[Cites 5, Cited by 0]
Gujarat High Court
Iffco Tokio General Insurance Company vs Pushpaben Pusharam Mistri (Luhar) ... on 5 February, 2026
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C/FA/716/2018 JUDGMENT DATED: 05/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 716 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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IFFCO TOKIO GENERAL INSURANCE COMPANY
Versus
PUSHPABEN PUSHARAM MISTRI (LUHAR) WD/O. PURHARAM
GEVARCHAND (LUHAR) & ORS.
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Appearance:
MR KRUNAL R SAKSENA(5915) for the Appellant(s) No. 1
MS DISHA N NANAVATY(2957) for the Defendant(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 05/02/2026
ORAL JUDGMENT
1. Captioned appeal is filed against the impugned judgment
and award dated 29.09.2017 passed by the Motor Accident
Claims Tribunal (Aux), City Civil Court, Ahmedabad in Motor
Accident Claim Petition No.1044 of 2007, whereby the learned
Tribunal had partly allowed the claim petition and awarded a
sum of Rs.9,73,200/- as a compensation along with the interest
at the rate of 9% per annum from the date of filing of the claim
petition till its realization.
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2. The succinct facts leading to file the captioned appeal is
that on 24.07.2007 at about 8:30 hours in the night, the
deceased Pusharam Gevarchand Mistri (Luhar) while he was
going from Blind Men's Association Cross Roads towards Helmet
Circle opposite to the G.M.D.C. ground by riding his luna
bearing registration No.GJ-A-KK-7018 on the correct side of the
road at very moderate speed by following the traffic rules and
when he reached at the place of accident, the respondent No.6-
herein came in rash and negligent manner by driving the auto
rickshaw bearing registration No.GJ-A-AV-371 and suddenly
applied the brake. Resultantly, the said auto-rickshaw turned
turtle and fell onto the deceased, who was passing beside it.
Resutantly, the said deceased sustained grievous injuries and he
admitted to SAL Hospital where he received the treatment as
indoor patient from 24.07.2007 to 26.07.2007 and thereafter he
was shifted to V. S. Hospital where he succumbed to the injuries
on 30.07.2007. It is also the case of the original
claimants/respondent Nos.1 to 5- herein that at the time of
accident, the deceased was gainfully engaged in the work of
making furniture on contract basis from private client as well as
from the shop and office owners thereby he was earning a sum of
Rs.11,000/- to Rs.12,000/- per month. It has also been averred
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that during the peak season of business he used to earn an
additional amount of Rs.3,000/- to Rs.3,500/- per month. It has
also been averred that at the time of accident, the deceased was
aged about 47 years, therefore, they filed claim petition for
seeking the compensation of Rs.18,49,953/-.
3. On being served, the opponent No.1 & 2/respondent No.6
& 7- herein had chosen not to appear before this Court. The
driver of the offending auto-rickshaw was deleted from the array
of the parties and the owner was proceeded ex-parte, however,
the respondent No.3/appellant- herein had filed the written
statement thereby denying all the averments made in the claim
petition and prayed for rejection of the claim petition. In addition
to the usual defences, the Insurance Company has also
contended that the driver of the auto-rickshaw was not holding a
valid and effective driving license at the time of the accident.
Therefore, the Insurance Company is not liable to satisfy the
award.
4. Having considered the pleadings, evidence and
submissions made by the learned advocates for the respective
parties, the learned Tribunal had partly allowed the claim
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petition and awarded a sum of Rs.9,73,200/- as a compensation
along with the interest at the rate of 9% per annum from the
date of filing of the claim petition till realization.
5. Being aggrieved and dissatisfied with the impugned
judgment and award, the appellant- Insurance Company has
challenged the impugned judgment and award on the ground of
quantum as well as its liability to satisfy the award.
6. Heard learned advocates for the parties.
7. Mr. Krunal R. Saksena, learned advocate appearing on
behalf of the appellant-Insurance Company, vehemently
submitted that at the time of accident, the driver of the offending
auto rickshaw was not holding valid driving license. He further
submitted that in order to prove its defence, the Insurance
Company has examined Hiteshbhai Amthabhai Desai Junior
Clerk of RTO office at Ahmedabad at Exh-76. He proved the
extract of driving license of the driver of the offending auto
rickshaw at Exh-77. He further submitted that from the oral
testimony as well as the extract of driving license at Exh-77, it is
evident that at the time of accident, the driver of the offending
auto rickshaw was not holding the valid driving license. Hence,
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the liability cannot be fastened upon the Insurance Company to
satisfy the award. However, the learned Tribunal has not
considered the oral and documentary evidence on record and
fastened the liability. Hence, the finding returned by the learned
Tribunal on the point of license is not sustainable and the same
is liable to be set aside and Insurance Company is required to be
exonerated from satisfying the award.
