Gujarat High Court
Bajaj Allianz Genral Insurance Company ... vs Rinkudevi Sohan Prajapati on 20 April, 2026
NEUTRAL CITATION
C/FA/5776/2019 JUDGMENT DATED: 20/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5776 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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BAJAJ ALLIANZ GENRAL INSURANCE COMPANY LTD
Versus
RINKUDEVI SOHAN PRAJAPATI & ORS.
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Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
MR. HEMAL SHAH(6960) for the Defendant(s) No. 1,2
RULE UNSERVED for the Defendant(s) No. 3,4
UNSERVED EXPIRED (R) for the Defendant(s) No. 5
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CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 20/04/2026
JUDGMENT
1. The captioned appeal is preferred against the impugned judgment and award dated 27.06.2019 passed by the learned Motor Accident Claims Tribunal (Main), Jamnagar in M.A.C.P. No. 608 of 2007, whereby the learned Tribunal has partly allowed the claim petition and awarded a sum of Rs.9,70,000/- (Rupees Nine Lacs Seventy Thousand Only) along with interest at the rate of 9% per annum, from the date of filing of the claim petition till realization, as compensation.
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2. A perusal of the record transpires that the respondent no.5 herein - driver of the offending auto-rickshaw had expired, but the appellant-Insurance Company has not taken any step to bring the legal representatives of respondent no.5 herein on record. Therefore, the appeal qua respondent no.5 stands abated.
3. The succinct facts, which lead to the filing of the captioned appeal are summarized as under :-
i. On 03.09.2007, Sohan Ritu Prajapati was travelling in a rickshaw bearing Registration No. GJ-10-W-1434 from Reliance Kolsi Gate to Village Padana. At about 05:00 p.m., when the rickshaw reached ahead of Village Padana, it overturned due to excessive speed and the rash and negligent driving of its driver. As a result of the accident, Sohan Ritu Prajapati sustained grievous injuries and succumbed to the same.
ii. The notices/summons of the Claim Petition were duly served upon the opponents. The opponent no.1 - respondent no.5 herein chosen not to appear before the learned Tribunal, however, the Insurance Company appeared before the learned Tribunal and filed Written-Statement at Exh.20, thereby, denying the averments made in the claim petition in toto.Page 2 of 17 Uploaded by GIRISH K PARMAR(HC00954) on Tue May 05 2026 Downloaded on : Fri May 08 22:55:42 IST 2026
NEUTRAL CITATION C/FA/5776/2019 JUDGMENT DATED: 20/04/2026 undefined iii. Having considered the pleadings of the parties, the learned Tribunal framed the following issues at Exh.30, for determination.
i. Whether the petitioners prove that the deceased died due to the injuries sustained by him in a vehicular accident due to rash and/or negligent driving of the driver of the motor-vehicles involved in the said accident?
ii. Whether the petitioners are entitled to compensation? If yes, what amount and from whom?
iii. What Award?
iv. Having considered the oral as well as documentary evidence on record, and having considered the submissions of the learned counsels for the parties, the learned Tribunal awarded a sum of Rs.9,70,000/- (Rupees Nine Lacs Seventy Thousand Only) along with interest at the rate of 9% per annum, from the date of filing of the claim petition till realization, as compensation.Page 3 of 17 Uploaded by GIRISH K PARMAR(HC00954) on Tue May 05 2026 Downloaded on : Fri May 08 22:55:42 IST 2026
NEUTRAL CITATION C/FA/5776/2019 JUDGMENT DATED: 20/04/2026 undefined v. Being aggrieved and dissatisfied by the impugned judgment and award, the Insurance Company preferred the captioned appeal.
