[Cites 4, Cited by 0]
Gujarat High Court
Limbuben Wd/O Mahendrabhai Rupsing ... vs Bhavsing Malji Vasava on 4 December, 2025
NEUTRAL CITATION
C/FA/1654/2015 JUDGMENT DATED: 04/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1654 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J. L. ODEDRA
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Approved for Reporting Yes No
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LIMBUBEN WD/O MAHENDRABHAI RUPSING GAMIT & ORS.
Versus
BHAVSING MALJI VASAVA & ORS.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4
DISMISSED FOR NON PROSECUTION for the Defendant(s) No. 1
MR VC THOMAS(5476) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA
Date : 04/12/2025
ORAL JUDGMENT
1. The present appeal arises from the judgment and
award dated 19.09.2013 passed by MACP (Main),
Tapi at Vyara passed in MAC petition No. 889/2002.
The Tribunal by partly allowing the petition was
pleased to award a sum of Rs. 3,64,000/- with 8%
simple interest to the applicants from the date of the
filing of the petition till realisation. The claimants
No. 1 and 2 were held liable to make good the
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compensation to the original-claimant whilst
exonerating the original opponent no.3 Insurance
company.
2. In the present appeal, the impugned judgment and
award has been challenged on two counts. Firstly,
the exoneration of the Insurance Company and the
quantum as computed by the Tribunal.
3. Learned advocate Mr Hiren Modi arguing for the
appellant has submitted that the accident is of
22.07.2002. He has submitted that undisputedly
the accident happened as the concerned tractor,
bearing Registration no. GJ-19-B-914 was being
driven in a rash and negligent manner and the
deceased, i.e. one Mahendra Roop Singh Gamit,
suffered an accident, as he, being a labourer on the
said tractor, was sitting on the mudguard of the
tractor. The accident occurred as the tractor, owing
to it being driven in rash and negligent manner,
turned turtle and resultantly, the deceased ended
up being crushed under the mudguard of the tractor
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and succumbed to the injuries.
4. It was submitted that our own High Court in the
case of First Appeal No. 269/2016, being the
decision dated 18.11.2025 has taken a view, in
similar circumstances, that the Insurance Company
may not be exonerated on all counts and that the
Insurance Company must first satisfy the award
and thereafter, be at liberty to recover the
compensation amount from the owner and driver of
the tractor. It was submitted that in the said
judgment, the learned single Judge was pleased to
rely on earlier reported judgment in the case of First
Appeal No. 3345/2011 and a judgment of the
Hon'ble Supreme Court of India in case of V.
Renganathan and another Vs. Branch Manager,
United India Insurance Company Limited and
another, reported at 2003 ACJ 623.
5. It was submitted that in the present case also, the
deceased was sitting on a mudguard of the tractor
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and the tractor turned turtle and thus, the deceased
crushed under the mudguard and as a result of the
injuries so received, died. It was submitted that
relying on the said judgment, this Court may also
take a similar view. Additionally, the learned
advocate has relied on the judgment in case of
Shivaraj Vs Rajendra and another, reported at
2018 10 SCC 432, which was again referred to in
R/First Appeal No. 269/2016 by this Court. It was
submitted that in the said case the deceased was
travelling as a loader in the tractor and suffered an
accident. There too, the Hon'ble Supreme Court was
pleased to direct to the insurance company first
satisfy award and thereafter be at liberty to recover
the same from the tractor owner.
6. It was next submitted that even on the assessment
of compensation payable, the Tribunal is has only
assessed a compensation to the tune of Rs.
