Gujarat High Court
Vithalbhai Ambabhai Bhut vs Ketanbhai Devayatbhai Bharai on 17 November, 2025
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C/FA/3739/2014 JUDGMENT DATED: 17/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3739 of 2014
With
R/FIRST APPEAL NO. 3740 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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VITHALBHAI AMBABHAI BHUT & ANR.
Versus
KETANBHAI DEVAYATBHAI BHARAI & ORS.
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Appearance:
MR ANKIT SHAH(6371) for the Appellant(s) No. 1,2
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 17/11/2025
ORAL JUDGMENT
1. Both the captioned appeals have arisen out of the the common
impugned judgment and award dated 18.07.2013 passed by the learned
6th Motor Accident Claims Tribunal (Auxiliary), Rajkot at Dhoraji in
MACP Nos.444/2012 and 445/2012, whereby the claim petitions were
allowed partly.
2. The succinct facts leading to file the captioned appeals are that
on 14.09.2010 at about 8:00 am, Rameshbhai Vithalbhai Bhut and
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Nanduben Vithalbhai Bhut were traveling on motorcycle bearing
registration no.GJ-07-AF-2463, which was being driven by Rameshbhai
Vithalbhai Bhut and Nanduben Vithalbhai Bhut was the pillion rider and
when they reached near village Kathrota, on the bridge of Mediyara, in
the meantime, the driver of the vehicle i.e. motor car bearing registration
no.GJ-03-Z-9699 came in rash and negligent manner and dashed with
the motorcycle. In the said accident, the rider and pillion rider both
sustained grievous injuries and the rider-Mr. Rameshbhai Vithalbhai
Bhut succumbed to the injuries and the pillion rider-Nanduben
Vithalbhai Bhut sustained multiple fracture injuries on left leg as well as
fracture at nearby elbow of right hand and other bodily injuries. The FIR
came to be registered at Patanvav Police Station being I-CR
No.20/2010 for the offences punishable under Sections 279, 337, 338,
304-A of the IPC and Sections 177 and 184 of MV Act. The parents of
Rameshbhai Vithalbhai Bhut filed the claim petition being MACP
No.444/2012 (old No.399/2010) for seeking the compensation on
account of death of Rameshbhai Vithalbhai Bhut, while Nanduben
Vithalbhai Bhut filed the claim petition being MACP No.445/2012 (old
no.398/2010) for seeking the compensation on account of the injuries
sustained by her in the accident. It is the case of the
appellants/claimants in MACP No.444/2012 that at the time of accident,
their son was working in a company and doing the job of diamond
policing and in spare time, he was doing agricultural work and thereby
earning Rs.10,000/- per month. Therefore, they claimed Rs.20,00,000/-
towards the compensation on account of death of their son in the said
accident. The Nanduben Vithalbhai Bhut-claimant of MACP
No.445/2012 stated that in the said accident, she sustained grievous
injuries and resultantly she became permanent disabled. It is also
pleaded that at the time of accident, she was earning Rs.4,000/- per
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month by doing agricultural work. Therefore, she claimed the
compensation of Rs.5,00,000/- on account of the injuries sustained by
her.
3. On being served, the respondent no.3/insurance company herein
filed the written statement at Exh.17 and thereby denied all the
averments made in the claim petitions. In brief, the insurance company
contended that the driver of the car bearing registration no.GJ-03-Z-
9699 was not holding the valid and effective driving license at the time
of accident. It was further contended that the accident was occurred
owing to the sole negligence of the rider of the motorcycle. In brief, the
insurance company prayed for dismissal of the claim petitions.
4. Having considered the pleadings of the parties, the learned
Tribunal framed the following issues in MACP No.444/2012 at Exh.19:-
(1) Whether the claimant proves that, deceased has received the
death, due to the vehicular accident, involving the vehicle motor car
no.GJ-03-Z-9699?
(2) Whether the claimant proves that he is entitled to get
compensation from the opponents? If yes, what amount?
(3) Whether the claimant is entitled to get interest upon the said
amount? If yes, at what rate?
