Gujarat High Court
The New India Assurance Company Limited vs Alibhai Hashambhai Sumara on 10 September, 2025
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C/FA/249/2022 JUDGMENT DATED: 10/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 249 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
No
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THE NEW INDIA ASSURANCE COMPANY LIMITED
Versus
ALIBHAI HASHAMBHAI SUMARA & ORS.
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Appearance:
MS E.SHAILAJA(2671) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3,4
RULE SERVED for the Defendant(s) No. 6
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 10/09/2025
ORAL JUDGMENT
[1.] Heard Ms. E. Shailaja, learned advocate on record for the
appellant-Insurance Company. Learned advocate Mr. Nishit Bhalodi
has entered appearance on behalf of respondent nos.1 to 4-original
claimants.
[2.] The notice of admission of appeal is reported to have
been duly served upon respondent no.6; however, no appearance has
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been entered. From the record, it transpires that before the Tribunal,
the original opponent no.5-respondent no.5 herein being the driver of
the offending vehicle, has not been served, and the proceedings have
been conducted in his absence.
[3.] Considering the issue involved, the Co-ordinate Bench,
vide order dated 07.04.2022, had admitted the appeal, and pending
the appeal, the operation, implementation and execution of the
impugned judgment and award, were stayed, on condition that the
appellant-Insurance Company shall deposit the entire award amount
with proportionate costs and interest with the concerned Tribunal,
before the returnable date. It further transpires from the record that
on 04.07.2022, noticing the fact that the entire award amount has
been deposited, the Co-ordinate Bench has confirmed the aforesaid
interim relief, pending the appeal, with further directions of release
and disbursement of part of the amount. The 30% of the deposited
award amount was directed to be released in favour of the original
claimants, and 70% of the deposited award amount was directed to be
invested in the Fixed Deposit Scheme of any Nationalized Bank in the
name of the original claimants initially for a period of three years,
which was directed to be renewed from time to time. The interest,
which was to be accumulated on such FDRs, was directed to be
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accumulated in the aforesaid account.
[4.] With the assistance of learned advocates on record for
the respective parties, the appeal was heard finally.
[5.] The present appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 (for short, "the Act") at the instance of the
appellant-Insurance Company, being aggrieved and dissatisfied with
the judgment and award dated 23.09.2019 passed by the learned
Motor Accident Claims Tribunal (Main), Kachchh at Bhuj in M.A.C.P.
No.233 of 2016. By the said impugned judgment and award, the
Tribunal has partly allowed the claim petition preferred by the present
respondent nos.1 to 4-original claimants under Section 166 of the Act,
1988, thereby holding them entitled to recover an amount of
compensation of Rs. 26,40,400/- from the original opponents jointly
and severally with interest at the rate of 9% per annum from the date
of filing of the claim petition till its actual realization as well as with
proportionate costs thereof.
[6.] Learned advocate on record for the appellant-Insurance
Company has assailed the impugned judgment and award solely on
the issue of quantum of compensation being awarded on higher side.
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The bone of contention of learned advocate for the appellant-
Insurance Company is that, the Tribunal committed grave error in
considering the Income Certificate produced on record at Exh.23, as
proof of the income of the deceased, though been corroborated
through the evidence of the Contractor, who has been examined as
witness by the claimants at Exh.22.
[6.1] Learned advocate for the appellant-Insurance Company
has submitted that on close examination of the evidence of said
witness, it does not inspire confidence. It was pointed out that bare
appreciation of the contents of the Income Certificate at Exh.23,
indicates that no license has been issued by the Government, which
permits him to carry work as labour contractor. It was further
submitted that the genuineness of such Income Certificate has been
challenged by the Insurance Company, as evident from the cross-
examination of the said witness. In absence of any corroborative
evidence, in the nature of books of accounts, vouchers of payment, as
claimed by the said witness, the Tribunal ought not to have considered
such evidence, to be the proof of income of the deceased.
