Gujarat High Court
Heirs Of Decd. Vikrambhai Babubhai ... vs Dashrathsinh J. Dabhi on 6 November, 2025
NEUTRAL CITATION
C/FA/1767/2023 ORDER DATED: 06/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1767 of 2023
With
R/CROSS OBJECTION NO. 398 of 2023
In R/FIRST APPEAL NO. 1767 of 2023
With
R/FIRST APPEAL NO. 1768 of 2023
With
R/CROSS OBJECTION NO. 401 of 2023
In R/FIRST APPEAL NO. 1768 of 2023
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023 In R/CROSS
OBJECTION NO. 401 of 2023
In R/FIRST APPEAL NO. 1768 of 2023
With
R/FIRST APPEAL NO. 1769 of 2023
With
R/CROSS OBJECTION NO. 399 of 2023
In R/FIRST APPEAL NO. 1769 of 2023
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HEIRS OF DECD. VIKRAMBHAI BABUBHAI DABHI & ORS.
Versus
DASHRATHSINH J. DABHI & ANR.
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 06/11/2025
COMMON ORAL ORDER
[1.0] Since these first appeals and cross-objections are arising out of the
common judgment and award passed by the learned Motor Accident
Claims Tribunal (Main), at Palanpur, District Banaskantha, they are heard,
decided and disposed of by this common order.
[2.0] First Appeal Nos.1767, 1768 and 1769 of 2023 are filed by the
respectiev appellants - original claimants under Section 173 of the Motor
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Vehicles Act, 1988, seeking enhancement of the compensation amount
and respective cross objections are filed by the respondent - insurance
company seeking quashment of judgment and order passed by the
learned Motor Accident Claims Tribunal.
[3.0] The brief facts leading to filing of present appeals and cross-
objections are as follows:
[3.1] On 01.02.2015, claimant of M.A.C.P.No.128/2015 was driving his
Alto car bearing registration No.GJ-6-CM-4946 and deceased Vikrambhai
Babubhai Dabhi and Jesungbhai Chhaganbhai Dabhi were travelling in
the said car and they were coming from Danta to Palanpur. When the
said car reached near Dhandha three ways, at that time from Palanpur
side the driver of the Jeep bearing registration No.GJ-8-23A-0407 came
from Palanpur side at a very high and excessive speed and in rash and
negligent manner and while overtaking one bullock cart, the jeep driver
dashed the Alto car, though the claimant of M.A.C.P. No.128/2015 had
taken the car towards the left side of the road to save accident. As a
result, deceased Vikrambhai Babubhai Dabhi and Jesungbhai
Chhaganbhai Dabhi died due to the accidental injuries and claimant of
M.A.C.P.No.128/2015 suffered serious injuries. The driver of Alto Car
filed MACP No.128/2015 and legal heirs and representatives of deceased
Vikrambhai Babubhai Dabhi filed MACP No.133/2015 whereas legal heirs
and representatives of deceased Jesungbhai Chhaganbhai Dabhi filed
MACP No.134/2015.
[3.2] After considering the evidence produced on record by the
respective parties, learned Motor Accident Claims Tribunal (Main), at
Palanpur (hereinafter referred to as "learned Tribunal") has been pleased
to pass an award of Rs.3,15,580/- in favor of the claimant of MACP
No.128/2015; Rs.2,61,800/- in favor of the claimants of MACP
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No.133/2015 and Rs.2,61,800/- in favor of claimants of MACP
No.134/2015 with 9% interest per annum. It is pertinent to note that the
learned Tribunal deducted the negligence on the part of the deceased
persons to the extent of 50% for contributory negligence. Hence,
present appeals and cross-objections are filed.
[4.0] Learned advocate for the appellants has mainly challenged the
impugned award on the ground that the learned Tribunal has material
erred in awarding the compensation without properly appreciating the
evidence and minimum wages or income of the deceased. Insofar as First
Appeal Nos.1767/2015 and 1769/2023 are concerned, the learned
Tribunal has not properly appreciated the fact that the monthly income
of the deceased was required to be considered at Rs.7000/- per month
considering the minimum wages prevailing at the relevant time of
accident and deceased was engaged in agricultural work and animal
husbandry work though the learned Tribunal has considered the income
of the deceased only at Rs.3000/- per month and committed an error in
awarding the compensation towards loss of estate and consortium at
Rs.55,000/- though the compensation under the said head ought to have
been awarded at Rs.1,76,000/- and towards funeral expenses, only
Rs.15,000/- is awarded though it ought to have been awarded at
Rs.16,500/-. The bone contention of the learned advocate for the
appellants is that the learned Tribunal has committed an error in
deducting 50% of amount of compensation. Infact, the deceased persons
were occupants in the Alto Car and they have not contributed in the
unfortunate accident and thus, there was no negligence on the part of
the deceased persons. On the contrary, it was a case of composite
negligence for two deceased persons. Hence, the learned Tribunal has
committed an error in holding the deceased persons contributory
negligence to the extent of 50%.