8. So far as the quantum is concerned, Mr. Krunal R.
Saksena, learned advocate for the appellant-Insurance
Company, vehemently submitted that the claimants could not
prove the income of the deceased on record by leading any
cogent evidence. In absence of any cogent evidence of income,
the learned Tribunal could have considered the minimum wages
prevalent at the time of accident. He further submitted that the
accident had occurred in the year 2007 and at the relevant point
of time, the minimum wages as notified by the State Government
was of Rs.2,800/-. However, the learned Tribunal in absence of
any cogent proof of income had determined the income of the
deceased as Rs.5,000/-. He further submitted that at the time of
accident, the deceased was aged about 47 years, therefore, the
learned Tribunal could have added the 25% of the monthly
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income on account of future prospects of the deceased in
accordance to the ratio of the judgment of Apex Court rendered
in the case of Sarla Varma & Ors Vs. Delhi Transport Corp. &
Anr. reported in 2009 (06) SCC 121 and National Insurance
Company Ltd. Vs. Pranay Shethi, reported in (2017) 16 SCC
680. However, instead of adding 25%, the learned Tribunal had
added 30% on account of the future prospects of the deceased.
9. Learned advocate for the appellant further submitted that
it is evident from the memo of party that the deceased was
survived by 5 legal representatives, therefore, 1/4 of the income
is required to be deducted on account of personal expenses of
the deceased. However, the learned Tribunal had deducted 1/5
of the monthly income on account of the personal expenses of
the deceased. In support of his contention, learned advocate for
the appellant has placed reliance upon the judgment of Apex
Court rendered in the case of Sarla Varma & Ors(supra) and
Pranay Shethi(supra). He further submitted that the learned
Tribunal had also awarded the excessive compensation under
the head of funeral expenses, loss of love, affection and estate.
10. He further submitted that so far as the compensation
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awarded under the head of loss of consortium, medical
expenses, special diet, attendant charges and transportation and
pain, shock and suffering are not under challenge. He further
submitted that the impugned judgment and award is to be
modified to the aforesaid extent and the captioned appeal
deserves to be allowed.
11. On the other hand, Ms. Disha N. Nanavaty, learned
advocate appearing on behalf of the original
claimants/respondent Nos.1 to 5, vehemently submitted that so
far as the findings returned by the learned Tribunal on the point
of license is not required to be interfered as the learned Tribunal
has followed the law laid down by the Hon'ble Supreme Court
rendered in the case of National Insurance Company Limited
Versus Swaran Singh, reported in (2004) 3 SCC 297. She
further submitted that the appellant/Insurance Company could
not prove on record that the expiry of the license of the driver of
the offending auto rickshaw was within the knowledge of the
owner of the auto rickshaw and despite knowledge the owner of
the auto rickshaw had handed over the auto rickshaw to the
said driver to ply the offending auto rickshaw. She further
submitted that the Insurance Company could not prove the
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breach of policy on record, therefore, the learned Tribunal has
not committed any error in returning the findings on the issue of
driving license. She further submitted that having no license or
invalid license or fake license is no defence and the Insurance
Company to avoid its liability to satisfy the award. In support of
her contention, learned advocate for the original
claimants/respondent Nos.1 to 5 has placed reliance upon the
judgment of Apex Court rendered in the case of Pappu and Ors
Versus Vinod Kumar Lamba and Anr, reported in (2018) 3 SCC
12. So far as the quantum is concerned, learned advocate for
the respondent Nos.1 to 5 vehemently submitted that the
claimants had proved the income of the deceased on record by
way of leading the oral evidence. She further submitted that the
claimants have examined one Bansilal Pratapramji Pavar (at
Exh-62) with whom the deceased was working as a sub-
contractor. She further submitted that the said witness has
proved on record that the deceased was earning a sum of
Rs.10,000/- to Rs.12,000/- per month. She further submitted
that the claimants have also proved the certificate of income
issued by Bansilal Pratapramji Pavar. She further submitted that
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after considering the oral and documentary evidence on record,
the learned Tribunal had considered the income of the deceased
at Rs.5,000/-. She further submitted that there is no infirmity in
the finding returned by the learned Tribunal on the point of
income. She further submitted that the learned Tribunal has
rightly considered the addition of monthly income on account of
future prospects and deduction of income on account of personal
expenses of the deceased. She further submitted that the learned
Tribunal had awarded the meager amount of compensation
under the head of loss of consortium. She further submitted that
at the time of accident, the deceased was survived by 5 legal
representatives, however, the learned Tribunal had awarded a
meager amount of Rs.30,000/- only. She further submitted that
all the legal representatives are entitled to get the compensation
under the head of loss of consortium in view of the ratio laid
down by the Hon'ble Supreme Court in the case of Magma
General Insurance Company Limited Vs Nanu Ram @ Chuhru
Ram reported in 2018 (18) SCC 130. Therefore, the
compensation awarded under the head of loss of consortium is
required to be enhanced.
