Cholamandalam Ms General Insurance Co ... vs Tabassumbanu Samirhusain Sindhi on 10 December, 2025

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                            C/FA/1358/2022                                       JUDGMENT DATED: 10/12/2025

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                       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                               R/FIRST APPEAL NO. 1358 of 2022
                                                            With
                                              R/CROSS OBJECTION NO. 155 of 2023
                                                              In
                                                R/FIRST APPEAL NO. 1358 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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                              CHOLAMANDALAM MS GENERAL INSURANCE CO LTD
                                                    Versus
                                  TABASSUMBANU SAMIRHUSAIN SINDHI & ORS.
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                      Appearance:
                      MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
                      KAASH K THAKKAR(7332) for the Defendant(s) No. 1,2,3
                      RULE SERVED for the Defendant(s) No. 4
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                        CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                            Date : 10/12/2025
                                                            ORAL JUDGMENT

1) By way of present First Appeal under Section 173 of the Motor Vehicles Act, 1988 (for short "MV Act"), the Cholamandalam MS General Insurance Company Ltd. - original opponent No.2 has assailed the impugned judgment and award dated 15.11.2021 in Motor Accident Claim Petition No.40 of 2019 passed by the Motor Accident Claims Tribunal (Aux.), Patan at Radhanpur (hereinafter referred to as "learned Tribunal"), whereby the learned Tribunal has been pleased to partly allow the claim petition by awarding Rs.30,06,000/- towards compensation to the original claimants. Cross Objection

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No.155/2023 is filed by the original claimants seeking enhancement of compensation by mainly contending that the learned Tribunal has failed to consider the monthly income of the deceased including the daily allowance earned for 15 to 20 days in a month and contending that the learned Tribunal has not properly assessed the monthly income of the deceased while awarding compensation.

2) The brief facts of the case of the original claimants in the claim petition is that on 15.08.2019, deceased Samirhusain Dilavarkhan Sindhi (hereinafter referred to as "deceased") was on duty as a driver of Truck bearing registration No.GJ-24-V-7852 and was loading salt in truck and going to Nadiad from Suigam and at about 1:00 A.M. near Bhojva Village on Mandal-Viramgam Road, deceased Samirhusain lost control over the Truck No.GJ- 24-V-7852 due to which truck turned turtle and the deceased was thrown out from the truck and came under the truck and died on the spot. The legal heirs and representatives of the deceased filed claim petition being MACP No.40/2019 and after recording the evidence, the learned Tribunal was pleased to partly allow the compensation.

3) Learned Advocate Mr. Rathin Raval appearing for the appellant - insurance company has submitted that the learned Tribunal erred in saddling the Insurance Company with liability. He argues that since the accident arose from the deceased's own negligence, the deceased cannot be treated as a "third party"

under the insurance policy and hence has no right to claim compensation from his own insurer. In his submission, if any compensation is to be sought by the claimants, appropriate

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remedy would have been under the Workmen's Compensation Act, 1923. Further, the learned Counsel submits that the Tribunal committed an error in assessing a monthly salary of ₹12,000/- and allowances of ₹3,000/- in absence of any supporting evidence. He also argues that the learned Tribunal erred in awarding loss of consortium of ₹40,000/- on the ground that a child was born after the accident and therefore, such a claim, in his submission, is not maintainable. Hence, he prays that the present appeal be allowed.

4) Learned advocate Mr. Thakkar appearing for the original claimants has opposed the appeal and submitted that the learned Tribunal has not committed any error in saddling the Insurance Company with the liability to pay the compensation as Insurance Company has received the additional premium. Hence, Insurance Company is liable to pay the compensation. Further, he has submitted that the learned tribunal has not properly considered the income of the deceased and daily allowance of 15 to 20 days is not accepted. Learned Tribunal has considered monthly income of the deceased only at Rs.15,000/-. Hence, he has requested to allow the cross-objection and dismiss the appeal filed by the Insurance Company.

5) Having heard learned advocates for the respective parties and perusing the record, this Court notes that following evidence has been placed before the Tribunal: Oral evidence, produced at Exhs.17 and 41, the First Information Report (F.I.R.) produced at Exhs.18 and 57, the Driving Licence of the deceased produced at Exh. 19, the Post-mortem report produced at Exh.28, the salary certificate issued by Opponent No.1 produced at Exh.42, a

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certified copy of the abated summary produced at Exh.59 and copy of the insurance policy along with the policy wording (terms and conditions) produced at Exh.55.

