award just compensation” . I

feel that instead of doubling the salary, the compensation as suggested

by Mr.Vidyarthi can certainly be granted. I am inclined to grant interest

at the rate of 9% considering the facts and circumstances. The

Appellant has to pay 90% of this amount. In view of that, following

order is passed:-

                               -: O R D E R :-

(a)      The Appeal is partly allowed.
(b)      The Award dated 14th February 2002 passed by the Motor
         Accident Claims Tribunal–Mumbai is modified as follows:-
         (i)    The Respondent / present Appellant is directed to pay
                Rs.1,92,508/- (Rupees One Lakh Ninety Two
                Thousand Five Hundred Eight) to the present
                Respondents / Original Claimants within 8 weeks from

7     2020 ACJ 2714

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                the date of uploading of the order along with interest at
                the rate of 9% per annum from 1st November 1994 till
                the date of payment. The amount be deposited in the
                Motor Accident Claims Tribunal, Mumbai.
       (ii)     The Claimants are directed to pay additional Court
                Fee.
       (iii) The Tribunal to apportion the amount amongst the
                Claimants.
       (iv) The amount deposited, if any, in this Court, be
                transferred to the Tribunal for disbursal after
                considering the withdrawal, if any.
       (v)      The Record and Proceeding be sent back to the
                Tribunal on priority basis.

19.    In the light of the above observations, the Appeal is disposed of.

20.    Pending Applications, if any, also stand disposed of.



                                         [S. M. MODAK, J.]




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