4. Heard learned counsels for the parties.
5. Ms. Kirti Pathak, learned advocate appearing on behalf of the Insurance Company vehemently submitted that at the time of accident, the driver of the offending auto-rickshaw was not having the valid and effective driving license. It is submitted that in order to prove its defence, the Insurance Company has examined Mr.Manish K.Dave at Exh.54. Having placed reliance upon the affidavit in examination-in-chief of Mr.Manish K. Dave, it is submitted that the driver of the auto- rickshaw bearing Registration No.GJ-10-W-1434 was not holding the valid driving license, as the Investigating Officer, in his statement recorded that he lost the driving license. It is submitted that in view of admission of driver of the auto- rickshaw, in his statement made to the police, it is evident from the record that the driver of the auto-rickshaw was not having the valid driving license, therefore, the learned Tribunal has committed an error in holding that the Insurance Company is liable to satisfy the impugned judgment and award. It is submitted that the learned Tribunal ought to have exonerated the Insurance Company in the absence of a valid driving licence. She, therefore, submitted that the captioned appeal deserves to be allowed and the Insurance Company Page 4 of 17 Uploaded by GIRISH K PARMAR(HC00954) on Tue May 05 2026 Downloaded on : Fri May 08 22:55:42 IST 2026 NEUTRAL CITATION C/FA/5776/2019 JUDGMENT DATED: 20/04/2026 undefined ought to have been absolved from satisfying the impugned judgment and award.
6. Per contra, Mr.Hemal Shah, learned advocate appearing on behalf of the original claimants - respondent nos.1 to 4 herein vehemently submitted that the learned Tribunal has rightly observed that the Insurance Company could not prove on record that at the time of accident, the driver of the auto- rickshaw was not holding the valid driving license. It is submitted that the Insurance Company has not examined the witness from the office of the R.T.O. to prove its defence. Therefore, the learned Tribunal has not committed any error in fastening the liability upon the Insurance Company to satisfy the award.
7. It is submitted that the learned Tribunal has awarded a meagre amount of compensation. It is further submitted that although there were four dependents at the time of the accident, the learned Tribunal has erroneously deducted 1/3 towards personal expenses of the deceased instead of 1/4. It is submitted that merely because the parents were residing separately, it cannot be inferred that they were not dependent on the deceased. In support of his contention, he has placed reliance upon the judgment rendered in the case of National Insurance Company Ltd. Vs. Birender & Ors reported in (2020) 11 SCC 356.
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8. It is submitted that the learned Tribunal had awarded meagre amount of compensation under the head of loss of estate and under the head of funeral expenses. In support of his contention, he has placed reliance upon the judgment of Hon'ble Apex Court rendered in the case of National Insurance Company Ltd. Vs. Pranay Sethi reported in 2017 (16) SCC 680.
9. It is submitted that the deceased was survived by his widow, minor child and parents, however, the learned Tribunal had awarded a meagre amount of Rs.40,000/- under the head of loss of consortium. It is submitted that all the claimants are entitled to get the compensation under the head of loss of consortium. In support of his contention, he has placed reliance upon the judgment of Hon'ble Apex Court rendered in the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors. reported in (2018) 18 SCC 130.
10. Having placed reliance upon the aforesaid judgments, learned advocate appearing on behalf of the original claimants
- respondent nos.1 to 4 herein prayed for enhancement of compensation.
11. Per contra, Ms.Kirti Pathak, learned advocate appearing on behalf of appellant-Insurance Company submitted that in absence of any cross-objections or an appeal on behalf of the original claimants/respondents herein, the original Page 6 of 17 Uploaded by GIRISH K PARMAR(HC00954) on Tue May 05 2026 Downloaded on : Fri May 08 22:55:42 IST 2026 NEUTRAL CITATION C/FA/5776/2019 JUDGMENT DATED: 20/04/2026 undefined claimants/respondents herein cannot pray for enhancement of the compensation.
12. In rebuttal, Mr.Hemal Shah, learned advocate appearing on behalf of original claimants/respondents herein submitted that now, it is well settled that in an appeal preferred by the Insurance Company, the original claimants can pray for enhancement of compensation, as the claimants/respondents nos.1 to 4 herein are entitled for "just compensation". The principle of just compensation is applicable not only to the learned Tribunal, but also to this Court. He, therefore, submitted that the contention of the learned counsel for the appellant-Insurance Company is liable to be rejected.
13. Having considered the submissions advanced by learned advocates for the parties and having gone through the record, it is to be noted that the appellant-Insurance Company has challenged the impugned judgment and award on the ground of its liability to satisfy the award, as much as the driver of the offending rickshaw was not holding the valid driving license at the time of accident, while the respondent nos.1 to 4 herein - original claimants before the learned Tribunal has argued for enhancement of compensation, as they are entitled to get "just compensation".
