Gujarat High Court
Hdfc Ergo General Insurance Company Ltd vs Zinnatbiwi Bashirkhan Pathan on 19 November, 2025
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C/FA/222/2022 JUDGMENT DATED: 19/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 222 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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HDFC ERGO GENERAL INSURANCE COMPANY LTD
Versus
ZINNATBIWI BASHIRKHAN PATHAN & ORS.
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Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 19/11/2025
ORAL JUDGMENT
[1.0] This appeal has been preferred by the appellant-original opponent
No.3 - HDFC Ergo General Insurance Company Ltd. against the judgment
and award dated 30.07.2021 passed by the learned Motor Accident
Claims Tribunal (Auxi.), Vadodara (for short referred to as "learned
Tribunal") in Motor Accident Claim Petition No.1256 of 2014 under
Section 166 of the Motor Vehicles Act, 1988 (for short referred to as "MV
Act") wherein the learned Tribunal has partly allowed the claim petition
of respondent Nos.1, 2 and 3 and awarded compensation of
Rs.20,14,000/- with interest at the rate of 9% per annum from the date of
the claim petition.
[2.0] Heard learned advocates for the respective parties. Though
served, none appears for respondent Nos.2, 3, 4 and 5.
[3.0] The brief facts of the present claim petition are that the accident
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took place on 14.11.2014, when the deceased alongwiith his elder
brother Mushtak Pathan, as a pillion rider, was going for work on
Motorcycle No.GJ-23-Y-8436 and deceased was driving the bike on
moderate speed on correct side of the road and at that time, original
opponent No.1 came by driving Maruti Van No.GJ-06-ED-8056 with full
speed and in negligent manner and dashed with the Motorcycle of the
deceased pursuant to which the deceased sustained serious injuries and
died on the spot while his brother Mushtak Pathan sustained serious
injuries on head and other parts of the body. In this regard, a complaint
was lodged with Savli Police Station bearing I-CR No.92/2014.
[4.0] Learned advocate Ms. Kirti Pathak appearing for the appellant has
submitted that the learned Tribunal has committed an error in not
appreciating the evidence and grossly failed to consider the defence
raised by the insurance company and exorbitant amount of
compensation is awarded to the original claimants without considering
the evidence produced on record and though the deceased was plying
the motorcycle without head gear and there was clear cut violation of
proviso 129 of the MV Act and not considered the contributory
negligence on the part of the deceased. Even, the learned Tribunal has
grossly erred in considering the income of the deceased at Rs.14,000/-
per month treating monthly notional income of Rs.10,000/- in absence of
any cogent or corrobarative evidence though claimants failed to prove
the actual income, which is against the settled principle of law laid down
by the Hon'ble Supreme Court in the case of National Insurance
Company Ltd. Vs. Pranay Shethi reported in (2017) 16 SCC 680 and
actual income of the deceased is not proved. It was the bounden duty
of the claimants to produce evidence of actual income of the
deceased and in absence of any such evidence, the learned Tribunal
ought to have considered minimum wages prevailing at the time of
accident. Further, the learned Tribunal has committed an error in not
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appreciating the fact that the compensation is not expected to be
windfall for victim. She has relied on the decision of the Hon'ble
Supreme Court in the case of State of Haryana vs. Jasbir Kaur
reported in (2003) 7 SCC 484 and in the case of Divisional Controller,
KSRTC vs. Mahadeva Shetty and Another reported in JT 2003 (6) SC
519 and argued that the learned Tribunal has awarded the amount of
compensation on very higher side and hence, she has requested to
allow the present appeal.
[5.0] Learned advocate Mr. Mohsin Hakim appearing for the original
claimants has opposed the present appeal on the ground that the
deceased was aged 29 years and doing masonry work at the time of
accident and to award just compensation, the learned Tribunal has
considered the notional income of Rs.10,000/-, which is just and
proper and there is no embargo to consider the guage work and
learned Tribunal has not considered other head and properly awarded
the just compensation. He has relied on the decision of the Hon'ble
Supreme Court in the case of Chandra @ Chanda @ Chandraram vs.
Mukesh Kumar Yadav reported in (2022)1 SCC 198 and submitted
that merely because claimants were unable to produce the
documentary evidence to show monthly income of the deceased,
same does not justify adoption of lowest tier of minimum wage while
computing income. Hence, he has requested to dismiss the present
appeal.
