Bombay High Court
The State Of Maharashtra vs Smt. Geetadevi N. Holani And Ors on 3 April, 2025
HEMANT
CHANDERSEN
2025:BHC-AS:17628
SHIV
H.C. SHIV 10.fa39.01.doc
Digitally signed by
HEMANT
CHANDERSEN SHIV
Date: 2025.04.19
15:42:34 +0300 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.39 OF 2001
The State of Maharashtra ...Appellant
vs.
1. Smt. Geetadevi Narsingdas Holani
Age 39 years, w/o of the deceased ...
2. Mrs. Bhavana Radheshyam Rathi
Age 19 years, daughter of deceased ...
3. Master Gagan Narsingdas Holani
Age 16 years, son of deceased
(Through his mother and next friend
All r/o at Century Staff Quarters
E-2, Pandurang Budhkar Marg,
Mumbai ...
4. Laxminarayan Holani
Age 65 years father of deceased
r/o 161, Gumasta Nagar,
Baslaji Mandir Marg,
Indor (M.P.) ...Respondents
WITH
CROSS OBJECTION STAMP NO.5330 OF 2001
IN
FIRST APPEAL NO.39 OF 2001
The Union of India
Through Asst. Engineer (Electric)
Central Electric Sub Dvi.IV CPWD
B-5/029 1954, Ist Floor CGS Colony
S. M. Plot, Antop Hill,
Mumbai 400 037 ...Appellant
1/18
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H.C. SHIV 10.fa39.01.doc
vs.
1. Smt. Geetadevi Narsingdas Holani
Age 39 years, w/o of the deceased ...
2. Mrs. Bhavana Radheshyam Rathi
Age 19 years, daughter of deceased ...
3. Master Gagan Narsingdas Holani
Age 16 years, son of deceased
(Through his mother and next friend
All r/o at Century Staff Quarters
E-2, Pandurang Budhkar Marg,
Mumbai ...
4. Laxminarayan Holani
Age 65 years father of deceased
r/o 161, Gumasta Nagar,
Baslaji Mandir Marg,
Indor (M.P.) ...Respondents
Ms. S. G. Talhar AGP for the Appellant.
Mr. Rajesh Parab i/b D. S. Sawant for the Respondent Nos.1 to 3.
CORAM : SHYAM C. CHANDAK, J.
DATE : 03rd APRIL 2025
JUDGMENT :
. This First Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 ("the Act") by Original Opponent No.1, against the Judgment and Order dated 30/06/2000, in M.A.C. Application No.1674 of 1993 ("Claim"), passed by the Motor Accident Claims Tribunal, Mumbai thereby said claim filed by Respondent Nos.1 to 3 2/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 ::: H.C. SHIV 10.fa39.01.doc was partly allowed and the Appellant/Original Opposite party was ordered to pay to Respondent Nos.1 to 4 ("Claimants") a compensation in the sum of Rs.4,75,264/- alongwith interest at the rate of 10% per annum from January 1998 till the realisation of the amount.
2) Appeal is filed on the ground that the compensation awarded is excessive, whereas Respondent Nos.1 to 3 filed the Cross- objection claiming that the Tribunal erred in attributing contributory negligence to the deceased which resulted in awarding lesser compensation amount.
3) Record shows that the Appeal was admitted on dated 15/01/2001. Thereafter, Mr. A. J.Almeda, the learned Advocate filed his Vakalatnama dated 14/06/2001, for Respondent No.4. However, none remain present for Respondent No.4.
4) Heard Mr. Talhar, the learned AGP for the Appellant- State and Mr. Parab, the learned Advocate for Respondent Nos.1 to 3. Perused the record.
5) Facts in brief are that Respondent Nos. 1 to 4 are widow, daughter, son and father of late Narsingdas Laximinarayan Holani. On dated 21/04/1993, at about 8.30 p.m., at Prabhadevi, Respondent 3/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 ::: H.C. SHIV 10.fa39.01.doc Nos. 1 to 3 alongwith the deceased were crossing Veer Savarkar Marg to go to Siddhi Vinayak Mandir. A jeep bearing registration No.MH- 01-4082 ("jeep") came there driven in a high speed from Worli side and dashed the deceased. The deceased was thrown near the rear wheel of a BEST bus which was moving in the same direction from right side. As a result, the deceased sustained injuries. The deceased was removed to K.E.M. Hospital, however, he succumbed to the injuries before admission. It was averred that the accident occurred due to rash and negligent driving of the jeep.