14. So far as the issue of driving license is concerned, it is evident from the record that in order to prove its defence, the Insurance Company has examined its officer viz. Mr.Manish Page 7 of 17 Uploaded by GIRISH K PARMAR(HC00954) on Tue May 05 2026 Downloaded on : Fri May 08 22:55:42 IST 2026 NEUTRAL CITATION C/FA/5776/2019 JUDGMENT DATED: 20/04/2026 undefined K.Dave at Exh.54. In his affidavit in examination-in-chief, the said witness stated that the the driver of the auto-rickshaw was not holding the valid driving license, as he made the statement before the police that he has lost the driving license. In the cross-examination, he admitted that he never met the driver of the auto-rickshaw. He also admitted that in the statement made to the Investigating Officer, he admitted that he lost the driving license. The learned Tribunal, after considering his oral evidence on record, observed in Paragraph No.23, 24 & 25 as under:-
"23. Learned advocate appearing for the Insurance Company has contended that the rickshaw driver was not holding license at the time of accident. In support of his contention, learned advocate for the Insurance Company has relied on the statement of the rickshaw driver wherein he has stated that his driving license is lost. He has also examined Senior Executive of the Insurance Company at Exh.54.
24. But, having lost a driving license does not tantamount to non-possession of driving license. The opponent- Insurance Company has not produced any evidence on record, which may establish that the rickshaw driver was not holding a driving license. No document from RTO is produced on record to that effect nor is any person examined from the RTO. Even in the charge-sheet the police have not charged the rickshaw driver for non-prosecution of a valid driving license. In the circumstances, I am of the opinion that the opponent-Insurance Company has failed to Page 8 of 17 Uploaded by GIRISH K PARMAR(HC00954) on Tue May 05 2026 Downloaded on : Fri May 08 22:55:42 IST 2026 NEUTRAL CITATION C/FA/5776/2019 JUDGMENT DATED: 20/04/2026 undefined discharge its duty to conclusively prove that rickshaw driver was not having any driving license at all.
25. The opponent no.2 has issued the insurance policy Exh.44 in the name of opponent no.1 for the vehicle bearing Engine No.338036 and Chassis No.12337, which match with the RC Book of rickshaw No.GJ-10-W-1434 Exh.41. The said insurance policy is issued for the period from 26.02.2007 to 25.02.2008, which covers the date of accident 03.09.2007. Therefore, the opponent nos.1 and 2, who are respectively owner and insurer of the offending vehicle, are held jointly and severally liable to pay the compensation to the claimants."
15. It is evident from the record that no effort has been made by the Insurance Company to examine officials from the Office of the R.T.O. It is settled law that the Insurance Company has to prove its defence on record. The Insurance Company has only argued that the license was lost. No other evidence has been produced on record. Mere having lost the license would not tantamount that the driver of the auto- rickshaw has no effective driving license at the time of accident. Thus, in light of oral as well as documentary evidence available on record, in my considered opinion, the learned Tribunal has not committed any error in holding that the Insurance Company is liable to satisfy the award.
16. So far as the quantum of compensation is concerned, it emerges from the record that the claim petition was filed by Page 9 of 17 Uploaded by GIRISH K PARMAR(HC00954) on Tue May 05 2026 Downloaded on : Fri May 08 22:55:42 IST 2026 NEUTRAL CITATION C/FA/5776/2019 JUDGMENT DATED: 20/04/2026 undefined the widow, minor child, and parents of the deceased. The respondent No.1 - original claimant No.1, stepped into the witness box and filed her affidavit in lieu of examination-in- chief at Exh.33, wherein she deposed in line with the pleadings. The learned counsel for the Insurance Company cross-examined the said witness; however, during the course of cross-examination, the dependency of original claimant Nos.3 and 4 (parents) was not disputed or challenged. Despite the same, the learned Tribunal, relying upon the fact that the parents were residing separately, concluded that they were not dependent on the deceased. In my considered view, the reasoning recorded by the learned Tribunal is unsustainable, particularly in light of the ratio laid down by the Hon'ble Apex Court in the case of Birender (supra), wherein the Hon'ble Apex Court has relied upon the judgment of Manjuri Bera [Manjuri Bera v. Oriental Insurance Co. Ltd., (2007) 10 SCC 643 and observed in Paragraph No. 12 & 14 as under:
"12. The legal representatives of the deceased could move application for compensation by virtue of clause ( c) of Section 166(1). The major married son who is also earning and not fully dependent on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera [Manjuri Bera v. Oriental Insurance Co. Ltd., (2007) 10 SCC 643 : (2008) 1 SCC (Cri) 585] had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the legal representative concerned. Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera [Manjuri Bera v.Page 10 of 17 Uploaded by GIRISH K PARMAR(HC00954) on Tue May 05 2026 Downloaded on : Fri May 08 22:55:42 IST 2026
NEUTRAL CITATION C/FA/5776/2019 JUDGMENT DATED: 20/04/2026 undefined Oriental Insurance Co. Ltd., (2007) 10 SCC 643 : (2008) 1 SCC (Cri) 585] , the Court observed thus: (SCC pp. 647-48, paras 9-
12) "9. In terms of clause (c) of sub-section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub-section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view [Manjuri Bera v. Oriental Insurance Co. Ltd., 2003 SCC OnLine Cal 523 : (2004) 2 CHN 370] that the appellant could maintain a claim petition in terms of Section 166 of the Act.