[6.2] Learned advocate has further submitted that considering
the fact that the deceased was a skilled labourer engaged in doing
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masonry work, in absence of any proof of income being produced on
record, the Tribunal at the most could have considered the prescribed
rates notified by the State Government under the Minimum Wages
Act, as prevalent during the time of the accident, to be the basis for
the purpose of determining the income of the deceased.
[6.3] Learned advocate has referred to and relied upon the
Notification issued by the State Government in this regard, and has
submitted that at the most, the income of the deceased could have
been considered as Rs.7,000/- per month. Considering the age of the
deceased and the principles laid down by the Hon'ble Supreme Court
in the case of National Insurance Company Ltd. vs. Pranay Sethi and
Others reported in (2017) 16 SCC 680, the Tribunal has rightly
considered addition of income as 40%. She has, therefore, submitted
that at the most, the prospective income of the deceased could have
been considered as Rs.9,800/- per month and applying the deduction
of 1/4th i.e. Rs.2,450/- towards personal and living expenses of the
deceased, the dependency loss ought to have been considered on the
basis of income of Rs.7,350/- per month. Learned advocate has not
disputed the multiplier of 17 being applied in the facts of the case.
She has, therefore, urged this Court to consider the dependency loss
to the tune of Rs.14,99,400/- instead of Rs.25,70,400/-, as determined
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by the Tribunal by the impugned judgment and award.
[6.4] In support of her submissions, learned advocate has
placed reliance upon the decision of the Hon'ble Supreme Court in the
case of Sarla Verma & Ors vs Delhi Transport Corp.& Anr reported in
(2009) 2 ACJ 1298 and the Constitutional Bench's decision in the case
of Pranay Sethi (supra). Referring to the relevant observations with
regard to the prospective income to be considered in case of fatal
accident, learned advocate has submitted that it would be the actual
income of the deceased, which is required to be considered for the
purpose of determining the loss of dependency. She has, therefore,
urged this Court to modify the impugned judgment and award by re-
considering the amount of compensation awarded under the head of
loss of dependency.
[7.] Per contra, Mr. Nishit Bhalodi, learned advocate on record
for the respondent nos.1 to 4-original claimants has forcefully
submitted that no error can be found with the approach of the
Tribunal, while determining the income of the deceased. According to
learned advocate, the Tribunal, in the facts of the case and the
evidence brought on record, has rightly determined the income of the
deceased as Rs.12,000/- per month. Learned advocate has placed
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heavy reliance upon the findings and reasons assigned by the Tribunal,
and has submitted that the Tribunal, in right perspective, has
evaluated the evidence of the witness i.e. Contractor, who has been
examined by the claimants at Exh.22. On close inspection of the
evidence of the aforesaid witness, the Tribunal, being satisfied, has
accepted the certificate issued by the said Contractor, to be a genuine
document, and has been admitted as an evidence being marked as
Exh.23.
[7.1] Learned advocate has further emphasized on the fact that
looking to the nature of work with which, the deceased was engaged,
the Tribunal has reason to believe the case of the claimants that the
Contractor was paying Rs.500/- per day, and has therefore, rightly
arrived at a conclusion by determining the income of the deceased as
Rs.12,000/- per month. In support of his submissions, learned advocate
has placed reliance upon the various decisions of the Hon'ble Supreme
Court as well as of this Court, which are as under:
1. In the case of Mohammed Siddique & Another
v/s National Insurance Company Ltd. & Others
reported in 2020 ACJ 751 (Paras: 15,16, 17 and 18);
2. In the case of Param Pal Sharda and Others v.
Dhani Ram and Others reported in 2022 ACJ 2719
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(Paras:6, 7, 8, 9 and 10);
3. In the case of Lakshmana Gowda B.N. v. Oriental
Insurance Co. Ltd. and another reported in 2023 ACJ
1481 (Paras: 9 and 10);
4. In the case of Parminder Singh vs New India
Assurance Company Ltd. and others reported in
2019 ACJ 2401 (Para-5); and
5. In the case of Bhanuben Lalji Gorasiya W/O Late
Lalji Nanji Gorasiya vs. Sabir Bhachu Hajam
delivered in R/First Appeal No.4649 of 2019 on
20.10.2021.
