Mahesh M. Kakkad, Vs 1. Santosh Moteshwar Rakvi and Anr.

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A-902-FA-1579-2011.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. 1579 OF 2011

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National Insurance Company Ltd.Appellant
Regional Office No.2, Sterling Cinema Building (Original
5th Floor, 65 Murzban Street, Fort, …Opponent
Mumbai-400 001No.2)
 Versus
1Shri. Mahesh M. Kakkad(Original
Residing at B-208, Rishabh Apartment No.1Applicant)
Above Veena Hotel, Bhayander – West, ...
Pin : 401 101
2Mr. Santosh Moteshwar Rakvi
(office) Ananda Shree Ram Mandir Road
Bhayander - West
Residence at : 108, Mohan Shankar Kutir
Rly Phatak – Police Station Road
Bhayander – West, Pin – 401 101(Original
(As per Court’s order dt. 26.4.24 F.A. abated Opposite
against R.No.2)…No.1)

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WITH

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FIRST APPEAL NO. 61 OF 2011

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Mahesh M. Kakkad

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Age 37 years, Residing at B-208, Rishabh
Apartments No.1, Above Veena Hotel, Bhayander,
Pin-401101
(Original Applicant)… Appellant
 Versus
1Mr. Santosh Moteshwar Rakvi
Off. Anand Shree, Ram Mandir Road,
Bhayander (West) – 401 101
AND
Res. Mohand Shankar Kutir,
Rly. Phatak Police Station Road, Bhayander
(West)- 401 101
2National Insurance Co. Ltd.
Reg. Off : Sterling Cinema Bldg., Murzbaan Path,

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Corrected/modified as per speaking to minutes of order dated 24.04.2024 1/9

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A-902-FA-1579-2011.doc

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S.S.Kilaje

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Fort, Mumbai -400 001
(Original Insurer)

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...Respondents

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Mr. Rahul Mehta i/b. KMC Legal Venture for Appellant in FA/1579/2011
and for Respondent No.2 in FA/61/2011.
Mr. Rahul D. Motkari a/w. Ms. Manasi Pawar, Advocate for Appellant in
FA/61/2011 and for Respondent No.1 in FA/1579/2011.

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CORAM : SHIVKUMAR DIGE, J. DATE : 4^th APRIL, 2024

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ORAL JUDGMENT :

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1.The appellant/ insurance company has preferred this appeal
against the Judgment and Order passed by the Motor Accident Claims
Tribunal, Mumbai (for short “the Tribunal”). The claimant has also
preferred cross appeal for enhancement of compensation. As appeal and
cross appeal are against the same Judgment and Order, I am deciding it by
this common Judgment.

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2.It is contention of learned counsel for appellant that accident
occurred due to sole negligence of the claimant but the Tribunal has not
considered this fact. Learned counsel further submitted that the Tribunal
has considered yearly income of the claimant at Rs.1,00,000/- without any
evidence on record which is on higher side. Learned counsel further
submitted that the Tribunal has awarded medical expenses without any
evidence on record. Learned Counsel further submitted that the Tribunal
has awarded compensation on higher side under other heads without any
evidence, hence requested to allow the appeal.

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Corrected/modified as per speaking to minutes of order dated 24.04.2024 2/9

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S.S.KilajeA-902-FA-1579-2011.doc

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3.It is contention of learned counsel for respondent/claimant that
claimant was working as a Senior Fabric Co-ordinator and he was earning
Rs.11,500/- per month. The income tax returns are filed on record to
prove the income of the claimant. Learned counsel further submitted that
accident occurred due to sole negligence of driver of offending vehicle.
The offence was registered against the driver of offending vehicle. To
prove the negligence of claimant, the driver of offending vehicle did not
enter into the witness box. Learned counsel further submitted that due to
accidental injuries the claimant has suffered 80% permanent physical
disability, his right leg is amputated. Though, the claimant has suffered
80% permanent physical disability his functional disability is 100%. He is
suffering from ailment of incontinence due to which the claimant has no
control on his urination and motion. He has to use diaper constantly. He
further submitted that due to disability, 24 hours attendance is required to
the claimant but the Tribunal has not considered this fact and awarded
compensation on lower side. Hence, requested to allow the cross appeal
and dismiss the appeal filed by the Insurance Company.

