Gujarat High Court
Laduben Nanabhai Bariya Wd/O Nanbhai ... vs Arvindbhai Mathurbhai Pagi on 14 October, 2025
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Reserved On :-
Pronounced On : 14/10/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 41 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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LADUBEN NANABHAI BARIYA WD/O NANBHAI BARIYA & ORS.
Versus
ARVINDBHAI MATHURBHAI PAGI & ANR.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4,5
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA
CAV JUDGMENT
1. The present Appeal arises from the judgment and award
dated 16th August, 2014 passed by the learned Motor
Accident Claims Tribunal (Aux.), Panchmahal at Godhara
in respect of the MACP No.713 of 2008.
2. By way of the impugned judgment and award, the Tribunal
was pleased to award a compensation to the tune of
Rs.1,72,750/- to the claimants with interest at the rate of
9% per annum from the date of filing of the claim petition
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till its actual realization with proportionate costs.
3. At the outset, the accident in question may be examined.
From the records, the date of the accident transpires to be
of 02.05.2006. It appears that one Nanabhai was going
from Bharatpur to Ahmedabad in his relative's Jeep
bearing registration no.GJ-9-H-1283. The said Jeep was
being driven by one Bhathi bhai. As per the case of the
claimants, when the said Jeep was passing by the Village
Daraji na Muwada at Kathlal-Ahmedabad Highway Road, a
Truck came from the opposite side in rash and negligent
manner and collided with a Jeep. As a result, the Jeep
turned turtle. The occupant Nanabhai sustained serious
injuries and ultimately succumbed to the said injuries.
Hence, the claim petition under Section 163A of the Motor
Vehicles Act, 1988 (for short, "the MV Act").
4. At the outset, it was submitted by the learned advocate for
the appellant, Mr. Hiren Modi, that the present appellants
are aggrieved only qua two aspects of the impugned
judgment and award. First aspect is that, that the Tribunal
has erred in deducting 50% amount of the compensation,
on the assumption that the Jeep's driver was negligent to
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the extent of 50%. It was submitted that in the present
case, it has not been proved that the deceased was an
unauthorized passenger or was traveling in a capacity of
fare paying passenger in a private vehicle. He has thus
submitted that the Insurance Company, before the
Tribunal, has not been able to demonstrate that a private
vehicle was being used for commercial purposes. He
further submitted that the Tribunal, after attributing
negligence in causing accident to the extent of 50% to the
drivers of each of the vehicles, has erred in holding that as
the driver, the Insurance Company and the owner of the
offending vehicle (truck) had not been impleaded, therefore,
that part of the compensation, namely, 50% of the
compensation is liable to be deducted. It was submitted
that insofar as the appellant - third party was concerned,
he was passenger in the vehicle and in respect of such
passenger, the negligence would be, what is referred to as,
"Composite Negligence", and not in the nature of
"Contributory Negligence", and therefore, no amount
should have been deducted from the compensation, as has
been done by the Tribunal. It was submitted that Court
may please interfere with the impugned judgment and
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award to the extent of the deduction of 50% amount for the
reason of non-impleadment of one part of the tort-feasors
namely, the driver, owner and the Insurance Company of
the Truck involved in the accident. The learned advocate
has relied upon the judgment of the Hon'ble Supreme
Court in the case of Khenyei vs New India Assurnace
Co.Ltd.& Ors reported at (2015) 9 SCC 273 to support his
contention and for explaining the concept of the composite
negligence and contributory negligence and has ultimately
urged this Court that in the present case, the negligence
would be of a "Composite Negligence", insofar as the
passenger of the Jeep is concerned. The learned advocate
submitted that as such, a victim is entitled to sue any of
the tort-feasors and on this count, no adverse consequence
can be attributed to the appellant.