[7.2] Referring to the decision in the case of Mohammed
Siddique (supra), learned advocate has submitted that the Hon'ble
Supreme Court, while considering the appeal of the original claimant,
had noted that the High Court unfortunately committed error in
insisting for production of salary vouchers and other records including
income tax returns to substantiate the nature of the employment and
the monthly income of the deceased. The Hon'ble Supreme Court held
that the High Court committed error by applying yardstick of
minimum wages on ground of absence of other records, despite the
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salary certificate and the oral testimony of the employer being on
record. He has, therefore, submitted that the Tribunal has rightly
considered the Income Certificate produced and oral testimony of the
Contractor, which has remained unshaken, to be the proof of income
of the deceased.
[7.3] Referring to the decision of the Hon'ble Supreme Court in
the case of Param Pal Sharda (supra), learned advocate has
submitted that the Hon'ble Surpeme Court had arrived at a conclusion
that Salary Certificate being duly proved, the Tribunal and the High
Court have committed error in not giving due weightage to the same
for the purpose of determining the income of the deceased.
[7.4] Referring to the decision of the Hon'ble Supreme Court in
the case of Lakshmana Gowda (supra), learned advocate has pointed
out that while considering the issue of the income of the deceased,
who was otherwise working as a Marketing Executive in a private
company and the Tribunal and the High Court having construed his
salary at the rate of Rs.3,000/- per month, observed that even the
earning of the person doing masonry work was not less than Rs.300/-
per day or in other words Rs.9,000/- per month during the year 2007,
and has accordingly, considered the income of the claimant, who was
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graduate as Rs.8,000/ per month instead of Rs.3,000/-.
[7.5] Referring to the decision of the Hon'ble Supreme Court in
the case of Parminder Singh (supra), learned advocate has
highlighted the fact that solely on the basis of the affidavit of the
employer which was for the first time placed on record before the
Hon'ble Supreme Court, the earning of the appellant was believed to
be Rs.10,000/- per month at the time of the accident, and was
accordingly awarded loss of future earning.
[7.6.] Referring to the aforesaid decisions, learned advocate
has submitted that it is well settled principles of law that once the
Salary Certificate has been believed by the Tribunal and the Tribunal
having occasion to witness the demeanor of the employer, this Court
in appeal, in absence of any rebuttal of evidence being brought on
record by the Insurance Company, may not interfere with the
aforesaid findings and reasons assigned by the Tribunal, while
determining the income of the deceased. In the present case, the
respondents- original claimants having successfully established their
case through the oral testimony of the Contractor and the Income
Certificate being duly proved before the Tribunal, in absence of any
rebuttal of the aforesaid evidence, the present appeal may not be
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entertained. Learned advocate has, therefore, submitted that
considering the case of persons belonging to casual labour work, the
Court may not insist for further corroborative material, as their case
cannot be compared with government employees/or employees in
corporate houses, where further evidence in the nature of salary slip
and bank statement are generally expected. He has, therefore, urged
this Court to consider the aforesaid aspect while considering the issue
raised by the present appellant-Insurance Company.
[7.7] Lastly, learned advocate has invited my attention to the
amount of compensation being awarded under the head of loss of
consortium. The attention of this Court was invited to the fact that
indisputably, the impugned judgment and award was pronounced in
the year-2019, whereas the Constitutional Bench of the Hon'ble
Supreme Court in the case of Pranay Sethi (supra), has laid down the
principles with regard to the amount of compensation, to be awarded
under the head of loss of consortium is concerned. Considering the
fact that the claimants includes parents of the deceased, his wife and
minor son, the Tribunal was expected to award amount of
compensation under the head of loss of consortium to each of the
claimants to the tune of Rs.40,000/-, whereas, the Tribunal has
confined to the extent of Rs.40,000/- only. He has, therefore, urged
this Court to invoke the powers conferred under Order XLI Rule 33 of
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the Code of Civil Procedure, 1908, while considering the impugned
judgment and award as assailed in the present appeal, even in absence
of any appeal or any cross-objection being filed at the instance of the
original claimants. He has, therefore, urged this Court to pass
appropriate orders in this regard.