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4.I have heard both the learned counsel. Perused the Judgment
and Order passed by the Tribunal and written submissions filed by both
the learned counsel. It is claimant’s case that on 19.12.2000 at about 8:30
p.m. the claimant was returning to his home on motorcycle, he was riding

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Corrected/modified as per speaking to minutes of order dated 24.04.2024 3/9

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A-902-FA-1579-2011.doc

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S.S.Kilaje

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the motorcycle with due care and caution. When he reached near Sai
Petrol Pump, one Tanker bearing No.MH-04-H-3065 came in high and
excessive speed. The driver of offending tanker was driving it in a rash
and negligent manner. The offending tanker gave dash to the motorcycle
from back side, due to forceful dash the claimant crushed on the road and
sustained multiple injuries. The offcence was registered against the driver
of offending tanker. It appears from the record that the information of the
accident was given to the police by driver of offending tanker. In the said
information he has stated that when he was proceeding on the road, the
claimant was riding on motorcycle on left side of the tanker, at that time
the motorcycle of the claimant came under the rear wheel of the tanker
and the claimant was injured. After the information, police made an
enquiry about the incident and thereafter police registered offence against
the driver of offending tanker. The spot panchanama of accident is at
Exhibit-20-A. It shows that the driver of offending tanker had given false
information to the police about the accident. To prove the negligence of
driver of tanker, the claimant has examined himself. He has stated that
the driver of offending tanker gave dash to his motorcycle from back side
due to which accident occurred. Nothing elicited in cross examination of
the claimant to show that accident occurred due to his negligence. The
statement of claimant is supported by the police papers. Moreover, to

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Corrected/modified as per speaking to minutes of order dated 24.04.2024 4/9

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S.S.KilajeA-902-FA-1579-2011.doc

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prove the negligence of the claimant, driver of offending tanker did not
step into the witness box, hence, I do not see merit in the contention of
learned counsel for the appellant/Insurance company that accident
occurred due to contributory negligence or sole negligence of the claimant.
5.To prove the income, the claimant has examined himself. He
has stated that at the time of accident he was working as a Senior Fabric
Coordinator with Star Plus Holding Co. and he was earning salary of
Rs.11,500/- per month. He has produced income tax returns of year
1997-98, 1998-99, 1999-2000, 2000-01 to prove the income. In support of
his evidence the claimant has examined AW-3 Vishwas Lele at Exhibit-33,
he has stated that he was Manager H.R. and Admn., in Sonal Garments.
He further stated that the claimant was working in their company and was
drawing salary of Rs.11,500/- per month. He has further stated that
earlier their company’s name was Star Plus Holding but later on name of
Star Plus Holding Company has changed to Sonal Garments. Nothing
elicited in the cross examination of this witness.

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The claimant has examined AW-2 Yogesh Motani, Chartered
Accountant at Exhibit-16. He has stated that claimant was his client and
he used to file income tax returns of the claimant. He produced income
tax returns of the claimant for the year 1996-1997 to 2000-2001. In cross
examination he has admitted that the returns are prepared under the

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Corrected/modified as per speaking to minutes of order dated 24.04.2024 5/9

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A-902-FA-1579-2011.doc

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S.S.Kilaje

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guidance of his father by his employee. While dealing with the issue of
income of the claimant, the Tribunal has observed that income tax returns
produced on record shows the yearly gross income of the claimant was
Rs.1,00,000/-, on that basis the Tribunal has considered yearly income of
the claimant at Rs.1,00,000/-. I am unable to understand the observations
of the Tribunal as it has come on record that the claimant was working as
a Senior Fabric Coordinator and he was getting salary of Rs.11,500/- per
month. AW-3 supports the contention of the claimant. The income tax
returns produced on record shows the salary income, it is mentioned in
the income tax returns, hence I am considering Rs.11,500/- per month as
income of the claimant. At this stage, learned counsel for the
appellant/Insurance company vehemently submits that there should be
deduction from the salary income of professional tax and income tax,
hence requested for deduction of the amount. Considering his submission,
I am considering Rs.11,000/- as monthly income of the claimant.

