Oriental Insurance Company Ltd. vs Padmavati Pundlik Bhalerao And Ors.

Court
Bombay High Court

CNR No : HCBM010223752008

2026:BHC-AS:43237
903-XOB(ST)-16137-2008-IN-FA-2048-2005.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION
CROSS OBJECTION (ST) NO.16137 OF 2008
SATISH
RAMCHANDRA
SANGAR
IN
FIRST APPEAL NO.2048 OF 2005
Digitally signed by
SATISH RAMCHANDRA
SANGAR
Date: 2026.10.23
19:09:05 +0530
Oriental Insurance Company Ltd., }
Mumbai Regional Office No.2, }
Oriental House, Jamshedji Tata Road, }
Mumbai – 400020. } ...Appellant
Versus
1. Smt.Padmavati Pundalik Bhalerao, }
(Deceased), Through Legal Representatives:- }
1(a). Smt.Jyoti Pundalik Bhalerao, }
Age : 39 Years, Occupation : Service, }
Residing at : Block No.16, Mahesh Society, }
Gayatri Nagar, Opposite Siddharth Hotel, }
Nashik Road, Nashik. }
1(b). Chandrakant Pundalik Bhalerao, }
Age : 52 Years, Occupation : Service, }
Residing at : Bachundra Society, Rajiv Nagar, }
Block No.12, CIDCO, Kanifnath Chowk, }
Nashik. }
2. Maharashtra State Road Transport Corporation,}
Nashik Through the Divisional Office, Singada }
Talav, N.D. Patel Road, Nashik. }
3. Shri Baban Sitaram Vadakte, }
Age : Major, Residing at : S.T.Depot, }
Satana, District : Nashik, [Bus driver]. }
4. Madanlal Bhagchand Bhandari, }
Adult, Residing at : Near S. T. Stand, }
Bhadgaon, District : Jalgaon, [Tempo Driver] }
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903-XOB(ST)-16137-2008-IN-FA-2048-2005.doc
5. Khalilkhan Musakhan Pathan, }
Residing at : Bhadgaon, District : Jalgaon, }
[Tempo Driver]. } ...Respondents

====================================================
Mr.Shriram S. Kulkarni a/w Advocates for the Claimants.
Mr.Gaurav Ugle:-
Mr.Sachin Raje:- Advocate for Insurance Company.
====================================================
CORAM : S. M. MODAK, J.
th
DATE : 14 OCTOBER 2026

ORAL JUDGMENT :-
1. Heard learned Advocate Shri.Kulkarni for the claimants who
have filed Cross-objection. They are the original claimants. Also heard
learned Advocate Shri.Raje for the Insurance Company. Their Appeal
th th
challenging the Award dated 9 March 2004 was dismissed on 28
July 2025 for non–prosecution. Admittedly, no restoration Application
is filed.
2. It is true, the Motor Accident Claims Tribunal – Nashik
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(“Tribunal”) as per the Award dated 9 March 2004 has directed the
Insurance Company to pay the compensation first and then to recover
it from the Madanlal who is the owner of the tempo.
3. There are two vehicles involved. The claimant Padmavati was
travelling in tempo owned by Madanlal and insured with Oriental
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Insurance Company Limited. Though she claims that she is owner of

the goods, however, the Tribunal in paragraph No.11 of the judgment
observed that she was gratuitous passenger and hence, the Insurer
cannot be held responsible. In view of this finding, the Insurance
Company has preferred the Appeal on the ground that on the basis of
such finding, even the Insurance Company cannot be asked first to
deposit the amount and then to recover it from the Insured.
Unfortunately, their Appeal is dismissed. So also in Cross-objection,
the original claimant who died during pendency of the Appeal has not
challenged those findings. In view of that, the Court cannot ascertain
the correctness of those findings. Though Mr.Raje relied upon the
observations in judgment of Shriram General Insurance Company Ltd
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V/s. Sheela Bai and Others , I am unable to agree to his submission
because his Appeal is dismissed. Mr.Raje submitted that when the First
Appeal was dismissed for non–prosecution, he was not on record. He
came on record after the Cross-objection is filed.
4. On this background, this Court has to ascertain whether the legal
representatives of the claimant are entitled for enhancement. The
disability sustained by her is 30%. However, in her evidence, she
th
1
Misc.Appeal No.3130 of 2013 : Madhya Pradesh High Court : 12 March 2025
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deposed that after accident, she was not able to stand and even not able

