Bombay High Court
The United India Insurance Co. Ltd vs Smt. Germaine D’Mello And Ors on 2 July, 2025
2025:BHC-AS:27476
WAKLE
MANOJ
JANARDHAN Manoj 8-FA-3151-2006.doc
Digitally signed by
WAKLE MANOJ
JANARDHAN
Date: 2025.07.08
13:44:42 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 3151 OF 2006
The United India Insurance Co. Ltd.
D.O. No. 12, Stadium House,
4th Floor, Veer Nariman Road,
Churchgate, Mumbai-400 020.
Vide Policy No.021200/22/6/10513/94
Valid from 02/03/95 ...Appellant
V/s.
1) Smt. Germaine D'Mello, aged 40 yrs.
2) Kum. Clive D'Mello, Aged 16 yrs.
3) Miss Janice D'Mello, Aged 12 yrs.
(Respondent Nos.2 and 3 being minors
Through their next friend and mother
Smt. Germaine D'Mello)
All residing at Gabriel Building,
'C' Block, Marol Church Road,
Marol, Andheri (East), Bombay
4) M/s. Cooper Conductors Company,
The Small Industries Co-0p. Estate Ltd.,
Unit No. A-I, I.B. Patel Road,
Goregaon (East), Bombay 400063. ...Respondents
Mr. H. G. Misar, for the Appellant.
Ms. Ketki Gokhale i/by Mr. A. M. Gokhale, for the Respondent Nos.1
to 3.
Mr. Veerdhawal Deshmukh, Appointed as Amicus Curiae.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 05th MAY, 2025.
PRONOUNCE ON : 02nd JULY, 2025.
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JUDGMENT:
–
. Present Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988 (“the Act”) against the Judgment and Award dated
04/02/2006, in Application No.2308 of 1995 (“Claim”), passed by the
Motor Accident Claims Tribunal, Mumbai (“Tribunal”) thereby said
claim was partly allowed and Respondent No.4 and the Appellant
have been held liable to pay the Respondent Nos.1 to 3 (“Claimants”)
jointly and severally a sum or Rs.23,55,000/- alongwith 7.5 %
interest p.a. from the date of filing of the claim.
2) As per the record, Appeal was admitted on 20/12/2006.
Thereafter the notice issued to Respondent No.4 returned unserved
with the bailiff’s remark that, “not working on the said address,
hence, pasted on the door”. Thereafter, no steps were taken by the
Appellant to serve the Respondent No.4. On 03/01/2024 the Appeal
was fixed for final hearing.
2.1) Record indicates that after the hearing of the evidence of
the claimants was started, the Appellant sought leave to defend under
Section 170 (b) of the Act and to join it as party Respondent vide
Order below the Applications at Exhs.8, 18 and 19. The learned
Advocate for the parties state that no statutory defence is available to
the Appellant against Respondent No.4. Hence, the Appeal taken up
for final hearing.
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Manoj 8-FA-3151-2006.doc 3) Heard Mr. Misar, the learned Advocate for the Appellant,
Ms. Gokhale, the learned Advocate for Respondent Nos.1 to 3 and Mr.
Deshmukh, the learned Amicus Curiae. Perused the record and read
the written argument submitted by Ms. Gokhale.
4) Facts in brief are that, the Claimants filed the said claim
therein it was stated that, late Joseph D’Mello (“Deceased”) was the
husband of Respondent No.1 and father of Respondent Nos.2 and 3.
It was the case of the claimants that, on 01/02/1995, at about 00.45
hrs., near Hotel Airport Kohinoor the deceased was crossing Andheri-
Kurla Road, from north to south. One private Fiat Car No. MH-02-J-
780 (“Car”) was coming from Andheri side at a very high speed. While
the deceased was about to climb on the central divider of the road, the
driver of the Car lost control over the vehicle and gave dash to the
deceased. It was averred that the said accident occurred due to rash
and negligent driving of the driver of the Car. After giving dash, the
Car driver fled away. The deceased was taken to Cooper Hospital,
where he was declared dead. It was averred that, the deceased was
aged about 44 years and he was working with M/s. Humaid Ibrahim
Al-Suwaidi Trading, Dubai thereby he was earning Rs.45,000/- p.m.
All the Claimants were dependent upon the income of the deceased.
Therefore, the Claimants filed the said claim and prayed to award a
sum of Rs. 30,00,000/- alongwith interest from the date of the claim,
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from Respondent No.4 and the Appellant, who were the owner and
insurer of the Car.
