[Cites 8, Cited by 0]
Gujarat High Court
Komalben Jiteshbhai Baraiya vs Proprietor Of Solanki Generator ... on 5 February, 2026
NEUTRAL CITATION
C/FA/1129/2023 JUDGMENT DATED: 05/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1129 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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KOMALBEN JITESHBHAI BARAIYA & ORS.
Versus
PROPRIETOR OF SOLANKI GENERATOR SERVICES GITABEN SURESHBHAI
SOLANKI & ANR.
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Appearance:
MR NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3
MS DIMPLE A THAKER(6838) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 05/02/2026
ORAL JUDGMENT
[1.0] By way of present First Appeal under Section 173 of the
Motor Vehicles Act, 1988, the appellants herein - orignial claimants
have assailed the impugned judgment and award dated 05.01.2022
passed by the learned Motor Accident Claims Tribunal (Auxi.), at
Bhavnagar (for short "learned Tribunal") in Motor Accident Claim
Petition No.122/2019, whereby the learned Tribunal has partly
allowed the claim petition and awarded Rs.6,30,000/- in favor of the
appellants - original claimants with interest at the rate of 9% per
annum from the date of claim petition.
[2.0] The brief facts leading to filing of present appeal are as
follows:
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[2.1] On 14.09.2015 at about 3.00 p.m., the deceased Jiteshbhai @
Jitubhai Batukbhai Baraiya (hereinafter referred to as "deceased")
was travelling in a Generator Van bearing registration No.GJ-04-AP-
257 as a cleaner cum labourer and was returning from Nasik to
Bhavnagar and said vehicle was driven by one Mahavirsinh
Chhanubha Sarvaiya and when the said van reached at the place of
accident, driver of van who was driving the van in full speed and in
rash and negligent manner lost control over the steering as result
of which the vehicle went into valley and the driver of the van as
well as deceased both died. Therefore, the appellants - original
claimants - legal heirs of the deceased filed MACP No.122/2019
seeking compensation.
[2.2] After considering the evidence produced on record by the
respective parties, learned Tribunal has been pleased to hold the
driver of Generator Van to be solely negligent for the accident and
awarded compensation of Rs.6,30,000/- however, being aggrieved
with the meager amount of compensation, the appellants - original
claimants have filed the present appeal.
[3.0] Though served, respondent No.1 has chosen not to appear
before this Court.
[4.0] Learned advocate Mr. Nishit Bhalodi appearing for the
appellants has submitted that the learned Tribunal has committed
an error in not considering proper income of the deceased and
merely based on presumption the learned Tribunal has considered
income of thd deceased only at Rs.4000/- per month though at the
time of accident the deceased was having driving license of heavy
vehicle and was also serving as driver and having additional income
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and deceased was also having commercial vehicles in his name and
monthly income of the deceased ought to have been considered at
Rs.15,000/- to Rs.20,000/-. In this regard, he has relied on the
decision of the Hon'ble Supreme Court of India in the case of
Sushila vs. Ram Swaroop reported in 2023 ACJ 2028 as well as oral
judgment of coordinate Bench of this Court in First Appeal No.5313
of 2019 rendered on 25.10.2021 and submitted that the learned
Tribunal has not properly considered the income and has not
appreciated the evidence. He has further submitted that the
learned Tribunal has committed an error in not awarding proper
compensation under the head of loss of consortium as there were
three dependents. He has further argued that even future
prospects of the deceased is considered only at 25%. Hence, he has
requested to allow the present appeal.
[5.0] Learned advocate Ms. Dimple Thaker for respondent No.2 -
insurance company has opposed the present appeal on the ground
that at the time of accident the deceased was not driver and said
version is subsequently brought and infact the deceased was
serving as a cleaner and in absence of any evidence the learned
Tribunal has not committed any error in considering the income of
the deceased at Rs.4000/- per month. Even, complaint is filed
belatedly and claim petition was also filed after a delay of four
years. She has further submitted that the accident took place on
14.09.2015. She has further argued that no evidence is produced
before the learned Tribunal to show that the deceased was owning
any truck or commercial vehicle and reliance on the decision of
Hon'ble Supreme Court in the case of Sushila (Supra) and Galiben
Vikrambhai Pagi (Supra) of this Court, which are distinguishable on
facts, cannot be relied blindly and learned Tribunal has properly and
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hence, no interference is required. Hence, she has requested to
dismiss the present appeal.
[6.0] Since the present appeal challenges only the quantum of
compensation and involvement of vehicle and factum of death of
deceased and coverage of risk is not in dispute, present appeal is
decided in narrow compass.
