Gujarat High Court
Pushpaben Wd/O Govindbhai Kabhayibhai ... vs Kantibhai Chandubhai Solanki on 24 February, 2026
NEUTRAL CITATION
C/FA/172/2024 JUDGMENT DATED: 24/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 172 of 2024
With
R/FIRST APPEAL NO. 3929 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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PUSHPABEN WD/O GOVINDBHAI KABHAYIBHAI PARMAR & ORS.
Versus
KANTIBHAI CHANDUBHAI SOLANKI & ORS.
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Appearance:
MR A R DWIVEDI(11319) for the Appellant(s) No. 1,2,3,4,5,6,7
MS POOJA H HOTCHANDANI(7765) for the Appellant(s) No.
1,2,3,4,5,6,7
MASUMI V NANAVATY(9321) for the Defendant(s) No. 3
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 24/02/2026
COMMON ORAL JUDGMENT
Since both these appeals are arising out of the same accident and the grounds and issue involved in both the appeals are common, they have been heard together and are being decided by this common judgment. The First Appeal No.172 of 2024 arises out of MAC Petition No.236 of 2017 and the First Appeal No.3929 of 2023 arises out of MAC Petition No.237 of 2017.
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1) Feeling aggrieved and dissatisfied with the common judgment and award dated 08.06.2023 passed by learned Motor Accident Claims Tribunal (Main), Anand (which shall hereinafter be referred to as "the Tribunal" for short), in Motor Accident Claim Petition Nos.236 of 2017 and 237 of 2017, the appellants - original claimants have preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (which shall hereinafter be referred to as "the Act" for short).
2) Heard learned Advocate Mr. A. R. Dwivedi, learned Advocate for the appellants - original Claimants and learned Advocate Ms. M. V. Nanavaty, for respondent no.3 - Insurance Company. The respondent nos.1 and 2 are duly served but did not appear before this Court. Perused the original record and proceedings. .
3) It is the case of the appellants that on 26.12.2015 the deceased Govindbhai (who shall hereinafter be referred to as "deceased" for short) and injured Kantibhai (who shall hereinafter be referred to as "injured / claimant" for short) along with other went for a tour to visit Harshadmata Temple near Dwarka. All of them were sitting in Eicher bearing Reg. No.GJ-16-V-5539. When they reached Bagodara Limdi Highway, the Eicher malfunctioned and stopped. Therefore, the driver of the Eicher got down and opened the bonnet and was looking for the fault in Eicher and the deceased switched on the light, at that time one Page 2 of 17 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Feb 26 2026 Downloaded on : Sat Mar 14 04:48:54 IST 2026 NEUTRAL CITATION C/FA/172/2024 JUDGMENT DATED: 24/02/2026 undefined Truck came from Bagodara side came and dashed with the Eicher. Therefore, the Eicher turned turtle and as a result of which the deceased sustained serious injuries and thereby died during the treatment and the driver of the Eicher also sustained serious injuries. Therefore, the appellants had filed MAC Petitions seeking compensation, wherein, the learned Tribunal after appreciating the evidence produced on record partly allowed both the claim petitions.
4) Learned Advocate for the appellants has submitted that the learned Tribunal has committed error while assessing income of the deceased as well as injured. He has further submitted that the Tribunal also erred in awarding meagre amount towards conventional heads to the heirs of the deceased and also awarded meagre amount towards non pecuniary loss to the injured. He has further submitted that the Tribunal also erred in considering the contributory negligence to the extent of 70% on the part of unknown Truck, while for the deceased it is the case of composite negligent, whereas, the injured was working as paid driver on Eicher Tempo and his risk was covered under the policy issued by the Insurance Company and therefore also composite negligence is required to be considered. Hence, he has requested to allow both the appeals.
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5) Learned Advocate for the respondent - insurance company has submitted that the Tribunal has not committed any error in awarding the compensation and the same is just and proper. She has further submitted that the learned Tribunal has properly appreciated the evidence and assessed the negligence and fastened the liability and therefore no interference of this Court is required. Hence, she has requested to dismiss both the present appeals.