5. He next submitted that recently, i.e. from 22.05.2018,
Section 163A of the MV Act has been replaced and
provisions have been made in the Act for providing
compensation to the tune of Rs.5,00,000/- insofar as the
claim of death under Section 164(1) of the Amended MV
Act are concerned. It was submitted that the said provision
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is a provision of "no fault" liability as Section 164(2)
provides that the claimant shall not be required to plead or
establish that death, in respect of which claim is made,
was due to any wrongful act or neglect or default of the
owner of the vehicle or of the vehicle concerned, or of any
other person. It was urged that numerous judgments of
this Court and that of the Hon'ble Supreme Court have
held that the said provision would be retrospective in
operation and, therefore, in the present case also,
aggregate compensation to the tune of Rs.5,00,000/- may
kindly be awarded. It was submitted that post the
amendment, it would be Section 164, which would govern
the situations akin to those arising in the present matter
and that the said provision is in a beneficial piece of
legislation and that it is procedural in nature. For
buttressing the said contentions, the learned advocate has
relied upon the judgment of the Hon'ble Supreme Court in
the case of SLP (Civil) No.6260 of 2019 being the decision
in the case of New India Assurance Company Limited Vs.
Urmila Halder dated 08.02.2024. That apart, two decisions
of this Court being the judgments in the case of First
Appeal No.250 of 2022 dated 16.04.2024 and that in First
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Appeal No.3582 of 2013 dated 22.09.2025, have been
relied by the learned advocate for the appellants, to
buttress the aforesaid arguments.
6. Learned advocate for the respondent - Insurance Company
has argued that in the policy, the premium of the
passenger has not been paid, and therefore, the Insurance
Company should have been exonerated. In this respect, it
was contended that the Insurance Company had examined
his officer, who has deposed that the premium of the driver
has not been paid. She has, therefore, submitted that
insofar as the deceased was concerned, the policy does not
cover the deceased, who would not construe as a third
party. As regards the other issues raised hereinabove by
the learned advocate for the appellant, the learned
advocate for the respondent has merely raised formal
objections, i.e. she has not seriously pressed into service
any contentions against the same.
7. None has appeared for other respondents.
8. Having heard the learned advocates of the respective sides,
this Court proceeds to decide the present Appeal in terms
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appearing hereinafter.
9. The following points of determination arise before this
Court while deciding the present Appeal:
1. Whether the Tribunal has erred in deducting 50%
compensation computed in the impugned judgment
and award on the count that the driver, owner and
the Insurance Company of the Truck, involved in
the accident, not having been impleaded? And;
2. Whether the amount of Rs.5,00,000/- as indicated
under the Amended Section 164 of the MV Act is
liable to be awarded in the facts and circumstances
of the present case? And;
3. Whether the Insurance Company was liable to be
discharged, despite there being no appeal preferred
by the Insurance Company, more particularly, for
the reason that the premium in respect of the
driver was allegedly not paid in the insurance
policy at Exhibit-33?
10. At the outset, it may be noted that the manner in which
the accident had happened, was a result of a Truck
smashing into a Jeep. At that time, the deceased was a
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passenger in the Jeep. The Tribunal has attributed 50%
negligence to each the drivers of each of the vehicles. But
then, insofar as the passenger (victim of the accident) was
concerned, the negligence would be a composite negligence
and not contributory negligence, as has been explained by
the Hon'ble Supreme Court in the case of Khenyei (supra).
Further, in the said judgment, the Hon'ble Supreme Court
has been pleased to observe that insofar as the cases of
composite negligence are concerned, the victim (and
consequently, the heirs of the victim, where the victim does
not survive the accident) of such accident would be entitled
to sue any of the joint tort-feasors and for suing to such
limited extent, he cannot be visited with any consequences,
much less the deduction of an portion equivalent to the
negligence attributed to the driver of the vehicle (driver,
owner and the Insurance Company) not so impleaded. It
was further held by the Hon'ble Supreme Court that
apportionment of compensation between joint tort-feasors
for making payment to claimants is impermissible, as the
claimants have the right to recover the entire amount from
the easiest targets/solvent dependents. Of course, where
all of the offending vehicles have been impleaded,
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apportionment is only for the purpose of enabling a joint
tort-feasor to recover from other joint tort-feasors, such
amount of compensation that the former has paid to the
victim, which otherwise was to be satisfied by such other
joint tort-feasors. The victim, it is specified, has nothing to
do with such apportionment. On this count, the said
finding in the impugned judgment and award namely, the
deduction of compensation to the tune of 50% is liable to
be interfered with. Accordingly, the said finding is done
away. Thus, it is held that the heirs of the deceased
Nanabhai are entitled to complete compensation that may
be computed in the facts and circumstances of the present
case; and further that no amount of deduction of
compensation, from that payable to the victim, is
permissible, merely for the fact that the owner, driver or
the Insurance Company of the offending truck were not
impleaded before the Tribunal.