[7.0] Having heard the learned advocate appearing for the
respective parties and going through the evidence as well as the
record and proceeding, it appears that in order to prove the claim
petition the learned Tribunal has considered the evidence of
claimant No.1 produced at Exh.24, complaint (Exh.25) and
panchnama of scene of accident (Exh.26). The claimant No.1 has
stated in her evidence that the deceased was serving as a cleaner
cum labourer and driver in the offending vehicle and was earning
Rs.8000/- to Rs.10,000/- per month and in addition the deceased
during his leisure time was working in Kirti Nursery and used to earn
additional Rs.8000/- to Rs.10,000/- per month. She has further
stated that thus the total monthly income of the deceased at the
time of accident was Rs.20,000/- to Rs.25,000/- but the claimants
have failed to produce or lead any iota of evidence in that regard
and even no substantial evidence was found by the learned Tribunal
which can prove that the deceased was doing gardening work at
Kirti Nursery. Hence, in absence of any material, based on guess
work, learned Tribunal has considered monthly income of the
deceased at Rs.4000/- considering minimum wages prevailing in the
year 2015 i.e. when the accident took place. Perusing the record, it
appears that there was no evidence lead before the learned
Tribunal to prove that the deceased was owning any commercial
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truck or vehicle and therefore, the authority relied on by the
learned advocate for the appellants on the case of Sushila (Supra)
is not helpful more particularly in view of the fact that in the cited
authority the facts were distinguishable as in the case of Sushila
(Supra), sufficient evidence was tendered on record to show that
the deceased himself was serving as a driver of 18 Wheel truck
trailer and it was established that the owner of the said heavy
vehicle was paying Rs.23,500/- per month including bhattha to the
deceased of the said case and considering aforesaid fact, the
Hon'ble Supreme Court assessed monthly income of the deceased
at Rs.20,000/-. However, in the case on hand, no such income proof
is produced on record and no any witness has been examined to
subtantiate the said claim of the claimants. Not only that, proof
with regard to ownership of any commercial vehicle by the
deceased is also not produced on record and therefore, in absence
of any such evidence, authority relied on by the learned advocate
for the appellants on the case of Sushila (Supra) would not avail any
assistance to the appellants. Even, in the case of Galiben
Vikrambhai Pagi (Supra), the deceased himself was the owner of
the truck and hence, his income was assessed at Rs.10,000/- per
month. Thus, even the facts in the case of Galiben Vikrambhai Pagi
(Supra) are distinguishable with the facts of the case on hand.
[7.1] In view of above, this Court is of considered view that in
absence of any evidence with regard to income of the deceased as
claimed and in view of the decision of Hon'ble Supreme Court in the
case of Govind Yadav v. New India Insurance Company Ltd.
[(2011)10 SCC 683] and Chandra @ Chanda @ Chandraram vs.
Mukesh Kumar Yadav reported in (2022)1 SCC 198, minimum
wages prevailing in the year 2015 for skilled person i.e. Rs.7,644/-
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per month is required to be assessed. The said income of minimum
wage is rounded off to Rs.8000/- per month to arrive at just and
proper compensation. The PAN Card of the deceased is produced at
Exh.31 wherein birth date of deceased is shown as 22.05.1973 and
hence, on the date of accident i.e. on 14.09.2015, the deceased was
aged 42 years and therefore, in view of the decision of the Hon'ble
Supreme Court in the case of National Insurance Company Ltd.
Vs. Pranay Shethi reported in (2017) 16 SCC 680, as the deceased
was aged about 42 years at the time of accident, 25% increase in
monthly income is required to be added towards future prospects
and therefore, future monthly loss of dependency of deceased is
required to be reassessed at Rs.10,000/- [Rs.8000 + Rs.2000 (25%
escalation)].
[7.2] Further, as the deceased was aged 42 years at the time of
accident and married and having three dependents, Rs.3,333/- (1/3
of Rs.10,000) is required to be deducted towards personal
expenses and therefore, monthly loss of dependency would come
to Rs.6,667/- (Rs.10,000 - Rs.3333) and yearly loss of dependency
would come to Rs.80,004/ (Rs.6667 x 12) and in view of decision of
Hon'ble Supreme Court in the case of Smt. Sarla Verma & Ors. vs.
Delhi Transport Corporation & Anr. reported in 2009 ACJ 1298, as
the deceased claimant was aged 42 years, multiplier of 14 is rightly
applied by the Tribunal and therefore, the appellants - original
claimants would be entitled to Rs.11,20,056/- [Rs.80,004/- x 14]
towards future loss of dependency.