5) Despite the notice by the Tribunal, Respondent No.4 did
not file appearance and let the claim proceeded ex-parte against it.
6) The Appellant resisted the claim filing the Written
Statement. The Appellant denied that the deceased was serving at
Dubai and was earning Rs.45,000/- p.m. and met with an accident on
the night of 01/02/1995. It was denied that the said Car No.MH-02-J-
780 was involved in the accident. At last, the Appellant denied its
liability to pay the compensation and prayed to dismiss the claim.
7) Hence, the Tribunal framed the issues. (Exh.30-A). To
prove the claim, Respondent No.1, Mrs. Germine D’Mello adduced
her evidence on oath (AW1/Ex.11) and examined Amrut Deshmukh,
API-Investigation Officer (AW2/Ex.22). In the reply, the Appellant
examined DW1-Mr. Mangesh Prabhulkar, Private Investigator
(Ex.28) and DW2-Ashok Malviya, driver of the Car (Ex.29).
8) It is not disputed that the said Car was owned by
Respondent No.4 and insured with the Appellant at the relevant time.
Admittedly, AW1 has not witnesses the accident. She has only
deposed that the deceased died in the accident on 01/02/1995.
9) On the point of involvement of the offending vehicle, the
evidence of AW2-Amrut Deshmukh is that, during investigation he
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recorded the statement of Mr. Mani Gadairam Yadav who informed
that one white colour Fiat Car bearing regn. No.MH-02/J-78 caused
the accident, but he dose not remember the last digit No.,
i.e., after the last digit ‘8’. AW2 deposed that, thereafter he filed
the F.I.R. (Exh.23). He inquired with the RTO Office from where he
got the list of 10 to 12 white Fiat Cars. In turn, he called the owners
and drivers of the said Cars. He found that colour of the hood of the
offending Car was changed. He deposed that some colour and hood of
the offending Car was damaged. On enquiry with the garage owner,
he revealed that the wind seat glass was also changed. He deposed
that during enquiry with DW2, it was revealed that the Car was
owned by Respondent No.4; that, on the relevant date, at time and
place, DW2 was driving the said Car; that, the deceased was crossing
the road; and that, DW2 tried to avoid him. In this regard, AW2
referred the statement of DW2. (Exh.24). AW2 deposed that during
his enquiry, the witness Mr.Yadav identified DW2 and the offending
Car. He prepared the Panchnama of the Car (Exh.25). AW2 deposed
that, he arrested DW2 and filed the prosecution against him, vide C.C.
No.717/p/1995. He sent the Report (Exh.26) to the senior PI on
04/04/1995.
9.1) The aforesaid evidence of AW2 is supported with the
documents he referred in his evidence. Nothing has come in the
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cross-examination of AW2 to disbelieve his evidence that DW2
caused this accident. In the cross-examination of AW2, it has come
that the road at the place of the accident was 90 feet wide. The
accident occurred near the road divider. This evidence indicates that
despite sufficient space was available to DW2, he failed to avoid the
accident. Therefore, the conclusion is inevitable that at the time of the
accident, DW2 was not driving the Car carefully and keeping proper
lookout at the road. Driving four wheelers in such a manner is always
dangerous to pedestrians. However, this danger was ignored by DW2
at the time of accident, which ultimately caused this accident. One of
the grounds in the Appeal is that the deceased himself was
responsible for this accident. But, Respondent No.4 has not filed any
Appeal or Cross-objection challenging the involvement of the Car and
the cause of the accident. Therefore, I am in agreement with the
finding recorded by the Tribunal, that the said accident occurred due
to rash and diligent driving of the offending Car.
10) AW1 deposed that, the date of birth of the deceased was
29/12/1949 and he was aged 45 years. She deposed that, at the time
of the accident, the deceased was serving with M/s. Humaid Ibrahim
Al-Suwaidi Trading, at Dubai as a Site Supervisor and drawing
15,000/- Dirham. She deposed that the deceased used to send
Rs.15,000/- to Rs.20,000/- per month for the household expenses.
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This evidence virtually went unchallenged in the cross-examination.
