Allowed

Sangeeta W/O.Prakash Sawaskar and Ors. v. Dhanaji Limba Markad and Ors.

Bombay HC16 Jan 2024FA/602/2005

Case brief

AI extract

What is this about?

This first appeal allowed the appellants as motor accident claimants. The court held the truck driver solely negligent for failing to use parking lights while stationary in the dark, reversing the Tribunal. Compensation was enhanced to Rs. 21,66,000 with interest.

What did the court decide?

Compensation of Rs. 21,66,000 with 7.5% interest from filing date until realization, to be deposited by insurance company.

Sangeeta W/O.Prakash Sawaskar and Ors. Vs Dhanaji Limba… — Motor Accident Claims | Bombay HC (2024)

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58-FA-602-05-Judgment.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. 602 OF 2005

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1. Sangeeta w/o. Prakash Sawaskar

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Age 37 years, Occupation Household

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2. Kadambari d/o. Prakash Sawaskar Age 22 years, Occupation Education

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3. Ashutosh s/o. Prakash Sawaskar Age 13 years, Minor through her mother guardian Appellant No.1 above

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4. Jijabai w/o. Baliram Sawaskar Age 65 years, Occupation Household 5. Baliram Sopan Sawaskar Age 75 years, Occu. Nil, All residing at 16, New Laxmi Peth, Degaon Road, Solapur 5a. Jaijabai w/o. Baliram Sawaskar Age 71 years, Occupation Household 5b. Shakuntala Manohar Kewale Age 56 years, Occupation Govt. Service, R/at. 3/Ground Floor, Vishwashruti Apartment, V. M. Purav Marge, Gulmohar Lane, Sion-Chunabhatti, Mumbai – 400 022 5c. Surekha Krushnaji Abhange Age 52 years, Occupation Govt. Service, R/at. A-8/2, Govt. Quarter, Bandra (E), Mumbai-400 051

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5d. Shobha Shantaram Wankhede
 Age 47 years, Occupation Housewife
 R/at. A/4, Humayun Mahal, BSNL Officers
 Quarters, Motlibai Street, Agripada, Mumbai-11
5e. Shubhas Baliram Sawaskar
 Age 54 years, Occu. Service
 R/at. 24/1, Rly. Lines, Narmada Apts, Solapur
5f. Pandurange Baliram Sawaskar
 Age 46 years, Occupation Business
 R/at. 24/1, Rly. Lines, Narmada Apts, Solapur
 Amendment carried out on 16/07/2013 as per
 court order dt. 5/7/2013 in Civil Application No.
 878 of 2012 in First Appeal No. 602 of 2005

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… Appellants

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58-FA-602-05-Judgment.doc

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S.S.Kilaje

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Versus

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1. Dhanaji Limba Markad

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Age Adult, Occupation Driver, Residing at and Taluka Madha, District Solapur

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2. Shankar Kundlik Bhange

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Age adult, Occupation Transport, Residing at Shukrawar Peth, Madha,

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Taluka Madha, District Solapur

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3. The Oriental Insurance Co. Ltd.

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442, West Mangalwar Peth, Solapur ...Respondents

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Mr. Ashok B. Tajane a/w. Mr. Yogesh G. Thorat, Advocate for the
Appellants.

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Ms. Jyoti Bajpayee, Advocate for Respondent No.3.

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 CORAM : SHIVKUMAR DIGE, J.
 DATE : 16th JANUARY, 2024.

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JUDGMENT :

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1. This appeal is preferred by the appellants/claimants against the dismissal of the claim petition.

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2.It is claimants’ case that on 09.09.1996 the deceased Prakash
Sawaskar along with his friend Noormohammod and others were coming
from Solapur in his Maruti van bearing Registration No. AP-13/A-6107.
The deceased was driving the car. At around 0:15 a.m., Maruti van
dashed against the stationary truck bearing registration No. MHC-6051 on
its rear side. The said truck was stationed in the middle of the road
without tail lamp, blinkers and reflectors. In the said accident three
occupants of the van including Prakash Sawaskar died on the spot.

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58-FA-602-05-Judgment.doc

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S.S.Kilaje

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3.It is the contention of learned counsel for the appellants / claimants
that the truck was stationed in the middle of road without putting parking
lights or indicators on. The accident occurred in the midnight, due to
dark, the applicant could not see the stationed truck and dashed it from
the back side. The driver of the truck did not put reflectors and indicators
of the said truck on, the accident occurred due to sole negligence of the
driver of the said truck. But this fact is not considered by the Tribunal.
Learned counsel further submitted that at the time of accident deceased
was 35 year old and he was partner in M/s. Isskar Group and was earning
Rs.80,000/- per year, he was also proprietor of Sai Pest Control and was
earning Rs.50,000/- per year as a net profit from Sai Pest Control. He was
also building contractor and was getting income from it. The total annual
income of deceased per year was Rs.1,90,000/-. Hence requested to allow
the appeal.

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4.It is the contention of learned counsel for the respondent
No.3/Insurance Company that accident occurred due to negligence of the
deceased as he had dashed the stationed truck from back side. The
offence was registered against the deceased. The Tribunal has considered
all the aspects and on that basis Judgment and Order is passed and no
interference required in it.