5.1) It was averred that the deceased was doing service in M/s.Century Mills, Worli, Mumbai thereby he was getting monthly salary of Rs.5,500/-. The Respondents were depending on the income of the deceased. The jeep was owned by the Appellant and it was driven by the person instructed by the Appellant. Therefore, Respondent Nos.1 to 3 filed the said claim arraying Respondent No.4 as Respondent and prayed to award a compensation of Rs.8,00,000/- along with interest from the date of Application and with costs.
6) The Appellant resisted the claim by filing the written statement (Exh.7). The Appellant has not admitted and specifically denied all the material allegations and averments made in the claim. 4/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 :::
H.C. SHIV 10.fa39.01.doc The Appellant contended that at the relevant time, the jeep was proceeding to Koliwada via Napean Sea road. When the jeep reached at Prabhadevi, it was in the flow of traffic of other vehicles and BEST buses, which were on the left side of the jeep and proceeding in the same direction. When the traffic signal turned green, the jeep was about to cross the road junction, moving at the speed of 15 to 20 kms per hour. At this juncture, suddenly the deceased rushed through two BEST buses on the left and, dashed against the left mud-guard of the jeep. As a result, the deceased fell under the BEST bus and sustained injuries. Thus, the accident occurred due to negligence of the deceased. Therefore, the Appellant prayed to dismiss the claim.
7) In view of the rival pleadings, the tribunal framed the issues. To prove the claim, the claimants examined Respondent No.1 (AW1/Exh.8) and Ramkrishna Maliram Joshi, employee of M/s. Century Mills (AW2/Exh.12). The Appellant examined RW1-Krit Bahadur Thapa, driver of the jeep (Exh.18).
8) Evidence of AW1 is that at the relevant time and place, the Respondent Nos.1 to3 and the deceased were crossing the road as the traffic signal was red for vehicles and green for pedestrians. However, the jeep came there from Worli side and dashed the deceased. The 5/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 ::: H.C. SHIV 10.fa39.01.doc jeep was running in a high speed. The driver of the jeep did not give horn nor applied breaks. She deposed that due to said dash, the deceased fell down and suffered head injuries. Immediately the deceased was removed to K.E.M. hospital but he was dead. 8.1) In the cross examination, AW1 stated that she cannot say whether they were crossing from the backside of the bus or from the front side of the buses, which were passing towards Dadar. Number of vehicles were stopped due to the red signal. They were crossing the road, separately. BEST buses were going by the same road. She admitted that the jeep was not standing and it came in speed. There were no vehicles in front of the jeep. She denied that the BEST buses were ahead of the jeep. She denied that the deceased was crossing the road when two BEST buses were passing and he was in between them. She denied that due to dash by the jeep the deceased fell and the wheel of the bus ran over him. She admitted that she cannot say which part of the jeep dashed to the deceased. She denied that the accident took place because the deceased was dashed by BEST bus.
9) As against this the evidence of RW1-Krit Bahadur, is that at the relevant time, he was driving the jeep from Churchgate to Koliwada and he had arrived at Prabhadevi. There, he stopped the 6/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 ::: H.C. SHIV 10.fa39.01.doc jeep as the traffic signal was red. Thereafter, the signal turned green and the vehicles started to move in queue. He deposed that some vehicles were ahead of his jeep and some were on its back side. He deposed that some vehicles were on the left side of the road. He deposed that he was at 15 ft. distance from the signal. At that time, he heard a noise. Hence, he stopped the jeep. Then, he saw that the deceased had come under the wheel of the BEST bus. He deposed that he stopped the jeep just 2 ft. away from his starting point there. There was a distance/gap of 2 to 3 ft. between his jeep and the bus. 9.1) In the cross examination, RW1 admitted that, when he reached at Prabhadevi, there was red signal for the vehicles and green signal for pedestrian who were crossing the road; that, there was no crossing for pedestrians at the signal where their vehicles were stopped; that, the noise he heard was of the deceased; and that, he was prosecuted by the police. He denied that he was driving the jeep in speed and that front side portion of the jeep dashed the deceased.
