[Cites 3, Cited by 0]
Gujarat High Court
Meenadevi Ajaysing Yadav vs Salad Sanbhai Amulbhai on 2 December, 2025
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2248 of 2012
With
R/FIRST APPEAL NO. 2338 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
==========================================================
Approved for Reporting Yes No
==========================================================
MEENADEVI AJAYSING YADAV & ORS.
Versus
SALAD SANBHAI AMULBHAI & ORS.
==========================================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4
MS DISHA N NANAVATY(2957) for the Defendant(s) No. 2
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 3
==========================================================
CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 02/12/2025
ORAL JUDGMENT
1. The captioned appeals are filed against the impugned
judgment and award dated 10.05.2011 passed by the learned
Motor Accidents Claim Tribunal (Auxi.), City Civil & Sessions
Court, in Motor Accident Claim Petition No.260 of 2007, whereby
the learned Tribunal partly allowed the claim petition and
awarded a sum of Rs.1,17,600/- as a compensation along with
the interest at the rate of 7.5% per annum from the date of filing
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
of the claim petition till realization.
2. The original claimants herein preferred the appeal being
the First Appeal No.2248 of 2012, thereby challenging the
impugned judgment and award on point of negligence as well as
quantum. While the driver and owner of the another vehicle
involved in the accident preferred the appeal being the First
Appeal No.2338 of 2011 on the point of negligence and their
liability to satisfy the award.
3. The succinct common facts leading to file the captioned
appeals are that on 30.09.2006 at about 21:00 to 21:30 hours,
the deceased was coming from Nadiad by driving the truck
bearing registration No.GJ-1-AT-5595 and when he reached near
the highway after crossing the Kathlal Chokadi at about 22:30
hours, in the meantime the tyre of the said truck got burst and
the said truck dashed with the another truck bearing
registration No.GJ-1-AT-6832 which was coming from the
opposite direction i.e. from Ahmedabad to Kathlal Chokadi. In
the said accident, Ajaysingh Yadav sustained grievous injuries
and he succumbed to the injuries. The cleaner of the said truck
lodged the FIR being the I C.R. No.173/2006 with Kathlal Police
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
Station.
4. It is also the case of the original claimants that at the time
of accident, the deceased was aged about 35 years and he was
gainfully engaged in the driving of the truck and earning
Rs.3,500/- per month apart from the other allowances.
Therefore, the claimants have claimed a compensation of
Rs.10,00,000/- under the various heads.
5. On being served with the notices of the claim petition, the
opponent No.1 and 2 before the learned Tribunal filed the
written statement at Exh-29 stating therein that the claimants
have no right to file the claim petition. They denied the age,
income and negligence. It was also contended that the accident
occurred owing to the sole negligence of the claimant.
Alternatively, they pleaded contributory negligence on the part of
the deceased. The original opponent No.3/respondent No.3
herein remained absent throught the proceedings. The
respondent No.4 Insurance Company filed the written statement
at Exh-17 contending therein that the claim petition is not
maintainable and it denied the averments made in the claim
petition in toto and prayed for dismissal of the claim petition.
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
6. Having considered the pleadings of the parties, the learned
Tribunal has framed the following issues at Exh-39.
"1. Whether the applicants prove that the deceased
Ajaysingh Yadav died in an accident occurred on
30.09.2006 by rash and negligent driving of Truck
No.GJ-1-AT-6832, driven by opponent No.1 and owned
by the opponent No.2?
2. Whether the opponents prove that the deceased
was also liable for contributory negligence ? If yes, to
what extent?
3. What amount of compensation the applicants
are entitled to get and from whom?
4. What order and award?"
7. Having considered the evidence on record, the learned
Tribunal came to the conclusion that the deceased himself
negligent for causing the accident to the extent of 60% and the
respondent No.1, the driver of the another truck was negligent to
the extent of 40%. The learned Tribunal awarded a total
compensation of Rs.2,94,000/- and thereafter deducted the 60%
of the said amount on account of the contributory negligence of
the deceased. The learned Tribunal has exonerated the
Insurance Company on the ground that the deceased himself
negligent to the extent of 40% and the Insurance Company of the
another truck was exonerated on the ground that the said truck
was not having the valid permit at the time of accident.