FIRST APPEAL NO.172 OF 2024 (MAC PETITION NO.236 OF 2017)
6) Having heard the learned Advocates for the respective parties, going through the record it appears that the deceased was travelling in the Eicher bearing Reg. No.GJ-16-V-5539, as an occupant and a third party and for him it is the case of composite negligence while the learned Tribunal has made apportionment for liability as 30% of the Eicher driver and 70% of driver of the Truck. Further, the learned Tribunal has observed that the appellants have waived their right to sue the driver of the unknown truck and therefore, the claimants can claim 30% of compensation from the driver and owner of the Eicher bearing Reg. No.GJ-16-V-5539, but in absence of any pursis or material or any submission on record the learned Tribunal on its own drawn inference that the legal heirs of the Page 4 of 17 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Feb 26 2026 Downloaded on : Sat Mar 14 04:48:54 IST 2026 NEUTRAL CITATION C/FA/172/2024 JUDGMENT DATED: 24/02/2026 undefined deceased i.e. claimants have waived their right to sue the driver of the unknown truck. Hence, they are not entitled to claim amount of compensation up to that extent.
7) However, in view of Khenyei Vs New India Assurance Co.
Ltd., & Ors, reported in (2015) 9 Supreme Court Cases 273, in case of composite negligence the claimant being third party he has right to recover the amount of the compensation from any of the tortfeasor and if any of the tortfeasor is satisfied with the said order then one tortfeasor has right to recover the amount from another tortfeasor on whose behalf he has made the payment of said compensation and another tortfeasor owes the compensation to the tortfeasor who has already paid the compensation on his behalf. In view of Khenyei (supra) para 18(iv) reads as under :
"(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors.
In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
8) In view of above, the apportionment of 30% negligence on the part of the driver of Eicher bearing Reg. No.GJ-16-V-5539 and 70% negligence on the part of the driver of unknown Truck, is inter-se liability of the vehicles and the deceased has nothing to Page 5 of 17 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Feb 26 2026 Downloaded on : Sat Mar 14 04:48:54 IST 2026 NEUTRAL CITATION C/FA/172/2024 JUDGMENT DATED: 24/02/2026 undefined do with any apportionment between two offending vehicles or inter-se liability of the vehicles. The deceased is entitled to get the compensation from either of the tortfeasor or from both the tort-feasors jointly and finding qua contributory negligence is not applicable in the case of the deceased as he is third party and for him the case is of composite negligence. Hence, the learned Tribunal has committed error in deducting 70% amount of compensation even the deceased is not a tort-feasor. Accordingly, the order qua deducting 70% amount from the compensation is modified and the appellants are held entitled to get 100% compensation from the respondents.
9) Now coming to the quantum part, as per the law laid down by the Hon'ble Supreme Court in the case of Govind Yadav Vs. National Insurance Co. Ltd., reported in 2012(1) TAC 1 (SC), that if no proof of income is produced on the record then Tribunal has to consider prevalent minimum wages in absence of evidence of monthly income of the deceased. In the present case the accident occurred on 26.12.2015 and during that time the deceased was doing work of Centering on contract and used to earn Rs.10,000/- per month, but in absence of any proof of income, the Tribunal has assessed notional income of Rs.4,000/- per month, whereas, as per the minimum wages of prevalent time for unskilled person the rate is Rs.7,444/- and hence, the Page 6 of 17 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Feb 26 2026 Downloaded on : Sat Mar 14 04:48:54 IST 2026 NEUTRAL CITATION C/FA/172/2024 JUDGMENT DATED: 24/02/2026 undefined income of the deceased is reassessed and enhanced to Rs.7,450/- per month. Further, as the deceased was aged 50 years at the time of accident on the basis of which the learned Tribunal has considered future prospective income as 25% and as the deceased has left behind seven dependents 1/5 deduction towards personal and living expenses of the deceased and multiplier of 13 were considered by the learned Tribunal as per the judgment of the Apex Court in the case of Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr., reported in [2009 (6) SCC 121] and National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 ACJ 2700, which are just and proper.
10) Therefore, recalculating the income of the deceased as Rs.7,450/- and future prospect of 25% = Rs.1,862/- which comes to Rs.9,312/- and 1/5 amount is required to be deducted towards personal living expenses of the deceased which comes to Rs.1,862/- and the net amount comes to Rs.7,450/-. In view of above the amount under the head of future loss of income is required to be reassessed as Rs.7,450/- x 12 x 13 = Rs.11,62,200/-. Therefore, the appellants are entitled to get additional amount of Rs.5,38,200/- towards future loss of income.