That apart, in the cross-examination of AW1, it is brought that prior
to 1990, the deceased was working in Quwait. In 1990 the deceased
came to Bombay and got a job in Dubai. Thus, Appellant conceded
that the deceased was working and earning in Dubai. Therefore, it
was natural that his salary will be paid in Dirhams. Admittedly, the
Claimants were residing in Mumbai. At the time of the accident, the
Claimants were aged 40, 16 and 12 years respectively. Claimant Nos.2
and 3 were studying. Therefore, it is safe to infer that the Claimants
were required sufficient money for their maintenance, education and
other necessary expenses. AW1 deposed that, besides the salary in
hand, the deceased was having facilities like free accommodation,
medical and car. Therefore, the Tribunal noted that, considering the
cost of living at Mumbai there cannot be any exaggeration that the
deceased used to send Rs.15,000/- p.m. to his family. The deceased
was aged 45 years. However, the Tribunal adopted the multiplier of
’13’ and awarded Rs.23,40,000/- towards the loss of the dependency
(Rs.15,000/- X 12 = Rs.1,80,000/- X 13). Additionally, the Tribunal
awarded Rs.10,000/- for the loss of consortium, the loss of love and
affection and Rs.5,000/- for ‘funeral expenses’. Thus, the Tribunal
granted total Rs.23,55,000/-.
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Manoj 8-FA-3151-2006.doc 11) However, no compensation has been awarded towards the
future maintenance of the family, which money the deceased would
have certainly increased in proportion to his future income. It is not
the case that the deceased was in the permanent employment. As
such, in accordance with the decision in National Insurance Co. Ltd.
vs. Pranay Sethi and Others1 and Sarla Verma and others vs. Delhi
Transport Corporation and another2, the Tribunal should have added
25% of the net annual maintenance amount towards the future
maintenance of the family and the applicable multiplier is ’14’, not ’13’
as the deceased was aged 45 years. Accordingly, the Claimants were
entitled to get Rs.31,50,000/- (Rs.1,80,000/- + Rs.45,000/- (25%) =
Rs.2,25,000/- X 14) as the loss of the dependency. In accordance with
the decision in Magma General Insurance Co. Ltd. vs. Nanu Ram
Alias Chuhru Ram & Ors.3, the Claimants are entitled to receive
Rs.48,000/- each towards loss of ‘spousal’, and ‘parental’ consortium,
respectively. Additionally, the Claimants are entitled to get
Rs.18,000/- under the head ‘funeral expenses’ and Rs.18,000/- under
the head ‘loss of estate’. Thus, total compensation comes to
Rs.33,30,000/-and the enhancement of the compensation will be as
under :-
1. 2017 ACJ 2700 (SC).
2. 2009 ACJ 1298 (SC).
3. (2018) 18 SCC 130
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Manoj 8-FA-3151-2006.docTotal compensation amount : Rs.33,30,000/-
Compensation awarded by Tribunal : – Rs.23,55,000/-
——————-
Enhanced compensation amount : = Rs. 9,75,000/-
——————–
Enhancement of Compensation
12) Now question is whether the Claimants are entitled for
enhancement of the compensation as worked out above. There is
disagreement as to whether the enhancement of the compensation
and its award is possible in this Appeal or not, because the Claimants
neither filed an Appeal nor cross-objection seeking enhancement of
the compensation on the ground of denial of ‘just compensation’.
13) In this context, Ms. Gokhale, emphatically submitted that
it is common experience that one does constant efforts to increase his
income to meet the rising inflation. She submitted that, award of
reasonable compensation towards the future prospects is the mandate
of law. However, the Tribunal failed to consider the same. As a result,
no compensation was awarded towards the future prospects.
Therefore, there is no impediment in this case to award additional
compensation towards the future maintenance of the Claimants.
14) Mr. Deshmukh, the learned Appointed Amicus Curiae
submitted that such claims are filed under the beneficial and welfare
legislation. To grant “Just Compensation” is duty of the Tribunal/
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Court under the provisions provided in the Act to quantify and award
the compensation. Therefore, if there is mistake on the part of the
Tribunal in quantifying ‘just compensation’, and if, for any reason the
Claimant/s do not file Appeal or Cross-objection seeking
enhancement of the compensation, such Claimant/s cannot be
restricted from pointing out that mistake and how it is justifiable to
remove it, otherwise, the object of the legislation would fail and the
Claimant/s will be deprived of getting their loss redressed. Therefore,
Mr. Deshmukh agreed with the submissions of Ms.Gokhale.
15) Mr. Misal, the learned Advocate, on the other hand,
argued that such enhancement of the compensation and award is not
permissible and possible in law. To agree with this submission, Mr.
Misal wants this Court to depend upon following reported decisions.
i) Ranjana Prakash & Ors. vs. Divisional Manager & Anr. 4
therein the Division Bench of the Hon’ble Supreme Court held that,
“6. … in an appeal by the owner/insurer, the claimants will
not be entitled to seek enhancement of the compensation by
urging any new ground, in the absence of any cross-appeal or
cross-objections.
