Gujarat High Court
New India Assurance Company Limited vs Rajiyaben Gafarbhai Salot on 18 November, 2025
NEUTRAL CITATION
C/FA/2647/2022 JUDGMENT DATED: 18/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2647 of 2022
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF
AMOUNT) NO. 1 of 2025
In R/FIRST APPEAL NO. 2647 of 2022
With
R/CROSS OBJECTION NO. 287 of 2024
In
R/FIRST APPEAL NO. 2647 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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NEW INDIA ASSURANCE COMPANY LIMITED
Versus
RAJIYABEN GAFARBHAI SALOT & ORS.
============================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 6
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3
RULE UNSERVED for the Defendant(s) No. 4,5
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 18/11/2025
ORAL JUDGMENT
1) The appellant - original respondent no.2 New India Assurance Company Ltd., has assailed the judgment and award dated 31.12.2019 passed by learned Motor Accident Claims Tribunal Page 1 of 15 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Nov 20 2025 Downloaded on : Mon Nov 24 20:46:16 IST 2025 NEUTRAL CITATION C/FA/2647/2022 JUDGMENT DATED: 18/11/2025 undefined (Main), Bhavnagar (hereinafter referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.246 of 2017, whereby the learned Tribunal held liable the appellant Insurance Company i.e. insurer of Truck bearing Reg. No.HR-55-U-0819, while exonerating the respondent no.6 Insurance Company - original opponent no.4, i.e. insurer of Luxury Bus bearing Reg. No.GJ-01-BV-9670 (which shall hereinafter be referred to as "bus"). The Tribunal has also held that the accident occurred due to contributory negligence of drivers of both the vehicles but exonerated the respondent no.6 herein - opponent no.4 Iffco Tokio General Insurance Company on the ground that the insurance policy of bus does not cover the risk of the deceased i.e. assistant. Feeling aggrieved and dissatisfied with the same the appellant has preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short).
2) The original claimants - respondent nos.1 to 3 herein (legal heirs of the deceased) have objected the present appeal by filing cross objections being Cross Objection No.287 of 2024, on the ground that the learned Tribunal has committed error in considering the income of the deceased, future loss of income, loss of consortium, funeral expenses and loss of estate.
3) Heard Mr. R. P. Raval, learned Advocate for the appellant - The New India Assurance Company Ltd., Mr. A. N. Shah, learned Advocate for respondent no.6 - Iffco Tokio General insurance Company and Mr. N. A. Bhalodi, learned Advocate for respondent nos.1 to 3 - original claimants.
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4) It is the case of the original claimants that on 22.07.2017, Gafarbhai (who shall hereinafter be referred to as "deceased") was travelling in Luxury Bus bearing Reg. No.GJ-01-BV-9670 as Assistant and going for a Tour. The respondent no.5 herein / original opponent no.3 was driving his Luxury Bus slowly on right side of the road. When they reached near the place of accident on Balicha bypass, Udaipur, Rajasthan, the driver of Truck bearing Reg. No.HR-55-U-819 drove his truck in rash and negligent manner in full speed and dashed with the bus from behind due to which the bus turned turtle. As a result of which the deceased sustained serious injuries and he succumbed to the same. Therefore, the legal heirs of the deceased have filed MAC Petition seeking compensation. After appreciating the evidence produced on record the learned Tribunal was pleased to partly allowed the claim petition.
5) Learned Advocate Mr. R. P. Raval for the appellant has submitted that the learned Tribunal has committed error in exonerating the respondent no.6 herein - Iffco Tokio General Insurance Company, though the Tribunal came to the conclusion that there was contributory negligence on the part of offending vehicle. The Insurance Company is exonerated merely on the ground that the policy is "act only policy" as the vehicle is transport vehicle and there cannot be any act policy and even further policy produced at Exhibit 51 which clearly reveals that premium of Rs.59,061/- is received which is the exact premium as per the Circular dated 17.04.2017 issued by the Insurance Regulatory and Development Authority of India (which shall hereinafter be referred to as "IRDA") as per which the premium per passenger is fixed at Rs.805/-. Herein the passenger seating Page 3 of 15 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Nov 20 2025 Downloaded on : Mon Nov 24 20:46:16 IST 2025 NEUTRAL CITATION C/FA/2647/2022 JUDGMENT DATED: 18/11/2025 undefined capacity of bus is 57 passengers and adding basic TP premium of Rs.13,176/- the amount of premium would be Rs.59,061/- which is already charged by the insurer, hence, risk of passenger was covered in the policy. Hence, merely relying on the words "liability only policy" or relying on the title is not proper in absence of any proof or evidence or examining any witness by the Insurance Company straightaway the Tribunal jumped to the conclusion that the act only policy and Insurance Company is not liable to pay the compensation. Herein the deceased was occupant in the bus therefore question does not arise to exonerate the Insurance Company. Even otherwise as per Section 147 of the Act the risk was covered and no evidence is lead the deceased was working as cleaner or employee in absence of any evidence liability of appellant company is fixed. Hence, he has requested to allow the present appeal. To buttress his arguments he has relied on the judgment of this Hon'ble Court in case of Prakashsinh Jagatsinh Rathod & 1 Vs Prabhatsinh @ Jagatsinh Udesinh Rathod and 1, reported in 2014 JX(Guj) 692 and New India Assurance Company Limited Vs. Vijaybhai Koyabhai Ninama, Neutral Citation - 2022:GUJHC:7808-DB, and requested to allow the present appeal.
