United India Insurance Company Limited Vs Smt. Rajnidevi Gopal Mohta and Ors.

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15-fa-110-2023.doc

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S.S.Kilaje

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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FIRST APPEAL NO. 110 OF 2023

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United India Insurance Company Limited Appellant
Motor Third Claim Party Hub /Original
5th Floor, Sterling Cinema Building Opposite
65, Murzban Road, Mumbai – 400 001 Party No.2.
 Versus
1. Rajnidevi Gopal Mohta
 Age : 30 years, Occ : Housewife
2. Nikita Gopal Mohta
 Age : 4 years, Occ : Student
3. Nikhil Gopal Mohta
 Age : 2 years, Occ : NIL
4. Kanhaiyalal Narayandas Mohta
 Age : 68 years, Occ : Housewife
5. Sarojdevi Kanhaiyalal Mohta
 Age : 60 years, Occ: Housewife
 (Applicant Nos. 2 and 3 are minors, hence they
 are represented by the Applicant No.1 – Rajnidevi
 Gopal Mohta being their mother and natural Original
 guardian) Applicant
 All R/at B-6, R. No. 303, 3rd Floor, Nos.1 to 5
 Vedant Complex, Vartaknagar, Thane

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6. Tribhivan P. Vishwakarma
 Pyarelal Yadav Chawl, Vijaynagar Pipeline,
 Vartaknagar, Thane
 (Owner of Bajaj M-80 Scooter No.: MH-05/Q-
 4299)

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 Original
 Opposite
 Party No.1.
 Respondents

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Mr. Rahul Mehta i/b. KMC Legal Venture, Advocate for the Appellant.
Mr. S. P. Shetty i/b. Ms. Deepti B. Mistry, Advocate for Respondent Nos. 1
to 5.

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15-fa-110-2023.doc

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S.S.Kilaje

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 CORAM : SHIVKUMAR DIGE, J.
 DATE : 18th DECEMBER, 2023

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JUDGMENT :

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1.The issues involved in this appeal are, there was contributory
negligence of the deceased in the said accident and the Tribunal has
considered income of deceased on higher side and compensation awarded
under other heads are on higher side.

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2.It is the contention of learned counsel for appellant that at the
time of accident the deceased was riding the motorcycle and there was
head on collusion between two motorcycles but the Tribunal has
considered negligence of the deceased only 25% it should be 50%. The
accident caused due to sole negligence of the deceased but it was not
considered by the Tribunal. Learned counsel further submitted that that
the Tribunal has considered monthly income of deceased at Rs.1,07,629/-
without any evidence on record, it is on higher side. He further submitted
that the Tribunal has awarded Rs.4,25,000/- under the other heads i.e.
consortium and love and affection which is on higher side, hence
requested to allow the appeal.

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3.It is contention of learned counsel for the respondent Nos.1 to 5/
claimants that offence was registered against the rider of offending
motorcycle. No evidence was laid before the Tribunal by the appellant to
prove the negligence of the deceased. In spite of that, the Tribunal has

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S.S.Kilaje

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erroneously fixed 25% contributory negligence on deceased, as claimants
did not want to prolong the matter hence, they have not filed appeal
against the said finding. Learned counsel further submitted that the
deceased was working with T.C.S. as an Assistant Consultant since
11.08.1997 and his monthly salary was of Rs.1,07,629/-. The income tax
returns of the deceased are filed on record, on that basis the Tribunal has
considered monthly income of deceased which is proper. Learned counsel
further submitted that the Tribunal has awarded consortium amount as
per the evidence on record and no interference is required in it.

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4.I have heard both the learned counsel. Perused the Judgment
and Order passed by the Motor Accident Claims Tribunal, Thane (for short
“the Tribunal”). It is claimant’s case that on 31.03.2007 at about 10:15
a.m. the deceased was proceeding on Honda Scooter No. MH-31/AY-4878
and he was riding scooter with moderate speed with due care and caution.
When he near Nirmaladevi Dighe Hospital, at that time one Bajaj M-80
Scooter MH-05/Q-94299 which was coming from opposite direction came
in high and excessive speed in rash and negligent manner. The rider of the
said M-80 scooter lost control of his vehicle and dashed against the scooter
of the deceased. The dash was so severe that the deceased was thrown