[8.] In rejoinder, learned advocate for the appellant-Insurance
Company has disputed the judgments relied upon by learned advocate
for the claimants, by contending that the ratio laid down in the
respective judgments, are in the background of the facts of each of
the case. Learned advocate has submitted that the principles laid
down by the Hon'ble Supreme Court in the case of Pranay Sethi
(supra), which is a Constitutional Bench's judgment, shall govern the
legal issue, more particularly, where the concept of actual income has
been highlighted.
[8.1] On merits, she has reiterated that on appreciation of the
Income Certificate produced on record at Exh.23, in light of the
evidence of the witness at Exh.22, the genuineness of the certificate
has been successfully challenged by the appellant-Insurance Company.
The attention of this Court was also invited to the written submissions
tendered by the appellant-Insurance Company before the Tribunal, in
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this regard. She has, therefore, urged this Court to allow the appeal
and to modify the impugned judgment and award by accepting the
case of the appellant-Insurance Company of considering income of the
deceased as Rs.7,000/- per month.
[8.2] As regards the submissions made by learned advocate
for the respondents-original claimants on the issue of loss of
consortium is concerned, learned advocate was unable to dispute the
same, in view of the Constitutional Bench's decision of the Hon'ble
Supreme Court in the case of Pranay Sethi (supra), and has urged this
Court to pass appropriate orders in this regard.
[9.] Having considered the arguments of learned advocates on
record for the respective parties at length, and upon appreciation of
their submissions in light of the findings and reasons assigned by the
Tribunal, the only point of determination, which arises for
consideration of this Court in the present appeal is, as to whether the
Tribunal committed any error in determining the quantum of
compensation, in the facts and circumstances of the case and the
evidence brought on record?
[10.] Indisputably, there is no challenge on the issue of
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negligency and the liability, as determined by the Tribunal, against the
present appellant-Insurance Company, in the present appeal. Thus, the
foundational facts with regard to occurrence of the accident, the
involvement of the vehicle, the accidental injuries sustained by the
deceased because of such accident and the liability of the Insurance
Company, have remained uncontroverted, and have attained finality.
Before considering the core issue, at the outset, it would be
appropriate to remind the scope of jurisdiction of Tribunal under M.V.
Act. Section 168 of the Motor Vehicles Act, 1988, empowers the
Tribunal to make award determining the amount of compensation
that appears it to be 'just' and 'proper', which is held to be adequate
compensation i.e. fair and equitable. The Orissa High Court in case of
Mulla Md Abdul Wahid Vs. Abdul Rahim and another reported in
1994 ACJ 3481, observed that the expression 'just compensation'
would mean what is fair, moderate and reasonable and awardable in
the proved circumstances of a particular case and the expression "
which appears to be just" vests a discretion in the Tribunal in the
matter of determining compensation. However, that discretion has to
be always guided by sound judicial principles. Thus, the Tribunals in
terms of the scheme of the Act are under duty to determine 'just'
compensation.
