[Cites 3, Cited by 0]
Gujarat High Court
Bhavnaben Rameshbhai Atresha vs Indrajitsinh Gajendrasinh Jadeja on 5 December, 2025
NEUTRAL CITATION
C/FA/3686/2024 JUDGMENT DATED: 05/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3686 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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BHAVNABEN RAMESHBHAI ATRESHA & ORS.
Versus
INDRAJITSINH GAJENDRASINH JADEJA & ANR.
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1,2,3,4,5
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 05/12/2025
ORAL JUDGMENT
1) Feeling aggrieved and dissatisfied with the judgment and award
dated 17.08.2024 passed by learned Motor Accident Claims
Tribunal (Special) & 9th Additional District Judge, Rajkot (which shall
hereinafter be referred to as "the Tribunal"), in Motor Accident
Claim Petition No.479 of 2021, the appellants - original claimants
preferred the present appeal under Section 173 of the Motor
Vehicles Act, 1988 (which shall hereinafter be referred to as "the
Act").
2) Heard Mr. Hemal Shah, learned Advocate for the appellants -
original Claimants and Mr. C. A. Mehta, learned Advocate for
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C/FA/3686/2024 JUDGMENT DATED: 05/12/2025
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respondent - Insurance Company. Respondent no.1 is duly served
but did not appear before this Court. Perused the record and
proceedings.
3) It is the case of the appellants that on 07.03.2021, deceased
Shivabhai Atresha (who shall hereinafter be referred to as
"deceased") was riding his motorcycle in moderate speed on
correct side of the road and at about 06:45 pm, when he reached
oposite to Rafaliya Khodiya Temple on Wankaner - Morbi National
Highway Road, within the jurisdiction of Morbi Taluka Police Station,
the driver of Dumper Truck No.GJ-36-T-5672 came driving his
vehicle in a rash and negligent manner with an excessive speed and
caused accident with the motorcycle. As a result of the said
accident the deceased sustained injuries and succumbed to the
accidental injuries. Therefore, the appellants - legal heirs of the
deceased had filed MAC Petition seeking compensation. The learned
Tribunal after appreciating the evidence produced on record has
partly allowed the claim petition.
4) The appeal is filed mainly on the grounds that the learned Tribunal
has erred in considering negligence of the deceased to the extent of
15% for occurrence of accident and 10% negligence for accidental
injuries and resultant death on account of non-wearing the helmet,
in total considered 25% own negligence of the deceased. Further,
the learned Tribunal has erred in not considering loss of consortium
for each claimants and also committed error in awarding only
Rs.16,500/- towards loss of estate and Rs.16,500/- towards funeral
expenses instead of Rs.18,150/- towards both heads.
5) Having heard the learned Advocates and going through the record it
appears that after recording of the evidence the learned Tribunal
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has decided 15% contributory negligence of the deceased and
additional 10% negligence of the deceased on the ground that as
per the post-mortem report at Exhibit 26 the deceased sustained
crushed injury on right side skull with brain crushed injury as the
deceased failed to wear protective headgear and if at the time of
accident the deceased had worn protective headgear he might have
not sustained such serious injuries which would lead to his death. It
is needless to say that once the learned Tribunal has considered the
contributory negligence of both the drivers then again in second
part deciding additional negligence for not wearing helmet is
remained immaterial. Therefore, up to that extent the learned
Tribunal has committed error in considering further 10% negligence
of the deceased which is required to be quashed and set aside and
interference is required to modify the impugned judgment to the
extent that the deceased is held 15% negligent whereas the driver
of dumper is 85% negligent for the occurrence of the accident.
6) Further, the learned Tribunal by relying on judgment of National
Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017
ACJ 2700, has awarded total Rs.77,000/- under 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.3,300/- (i.e.
Rs.18,150/- - Rs.16,500/- = Rs.1,650/- towards loss of estate and
Rs.18,150/- - Rs.16,000/- = Rs.1,650/- towards funeral expenses).
7) 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
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Ltd., reported in 2022 LiveLaw (SC) 666, the learned Tribunal
has committed error in awarding only Rs.44,000/- towards loss of
consortium, however, in view of above judgments the appellants -
original claimants being legal heirs of the deceased they are
entitled for Rs.48,400/- each towards the head of loss of
consortium. Therefore, the amount towards loss of consortium is
reassessed as Rs.2,42,000/- (i.e. Rs.48,400/- X 5). Therefore, the
appellants are entitled for additional amount of Rs.1,98,000/-
under the head of loss of consortium.
8) 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 future Rs.13,60,296/- Rs.13,60,296/-
dependency income
Consortium Rs.44,000/- Rs.2,42,000/-
including additional amount of
Rs.1,98,000/-
(Rs.48,400/- X 5)
Loss of estate Rs.16,500/- Rs.18,150/-
including additional amount of
Rs.1,650/-
Funeral expenses Rs.16,500/- Rs.18,150/-
including additional amount of
Rs.1,650
Total compensation Rs.14,37,296/- Rs.16,38,596/-
including total additional amount
of Rs.2,01,300/-
After deducting Rs.10,77,972/- Rs.13,92,806/-
negligence (after deducting (after deducting 15% negligence
25% negligence of the deceased)
of the deceased) (Rs.16,38,596/- - Rs.2,45,790/-)
Enhanced amount Rs.3,14,834/-
of compensation (Rs.13,92,806/- - Rs.10,77,972/-)
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9) In view of above, as the Tribunal has awarded total compensation
of Rs.10,77,972/-, however, as discussed above the appellants are
entitled to get additional amount of Rs.3,14,834/- with
proportionate costs and interest as awarded by the learned
Tribunal.
10) Hence, present appeal is partly allowed. The judgment and award
dated 17.08.2024 passed by learned Motor Accident Claims
Tribunal (Special) & 9th Additional District Judge, Rajkot, in MAC
Petition No.479 of 2021 stands modified to the aforesaid extent.
Rest of the judgment and award remains unaltered. The respondent
no.2 - Insurance Company shall deposit the said additional amount
of Rs.3,14,834/- 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.
11) The learned Tribunal is directed to recover or deduct the deficit
court fees on enhanced amount and thereafter disburse the amount
accordingly.
12) Interim application, if any, also stands disposed of.
13) Award to be drawn accordingly.
(HASMUKH D. SUTHAR,J)
ANKIT JANSARI