On the basis of the above evidence, the learned Tribunal has found that the deceased was driving the Truck bearing registration No.GJ-24-V-7852, lost control of the vehicle, and the truck overturned ("turtled"). As a result, the deceased is said to have been thrown out of the truck and then dragged beneath the vehicle and died on the spot. The aforesaid factum of death of deceased remains undisputed. The only issue that arises for consideration is whether the deceased, being the driver of the truck, was entitled to claim compensation from his own Insurance Company.

6) Upon examining the terms and conditions of the policy produced at Exh.55, it is evident that the insurance policy was valid for the period from 28.02.1999 to 27.02.2020 and was in force on the date of the accident. Upon perusal of the policy it further reveals that an additional premium of Rs. 50/- had been collected by appellant - opponent No.2 - Insurance Company specifically towards coverage of the risk of a "paid driver." Hence, It is an admitted and undisputed position that the Insurance Company received the additional premium of Rs. 50/- for coverage of the paid driver. In view of the law laid down by the coordinate Bench of this Court in the case of Valiben Laxmanbhai Thakore v. Kandla Dock Labour Board rendered in First Appeal No.3907/2017, as an additional premium is paid and accepted, the Insurance Company is liable to insure the risk so covered. The learned Tribunal has, therefore, rightly relied upon

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the aforesaid decision. Since the risk of the paid driver was duly covered under the policy, and the corresponding premium was received, the Insurance Company cannot contend that the deceased was not entitled for the compensation from his own insurer. In light of the above, the contention raised by the learned advocate for the appellant is devoid of merit and cannot be accepted. The appeal therefore fails.

7) With respect to the quantum of compensation and the cross-objection filed by the original claimants, the learned Tribunal has duly appreciated the evidence on record. In the affidavit, it is stated by the claimant No.1 that the deceased was earning Rs. 12,000/- per month as salary and Rs. 300/- per day towards daily allowances, and that his total monthly income was Rs. 21,000/-. However, during cross-examination, the claimant No.1 admitted that the deceased was receiving only Rs.12,000/- as fixed monthly salary and that he was not paid any regular monthly allowance. It was further admitted that the daily allowance of Rs. 300/- was paid only when the deceased was required to travel outside the village. In view of this admission, the learned Tribunal rightly considered the daily allowance for only ten days in a month and assessed the income of Rs.15,000/- for the purpose of determining just compensation. In absence of any supporting evidence to show that the deceased was receiving Rs.300/- per day as allowance for the entire month, and considering the contradictions in the evidence of claimants Nos.1 and 2, the learned Tribunal has not committed any error in assessing the income. Hence, the contention raised in the cross- objection by the learned advocate for the original claimants, seeking addition in income of Rs.3,000/- towards allowances by

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treating the daily allowance for 15 to 20 days, is not acceptable. To that extent, the cross-objection is liable to be dismissed.

8) On a perusal of the impugned judgment and award, it is evident that the learned Tribunal has correctly assessed and awarded Rs.28,56,000/- towards future loss of dependency. The amounts awarded under the heads of consortium, loss of estate, funeral expenses and other conventional heads have also been properly considered bringing the total compensation to Rs. 30,06,000/- which is a just compensation.

9) In view of the aforesaid reasoning, this Court is of the considered opinion that the learned Tribunal has not committed any error either in determining the compensation or in fastening the liability upon the Insurance Company. Therefore, the appeal fails and the cross-objection filed by the claimant herein respondent stands dismissed.

10) In view of above, the First Appeal No.1358 of 2022 and Cross Objection No.155/2023 in First Appeal No.1358 of 2022 stand dismissed. No order as to costs.

11) The amount of compensation deposited by the appellant - insurance company with the learned Tribunal be disbursed in favour of the claimants through RTGS, after proper verification. The bank account details shall be furnished by the learned advocate for the claimants to the Nazir Department of the learned Tribunal concerned. The Court fees, if any, payable by the claimants on compensation be deducted from the said amount and the remaining amount of compensation be disbursed in

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favour of the claimants on due verification within a period of two weeks thereafter.

12) Record and proceedings, if any, be sent back to the concerned Tribunal forthwith. Pending civil applications, if any, also shall stand disposed of accordingly.

(HASMUKH D. SUTHAR,J) GARVITA