Bombay High Court
Bajaj Allianz General Insurance Co. ... vs Geetaben Jitendrakumar @ Jitu ... on 17 November, 2025
2025:BHC-AS:50391
S.S.Kilaje 9-FA-822-2023-Judgment-2025 (C).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 822 OF 2023
Bajaj Allianz General Insurance Co. Ltd.
6th Floor, Sun Magnetica, Service Road,
Near New RTO, Luiswadi, Teen Haath Naka,
Thane (W) - 400 604 ... Appellant
Versus
1 Geetaben Jitendrakumar @ Jitu Vithalbhai Panchal
Aged 51 yrs present, Occ : Housewife
2 Jinal Jitendrakumar @ Jitu Vithalbhali Panchal
Aged 28 yrs present, Occ : Education
3 Sandip Jitendrakumar @ Jitu Vithalbhai Panchal
Aged 26 yrs present, Occ : Education
4 Vithalbhai Shivabhai Panchal
Aged 80 yrs present, Occ : Retired
All are residing at Room No. 16, Mahesh Sadan,
Kisan Nagar No.3, Road No.16,
Wagle Estate- 400 604
5 Balasaheb Bhagwat Waghmare
Aged adult, Occ : Not known,
Pushpanjali, R.H/8, Opp. Puranik City, G.B.Road,
Ovala, Thane (W) - 400 607 ... Respondents
............
Ms. Rina Kundu, Advocate for Applicants.
Mr. Devendranath S. Joshi, Advocate for the Appellant.
CORAM : R. M. JOSHI, J.
DATED : 17th NOVEMBER, 2025.
ORAL JUDGMENT :
1. This appeal takes exception to the Judgment and Order dated 18.03.2023 passed in M.A.C.P. No. 181 of 2016.
2. Parties are referred to by their nomenclature in the original proceeding.
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3. The claimants have filed claim before the Tribunal contending that on 08.01.2016 at around 11:55 a.m. when the deceased was crossing the road at the spot of accident, car bearing Registration No. MH-04-GE-1575 came in rash and negligent manner and dashed to the deceased. In the said incident he sustained serious injuries and though he was hospitalised, he succumbed to the injuries.
4. Initially, the injury claim came to be filed by Jitendra Kumar who met with an accident on 08.01.2016. During the penedency of the petition deceased died and hence the injury claim was converted into the death claim. On various accounts claimants sought compensation of Rs. 24,88,316/-. It is further claimed by the claimants that they were dependent upon the income of the deceased who was aged about 42 years as referred in the claim petition and was earning Rs.12,000/- as a Fabricator employed with Jalaram Industries.
5. The opponent No.1 i.e. the owner of the offending vehicle filed written statement at Exhibit-14. Though the contentions with regard to the negligence, age, income etc. were denied, it is not in dispute that the offending vehicle was involved in the occurrence of the accident. It is further claimed that the vehicle was insured with opponent No.2 insurer during the relevant time.
6. Opponent No.2 insurer filed written statement at Exhibit-15 denying 2/10 ::: Uploaded on - 21/11/2025 ::: Downloaded on - 21/11/2025 22:26:42 ::: S.S.Kilaje 9-FA-822-2023-Judgment-2025 (C).doc the contentions of the claimant. It is alleged that the First Information Report (FIR) which came to be lodged in respect of the incident against the unknown vehicle. The insurer further denied the age, income of the deceased and claimed that the deceased was negligent and on account of his negligence the accident in question has occurred. Learned Tribunal by passing impugned Judgment and Award granted compensation of Rs. 24,88,316/- with interest @7% p.a. and in addition thereto interest @ 8% came to be levied in case the amount of compensation is not paid within a period of two months. Insurer being aggrieved by the Judgment and Award filed present appeal.