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11) Further, the learned Tribunal by relying on the judgment of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 ACJ 2700, has awarded total Rs.30,000/- towards tow conventional heads, however, this Court is of the view that amount is required to be reassessed as Rs.18,150/- towards loss of estate, Rs.18,150/- towards funeral expenses. Therefore, the appellants - original claimants are entitled for additional amount of Rs.6,300/- (i.e. Rs.18,150/- - Rs.15,000/- = Rs.3,150/- towards loss of estate and Rs.18,150/- - Rs.15,000/- = Rs.3,150/- towards funeral expenses).
12) Further, in view of ratio laid down by the Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd., Vs. Nanu Ram, reported in (2018) 18 SCC 130 and Janabai Wd/o Dinkarrao Ghorpade & Ors., Vs M/s ICICI Lambord Insurance Company Ltd., reported in 2022 LiveLaw (SC) 666, the learned Tribunal has committed error in awarding only Rs.40,000/- each (Rs.2,80,000/-) towards loss of consortium, however, in view of above judgments the appellants - original claimants are entitled for Rs.48,400/- each towards the head of loss of consortium. Therefore, the amount towards loss of consortium is reassessed as Rs.3,38,800/- (i.e. Rs.48,400/- X
7). Therefore, the appellants are entitled for additional amount of Rs.58,800/- under the head of loss of consortium. Page 8 of 17 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Feb 26 2026 Downloaded on : Sat Mar 14 04:48:54 IST 2026
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13) As discussed above, the appellants - original claimants are entitled to get compensation computed as under:
Heads Awarded by Reassessed by this Court Tribunal Future loss of income Rs.6,24,000/- Rs.11,62,200/-
including additional amount of Rs.5,38,200/-
Loss of estate Rs.15,000/- Rs.18,150/-
including additional amount of Rs.3,150/-
Funeral expenses Rs.15,000/- Rs.18,150/-
including additional amount of Rs.3,150/-
Loss of consortium Rs.2,80,000/- Rs.3,38,800/-
including additional amount of Rs.58,800/-
(Rs.48,400/- X 7) Total compensation Rs.9,34,000/- Rs.15,37,300/-
including total additional amount of Rs.6,03,300/-
Total awarded Rs.2,80,200/- Deduction qua 70% of amount (after deducting awarded amount is 70% contributory quashed and set aside.
negligent of
unknown truck)
Additional amount Rs.12,57,100/-
(Rs.15,37,300/- - Rs.2,80,200/-)
14) In view of above, as the Tribunal has awarded total
compensation of Rs.2,80,200/-, however, as discussed above the appellants are entitled to get additional amount of Rs.12,57,100/- (Rs.15,37,300/- - Rs.2,80,200/-) with proportionate costs and interest as awarded by the learned Tribunal.Page 9 of 17 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Feb 26 2026 Downloaded on : Sat Mar 14 04:48:54 IST 2026
NEUTRAL CITATION C/FA/172/2024 JUDGMENT DATED: 24/02/2026 undefined FIRST APPEAL NO.3929 OF 2023 (MAC PETITION NO.237 OF 2017)
15) Having heard the learned Advocates of the respective parties and going through the record it appears that the learned Tribunal has considered oral evidence of the claimant at Exhibit 25, FIR at Exhibit 34, panchnama at Exhibit 42, Disability Certificate at Exhibit 32, Insurance Policy of Eicher at Exhibit 29.
As per the panchnama the driver of the Eicher had parked the Eicher on the side of the road and there is no mention that the indicators were on or any reflector was placed and it seems that the Eicher was parked on the road without any indicators that too on two lane road. Therefore, it can be said that the injured - appellant has negligently and carelessly parked the Eicher, hence, the appellant - driver of the Eicher to the extent of 30% negligent in the occurrence of the accident. Now the facts remains that as the appellant - injured himself was negligent as to whether he is entitled for compensation or not. It is undisputed fact that the appellant was a paid driver and policy at Exhibit 29 was issued by the respondent no.2 is a "Commercial Vehicle Goods Carrying - Liability" policy which reflects that the insurance company has charged Rs.50/- against legal liability to paid driver which is defined under IMT. 28, reads as under:
"IMT28-Legal Liability to Driver Page 10 of 17 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Feb 26 2026 Downloaded on : Sat Mar 14 04:48:54 IST 2026 NEUTRAL CITATION C/FA/172/2024 JUDGMENT DATED: 24/02/2026 undefined In consideration of an additional premium of Rs. 50/- notwithstanding anything to the contrary contained in the policy it is hereby understood and agreed that the insurer shall indemnify the insured against the insured's legal liability under the Workmen's Compensation Act, 1923, the Fatal Accidents Act, 1855 or at Common Law and subsequent amendments of these Acts prior to the date of this Endorsement in respect of personal to any paid driver and/or conductor and/or cleaner whilst engaged in the service of the insured in such occupation in connection with the vehicle insured herein and will in addition be responsible for all costs and expenses incurred with its written consent.