3,64,000/-. It was submitted that the same is grossly
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inadequate. It was submitted that even if the minimum
wages of the deceased, (which, at the material time
were to the tune of Rs. 2,200/- per month), were
considered for the purpose of computing notional
income of the deceased, then too, the yearly income of
the deceased would be Rs. 26,400/- per annum. It was
submitted that moreover, in terms of the judgment in
the case of National Insurance Company Limited Vs
Pranay Sethi reported at (2017) 16 SCC 680,
prospective income to the tune of 40% ought to have
been awarded. It was submitted that accordingly, the
income may be computed and that therefore, on
addition of Rs. 10,560/-, the gross annual income
would come to Rs. 36,900/-. It was submitted that
looking to the facts/pleadings, as also the contents of
the present appeal, it is plain that there are four
dependents they being the wife, two minor
children( who were minor at the time of lodging the
claim petition) and the father of the deceased. It was
submitted that as there are four dependents, 1/4th of
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the income of the deceased will have to be deducted
towards personal expenditures in terms of the
judgment in case of Sarla Verma. It was submitted
that accordingly sum of Rs. 9,240/- may be deducted
from Rs. 36,960/- being the annual income of the
deceased. So deducted, a sum of Rs. 27,720/- would
remain, which would be the multiplicand in the
present matter.
7. Learned advocate further submitted that the
Tribunal has taken the appropriate multiplier at 17,
for the Tribunal has rightly considered the age of the
deceased to be 28 years in terms of the post-mortem
note Exhibit-48. Thus, the total Loss of Future Income
would be Rs. 27,720 x 17 which is Rs. 4,71, 214/-. It
was further submitted that apart from the same, under
the conventional heads of compensation, a further
sum of Rs. 48,400/- would be liable to be awarded to
each of the original claimants-Appellants on account of
Loss of Consortium. It was submitted accordingly, an
aggregate sum of Rs. 1,93,000/- (being Rs. 48,400/- x
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4) would be liable to be awarded. Furthermore, for the
loss of Estate and Funeral Expenses a sum of
Rs.18,150/- each, may be awarded, thus aggregating
to Rs. 36,300/-. It was submitted that the sum total of
all of the aforesaid would come to Rs. 7,01,140/-. It
was thus submitted that the enhanced compensation
would be Rs. 7,01,140/- minus Rs. 3, 64,000/- (being
the compensation awarded by the learned Tribunal),
which would come to Rs. 3, 37,140/-. It was thus
submitted that the same may kindly be awarded as
enhanced compensation along with 9% simple interest
per annum from the date of the filing of the claim
petition till the enhanced amount is deposited with the
Tribunal.
8. It was further submitted that entire amount
awarded under by the Tribunal as well as is also
enhanced amount may be permitted to be recovered
from the Insurance company with a liberty to the
Insurance Company to recover it from the opponents
No. 1 and 2.
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9. None appeared for the Respondent No. 2.
Learned advocate Mr. M.R. Prajapati for Mr. V.C.
Thomas, appearing for the Insurance Company, the
Respondent No.3 herein, has vehemently opposed
the present claim petition. It is submitted that there
is a clear cut breach of policy and in terms of the
applicable law, where there is a breach of policy,
the exoneration of the Insurance company would
follow. It was thus sumbitted that in the facts and
circumstances when the Insurance company is
liable to be exonerated, there is no question of
Insurance company being made liable to first pay
the compensation and thereafter being at liberty to
recover it from the tort feasers. It was further
submitted that in so far as the claim for enhanced
compensation is concerned, indeed, he has verified
the minimum wages as applicable during the period
of accident .i.e. period around 22.07.2002 and that
the said amount would be Rs. 2,200/- for skilled
worker and Rs. 2,100/- each for unskilled and semi-
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skilled worker. It was however submitted that in the
present case, the Tribunal, being best suited to
assess the notional income of the deceased by
taking a holistic view of the matter, has rightly
assessed the income. In the alternative, it was
submitted that even if this Court was assessing
notional compensation on the basis of minimum
wages, the income of the deceased may be treated to
be that of unskilled or semi-skilled worker and not
as that of a skilled worker.
10. Having heard the learned advocates for the
parties, this Court deems it appropriate to decide in
terms of appearing hereinafter.
11. The point of determination that arises for
consideration of this Court in the present matter is
whether, in the facts and circumstances of the
matter, whether the Insurance Company is liable to
first satisfy the award amount and then be at liberty
to recover it from the tort feasers,i.e. driver and
owner of the vehicle, despite there being a breach of
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policy condition? And further, whether the
compensation arrived at by the Tribunal is just, fair
and reasonable? If not, what is compensation that is
liable to be awarded in the facts of the present case?
