Gujarat High Court
Shardaben Bhikhubhai Vekariya vs Mayurbhai Vitthalbhai Movaliya on 26 September, 2025
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C/FA/363/2025 ORDER DATED: 26/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 363 of 2025
With
R/FIRST APPEAL NO. 370 of 2025
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SHARDABEN BHIKHUBHAI VEKARIYA & ORS.
Versus
MAYURBHAI VITTHALBHAI MOVALIYA & ORS.
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1,2,3
MR YOGI K GADHIA(5913) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 26/09/2025
ORAL ORDER
1. Both the captioned appeals are arising out of the common
impugned judgment and award dated 18.07.2024 passed by the learned
Motor Accident Claims Tribunal (Auxiliary) at Gondal in MACP
No.37/2020 and MACP No.38/2020, therefore, both the captioned
appeals are decided analogously.
2. The brief facts leading to file the present appeals are that the
claimants of both claim petitions have filed the claim petitions under
Section 166 of the Motor Vehicle Act, 1988 for getting the compensation
of Rs.18,00,000/- in each case towards the compensation on account of
the death of Hirenbhai Bhikhubhai Vekaria and Abhaybhai Ravjibhai
Parmar in vehicular accident which occurred on 12.03.2020. On
12.03.2022, Hirenbhai Bhikhubhai Vekaria was riding the motorcycle
bearing registration no.GJ-03-DM-3290 while Abhaybhai Ravjibhai
Parmar was the pillion rider. They both were returning after appearing in
the examination of 12th standard from Gondal to their village-Mota
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Dadva and when they reached on Gondal-Ghoghavadar Road near
Ghoghavadar Chok, in the meantime, the driver of BMW Car bearing
registration no.GJ-03LB-4554 came driving his car from the opposite
direction in excessive speed in rash and negligent manner, so as to
endanger the human life and without observing the traffic rules and
dashed with the motorcycle. Resultantly, both the deceased sustained
grievous injuries and succumbed to the injuries. It has been awarded in
the petition that the accident occurred due to the sole negligence on the
part of driver of BMW Car bearing registration no.GJ-03LB-4554.
3. The summons of both the claim petitions were duly served upon
the insurance company. The insurance company had filed the written
statement at Exhs.13 and 14 respectively and denied all the averments
made in the claim petitions. It was also contended that the accident took
place owing to the sole negligence of the rider of the motorcycle and
alternatively, it has been pleaded that the accident occurred owing to
the contributing negligence of the rider of the motorcycle as well as the
driver of the car. The insurance company also denied the time, the
factum of accident, age, income etc. and prayed for dismissal of both
the claim petitions.
4. In MACP No.37/2022, the learned Tribunal has framed the
following issues at Exh.16:-
1. Whether the applicants prove that the deceased died in a
vehicular accident due to the negligent driving of the driver of
vehicle BMW Car No.GJ-03LB-4554?
2. Whether the applicants prove that they are entitled to the
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amount of compensation claimed? If yes, then what amount and
from whom?
3. What order?
5. While in MACP No.38/2022, the learned Tribunal has framed the
following issues:-
1. Whether the applicants prove that the deceased died in a
vehicular accident occurred in between Vehicle No.GJ-03LB-4554
and Vehicle No.GJ-3DM-3290 due to the negligent driving of the
driver of Vehicle No.GJ-03LB-4554?
2. Whether the applicants prove that they are entitled to the
amount of compensation claimed? If yes, then what amount and
from whom?
3. What order?
6. In order to prove the claims, the original claimants have led the
following oral as well as documentary evidences on record:-
ORAL EVIDENCE
Sr. No. Particulars of Evidences Ex. No.
Affidavit of Shardaben Bhikhubhai Vekariya, the
applicant No.1 of MACP No.37/2020
Affidavit of applicant Shardaben Ravjibhai Parmar,
the applicant No.1 of MACP No.38/2020
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Deposition of Bhadrarajsinh Lalubha Zala, Police
Inspector
DOCUMENTARY EVIDENCE
Sr. No. Particulars of Evidences Ex. No.
1. Copy of FIR 27 & 32
2. Copy of Panchnama 28 & 33
3. Copy of police statement of opponent driver of Car 29
4. Copy of police statement of owner of opponent Car 30
Copy of inquest panchnama of deceased Abhay
Parmar
Copy of post mortem report of deceased Abhay
Parmar
8. Copy of R.C. Book of BMW Car No.GJ-03LB-4554 36
Copy of Hall Ticket of Std.12 Examination of
deceased Hiren Vekariya
Copy of school leaving certificate of deceased Hiren
Vekariya
Copy of Hall Ticket of Std.12 Examination of
deceased Abhay Parmar
Copy of school leaving certificate of deceased
Abhay Parmar
Copy of inquest panchnama of deceased Hiren
Vekariya
Copy of Post Mortem report of deceased Hiren
Vekariya
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7. Having considered the pleadings, oral as well as documentary
evidences and submissions of the learned counsels for the respective
parties, the learned Tribunal partly allowed the claim petitions.