[7.3] 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
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Ghorpade & Ors. vs. M/s. ICICI Lambord Insurance Company Ltd.
reported in 2022 LiveLaw (SC) 666, the learned Tribunal has
committed error in awarding only Rs.40,000/- towards loss of
consortium, however, in view of above judgments the appellants -
original claimants being legal heirs of the deceased are entitled for
Rs.48,400/- each towards the head of loss of consortium. Therefore,
the amount towards loss of consortium is reassessed as
Rs.1,45,200/- (Rs.48,400/- x 3).
[7.4] Further, in view of 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.18,150/- each towards loss of
estate and funeral expenses.
[8.0] Hence, now the appellants - original claimants are entitled to
get the compensation as under:
Heads Awarded by Reassessed by this Court
Tribunal
Future loss of Rs.5,60,000/- Rs.11,20,056/-
dependency including additional amount
of Rs.5,60,056/-
Loss of Consortium Rs.40,000/- Rs.1,45,200/-
(Rs.48,400 x 3)
including additional amount
of Rs.1,05,2000/-
Loss of Estate Rs.15,000/- Rs.18,150/-
including additional amount
of Rs.3,150/-
Funeral Expenses Rs.15,000/- Rs.18,150/-
including additional amount
of Rs.3,150/-
Total Compensation Rs.6,30,000/- Rs.13,01,556/-
including additional amount
of Rs.6,71,556/-
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[9.0] So far as liability part is concerned, learned advocate for the
insurance company has submitted that the claim petition was filed
belatedly after a delay of four years from the date of accident. It is
needless to say that prior to amendment in the MV Act, there was
no limitation to file MACP and merely because claim petition is filed
belatedly, is not a ground to refuse compensation to the claimants
towards the claim arising from motor vehicle accident. Even
otherwise, the learned Tribunal has awarded the interest from the
date of filing of claim petition.
[10.0] So far as argument canvassed by the learned advocate
for the respondent No.2 - insurance company that the deceased
was not driving the vehicle and was travelling as an unauthorized
passenger in the offending vehicle is concerned, in the complaint
(Exh.25) it is clearly stated that driver of generator van was
negligent. The opponent No.1 i.e. Proprietor of Solanki Generator
Services appeared before the learned Tribunal and had filed written
statement (Exh.21) wherein she has admitted that the deceased
was working with opponent No.1 as a cleaner cum labourer and
driver and was being paid Rs.6,000/- to Rs.7,000/- towards monthly
salary and driving license of the deceased is produced on record at
Exh.32. She has also stated that as the involved vehicle was
generator van, for the purpose of driving on long run, two drivers
were hired by opponent No.1 so that each driver can drive the
vehicle alternatively and while another driver can have rest. Even, in
the insurance policy also, name of insured is shown as Solanki
Generator Services and considering the driving license of the
deceased, the learned Tribunal has come to conclusion that there is
no reason to disbelieve the say of the claimants that the deceased
was travelling as a cleaner in the offending vehicle. However,
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learned advocate for the insurance company failed to prove the
fact that the deceased was travelling as unauthorized passenger
more particularly in light of the written statement submitted by
opponent No.1 at Exh.21 and therefore, the defence raised by the
insurance company that the deceased at the time of accident was
travelling as unauthorized passenger in absence of any
independent evidence to that effect, is not acceptable. In
considered opinion of this Court, the learned Tribunal has properly
appreciated the evidence on record and rightly saddled the
insurance company with the liability to pay compensation to the
appellants - original claimants.
[11.0] In wake of aforesaid conspectus, First Appeal is partly
allowed and impugned judgment and award dated 05.01.2022
passed by the learned Motor Accident Claims Tribunal (Auxi.), at
Bhavnagar in Motor Accident Claim Petition No.122/2019 is
modified and it is held that the appellants - original claimants are
entitled to get Rs.13,01,556/- as reassessed compensation from the
respondent No.2 - insurance company alongwith accrued interest
at the rate of 9% per annum within a period of FOUR WEEKS from
the date of receipt of this judgment.
[11.1] The Tribunal shall disburse the entire amount of
reassessed compensation alongwith with accrued interest thereon,
if any, to the claimants, by account payee cheque / NEFT / RTGS,
after proper verification strictly as per the apportionment made by
the learned Tribunal and after following due procedure and as per
the apportionment made by the learned Tribunal.
[12.0] While making the payment, the Tribunal shall deduct
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the courts fees, if not paid.
[13.0] Record and proceedings, if any, be sent back to the
concerned Tribunal, forthwith.
Pending civil application, if any, stands disposed of.
Sd/-
(HASMUKH D. SUTHAR, J.)
Ajay