12. At the outset, there is no dispute that the
seating capacity of the concerned vehicle-tractor is
one. Therefore, on the basis of the undisputed facts,
the deceased, in sitting on the mudguard of the
tractor, prima facie appears to have committed a
breach of policy condition. Even otherwise in terms
of the decision this Court in R/First Appeal No.
269/2016, in a similar factual situation, the
Insurance Company has been held to first satisfy
the award and thereafter to be at liberty to recover
the same from the owner and the driver of the
tractor.
13. Most importantly, the Hon'ble Supreme Court,
too, in case of Shivaraj Vs Rajendra and Others
reported at 2018 10 SCC 482, and other decisions
of this Court, being the decision in First Appeal No.
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3345/2011 and the reported decision of this Court
in the case of United India Company Limited Vs
Manjulaben Purshottamdas Patel and Ors.
reported at 1994(1) GLR 269 indicate that the
Apex Court and this Court respectively, have held in
similar situations that the Insurance Company is
liable at the first instance to satisfy the award and
thereafter, the insurance company is at liberty to
recover the same from the owner and the driver
involved in the accident.
14. Looking to the said ratios and the fact that
the factual aspects in those matters were similar to
that in the present matter, this Court is also of the
view that a similar order would be just and proper
in the facts and circumstances of the case and that
therefore, the Insurance Company is directed at the
first instance to satisfy the award and thereafter be
at liberty to recover the same from the owner and
driver of the vehicle involved in the accident. Thus,
as against the finding of the Tribunal to fully
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exonerate the insurance company, the insurance
company shall be liable to the foregoing extent.
15. In so far as the compensation is concerned,
this Court, has noticed that the Tribunal had taken
the notional monthly income of the deceased at
about Rs. 1,666.7/- per month. The said income
seems slightly on the lower side and thus this Court
is inclined to fall on the Minimum Wages, as
existing during the said period. However, whilst
adjudicating the said notional monthly income, this
Court cannot lose sight of the fact that a labourer
on a tractor would be a unskilled worker for the
purposes of ascertainity the applicable minimum
wages. Therefore, the applicable minimum wage
would be that of an unskilled worker. Thus, in
terms of the minimum wage notifications as
applicable in the year 2002, the minimum wages of
such a worker would be Rs. 2,200/- per month. So
computed, the amount of yearly compensation
would Rs. 2,200 x12 which is Rs. 26,400/-.
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Furthermore, in terms of the ratio in case of Pranay
Shethi (supra), a 40% increase would have to be
given on account of future prospective income, in
terms of paragraph 59.4 of the judgment in Pranay
Shethi (supra) more so when there is no dispute
asto the age of the deceased being 28 years at the
time of the accident. The relevant paragraph therein
reads as follows:-
" In case the deceased was self-employed or on a fixed
salary, an addition of 40% of the established income should
be the warrant where the deceased was below the age of 40
years. An addition of 25% where the deceased was
between the age of 40 to 50 years and 10% where the
deceased was between the age of 50 to 60 years should be
regarded as the necessary method of computation. The
established income means the income minus the tax
component."
16. So computed, the amount toward future
prospective inocme would be Rs.10,560/- which added
to the yearly income computed earlier, would be to Rs.
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36,960/-. As rightly argued by the learned advocate for
the appellant, here the dependents are four in number
and that therefore, 1/4th of the yearly income will
have to be deducted. In this context, this Court has
relied on paragraph 14 of the judgment of Sarla
Verma and Others Versus Delhi Transportation
Corporation and Another being the decisions dated
April 15,2009 in Civil Appeal No. 3483/2008. The
relevant para reads thus:
"14. Though in some cases the deduction to be made personal
and living expenses is calculated on the basis of units
indicated in Trilok Chandra, the general practice is to apply
standarized deductions. Having considered several
subsequent decisions of this Court, we are of the view that
where the deceased was married, the deduction towards
personal and living expenses of the deceased, should be
one-third (1/3rd) where the number of dependent family
members is 2 to 3, one-fourth (1/4th) where the number of
dependant family members is 4 to 6, and one-fifth
(1/5th) where the number of dependant family members
exceed six.
