Gujarat High Court
Shardaben Harshadbhai Patel vs Dhanjibhai Purshottambhai Solanki on 4 August, 2025
NEUTRAL CITATION
C/FA/2352/2013 JUDGMENT DATED: 04/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2352 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE D. M. VYAS
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Approved for Reporting Yes No
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SHARDABEN HARSHADBHAI PATEL & ORS.
Versus
DHANJIBHAI PURSHOTTAMBHAI SOLANKI & ORS.
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Appearance:
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,2,3
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 3
MR P C CHAUDHARI(5770) for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE D. M. VYAS
Date : 04/08/2025
ORAL JUDGMENT
1. The present appeal is filed by the original claimants under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act, 1988") being aggrieved and dissatisfied with the impugned judgment and award dated 04.12.2006 passed by the Motor Accident Claims Tribunal (Auxi), Vadodara in MACP No.474 of 1996.
2. Vide the said impugned judgment and award, the Tribunal has partly allowed the claim petition preferred by the present appellants - original claimants under Page 1 of 9 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:11:22 IST 2025 NEUTRAL CITATION C/FA/2352/2013 JUDGMENT DATED: 04/08/2025 undefined Section 166 of the Act, 1988 holding the present appellants- original claimants entitled to an amount of Rs.1,97,500/- with interest at the rate of 7.5% per annum from the date of filing of such claim petition till its actual realization with proportionate costs. Thus, the Tribunal has not entertained the claim petition for an amount of Rs.4 lakhs as total compensation.
3. This Court vide order dated 16.09.2013 noticing the submissions made by the learned advocate for the appellants- original claimants and the grounds raised in the appeal, has admitted the appeal.
4. Learned advocate Mr. Mr. S.P. Majmudar, appearing for the appellants- original claimants has assailed the impugned judgment and award passed by the Tribunal mainly on two counts. Firstly, on the issue of quantum of compensation and Secondly, on the issue of negligency. It was submitted that the tribunal has awarded the compensation under each head on the lower side. It was further submitted that the Tribunal has erred in arriving at a conclusion that the deceased and opponent no.1 both are equally liable for the accident. Learned advocate has invited my attention of the findings and reasons assigned by the Tribunal on the aforesaid issue. It is submitted by the learned advocate for the appellants- original claimants that the considering the ratio laid down by the Hon'ble Supreme Court in the case of National Insurance Company Ltd Vs. Pranay Sethi, reported in AIR 2017 SC 5157 40% towards Page 2 of 9 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:11:22 IST 2025 NEUTRAL CITATION C/FA/2352/2013 JUDGMENT DATED: 04/08/2025 undefined future prospects of income is required to be taken into consideration. He has further submitted that the multiplier of 15 is required to be taken as per the decision of Hon'ble Supreme Court in the case of Sarla Verma and ors. vs. Delhi Transport Corporation and Anr. reported in (2009) 6 SCC 121. As regards the amount awarded under the head of loss of consortium is concerned, learned advocate has once again invited my attention to the fact that the deceased was survived by widow and two children and are therefore, entitled to enhance amount of compensation towards loss of consortium in light of the decision of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd vs. Nanu Ram Alias Chuhur Ram & Ors reported in (2018)18 SCC 130. Learned advocate has lastly submitted that the amount awarded under the conventional heads, more particularly, towards funeral expenses and loss of estate, is also required to be enhanced to Rs.18,150/- respectively, in view of the decision of the Hon'ble Supreme Court in the case of Pranay Sethi (supra). By making the aforesaid submissions, learned advocate has urged this Court to enhance the amount of compensation under each head.
5. Learned advocate Mr. Dakshesh Mehta appearing for the respondent no.3- Insurance Company has placed reliance upon the findings and reasons assigned by the Tribunal and vehemently argued that the compensation must be awarded as just, proper and reasonable and not higher side and further submitted that learned Tribunal, Page 3 of 9 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:11:22 IST 2025 NEUTRAL CITATION C/FA/2352/2013 JUDGMENT DATED: 04/08/2025 undefined after appreciating the materials available on record, awarded the compensation under each head is just, proper and reasonable and not required to interfere and lastly prayed to dismiss the appeal.