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[4.1] So far as First Appeal No.1769/2023 is concerned, learned
advocate for the appellant has submitted that the appellant was the
driver of the Alto Car and on his part 50% contributory negligence is
considered. Learned Tribunal has committed an error in not considering
the monthly income of the appellant at Rs.7000/- as per prevaling
minimum wages at the relevant point of time though appellant was a
student and pursuing his study of 2nd BA at the time of accident and due
to this reason, the appellant could not pursue his further studies and
could not secure his job in police department and has awarded only
Rs.1,10,160/- under the head of future loss of income. The learned
Tribunal has committed an error in not appreciating the fact that the
appellant was hospitalized for 21 days and therefore, under the head of
pain, shock and suffering, without considering his injuries, only
Rs.15,000/- is awarded. The learned Tribunal has committed an error in
awarding only Rs.5000/- towards attendance, transportation and special
diet etc. and not considered the actual loss of income though the
appellant was entitled to get an amount of atleast Rs.20,000/- towards
actual loss of income.
[4.2] Further, he has submitted that the appellant of FA No.1768/2023
was the driver of Alto Car and therefore, only his contributory negligence
is required to be considered. Further, he has submitted that so far as
contributory negligence is concerned, in a cognate matter being MACP
No.86/2016, earlier the learned Tribunal considered negligence of 50%
of both the vehicles and said finding has attained the finality. Hence,
findings of composite negligence has also attained finality but so far as
MACP Nos.133/2015 and 134/2015 are concerned, they are wrongly
considered for contributory negligence and instead composite
negligence ought to have been considered for them as they were
traveling in the Alto Car as passengers.
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[5.0] Learned advocate Mr. Rathin Raval appearing for the insurance
company has opposed the First Appeals and mainly submitted that this is
a case of composite negligence on part of both the vehicles as there was
a head on collision. The insurance company has filed cross-objections in
respective first appeals and mainly contended that learned Tribunal has
awarded proper compensation and properly appreciated the evidence
and therefore, has requested to dismiss the First Appeals.
[5.1] Further, he has submitted that appellant of First Appeal
No.1768/2023 is a tort feasor and his negligence is considered at 50% as
he was driving the Alto Car which dashed head on with another vehicle
i.e. jeep. Though he is a tort feasor, on his behalf, the insurance company
is compelled to pay the compensation and insurance company has a right
to recover the amount from other tort feasor and he owe to the
insurance company, as on his behalf the insurance company has paid the
amount of compensation to the claimants and therefore, the insurance
company has the right to recover the said amount from the tort feasor
i.e. claimant of MACP No.128/2015 namely Kiranbhai Mohanbhai Bhutiya.
In this regard, he has relied on the decision of the coordinate Bench of
this Court in the case of United India Insurance Company Limited vs.
Makanlal Ramjibhai Dalsaniya reported in 2019(3) GLR 2280 and
argued that the vehicle of said claimant was uninsured and as per section
146 of the Motor Vehicles Act, he has to ply the vehicle with insurance
and without insurance for third party risk, he has plied the vehicle and
alleged accident took place and hence, he is a wrong doer and if
enhancement is allowed to him, it would amount to premium to wrong
doer and as on his behalf, insurance company has made the payment of
compensation, he owe to the insurance company. Hence, he has
requested to allow the set off and requested to allow the cross-
objections and dismiss the First Appeals with clarification to the learned
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Tribunal to allow the insurance company to recover the amount of
compensation from the tort feasor i.e. Kiranbhai Mohanbhai Bhutiya.
[6.0] Refuting the said submission, learned advocate for the appellants
has submitted that the third party has a right to recover the amount of
compensation in case of composite negligence from the tort feasor. He
has relied on the decision of the Hon'ble Supreme Court in the case of
Khenyei vs. New India Assurance Company Limited reported in (2015)9
SCC 273 and argued that no such contention is raised before the learned
Tribunal and not joined the claimant of MACP No.128/2015 i.e. tort
feasor as a party in other two claim petitions i.e. MACP Nos.133/2015 and
134/2015. Even, the insurance company shall have to file independent
proceeding to recover the amount but set off is not permissible in an
appeal filed by the claimants. Hence, he has requested to dismiss the
cross-objections.