7. Learned counsel for the appellant submits that the appeal deserves to be allowed on the ground of non involvement of the vehicle in question in the accident. In order to support his submissions he drew attention of the Court to the FIR which is lodged against the unknown vehicle. He further argued that the statement of the eye witness came to be recorded on 25.01.2016 though the accident has occurred on 08.01.2016 which makes his statement doubtful. It is his submission that in the absence of the examination of eye witness or at least Investigating Officer, the Tribunal ought not to have accepted the case of the claimants with regard to the involvement of the vehicle in question in the accident. To support his submission he placed reliance on the Judgment of this Court National 3/10 ::: Uploaded on - 21/11/2025 ::: Downloaded on - 21/11/2025 22:26:42 ::: S.S.Kilaje 9-FA-822-2023-Judgment-2025 (C).doc Insurance Company Vs. Nandabai wd/o. Prakash @ Pralhad Dhumal and Ors.1. It is his further submission that merely because the owner of the vehicle has admitted the involvement of the vehicle in the accident, the said admission does not bind to the insurer. He has also drawn attention of the Court to the accident report which according to him indicates the colour of the vehicle as seen in the CCTV footage to be metallic gray colour, whereas the vehicle seized is white in colour. It is his submission that this inconsistency goes to the root of the case and hence in the absence of any concrete evidence the Tribunal ought not to have accepted the case of the claimant. On the point of negligence, it is sought to be argued that since the accident has occurred not at zebra crossing, it needs to be held that the deceased has contributed if not completely but atleast to some extent to the occurrence of the said accident. With regard to the income and the employment of the deceased it is sought to be argued that from the evidence of the witness PW-2 examined by the claimants it cannot be said that the deceased was employed with the said partnership firm. While drawing attention of the Court to the cross examination of this witnesses, it is submitted that the partnership deed is not placed on record to indicate the witness to be the partner of the firm. On the point of applicability of multiplier it is argued that when the claimants themselves claimed age of the deceased to be 42 years, and hence multiplier of 15 was 1 2018(2) Mh.L.J. 4/10 ::: Uploaded on - 21/11/2025 ::: Downloaded on - 21/11/2025 22:26:42 ::: S.S.Kilaje 9-FA-822-2023-Judgment-2025 (C).doc not applicable but the multiplier of 14 ought to have been applied. Finally, it is argued that the order passed by the Tribunal of imposing penal interest of 8% is contrary to the Judgment of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Keshav Bahadur and Ors. 2 and the Judgment and Order passed by the Division Bench of this Court in the case of The New India Assurance Co. Ltd.Vs. Saira Lambe and Ors. passed in F.A.No. 783 of 2015.
8. Learned counsel for the claimants supported the impugned Judgment and Award with further prayer of granting additional compensation towards consortium payable to the claimants. To support this submissions, she placed reliance on the Judgment of Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram3. On the point of the involvement of the vehicle in question in the accident it is argued that the claimants were required to prove the involvement of the vehicle on preponderance of probability and considering the police papers coupled with the fact that there is admission of the owner of the vehicle about the involvement, nothing more remained to be proved before the Tribunal. It is her submission that in the absence of any evidence with regard to the negligence, this Court cannot attribute even partial or contributory negligence against the deceased. According to her though the 2 (2001) 2 SCC 370 3 2018 ACJ 2782 (SC).
5/10 ::: Uploaded on - 21/11/2025 ::: Downloaded on - 21/11/2025 22:26:42 ::: S.S.Kilaje 9-FA-822-2023-Judgment-2025 (C).doc claimants have claimed age of the deceased to be 42 years, during the evidence it is proved that he had completed 40 years and in view of the Judgment of the Division Bench in the case of National Insurance Company Vs. Vaishali Devare and Ors. passed in First Appeal No. 1068 of 2012, completed age is to be taken for application of multiplier and in this case multiplier of 15 applied by the Tribunal is correct. She however does not dispute the position of law on the point of the penal interest. That same cannot be awarded.
9. At the outset, it needs to be recorded that the claimants are required to prove the case on preponderance of probability. Here in this case the owner of the vehicle has filed written statement admitting involvement of the vehicle in the accident. Though now it is sought to be argued on behalf of the insurer that the claim filed by the claimants was in collusion with the owner of the vehicle, there is not even a suggestion made to the claimant in the cross examination. In the absence of any such specific plea being raised before the Tribunal or atleast any suggestion is made to that effect, it would not possible to this Court to accept that this is a collusive petition between the claimant and the owner of the vehicle.