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17. So deducted, the sum arrived at would be
Rs.27,720/-. The said amount would be the
multiplicand in the present matter. To that a multiplier
of 17 in terms of the ratio as contained in para 21of
Sarla Verma (supra) will have to be applied. The said
paragraph is quoted hereinbelow for the case of
reference:-
"21. We therefore hold that the multiplier to be used should
be as mentioned in the column (4) of the Table above
(prepared by applying Susamma Thomas, Trilok Chandra
and Charlie), Which starts with an operative multiplier of
18 (for the age froups of 15 to 20 and 21 to 25 years),
reduced by one unit for every five years, that is M-17 for 26
to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40
years, M-14 for 41 to 45 years, and M-13 for 46 to 50
years, then reduced by two units for every five years, that
is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for
61 to 65 years and M-5 for 66 to 70 years."
18. Thus, so multiplying, an amount of Rs.4,71,240/-
would be arrived at. Furthermore, towards the
compensation for the loss of consortium, a sum of Rs.
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48,400/- will have to be awarded to each of the
claimants/appellants separately. Thus, an aggregate
sum of Rs. 1,93,600/- would be awarded towards Loss
of Consortium. Similarly, towards Loss of Estate and
funeral expenses a sum of Rs. 18150/- each will have
to be awarded. Thus, the aggregate amount under the
headings of Loss of Estate and funeral expenses would
be Rs. 36,300/-.
Hence, the following amount of compensation is
awarded to the appellant/claimant:
Sr. Particulars Amount Amount
No. awarded by determined
the learned by this Court
Tribunal (in Rs.)
1 Future Loss of 3,34,000/- 4,71,240/-
Income
2 Loss of Consortium 15,000/- 1,93,600/-
(Rs.48,400 X
4)
3 Loss of Estate 10,000/- 18,150/-
4 Funeral Expenses 5,000/- 18,150/-
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Total 3,64,000/- 7,01,140/-
Less: Amount 3,64,000/-
already awarded by
the learned Tribunal
Amount enhanced Rs.3,37,140
by this Court /-
Adding all of the aforesaid, the sum arrived would be
Rs. 7,01,140/-. Thus, the enhanced amount would be
Rs. 3,37,140/-.
19. It has been contended by the learned advocate for
the respondent that banking interest have reduced
drastically, since past few years and that therefore, the
present banking interest may be awarded on the
enhanced compensation. On the other hand, learned
advocate for the appellant has contended that the
interest rate both on the enhanced award and the
original compensation granted by the Tribunal may be
awarded at 9% simple interest per annum.
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20. This Court in view of the above submission is of
the view that it would be just if the interest at 9% per
annum is awarded on the enhanced amount. The
reason being that for an accident of the year 2002, the
enhanced compensation is being awarded in the year
2025. Furthermore, looking to the inflationary trends,
that has been in existence, the purchasing power of
the money has decreased considerably. To mitigate the
same, it is only natural that interest at appropriate
rate.i.e. 9% per annum, be awarded so that the
purchase power of the rupees, even if awarded to the
appellant at a belated stage, does not decrease.
21. In the cricumstances, the present appeal is
allowed to the aforesaid extent, the Insurance is
directed to pay first satisfy the award and thereafter be
at liberty to recover the said amount from the
Respondent No. 1 and 2 hearing.
22. The Insurance Company shall deposit the
amount as awarded together with interest at 9% per
annum in its entirety within eight weeks of the
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availability of the signed copy of this judgment, more
so when it is a statement at bar by the learned
advocate for the appellant that no amount has so far
been received by the claimants despite the allowing of
the claim petition to the limited extent as aforesaid, by
the Tribunal.
23. The Tribunal is directed to disburse the entire
enhanced amount together with interest no sooner the
insurance company deposits that same with the
Tribunal. It is clarified by abundant caution that no
fresh FDRs shall be issued in respect of the amount so
deposited.
24. The petition stands disposed of in aforesaid
terms.
25. R & P be forthwith remitted back to the Tribunal.
(J. L. ODEDRA, J)
RIYA VISHWAKARMA