[6.0] Refuting the submissions made by the learned advocate Mr. Hakim
appearing for the original claimants, learned advocate Ms. Pathak
appearing for the appellant has submitted that in absence of any cross-
objection or appeal, no case is made out to enhance the compensation
under other heads.
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[7.0] Having heard learned advocate appearing for the respective
parties and perusing the evidence on record, it appears that the learned
Tribunal has considered the evidence produced on record alongwith FIR
at Exh.54 and panchnama of scene of accident at Exh.55 and come to the
conclusion that the offending vehicle Maruti Van came from eastern side
of Savli and dashed with the tree and on the western side the motorcycle
is found and therefore, the learned Tribunal has come to the conclusion
that opponent No.1 - driver of Maurti Van was negligent as he has lost
control over the steering and first he dashed with the motorcycle of the
deceased and thereafter, due to excessive speed, dashed with the tree.
The charge-sheet is also filed against the opponent No.1 - driver of
Maruti Van. Further, considering the deposition of eye-witness examined
at Exh.53, who was the pillion rider on the motorcycle at the relevant
time of accident, he has also stated on oath about the moderate speed
and correct side of the motorcycle and deposed about the negligence of
offending vehicle - Maruti Van. Considering the aforesaid fact and
evidence of the eye-witness, the learned Tribunal has properly
appreciated the evidence qua negligence and driver of Maruti Van is held
to be solely negligent for the accident in question. Hence, question of
contributory negligence on the part of the deceased - driver of
motorcycle does not arise. Considering the aforesaid fact, argument of
learned advocate for the appellant - insurance company as regards
contributory negligence of the deceased - driver of motorcycle is not
accepted.
[7.1] Now, coming back to the question of quantum of compensation, in
order to prove the income of the deceased, the original claimant No.1
had tendered evidence at Exh.31 and age of the deceased as per the
post-mortem (Exh.43) was 29 years at the time of accident. So far as
income of the deceased is concerned, no evidence is produced but it is
stated that deceased was doing masonry work and the accident in
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question took place in November, 2014 and hence, in absence of any
evidence, the learned Tribunal has assessed the notional income of
deceased at Rs.10,000/- and awarded additional 40% towards future
prospects in light of the decision of the Hon'ble Supreme Court in the
case of Pranay Shethi (Supra) and accordingly, awarded Rs.19,04,000/-
towards loss of dependency by applying multiplier of 17 and deducting
1/3rd towards personal expenses. If we peruse the said evidence and
argument canvassed by the learned advocate for the appellant, in
absence of any proof, the learned Tribunal has considered the monthly
notional income of the deceased at Rs.10,000/- to award just
compensation under Section 168 of the MV Act.
[7.2] The learned Tribunal has to consider or determine the
compensation on the foundation of fairness, reasonableness and
equitability on acceptable legal standard. The concept of 'just
compensation' has to be viewed through the prism of fairness,
reasonableness and non-violation of the principle of equitability. It is true
that in the case of death, legal heirs of the claimants cannot expect a
windfall. Simultaneously, the compensation granted cannot be an
apology for compensation. It cannot be a pittance. Though discretion
vested in the Tribunal is quite wide yet it is obligatory on the part of the
Tribunal to be guided by the expression, that is, "just compensation" and
determination has to be on the foundation of evidence brought on
record as regards the age and income of the deceased and even after
applying the apposite multiplier, the Tribunal has to award the just
compensation. To award the just compensation, the Tribunal has to
maintain uniformity of approach. There has to be a balance between the
two extremes, that is, a windfall and the pittance, a bonanza and the
modicum. In such an adjudication, the duty of the Tribunal and the Courts
is difficult and hence, an endeavour has been made by the Hon'ble
Supreme Court for standardization which in its ambit includes addition of
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future prospects on the proven income and keeping in mind the
principles of certainty, stability and consistency to determine the
compensation in absence of cogent evidence and proof of income,
Tribunal and/or Court has to consider the minimum wages of the
prevalent time keeping in mind the work and profession of deceased or
injured.
