[Cites 7, Cited by 0]
Gujarat High Court
Javabhai Nathabhai Maliwad (Deleted) vs Sardar Malani on 2 December, 2025
NEUTRAL CITATION
C/FA/15/2024 JUDGMENT DATED: 02/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 15 of 2024
With
R/FIRST APPEAL NO. 2729 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting No Yes
√
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JAVABHAI NATHABHAI MALIWAD (DELETED) & ANR.
Versus
SARDAR MALANI & ORS.
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Appearance:
DELETED for the Appellant(s) No. 1
MR MAKBUL I MANSURI(2694) for the Appellant(s) No. 2
RULE NOT RECD BACK for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 3
UNSERVED EXPIRED (R) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 02/12/2025
ORAL JUDGMENT
Since both these appeals are arising out of the same
accident therefore both are being decided by this common
judgment. The First Appeal No.15 of 2024 filed by the parents of
the deceased - Dahyabhai and the First Appeal No.2729 of
2024, is filed by the The Oriental Insurance Company Ltd., both
the appeal arise out of MAC Petition No.403 of 2017 (Old MAC
Petition No.785 of 2001).
NEUTRAL CITATION
C/FA/15/2024 JUDGMENT DATED: 02/12/2025
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1) Feeling aggrieved by and dissatisfied with the judgment and
award dated 28.02.2020 passed by learned Motor Accident
Claims Tribunal (Main), Mahisagar at Lunawada (hereinafter
referred to as "the Tribunal" for short), in Motor Accident Claim
Petition No.403 of 2017, the appellants preferred present
appeals under Section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as "the Act" for short).
It is worthwhile to mention here that after pronouncement
of the above judgment the claimants had filed an application
under Section 151 and 152 of the Code of Civil Procedure
seeking correction in the above judgment by way of filing
MACMA No.29 of 2023, wherein, as there was inadvertent typing
mistake in the operative part of the judgment, the learned
Tribunal vide order dated 21.07.2023 corrected the said mistake
by directing the petitioner to recover the amount of
compensation from the opponent no.3.
2) It is the case of the original claimants that on 05.03.2001,
deceased Dahyabhai (who shall hereinafter be referred to as
"deceased") was coming from Bamroda on his cycle and at
about 12:00 hours, in the outskirt of Village Bhadrod, the
opponent no.1 came from opposite side by driving a luxury bus
bearing Reg. No.GJ-17-W-4476, in rash and negligent manner in
excessive speed and dashed with the cycle of the deceased. As a
result of which the deceased sustained serious injuries and
succumbed to the same. Therefore, the appellants have filed
MAC Petition seeking compensation. After appreciating the
evidence produced on record the learned Tribunal was pleased
to partly allowed the claim petition.
NEUTRAL CITATION
C/FA/15/2024 JUDGMENT DATED: 02/12/2025
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3) Heard Mr. M.I. Mansuri, learned Advocate for the appellants -
original Claimants and Mr. A. S. Shah, learned Advocate for
respondent - Insurance Company.
4) Learned Advocate for the appellants has submitted that the
learned Tribunal has not properly considered the income and not
appreciated the evidence on record and committed error by
considering income of the deceased as Rs.2,000/- per month
though he was doing masonry work and earning Rs.4,000/- per
month. The learned Tribunal has also committed error in
considering 40% future prospective rise in income and also erred
in considering the multiplier and deduction and awarded meagre
amount. Hence, he has requested to allow the present appeal.
5) Learned Advocate for the Insurance Company has opposed the
present appeal and in support of First Appeal No.2729 of 2024,
has submitted that the learned Tribunal has committed error by
not considering arguments and contentions raised by the
Insurance Company about involvement of the luxury bus bearing
Reg. No.GJ-17-W-4476, though involvement of the bus is not
mentioned in the charge-sheet and no vehicle number is
mentioned in the complaint and therefore involvement of the
bus is doubtful in the said accident and the claimants failed to
prove the involvement of the bus. Hence, he has requested to
exonerate the Insurance Company by allowing the appeal filed
by the Insurance Company as the Insurance Company is not
liable to pay the compensation and also requested to dismiss the
appeal filed by the claimants.
NEUTRAL CITATION
C/FA/15/2024 JUDGMENT DATED: 02/12/2025
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FIRST APPEAL NO.15 OF 2024
6) Having heard both the learned Advocates and perusing the
record it appears that the accident was occurred on 05.03.2001
and one appeal is filed by the claimants on the ground of
enhancement of quantum and another appeal is filed by the
Insurance Company on the ground of involvement of the bus.
