[Cites 4, Cited by 0]
Gujarat High Court
The Magma Hdi General Insurance Company ... vs Bachubhai Kalubhai Alias Bhalabhai ... on 4 December, 2025
NEUTRAL CITATION
C/FA/1267/2022 JUDGMENT DATED: 04/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1267 of 2022
With
R/CROSS OBJECTION NO. 230 of 2022
In
R/FIRST APPEAL NO. 1267 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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THE MAGMA HDI GENERAL INSURANCE COMPANY CALCUTTA
Versus
BACHUBHAI KALUBHAI ALIAS BHALABHAI BHARVAD & ORS.
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR H M SHAH(3997) for the Defendant(s) No. 1,2,3,4
RULE SERVED for the Defendant(s) No. 6,7
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 04/12/2025
ORAL JUDGMENT
[1.0] By way of present First Appeal under Section 173 of the Motor
Vehicles Act, 1988, the appellant - insurance company has assailed the
impugned judgment and award dated 18.11.2021 passed by the
learned 6th Motor Accident Claims Tribunal, at Cambay, District Anand
(for short "learned Tribunal") in Motor Accident Claim Petition
No.130/2020 (Old MACP No.147/2017), whereby the learned Tribunal
has partly allowed the claim petition in favor of the original claimants
by directing the appellant herein - original opponent No.3 - insurance
company to pay compensation of Rs.20,69,807/- to the original
claimants with interest at the rate of 9% per annum from the date of
claim petition. Cross Objection No.230/2022 in First Appeal No.1267
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of 2022 is filed by the original claimants seeking enhancement of
compensation.
[2.0] The brief facts leading to filing of present appeals and cross-
objections are as follows:
[2.1] On 17.10.2016 at about 5.00 hours on Tarapur to Vataman road,
near Dargah, when the deceased was going on his motorcycle, the
original opponent No.1 - driver of opponent Truck bearing No.GJ-14-
W-3259 drove the offending Truck in rash and negligent manner and
collided with the motorcycle of the deceased. As a result, deceased
died due to the accidental injuries and original claimants - legal heirs
and representatives of the deceased filed the claim petition seeking
compensation of Rs.54 lakh.
[2.2] After considering the evidence produced on record by the
respective parties, learned Tribunal has been pleased to hold the
original opponent No.1 solely negligent for the accident and awarded
compensation of Rs.20,69,807/- to the original claimants with 9%
interest per annum. Hence, present First Appeal is filed by the
appellant - insurance company challenging the impugned judgment
and award on the ground of quantum and cross-objections are filed by
the original claimants seeking enhancement of compensation.
[3.0] Learned advocate for the appellant has submitted that the
learned Tribunal has committed an error in awarding the extra high
compensation without considering the evidence produced on record
and erred in considering the income of Rs.8000/- of the deceased and
40% prospective income of the deceased without considering the
material on record. Even, future loss of dependency is wrongly
considered which is required to be sliced down and that loss of
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C/FA/1267/2022 JUDGMENT DATED: 04/12/2025
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consortium is awarded to grandfather of the deceased which is not
permissible. He has further submitted that the deposition of employer
of deceased is produced at Exh.37 which ought not to have been
considered as it is not believable and no any documentary evidence in
form of salary voucher is produced and therefore, in absence of any
material, learned Tribunal ought to have considered notional income
of the deceased. Hence, he has requested to allow the present appeal
and reduce the compensation accordingly.
[4.0] Learned advocate Mr. H.M. Shah appearing for the original
claimants has opposed the First Appeal and in support of the Cross
Objections, he has submitted that the learned Tribunal has committed
an error in not considering the income of the deceased at the time of
accident as the deceased was a skilled person working as driver and
though the claimants had examined employer of the deceased at
Exh.37 and produced the salary certificate at Exh.38 which
demonstrates that monthly salary of the deceased at the time of
accident was Rs.12,000/-, the learned Tribunal has committed an error
in considering monthly income of the deceased only at Rs.8000/-. He
has further submitted that the learned Tribunal ought to have
considered future prospects of the deceased as he was a skilled
person. To buttress his argument, learned advocate for the original
claimants has relied on the decision of the Hon'ble Supreme Court in
the case of Parminder Singh vs. New India Assurance Co. Ltd. & Ors.
reported in (2019)7 SCC 217 and in the case of Gabhubhai Sevabhai
Koli vs. Gujarat State Road Transport Corporation reported in 1999
ACJ 1364 and has requested to consider monthly income at
Rs.12,000/- of the deceased and to allow the cross-objection and
dismiss the First Appeal.
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C/FA/1267/2022 JUDGMENT DATED: 04/12/2025
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[5.0] Having heard learned advocate for the appellant and learned
advocate for the original claimants and perusing the record, it appears
that in order to prove the income of the deceased, the claimants have
produced documentary evidence at Exhs.41 to 48 and considering the
the evidence of claimant produced at Exh.34, it transpires that the
driver of the offending vehicle has not led any evidence or stepped
into the witness box. It appears from the evidence of the claimant
No.1 that the deceased was riding his motorcycle and offending truck
came from opposite side and collided with the motorcycle of
deceased and therefore, the learned Tribunal hold the driver of the
offending truck to be sole negligent for the accident and issue No.1
was answered in affirmative in favor of the original claimants and
against the original opponent No.1 - driver of offending truck. Even
otherwise, the said fact is not seriously disputed by either of the
parties.