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[11.] This brings me to the core contention raised by the
learned advocate for the appellant-Insurance Company with regard to
evaluation of the evidence in the nature of oral testimony of the
mother of the deceased-original claimant no.1 at Exh.21, the oral
testimony of the witness- Contractor examined by the claimant at
Exh.22 and the documentary evidence in the nature of Income
Certificate of the deceased at Exh.23. On re-appreciation of the
aforesaid evidences, in light of the original case pleaded by the
claimants in the original claim petition and the FIR produced on record
at Exh.24, the Panchnama of occurrence of accident at Exh.25, the
electoral card of the deceased produced on record at Exh.31, it
transpires that the deceased was native of village- Mota Valaka,
Taluka- Nakhatrana, District- Kachchh and the accident had taken
place on a Kachha Road going towards Mangvana Math towards Golai
Road in Nakhatrana, District- Kachchh. The FIR was registered within
the jurisdiction of Nakhatrana Police Station. As against that, the
evidence of the witness Contractor, who has been examined at Exh.22
by the claimants, belongs to village- Guneri, Taluka,-Lakhpat, District-
Kachchh. The certificate, which is produced on record at Exh.23,
indicates that the Contractor is based at village-Guneri, Taluka,-
Lakhpat, District- Kachchh. The said witness claims to be engaged in a
construction business as a Contractor, and has engaged the deceased
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for masonry work and used to pay daily wages of Rs.500/- and
accordingly, he has supported the case of the claimants of deceased
earning of Rs.15,000/-per month. The said witness in his cross-
examination has acknowledged the fact about the certificate
produced on record at Exh.23, being signed by him. However, in his
cross-examination, the said witness has admitted that he is not
holding any Pan Card in the name of the business, which he runs. He
has also admitted the fact that in the Income Certificate produced on
record, he has not mentioned about the place from which the
deceased hails. He has also admitted the fact that there is no further
document being brought on record with regard to the payment being
made to the deceased. He has also admitted the fact that he has
studied up to 7th standard and he is not well verse with the computer.
He has also admitted that copy of the Income Certificate has not been
retained by him, and no receipt of issuance of certificate has been
recovered by him. However, he has denied the fact that such
certificate has been got up in order to help the claimants to secure the
amount of compensation.
[12.] Considering the overall evidence of the said witness, in
light of the certificate produced on record at Exh.23, in the opinion of
this Court, the appellant-Insurance Company has successfully
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challenged the genuineness of issuance of such certificate, more
particularly, considering the fact that the deceased belongs from a
different village of a different Taluka, the very fact that the said
witness was not holding any Pan Card in the name of business, which
he claims to run and as against that making payment of Rs.15,000/-
per month to a labourer engaged in a construction business, the doubt
has been raised by the appellant-Insurance Company on the
genuineness of such document. In such circumstances, the Tribunal
ought to have sought for further corroboration. As rightly contended
by learned advocate for the respondents, considering the nature of
work of the deceased, who was earning by doing masonry work, it
would be difficult to secure documents in the nature of Income
Certificate and statement of bank account, as a proof of income.
However, having produced such evidence on record, the Courts
cannot pretend to be blissfully ignorant of their obligation to evaluate
the evidence. Hence, in claim petition filed under Section 166 of the
M.V. Act, the Tribunal has a statutory duty to not only evaluate
evidence but also to award "just and proper" compensation to the
victim of compensation.
[13.] Considering the overall appreciation of the evidence,
certainly it cannot be said that the proof of income of the deceased, is
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believable for the purpose of determining the loss of dependency.
Even appreciation of the evidence of the original claimant no.1-
mother of the deceased, who has been examined at Exh.21, as against
the original case pleaded in the original claim petition, for the first
time, said witness has deposed that the deceased was earning
monthly income of Rs.15,000/- as being engaged in masonry work by
construction firm owned by a Contractor- Devji K. Khokhara, who has
been examined as witness at Exh.22. In his cross-examination, the said
witness has denied that it is not correct that the case has been
pleaded to secure the amount of compensation. On appreciation of
the contents of the original claim petition, while pleading the case
about monthly income of the deceased, the aforesaid aspect has not
been clarified at the first stage of presenting the claim petition.