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away and fell down on the road, due to which deceased sustained multiple
injuries and he succumbed to injuries. The offence was registered against

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S.S.Kilaje

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the rider of M-80 Scooter. The claimants have examined Ganesh Sharma
who was eye witness to the said accident. He has stated that the accident
caused due to negligence of the rider of the M-80 Scooter. Mr. Subhash
Apte, another eye witness has stated that he saw the accident and it was
caused due to negligence of rider of M-80 Scooter. Defendant examined
DW-1 S. C. Vishwakarma, the rider of M-80 Scooter examined. He has
stated that on 31.03.2007 he was proceeding from his shop, when he
reached opposite Nirmaladevi Dighe Hospital he saw that one Activa
Scooter was coming from opposite direction. To avoid collusion, he
applied break but it was in vain and the said scooter dashed his M-80
scooter. He further submitted that the said accident caused due to
negligence of deceased. In cross examination, he stated that he had seen
the rider of Activa Scooter from distance at about 40 ft. and he was trying
to overtake the rickshaw after honking. He has also admitted that he did
not overtake the rickshaw because it was being driven slowly. There was
also a pillion rider with him.

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5. Considering the evidence on record the Tribunal has considered
contributory negligence of 75% of rider of M-80 Scooter and 25% of
deceased. In my view, considering the evidence of eye witnesses who are
independent witnesses the Tribunal has wrongly considered 25%
negligence of the deceased, which is not proper, but the claimants have

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S.S.Kilaje

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not challenged the contributory negligence of deceased as they do not
want to prolong the matter, hence I am considering issue of negligence as
per the observations of the Tribunal. In respect of the issue of income
claimants have examined PW-1 K.N.Mohta, he has stated that deceased
was his son and he was working as an Assistant Consultant with TATA
Consultancy Services (T.C.S.) and was getting salary of Rs.1,07,629/-. He
has produced income tax returns of the deceased for the year 2004-2005,
2005-2006 and 2006-2007. These are at Exhibit-36/1 to 36/3. The salary
slip of deceased is at Exhibit-35. Nothing elicited in the cross examination
of this witness.

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6.In support of evidence of PW-1, claimants have examined PW-2
Sanket Acharya, Senior Executive with TCS, Andheri, he has stated that
deceased was employee of TCS and was getting salary of Rs.1,07,629/-.
Considering the evidence on record the Tribunal has considered annual
income of deceased at Rs.6,55,000/- after deducting income tax returns
and other taxes, I do not find any infirmity in it.

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In respect of the other heads, the Tribunal has awarded
Rs.1,00,000/- for loss of consortium, Rs.2,00,000/- for loss of love and
affection and care and guidance to minor children (Rs.1,00,000/- each).
Total comes to Rs.4,25,000/-. As per the view of Hon’ble Apex Court in
the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram1, each

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1 2018 ACJ 2782 (SC)

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S.S.Kilaje

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claimant is entitled for Rs.48,000/- as consortium, there are five claimants,
it comes to Rs.2,40,000/- as consortium amount, Rs.16,500/- towards
funeral expenses and Rs.16,500/- towards loss of estate it comes to
Rs.33,000/-. The total compensation comes to Rs. 2,76,000/-. If this
amount deducted from the amount considered by the Tribunal i.e.
Rs.4,25,000/-, it comes to Rs.1,49,000/-. The respondent Nos.1 to 5/
claimants are entitled for this amount.

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7. In view of above, I pass following Order:

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i. The appeal is partly allowed.

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ii. The appellant is permitted to withdraw Rs.1,49,000/-

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out of deposited amount with proportionate interest.

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iii.The respondent Nos.1 to 5/ claimants are permitted to

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withdraw balance deposited amount along with
accrued interest thereon.

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iv.Statutory amount be transmitted to the Tribunal. The

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parties are at liberty to withdraw it as per Rule.

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v. Pending applications, if any, stand disposed off.

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8.The appeal is disposed off.

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Digitally signed SONALI by SONALISATISH KILAJE SATISH Date:2023.12.23 KILAJE 19:07:54+0530

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 (SHIVKUMAR DIGE, J.)

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United India Insurance Company Limited v. Smt. Rajnidevi Gopal Mohta and Ors.

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United India Insurance Company Limited v. Smt. Rajnidevi Gopal Mohta and Ors.

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