[Cites 16, Cited by 0]
Gujarat High Court
Icici Lombard General Insurance Co Ltd vs Vallabhbhai Nathabhai Bhalani on 5 February, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1710 of 2022
With
R/CROSS OBJECTION NO. 219 of 2022
In
R/FIRST APPEAL NO. 1710 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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ICICI LOMBARD GENERAL INSURANCE CO LTD
Versus
VALLABHBHAI NATHABHAI BHALANI & ORS.
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Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
MR. HEMAL SHAH(6960) for the Defendant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 05/02/2026
ORAL JUDGMENT
1) This appeal has been preferred by the appellant - Insurance
Company against the impugned judgment and award dated
29.11.2021 passed by the learned Motor Accident Claims Tribunal
(Aux), Rajkot, (for short referred to as "learned Tribunal") in Motor
Accident Claim Petition No.52 of 2014 under Section 166 of the
Motor Vehicles Act, 1988 (for short referred to as "MV Act")
wherein the Tribunal has partly allowed the claim petition filed by
the claimants.
2) The original claimants - respondents herein have objected the
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present appeal by filing cross objections being Cross Objection
No.219 of 2022. Therefore, First Appeal and Cross-Objections both
are hereby taken up for final hearing and decided by this common
judgment.
3) Heard Ms. Kirti Pathak, learned counsel for the appellant -
Insurance Company and Mr. Nishit Bhalodi, learned counsel for the
respondent claimants.
4) The brief facts of the present claim petition are that the accident
took place on 01.09.2013, the deceased was going in his car
bearing No.GJ-03-DG-6556 on the correct side of the road and
when reached near Khodiyar Farm at Jamnagar Rajkot Highway,
one Bolero car bearing No.GJ-10-AC-4424 came from wrong
direction in rash and negligent manner with excessive speed and
dashed with the car of the deceased. As a result, the deceased got
serious and succumbed to it. In this regard, a complaint was lodged
against the driver of Bolero car. Therefore, the claimants have filed
claim petition before the Tribunal which came to be partly allowed
and the Tribunal awarded compensation of Rs.1,19,95,033/- along
with interest at the rate of 9 % p.a.
5) Learned counsel for the appellant - Insurance Company has
submitted that the Tribunal has committed error in considering
monthly income of the deceased. 50 % contributory negligence is
required to be considered on the part of the deceased. Further,
the Tribunal has straightaway accepted the income returns rather
to accept average income of all income tax returns, which ought to
have been considered by the Tribunal. However, the Tribunal failed
to consider the same. Though the claimants failed to prove the
pleadings before the Tribunal based on presumption and
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assumption, the Tribunal has awarded exorbitant compensation to
the claimants. The Tribunal has failed to consider the settled
principles of law and ignored the fact that under Section 168 of
the Act, just compensation is required to be considered based on
fairness, equability and legal standard. Hence, he has requested to
allow the appeal and dismiss the Cross-Objections of the
claimants.
6) Mr. Hemal Shah, learned counsel for the claimants opposing
present appeal and supporting his cross-objection submitted that,
the Tribunal has committed error in considering 10 % negligence
on the part of the deceased and not awarded just compensation.
There was no evidence on the record which suggests that the
deceased was negligent in causing the accident because Bolero car
came from wrong side jumping divider and dashed with the car of
the deceased. Therefore, question does not arise to consider
contributory negligence on the part of the deceased. Hence, he
has requested to dismiss the appeal and allow the Cross-
Objections of the claimants.
7) Having heard the learned counsel for the respective parties and
upon perusal of the record and proceedings, it emerges that the
Tribunal has relied upon the decisions of the Hon'ble Apex Court in
Bimla Devi v. HRTC, reported in AIR 2009 SC 2819, and
Parmeshwari Devi v. Amir Chand, reported in (2011) 11 SCC 635.
