[Cites 9, Cited by 0]
Gujarat High Court
Icici Lombard General Insurance Co Ltd vs Atulbhai Ranchodbhai Rojivadiya on 3 December, 2025
NEUTRAL CITATION
C/FA/1213/2022 JUDGMENT DATED: 03/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1213 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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ICICI LOMBARD GENERAL INSURANCE CO LTD
Versus
ATULBHAI RANCHODBHAI ROJIVADIYA & ORS.
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Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
MR NISHIT A BHALODI(9597) for the Defendant(s) No. 1
RULE NOT RECD BACK for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 03/12/2025
ORAL JUDGMENT
[1.0] This appeal has been preferred by the appellant-original
opponent No.3 - ICICI Lombard General Insurance Co. Ltd. against the
judgment and award dated 29.09.2021 passed by the learned Motor
Accident Claims Tribunal (Auxi.), at Rajkot (for short referred to as
"learned Tribunal") in Motor Accident Claim Petition No.9 of 2018 filed
under Section 166 of the Motor Vehicles Act, 1988 (for short referred
to as "MV Act") wherein the learned Tribunal has partly allowed the
claim petition of respondent No.1 and awarded compensation of
Rs.4,73,000/- with interest at the rate of 9% per annum from the date
of the claim petition.
[2.0] The brief facts of the present claim petition are that the
accident took place on 18.06.2017 between 3.00 p.m. to 4.15 p.m.,
when the respondent No.1 - original claimant i.e. injured and his wife
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were going from Dhoraji to Dhank on their motorcycle beairng No.GJ-
03-FA-1849 and when they reached near Upleta a little far from the
Supedi Bus Stand, at that time, one Car bearing No.GJ-25-A-2287
being driven by its driver in rash and negligent manner and in high
speed, hit the motorcycle of the claimant on account of which the
claimant and his wife sustained multiple fractures. Pursuant thereto,
the claimant filed the claim petition under Section 166 of the MV Act
and the learned Tribunal awarded the compensation of Rs.4,73,000/-
to the claimant to be paid by the appellant - insurance company.
[3.0] Learned advocate Ms. Kirti Pathak appearing for the appellant
has submitted that the learned Tribunal has materially erred in not
considering contributory negligence on the part of the claimant i.e.
driver of motorcycle and though there was no loss of future income,
the learned Tribunal has awarded compensation under the head of
future loss of income. She has further submitted that the learned
Tribunal has committed an error in awarding 9% interest per annum
though at the time of accident in the year 2017, interest rates at the
rate of 7 to 8% were prevalent. Further, she has submitted that the
learned Tribunal has committed an error in considering the disability
at 27% as functional disability. In this regard, she has relied on the
decision of the Hon'ble Supreme Court in the case of Rajkumar vs.
Ajaykumar & Ors. reported in (2011)1 SCC 343. She has further
submitted that the learned Tribunal has committed an error in relying
upon the decision of the Hon'ble Supreme Court in the case of Pappu
Deo Yadav vs. Naresh Kumar and Others reported in 2020 ACJ 2695
as the said case was concerning amputation. Hence, the learned
Tribunal has committed an error in not considering the statutory
provisions while awarding the compensation. Hence, she has
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requested to allow the present appeal.
[4.0] Learned advocate Mr. Nishit Bhalodi appearing for the original
claimant has opposed the appeal on the ground that the appellant -
insurance company had failed to prove the contributory negligence on
the part of the original claimant - motorcycle driver and learned
Tribunal, believing the evidence of the claimant, who was the sole eye-
witness, has rightly held that the car driver was solely negligent for
the accident. Further, the driver of the offending vehicle car did not
step into the witness box and has not rebutted the evidence led by
the claimant and hence, the learned Tribunal has properly considered
the issue of negligence and held the driver of car to be sole negligent
for the accident. Insofar as disability sustained by the claimant is
concerned, he has submitted that the learned Tribunal has
appropriately considered the parameters of disability and
furthermore, when both the parties have mutually agreed at a
particular extent of disability and when the insurance company has
consented for the disability at 27%, question to reagitate the said
issue of disability before this appellate forum does not arise. Further,
he has submitted that considering the mutually agreed disability of
27%, the learned Tribunal has rightly awarded the amount under the
head of future loss of income considering the gravity of injury and
hence, he has requested to dismiss the present appeal.