7. This principle also flows from Order 41 Rule 33 of the
Code of Civil Procedure which enables an appellate court to
pass any order which ought to have been passed by the trial
court and to make such further or other order as the case may
4. (2011) 14 SCC 639
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require, even if the respondent had not filed any appeal or
cross-objections. This power is entrusted to the appellate court
to enable it to do complete justice between the parties. Order
41 Rule 33 of the Code can however be pressed into service to
make the award more effective or maintain the award on other
grounds or to make the other parties to litigation to share the
benefits or the liability, but cannot be invoked to get a larger or
higher relief. …
8. Where an appeal is filed challenging the quantum of
compensation, irrespective of who files the appeal, the
appropriate course for the High Court is to examine the facts
and by applying the relevant principles, determine the just
compensation. If the compensation determined by it is higher
than the compensation awarded by the Tribunal, the High
Court will allow the appeal, if it is by the claimants and dismiss
the appeal, if it is by the owner/insurer. Similarly, if the
compensation determined by the High Court is lesser than the
compensation awarded by the Tribunal, the High Court will
dismiss any appeal by the claimants for enhancement, but
allow any appeal by owner/insurer for reduction. The High
Court cannot obviously increase the compensation in an
appeal by owner/insurer for reducing the compensation, nor
can it reduce the compensation in an appeal by the claimants
seeking enhancement of compensation.”
ii) Shriram General Insurance Co. Ltd. Vs. Surekha and
Others5. In this case, in paragraph 37 and 38 this Court observed and
held that :-
5. 2020 ACJ 434.
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“37. The case of “Ranjana Prakash v. Divisional Manager” (supra) is
also followed by this court in “United India Insurance Co. Ltd. v.
Rajani Suresh Bhore”, [(2017) 5 AIR Bom R 592]. No doubt, in
Jitendra Khimshankar Trivedi v. Kasam Daud [(2015) 4 SCC 237]
in para 13 of the judgment, the Apex Court observed that:
“(13) The tribunal has awarded Rs.2,24,000/- as against the
same, claimants have not filed any appeal. As against the
award passed by the tribunal when the claimants have not filed
any appeal, the question arises whether the income of the
deceased could be increased and compensation could be
enhanced. In terms of Section 168 of the Motor Vehicles Act,
the courts/tribunals are to pass awards determining the
amount of compensation as to be fair and reasonable and
accepted by the legal standards. The power of the courts in
awarding reasonable compensation was emphasised by this
Court in Nagappa v. Gurudayal Singh, (2003) 2 SCC 274,
Oriental Insurance Company Ltd. v. Mohd. Nasir, (2009) 6
SCC 280, and Ningamma v. United India Insurance Company
Ltd., (2009) 13 SCC 710. As against the award passed by the
tribunal even though the claimants have not filed any appeal,
as it is obligatory on the part of courts/tribunals to award just
and reasonable compensation, it is appropriate to increase the
compensation.”
38. However, after carefully going through this judgment, it
emerges that while enhancing the compensation, the Apex Court
exercised jurisdiction under Article 142 of the Constitution of India,
which a High Court does not possess. Thus, though compensation
determined by this court in the case at hand is more than awarded
by the Tribunal, this Court cannot enlarge the scope of this appeal
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and cannot enhance the compensation more than awarded by the
Tribunal. However, by exercising its jurisdiction under Order 41,
Rule 33 of the Code of Civil Procedure, this court can only enhance
the rate of interest to the extent of nine per cent per annum from
the date of filing of claim petition till realization of the entire
compensation amount.”
iii) Sangita Arya & Ors. vs. Oriental Insurance Co. Ltd. Ors. 6.
In this case the MACT held that, the deceased was aged 35 years, and
his income was Rs.1,00,000/- p.a. The deceased had left behind five
dependents. Therefore, the MACT deducted 1/4th of his income
towards personal expenses, adopted the multiplier of “16” and
computed the loss of dependency at Rs.12,20,000/-.
In Appeal by the insurer, the High Court observed that the
ITRs for the years 2002-03, 2003-04 and 2004-05 showed that the
average annual income of the deceased for these three years was
Rs.52,635/-. The ITR for the year 2006-07 revealed an income of
Rs.98,500 p.a., which was almost double the income of the preceding
three years. But the High Court did not consider the ITR for the year
2006-07. Accordingly, the High Court took the average income of the
deceased at Rs.52,635 p.a., deducted 1/3rd of the income towards
personal expenses and applied the multiplier of “16”. Thus, the loss of
dependency was assessed at Rs.5,61,440. The consortium payable to
6. (2020) 5 SCC 327
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the widow was reduced by the High Court from Rs.20,000 (as
awarded by the MACT) to Rs.10,000; the amount awarded towards
loss of love and affection to the minor daughters was reduced from
Rs.10,000 to Rs.5,000. However, the it maintained amount of
Rs.5,000 awarded by the MACT towards funeral expenses.