[7.0] Heard learned advocate for the appellants and learned advocate
for the insurance company.
[7.1] So far as First Appeal No.1767/2023 is concerned, at the time of
accident, the deceased namely Vikrambhai Babubhai Dabhi was traveling
in the Alto Car as a passenger. Perusing the evidence on record, it
appears that at the time of accident, the deceased was aged 20 years and
was earning Rs.8000/- by doing agriculture and animal husbandry work.
The claimants of MACP No.133/2015 i.e. legal heirs of Vikrambhai Dabhi
have not produced any documentary evidence with regard to income of
the deceased however, the learned Tribunal has assessed the monthly
income of the deceased at Rs.3000/-. The accident took place in the year
2015 and hence, minimum wages prevailing at the relevant point of time
of accident, which was Rs.6968/- per month i.e. lumpsum Rs.7000/-, is
required to be considered. The deceased was aged 20 years and hence, as
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per the decision of the Hon'ble Supreme Court in the case of Smt. Sarla
Verma & Ors. vs. Delhi Transport Corporation & Anr. reported in 2009
ACJ 1298, multiplier of 18 is required to be considered and as per the
decision of Hon'ble Supreme Court in the case of National Insurance
Company Limited vs. Pranay Sethi and Ors. reported in 2017 ACJ 2700,
as the deceased was below 40 years of age, additional income under the
head of future prospective income at 40% is required to be considered.
Hence, 40% of Rs.7000/- would come to Rs.2800/- and hence, monthly
income of deceased at the time of accident is required to be considered
at Rs.9800/-. As the deceased was a bachelor, 50% amount is required to
be deducted and hence, the claimants of MACP No.133/2015 are entitled
to Rs.4900 (Rs.9800/2) x 12 x 18 = Rs.10,58,400/- towards future loss of
income. Further, as the deceased was having parents and two minor
siblings, as per the law laid down by the Hon'ble Supreme Court in the
case of Pranay Sethi & Ors. (Supra), claimants are entitled to get an
amount of Rs.40,000 x 4 = Rs.1,60,000/- towards filial consortium and
Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral
expenses. Hence, the claimants of MACP No.133/2015 are entitled to
get the compensation as under:
Future loss of income Rs.10,58,400/-
Filial Consortium Rs.1,60,000/-
Loss of Estate Rs.15,000/-
Funeral Expenses Rs.15,000/-
Total Rs.12,48,400/-
[7.2] So far as First Appeal No.1769/2023 is concerned, at the time of
accident, the deceased namely Jesungbhai Chhaganbhai Dabhi was
traveling in the Alto Car as a passenger. Perusing the evidence on record,
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it appears that at the time of accident, the deceased was aged 20 years
and was earning Rs.8000/- by doing agriculture and animal husbandry
work. The claimants of MACP No.134/2015 i.e. legal heirs of Jesungbhai
Dabhi have not produced any documentary evidence with regard to
income of the deceased however, the learned Tribunal has assessed the
monthly income of the deceased at Rs.3000/-. The accident took place in
the year 2015 and hence, minimum wages prevailing at the relevant point
of time of accident, which was Rs.6968/- per month i.e. lumpsum
Rs.7000/-, is required to be considered. The deceased was aged 20 years
and hence, as per the decision of the Hon'ble Supreme Court in the case
of Smt. Sarla Verma & Ors. (Supra), multiplier of 18 is required to be
considered and as per the decision of Hon'ble Supreme Court in the case
of Pranay Sethi and Ors., as the deceased was below 40 years of age,
additional income under the head of future prospective income at 40% is
required to be considered. Hence, 40% of Rs.7000/- would come to
Rs.2800/- and hence, monthly income of deceased at the time of accident
is required to be considered at Rs.9800/-. As the deceased was a
bachelor, 50% amount is required to be deducted and hence, the
claimants of MACP No.134/2015 are entitled to Rs.4900 (Rs.9800/2) x 12
x 18 = Rs.10,58,400/- towards future loss of income. Further, as the
deceased was having parents, as per the law laid down by the Hon'ble
Supreme Court in the case of Pranay Sethi & Ors. (Supra), claimants are
entitled to get an amount of Rs.40,000 x 2 = Rs.80,000/- towards filial
consortium and Rs.15,000/- towards loss of estate and Rs.15,000/-
towards funeral expenses. Hence, the claimants of MACP No.134/2015
are entitled to get the compensation as under:
Future loss of dependency Rs.10,58,400/-
Filial Consortium Rs.80,000/-
Loss of Estate Rs.15,000/-
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Funeral Expenses Rs.15,000/-
Total Rs.11,68,400/-
So far as composite negligence is concerned, the deceased of
MACP Nos.133/2015 and 134/2015 were third party and were traveling in
the Alto Car as passengers and hence, learned Tribunal has committed an
error in considering contributory negligence on the part of the deceased
passengers and therefore, the deceased of MACP No.133 and 134 of
2015 being third party, their legal heirs have the right to recover the
amount of compensation from any of the tort feasors as per the law laid
down by the Hon'ble Supreme Court in the case of Khenyei (Supra). It is
also apposite to refer to the decision of the Oriental Insurance Co. Ltd.