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5. I have heard both the learned counsel. Perused the Judgment and

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58-FA-602-05-Judgment.doc

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S.S.Kilaje

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Order passed by the Motor Accident Claims Tribunal, Solapur (for short
“the Tribunal”). While dismissing the claim petition the Tribunal has
observed that accident occurred due to negligence of the deceased as he
dashed the stationed truck on the back side. I am unable to understand
the observations of the Tribunal as admittedly the truck was stationed in
the middle of the road and accident occurred at midnight, no parking
lights or indicators of the said truck were put on. No precautionary
measures were taken by the truck driver to indicate that the truck was
stationed on the road. The truck driver did not step into the witness box
to prove that he had taken precautionary measures when truck was
stationed on the road.

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As per the Central Vehicles Rules when any vehicle stationed on
road proper precautions are necessary to be taken. It reads thus:

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[109. Parking light : Every construction equipment
vehicle, combine harvester and motor vehicle] and every
motor vehicle other than motor cycles and three
wheeled invalid carriages shall be provided with one
white or amber parking light on each side in the front.
In addition to the front lights, two red parking lights one
on each side in the rear shall be provided. The front and
rear parking lights shall remain lit even when the vehicle
is kept stationary on the road:

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Provided that these rear lamps can be the same as the
rear lamps referred to in rule 105 sub-rule (2):
[Provided also that construction equipment vehicles
[and combined harvesters], which are installed with
food light lamps or sport lights at the front, rear or side
of the vehicle for their off–highway or construction
operations, shall have separate control for such lamps or
lights and these shall be permanently switched off when
the vehicle is travelling on the road.]

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58-FA-602-05-Judgment.doc

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S.S.Kilaje

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This rule indicates that it was obligatory on the driver of the
truck to put indicators or parking lights of the truck on when it is stationed
on the road but it was not done in the present case. Hence, I hold that
accident occurred due to sole negligence of the truck driver. It is
contention of learned counsel for the respondent No.3 that truck was
stationed on road due to accident. In my view, though accident occurred,
it does not mean that driver of the truck cannot take precautionary
measures as per the provisions of Central Vehicles Rules when truck
stationed on road, the driver must have taken precautionary measures. To
prove the income of the deceased the claimants have examined six
witnesses. It has come in the evidence of claimant No.1 that the deceased
was doing various business from it, he was earning Rs.1,80,000/- per
annum. Witnesses have stated that deceased was doing business of pest
control and building contractorship. Considering the evidence on record, I
am considering Rs. 10,000/- as notional monthly income of the deceased.
At the time of accident deceased was 38 year old hence proper multiplier
is 15. There are five claimants. As per the view of the Hon’ble Apex Court
in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram1, each
claimant is entitled for Rs.48,000/- as consortium amount, Rs.18,000/- for
loss of estate and Rs.18,000/- for funeral expenses.

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6. Considering the above calculations, the claimants are entitled for 1 2018 ACJ 2782 (SC)

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58-FA-602-05-Judgment.doc

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S.S.Kilaje

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following compensation:

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`Particulars`	`Rs.`	`Entitlement`
`Monthly Income`	`Rs.`	`10,000.00`
`40% Futureprospects`	`Rs.`	`4,000.00`
`Total`	`Rs.`	`14,000.00`
`Yearly Income -Rs. 14,000 X 12`	`Rs.`	`1,68,000.00`
`1/4`^th`Deduction for living expenses` `(Rs.1,68,000/- - Rs.42,000/-)`	`Rs.`	`1,26,000.00`
`Multiplier (Rs. 1,26,000 X 15)`	`Rs.`	`18,90,000.00`
`Total Income`	`Rs.`	`18,90,000.00`
`Loss of Consortium (Rs.48,000 X 5)`	`Rs.`	`2,40,000.00`
`Funeral Expenses`	`Rs.`	`18,000.00`
`Loss of Estate`	`Rs.`	`18,000.00`
	`Rs.`	`2,76,000.00`
`Total Compensation`	`Rs.`	`21,66,000.00`

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 The claimants are entitled for compensation of Rs.21,66,000/-.

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7. In view of the above, I pass the following order :

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O R D E R

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i. The appeal is allowed.

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ii. The claimants are entitled for the amount of Rs.
Rs.21,66,000/- @ 7.5 interest per annum from the date of
filing of claim petition till realisation of the amount. Out of
this amount, Rs.2,76,000/- is for consortium amount,
funeral expenses and loss of estate, the claimants are
entitled for 7.5% interest per annum on this amount from

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58-FA-602-05-Judgment.doc

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S.S.Kilaje

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1st November, 2017 till realisation of the amount.

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iii. The respondent No.3/ Insurance Company shall deposit the
enhanced amount along with interest within six weeks after
receipt of the order.

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iv. The claimants are permitted to withdraw amount deposited
amount along with accrued interest thereon. Out of the
total compensation amount, the claimant Nos.1 to 3 are
entitled to withdraw 75% amount. Learned counsel for
appellants submits that original claimant No.5 is no more
and the claimant No.4 is staying with appellants/claimants.
The claimant No.4 is entitled to withdraw 25% amount out
of deposited amount along with accrued interest thereon.

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8. The appeal is disposed of.

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Digitally signed SONALI by SONALISATISH KILAJE SATISH Date: 2024.02.08 KILAJE 10:46:56+0530

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 (SHIVKUMAR DIGE, J.)

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Sangeeta W/O.Prakash Sawaskar and Ors. v. Dhanaji Limba Markad and Ors.

Case brief

What is this about?

What did the court decide?

Sangeeta W/O.Prakash Sawaskar and Ors. v. Dhanaji Limba Markad and Ors.

Case brief

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