[5.0] Having heard learned advocate appearing for the respective
parties and perusing the evidence on record, it appears that the
learned Tribunal has properly appreciated the evidence produced on
record. The claimant injured, who was the sole eye-witness to the
accident, himself stepped into the witness box and tendered his
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evidence at Exh.17. Even, the FIR (Exh.23) and charge-sheet (Exh.25)
are filed against the driver of the offending car and the driver of
offending car has not even stepped into the witness box to rebut the
evidence of the claimant and hence, by appreciating the evidence
produced on record, the learned Tribunal has held that the driver of
offending car was solely negligent for the accident as no any evidence
is produced on record to prove the contributory negligence on the
part of the claimant - driver of motorcycle. In this regard, reference is
required to be made to the decision of the Hon'ble Supreme Court in
the case of Shrikrishna Kanta Singh vs. The Oriental Insurance
Company Ltd. & Ors. reported in 2025 INSC 394, wherein it has been
observed and held that driver of offending vehicle was not cautious
enough to have avoided the accident and negligence of the driver of
the car must be proved by the evidence with preponderence of
probability as standard. In view of above, learned Tribunal has not
committed any error in holding the driver of car to be 100% negligent.
Even otherwise, to prove the contributory negligence, the insurance
company has to lead the evidence or to prove the said fact on the
basis of evidence of preponderance of probability. Herein, no such
evidence is led before the learned Tribunal by the insurance company
and hence, merely taking a plea of contributory negligence on the part
of claimant cannot be automatically proved or presumed to be true.
Hence, argument canvassed by the learned advocate for the appellant
- insurance company to consider contributory negligence on the part
of claimant is not accepted.
[5.1] Now, coming back to the second argument qua disability
sustained by the claimant, the learned Tribunal considering the
medical certificate has considered the age of claimant at the time of
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accident at 50 years. Further, Dr. Sagar Chudasama has issued
disability certificate (Exh.32) wherein total disability body as a whole is
mentioned as 56%. The original opponent No.3 and claimant, both
have mutually agreed to exhibit the said medical certificate by
agreeing to consider disabiilty at 27% and endorsement in this regard
is also made. Considering the aforesaid fact, once the parties have
mutually arrived at a particular disabiilty, question to reagitate the
said issue before this appellate forum does not arise. Hence, the
reliance placed on the decision of Hon'ble Supreme Court in the case
of Rajkumar (Supra) would not avail any assistance to the appellant -
insurance company.
[5.2] Further, the learned Tribunal while calculating future loss of
income has considered minimum wages of the claimant prevalent at
the time of accident and has rightly considered monthly income at
Rs.8000/- per month and as per the decision of the Hon'ble Supreme
Court in the case of Govind Yadav vs. New India Assurance Co. Ltd.
reported in 2012 ACJ 28, the learned Tribunal has considered monthly
income of Rs.8000/- and accordingly assessed Rs.96,000/- per annum.
So far as the future loss of income is concerned, in light of the decision
of the Hon'ble Supreme Court in the case of National Insurance
Company Ltd. Vs. Pranay Shethi reported in (2017) 16 SCC 680,
learned Tribunal has properly considered the aspect of future loss of
income relying on the decision of the Hon'ble Supreme Court in the
case of Pappu Deo Yadav (Supra). Further, in the case of permanent
or partial disablement incurred as a result of motor accident, the
injured claimant is entitled for compensation under the head of future
loss of income. Merely income of claimant is increased during the time
of his injury is not a ground to refuse the compensation under the said
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head. In this regard, reference to the decision of the Hon'ble Supreme
Court in the case of Kavita Nagar vs. Oriental Insurance Co. Ltd.