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
8. Being aggrieved and dissatisfied with the impugned
judgment and award, the original claimants have preferred the
First Appeal No.2248 of 2012 while the driver and owner of the
another truck filed the First Appeal No.2338 of 2011.
9. Heard learned advocates for the parties.
10. Mr. Hiren Modi, learned advocate appearing on behalf of
the original claimants/appellants herein, vehemently submitted
that the learned Tribunal has committed the serious illegality in
exonerating the Insurance Company of the truck bearing
registration No.GJ-1-AT-5595 on the ground that the deceased
was himself negligent to the extent of 60% for causing the
accident. He further submitted that the Insurance Company of
the truck could have been held liable to satisfy the award jointly
and severally. In support of his contention learned advocate for
the appellant has placed reliance on the judgment rendered by
the Full Court of Gujarat High Court in the case of Valiben
Laxmanbhai Thakore (Koli) and others V/s Kandla Dock
Labour Board, reported in 2021 ACJ 2262.
12. Learned advocate for the appellant further submitted that
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
the learned Tribunal has not rightly assessed the income of the
deceased at the time of accident. He submitted that it is
undisputed fact that at the time of accident, the deceased was
the driver by occupation. He further submitted that the original
claimants/appellants herein pleaded the income of the deceased
as Rs.3,500/- per month. But the said income could not be
proved on record. He further submitted that in absence of proof
of income, the learned Tribunal could have considered the
income of the deceased equivalent to the minimum wages
prevalent at the time of accident. He further submitted that the
learned Tribunal has assessed the income of the deceased at the
time of accident which is much lesser than the minimum wages
prevalent at the time of accident. He further submitted that the
learned Tribunal has not considered the future prospects of the
deceased though it is undisputed fact that at the time of
accident, the deceased was aged about 35 years, therefore the
40% of the monthly notional income ought to have been added to
the monthly income on account of the future prospects of the
deceased. He further submitted that the learned Tribunal has
awarded a meager amount under the conventional heads,
therefore, the award is required to be modified to that extent.
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
13. Ms. Disha Nanavati, learned advocate for the appellant in
First Appeal No.2338 of 2011 vehemently submitted that the
learned Tribunal has committed a gross illegality in appreciating
the evidence on the point of negligence. He submitted that the
accident occurred owing to the sole negligence of the deceased.
He further submitted that the opponent No.1/respondent No.1
herein stepped into witness box before the learned Tribunal and
he proved that the accident was caused owing to the sole
negligence of the deceased. He further submitted that not only
this, the panchnama of place of accident clearly transpires that
the it was head-on collusion the truck of the deceased came from
the wrong side and hit the truck which was being driven by the
respondent No.1-herein. He further submitted that the
respondent No.1 cannot be held liable for causing the accident,
therefore, the findings returned by the learned Tribunal is
perverse and required to be modified.
14. Ms. Karuna V. Rahevar, learned advocate appearing on
behalf of the respondent No.4-Insurance Company, vehemently
submitted that there is no infirmity in the findings returned by
the learned Tribunal on the point of negligence. She further
submitted that the learned Tribunal has rightly considered the
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
evidence on record and rightly held that the deceased himself
negligent to the extent of 60%. She further submitted that the
learned Tribunal is rightly considered the income of the deceased
as Rs.2,000/- per month as the income was not proved. She
further submitted that the learned Tribunal has awarded just
compensation, hence, the present appeal deserves to be rejected.
15. Having considered the submissions of the learned
advocates for the parties and having gone through the record, it
is to be noted that in the accident, the two trucks i.e. truck
bearing registration No.GJ-1-AT-5595 and truck bearing
registration No. GJ-1-AT-6832 are involved. At the time of
accident, the truck bearing registration No.GJ-1-AT-5595 was
being driven by the deceased himself, while the truck bearing
registration No.GJ-1-AT-6832 was being driven by the
respondent No.1-herein. Both the trucks were insured for the
relevant period with the respondent No.4- Oriental Insurance
Company Limited. So far as the issue regarding negligence is
concerned, the claimant No.1/appellant No.1 herein filed the
affidavit of examination-in-chief before the learned Tribunal at
Exh-40. In the said affidavit, she deposed that the accident
occurred owing to the reasons that the tyre of the truck which
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
was being driven by her husband got burst. She further deposed
that the accident occurred owing to the negligence of respondent
No.1, however, in her cross-examination she admitted that at the
time of accident she was at home and therefore, she is not an
eye-witness of the accident. Thus, in her own admission in the
cross-examination as she was not an eye-witness of the accident,
therefore, her oral evidence on the point of negligence has
become irrelevant.