Provided always that (1) this Endorsement does not indemnify the insured in respect of any liability in cases where the insured holds or subsequently effects with any insurer or group of insurers a Policy of Insurance in respect of liability as herein defined for insured's general employees;
(2) the insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations;
*(3) the insured shall keep record of the name of each paid driver conductor cleaner or persons employed in loading and/or unloading and the amount of wages and salaries and other earnings paid to such employees and shall at all times allow the insurer to inspect such records on demand.
(4) in the event of the Policy being cancelled at the request of the insured no refund of the premium paid in respect of this Endorsement will be allowed.
16) Further, in view of the judgment in the case of Valiben Laxmanbhai Thakore (Koli) Vs Kandla Dock Labour Board, Page 11 of 17 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Feb 26 2026 Downloaded on : Sat Mar 14 04:48:54 IST 2026 NEUTRAL CITATION C/FA/172/2024 JUDGMENT DATED: 24/02/2026 undefined reported in 2022 (1) GLR 440, paragraph 13 reads thus:
13. Thus, when the owner of a vehicle pay additional premium and same is accepted by the Insurance Company, liability of the Insurance Company gets extended under the Motor Vehicles Act. Section 147 of the Act clearly prescribes for statutory liability to cover risk of paid Driver and Conductor under the Insurance Policy, which is a matter of contract. On payment of such additional premium by the owner, the liability of the owner shifts upon the Insurance Company. Thus, the risk of paid Driver and Conductor would be covered under the Insurance Policy. Only when the additional premium is not paid, liability would be as per the Employees Compensation Act, 1923 and in such cases, compensation would be computed as prescribed under the Act which is limited to the extent provided under provisions of the Act.
However, when owner pays additional premium to cover the legal liability of his paid driver and conductor to the Insurance Company, as such, the Insurance Company is enlarging the scope for unlimited liability for payment of compensation, when additional premium is accepted. The liability of the Insurance Company gets extended and it has no right to raise issue of self negligence or otherwise of the such class of the driver of the Insured vehicle. By accepting additional premium as per the IMT 28, the Insurance Company expressed its willingness to extend its liability under the Clause of Legal Liability to the Paid driver and conductor as envisaged under Section 147 of the Act. Thus, in our opinion, Insurance Company has no legal right to avoid its legal liability under the indemnity clause arising from the contract of insurance towards the insured - owner of such classes of vehicles.
17) Therefore, in view of above, the Insurance Company cannot absolved from the liability and there is no cap on the amount of compensation payable by the Insurance Company in the policy and there is also not in dispute that the tariff fixed by the Indian Page 12 of 17 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Feb 26 2026 Downloaded on : Sat Mar 14 04:48:54 IST 2026 NEUTRAL CITATION C/FA/172/2024 JUDGMENT DATED: 24/02/2026 undefined Motor Tariff is not applicable in respect of such accident claim. Hence, question of self negligence does not arise on the part of the appellant. Hence, the learned Tribunal has rightly come to the conclusion that the cost is covered under the terms and conditions of the policy irrespective of the negligence on the part of the appellant. The policy was in force from 28.02.2015 to 27.02.2016 and the accident took place on 26.12.2015, therefore, the risk is covered under the said policy at the time of accident. Moreover, the Tribunal in absence of any pursis or material or any submission on record drawn inference that the appellant has waived the claim amount against the driver of the unknown truck. Hence, this Court is of the view that the Tribunal has committed error while deducting 70% of the awarded amount, and up to that extent interference is required. Accordingly, the order qua deducting 70% amount from the compensation is modified and the appellant is held entitled to get 100% compensation from the respondents.