reported in 2024 ACJ 2740 relying on the decision of the Hon'ble
Supreme Court in the case of Pranay Shethi (Supra) has been pleased
to observe and held in paragraphs 13, 14 and 15 as under:
"13. In motor accident claim cases, it is imperative toconsider the future
aspects of a person's earning potential when determining
compensation. Simply focusing on a deceased individual's current
income atthe time of death disregards the natural progression of a
career or the intrinsic motivation to improveone's financial position over
time. Both self-employed individuals and those on fixed salaries strive to
increase their earnings, adapting to economic changes such as inflation
and the cost of living. While individuals on a fixed salary may appear to
have a predictable income, this view overlooks the reality that salaries,
even for employees in permanent positions, generally increase over time
due to factors like inflation, promotions, and company policies. For
instance, a government employee or someone in the private sector with
a fixed salary may still receive annual increments, benefits, or
adjustments based on performance, seniority, or pay revisions. These
incremental increases reflect the natural progression of a persons
career and the adjustment to cost-of-living changes, making it unjust to
disregard future earning potential simply because an individual receives
a fixed salary. Similarly, those who are self-employed, though lacking
the certainty of a regular salary, are still motivated to grow theirincome
to maintain their standard of living in an ever-changing economy. The
view expressed in National Insurance Company Ltd. (Supra), rightly
emphasizes that failing to account for these dynamics creates a
distorted view, where individuals in self-employment or fixed-income
roles are presumed to have a stagnant earning potential. This outlook is
fundamentally flawed because it negates the drive for income
growth,which is inherent to human ambition and sustenance.
14. The need to factor in future prospects when determining
compensation becomes even clearer and more pressing when
considering the basic human drive to sustain and improve one's life. A
self-employed individual, just like someone on a fixed salary, strives to
increase their income to meet growing expenses and to adapt to
changing circumstances. This is particularly important when considering
the purchasing power and quality of life, which tend to increase as a
person's career progresses. The notion that a self-employed person's
income will remain static is flawed, as they, too, make efforts to raise
their fees or charges to keep pace with inflation and market demands.
For instance, someone working in a government role or another fixed-
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income job might receive annual salary adjustments or benefits,
reflecting a growth trajectory over time. Similarly, a self-employed
professional--such as a doctor, lawyer, or small business owner--will
often increase fees or expand services to keep pace with rising costs.
Recognizing these future prospects ensures a fair and just compensation
by aligning with real-world economic dynamics, which Section 168 of
the Motor Vehicles Act,1988 seeks to uphold.
15. This drive to improve one's income is universal, regardless of the
employment status, and should be reflected in the compensation
calculations for motoraccident claims. As the precedent in the quoted
judgment suggests, it is unjust to disregard future prospects solely
based on the perceived static nature of the income. Instead, a degree-
test should be applied, accounting for factors like age, career growth,
and economic conditions, ensuring fair compensation that reflects the
individual's true earning potential over time."
In view of above, the argument canvassed by the learned
advocate for the appellant that the claimant is not entitled for
compensation under the head of future loss of income is not accepted
and considering future prospects as held by the learned Tribunal at
25%, it will come to Rs.1,20,000/- (Rs.96,000 + 25% of Rs.96,000) and
as the claimant was aged 50 years, multiplier of 13 would apply and
therefore, compensation under the head of future loss of income is
rightly awarded at Rs.4,21,200/- [Rs.1,20,000 x 27/100 x 13] and the
same is just and proper and no interference is called for. Even, under
other heads, compensation awarded by the learned Tribunal is just
and proper and does not require any interference by this Court.
[5.3] Now, so far as the argument canvassed by the learned advocate
for the appellant that the learned Tribunal has committed an error in
awarding 9% interest per annum is concerned, it is needless to say
that it is the discretion of the learned Tribunal under Section 171 of
the MV Act to appropriately award the interest on the amount of
compensation and learned Tribunal has rightly exercised its
jurisdiction in awarding 9% interest per annum.
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[6.0] In wake of aforesaid conspectus, the impugned judgment and
award passed by the learned Tribunal do not call for any interference
by this Court and the appeal fails and hence, present First Appeal
stands dismissed.
[7.0] The Tribunal shall disburse the entire awarded amount lying in
the FDR and/or with the Tribunal, with accrued interest thereon, if
any, to the claimant after fixing apportionment, if not already fixed, by
account payee cheque / NEFT / RTGS, after proper verification and
after following due procedure.
[7.1] While making the payment, the Tribunal shall deduct the courts
fees, if not paid, in accordance with rules/law.
[7.2] Record and proceedings, if any, be sent back to the concerned
Tribunal, forthwith.
Sd/-
(HASMUKH D. SUTHAR, J.)
Ajay