vs. Raval Rupsibhai Pasabhai (Decd.) and others reported in 2015 (1)
GLR 216. Hence, learned Tribunal has committed an error to that extent
in the impugned award.
[8.0] So far as cross-objections are concerned, both the deceased were
traveling in the Alto Car as third party and as discussed hereinabove,
third party has a right to recover the compensation from any of the joint
tort feasor and it is always open for the claimants to recover the entire
compensation amount from one of the tort feasors in case of joint tort
feasors and when compensation is recovered from one tort feasor, other
can recover the amount from any tort feasor and upto that extent, if the
insurance company has paid any compensation to the claimants, it is
always open for the insurance company to recover the apportionment of
negligence on the part of another tort feasor. Herein, 50% negligence is
decided. It is needless to say that insurance company has the right to
recover the said amount from the joint tort feasor by filing appropriate
proceeding including the execution proceeding before the learned
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Tribunal. The findings of the learned Tribunal holding the claimants of
MACP Nos.133 and 134 of 2015 to be contributory negligent is not
believed and instead they ought to have been held to be composite
negligent. In this regard, reference is required to be made to the decision
of the coordinate Bench of this in the case of Kasumben Vipinchandra
Shah v. Arvindbhai Narmadashankar Raval reported in 2007 (1) GLH
With this clarification, cross-objection Nos.398/2023 and 399/2023
in First Appeal Nos.1767/2023 and 1769/2023 stand disposed of.
[9.0] So far as First Appeal No.1768/2023 is concerned, at the time of
accident, the claimant namely Kiranbhai Mohanbhai Bhatiya who was
driving the Alto Car was aged 27 years and was studygin in 2 nd years of
B.A. and due to accidental injuries, he could not complete his B.A. and
thereafter completed his B.A. in the year 2017 because of which he could
not get job in the police department. The learned Tribunal has assessed
the monthly income of the claimant at Rs.3000/-. The accident took place
in the year 2015 and hence, minimum wages prevailing at the relevant
point of time of accident, which was Rs.6968/- per month i.e. lumpsum
Rs.7000/-, is required to be considered. The claimant was aged 27 years
and hence, as per the decision of the Hon'ble Supreme Court in the case
of Smt. Sarla Verma & Ors. (Supra), multiplier of 17 is required to be
considered. The claimant as per the opinion of Doctor had sustained 20%
disability body as a whole however, as agreed between the learned
advocates for the respective parties, disability body as a whole is
considered at 18%. Hence, the claimant is entitled to Rs.7000 x 12 x 17 x
18% = Rs.2,57,040/- towards future loss of income. It has come on
record that the claimant was hospitalized for a period of 21 days and
hence, under the head of pain, shock and suffering, considering 18% of
disability body as a whole and the claimant could not have worked for
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three months and therefore, the claimant is entitled to Rs.7000 x 3
months = Rs.21,000/- towards actual loss of income. Further, the
claimant is entitled to Rs.25,000/- towards pain, shock and suffering
and Rs.5000/- towards special diet, attendant and transportation
expenses.
[9.1] Further, the claimant has produced medical bills for an amount of
Rs.4,91,781/- but after due verification, insruance company has admitted
the bills of Rs.3 lakh but the insurance company has failed to show as to
how the said medical bills produced on record are false and fabricated.
Hence, the learned Tribunal has not considered the contention of the
insurance company and awarded Rs.4,92,000/- towards medical
expenses. Hence, considering the aforesaid fact, order of compensation
is required to be enhanced as under:
Future loss of income Rs.2,57,040/-
Actual loss of income Rs.21,000/-
Pain, shock and suffering Rs.25,000/-
Special diet, attendant and Rs.5,000/-
transportation Expenses
Medical expenses Rs.4,92,000/-
Total Rs.8,00,040/-
[9.2] So far as deduction of 50% towards contributory negligence on
the part of claimant is concerned, as there was a head on collision as well
as considering the fact that the learned Tribunal in a cognate matter
being MACP No.86/2016 has come to conclusion that there was 50%
negligence on the part of driver of Alto Car bearing registration No.GJ-
06-CM-4946 and 50% of the said amount is required to be deducted from
the total amount of compensation. Hence, amount payable to the
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appellant of First Appeal No.1768/2023 is Rs.4,00,020/- (50% of total
amount of Rs.8,00,040/-).