11. Insofar as the retrospective applicability of Section 164 of
the Amended MV Act post publication of amendment in the
Official Gazette dated 22.05.2018 is concerned, the Hon'ble
Supreme Court in the case of Urmila Halder (supra) and
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this Court in First Appeal No.250 of 2022 and First Appeal
No.358 of 2013 unequivocally held that the said Section
164 of the MV Act is beneficial legislation and that it would
necessarily entail the benefit to be passed on to the
claimant retrospectively, in absence of any specific bar to
the same. Accordingly, this Court, in the aforesaid First
Appeals, was pleased to hold, in accordance with the
judgment of Urmila Halder (supra), that the said Section
applies retrospectively and thereafter proceeded to award
aggregate compensation to the tune of Rs.5,00,000/-.
Hence, in deference to the aforesaid judgment, i.e., Urmila
Halder (supra), this Court also is inclined to hold that the
appellant is entitled to an aggregate compensation to the
tune of Rs.5,00,000/- in terms of Section 164 of the MV
Act. This obliviates the need to compute compensation
afresh, or to scrutinise the manner in which the
compensation was computed by the Tribunal.
12. Finally, the issue as raised by the learned advocate for the
respondent - Insurance Company. It has been argued that
without an appeal, the Insurance Company is entitled to
raise a plea, as regards its exoneration, on the ground that
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the driver of the Jeep concerned did not pay a premium of
the driver of the vehicle. This Court has perused the policy
at Exhibit-33 in the present case. On perusal of the same,
it is apparent that a sum of Rs.292.5/- has been paid
towards personal accident cover to passengers. Thus, the
said contention that the passenger was not covered, only
on account of the premium of the driver not having been
paid is negated. It may also be noted that, in any case, no
appeal has been preferred by the Insurance Company
agitating the ground on which it is required to be
exonerated, and therefore, insofar as the Insurance
Company is concerned, the finding as regards its liability
has attained finality. Hence, on this count too, the said
contention is also liable to be negated.
13. All in all, this Court holds that the impugned judgment
and award passed by the Tribunal is liable to be modified.
The aggregate compensation liable to be awarded for the
heirs of the deceased Nanabhai Bhurabhai Bariya would be
to the tune of Rs.5,00,000/- as indicated hereinabove. As
the Tribunal has already awarded a sum of Rs.1,72,750/-,
therefore, the enhancement would be to the tune of
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Rs.3,27,250/- (i.e. Rs.5,00,000/- less Rs.1,72,750/-). The
said enhancement of compensation would carry interest at
the rate of 9% per annum from the date of filing of the
claim petition till its actual realization.
14. The Insurance Company is directed to deposit the
aforesaid enhanced amount to the Tribunal within a period
of eight weeks from the date of availability of the signed
copy of this Judgment. On deposit of the aforesaid amount
by the Insurance Company to the Tribunal, the amount
shall forthwith be disbursed to the appellant without need
of creating any further FDRs. Applicable court fees shall be
paid by the appellant to the extent that it has not been
paid so far.
15. The First Appeal stands disposed of, as allowed to the
aforesaid extent. Consequently, civil application if any
preferred in the Appeal, shall stand disposed of.
16. The R&P shall forthwith be remitted back to the
concerned Tribunal.
(J. L. ODEDRA, J)
JIGAR J RABARI