10. Learned counsel for the insurer though claimed that the admission of the owner about the involvement of the vehicle cannot be read against the insurer, however at the same time, the claimant after the said 6/10 ::: Uploaded on - 21/11/2025 ::: Downloaded on - 21/11/2025 22:26:42 ::: S.S.Kilaje 9-FA-822-2023-Judgment-2025 (C).doc admission was brought on record, was not required to lead any further evidence. In the instant case however, apart from the fact that there is admission of the owner, there is material placed on record to indicate the involvement of the offending vehicle in the accident in question.
11. Though it is sought to be argued that there is delay in recording the statement of eye witness, pertinently here in this case, chargesheet has been filed against the driver of offending vehicle. There is absolutely no material on record to indicate the challenge being raised by the said driver in respect of the FIR or chargesheet. Merely, because the colour of the vehicle differs from what it appears in the CCTV footage and the accident report, that would not be sufficient to discard the involvement of the vehicle in the accident. Since claimants are not required to prove the involvement of offending vehicle beyond beyond reasonable doubt, this Court is of considered view that evidence on record coupled with the fact that the owner of the vehicle has admitted the involvement, it is rightly held by the Tribunal that the offending vehicle was involved in the accident in question.
12. The claimants' oral evidence is supported by the police papers which includes chargesheet filed against the driver of the offending vehicle. From the perusal of the said chargesheet it cannot be said that the deceased has contributed to the occurrence of the accident in any manner. It was for the 7/10 ::: Uploaded on - 21/11/2025 ::: Downloaded on - 21/11/2025 22:26:42 ::: S.S.Kilaje 9-FA-822-2023-Judgment-2025 (C).doc insurer and the owner of the vehicle to lead evidence in order to substantiate such claim. In the absence of any evidence, this Court finds no reason to accept the contention of the insurer in this regard.
13. On the point of income, the claimants have examined the witness who is the partner of the partnership firm engaged in fabrication business. Though the witness has admitted in the cross examination about he having not produced the partnership deed. However, the GST registration indicates the name of the witness Ramesh Ishwarlal Panchal to be the partner of Jalaram Industries and thus there is evidence on record to held that he is a partner in the said company. Coming to the income of the deceased, the learned Tribunal has accepted the income of the deceased @ Rs.9,000/-p.m. and even otherwise notional income would be not less than Rs.9,000/-. This Court therefore finds no substance in the objection raised about consideration of income by tribunal for determination of compensation.
14. On the issue of multiplier, since there is documentary evidence on record to indicate that the deceased had completed 40 years of age, in view of the Judgment of the Division Bench of this Court in the case of Vaishali Devare (supra), this Court finds no reason to cause interference in the order of the Tribunal to that extent.
15. Finally, coming to the issue with regard to the penal interest, the 8/10 ::: Uploaded on - 21/11/2025 ::: Downloaded on - 21/11/2025 22:26:42 ::: S.S.Kilaje 9-FA-822-2023-Judgment-2025 (C).doc said issue is covered by the Judgment and Order passed by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Keshav (supra) and hence the penal interest as granted by the Tribunal deserves to be set aside.
16. In so far as the contention of the learned counsel for the respondents / claimants with regard to the non payment of consortium is concerned, the Hon'ble Supreme Court in the case of Magma (supra) has held that the parental consortium is payable to the claimant. Similarly, in view of the Judgment of Pappu Deo Yadav vs Naresh Kumar 4 the enhancement of claim is permissible even without filing separate appeal or cross objection.
17. In view of above discussion, following order is passed :
ORDER
(i) The appeal stands partly allowed.
(ii) The amount of compensation as determined by the Tribunal is maintained.
(iii) The penal interest @8% as directed by the Tribunal stands set aside.
(iv) In addition to the compensation granted by tribunal, the claimants are entitled to receive a sum of Rs.1,44,000/- towards consortium along with interest @7% p.a. from the date of filing claim 4 AIR 2020 SUPREME COURT 4424 9/10 ::: Uploaded on - 21/11/2025 ::: Downloaded on - 21/11/2025 22:26:42 ::: S.S.Kilaje 9-FA-822-2023-Judgment-2025 (C).doc petition till realisation of the amount.
21. The appeal is disposed of. Pending applications, if any, are also disposed of.
( R. M. JOSHI, J.) Digitally signed by SONALI SONALI SATISH KILAJE SATISH Date:
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