10. ... The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.
11. According to Section 2(11) CPC, "legal representative"
means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g).
12. As observed by this Court in Custodian of Branches of Page 11 of 17 Uploaded by GIRISH K PARMAR(HC00954) on Tue May 05 2026 Downloaded on : Fri May 08 22:55:42 IST 2026 NEUTRAL CITATION C/FA/5776/2019 JUDGMENT DATED: 20/04/2026 undefined Banco National Ultramarino v. Nalini Bai Naique [Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique, 1989 Supp (2) SCC 275] the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai [Gujarat SRTC v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234 : 1987 SCC (Cri) 482] a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child."
14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the legal representative concerned was fully dependent on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income Page 12 of 17 Uploaded by GIRISH K PARMAR(HC00954) on Tue May 05 2026 Downloaded on : Fri May 08 22:55:42 IST 2026 NEUTRAL CITATION C/FA/5776/2019 JUDGMENT DATED: 20/04/2026 undefined between Rs 1,00,000 and Rs 1,50,000 per annum. In that sense, they were largely dependent on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years. "
17. Now, adverting to the facts of the present case, more particularly, when the dependency of the parents has not been disputed by the Insurance Company, there is no reason to held that the parents were not dependent upon the deceased more particularly, when the father of the deceased was retired and mother is also a homemaker. Therefore, the learned Tribunal has committed error in deducting 1/3 instead of 1/4 on account of personal expenses of the deceased.
18. Therefore, after deducting ¼ from the annual income of the deceased (which is not under challenge) the annual loss of dependency would come to Rs.67,500/- (Rs.90,000/- - Rs.22,500/- (¼ of Rs.90,000/-). It is not in dispute that the multiplier is not under challenge. Thus, after applying the multiplier of 15, the future loss of dependency would come to Rs.10,12,500/- (Rs.67,500 x 12 x 15).
19. The learned Tribunal had awarded a meagre amount of Rs.15,000/- under the head of loss of estate, Rs.15,000/- under the head of funeral expenses. In view of the ratio laid down by the Hon'ble Apex Court in case of Pranay Sethi (supra), the compensation awarded under these heads is Page 13 of 17 Uploaded by GIRISH K PARMAR(HC00954) on Tue May 05 2026 Downloaded on : Fri May 08 22:55:42 IST 2026 NEUTRAL CITATION C/FA/5776/2019 JUDGMENT DATED: 20/04/2026 undefined enhanced to Rs.18,150/- each. The learned Tribunal had awarded a sum of Rs.40,000/- under the under head of loss of consortium. It is evident from the record that the deceased was survived by his widow, minor child and parents. In view of ratio laid down by the Hon'ble Apex Court in the case of Magma General Insurance Company Limited (supra), all the claimants are entitled to get the compensation under the head of loss of consortium. Hence, accordingly, a sum of Rs.1,93,600/- (i.e. Rs.48,400/- X 4) is awarded under the head of loss of consortium.
20. Thus, in view of the above discussion, the original claimants/respondent nos.1 to 4 herein shall be entitled for the following compensation under the following heads:-
Sr. No. Heads Amount Awarded in
rupees.