Ultimately, the Hon’ble Supreme Court (three Judge
bench) observed that, the ITRs for the assessment years 2005-06 and
2006-07 were filed prior to the death of the deceased, which reflected
the income of approximately Rs.1,00,000/- p.a. (as assessed by the
MACT). Therefore, making that income as the basis for computing the
compensation and in accordance with the decision in Pranay Sethi
(supra), deducted ¼th income towards personal expenses and
awarded Rs.17,50,000/-. In this regard the Hon’ble Supreme Court
observed that,
“18. Even though the Claimants/Appellants herein did not file
an Appeal against the Award dated 22.12.2009 passed by the
MACT before the High Court, we deem it appropriate to
enhance the compensation by exercising our jurisdiction under
Article 142 of the Constitution of India in order to do complete
justice between the parties.”
iv) United India Insurance Co. Ltd. vs. Surekha Kisan Shirke
& Ors.7. In this case, the learned Single Judge of this Court held that,
7. FA No.873/2004 dt. 30/09/2021
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“appellate Court cannot enhance the amount of compensation unless
the claimants file appeal or cross-objection for enhancement.” In this
regard, reliance was placed on the decisions in Ranjana Prakash &
Ors. (supra) and Sangita Arya & Ors. (supra). Further, reference was
made to the Division Bench decision of the Hon’ble Supreme Court in
Shivawwa and Anr. vs The Branch Manager National India. 8 wherein
the Tribunal allowed the claim against Respondent No.1 – insurance
company, Respondent No.2-owner and the driver. Aggrieved,
Respondent No.1 insurance company assailed the Tribunal’s award
before the High Court of Karnataka, contending that the deceased had
not travelled along with his goods in the tractor-trailer and therefore,
it could not be made liable to pay any compensation. The High Court
found merit in the contention raised by Respondent No.1, hence, held
that Respondent No.1 insurance company could not be saddled with
any liability.
The Appellants challenged the judgment of the High Court
including on the ground that the High Court failed to appreciate the
evidence on record and that, the deceased was the sole earning
member of the family. The Appellants also submitted that the
quantum of compensation awarded by the Tribunal was meager and
unjustifiable and therefore, also sought enhancement of the
8. (2018) 5 SCC 762
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Tribunal’s award. While addressing the argument of the appellants
that the Tribunal committed a manifest error in computing the
compensation amount, the Hon’ble Supreme Court, observed that,
“… we find that the appellants (claimants) did not file an
appeal for enhancement of compensation amount against that
part of the award passed by the Tribunal nor chose to file any
cross-objection in the First Appeal filed by the insurer before
the High Court. Moreover, from the judgment of the High
Court there is no indication that any attempt was made on
behalf of the appellants to ask for enhanced compensation
amount on the grounds as would have been available to the
appellants in that behalf. Significantly, in the present appeal
also, the appellants have not asked for any “relief” against that
part of the award passed by the Tribunal, regarding the
quantum of compensation. The relief claimed in this appeal is
only to set aside the decision of the High Court passed in the
First Appeal preferred by the insurer. In this backdrop, it will
not be appropriate for this Court to consider the argument
regarding the quantum of compensation at the instance of the
appellants (claimants).”
v) Ram Pravesh Singh & Ors. vs. State of Bihar & Ors. 9
therein the Hon’ble Supreme Court observed that, any direction given
on special facts, in exercise of jurisdiction under Article 142, is not a
binding precedent.
9. (2006) 8 SCC 381
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vi) Choudhary Sahu (Decd.) vs. State of Bihar 10 therein the
Hon’ble Supreme Court considered the provision of Order XLI, Rules
22 with 33 and held that, in absence of any cross-objection or Appeal,
findings recorded by the Court/authority below cannot be interfered
with by the Appellate Court/authority.
16) In response, Ms. Gokhale, the learned Advocate for the
Claimants cited following cases to accept her submission that
enhancement of compensation and award is permissible in such
Appeal by the insurer even if the Claimant/s did not file a separate
Appeal or cross-objection.
i) A.P.S.R.T.C. Rep. by its General Manager & Another vs.