(4) What order and award?
5. In MACP No.445/2012, the learned Tribunal framed the following
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issues:-
(1) Whether the claimant proves that, she has received the injuries,
due to the vehicular accident, involving the vehicle motor car no.GJ-
03-Z-9699?
(2) Whether the claimant proves that she is entitled to get
compensation from the opponents? If yes, what amount?
(3) Whether the claimant is entitled to get interest upon the said
amount? If yes, at what rate?
(4) What order and award?
6. In order to prove their claims, the appellants/original claimants of
MACP No.444/2012 have led the following oral as well as documentary
evidences:-
Sr. No. Documents Exh. No.
1. Affidavit of Nanduben Vithalbhai Bhut in MACP 20
No.444/2012
2. Affidavit of Nanduben Vithalbhai Bhut in MACP 21
No.445/2012
7. R.C. Book of motor car bearing registration no.GJ- 27 & 39
03-Z-9699
8. Insurance Policy of motor car bearing registration 28, 38 & 42
no.GJ-03-Z-9699
9. P.M. Report of Upleta Government Hospital 29
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11. Village Form No.8/A in the name of deceased 30
12. Village Form No.7/12 in the name of deceased 31
13. Village Form No.8/A in the name of father of 32
deceased
14. Village Form No.7/12 in the name of father of 33
deceased
7. The claimant-Nanduben Vithalbhai Bhut of MACP No.445/2012
has led the following evidences:-
Sr. No. Documents Exh. No.
4. R.C. Book of motor car bearing registration no.GJ- 26
03-Z-9699
5. Insurance Policy of motor car bearing registration 27
no.GJ-03-Z-9699
6. Injury Certificate of Dr. Dharmesh Nirmal 28 & 29
8. Disability Certificate issued by Dr. Dipak Langalia 31
9. Village Form No.8/A in the name of deceased and 32
father of the deceased
10. Village Form No.7/12 in the name of deceased and 33
father of the deceased
8. Having considered the the oral as well as documentary
evidences, the learned Tribunal has awarded a sum of Rs.6,67,800/-
along with interest at the rate of 8% per annum in MACP No.444/2012
and a sum of Rs.2,95,400/- to the claimant of claim petition no.445/2012
along with interest at the rate of 8% per annum from the date of filing of
claim petition till its realization.
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9. Being aggrieved and dissatisfied, the appellants/original
claimants herein have challenged the impugned judgments and awards
dated 18.07.2013 on the ground of negligence as well as quantum.
10. Heard learned counsels for the parties.
11. Ms. Zeel Raval learned counsel appearing on behalf of Mr. Ankit
Shah, learned counsel for the appellant submitted that the learned
Tribunal has committed serious illegality in holding that the rider of the
motorcycle i.e. Rameshbhai Vithalbhai Bhut was negligent to the extent
of 10%. She further submitted that the appellants in First Appeal
No.3740/2014 and original claimant of MACP No.445/2012 stepped into
witness box and got examined herself and she proved that the accident
had occurred owing to the sole negligence of the driver of the offending
car bearing registration no.GJ-03-Z-9699. She further submitted that
she was the pillion rider on the motor cycle and the eye witness of the
accident, therefore, she proved on record that the accident has
occurred owing to the sole negligence of the driver of the offending car.
She further submitted that the FIR, panchnama and charge-sheet
further substantiate the version of the Nanduben Vithalbhai Bhut. She
further submitted that neither the driver of the offending car nor any eye
witness had been examined by the insurance company to dislodge the
version of the original claimants/appellants herein. Therefore, the
learned Tribunal has committed serious illegalities in holding that the
rider of the motor cycle was negligent to the extent of 10%. She further
submitted that the finding returned by the learned Tribunal is not
sustainable in the fact and circumstances of the present case.