To substantiate their claim, the claimants have produced oral
evidence of claimant No.1 at Exh.16, FIR at Exh.19, panchnama of
the scene of accident at Exh.20, inquest panchnama at Exh.21,
insurance policy at Exh.22, RC book at Exh.23, driving licence of
Ashok Karsariya at Exh.24, post-mortem report at Exh.27, charge-
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sheet at Exh.28, and income-tax returns of the deceased at Exhs.29
to 31. From the panchnama of the scene of accident, it appears
that the width of one side of the road is about 20 feet, with a
divider of approximately 8 feet in between. Wheel marks
measuring about 4 feet were found on the western side of the
road near the divider, and further wheel marks of about 6 feet
were noticed at a distance of nearly 70 feet towards the Jamnagar
side. At a further distance of about 38 feet, a pole was found in a
damaged and bent condition, and the emergency number board
affixed thereto was also found damaged, situated within the
divider. The distance between the point where the Bolero vehicle
mounted the divider and the damaged pole was approximately 213
feet. The Bolero car was found to be extensively damaged,
amounting to a total loss. The post-mortem report reveals that the
cause of death was shock and hemorrhage due to multiple
traumatic injuries. The Tribunal has rightly observed that while
deciding the issue of negligence, the same is required to be
established on the touchstone of preponderance of probabilities
and not beyond reasonable doubt. It is also noted that the FIR was
not lodged by an eyewitness. As per the pleadings, the Bolero car
was travelling from Rajkot to Jamnagar, whereas the deceased
was travelling from Jamnagar to Rajkot. As reflected in the
panchnama, both carriageways were 28 feet wide, separated by an
8-feet-wide divider.
8) The panchnama further reveals that the Bolero vehicle first
climbed onto the divider from the Rajkot side, collided with the
pole situated within the divider, and thereafter crossed onto the
wrong side of the road and dashed against the car driven by the
deceased, which was proceeding towards Rajkot from the
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Jamnagar side. Considering the considerable distance of about 213
feet travelled by the Bolero vehicle after mounting the divider and
colliding with the pole, it clearly establishes that the Bolero vehicle
was being driven at an excessive speed and that the driver failed
to control the vehicle even after the initial impact. It is pertinent to
note that the learned advocate for the insurance company of Car
No. GJ-03-DG-6556 has produced police statements at Exhs.5 to 61
in the cognate matter being MACP No.1111 of 2013. Upon perusal
of the police statement at Exh.57 given by the driver of the Bolero
vehicle, it is stated that while driving the Bolero jeep, he felt
drowsy, as a result of which the vehicle mounted the divider,
crossed onto the wrong side of the road, and collided with the car
coming from the Jamnagar side. However, considering the
panchnama of the scene of accident and the nature of damage
caused to Car No. GJ-03-DG-6556, it appears that the deceased,
though travelling on the correct side of the road, might also have
been driving at an excessive speed. Otherwise, he could have
stopped the vehicle in time or turned it towards a safer side to
avert the accident upon noticing the Bolero vehicle approaching
after crossing the divider. As per the panchnama, the deceased
had sufficient opportunity, from a distance of nearly 300 feet, to
take evasive action on observing the Bolero vehicle coming onto
the wrong side of the road.
9) Thus, there is substance in the submission of the learned Advocate
for the insurance company that deceased being driver of car
No.GJ-03-DG-6556 has also contributed to some extent for the
occurrence of accident. Hence, considering the FIR, panchnama of
the place of accident, charge sheet submitted by police, it
transpires that the deceased was also not careful and cautious
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while driving his car Standard of proof required being
preponderance of probability as has been reiterated in Mangla
Ram v. Oriental Insurance Company Limited. In this regard,
reliance is also placed on the decision of the Hon'ble Apex Court in
case of Srikrishna Kanta Singh Vs. The Oriental Insurance
Company Ltd. & Ors. Reported in 2025 INSC 394. Therefore, the
Tribunal has not committed any error in assessing contributory
negligence on the part of drivers of both the vehicles. Hence,
argument canvassed by learned counsel for the appellant is not
sustainable.
10) Considering the above facts, it appears that the Tribunal has not
committed any error in assessing 90 % negligence on the part of
driver of Bolero car and 10 % negligence on part of the deceased.
Therefore, no interference is required on the aspect of negligence
as per the reasoning given by the Tribunal.
11) So far as the income aspect is concerned, the claimants have
produced income-tax returns at Exhs.29 to 31 for the assessment
years 2011-2012 to 2013-2014. Claimant No.1, in his affidavit at
Exh.16, has stated that the deceased was engaged in the business
of share trading and construction and was earning ₹15,00,000/-
per annum. On perusal of the income-tax return at Exh.29 for the
assessment year 2011-2012, the gross total income of the
deceased is shown as ₹5,94,589/-, on which income tax of
₹69,310/- was paid. The income-tax return at Exh.30 for the
assessment year 2012-2013 reflects a gross total income of
₹4,90,834/- and payment of income tax of ₹22,276/-. Further, the
income-tax return at Exh.31 for the assessment year 2013-2014
shows a gross total income of ₹10,49,033/-, with income tax of
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₹1,32,380/- paid thereon. It is pertinent to note that the income-
tax return for the assessment year 2013-2014 was filed on
12.08.2013, whereas the accident occurred on 01.09.2013. Thus, it
is evident that the said return was filed prior to the occurrence of
the accident and cannot be said to have been filed after the
accident with a view to inflate the income. Upon consideration of
the aforesaid documentary evidence, the Tribunal has taken into
account the income reflected in the last income-tax return, i.e. for
the assessment year 2013-2014, and assessed the annual income
of the deceased at ₹10,49,033/-.