The learned Tribunal has appreciated the evidence i.e. complaint
at Exhibit 18, panchnama at Exhibit 19, copy of Driving License
and RC Book of the bus at Exhibits 22 and 23, postmortem
report at Exhibit 24 and salary certificate at Exhibit 25, charge-
sheet at Exhibit 26 and came to conclusion that the offending
vehicle is involved in the accident and as on the date of accident
the coverage of the insurance was in force and vehicle was
insured with the opponent no.3 - Insurance Company and
saddled the liability. As deceased was aged about 20 years at
the time of accident and failed to prove the income through
salary certificate at Exhibit 25 as the work of masonry and
selling gulfi having no nexus as both the work are contradictory
in nature. Moreover, the claimants failed to support the income
claim through substantiating by any witness in respect of
certificate and mere production of document does not prove its
contents and the same is required to be proved by the
claimants. Therefore, in view of ratio 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), and
considering the minimum wages of the year 2001 the Tribunal
has rightly assessed the income of the deceased as Rs.2000/-.
7) Further, the learned Tribunal has considered future prospective
income as 40% considering age group of 15 to 20 and the
NEUTRAL CITATION
C/FA/15/2024 JUDGMENT DATED: 02/12/2025
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deceased was bachelor 1/2 deduction as personal expenditure
and living of the deceased and multiplier of 18 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] as well as in view of
National Insurance Company Ltd. Vs. Pranay Sethi,
reported in 2017 ACJ 2700, which are just and proper.
Therefore, the arguments canvassed by the learned Advocate for
the appellants regarding income of the deceased are not
acceptable and this Court is of the view that the learned Tribunal
has not committed any error in assessing income of the
deceased and awarding loss of dependency benefit to the
appellants.
8) However, the learned Tribunal by relying on the judgment of
Pranay Sethi (supra) has awarded total Rs.30,000/- 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
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).
9) 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 while holding
NEUTRAL CITATION
C/FA/15/2024 JUDGMENT DATED: 02/12/2025
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that the appellants are not entitled to get any amount under the
head of loss of consortium, however, in view of above judgments
this Court is of the considered opinion that the appellants -
original claimants being parents of the deceased have lost their
child which caused great shock and agony to them and the
greatest agony for a parent is to lose their child during their
lifetime. Therefore, as the filial consortium is the right of the
parents the appellants being parents of the deceased are
entitled for Rs.48,400/- each towards the head of loss of
consortium. Therefore, the amount towards loss of consortium is
awarded as Rs.96,800/- (i.e. Rs.48,400/- X 2). Therefore, the
appellants are entitled for additional amount of Rs.96,800/-
under the head of loss of consortium.
10) As discussed above, the appellants - original claimants are
entitled to get compensation computed as under:
Heads Awarded by Reassessed by this Court
Tribunal
Loss of dependency Rs.3,02,400/- Rs.3,02,400/-
benefit
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 NIL Rs.96,800/-
including additional amount of
Rs.96,800/-
(Rs.48,400/- X 2)
Total compensation Rs.3,32,400/- Rs.4,35,500/-
including total additional
amount of Rs.1,03,100/-
NEUTRAL CITATION
C/FA/15/2024 JUDGMENT DATED: 02/12/2025
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11) In view of above, the Tribunal has awarded total compensation
of Rs.3,32,400/-, however, as discussed above the appellants
are entitled to get additional amount of Rs.1,03,100/-
(Rs.4,35,500/- - Rs.3,32,400/-) with proportionate costs and
interest as awarded by the learned Tribunal.
FIRST APPEAL NO.2729 OF 2024
12) The appellant - Insurance Company has raised defence in the
written statement that the luxury bus is not involved in the
accident but mere pleading is not enough the claimants have
produced documentary evidence i.e. FIR, panchnama, driving
licence and RC Book of offending vehicle and charge-sheet which
is filed against the driver of luxuy bus. The driver of the bus did
not appear before the Tribunal and has not disputed the charge-
sheet or rebutted the evidence produced by the claimants
therefore the said fact remained unchallenged and the owner
and driver of the bus have not denied the involvement of the
bus. Therefore, once accident is proved relying on cogent
material then such type of denial itself not a proof and the
Insurance Company has to lead evidence to show that the luxury
bus was not involved in the said accident. Hence, this Court is of
the view that the learned Tribunal has not committed any error
considering involvement of the luxury bus in the said accident.
13) In the wake of the aforesaid discussion, the First Appeal No.15
of 2024 filed by the original claimants is allowed, whereas, the
First Appeal No.2729 of 2024 filed by the Insurance Company is
dismissed.
NEUTRAL CITATION
C/FA/15/2024 JUDGMENT DATED: 02/12/2025
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14) The judgment and award dated 28.02.2020 passed by learned
Motor Accident Claims Tribunal (Main), Mahisagar at Lunawada,
in MAC Petition No.403 of 2017 as well as the order dated
21.07.2023 passed by the learned MAC Tribunal (Main)
Mahisagar at Lunawada in MAC Misc. Application No.29 of 2023,
stand modified to the aforesaid extent. Rest of the judgment and
award remains unaltered. The respondent no.3 - Insurance
Company shall deposit the said additional amount of
Rs.1,03,100/- along with interest as awarded by the Tribunal,
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.
15) The learned Tribunal is directed to recover or deduct the deficit
court fees on enhanced amount and thereafter disburse the
amount accordingly.
16) Award to be drawn accordingly.
(HASMUKH D. SUTHAR,J)
ANKIT JANSARI