10) In view of the aforesaid evidence, the Tribunal noted that RW1 had heard the noise of the deceased. Therefore, he stopped and got down from the jeep. Then he saw that the deceased was lying on the road between the bus and the jeep. There is no evidence except 7/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 ::: H.C. SHIV 10.fa39.01.doc suggestion of denial that the BEST bus gave dash to the deceased. The evidence of AW1 did not shatter in the cross-examination. The Tribunal observed that, the Engineer who was travelling in the jeep, was not examined. Said witness could have thrown some light about the incident. Therefore, adverse inference can be drawn. RW1 was prosecuted for the offence of the accident. Therefore, the Tribunal held that the accident occurred due to negligent driving of the jeep. 10.1) The Tribunal further held that the evidence of AW1 is completely silent as to whether they were crossing the road from Zebra crossing or not. Considering the evidence RW1, the Tribunal held that the deceased and the family members were crossing the road through vehicles. Otherwise, there was no reason for the jeep to dash the deceased from its backside. The Tribunal observed that, the FIR (Exh.11) filed by AW1 also indicates that the family was crossing the road through vehicles otherwise the deceased would not have fallen near the rear wheel of the bus. Therefore, the Tribunal held that the deceased was not crossing the road from designated place, taking care and caution. As a result, the Tribunal held that the deceased was also negligent and the negligence of the jeep and deceased was in ratio of 80 : 20.
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H.C. SHIV 10.fa39.01.doc 11) Ms. Talhar, the learned AGP submitted that RW1 clearly
deposed that, at the relevant time the traffic signal was red. Therefore, RW1 had stopped the jeep there. When the signal turn green, RW1 started moving ahead, slowly. At that time there was no signal for pedestrian. However, suddenly, the deceased came on the road passing through the buses which were to the left of the jeep and he himself dashed to the jeep. She submitted there was no zebra- crossing at the spot of the accident. Therefore, Ms. Talhar submitted that it was proved that the accident occurred only due to negligence of the deceased. However, the Tribunal held otherwise.
12) Mr. Parab, the learned Advocate for the Respondents submitted that the plea of the contributory negligence should be established by the Appellant. The Appellant failed to prove the contributory negligence. Therefore, the finding of the Tribunal that the deceased was 20% negligent, is incorrect. To substantiate this submission, Mr. Parab placed his reliance on the decision in Master Arjun Fatchand Govindani vs. Balshil Gulati & Anr.1, therein it is held that burden of proving the contributory negligence of the claimants is on the Respondents and it is not for the claimants to disprove it. Mr. Parab also relied on the decision in National Insurance Company
1. 1979 A.C.J. 92 9/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 ::: H.C. SHIV 10.fa39.01.doc Limited vs. Pranay Sethi and Others2, therein the Hon'ble Supreme Court held that "to prove the contributory negligence, there must be cogent evidence .... In the absence of any cogent evidence to prove plea of contributory negligence, the said doctrine of common law cannot be applied ...."
13) The learned Advocate for the claimants emphatically argued that there was no zebra crossing for pedestrian to cross the road from where the deceased and family were crossing the road. Therefore, the deceased and the family were crossing the road from the available place. However, in the cross examination of RW1, it has come that when RW1 reached at the signal, near the spot of accident, there was red signal for vehicles and green signal for the pedestrian to cross the road. It is generally noticed that wherever there is traffic signal for pedestrians, there is a provision of zebra-crossing. The road where accident occurred is one of the most busiest road in Mumbai. The temple of lord Ganesh is situated very close to the spot of the accident. Everyday, innumerable devotees cross the said road to go to the temple. Therefore, necessary provision of traffic signals is made there. As such, the existence of the signal for pedestrians itself is sufficient to infer that there was a zebra-crossing near the spot of the
2. AIR 2017 SC 5157 10/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 ::: H.C. SHIV 10.fa39.01.doc accident. However, AW1 has not deposed that the deceased and family was crossing the road from the zebra-crossing. AW1 has not explained as to why they did not use zebra-crossing to cross the road, even though said facility was available near the traffic signal. In the FIR AW1 herself stated that after the dash, the deceased fell near the wheel of the bus. This fact indicates that after the signal turn green, the vehicles started moving ahead. Therefore, the evidence of RW1 is acceptable that the deceased tried to cross the road through the buses. Otherwise there was no reason for the deceased to dahs the jeep and fell near the bus wheel. This fact is also discernible from the spot panchnama. However, AW1 did not refer the same. Thus, it is safe to conclude that the deceased was also responsible for the accident.
