[Cites 6, Cited by 0]
Gujarat High Court
Jahiben Panchabhai Makwana vs Naranbhai Masaribhai Daki on 27 February, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2222 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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JAHIBEN PANCHABHAI MAKWANA & ORS.
Versus
NARANBHAI MASARIBHAI DAKI & ORS.
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Appearance:
MR APURVA K JANI(7057) for the Appellant(s) No. 1,2,3,4,5,6,7
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 27/02/2026
JUDGMENT
[1.0] Feeling aggrieved by and dissatisfied with the impugned
judgment and award dated 09.12.2022 passed by learned Motor
Accident Claims Tribunal (Auxi.), Gir Somnath (hereinafter referred to
as "the Tribunal" for short) in Motor Accident Claim Petition
No.34/2021, the appellants - original claimants have preferred
present appeal under Section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as "the Act" for short).
[2.0] Heard Mr. Apurva K. Jani, learned Advocate for the appellants -
original claimants and Ms. Kirti Pathak, learned counsel for
respondent No.3.
[3.0] It is the case of the claimants that on 31.10.2021, while the
deceased Panchabhai Ukabhai Makwana was going towards Una for
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purchasing fertilizer by driving his Motorcycle bearing No.GJ-32-N-
3695 and reached at the place of accident, at that time, opponent
No.1 - driver of Truck No.GJ-11-Z-9228 came driving his truck with full
speed in rash and negligent manner and dashed with the motorcycle
of the deceased and caused the accident resulting into death of the
deceased. Therefore, the claim petition was filed by the original
claimants - legal heirs of the deceased to get compensation of
Rs.30,00,000/- from the opponents. After appreciating the evidence
produced on record, the learned Tribunal awarded compensation of
Rs.16,33,752/- along with cost and interest @ 9% p.a.
[4.0] The appeal is filed on the ground of contributory negligence of
the deceased held at 10% as well as on the ground of quantum and no
further issue qua liability is challenged. Learned counsel for the
claimants has argued that the deceased motorcyclist was not at all
negligent though his contributory negligence to the extent of 10% is
considered and that the Tribunal has erred in considering monthly
income of the deceased as Rs.7000/- on notional basis as he was doing
agriculture work and animal husbandry and earning Rs.30,000/- p.m.
Further, the Tribunal has also erred in not awarding proper
compensation under the head of consortium. Hence, he has prayed to
allow the appeal as prayed for.
[5.0] Learned counsel for the respondent No.3 - Insurance Company
has opposed the present appeal and submitted that, the Tribunal has
rightly awarded compensation in absence of any evidence of income
and adequate compensation is awarded under the head of loss of
consortium. Therefore, requested to dismiss the appeal.
[6.0] Having considered the submissions made by learned counsel for
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the parties, it appears that the appeal is filed only on the aspect of
quantum and liability is not challenged. The Insurance Company has
not filed any cross-objection. Hence, this appeal is required to be
decided on the aspect of quantum only. Alleged incident is not in
dispute. Involvement of the vehicle is also not in dispute. In order to
prove the claim, the claimant has filed an Affidavit at Exh:16, FIR at
Exh.19, Panchnama of scene of incident at Exh.34, Inquest
Panchanama at Exh.20 and PM report at Exh.21. After appreciating the
evidence produced on record, the Tribunal held the offending vehicle
sole negligent relying on the decisions of the Bimla Devi Vs. HRTC
reported in AIR 2009 SC 2819 and Parmeshwari Devi Vs. Amir
Chand, reported in 2011 (11) SCC 635. Further, perusing the spot
panchnama (Exh.34), it clearly transpires that the deceased
motorcyclist came from service road to the highway road without
taking proper care and if the deceased motorcyclist would have taken
extra care then the accident could have been avoided and therefore,
the deceased motorcyclist also committed breach of Rules 8 and 9 of
the Rules and Regulations of the road and therefore, the learned
Tribunal has rightly held the deceased motorcyclist to be 10%
contributory negligent for the accident. Hence, so far as negligence
part is concerned, this Court is of considered view that no error has
been committed by the learned Tribunal, which does not call for any
interference.