6) Learned Advocate Mr. A. N. Shah for the respondent no.6 Insurance Company has opposed the present appeal on the ground that the learned Tribunal has not committed any error as policy was "liability only" policy and no additional premium is received only basic premium is received. Hence, in absence of any additional premium or coverage Insurance Company is not liable to pay compensation or to indemnify to the owner of the Page 4 of 15 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Nov 20 2025 Downloaded on : Mon Nov 24 20:46:16 IST 2025 NEUTRAL CITATION C/FA/2647/2022 JUDGMENT DATED: 18/11/2025 undefined said vehicle. Considering the fact of "Act only" policy the Tribunal has not committed any error in passing the impugned award. He has relied upon judgment in the case of Ramashray Singh Vs New India Assurance Company Ltd., reported in 2003 LawSuit(SC) 633, and submitted that as deceased was Assistant his legal heirs have to file proceeding under the Workmen Compensation Act in case of "Act only" policy Insurance Company is not liable to pay any compensation. Further, as the deceased was working as Assistant and pelading is also clear to that effect, hence, question does not arise to prove that the deceased was employee and no need to examine any witness. Therefore, he has requested to dismiss the present appeal against the respondent no.6 - Iffco Tokio General Insurance Company.
7) Learned Advocate Mr. N. A. Bhalodi for the respondent nos.1 to 3 - original claimants has submitted that at the time of accident the deceased was travelling in the bus and the Tribunal has held liable both the vehicles however Insurance Company of the bus is exonerated on the ground that additional premium as for the deceased the case was of composite negligence. The deceased has nothing to do with any apportionment between two offending vehicles or inter-se liability of the vehicles. The deceased is entitled to get the compensation either any of tortfeasor or from both the tortfeasors jointly. Further he has submitted that the learned Tribunal has committed error in quantum by not considering minimum wages rate of the prevalent time and considered the future prospects and awarded meagre compensation. Hence, he has requested to allow the cross objections and enhance the compensation to the original Page 5 of 15 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Nov 20 2025 Downloaded on : Mon Nov 24 20:46:16 IST 2025 NEUTRAL CITATION C/FA/2647/2022 JUDGMENT DATED: 18/11/2025 undefined claimants.
8) Having heard learned Advocates of the respective parties. A perusal of record reveals that the learned Tribunal after appreciating the evidence on record come to the conclusion that the accident was occurred due to negligence of drivers of both the vehicles involved in the accident as both failed to exercise degree of prudence as expected from prudent drivers and both the drivers failed to do so. The offence is registered against both the drivers and charge-sheet is also filed against both the drivers of the vehicles involved in the accident. Considering the evidence on record and panchnama as the Truck dashed the bus from behind due to which the driver of the bus lost control and the bus turned turtle and due to this reason the alleged accident took place and in the said incident the negligence of the Truck driver was held 70% and bus driver was held 30%. The respondent no.6 herein has not filed any appeal or cross objections qua apportionment of liability but while passing the award the learned Tribunal has considered that the Insurance Company i.e. opponent no.4 - respondent no.6 herein is not liable to pay compensation more particularly in light of policy at Exhibit 50 as the Exhibit 50 is "liability only" policy and Insurance Company has not recovered any premium covering the risk of Assistant. Hence, the Insurance Company opponent no.4 - respondent no.6 herein was exonerated. 8.1) If we peruse the policy at Exhibit 50 it reveals that coverage is stated as "liability only" policy but basic TP premium of Rs.59,061/- is received and in Circular bearing No.IRDA/NL/NTFN/MOTP/089/04/2017 dated 17.04.2017 issued by IRDA and Annexure-A appended to the said circular same Page 6 of 15 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Nov 20 2025 Downloaded on : Mon Nov 24 20:46:16 IST 2025 NEUTRAL CITATION C/FA/2647/2022 JUDGMENT DATED: 18/11/2025 undefined premium per passenger and basic third party premium are mentioned.