12) That, as per the judgment of the Apex Court in the case of
Shashikala & Ors. Vs. Gangalakshmamma & Anr., [2015 (9) SCC
150], when there is a definite evidence on record to show that
what was the yearly income in the year of accident, income should
be determined as per the last income tax returns. Therefore, in
light of the decision of the Hon'ble Supreme Court in Narender
Dev Poonia v. Hasan Mohd., reported in 2025 (0) JX (SC) 1619,
this Court deems it fit not to interfere with the income assessed by
the Tribunal, as the same has been determined with a view to
award just compensation. Further, while assessing the income of
the deceased, the Tribunal was required to bear in mind the object
of the Motor Vehicles Act, which is a beneficial and welfare
legislation intended to provide just compensation based on the
contemporaneous position of the individual and is essentially
forward-looking in nature. In light of the decisions of the Hon'ble
Supreme Court in S. Vishnu Ganga v. M/s. Oriental Insurance Co.
Ltd., reported in 2025 INSC 123, K. Ramya v. National Insurance
Co. Ltd., reported in 2022 SCC OnLine 1338, and Shivleela & Ors.
v. The Divisional Manager, United India Insurance Co. Ltd.,
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reported in 2025 INSC 357, the arguments canvassed by learned
counsel for the appellant are not acceptable. Hence, this Court
does not deem it fit to interfere with the income aspect as
assessed by the Tribunal.
13) This Court is of considered view that there is no rule in all cases
that Court has to consider average income. There is no any
gradually increase in the income and there is no bar to consider the
last return which is already inspired confidence and was filed prior
to the accident. In this regard, reference may be made to the
decision of the Hon'ble Supreme Court in Malarvizhi & Ors. v.
United India Insurance Company Limited & Anr. , reported in
2020 ACJ 526 (SC), wherein it has been held that income-tax
returns are statutory documents and the income of the deceased
ought to be considered as per the ITRs. Once the Tribunal has
accepted that increase in income is but natural, question does not
arise to refuse the income as per the latest income tax return filed.
In this regard, reference is required to be made to the decision of
the Hon'ble Supreme Court in the case of Nidhi Bhargava v.
National Insurance Co. Ltd. reported in 2025 SCC OnLine 872,
wherein the Hon'ble Supreme Court in paragraph 12 has observed
and held as under :-
"12. Just because on the date of the accident i.e., 12.08.2008, the
Return for the Assessment Year 2008-2009 had not been filed,
cannot disadvantage the appellants, for the reason that the period
for which the Return is to be submitted covers the period starting 1 st
of April, 2007 and ending 31st March, 2008. Thus, for obvious
reasons, the Return would be only for the period 01.04.2007 to
31.03.2008, and date of submission would be post-31.03.2008. No
income earned beyond 31.03.2008 would reflect in the Income Tax
Return for the Assessment Year 2008-2009. To reject the Return on
the sole ground of its submission after the date of accident alone, in
our considered view, cannot be legally sustained.
13. ... In K Ramya v. National Insurance Co. Ltd., 2022 SCC OnLine SC
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1338, after taking note of, inter alia, Ningamma v. United India
Insurance Co. Ltd., (2009) 13 SCC 710, the Court held that the '...
Motor Vehicles Act of 1988 is a beneficial and welfare legislation
that seeks to provide compensation as per the contemporaneous
position of an individual which is essentially forward-looking. Unlike
tortious liability, which is chiefly concerned with making up for the
past and reinstating a claimant to his original position, the
compensation under the Act is concerned with providing stability and
continuity in peoples' lives in the future."
Relying on the said decision, in the case of Sayar Ram vs. Ram
Kara rendered in SLP (Civil) No. 24501/2025, the Hon'ble
Supreme Court in paragraph 12 has observed and held as under:
"12. What flows from Nidhi Bhargava (supra) is that the Income Tax
Returns filed after the accident/death can also be taken into
consideration for calculation of income to award compensation.
