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
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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
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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,
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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
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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
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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:
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Compensation As per award As awarded by this
under Court (Rs.)
challenge (Rs.)
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
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
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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
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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