M. Ramadevi and Others.11. In this case, the Tribunal awarded total
compensation of Rs.2,46,000/- taking multiplier of “12”, which the
High Court enhanced to Rs.3,55,952/- even though the Claimants did
not file a separate Appeal or cross-objection for the enhancement. In
the Appeal, the Hon’ble Supreme Court reduced the compensation to
Rs.2,60,000/- taking multiplier of “10”. In this connection reference
was made to the decision in Nagappa vs. Gurudayal Singh and Ors. 12,
paragraph 21, which reads :
“21. For the reasons discussed above, in our view, under the
10. (1982) 1 SCC 232
11. (2008) 3 SCC 379
12. (2003) 2 SCC 274
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Manoj 8-FA-3151-2006.docM.V. Act, there is no restriction that the Tribunal/court
cannot award compensation amount exceeding the claimed
amount. The function of the Tribunal/court is to award just
compensation which is reasonable on the basis of evidence
produced on record. Further, in such cases there is no question
of claim becoming time-barred or it cannot be contended that
by enhancing the claim there would be change of cause of
action. It is also to be stated that as provided under sub-
section (4) to Section 166, even the report submitted to the
Claims Tribunal under sub-section (6) of Section 158 can
be treated as an application for compensation under the M.V.
Act. If required, in appropriate cases, the court may permit
amendment to the claim petition.”
ii) United India Insurance Co. Ltd. vs. Kunti Binod Pande &
Ors.13. In this case, in paragraph 34, this Court observed that, ” A
Division Bench of this Court in case of National Insurance Co. Ltd. vs.
Vaishali H. Devare & Ors.14 has held that even if there is no cross-
appeal or cross-objection preferred by the claimants, the exercise of
determining the just compensation will have to be carried out. Such
adjudication can be made even without taking recourse to Rule 33 of
Order XLI of Code of Civil Procedure.” In view thereof, in paragraphs
37 and 38 it has been observed and held as under :-
“37. In so far as the judgment of Supreme Court in case of
Ranjana Prakash & Ors. v/s. Divisional Manager and Anr.
(supra) is concerned, the said judgment has been interpreted
13. (2020) 1 Bom CR 629
14. (2013) 1 Mah LJ 411
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Manoj 8-FA-3151-2006.docby this Court in various judgments already referred to
aforesaid and after considering the later judgment of the
Supreme Court, it is held by this Court that filing of
substantive appeal or cross-objection by the claimant for
seeking enhancement of the claims is not necessary. The
principles of law laid down by the later judgment of Supreme
Court and this Court in large number of judgments referred to
aforesaid, apply to the facts of this case. The reliance placed by
the learned counsel for the appellant on the judgment
delivered by Shri Justice G.S. Patel on 29th June, 2017 in case
of United India Insurance Company Limited v/s. Rajani
Suresh Bhore and Ors. (supra) is misplaced. The judgment of
the Supreme Court in the aforesaid judgment taking a different
view, apply to the facts of this case. I am respectfully bound by
the said judgment.
38. In my view, there is thus no embargo on this Court to
enhance the claims not awarded by the Tribunal in favour of
the original claimant. Those compensation can be awarded to
grant “just compensation” in favour of the claimant to do
complete justice in the matter. In my view, there is thus no
substance in the submission of the learned counsel for the
appellant that various judgments referred to and relied upon
by the learned counsel for the respondent nos. 1 to 4 had not
considered the provisions of Order XLI Rule 33 of the Code of
Civil Procedure, 1908. The Division Bench of this Court in case
of National Insurance Co. Ltd. v/s. Ms. Vaishali Harish Devare
and Ors. (supra) had considered the provisions of Order XLI
Rule 33 of Code of Civil Procedure in the said judgment. In my
view, since it is the statutory obligation of the Tribunal and
also the Court to do complete justice to the parties and award
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“just compensation”, there is no restriction to enhance the
compensation in appropriate case even in absence of cross-
appeal or cross-objection. Appeal proceedings are in
continuation of proceedings before Tribunal. In my view,
claimant can be permitted to pay an additional amount of
Court fees, if any on the additional compensation, allowed by
the Appellate Court on the differential amount”.
iii) Manager, National Insurance Co. Ltd. vs. Shri Nilesh
Suresh Bhandari & Ors.15. In this case, the learned Single Judge of this
Court considered the aforesaid observations in Kunti Binod Pande &
Ors. (supra) and in paragraph 17 observed that,
“17. I am in complete agreement with the view expressed in
Kunti Pandey (supra), since it is the duty of the Court dealing
with a claimant who has incurred a disability on account of an
un-fateful event, I do not deem it fit to decline consideration of
the claim of the claimant for enhancement of compensation in
absence of any independent Appeal or cross Appeal being filed
by the claimant.”