[7.0] Further, the age of the deceased is 35 years as per the Aadhar
Card of the deceased produced at Exh.26 and PM report which is at
Exh.21 from which it reveals that the deceased was 34 years 10
months as on the date of accident, the deceased was aged 01.01.1987
and the accident took place on 31.10.2021.
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[7.1] As per the law laid down by the Hon'ble Supreme Court in the
case of Govind Yadav Vs. National Insurance Co. Ltd., reported in
2012(1) TAC 1 (SC), if no proof of income is produced on the record,
then Tribunal has to consider prevalent minimum wages in absence of
evidence of monthly income of the deceased. In the present case, the
accident occurred in the year 2021 and during that time, the deceased
was doing agriculture work and as per the minimum wages, the
minimum income is required to be considered as Rs.9,050/-. Hence,
the income of the deceased is reassessed as Rs.9,050/- per month.
Further, the Tribunal has rightly considered future prospective income
of the deceased at 40%. As the deceased was married, 1/5 deduction
as personal expenditure and living of the deceased and multiplier of
16 were rightly considered by the learned Tribunal as per the
judgment of the Apex Court in the case of Sarla Verma (Smt) & Ors.
Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121] which are
just and proper.
[8.0] Therefore, calculating the income of the deceased as Rs.9,050/-
and future prospect of 40% = Rs.3,620/- which comes to Rs.12,670/-
and 1/5th amount is required to be deducted as personal expenditure
and living of the deceased which comes to Rs.2534/- and the net
amount comes to Rs.10,136/-. In view of above, the amount under the
head of loss of future dependency is required to be reassessed as
Rs.10,136 x 12 months x 16 multiplier = Rs.19,46,112/-. Therefore, the
appellant is entitled to get additional amount of Rs.4,40,832/- under
the head of future loss of dependency.
[9.0] Further, the Tribunal by relying on the judgment of National
Insurance Company Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC
680 has awarded total Rs.30,000/- under the two conventional heads,
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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.
[10.0] 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 Tribunal has committed error
in awarding Rs.2,80,000/- towards loss of consortium. However, in
view of above judgments, the appellants are entitled for Rs.3,38,800/-
(Rs.48,400 x 7) towards loss of consortium for 7 dependents.
Therefore, the amount towards loss of consortium is reassessed as
Rs.3,38,800/- for 7 claimants).
[11.0] As discussed above, the appellants - original claimants are
entitled to get compensation computed as under:-
Heads Awarded by the Reassessed by
Tribunal this Court
Future loss of dependency Rs.15,05,280/- Rs.19,46,112/-
Loss of Estate 15,000/- 18,150/-
Funeral expenses 15,000/- 18,150/-
Loss of consortium Rs.2,80,000/- 3,38,800/-
Total compensation Rs.18,15,280/- Rs.23,21,212/-
Deceased's own Rs.1,81,528/- Rs.2,32,121/-
negligence @ 10%
Net Compensation Rs.16,33,752/- Rs.20,89,091/-
Therefore, the compensation of Rs.16,33,752/- awarded by the
learned Tribunal is on lower side, for the reasons recorded
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hereinabove, which is reassessed at Rs.20,89,091/- after deducting
10% towards contributory negligence of the deceased i.e.
Rs.2,32,121/- from Rs.23,21,212/- and therefore, the appellants -
original claimants are entitled to additional compensation of
Rs.4,55,339/- (Rs.20,89,091 - Rs.16,33,752) with proportionate costs
and interest as awarded by the learned Tribunal.
[12.0] Hence, present appeal is partly allowed. The impugned
judgment and award dated 09.12.2022 passed by learned Motor
Accident Claims Tribunal (Auxi.), Gir Somnath in Motor Accident Claim
Petition No.34/2021 stands modified to the aforesaid extent. Rest of
the judgment and award remains unaltered. It is directed that
respondent No.3 shall deposit reassessed compensation of
Rs.20,89,091/- along with interest as awarded by the Tribunal, before
the Tribunal within a period of four weeks from the date of receipt of
this judgment. Record and proceedings be remitted back to the
concerned Tribunal forthwith.
[13.0] The learned 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.
Sd/-
(HASMUKH D. SUTHAR, J.)
Ajay