8. Being aggrieved and dissatisfied with the findings returned by the
learned Tribunal, the original claimants of the respective claim petitions
have preferred both the captioned appeals.
9. Heard learned counsel for the parties.
10. Learned counsel for the original claimants submitted that the
accident occurred owing to the sole negligence of the driver of the BMW
Car bearing registration no. GJ-03LB-4554. He further submitted that
the learned Tribunal has committed the serious error in ascertaining the
negligence of the rider of the motorcycle bearing registration no. GJ-03-
DM-3290 to the extent of 10% solely on the ground that the rider of the
said motorcycle was not holding a valid driving licence as on the date of
accident, as he was only 17 years old. He further submitted that the
finding returned by the learned Tribunal is not sustainable. Therefore,
the same is liable to be reversed and the driver of the BMW Car ought
to be held 100% negligent for causing the accident. In support of his
contention, he placed the reliance on the judgment of the Hon'ble Apex
Court rendered in the case of Saraswati Palawiya & Ors. Vs. New India
Assurance Company Limited and Others, reported in 2019 ACJ 42.
11. Learned counsel for the original claimants further submitted that
both the deceased were studying in 12th Class and aged about 17
years old, therefore, their income ought to have been determined as
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Rs.15,000/- per month. However, the learned Tribunal has considered
the income of both the deceased as Rs.8,000/- each per month.
Learned counsel for the original claimants has also placed the reliance
upon the judgment of the Hon'ble Apex Court rendered in the case of
Meena Pawaia and Others Vs. Ashraf Ali and Others, reported in 2021
SCC OnLine SC 1083, wherein the income of a deceased at the time of
accident, who was the student of 3 rd year Civil Engineering and aged
about 21-22 years, determined as Rs.10,000/- per month. He further
submitted that the learned Tribunal ought to have considered the
income of the deceased at least Rs.10,000/- per month. He further
submitted that considering the income of the deceased as Rs.10,000/-
per month, the compensation is required to be enhanced.
12. So far as the claim in compensation on other heads is concerned,
learned counsel for the original claimant submitted that the learned
tribunal ought to have granted 10% increase for each three completed
years, in view of the judgment of National Insurance Company Limited
Versus Pranay Sethi and Ors., reported in 2017 (16) SCC 680.
13. On the other hand, Mr.Yogi Ghadiya, learned counsel appearing
on behalf of the Insurance Company vehemently submitted that the
learned Tribunal has not committed any error in returning the findings
that the rider of the motorcycle was negligent for causing the accident to
the extent of 10%. He further submitted that the learned Tribunal has
rightly considered the material on the record. Therefore, the finding
returned on the point of negligence is not to be interferred.
14. He further submitted that the learned Tribunal has rightly
ascertained the income of both the deceased i.e. Rs.8,000/- as they
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were the students of Class 12th, at the time of accident. He further
submitted that the ratio of the judgment rendered by the Supreme Court
in the case of Meena Pawaia (supra) is not applicable in the facts and
circumstances of the case. He further submitted that there is no merits
in the present appeal and the same is liable to be dismissed.
15. Having considered the submissions of the learned counsel for the
parties, it is to be noted that it was head-on collision between the Motor-
Cycle and the Car. It is evident that the accident occurred in the middle
of the road, therefore, the learned Tribunal has not committed any error
in returning the finding on the issue of negligence. So far as the
contention of the learned counsel for the claimants that the learned
Tribunal has ascertained the negligence of the rider of the motorcycle
only on the basis of the fact that he was aged about 17 years and was
not holding driving licence, is not sustainable inasmuch as the learned
Tribunal, in Paragraph No.16 of the judgment observed that the driver of
both the vehicles have contributed for the occurrence of accident to
some extent. Therefore, the finding on the issue of negligence is not
solely returned on the basis of the fact that the rider of the motorcycle
was not holding a valid licence but the learned Tribunal has considered
the factual aspect and the evidence on record. Therefore, the finding
returned by the learned Tribunal on the issue of negligence is not to be
interferred.
16. So far as the income is concerned, both the deceased were aged
about 17 years and they were studying in 12th standard. After
considering the age and qualification, the learned Tribunal has
considered the notional income of both the deceased as Rs.8,000/- per
month. Learned counsel for the appellant placed the reliance on the
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judgment rendered by the Hon'ble Apex Court in the case of Meena
Pawaia (supra), wherein the Supreme Court has ascertained the
income of 3rd year student in Civil Engineering as Rs.10,000/-. In the
case on hand, it is undisputed that both the deceased were aged about
17 years and they were the students of 12th Class. Thus, having
considered the facts and circumstances, in my considered view, the
learned Tribunal has committed the error in determining the income of
each deceased at Rs.8,000/- per month. Thus, having regard to the
facts and circumstances, the income of each deceased is ascertained at
Rs.9,000/- per month. The learned Tribunal has applied the multiplier of
18. The learned Tribunal has also enhanced the monthly income to the
extent of 40% on account of the future prospects of the deceased. After
adding 40% to monthly income on account of the prospective income,
the monthly income would come to Rs.12,600/-(9,000+40%). The
learned Tribunal has applied the multiplier of 18 as per age. The said
multiplier was rightly applied in view of the ratio of the judgment of of
Hon'ble Apex Court rendered in the case of Sarla Verma Vs. Delhi
Transport Corporation and Anr., reported in AIR (2009) 6 SC 3104.