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To prove the disability the claimant has examined Dr. Shriram
Joshi and Dr. T. Shridhar they have stated that due to accidental injuries
the claimant has suffered more than 80% disability. The Tribunal has
considered disability at 60%. Due to accidental injuries right leg of the
claimant has been amputated, though the claimant has suffered 80%
disability, the claimant has stated that his functional disability is 100% as

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Corrected/modified as per speaking to minutes of order dated 24.04.2024 6/9

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A-902-FA-1579-2011.doc

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S.S.Kilaje

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he unable to do any work without any support, he has lost his job, due to
disability. Moreover, the claimant has suffered injuries to other parts of
his body i.e. uretheral injury, rectal injury, central fracture dislocation
(Left) hip, Multiple fracture of pelvis, acetabulam (left) and (right), pubic
symphisis separation, Fracture iliac wing (Lt), Crushing of (Rt) lower limb
where it has become a mangled mass of flesh nonviable & non-salvageable
amputation (disarticulation) at the (Rt) hip joint. Pubic symphysis had
plate fixation and (rt) acetabulation and single screw fixation along with
amputation. Considering these injuries it appears that the claimant has
suffered 100% functional disability. Hence, I am considering 100%
functional disability.

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The Tribunal has not awarded future prospects. As per the
view of the Hon'ble Apex Court in the case of National Insurance Co. Ltd.
vs. Pranay Sethi reported in 2017 ACJ 2700 (SC), the claimant is entitled
for 50% future prospectus. The Tribunal has not awarded amount for
future medial expenses as the claimant requires three diapers everyday, he
is on medication, hence, I am considering Rs.8,00,000/- for future medical
expenses. The claimant’s right leg is amputated from joint hip hence, I am
considering Rs.15,00,000/- for prosthetic leg. The claimant requires
attendant for 24 hours, hence I am considering Rs.7,00,000/- for
attendance charges for life long as the claimant has to hire one person as

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Corrected/modified as per speaking to minutes of order dated 24.04.2024 7/9

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A-902-FA-1579-2011.doc

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S.S.Kilaje

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attendant. The Tribunal has awarded Rs.75,000/- for special diet and
conveyance. It has come on record that claimant was admitted in various
hospitals for taking treatment and he was admitted in the hospital for
couple of months. He is required to take special diet in future also hence,
I am considering Rs.5,00,000/- for special diet and for conveyance. The
Tribunal has awarded Rs.1,50,000/- for loss of amenities and discomforts,
I am considering additional Rs.1,00,000/-.

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6.Considering the above calculations, the claimant is entitled for

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following compensation:

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`Particulars`	`Rs.`	`Entitlement`
`Medical Expenses`	`Rs.`	`11,00,000.00`
`Loss of Income (disability 100%)`	`Rs.`	`31,68,000.00`
`Future medical expenses`	`Rs.`	`8,00,000.00`
`Prosthetic cost+ undue maintenance`	`Rs.`	`15,00,000.00`
`Attendant charge (Rs.5,000per month)`	`Rs.`	`7,00,000.00`
`Pain and suffering`	`Rs.`	`6,00,000.00`
`Special Diet`	`Rs.`	`2,00,000.00`
`Loss of conveyance`	`Rs.`	`3,00,000.00`
`Loss of amenities & discomforts`	`Rs.`	`2,50,000.00`
`Total`	`Rs.`	`86,18,000.00`
`Less compensation awarded by the Tribunal`	`Rs.`	`31,80,000.00`
`Total Balance`	`Rs.`	`54,38,000.00`

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 The claimant is entitled for an enhanced amount of Rs.54,38,000/-

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along with interest @7.5% per annum.

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Corrected/modified as per speaking to minutes of order dated 24.04.2024 8/9

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A-902-FA-1579-2011.doc

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S.S.Kilaje

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

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O R D E R

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i. First Appeal No. 1579 of 2011 is dismissed.

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ii.Cross Appeal No. 61 of 2011 is allowed.

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iii.The claimant is entitled for enhanced compensation of
Rs.54,38,000/- @ 7.5 % interest per annum from date of filing
of claim petition till realisation of amount.

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iv. Appellant/Insurance Company shall deposit enhanced amount along with interest within 12 weeks after receipt of the order.

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v. The claimant is permitted to withdraw the deposited amount along with accrued interest thereon.

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vi. The claimant shall pay deficit court fees on enhanced amount as per rule.

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vii. Statutory amount in F.A. No. 1579 of 2011 along with interest be transferred to the Tribunal. The parties are at liberty to withdraw it as per Rule.

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viii.All pending Civil / Interim Applications are disposed of.

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 (SHIVKUMAR DIGE, J.)

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Digitally signed SONALI by SONALISATISH KILAJE SATISH Date:2024.04.25 KILAJE 15:31:00+0530

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Corrected/modified as per speaking to minutes of order dated 24.04.2024 9/9

Mahesh M. Kakkad, v. 1. Santosh Moteshwar Rakvi and Anr.

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Mahesh M. Kakkad, v. 1. Santosh Moteshwar Rakvi and Anr.

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