13. In rebuttal Mr. Krunal R. Saksena, learned advocate for the
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appellant-Insurance Company, submitted that the original
claimants have not filed any appeal for enhancement. Therefore,
the arguments advanced on behalf of the original claimants for
enhancement of compensation under the head of loss of
consortium is not sustainable.
14. Having considered the submissions of the learned
advocates for the parties and having gone through the record,
the appellant- Insurance Company can challenge its liability to
satisfy the award as well as the quantum of compensation
awarded by the learned Tribunal. So far as the submissions of
the learned advocate for the appellant regarding the driving
license is concerned, it is evident from the record that the license
could not be renewed and at the time of accident, the driver of
the auto rickshaw was not holding the valid driving license as
the same had already been expired. The said fact was proved by
Hiteshbhai Amthabhai Desai in his deposition at Exh-76. His
version was also corroborated by the extract of driving license
proved at Exh-77. Thus, it has been proved on record by the
Insurance Company that at the time of accident, the driver of the
auto rickshaw was not holding the valid driving license to drive
the offending vehicle. Merely, the driver of the offending vehicle
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was not holding the valid driving license at the time of accident,
is not sufficient to avoid the liability to satisfy the award. The
Insurance Company has not only to prove the breach of policy
but also to prove that the expiry of driving license was within the
knowledge of the owner of the auto rickshaw and despite this
fact he handed over the said auto rickshaw to the driver to ply
the same on the road. Thus, this fact has not been proved by the
Insurance Company on record. At this juncture, it would be
profitable to refer the judgment of Apex Court relied by the
learned advocate for the original claimants in the case of Pappu
and Ors(supra) wherein the Apex Court in para-12 observed as
under:-
"12. This Court in the case of National Insurance Co.
Ltd. Vs Swaran Singh, (2004) 3 SCC 297 has noticed
the defences available to the Insurance Company
under Section 149(2)(a)(ii) of the Motor Vehicles Act,
1988. The Insurance Company is entitled to take a
defence that the offending vehicle was driven by an
unauthorised person or the person driving the vehicle
did not have a valid driving licence. The onus would
shift on the Insurance Company only after the owner
of the offending vehicle pleads and proves the basic
facts within his knowledge that the driver of the
offending vehicle was authorised by him to drive the
vehicle and was having a valid driving licence at the
relevant time."
15. In the case on hand, the Insurance Company could not
prove on record that the factum of expiry of driving license was
within the knowledge of the owner of the auto rickshaw.
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Therefore, the learned Tribunal has not committed any error in
holding that the Insurance Company cannot avoid its liability to
satisfy the award, therefore, the findings returned by the learned
Tribunal on the point of driving license is upheld.
16. So far as the quantum is concerned, the original claimants
pleaded in the claim petition that the deceased was engaged in
the work of making the furniture and he was earning a sum of
Rs.10,000/- to Rs.12,000/- per month at the time of accident.
The claimant No.1 has also filed the affidavit examination-in-
chief at Exh-58 along with the line of pleadings. In order to prove
the income, the original claimants have also examined Bansilal
Pratapramji Pavar at Exh-62. He also proved that at the time of
accident, the deceased was working as a sub-contractor with
him and he was earning a sum of Rs.10,000/- to Rs.12,000/-
per month. After evaluating the oral as well as the documentary
evidence, the learned Tribunal had determined the income of the
deceased as Rs.5,000/- per month. In my considered view, the
learned Tribunal has not committed any error in assessing the
income of the deceased as Rs.5,000/- per month from the work
of carpenter in the year 2007. The learned Tribunal had added
30% to the notional monthly income on account of future
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prospects of the deceased. It is not in dispute that at the time of
accident, the deceased was aged about 47 years, therefore, in
view of the ratio laid down by the Apex Court in the case of
Pranay Shethi(supra), learned Tribunal ought to have added
25% of the monthly income on account of future prospects of the
deceased. Thus, after adding 25% to the monthly income, the
monthly income would come to Rs.6,250/- i.e. (5000 + 25% of
5000).