[6.0] It is apposite to mention that in the claim petition, both, the
claimants as well as the insurance company have challenged the
quantum. At the time of accident, it is stated that the deceased was
aged 24 years and was earning Rs.22,000 to Rs.27,000 by serving as a
driver of school van and to prove the said fact, the claimants have
examined employer of the deceased at Exh.37 and produced salary
certificate at Exh.38 and claimants have produced school leaving
certificate of the deceased at Exh.39 to prove the age of the
deceased. Perusing the said documentary evidences, it appears that
the deceased was earning Rs.12,000/- per month but the learned
Tribunal has not relied on the said documents on the ground that in
the cross-examination of the employer of the deceased, it was found
that there was no any documentary evidence or proof of said payment
and witness having no any evidence to show that the deceased was
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working and was being paid Rs.12,000/- per month. Hence, the learned
Tribunal has considered the monthly income of Rs.8000/- considering
the prevailing minimum wages. The authorities relied on by the
learned advocate for the original claimants in the case of Parminder
Singh (Supra) and in the case of Gabhubhai Sevabhai Koli (Supra) are
also considered and perusing the said decisions, income of the
deceased is required to be considered at Rs.10,000/- as the alleged
accident took place on 01.07.2019. Further, considering the age of the
deceased at 24 years at the time of accident, 40% addition towards
future prospects is required to be made and therefore, monthly loss
of dependency would come to Rs.14,000/- and deducting 1/4 th
towards personal expenses, the claimants would be entitled to get
Rs.10,500/- [Rs.14,000 - Rs.3500 (1/4th of Rs.10,000)]. Hence, applying
multiplier of 18, as the deceased at the time of accident was aged 24
years, compensation under the head of future loss of dependency
would come to Rs.22,68,000/- (Rs.10,500 x 12 x 18). To that extent
the impugned judgment and award is required to be modified and
cross objection is required to be allowed.
[6.1] So far as loss of consortium is concerned, as per the law laid
down by the Hon'ble Supreme Court in the case of National Insurance
Company Limited vs. Pranay Sethi and Ors. reported in 2017 ACJ
2700, claimants are entitled to get an amount of Rs.48,000 x 4 =
Rs.1,93,600/- towards filial consortium and Rs.18,1500/- towards
loss of estate and Rs.18,150/- towards funeral expenses. Further,
medical bills for an amount of Rs.25,407/- were produced before the
learned Tribunal and therefore, the original claimants are entitled to
get the said amount as has been rightly awarded by the learned
Tribunal. Hence, the claimants are entitled to get the compensation
as under:
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C/FA/1267/2022 JUDGMENT DATED: 04/12/2025
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Heads Awarded by Reassessed by this Court
Tribunal
Future loss of Rs.18,14,400/- Rs.22,68,000/-
dependency including additional
amount of Rs.4,53,600/-
Loss of consortium Rs.2,00,000/- Rs.1,93,600/-
Funeral Expenses Rs.15,000/- Rs.18,150/-
Loss of Estate Rs.15,000/- Rs.18,150/-
Medical Expenses Rs.25,407/- Rs.25,407/-
Total Rs.20,69,807/- Rs.25,23,370/-
Compensation including additional
amount of Rs.4,53,500/-
[7.0] In wake of aforesaid conspectus, First Appeal No.1267 of 2022
is partly allowed to the extent it challenges the consortium awarded
to the grandfather of the deceased towards loss of consortium. Cross
Objection No.230/2022 in First Appeal No.1267/2022 is partly
allowed and impugned judgment and award dated 18.11.2021 passed
by the learned 6th Motor Accident Claims Tribunal, at Cambay, District
Anand in Motor Accident Claim Petition No.130/2020 (Old MACP
No.147/2017) is modified and amount of compensation to be awarded
to the original claimants is enhanced to Rs.25,23,370/- as discussed
hereinabove.
[8.0] The Insurance Company is directed to deposit the enhanced
amount i.e. Rs.4,53,500/- alongwith accrued interest at the rate of 9%
per annum within a period of six weeks from the date of receipt of this
order.
[9.0] The Tribunal shall disburse the entire amount of compensation
(lying in the FDR and/or with the Tribunal including the enhanced
amount of compensation), with accrued interest thereon, if any, to the
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C/FA/1267/2022 JUDGMENT DATED: 04/12/2025
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claimants, by account payee cheque / NEFT / RTGS, after proper
verification and after following due procedure.
[10.0] While making the payment, the Tribunal shall deduct the
courts fees, if not paid.
[11.0] Record and proceedings, if any, be sent back to the
concerned Tribunal, forthwith.
Sd/-
(HASMUKH D. SUTHAR, J.)
Ajay