15.1 The FIR came to be lodged by the cleaner of the truck
namely Mr. Vinay Kumar. The said FIR was proved at Exh-34. In
the said FIR, he narrated that the tyre of the truck got burst and
therefore it went on the right side and dashed with the truck was
coming from the opposite direction. From the FIR it is evident
that the truck which was under the control of the deceased went
on wrong side and hit the truck which was coming from the
opposite direction. Further, the panchnama at Exh-35 also
corroborated the version of the complainant, the position of the
truck as per the panchnama, is that the truck of the deceased
was found on the middle of the road and while the another truck
was found on the left side of the road. Both the trucks were
damaged from the driver side. It is also to be noted that the
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
respondent No.1 also stepped into the witness box and he also
corroborated the version that the accident occurred owing to the
negligence of the deceased. In the light of the oral as well as the
documentary evidence, it is evident that the deceased himself
negligent for causing the accident. The learned Tribunal in
Paragraph-10 at page-10 and 11 of the impugned judgment
noted as under:-
"But, in the present case, both vehicles are trucks
and it is established from the oral and documentary
evidence that the accident took place due to bursting
of the tyre of the truck of the deceased. In these
circumstances, the negligence of the deceased is more
than the opponent No.1. Considering the facts and
circumstances of the case, I am of the opinion that the
negligence of the deceased is 60%. The opponent
No.1, who has seen that the tyre of the truck which
was coming from the opposite direction was burst
and he is not taken preventive action to prevent the
incident, hence, he is held negligence at the rate of
40%. Hence, I find issue No.1."
16. The said findings returned by the learned Tribunal is
perverse and totally contradictory to the evidences on record.
Hence, the findings returned by the learned Tribunal is not
sustainable and therefore, the same is required to be reversed
and accordingly, it is held that that accident occurred owing to
the sole negligence of the deceased himself.
17. So far as the quantum is concerned, it is stated in the
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
claim petition that at the time of accident, the deceased was
gainfully employed as a driver of the truck and earned
Rs.3,500/- per month as a salary. The said income was not
proved on record. Therefore, the learned Tribunal has considered
the income of the deceased as Rs.2,000/- per month from the
occupation of the driver. In absence of proof of income, the
learned Tribunal ought to have considered the minimum wages
prevalent at the time of accident. As per the notification issued
by the Government of Gujarat, the minimum wages at the time
of accident for skilled worker was Rs.2,500/-. Therefore, the
income of the deceased is assessed at Rs.2,500/- per month. It
is not in dispute that at the time of accident, the deceased was
aged about 35 years, therefore, the learned Tribunal could have
added the 40% of the notional income on account of future
prospects of the deceased. But the learned Tribunal has not
considered the future prospects of the deceased. Therefore,
considering the future prospects of the deceased, 40% of the
notional income is added to the monthly income and income of
the deceased would come to Rs.3500/- (Rs.2,500 + 40% x
2,500).
18. It is on record that the deceased was survived by four legal
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
representatives, therefore, in view of the ratio of the judgment in
the case of Sarla Varma & Ors Vs. Delhi Transport Corp. &
Anr. reported in 2009 (06) SCC 121 and National Insurance
Company Ltd. Vs. Pranay Shethi, reported in (2017) 16 SCC
680, ¼ of the income is required to be deducted on account of
personal expenses of the deceased. Therefore, after deducting the
¼ of the income, the net monthly income for calculating the
future loss of income would come to Rs.2625/- (Rs.3500/- (less)
¼ x 3500).
19. It is not in dispute that at the time of accident, the
deceased was aged about the 35 years, therefore, in view of the
ratio of judgment in the case of Sarla Varma(supra) and Pranay
Shethi(supra), the multiplier of 16 is to be applied and
accordingly after applying the multiplier of 16, the future loss of
dependency would come to Rs.5,04,000/- i.e. (2625 x 12 x 16).