However, having due regard for the Tribunal's well-placed doubts, in
so far as returns filed for the relevant year, we take a different
approach . In the instant case, it cannot be simply assumed that there
is no profit accruing from the business of the deceased at the time of
the accident. To adopt such a presumption would be contrary to the
settled principles guiding the assessment of compensation. Rather,
the returns fo r the preceding year or years must be taken as a
foundational benchmark, subject to careful judicial examination,
recognizing that business profits are seldom static and often exhibit a
progressive growth trajectory. The exercise thus calls for a fair and
reasonable assessment, grounded in available evidence, of the
financial benefits that the deceased would have justifiably earned
but for the untimely accident. In our considered view, in order to
award just and fair compensation, the annual income of the deceased
is re-assessed at Rs.3,50,000/- per annum."
14) Hence, in considered view of this Court, in view of the decision of
the Hon'ble Supreme Court in the case of Malarvizhi & Ors
(supra), the Tribunal has not committed any error in considering
the annual income as per last income tax returns.
15) So far as addition of 40% towards future prospects is concerned, in
view of the judgment of the Hon'ble Supreme Court in National
Insurance Company Ltd. v. Pranay Sethi, reported in 2017 ACJ
2700, and considering that the deceased was aged 24 years, such
addition is just and proper. As the deceased was unmarried,
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deduction of 1/2 towards personal expenses is in consonance with
Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr.,
reported in (2009) 6 SCC 121. The multiplier of 18 has also been
correctly applied.
16) Further, the Tribunal by relying on the judgment of Pranay Sethi
(supra) has awarded total Rs.30,000/- under the two conventional
heads, however, this Court is of the view that amount is required
to be reassessed as Rs.18,150/- towards loss of estate and
Rs.18,150/- towards funeral expenses. Therefore, the original
claimants are entitled for additional amount of Rs.6300/- (i.e.
Rs.18,150/- - Rs.15,000/- = Rs.3150/- towards loss of estate and
Rs.18,150/- - Rs.15,000/- = Rs.3150/- towards funeral expenses).
17) Further, in view of ratio laid down by the Hon'ble Supreme Court in
the case of Magma General Insurance Co. Ltd., Vs. Nanu Ram,
reported in (2018) 18 SCC 130 and Janabai Wd/o Dinkarrao
Ghorpade & Ors., Vs M/s ICICI Lambord Insurance Company
Ltd., reported in 2022 LiveLaw (SC) 666, the amount towards loss
of consortium is reassessed as Rs.96,800/- for 2 claimants.
18) As discussed above, the original claimants are entitled to get
compensation computed as under:-
Heads Awarded by the Reassessed by
Tribunal this Court
Future loss of 1,32,17,814/- 1,32,17,814/-
dependency
Loss of Estate 15,000/- 18,150/-
Funeral expenses 15,000/- 18,150/-
Loss of consortium 80,000/- 96,800/-
Total compensation 1,33,27,814/- 1,33,50,914/-
19) As Rs.1,33,27,814/- is already awarded by learned Tribunal, the
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original claimants are entitled to get additional amount of
Rs.23,000/- (Rs.1,33,50,914/- - Rs.1,33,27,814/-) with
proportionate costs and interest as awarded by the learned
Tribunal.
20) For the foregoing reasons, this Court is of the view that the
Tribunal has not committed any error in assessing the income of
the deceased or in recording a finding of contributory negligence
in causing the accident. Consequently, this Court does not deem it
fit to interfere with the judgment and award passed by the
Tribunal in Motor Accident Claim Petition No.52 of 2014, so far as
the aspects of income and contributory negligence are concerned.
Accordingly, the appeal fails and is hereby dismissed.
21) Cross-objection filed by the claimants is partly allowed. The
judgment and award dated 29.11.2021 passed by the learned
Motor Accident Claims Tribunal (Aux.), Rajkot, in Motor Accident
Claim Petition No.52 of 2014 stands modified to the aforesaid
extent, while the rest of the judgment and award remains
unaltered. Respondent No.2 is directed to deposit the additional
amount of Rs.23,000/- along with interest, as awarded by the
Tribunal, before the Tribunal within a period of four weeks from
the date of receipt of this order. The record and proceedings shall
be remitted to the concerned Tribunal forthwith.
(22) The Tribunal is directed to recover or deduct the deficit court fees
on enhanced amount and thereafter disburse the amount
accordingly. Award to be drawn accordingly.
(HASMUKH D. SUTHAR,J)
SUCHIT