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12. So far as the quantum is concerned, learned counsel for the
appellants in First Appeal No.3739/2014 submitted that the learned
Tribunal has considered the income of the deceased-Rameshbhai
Vithalbhai Bhut at very lower side. She submitted that at the time of
accident, he was working in a company and engaged in the work of
diamond policing. She further submitted that the deceased was also
doing agricultural work in spare time. Therefore, the income of the
deceased would have been considered at least as Rs.10,000/- per
month at the time of accident. She further submitted that the learned
Tribunal has also added 30% of the notional income to the monthly
income on account of the future prospects. She further submitted that it
is not in dispute that at the time of accident, the deceased was
employed. Therefore, the learned Tribunal could have enhanced the
notional monthly income by 40% on account of future prospects of
deceased. Therefore, the learned Tribunal has committed an error in
awarding the increase of 30% of monthly income on account of future
prospects of the deceased. She further submitted that the learned
Tribunal has awarded the meager amount under the conventional
heads. Therefore, the compensation awarded under these heads are
also required to be enhanced in accordance to the ratio laid down in
judgment of Hon'ble Apex Court rendered in the case of National
Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16)
SCC 680 and Magma General Insurance Company Limited Vs.
Nanu Ram @ Chuhru Ram and Ors., reported in 2018 (18) SCC 130.
13. So far as the compensation awarded in MACP No.445/2012 (First
Appeal No.3740/2014) is concerned, learned counsel for the appellant
submitted that though the appellant/claimant herein was engaged in
agricultural activities but the income could not be proved on record,
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therefore, the learned Tribunal has ought to have considered the
minimum wages for unskilled worker at the relevant point of time;
however, the learned Tribunal has considered the monthly income of
the appellant/claimant herein at lower side than the minimum wages at
the relevant point of time.
14. On the other hand, Mr. Vibhuti Nanavati, learned counsel
appearing on behalf of the insurance company/respondent no.3 herein
vehemently submitted that there is no infirmity in the impugned
judgment and award. He further submitted that the learned Tribunal
after considering the evidences on record, rightly came to the
conclusion that the deceased himself was negligent to the extent of
10% in causing the accident. Therefore, no interference is required in
the findings returned by the learned Tribunal under issue no.1 of
negligence. So far as the income is concerned, the claimants/appellants
herein could not prove the income on record of the deceased. The
learned Tribunal has rightly determined the income as Rs.5,000/- per
month from both the sources of income i.e. from job of diamond policing
as well as agricultural income. He further submitted that at the time of
accident, the minimum wages for skilled worker was Rs.4,210/- per
month; however, the learned Tribunal has determined the monthly
income of the deceased as Rs.5,000/-. Therefore, there is no infirmity in
determining the income. So far as the conventional head is concerned,
learned counsel for the insurance company submitted that the Court
may award the compensation under these heads in accordance to the
settled legal position.
15. So far as the claimants of MACP No.445/2012 (First Appeal
No.3740/2014) is concerned, Mr. Vibhuti Nanavati, learned counsel for
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the insurance company submitted that the learned Tribunal has rightly
considered the income of the claimant- Nanduben Vithalbhai Bhut and
there is no infirmity in the impugned judgment and award. Therefore,
the appeal is liable to be dismissed.
16. Having considered the submission of the learned counsels for the
parties and having gone through the record, it is to be noted that at the
time of accident, deceased-Rameshbhai Vithalbhai Bhut was riding the
motor cycle and Nanduben Vithalbhai Bhut was travelling as a pillion
rider on the said motor cycle. The Nanduben Vithalbhai Bhut herself
being a pillion rider of the motor cycle, was an eye witness of the
accident. She filed her affidavit of examination-in-chief at Exh.21. She
also stepped into the witness box for a cross-examination. During her
cross-examination, the insurance company could not elicit anything,
which is favourable to the insurance company on the point of
negligence. Not only this, the FIR was lodged against the respondent
no.1/driver of the car involved in the accident. Neither the driver nor any
other eye witness was examined by the insurance company in support
of its defence to dislodge the version of the claimants. Not only this,
after investigating the crime, the prosecution agency had also filed the
charge-sheet against the respondent no.1. It is on record that
respondent no.1 had not raised any grievance for his involvement in the
accident. Therefore, the version of the original claimants/appellants
remained uncontroverted on the issue of negligence. Therefore, the
finding returned by the learned Tribunal on the issue of negligence is
perverse and not sustainable and liable to be set aside. Accordingly, it
is held that the respondent no.1/driver of the car bearing registration
no.GJ-03-Z-9699 was solely negligent for causing the accident.