[7.3] Herein, in the case on hand, in aforesaid background, in absence of
any documentary evidence or proof, the monthly notional income at
Rs.10,000/- is assessed. As per the Government Resolution, at the
relevant time, in the year 2014, for skilled labourer, as deceased was
engaged in masonry work, to award the just compensation, actual
income is required to be considered at Rs.7400/- per month. The learned
Tribunal has committed an error in considering the notional income at
Rs.10,000/- which is on higher side. The deceased was aged 29 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 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.7400/- would come to
Rs.2960/- and hence, monthly income of deceased at the time of accident
is required to be considered at Rs.10,360/-. As the deceased was married
and having mother and one child, 1/3 rd is required to be deducted which
would come to Rs.6907/- (Rs.10,360 - Rs.3453) and hence, the original
claimants are entitled to Rs.6907 x 12 x 17 = Rs.14,09,028/- towards
future loss of dependency. Further, as the deceased was having wife,
mother and one child, 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.48,400 x 3 = Rs.1,45,200/- towards filial
consortium and Rs.18,150/- towards loss of estate and Rs.18,150/-
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towards funeral expenses.
[7.4] Further, the learned Tribunal has committed an error in awarding
the compensation under the head of loss of love and affection in view of
the fact that to maintain uniformity, as per the dictum of Hon'ble
Supreme Court in the case of Pranay Shethi (Supra), compensation is
required to be awarded. Hence, the amount of compensation under the
head of loss of love and affection as awarded by the learned Tribunal is
required to be discarded. Hence, the original claimants are entitled to
get the compensation as under:
Future loss of dependency Rs.14,09,028/-
Filial Consortium Rs.1,45,200/-
Loss of Estate Rs.18,150/-
Funeral Expenses Rs.18,150/-
Total Rs.15,90,528/-
The learned Tribunal has awarded total compensation of
Rs.20,14,000/- which is on higher side, for the reasons recorded
hereinabove, and therefore, same is required to be reduced to the
aforesaid extent i.e. Rs.15,90,528/- and hence, the order of
compensation passed by the learned Tribunal is modified to the
aforesaid extent and insurance company is entitled to get the refund of
Rs.4,23,472/- (Rs.20,14,000 - Rs.15,90,528).
[8.0] So far as the submission made by the learned advocate for the
appellant - insurance company that claimants are not entitled for
compensation under any further head in absence of any appeal or cross-
objection is concerned, it is needless to say that it is the duty of the
Tribunal and this Court also to award the just and fair compensation.
Once compensation is considered on higher side and insurance company
has sought reduction, at the same time the insurance company ought to
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have considered the same ratio and pronouncement of the Hon'ble
Supreme Court in the case of Pranay Shethi (Supra) and even it is the
duty of the Tribunal and the Court to award just compensation. Hence,
aforesaid head also is required to be considered and compensation is
required to be recalculated as appeal is a continuous proceeding and in
such benevolent legislation, always filing of cross-objection is not
required. It is pertinent to note that the cross-objections are required to
be filed only when decree needs to be modified but findings can be
challenged by the respondent orally without filing cross-objection. In this
regard, reference is required to be made to the decision of the Hon'ble
Supreme Court in the case of Ravindrakumar Sharma vs. State of
Assam reported in (1999) 7 SCC 435 and in the case of Saurav Jain and
Another vs. A.B.P. Design and Another reported in (2022)18 SCC 633,
wherein the Hon'ble Supreme Court held that a party can raise
arguments against the findings without having to file cross-objection, in
the appeal. Considering the peculiar facts of the case on hand and
considering the fact that present is an appeal arising out of fatal case and
as the Court has reduced the compensation after considering each and
every aspect, the argument canvassed by the learned advocate Ms.
Pathak appearing for the appellant is not sustainable.
[9.0] In wake of aforesaid conspectus, present First Appeal is
partly allowed. The judgment and award dated 30.07.2021 passed by the
learned Motor Accident Claims Tribunal (Auxi.), Vadodara in Motor
Accident Claim Petition No.1256 of 2014 stands modified to the extent
that the appellant - insurance company is liable to pay Rs.15,90,528/- to
the original claimants however, as the insurance company has already
deposited an amount of Rs.20,14,000/-, as awarded by the learned
Tribunal, the appellant - insurance company is entitled to get refund of
Rs.4,23,472/-.
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[10.0] The learned Tribunal is directed to refund an amount of
Rs.4,23,472/- to the appellant - insurance company from the amount of
Rs.20,14,000/- deposited by the appellant - insurance company
alongwith accrued interest at the rate of 9% per annum on the said
amount within a period of six weeks from the date of receipt of this
order. Thereafter, the learned Tribunal shall disburse the remaining
amount i.e. Rs.15,90,528/- lying in the FDR and/or with the Tribunal, with
accrued interest thereon, if any, to the original claimants, by account
payee cheque / NEFT / RTGS, after proper verification and after following
due procedure.
[10.1] 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