1 Loss of future dependency 10,12,500/-
2 Loss of consortium (+) 1,93,600/-
3 Loss of estate (+) 18,150/-
4 Funeral expenses (+) 18,150/-
Total Compensation (=) Rs. 12,42,400/-
Compensation awarded by
impugned Judgment and (-) Rs. 9,70,000/-
Award
Enhanced amount of (=) Rs. 2,72,400/-
compensation
21. The learned Tribunal, vide its impugned judgment and Page 14 of 17 Uploaded by GIRISH K PARMAR(HC00954) on Tue May 05 2026 Downloaded on : Fri May 08 22:55:42 IST 2026 NEUTRAL CITATION C/FA/5776/2019 JUDGMENT DATED: 20/04/2026 undefined award, had awarded a sum of Rs.9,70,000/- (Rupees Nine Lakh Seventy Thousand Only) along with interest at the rate of 9% per annum, from the date of filing of the claim petition till realization, as compensation. Therefore, in view of the above discussions, the claimants-respondent nos.1 to 4 herein shall be entitled for an additional compensation to the tune of Rs.2,72,400/- (Rs.12,42,400/- - Rs.9,70,000/-). The learned Tribunal had awarded interest at the rate of 9% per annum from the date of filing of claim petition till realization, therefore, the claimants shall be entitled for the same rate of interest per annum on the additional amount of compensation from the date of filing the claim petition till realization.
22. Now, the question arises as to whether in absence of any appeal or cross-objections from the original claimants, whether the compensation can be enhanced in appeal preferred by the Insurance Company. The issue is no more res-integra and the same has been settled by the Hon'ble Apex Court in the case of Surekha W/o. Rajendra Nakhate & Ors.
Vs. Santosh S/o. Namdeo Jadhav & Ors. 2021 (16) SCC 467, wherein the Hon'ble Apex Court in Paragraph Nos.1 & 2 has observed as under:-
"1. .... This appeal takes exception to the judgment and order dated 4-1-2019 [Shriram General Insurance Co. Ltd. v. Surekha, 2019 SCC OnLine Bom 12] passed by the High Court of Judicature at Bombay, Bench at Aurangabad in First Appeal No. 2564 of 2016, whereby the High Court, even though agreed with the stand of the appellants that just compensation Page 15 of 17 Uploaded by GIRISH K PARMAR(HC00954) on Tue May 05 2026 Downloaded on : Fri May 08 22:55:42 IST 2026 NEUTRAL CITATION C/FA/5776/2019 JUDGMENT DATED: 20/04/2026 undefined amount ought to be Rs 49,85,376 (Rupees forty-nine lakhs eighty-five thousand three hundred seventy-six only), however, declined to grant enhancement merely on the ground that the appellants had failed to file cross-appeal.
2. 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 hyper technical approach and ensure that just compensation is awarded to the affected person or the claimants."
23. In view of the ratio laid down by the Hon'ble Apex Court in the case of Surekha (supra), contention raised by the learned advocate appearing on behalf of the Insurance Company is not sustainable. Hence, accordingly, the original claimants-respondent nos.1 to 4 herein shall be entitled for an additional compensation of Rs.2,72,400/-.
24. In view of the above discussion, the captioned appeal stands dismissed. The original claimants-respondent nos.1 to 4 herein shall be entitled for an additional compensation of Rs.2,72,400/-. The appellant-Insurance Company shall deposit the enhanced amount of compensation along with interest within a period of four weeks from the date of receipt of copy of this order. Upon depositing the said amount, learned Tribunal shall disburse the amount of compensation to the original claimants, after deducting deficit of court fee, if any, after due verification.
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25. If any amount of compensation, or any statutory amount, lying deposited with the Registry of this Court shall be transmitted to the learned Tribunal concerned, in accordance with the applicable Rules. Records & Proceedings, if any be sent to the learned Tribunal concerned. No order as to costs.
26. Pending application, if any, stands disposed of, accordingly.
(MOOL CHAND TYAGI, J) GIRISH Page 17 of 17 Uploaded by GIRISH K PARMAR(HC00954) on Tue May 05 2026 Downloaded on : Fri May 08 22:55:42 IST 2026