6. Heard learned advocates for the respective parties on the disputes between the parties in narrow compass and perused the record and proceedings and impugned judgment and award, more particularly, the findings and reasons assigned by the Tribunal while considering the issue of negligency and quantum of compensation.
7. As regards the submissions made by the learned advocate for the appellants on the issue of negligency, the Tribunal, while deciding the issue of negligence, has recorded a finding of 50% contributory negligence on the part of the deceased and 50% negligence of the driver of the opponent vehicle, relying upon the panchnama at exhibit 27 and other materials on record. However, on re-appreciation of the evidence, this Court finds that the said apportionment is not in consonance with the factual matrix emerging from the panchnama of the scene of accident. The opponent vehicle was found to be primarily at fault for the accident, which was stationary vehicle on the highway without any indication of parking light during the night time; however, contributory negligence on the part of the deceased, who was driving mazda vehicle, cannot be completely ruled out. The positioning of the vehicles and the manner in which the accident occurred clearly indicate a Page 4 of 9 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:11:22 IST 2025 NEUTRAL CITATION C/FA/2352/2013 JUDGMENT DATED: 04/08/2025 undefined larger degree of negligence attributable to the opponent vehicle. Accordingly, the apportionment of negligence as determined by the Tribunal at 50%-50% is hereby modified. The negligence of the driver of the opponent vehicle is assessed at 75%, while the deceased's contributory negligence is held at 25%. The appellants shall thus be entitled to 75% of the total compensation amount determined in this appeal.
8. As regards the future prospect is concerned, in view of the judgment of the Hon'ble Supreme Court in the case of Pranay Sethi (supra) noticing the age of the deceased as 40 years, as accepted by the Tribunal by considering the evidence on record and noticing the fact that deceased was working as a driver, 40% amount can be considered towards the future prospects of the deceased. As rightly recorded by the Tribunal, considering the fact that the deceased was survived by widow and two children, 1/3rd deduction has been applied towards spend by the deceased on himself. Thus, the calculation of the prospective income of the deceased at the rate of 40% is considered as Rs.3000/- * 40% (Rs.1200/-) = Rs.4200/-. After 1/3rd deduction towards personal expense of the deceased, the calculation of the income the deceased is Rs.2800/- (Rs.4200/- - Rs.1400/- (1/3rd deduction towards personal expenses.) Noticing the fact that the deceased was aged 40 years at the time of accident, in light of the decision of the Hon'ble Supreme Court in the case of Sarla Verma and ors. vs. Delhi Transport Corporation Page 5 of 9 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:11:22 IST 2025 NEUTRAL CITATION C/FA/2352/2013 JUDGMENT DATED: 04/08/2025 undefined and Anr. reported in (2009) 6 SCC 121 and the scheduled prescribed, the Tribunal has rightly applied multiplier of 15 in the facts of the case. Thus, the future loss benefit is determined as Rs.2800/-*12*15 (Multiplier) which comes to Rs.5,04,000/-.
9. This brings me to the issue of loss of consortium as prayed for by the learned advocate for the appellants- original claimants. As rightly prayed for by the learned advocate for the appellant in view of the decision of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd (supra), the claimants would be entitled to enhance amount of compensation under the head of loss of consortium to the tune of Rs.1,45,200/- (Rs.48,400/- X 3). Lastly, the amount to be awarded under the conventional heads, more particularly, funeral expenses and the loss of estate is also required to be reconsidered in view of the decision of the Hon'ble Supreme Court in the case of Pranay Sethi (supra). The same is to be considered as Rs.18,150/- respectively.
10. However, considering the findings on the issue of negligency, wherein the deceased is held liable to the extent of 25% contributory negligence, the appellants shall be entitled to recover 75% of the total amount of compensation.