iv) Surekha W/o Rajendra Nakhate & Ors. vs. Santosh S/o
Namdeo Jadhav & Ors.16 therein the decision of this Court in Shriram
General Insurance Co. Ltd. vs. Surekha and Others (supra) was
impugned, therein the Tribunal had awarded Rs.40,17,602/-. After
considering the matter, the Hon’ble Supreme Court (three Judge
bench) observed that, the High Court, even though agreed with the
15. 2022 SCC Online Bom 4749
16. (2021) 16 SCC 467
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stand of the appellants that just compensation amount ought to be
Rs.49,85,376/-, declined to grant enhancement merely on the ground
that the appellants had failed to file cross-appeal. Therefore, it has
been held that, by now, it is well-settled that in the matter of
insurance claim compensation in reference to the motor accident, the
Court should not take a hyper technical approach and ensure that just
compensation is awarded to the affected person or the claimants. As a
result, the Apex Court modified the order passed by the High Court to
the effect that the compensation amount payable to the appellants has
been determined at Rs.49,85,376/-, with interest thereon as awarded
by the High Court, and allowed the Appeal, accordingly. This decision
is very recently followed by the High Court of Kerala in Oriental
Insurance Co. Ltd. vs. C. Hamza and Others17.
v) Solapur Municipal Corporation & Anr. vs. Rupali Rahul
Pawar & Anr.18. In this case this Court considered the decisions in
A.P.S.R.T.C. (supra) and Nagappa (supra), and in paragraph 15 held
that, “It is thus well settled that the Tribunal/Court is under an
obligation to award just compensation and there is no embargo in
enhancing the compensation in the absence of appeal or cross
objection. … .” As a result, this Court enhanced the compensation of
17. 2025 SCC OnLine Ker 2162
18. FA No.476/2016 dt. 29/08/2023
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Rs.12,58,000/- to Rs.16,06,200/-. Same principle is enunciated in the
earlier decision in Kelkar and Kelkar vs. Shripad Narayan Gore And
Ors.19 therein reference was made to the decisions in Ranjana Prakash
& Ors. (supra), Nagappa (supra) and Pranay Sethi (Supra).
17) In A.P.S.R.T.C. (supra), the Tribunal took the multiplier of
“12” and awarded total Rs.2,46,000/- with interest @ 12% p.a. The
High Court held that the pay of the deceased was Rs.3,536/- and not
Rs.2,367/- as noted by the Tribunal. Hence, it fixed the basic pay of
Rs.3,500/- after deducting 1/ 3rd towards the personal expenses. The
monthly contribution was fixed at Rs.2,333/- and the annual
contribution at Rs.27,996/-. The multiplier was taken at “12”.
Accordingly, entitlement was fixed at Rs.3,35,952/- to which was
added the sum of Rs.20,000/- additionally awarded by the Tribunal.
In the Appeal, the Hon’ble Supreme Court reduced the compensation
to Rs.2,60,000/-, but taking multiplier of “10”. Thus, said amount
was higher than the amount awarded by the Tribunal. Meaning
thereby the enhancement by the High Court in the Appeal by the
A.P.S.R.T.C. was partially agreed.
17.1) In the case in hand, as held above, the deceased was
providing monthly Rs.15,000/- for the maintenance of the family. Ms.
Gokhale, the learned Advocate has not requested to increase the said
19. 2019 SCC Online Bom 4140
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monthly maintenance amount. In fact, her contention is that, the
tribunal has not awarded any compensation towards the loss of the
future maintenance amount and that, the multiplier taken was also
not correct. This, ultimately, resulted in grant of lesser compensation.
Therefore, the amount of the compensation may be enhanced.
17.2) In the case of Pranay Sethi (supra), the Hon’ble Supreme
Court in paragraph 57 observed and held that,
“57. … To follow the doctrine of actual income at the time of
death and not to add any amount with regard to future
prospects to the income for the purpose of determination of
multiplicand would be unjust. The determination of income
while computing compensation has to include future prospects
so that the method will come within the ambit and sweep of
just compensation as postulated under Section 168 of the Act.