17. It is on record that the deceased was survived by 5
dependents i.e. his widow and 4 children, therefore, in view of
the ratio laid down by the Apex Court in the case of Pranay
Shethi(supra), the learned Tribunal ought to have deducted 1/4
of the income on account of personal expenses of the deceased.
However, the learned Tribunal had deducted 1/5 instead of 1/4.
Therefore, after deducting 1/4, the monthly income for
calculating the loss of dependency would come to Rs.4688/-
(rounded off) i.e. (6250 - 1/4 of 6250). Thus, applying the
multiplier of 13 as per age of the deceased, the future loss of
dependency would come to Rs.7,31,328/- i.e. (4688 x 12 x 13).
18. The learned Tribunal had awarded a sum of Rs.25,000/-
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under the head of funeral expenses. In view of the ratio laid
down by the Apex Court in the case of Pranay Shethi(supra), the
compensation awarded under this head is reduced to
Rs.18,150/-.
19. The learned Tribunal had awarded a sum of Rs.40,000/-
under the head of loss of love, affection and estate. Considering
the ratio of judgment of Apex Court in the case of Pranay
Shethi(supra), the compensation awarded under this head is
reduced to Rs.18,150/-.
20. So far as the compensation awarded under the head of
medical expenses, special diet, transportation and attendant
charges, pain, shock and suffering not challenged by the original
claimants. Hence, the compensation awarded under these heads
require no interference and the same is maintained.
21. So far as the compensation awarded under the head of loss
of consortium is concerned, the learned Tribunal had awarded a
sum of Rs.30,000/- . It is apparent from the memo of party that
the deceased was survived by his widow and four children. In
view of the ratio laid down by the Hon'ble Supreme Court in the
case of Nanu Ram @ Chuhru Ram(supra), all the dependents
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are entitled to get the compensation under the head of loss of
consortium. Therefore, a sum of Rs.2,42,000/- i.e. (48400 x 5) is
awarded under the head of loss of consortium.
22. So far as the contention of learned advocate for the
appellant- Insurance Company is concerned, that in absence of
any appeal or cross-objection on behalf of the original claimants,
the compensation awarded under this head cannot be enhanced,
the issue is no more res-intergra and the same has been settled
by the Apex Court in the case of Surekha W/o Rajendra
Nakhate and Ors Vs Santosh S/o Namdeo Jadhav and Ors,
reported in (2021) 16 SCC 467, wherein the Apex Court
observed in para-2 as under:-
"2. By now, it is well-settled that in the matter of
insurance claim compensation in reference to the
motor accident, the court should not take
hypertechnical approach and ensure that just
compensation is awarded to the affected person or the
claimants."
23. Thus, in view of the ratio laid dow by the Apex Court in the
case of Surekha W/o Rajendra Nakhate and Ors(supra), the
contention of learned advocate for the appellant- Insurance
Company is not sustainable.
24. Thus, in view of the above discussions, the
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claimants/appellants shall be entitled for the following amount
of compensation under the following heads:-
Particulars Amount (Rs.)
Future Loss of Dependency 7,31,328/-
Funeral Expenses 18,150/-
Medical Expenses 47,000/-
Special Diet, Transportation and Attendant 10,000/-
Charges
Loss of Consortium 2,42,000/-
Loss of Estate 18,150/-
Pain, Shock and Sufferings 10,000/-
Total 10,76,628/-
Less: compensation already awarded 9,73,200/-
Enhancement 1,03,428/-
25. In view of the above discussions, the original claimants
shall be entitled for the total compensation of Rs.10,76,628/-.
The learned Tribunal had already awarded a sum of
Rs.9,73,200/-. Therefore, the claimants shall be entitled for the
additional compensation of Rs.1,03,428/- i. e. (Rs.10,76,628/- -
(less) Rs.9,73,200/-). The learned Tribunal has awarded the
interest at the rate of 9% per annum, therefore, the claimants
shall also be entitled for the interest at the rate of 9% on the
additional amount of compensation.
26. In view of the above discussions, the captioned appeal
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stands allowed partly. The impugned judgment and award is
modified accordingly.
27. The Insurance Company is directed to deposit the
additional amount of compensation along with the interest at the
rate of 9% per annum from the date of filing of the claim petition
till its realization, within a period of 6 weeks from today.
28. Upon depositing of the said amount, the learned Tribunal
shall disburse the amount to the original claimants, after
deducting the deficit court fees, if any, after due verification.
29. Statutory amount, if any, lying/deposited with the Registry
of this Court, the same be transmitted to the concerned learned
Tribunal forthwith.
30. R & P, if any, be sent back to the concerned learned
Tribunal forthwith. No order as to costs.
(MOOL CHAND TYAGI, J)
CDP