After applying the multiplier of 18, the future loss of dependency would
come to Rs.27,21,600/-(12.600X12X18). It is an undisputed fact that
both the deceased were bachelor at the time of accident, therefore, 1/2
of the future loss of dependency has to be deducted on account of the
personal expenses of deceased, in view of the ratio of the judgment of
Sarla Verma (supra). Thus, after deducting 1/2 on account of the
personal expenses of the deceased, the future loss of income would
come to Rs.13,60,800/-. Further, the learned Tribunal has awarded a
sum of Rs.16,500/- on account of loss of estate and further sum of
Rs.16,500/- on account of funeral expenses and a further sum of
Rs.96,800/- on account of loss of consortium. The compensation
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awarded under the heads of loss of estate, funeral expenses and loss of
consortium is further required to be enhanced by 10%, in view of the
judgment of Pranay Sethy (supra). After increasing by 10%, the
claimant shall be entitled for a sum of Rs.18,150/- under the head of
loss of estate, Rs.18,150/- under the head of loss of funeral expenses
and Rs.88,800/- under the head of loss of consortium. Therefore, the
claimants of MACP No.37/2008 (First Appeal No.363/2025) shall be
entitled for the following compensation under the following heads:-
Sr. Details Awarded by the Calculation by Final Amount
No. Ld.Tribunal this Court awarded by this
Court
1. Income Rs.8,000/- per Rs.9,000/- per Rs.9,000/-
month. month
Rs.96,000/- per Rs.1,08,000/-
annum per annum
(8,000X12) (9,000X12)
2 Prospective 40% 40% Rs.1,51,200/-
(Rs.1,34,00/-) (Rs.1,51,200/-)
3. Total Loss of dependency, 18 18 Rs.27,21,600/-
Multiplier (Age 17) (Rs.24,19,200) (Rs.27,21,600)
4. Personal Deduction ½ nd ½ nd
5. Future Loss of dependency Rs.12,09,600/- Rs.13,60,800/- Rs.13,60,800/-
6 Loss of Consortium Rs.88,000/- Rs.48,400 X 2 Rs.96,800/-
Rs.96,800
7. Loss of Estate Rs.16,500/- Rs.18,150/- Rs.18,150/-
Rs.18150/- Rs.18150/-
8. Enhancement Rs.14,93,900/-
17. As observed above, the contributory negligence of the deceased
in MAC Petition No.37/2008 ascertained at 10%. Therefore, out of the
total amount of compensation, 10% amount is liable to be deducted on
account of contributory negligence. Therefore, after deducting 10% of
the amount, the total compensation comes to Rs.13,44,510/-(14,93,900-
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1,49,390).
18. So far as the claimants of MACP No.38/2020 are concerned, the
claimants shall be entitled for the following amount of compensation
under the following heads:-
Sr. Details Awarded by the Calculation Final Amount
No. Ld.Tribunal
1. Income Rs.8,000/- per Rs.9,000/- per Rs.1,08,000/-
month. month
Rs.96,000/- per Rs.1,08,000/-
annum per annum
2 Prospective 40% 40% Rs.1,51,200/-
(Rs.1,34,00/-) (Rs.1,51,200/-)
3. Multiplier (Age 17) 18 18 Rs.27,21,600/-
(Rs.24,19,200) (Rs.27,21,600)
4. Personal Deduction ½ nd ½ nd
5. Future Loss of Income Rs.12,09,600/- Rs.13,60,800/- Rs.13,60,800/-
6 Loss of Consortium Rs.88,000/- Rs.48,400 X 2 Rs.96,800/-
Rs.96,800
7. Loss of Estate Rs.16,500/- Rs.18,150/- Rs.18,150/-
Rs.18150/- Rs.18150/-
8. Enhancement Rs.14,93,900/-
9. Interest 9% 9%
19. The learned Tribunal has awarded a sum of Rs.13,30,600/- as
compensation, therefore the compensation is enhanced by
Rs.1,63,300/-(14,93,900-13,30,600).
20. In view of the above discussions, both the appeals are stand
allowed partly. The insurance company shall deposit the enhanced
amount of compensation within the period of six weeks from today
along with interest at the rate of 9% per annum.
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21. Upon depositing of the amount, the claimants shall be at liberty to
get the disbursement of 100% of the said amount including the amount
lying deposited with the learned Tribunal. The amount, if any, lying
deposited in the captioned appeals with the Registry of this Court, be
remitted to the concerned learned Tribunal. Record & Proceedings, if
any, be sent back to the learned Tribunal concerned. No order as to
costs.
(MOOL CHAND TYAGI, J)
HARSHIT