11. Therefore, original claimants - appellants herein are entitled to enhanced amount as computed hereunder:
Page 6 of 9 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:11:22 IST 2025NEUTRAL CITATION C/FA/2352/2013 JUDGMENT DATED: 04/08/2025 undefined Compensation As per award As awarded by this under Court (Rs.) challenge (Rs.) Dependency 2/3 2/3 Benefit Actual salary/ 3000/- 3000/-
income
Prospective - 1200/- (40%)
income
Deduction of 1/3 (Rs.1000/-) 1/3(Rs.1400/-)
amount spent
by the deceased
on himself
Multiplier 15 15
Future Loss 2000/-*12*15 2800/-*12*15
= Rs.3,60,000/- = Rs.5,04,000/-
For loss of Rs.25000/- 1,45,200/- (48,400/- X
consortium (consolidated 3)
Loss of Estate sum) 18,150/-
Funeral 10000/- 18,150/-
expenses and
transportation
Total Rs.3,95,000/- Rs.6,85,500/-
Compensation
Negligency 50%(3,95,000* 25%(6,85,500*25%)
50%)= 685500-171375=
Rs.1,97,500/- Rs.5,14,125/-
Enhanced - Rs.5,14,000/-(Round
compensation figure) minus
Rs.1,97,500/-
=Rs.3,16,500/-
12. Learned Counsel for the insurance company submitted that the appellant filed the appeal in the year 2007.
However, records/papers were not traceable by the Page 7 of 9 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:11:22 IST 2025 NEUTRAL CITATION C/FA/2352/2013 JUDGMENT DATED: 04/08/2025 undefined registry. Thereafter, the appellant written a letter to registry in the year 2010 and also filed the Civil Application No.4782 of 2012 for reconstruction of First Appeal (Stamp) No.3240 of 2007. Vide order dated 19.04.2012, the applicants were permitted to reconstruct the First Appeal and thereafter registered the First Appeal No.2352 of 2013. Hence, the appellants are not entitled for the interest of the said period.
13. Learned Advocate for the appellant submitted at length the facts of the sequence of events regarding the aforesaid reconstruction of appeal and further argued that as the papers/records were not traceable by the registry, there is no fault of the appellant and hence, the appellant cannot suffer any interest loss.
14. Considering the above submissions and verified the record, it appears that the appellants have written the letter in the year 2010 to the registry regarding the records/papers of the appeal are not traceable. Considering the facts and circumstances, it will be just and proper to grant interest from the year 2010. Hence, the appellants are entitled for interest on the enhanced amount from the year 2010.
15. For the foregoing reasons, the impugned judgment and award dated 04.12.2006 passed by the Motor Accident Claims Tribunal (Auxi), Vadodara in MACP No.474 of 1996 hereby modified. The appellants- original claimant are held entitled to compensation of an amount of Rs.5,14,000/-. Since by impugned judgment and award Page 8 of 9 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:11:22 IST 2025 NEUTRAL CITATION C/FA/2352/2013 JUDGMENT DATED: 04/08/2025 undefined the Tribunal has awarded an amount of Rs.1,97,500/-, the appellants shall be entitled to enhanced amount of compensation to the tune of Rs.3,16,500/- (Rs.5,14,000/- - Rs.1,97,000/-) with interest at the rate of 7.5% from the date of filing of claim petition till its actual realization, except for the period of year 2007 to 2009. The respondents - original opponents are held jointly and severally liable to pay such enhanced amount of compensation with proportionate costs and interest.
16. Let, the aforesaid amount be deposited with the concerned Tribunal within a period of 8 weeks from the date of receipt of the present order. On deposit of the aforesaid amount, the Tribunal shall be at liberty to release and disburse the entire award amount in favour of the original claimant, after due verification as per the original judgment and award.
17. Let, such exercise be undertaken by the Tribunal strictly in accordance with the guidelines prescribed by the Hon'ble Supreme Court in this regard; preferably within a period of two weeks from deposit of such amount. The Tribunal is directed to realize the deficit Court fees before proceeding with the disbursement of the amount.
18. R&P be sent back to the concerned tribunal forthwith, if received.
(D. M. VYAS, J) Anuj Page 9 of 9 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:11:22 IST 2025