[10.0] So far as cross-objection No.401/2023 in First Appeal
No.1768/2023 is concerned, present appellant - original claimant is a
wrong doer as he was plying the vehicle without license in breach of
section 146 of the Motor Vehicles Act and therefore, the insurance
company was compelled to make the payment of compensation on
behalf of the tort feasor and hence, insurance company is entitled to
recover the said apportioned amount from the enhanced amount of
compensation which is required to be paid to the original claimant and
thus, the same is required to be set off or recovered by deducting the
said amount as other claimants owe to the insurance company, who on
behalf of the tort feasor has made the payment of compensation in view
of the decision of the Hon'ble Supreme Court in the case of Khenyei
(Supra).
[10.1] In First Appeal Nos.1767 and 1769 of 2023, the matters were
of composite negligence and without joining the claimant of MACP
No.128/2015 i.e. the driver of Alto Car as a party, the claim petitions
were filed and on behalf of the driver of Alto Car, who was a tort feasor,
insurance company has made the payment and hence, claimant Kiranbhai
Mohanbhai Bhatiya owe to the insurance company the said amount and it
is settled principle of law that it is always open for the insurance
company to recover the amount in execution proceeding or to file
appropriate proceeding in accordance with law against the tort feasor.
Hence, it would be open for the insurance company to recover the
amount to the extent of composite negligence on the part of the driver
of the Alto Car i.e. Kiranbhai Bhatiya in absence of his impleadment as
party in other two claim petitions from the joint tort feasor i.e. Kiranbhai
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Mohanbhai Bhatiya - driver of Alto Car by way of filing appropriate
proceeding including execution proceeding against the appellant -
Kiranbhai Mohanbhai Bhatiya.
[11.0] For the reasons recorded above, the following order is
passed.
[11.1] First Appeal Nos.1767, 1768 and 1769 of 2023 are partly
allowed and the respective original claimants are entitled to enhanced
amount of compensation as under:
First Appeal No.1767/2023
Future loss of dependency Rs.10,58,400/-
Filial Consortium Rs.1,60,000/-
Loss of Estate Rs.15,000/-
Funeral Expenses Rs.15,000/-
Total Rs.12,48,400/-
Less: Amount already awarded by Rs.5,23,600/-
learned Tribunal
Entitlement of enhanced amount of Rs.7,24,800/-
compensation
First Appeal No.1769/2023
Future loss of dependency Rs.10,58,400/-
Filial Consortium Rs.80,000/-
Loss of Estate Rs.15,000/-
Funeral Expenses Rs.15,000/-
Total Rs.11,68,400/-
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Less: Amount already awarded by Rs.5,23,600/-
learned Tribunal
Entitlement of enhanced amount of Rs.6,44,800/-
compensation
First Appeal No.1768/2023
Future loss of income Rs.2,57,040/-
Actual loss of income Rs.21,000/-
Pain, shock and suffering Rs.25,000/-
Special diet, attendant and Rs.5,000/-
transportation Expenses
Medical expenses Rs.4,92,000/-
Total Rs.8,00,040/-
50% towards contributory
negligence Rs.4,00,020/-
Less: Amount already awarded by Rs.3,15,580/-
learned Tribunal
Entitlement of enhanced amount of Rs.84,420/-
compensation
[11.2] The Insurance Company is directed to deposit the enhanced
amount with interest at the rate of 9% per annum as within a period of
six weeks from the date of receipt of this order.
[11.3] 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 claimants, by account payee cheque / NEFT / RTGS, after proper
verification and after following due procedure.
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[12.0] Insofar as First Appeal No.1768/2023 is concerned, the
insurance company shall have liberty to file appropriate proceeding
including the execution proceeding to recover the amount of
compensation which the driver i.e. Kiranbhai Mohanbhai Bhatiya
(appellant of First Appeal No.1768/2023) owes to the insurance company
as he was the joint tort feasor on whose behalf insurance company paid
the amount to the claimants.
[13.0] Respective Cross-objections also stand disposed of in
aforesaid terms.
[14.0] While making the payment, the Tribunal shall deduct the
courts fees, if not paid.
[15.0] Record and proceedings, if any, be sent back to the
concerned Tribunal, forthwith.
(HASMUKH D. SUTHAR, J.)
Ajay