9) The above table reveals that the per passenger premium is Rs.805/- and basic third party premium is Rs.13,176/- and the seating capacity of the luxury bus is 57 so multiplying Rs.805/- into 57 would come to Rs.45,885/- and adding basic third party premium of Rs.13,176/- total amount would come to exactly Rs.59,061/-, hence, premium is received as per the guideline and circular issued by the IRDA. Herein the Insurance Company
- respondent no.6 has not provided any further calculation or break-up of the premium. Merely believing the policy is "liability only" or "act only" policy is not enough. If witness is examined to prove the said fact then obviously the counterpart ought to have right opportunity to clarify the stand and to prove their stand but herein no such exercise is being done. Not only that but the Tribunal has only relied on words "liability only" policy but alleged offending vehicle was bus is transport vehicle and in transport vehicle question of "act only" policy does not arise. If for the sake of arguments if we accept that the deceased was travelling as Assistant even though he may be considered as occupant in the transport vehicle and as offending vehicle was passenger vehicle question does not arise to treat the deceased as gratuitous passenger. The provisions of Section 2 of sub- section (35) of the MV Act which reads as under:-
" Section 2(35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage;"Page 7 of 15 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Nov 20 2025 Downloaded on : Mon Nov 24 20:46:16 IST 2025
NEUTRAL CITATION C/FA/2647/2022 JUDGMENT DATED: 18/11/2025 undefined 9.1) The provisions of Section 147 of the MV Act reads as under:
"Section 147. Requirements of policies and limits of liability.
(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)-
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required-
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the Page 8 of 15 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Nov 20 2025 Downloaded on : Mon Nov 24 20:46:16 IST 2025 NEUTRAL CITATION C/FA/2647/2022 JUDGMENT DATED: 18/11/2025 undefined act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:-
(a) save as provided in clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.
(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of Page 9 of 15 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Nov 20 2025 Downloaded on : Mon Nov 24 20:46:16 IST 2025 NEUTRAL CITATION C/FA/2647/2022 JUDGMENT DATED: 18/11/2025 undefined any liability which the policy purports to cover in the case of that person or those classes of persons."
10) Even, in light of the aforesaid provisions as well as the fact that the deceased was occupant in the bus under Section 147(1)(b)
(ii) of the Act even the commercial vehicle "liability only" policy the risk of the occupant is covered and the Insurance Company cannot contend that the risk is not covered on the ground that additional premium is not received.
11) Hence, in view of Vijaybhai Koyabhai Ninama (supra) the arguments canvassed by the learned Advocate for the respondent no.6 is not accepted and would not avail any assistance to the respondent no.6. Merely pleadings are not enough proof and merely to exhibit the policy is ministerial act in absence fo any proof of contents straightaway the learned Tribunal has exonerated the Insurance Company from the liability and accepted the pleadings in absence of any breach of policy condition as in claim petition it is stated that the deceased was doing work in Saurashtra Trading Shop and doing plumbing work and was traveling in luxury bus, though in absence of any proof or evidence the learned Tribunal has considered the deceased as cleaner or employee of the luxury bus and no any additional premium is received or paid to the Insurance Company without assigning any proper and valid reasons. As discussed above the learned Tribunal has committed error in exonerating the Insurance Company - respondent no.6.
Therefore, the respondent no.6 is also held liable to pay compensation as per apportionment of 30% to the legal heirs of the deceased.
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12) So far, the cross objections and enhancement of compensation amount is concerned the learned Tribunal while determining the compensation considered the oral evidence of the claimants as per which the age of deceased was 47 years at the time of accident and was earning Rs.8000/- to 10,000/- but no documentary evidence is produced on record qua income of the deceased. Hence, the Tribunal has considered Rs.5,000/- per month and considered the age as 46 years and 28 days. However, 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 applicants. In the present case the accident occurred on 22.07.2017 and during that time the deceased was working as Assistant in luxury bus and also doing plumbing work, whereas, the Tribunal has assessed the income of the deceased as Rs.5,000/- per month which is required to be enhanced and hence, the income of the deceased is reassessed as Rs.8,000/- per month. Further, the learned Tribunal has considered future prospective income as 25% and as the deceased left behind three dependents 1/3 deduction as personal expenditure and living 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. [2009 (6) SCC 121] and National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 ACJ 2700 which are just and proper.