to drink. Rather was not in a position to visit the vegetable market and
to do the agricultural work and that is how, Mr.Kulkarni submitted
that it is a case of 100% disability and that is how, in the computation,
he has suggested that instead of deducting 30% from the total income,
the total income should be considered as ‘loss of income’ .
5. The claimant has given details about the injuries sustained by her
and about hospitalization. Even, she has examined doctor Sunil Shah
who has treated her and issued the certificate at Exhibit–49. In his
evidence, he has explained the injuries as follows:-
(a) Fracture radius ulna left ;
(b) Fracture tibia fibula ;
(c) Fracture surgical neck humerus both sides ;
(d) Fracture maxillary right side.
6. It is true two fractures are at lower limb. The age of the claimant
was 51 years. Mr.Kulkarni has also invited my attention to the cross-
examination of his client and that of the medical officer. I have perused
it. I do not find that her claim about total incapacity to do the work is
seriously challenged. It is true, the law on the point of disability is
explained by the Hon’ble Supreme Court in case of Raj Kumar V/s.
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Ajay Kumar and Another . It is explained by way of illustration. If a

carpenter has met with an accident and his hand is amputated, even
though the physical disability may be less, it can be presumed that it is
100% disability. Because in doing carpentry, he has to use his hand. In
this case, the original claimant was vegetable vendor and after the
accident, she was not in a position to do that work and visit market. So,
it can be considered as 100% disability.
7. The Tribunal has considered her earning as Rs.3,600/- per
month. In fact, it ought to have been Rs.3,000/- per month. The
claimant has relied upon the certificate issued by the Tahsildar opining
that the income of the original claimant is Rs.36,800/- p.a. It is not
tendered in evidence. However, the Court can certainly consider the
notional income of vegetable vendor in the year 1995. I consider it at
Rs.3,000/- per month.
8. It is true that Court is required to consider the future prospects
and apply the multiplier depending upon the age. It is done by the
Tribunal. If we apply it, the loss of income will be Rs.3,000/-
multiplied by 11, it comes to Rs.33,000/-. I consider 100% loss of
income for the reason stated herein above. The compensation can be
2
(2011) 1 Supreme Court Cases 343
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awarded on account of certain other heads. It is as follows:-

(a) The Tribunal has granted Rs.15,000/- towards medical
expenses . I consider it as reasonable. Because vouchers are
not produced.
(b) Towards Special diet, attendance and conveyance , the
Tribunal has granted Rs.5,000/-. I consider it as Rs.10,000/-.
(c) For Loss of amenities , the Tribunal has considered
Rs.20,000/-. I consider it as reasonable.
(d) For pain and suffering , the amount claimed is Rs.3,00,000/-.
Mr.Kulkarni relied upon the observations in case of
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K.S.Muralidhar V/s. R. Subbulakshmi and Another
(paragraph No.14). It is on the basis of the facts of that case. I
consider the compensation for pain and suffering as
Rs.50,000/-.
(e) Loss of income Rs.3,000X11X12=Rs.3,96,000/-.
9. In nutshell, the original claimant / her legal representatives are
entitled to receive enhanced compensation of Rs.4,71,000/-. Mr.Raje
submitted that as she was a gratuitous passenger, liability of enhanced
compensation cannot be fastened on the Insurer first and instead of
that it has to be fastened on the Insured. I am unable to subscribe to his
submission because their Appeal is dismissed. First the Insurer has to
pay and then they can recover it from the Insured.
10. Consequently, following order is passed:-
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2024 SCC OnLine SC 3385
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-: O R D E R :-

(a) The Cross-objection is allowed.
(b) The Insurer – Oriental Insurance Company Limited and the
Respondent No.4 – Madanlal Bhagchand Bhandari are
directed to pay jointly and severally a sum of Rs.4,71,000/-
(in addition to compensation granted by the Tribunal) along
with interest at the rate of 9% per annum from the date of
filing of Claim Petition till realization.
(c) The Oriental Insurance Company Limited to deposit the
amount within 10 weeks from today before the Tribunal.
(d) The Appellants in Cross-objection are permitted to withdraw
that amount.
(e) The Oriental Insurance Company Limited is at liberty to
recover that amount from the said Madanlal Bhagchand
Bhandari.
(f) Additional Court fee, if any, be paid by the original
claimants.
11. In the above terms, the Cross-objection is disposed of.
12. Pending Applications, if any, also stand disposed of.
[S. M. MODAK, J.]
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