18) So far the quantum part is concerned, as per the law laid down by the Hon'ble Supreme Court in the case of Govind Yadav Vs. National Insurance Co. Ltd., reported in 2012(1) TAC 1 (SC), that if no proof of income is produced on the record then Tribunal has to consider prevalent minimum wages. In absence of evidence of monthly income of the appellant. In the present Page 13 of 17 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Feb 26 2026 Downloaded on : Sat Mar 14 04:48:54 IST 2026 NEUTRAL CITATION C/FA/172/2024 JUDGMENT DATED: 24/02/2026 undefined case the accident occurred on 26.12.2015 and during that time the appellant - injured was driver, whereas, the Tribunal has assessed the income of the deceased as Rs.4,000/- per month which is required to be enhanced as per the minimum wages which is Rs.7,886/- and hence, the income of the injured is reassessed as Rs.7,900/- per month. Further, the Tribunal has considered disability of the injured as 22.50% which is not challenged by the appellant in the present appeal therefore no further discussion is required. Further, considering the age of the appellant as 46 to 48 years, the multiplier of 13 was considered by the learned Tribunal as per the judgment of the Apex Court in the case of Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121] which are just and proper. It appears that the learned Tribunal has committed error in not considering future prospect, however, this Court is of the view that 25% addition towards future prospectus is required to be awarded as per the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 ACJ 2700.
19) Moreover, considering the nature of injuries, period of treatment and medical bills produced on record, the learned Tribunal has awarded Rs.5,000/- towards pain, shock and agony, Rs.8,139/- towards medical expenditure, which are just and proper. Page 14 of 17 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Feb 26 2026 Downloaded on : Sat Mar 14 04:48:54 IST 2026
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20) Therefore, recalculating the income of appellant as Rs.7,900/-
and future prospect of 25% = Rs.1,975/- which comes to Rs.9,875/-. Now total income towards future loss of income is required to be considered as Rs.9,875/- x 12 x 13 x 22.50% / 100 = Rs.3,46,612/-. Therefore, the appellant is entitled to get additional amount of Rs.2,06,212/- towards future loss of income. Similarly, as this Court has reassessed the income of the appellant the amount of Rs.4,000/- is also required to be enhanced to Rs.7,900/- towards actual loss of income.
21) As discussed above, the appellant - injured - original claimant is entitled to get compensation computed as under:
Heads Awarded by Reassessed by this Court Tribunal Future loss of income Rs.1,40,400/- Rs.3,46,612/-
including additional amount of Rs.2,06,212/-
Pain, shock and Rs.5,000/- Rs.5,000/-
suffering
Actual loss of income Rs.4,000/- Rs.7,900/-
including additional
amount of Rs.3,900/-
Medical expenditure Rs.8,139/- Rs.8,139/-
Total compensation Rs.1,57,539/- Rs.3,67,651/-
including total additional
amount of Rs.2,10,112/-
Total awarded Rs.47,262/- NIL
amount (after deducting
70% for
contributory
negligent of driver
of unknown truck)
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NEUTRAL CITATION
C/FA/172/2024 JUDGMENT DATED: 24/02/2026
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Enhanced amount of Rs.3,20,389/-
compensation (Rs.3,67,651/- - Rs.47,262/-)
22) In view of above, as the Tribunal has awarded total
compensation of Rs.47,2662/-, however, as discussed above the appellant is entitled to get additional amount of Rs.3,20,389/-
(Rs.3,67,651/- - Rs.47,262/-) with proportionate costs and interest as awarded by the learned Tribunal.
23) Hence, both the present appeals are partly allowed. The common judgment and award dated 08.06.2023 passed by learned Motor Accident Claims Tribunal (Main), Anand, in MAC Petition Nos.236 of 2017 and 237 of 2017 stand modified to the aforesaid extent. Rest of the judgment and award remains unaltered.
24) In First Appeal No.172 of 2024, the respondent no.3 -
Insurance Company shall deposit the said additional amount of Rs.12,57,100/- along with interest in the ratio as awarded by the Tribunal, before the Tribunal within a period of four weeks from the date of receipt of this order.
However, it is kept open for the respondent no.3 - Insurance Company, if desires, to take appropriate action against another tort-feasor who is not joined as a party. Page 16 of 17 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Feb 26 2026 Downloaded on : Sat Mar 14 04:48:54 IST 2026
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25) In First Appeal No.3929 of 2023 the respondent no.2 -
Insurance Company shall deposit the said additional amount of Rs.3,20,389/- along with interest in the ratio as awarded by the Tribunal, before the Tribunal within a period of four weeks from the date of receipt of this order.
26) The learned Tribunal is directed to recover or deduct the deficit court fees on enhanced amount and thereafter disburse the amount accordingly.
27) Award to be drawn accordingly.
(HASMUKH D. SUTHAR,J)
ANKIT JANSARI
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