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13) Therefore, recalculating the income of the deceased as Rs.8,000/- and future prospect of 25% = Rs.2,000/- which comes to Rs.10,000/- and 1/3 amount is required to be deducted towards the personal expenditure and living of the deceased which comes to Rs.3,333/- and the net amount comes to Rs.6,667/-. In view of above the amount towards future loss of income is required to be reassessed as Rs.6,667/- x 12 x 13 = Rs.10,40,052/-. Therefore, the respondent nos.1 to 3 - original claimants are entitled to get additional amount of Rs.3,90,052/- under the head of future loss of income.
14) Further, the learned Tribunal by relying on the judgment of Pranay Sethi (supra) has awarded total Rs.70,000/- under the three 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 respondent nos.1 to 3 - 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).
15) 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/- towards loss of consortium, however, in view of above judgments the respondent nos.1 to 3 - original claimants being legal heirs of the deceased they are entitled for Page 12 of 15 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Nov 20 2025 Downloaded on : Mon Nov 24 20:46:16 IST 2025 NEUTRAL CITATION C/FA/2647/2022 JUDGMENT DATED: 18/11/2025 undefined Rs.48,400/- each towards the head of loss of consortium. Therefore, the amount towards loss of consortium is reassessed as Rs.1,45,200/- (i.e. Rs.48,400/- X 3). Therefore, the appellants are entitled for additional amount of Rs.1,05,200/- under the head of loss of consortium.
16) As discussed above, the respondent nos.1 to 3 - original claimants are entitled to get compensation computed as under:
Heads Awarded by Reassessed by this
Tribunal Court
Future loss of Rs.6,50,000/- Rs.10,40,052/-
income including additional amount
of Rs.3,90,052/-
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.40,000/- Rs.1,45,200/-
including additional amount
of Rs.1,05,200/-
Total compensation Rs.7,20,000/- Rs.12,21,552/-
including total additional
amount of Rs.5,01,552/-
17) the In view of above, as the Tribunal has awarded total
compensation of Rs.7,20,000/-, however, as discussed above the respondent nos.1 to 3 - original claimants are entitled to get additional amount of Rs.5,01,552/- with proportionate costs and interest as awarded by the learned Tribunal.
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18) Hence, present appeal is allowed and Cross Objection No.287 of 2024 filed by the original claimants is also stands allowed. The judgment and award dated 31.12.2019 passed by learned Motor Accident Claims Tribunal (Main), Bhavnagar, in MAC Petition No.246 of 2017 stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered.
19) The appellant - Insurance Company and respondent No.6 -
Insurance Company shall deposit the said additional amount of Rs.5,01,552/- i.e. enhanced compensation along with interest as awarded by the Tribunal as per liability in the ratio in proportion of 70% and 30% respectively, before the Tribunal within a period of four weeks from the date of receipt of this order. Record and proceedings be remitted back to the concerned Tribunal forthwith.
19.1) The appellant - New India Assurance Company Ltd., has already deposited 100% amount under award and as discussed above the respondent no.6 herein - Iffco Tokio General Insurance Company owes 30% amount under award to the appellant, therefore, the respondent no.6 herein - Iffco Tokio General Insurance Company is directed to deposit 30% of the awarded amount by the Tribunal as per its 30% liability, before the learned Tribunal to satisfy the award and upon depositing the said amount order to the effect of pay or refund the said amount to New India Assurance Company Ltd., be passed by the learned Tribunal.
19.2) If the respondent no.6 - Insurance Company fails to deposit the amount of its liability i.e. 30% then the appellant - Insurance Company shall be at liberty to recover the amount by way of Page 14 of 15 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Nov 20 2025 Downloaded on : Mon Nov 24 20:46:16 IST 2025 NEUTRAL CITATION C/FA/2647/2022 JUDGMENT DATED: 18/11/2025 undefined filing proceedings for recovery from the respondent no.6 - Insurance Company along with interest and cost.
20) The learned Tribunal is directed to recover or deduct the deficit court fees on enhanced amount and thereafter disburse the amount accordingly as per award.
21) Accordingly, the Civil Application No.1 of 2025 stands disposed of.
22) Award to be drawn accordingly.
(HASMUKH D. SUTHAR,J)
ANKIT JANSARI
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