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MACP No.444/2012 (First Appeal No.3739/2014):-
17. So far as the compensation in MACP No.444/2012 (First Appeal
No.3739/2014) is concerned, it is the say of the learned counsel for the
appellant that the learned Tribunal has determined the monthly income
of the deceased-Rameshbhai Vithalbhai Bhut at lower side. It is to be
noted that though the salary certificate was produced by the appellants
herein at Exh.40, but the same was not proved on record. The learned
Tribunal after considering the materials on record and having regard to
the fact that the income was not proved, considered the income of the
deceased as Rs.5,000/- per month. At the time of accident, the
deceased was aged about 23 years and the accident occurred in the
year 2010. At that relevant point of time, the monthly wages for skilled
worker as notified by the State Government for the relevant point of time
was Rs.4,210/- per month. Therefore, the learned Tribunal has rightly
considered the income of the deceased as Rs.5,000/- per month at the
time of accident and which is more than that the minimum wages as
notified by the State Government for skilled worker. Therefore, the
learned Tribunal has not committed any error in assessing the income
of the deceased at the time of accident as Rs.5,000/- per month. So far
the addition on account of future prospects of the deceased is
concerned, the learned Tribunal had increased the notional monthly
income of the deceased by 30%, which is not in accordance to the
judgment of the Hon'ble Apex Court rendered in the case of Sarla
Verma Vs. Delhi Transport Corporation and Anr., reported in AIR
(2009) 6 SC 3104 and Pranay sethi (supra). In view of the judgment of
Sarla Verma (supra) and Pranay Sethi (supra), the income of the
deceased is to be enhanced by 40%. Therefore, the monthly income is
further enhanced by 40% on account of future prospects of the
deceased and after adding 40% to the notional monthly income, the
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monthly income of the deceased would come to Rs.7,000/-
(5,000+5,000X40%). It is an undisputed fact that at the time of accident,
the deceased was aged about 23 years and he was bachelor.
Therefore, in view of the ratio of the judgment of Hon'ble Apex Court
rendered in the case of Sarla Verma (supra), the 50% of the monthly
income is to be deducted on account of the personal expenses of the
deceased. Therefore, after deducting 50% of the notional monthly
income, the net monthly income of the deceased would come to
Rs.3,500/- per month.
18. It is not in dispute that at the time of accident, the deceased was
aged about 23 years. Therefore, the multiplier of 18 is required to be
applied for calculating the loss of dependency. The learned Tribunal has
rightly applied the multiplier. Therefore, after applying the multiplier of
18, the future loss of income would come to Rs.7,56,000/- i.e.
(3,500X12X18).
19. The learned Tribunal has awarded a sum of Rs.25,000/- under
the head of loss of estate, a sum of Rs.10,000/- under the head of love
and affection and a further sum of Rs.5,000/- under the head of
transportation and funeral expenses. In my considered view, the
compensation awarded under these heads are not in accordance to the
settled position of law in light of the judgment of Pranay Sethi (supra)
and Nanu Ram @ Chuhru Ram and Ors. (supra). Accordingly, in
accordance to the ratio of judgments of Hon'ble Apex Court rendered in
the case of Pranay Sethi (supra) and Nanu Ram @ Chuhru Ram and
Ors. (supra), a sum of Rs.96,800/- i.e. (48,400X2) is awarded under the
head of loss of consortium, as the deceased was left behind by both the
parents, therefore, both the parents are entitled for the compensation
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under the head of loss of estate. Similarly, a sum of Rs.18,150/- is
awarded under the head of loss of estate and a further sum of
Rs.18,150/- is awarded under the head of funeral expenses. Therefore,
the claimants of MACP No.444/2012 (First Appeal No.3739/2014) shall
be entitled for the following compensation under the following heads:-
Sr. No. Particular Amount
1. Future loss of dependency 7,56,000/-
2. Loss of consortium 96,800/-
3. Loss of estate 18,150/-
4. Funeral expenses 18,150/-
Total 8,89,100/-
20. The learned Tribunal has awarded a sum of Rs.6,67,800/- as a
compensation. Therefore, the said is enhanced to Rs.8,89,100/-.