[14.] Considering the aforesaid circumstances and in light of
the evidence as evaluated by this Court, the case of the claimant of
deceased earning Rs.15,000/- per month is not believable. In absence
of any proof of income being produced on record, this Court is left out
to determine the income of the deceased based on the nature of work
with which the deceased was associated. Indisputably, the deceased
was engaged in masonry work. Considering the principles laid down by
the Hon'ble Supreme Court in the case of Govind Yadav vs The New
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India Insurance Co.Ltd reported in 2011 (10) SCC 683, in absence of
any proof of income being produced on record and considering the
nature of work with which the deceased was associated, this Court can
certainly consider the yardstick of the standard rates prescribed by
the State Government, as notified under the Minimum Wages Act.
Considering the date of accident, which had occurred on 13.12.2015
and the minimum wages prevailing between period of 01.10.2015 to
31.03.2016, the minimum wages were Rs.7,886/- per month in case of
skilled worker. The Court is, therefore, inclined to consider the income
of the deceased as Rs.8,000/- per month.
[15.] Having held so, the loss of dependency is reconsidered, in
absence of any further challenge being made to the deduction
towards the personal and living expenses of the deceased and the
multiplier of 17 is adopted. The deceased was a married person and
having four dependents, which includes the aged parents, the widow
and the minor son. In such circumstances, considering the principles
laid down by the Hon'ble Supreme Court in the case of Pranay Sethi
(supra), each of the claimants shall be entitled to the amount of
Rs.40,000/- towards the same. Though, no appeal or any cross-
objection has been preferred by the respondents-original claimants,
considering the provisions of Order XLI Rule 33 of the Code, 1908, this
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Court being conferred with the jurisdiction to pass any order, which
otherwise the Tribunal ought to have passed, this Court is inclined to
reconsider the amount of compensation awarded under the head of
loss of consortium. Thus, the present respondent nos.1 to 4-original
claimants are held entitled to Rs.40,000/- each under the head of loss
of consortium, and accordingly, the loss of consortium is enhanced
from Rs.40,000/- to Rs.1,60,000/-. In absence of any dispute being
raised with regard to amount of compensation being awarded under
the head of loss of estate and funeral expenses are concerned, the
same are hereby confirmed. The revised calculation of amount of
compensation is reproduced in tabular form hereunder:
Under the Head of Compensation of Rs.
Future loss of income 17,13,600/-
Monthly income = Rs.8,000/-
Prospective income 40%%
(Rs.8,000/- + 40%) = Rs.11,200/-
Deduction 1/4
(Rs.11,200/4 = Rs.2800/-)
Total Income
(Rs.8400x12x17)
Loss of Estate 15,000/-
Loss of Funeral Expenses 15,000/-
Loss of Consortium 1,60,000/-
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(40,000x 4)
Total 19,03,600
Award from Tribunal Rs.26,40,400/-
Difference 7,36,800/-
(Rs.26,40,400 - Rs.19,03,600/-)
[16.] For the foregoing reasons, the present First Appeal is
partly allowed. The impugned judgment and award dated 23.09.2019
passed by the learned Motor Accident Claims Tribunal (Main), Kachchh
at Bhuj in M.A.C.P. No.233 of 2016, is hereby modified. Since the total
amount of compensation originally awarded by the Tribunal was to
the tune of Rs.26,40,400/-, and in view of the order dated 04.07.2022
passed by the Co-ordinate Bench in Civil Application for stay preferred
by the appellant-Insurance Company, 30% of the award amount being
realized and 70% of the award amount being lying in the Fixed
Deposit with interest, the difference of the amount of Rs. 7,36,800/-
with accrued interest, is directed to be refunded by the Tribunal
through NEFT/RTGS in the name of the appellant-Insurance Company.
The remaining amount with accrued interest is directed to be released
and disbursed in favour of the original claimants, subject to due
verification, strictly in accordance with the guidelines issued by the
Hon'ble Supreme Court in this regard. Let the aforesaid exercise be
undertaken by the Tribunal within a period of two weeks from the
date of receipt of this order.
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[17.] With these observations, present First Appeal stands
disposed of.
[18.] Registry is directed to send back the Record and
Proceedings along with the writ of this judgment to the concerned
Tribunal forthwith.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA/SFS/11/09