20. It is on record that the deceased was survived by his
widow, two minor son and his mother, however, the learned
Tribunal has awarded a meager amount of Rs.10,000/- under
the head of loss of consortium. In view of the ratio of the
judgment in the case of Pranay Shethi(supra) and Magma
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
General Insurance Company Limited Vs Nanu Ram @ Chuhru
Ram reported in 2018 (18) SCC 130 all the legal representatives
are entitled for getting the compensation under the head of loss
of consortium. Therefore, a sum of Rs.1,93,600/- (Rs.48,400 x 4)
is awarded under the head of loss of consortium. The learned
Tribunal was awarded a meager amount of Rs.2,000/- under the
head of funeral expenses, a sum of Rs.10,000/- under the head
of expectation of life and a sum of Rs.2,000/- under the head of
transportation charges. In view of the ratio of the judgment in
the case of Pranay Shethi(supra) and Nanu Ram @ Chuhru
Ram(supra) the claimants are entitled for a compensation of
Rs.18,150/- under the head of loss of estate and a sum of
Rs.18,150/- under the head of funeral expenses.
21. Thus, in view of the above discussions, the claimants shall
be entitled for the following compensation under the following
heads:-
Particulars Amount (Rs.)
Future Loss of Dependency 5,04,000/-
Loss of consortium 1,93,600/-
Loss of estate 18,150/-
Funeral expenses 18,150/-
Total 7,33,900/-
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
Less: compensation already awarded 1,17,600/-
Enhancement 6,16,300/-
22. Learned Tribunal awarded a sum of Rs.2,94,000/- as a
total compensation and thereafter deducting the 60% of the
awarded amount on account of the negligence of the deceased
and awarded a sum of Rs.1,17,600/- along with the interest at
the rate of 7.5% . Therefore, the original claimants shall be
entitled for an additional amount of compensation to the tune of
Rs.6,16,300/- Rs.7,33,900/- (less) Rs.1,17,600/-).
23. As observed above, the deceased was himself held negligent
for causing the accident, therefore, the question of satisfaction of
the award comes into the picture.
24. The said issue is no more res-integra and the same has
been settled by the Full Bench of this Court in the case of
Valiben Laxmanbhai Thakore (Koli) (supra). In the said case,
where the Insurance Company has accepted the additional
premium for covering the risk of the driver, the Full Bench
observed as under:-
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
"In our opinion, by accepting additional premium, the
Insurance Company indemnifies the owners for the
paid Driver and/or conductor and the risk of
Driver/Conductor is covered under it. Upon death or
injury caused to the paid Driver and/or Conductor,
the Insurance Company would be liable to satisfy
such claim irrespective of the self negligence. Thus,
the observations made by the Division Bench in the
case of Saberabibi Hisammiya Umarvmiya & Anr
(Supra) lays down the correct law. Reference is thus,
answered accordingly."
25. Coming to the case on hand, the claimants/appellants
have proved the policy of insurance of the truck bearing
registration No.GJ-1-AT-5595 at Exh-53. After perusal of the
policy, it transpires that the Insurance Company has accepted
the premium of Rs.25/- under the head of Legal Liability
Employee/Driver. Therefore, in view of the acceptance of the
additional premium, the Insurance Company of the truck
bearing registration No.GJ-1-AT-5595 which was being driven by
the deceased himself shall be liable to pay the compensation in
view of the ratio of the judgment in the case of Valiben
Laxmanbhai Thakore (Koli) (supra).
26. Thus, in view of the above discussions, the captioned
appeal stands allowed partly, the respondent No.1 and 2 are
exonerated. However, the respondent No.3 and 4 are held jointly
and severally liable to satisfy the award. The respondent No.4
NEUTRAL CITATION
C/FA/2248/2012 JUDGMENT DATED: 02/12/2025
undefined
Insurance Company shall deposit the awarded amount along
with the interest at the rate of 7.5% per annum from the date of
filing of the claim petition till realization.
27. Upon depositing of the said amount, the learned Tribunal
shall disburse the amount to the original claimants, after
deducting the deficit court fees, if any, and after due verification.
28. Amount, if any, lying deposited with the Registry of this
Court, the same be transmitted to the concerned learned
Tribunal forthwith.
29. R & P, if any, be sent back to the concerned learned
Tribunal forthwith. No order as to costs. Both the appeals are
disposed of accordingly.
(MOOL CHAND TYAGI, J)
CDP