Hence, the appellants/original claimants shall be entitled for additional
compensation of Rs.2,21,300/- i.e. (8,89,100-6,67,800). The learned
Tribunal has awarded the interest at the rate of 8% per annum.
Therefore, the appellants/claimants shall also be entitled for the interest
on the additional amount of compensation at the rate of 8% per annum
from the date of filing of claim petition till its realization.
MACP No.445/2012 (First Appeal No.3740/2014):-
21. So far as the the compensation in MACP No.445/2012 (First
Appeal No.3740/2014) is concerned, the learned Tribunal has
considered the income of the house maker-Nanduben Vithalbhai Bhut,
who was also doing the work of agriculture and earning Rs.3,000/- per
month. It is not in dispute that the income was not proved by the
claimants/appellants herein on record. Therefore, in absence of the
proof of income, the learned Tribunal could have considered the
minimum wages for determining the monthly income of Nanduben
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Vithalbhai Bhut. It is not in dispute that at the relevant point of time,
when the accident occurred, the minimum wages for skilled worker as
notified by the State Government was Rs.4,210/- per month. Therefore,
the income of the claimant- Nanduben Vithalbhai Bhut is determined as
Rs.4,210/- per month at the time of accident. The learned Tribunal has
considered the functional disability of Nanduben Vithalbhai Bhut as 26%
body as a whole. The said disability has not been disputed by the
appellants. It is also not in dispute that at the time of accident, the
claimant/appellant-Nanduben Vithalbhai Bhut was aged about 43 years.
Therefore, after applying the multiplier of 15, the future loss of income
would come to Rs.1,97,028/- i.e. (4,210X26%X12X15). So far as the
actual loss of income is concerned, the learned Tribunal has awarded a
sum of Rs.10,000/- as actual loss of income for three months.
Considering the monthly salary of claimant-Nanduben Vithalbhai Bhut
as Rs.4,210/-, she would be entitled for a sum of Rs.12,630/- i.e.
(4,210X3). Therefore, the compensation awarded under this head is
enhanced to Rs.12,630/- from Rs.10,000/-. So far as the compensation
awarded under other heads are not under challenge. Therefore,
accordingly the appellants/claimants shall be entitled for the following
amount of compensation under the following heads:-
Sr. No. Particular Amount
1. Future loss of income 1,97,028/-
2. Pains and suffering 25,000/-
3. Actual loss of income 12,630/-
4. Medical Expenses 1,10,000/-
5. Special diet, transportation and 10,000/-
attendance charges
Total 3,54,658/-
22. The learned Tribunal has awarded a sum of Rs.2,95,400/-, which
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is to be enhanced to Rs.3,54,658/-. Therefore, the appellant/claimants
shall be entitled for additional amount of compensation of Rs.59,258/-
i.e. (3,54,658-2,95,400). The learned Tribunal has awarded interest at
the rate of 8% per annum. Therefore, the appellants/claimants shall
also be entitled for the interest on the additional amount of
compensation at the rate of 8% per annum from the date of filing of
claim petition till its realization
23. In view of the above discussions, both the appeals stand allowed
partly. The insurance company shall deposit the additional amount of
compensation within a period of 6 weeks from today along with interest
at the rate of 8% per annum.
24. Upon depositing of the said amount, the learned Tribunal shall
disburse the entire amount of compensation along with interest to the
original claimants after due verification, after deducting deficit of Court
fee, if any. The statutory amount, if any, lying deposited with the registry
of this Court be transmitted to the learned Tribunal concerned forthwith.
No order as to costs.
25. Record & Proceedings, if any, be sent back to the learned
Tribunal concerned.
(MOOL CHAND TYAGI, J)
HARSHIT