14) Be that as it may, the fact remains that when the deceased started to cross the road, he must be within the vision of RW1 because in the cross-examination, RW1 admitted that there were no vehicles in front of the jeep. Therefore, RW1 was required to drive slow down the jeep and stop. However, it appears that the jeep was running fast. Therefore, RW1 could could not control and stop it, instantly. Needless to mention that even a small dash by a fast moving four wheelers cause serious injury. However, the evidence indicates that 11/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 ::: H.C. SHIV 10.fa39.01.doc RW1 ignored that aspect while driving the jeep from the busy road. Therefore, I am in agreement with the finding recorded by the Tribunal that the negligence on the part of RW1 was higher than the deceased. However, considering the evidence as a whole, the said negligence was in the ratio 85:15.
15) AW2-Ramkrishna Joshi, was the deceased was working there as Senior Assistant with M/s. Century Mills. The evidence of AW1, AW2 coupled with the School Leaving Certificate (Exh.9) and Salary Register Extract of March & April 1993 indicates that, the deceased was aged 47 years, he was in permanent employment of M/s. Century Textiles and drawing a monthly salary of Rs.5,477/-. As stated in the Salary Certificate (Exh.15) issued by the manager of the Companion, his monthly salary was Rs.5,540/-. The aforesaid oral and documentary evidence did not meet any challenge in the cross- examination. Hence, the Tribunal correctly held that the monthly income was Rs.5,470/-, which was annually Rs.65,640/-. All the claimants were dependent on the income of the deceased. Therefore and in view of the decisions in Pranay Sethi (supra) and Sarla Verma and others vs. Delhi Transport Corporation and another 3, 30% of the established net annual income should be added towards the future
3. 2009 ACJ 1298 (SC) 12/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 ::: H.C. SHIV 10.fa39.01.doc prospects of the deceased and thereafter 1/4th from the actual net yearly income should be deducted towards the personal and living expenses of the deceased. The applicable multiplier is '13'. Thus, the loss of the dependency comes to Rs.8,31,987/-. [65,640 + 19,692 (30%) = 85,332 - 21,333 (1/4th) = 63,999/- x 13]. In view of the decision in Magma General Insurance Co. Ltd. vs. Nanu Ram Alias Chuhru Ram & Ors.4, Respondent Nos.1 to 4 are entitled to receive Rs.48,000/- each as spousal, parental and filial consortium, respectively. Additionally they are entitled to receive Rs.18,000/- towards 'funeral expenses' and Rs.18,000/- under the head 'loss to estate'. As a result, total compensation comes to Rs.10,59,987/-. Out of this amount 15% (Rs.1,58,998/-) should be deducted towards the 15% contributory negligence of the deceased. Accordingly, the claimants are entitled for the enhanced compensation as under :-
Total compensation : Rs.9,00,989/-
Compensation
awarded by the Tribunal : - Rs. 4,75,264/-
------------------
Enhanced compensation : = Rs. 4,25,725/-
------------------
16) Considering the facts and circumstances of the case, the
claimants are entitled for some interest on the compensation amount.
4. 2018 ACJ 2782 (SC) 13/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 ::: H.C. SHIV 10.fa39.01.doc There is no straight jacket formula to award the interest at a particular rate. It depends on the fact and circumstances of each case. 16.1) In this case, the claim was filed on dated 16/06/1993. There was deficit Court fee. After depositing the requisite Court fee, notice u/sec.166 of the Act was issued to the Opposite Party and the insurer. Later on, Opposite Party No.2 was deleted. The case was adjourned for one reason or the other. As noted by the Tribunal, the Applicants were not present on any date of hearing nor they pressed the matter before the Tribunal for trial. The evidence was started in the year 1999. Therefore, the Tribunal granted the interest from January 1998 at the rate of 10% per annum.