In case of a deceased who had held a permanent job with
inbuilt grant of annual increment, there is an acceptable
certainty. But to state that the legal representatives of a
deceased who was on a fixed salary would not be entitled to the
benefit of future prospects for the purpose of computation of
compensation would be inapposite. It is because the criterion
of distinction between the two in that event would be certainty
on the one hand and staticness on the other. One may perceive
that the comparative measure is certainty on the one hand and
uncertainty on the other but such a perception is fallacious. It
is because the price rise does affect a self-employed person;
and that apart there is always an incessant effort to enhance
one’s income for sustenance. … We are inclined to think that
there can be some degree of difference as regards the
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percentage that is meant for or applied to in respect of the
legal representatives who claim on behalf of the deceased who
had a permanent job than a person who is self-employed or on
a fixed salary. But not to apply the principle of standardization
on the foundation of perceived lack of certainty would
tantamount to remaining oblivious to the marrows of ground
reality. … .”
17.3) In the case of Bismilla Abidulla Ansari & Anr. vs.
Kishorkumar N. Shah & Anr.20, the first respondent in the appeal was
the owner and second respondent was the insurer of the offending
vehicle. The first respondent did not appear before the Tribunal to
contest the claim. Hence, the Tribunal proceeded ex-parte against
him. The name of the same first respondent was deleted during
pendency of the Appeal on the prayer made by the
Appellants/Claimants. At the time of hearing of the appeal, a query
was made by the Court as to whether an order of enhancement in
compensation can be passed by this Court when the appeal was
dismissed as against the owner of the vehicle. Considering the
provisions of Section 94, 95 and 96 of the old Act of 1939 and
Sections 146, 147 and 149 of the new Act of 1988, this Court in
paragraph 17 held as under :-
“17. In the present case, the insured did not appear before
the Tribunal and did not contest the claim. In a case where the
20. (2008) 4 Mah. L.J 792
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Manoj 8-FA-3151-2006.docinsured appears and contests the claim, he will be certainly a
necessary party in an Appeal by the claimant for enhancement
of claim. In such a case, he may not have preferred an Appeal
but he can certainly file cross-objection in an Appeal preferred
by the claimant. However, in the present case the insured has
not chosen to contest the claim and the Tribunal proceeded ex-
parte against him. Therefore, the claim made by the appellants
in this appeal for enhancement can be certainly considered to
the extent of liability of the second respondent-insurer as there
is already a judgment delivered by the Tribunal holding the
first respondent-owner liable.”
17.4) In the backdrop of the above discussion and considering
the decisions cited by Ms. Gokhale, I hold that although the Claimants
have not filed separate Appeal or cross-objection for enhancement of
the compensation, they are entitled for enhancement of the
compensation as quantified in the above paragraph 11 of this
judgment.
18) The conspectus of the above discussion is that, there is no
substance in the Appeal. Further, despite the claimants were entitled
for compensation towards the loss of the future maintenance, the
Tribunal did not award the same. The applicable multiplier was “14”
but the Tribunal took the multiplier of “13”. Consequently, the
Claimants did not get the “just compensation”. In view of the said
infirmities, the impugned Judgment and Award warranted an
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interference to modify the same and to award the compensation of
Rs.33,30,000/- by way of the enhancement. Thus, the Appeal is liable
to be disposed of, accordingly.
18.1) Hence, following Order is passed.
(a) The impugned Judgment and Award dated
04/02/2006, in Application No.2308 of 1995, passed by
the Motor Accident Claims Tribunal, Mumbai is
modified.
(b) Appellant - The United India Insurance Company
Limited is directed to pay the Claimants the
compensation of Rs.33,30,000/- (inclusive of no fault
liability) together with interest thereon at the rate of
7.5% per annum from the date of filing the Claim
Petition till realisation.
(c) The parties to bear their own costs.
(d) The Appellant is directed to comply with this Judgment
within a period of four months from today, by
depositing the amount in the Tribunal.
(e) On deposit of the amount, the Tribunal shall
immediately inform about the deposit to the Claimants.
(f) The amount deposited shall be apportioned amongst
the Claimants as directed by the Tribunal.
(g) The Claimants are permitted to withdraw the amount
from the Tribunal, subject to payment of a deficit Court
fee, towards the enhanced compensation.
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(h) The amount deposited in the Tribunal shall not be
invested for a period of eight weeks from the date of the
deposit. In the event the amount is not withdrawn
within a period of eight weeks from the date of deposit,
the same shall be invested by the Tribunal, passing
appropriate directions.
(i) The Appellant – insurance company will be entitled to
adjustment of the amount against the already paid
under the impugned Award.
(j) Appeal is disposed of in aforesaid terms.
(k) Record and Proceedings of the Tribunal be immediately
returned.
(SHYAM C. CHANDAK, J.)
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