16.2) It appears that the deceased was earning less and shouldering the responsibility of 4 members. The family was residing in Mumbai, where, normally, the personal and living expenses are on higher side. The Respondent No.1 was doing household, Nos.2 and 3 were minor and No.4 was aged. Therefore, it is probable that they could not pay the entire Court fee at a time. As noted above, the claim was filed on dated 16.06.1993 and decided on dated 30/06/2000, i.e., after 7 years. As per the Order of the Tribunal, the claimants got the interest for 3 years and 6 months at the rate of 10% per annuam. As 14/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 ::: H.C. SHIV 10.fa39.01.doc such, the claimants received an average interest at the rate of 5% per annum. However, the Tribunal has not explained in detail as to why the case was adjourned for one reason or the other and how the claimants or their absence alone was responsible on every occasion of the adjournments from 1994 to 1997. The roznamas of the case indicates that on some occasions, longer dates were given in the claim. Needless to mention that an insurer is liable to pay "just compensation" immediately after the accident. However, the Tribunal did not consider as to how the claimants widow, minor children and aged father survived in Mumbai after losing the sole earning member. 16.3) In Abati Bezbaruah vs Dy. Director General Geological Survey5, the Hon'ble Supreme Court in paragraph 18 observed that ;-
"... No rate of interest is fixed under Section 171 of the Motor Vehicles Act, 1988. Varying rates of interest are being awarded by Tribunals, High Courts and the Supreme Court. Interest can be granted even if claimant does not specifically plead for the same as it is consequential in the eye of law. Interest is compensation for forbearance or detention of money and that interest being awarded to a party only for being kept him out of the money which ought to have been paid to him. No principle could be deduced nor any rate of interest can be fixed to have a general application in motor
5. 2003 SCC OnLine SC 216 15/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 ::: H.C. SHIV 10.fa39.01.doc accident claim cases having regard to nature of provision under Section 171 giving discretion to Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions, mercantile usage and doctrine of equity. Neither Section 34 CPC nor Section 4-A (3) of the Workmen's Compensation Act are applicable in the matter of fixing rate of interest in a claim under the Motor Vehicles Act. The courts have awarded the interest at different rates depending upon the facts and circumstances of each case. Therefore, in my opinion, there cannot be any hard and fast rule. in awarding interest and the award of interest is solely on the discretion of the Tribunal or the High Court as indicated above."
16.4) In view thereof, it would be just and reasonable to grant the interest at the rate of 7.5 % per annum from the date of the claim till realisation of the amount, in the interest of the justice.
17) Upshot of the above discussion is that the Tribunal rightly held that the accident in question occurred only due to rash and negligent driving of the lorry. However, the Tribunal erred in ascribing 20% contributory negligence to the deceased, which should have been held as 15%. No compensation was awarded towards the future prospects of the deceased. Similarly, the Tribunal erred in holding the claimants responsible for the delay in adjudication of the claim, which led to grant of lesser interest. As a result, "just 16/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 ::: H.C. SHIV 10.fa39.01.doc compensation" was not awarded. Therefore, and considering the reported decisions referred above, the claimants are entitled to get the compensation as quantified above alongwith the interest. 17.1) In view thereof, the Appeal is liable to be dismissed and the Cross-objection deserves to be allowed, accordingly. Looking at the facts and circumstances of the case, the Appellant shall bear the costs of the Appeal and the Cross-objection.
18) Hence following Order is passed.
(i) First Appeal is dismissed with proportionate costs.
(ii) The Cross-Objection is partly allowed with costs.
(iii) The impugned Judgment and Order dated
30/06/2000, in M.A.C. Application No.1674 of 1993, passed by the Motor Accident Claims Tribunal, Mumbai is modified.
(iv) The Appellant shall pay the compensation of Rs.9,00,989/- (inclusive of NFL amount) together with interest thereon at the rate of 7.5 % per annum from the date of the claim petition till realisation of the amount.
(v) The Appellant is directed to comply with this Judgment and Order within a period of four months from this Order, by depositing the amount in the Tribunal. 17/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 :::
H.C. SHIV 10.fa39.01.doc
(vi) The Appellant will be entitled to adjustment of the
amount against the already paid under the impugned Award.
(vii) On deposit of the amount the Tribunal shall immediately inform the Appellants and call upon them to collect the said amount. However, the deposited amount shall not be invested for a period eight weeks form the date of the deposit. If the amount is not withdrawn within the period of the eight weeks, then the Tribunal will be at liberty to invest the same.
(viii) The entire amount of the enhanced compensation alongwith interest shall be equally paid to the claimants, in the ratio 70:10:10:10, subject to payment of deficit Court fee, if any.
(ix) Record and Proceedings of the Tribunal shall be immediately sent back.
(SHYAM C. CHANDAK, J.) 18/18 ::: Uploaded on - 19/04/2025 ::: Downloaded on - 26/04/2025 01:57:52 :::