[Cites 7, Cited by 0]
Gujarat High Court
Vijaybhai Vikrambhai Sadmiya vs Narotambhai Narshibhai Kapdi on 20 January, 2026
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C/FA/3856/2025 JUDGMENT DATED: 20/01/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3856 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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VIJAYBHAI VIKRAMBHAI SADMIYA
Versus
NAROTAMBHAI NARSHIBHAI KAPDI & ANR.
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Appearance:
MR HEMAL SHAH(6960) for the Appellant(s) No. 1
ORTIS LAW OFFICES(12342) for the Appellant(s) No. 1
MR HIREN M MODI(3732) for the Defendant(s) No. 1
MR NAGESH SOOD for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 20/01/2026
ORAL JUDGMENT
ADMIT. With the consent of learned advocate appearing for
respective parties, present appeal is taken up for final hearing today.
[1.0] By way of present First Appeal under Section 173 of the Motor
Vehicles Act, 1988, the appellant herein - orignial claimant has
assailed the impugned judgment and award dated 19.10.2023 passed
by the learned Motor Accident Claims Tribunal (Special), at Rajkot (for
short "learned Tribunal") in Motor Accident Claim Petition
No.1473/2017, whereby the learned Tribunal has allowed the claim
petition however, held the claimant to be contributory negligent to
the extent of 30% and after deducting the amount of compensation
to that extent, learned Tribunal has awarded Rs.5,64,171/-
[Rs.8,05,958 - Rs.2,41,787 (30% of Rs.8,05,958)] in favor of the
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appellant - original claimant 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:
[2.1] On 23.08.2016 at about 6.00 p.m., while the appellant herein -
original claimant was riding Motorcycle No.GJ-04-AH-3893 with one
pillion rider namely Bharatbhai Charoliya in a moderate speed on the
side of the road and reached near the sign board of village Kadvasar
between Prachi-Kodinar, at that time, driver of Car No.GJ-12-CP-0107
came driving his car in rash and negligent manner with excessive
speed and dashed the motorcycle of the appellant pursuant to which
the appellant and pillion rider both sustained injuries and present
appellant sustained partial permanent disability. Therefore, the
appellant - original claimant filed MACP No.1473/2017 seeking
compensation of Rs.5,00,000/-.
[2.2] After considering the evidence produced on record by the
respective parties, learned Tribunal has been pleased to hold the
original opponent No.1 - driver of car to be 70% negligent and
appellant - motorcyclist to be 30% contributory negligent for the
accident and awarded compensation of Rs.8,05,958/- however, sliced
down the compensation by 30% towards contributory negligence of
the appellant - original claimant. Hence, present First Appeal is filed
by the appellant - original claimant challenging 30% contributory
negligence held on the part of the appellant as well as seeking
enhancement of the compensation.
[3.0] Learned advocate Mr. Hemal Shah appearing for the appellant
has submitted that the learned Tribunal has committed an error in
appreciating the evidence against the settled principle and legal
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position of law and in relying on rebuttable evidence on record qua
quantum. He has further submitted that the learned Tribunal has
committed an error in considering the contributory negligence of 30%
on the part of the appellant - motorcyclist and no witness has been
examined by the learned Tribunal and charge-sheet is filed against the
driver of the car and therefore, the learned Tribunal ought to have
considered the car driver to be sole negligent for the accident. He has
further submitted that the learned Tribunal has considered the
disability on lower side as claimant is engaged was engaged in physical
labour work and learned Tribunal has not properly considered the
income and learned Tribunal ought to have considered monthly
income of the claimant at Rs.9000/- and even future prospect is not
considered. Hence, he has requested to allow the present appeal.
[4.0] Learned advocate Mr. Hiren Modi appearing for the respondent
No.1 - original owner of the offending car has opposed the present
appeal and submitted that the learned Tribunal has not committed
any error in considering 30% contributory negligence on the part of
the motorcyclist as the accident has taken place due to head on
collision between the car and the motorcycle and claimant
motorcyclist could have avoided the accident by taking extra care and
therefore, the learned Tribunal has rightly held the appellant -
motorcyclist to be 30% contributory negligent for the accident
considering the size of vehicles and head on collision. So far as
quantum of compensation challenged by the appellant is concerned,
he has submitted that no any evidence is produced on record and
hence, minimum wages prevailing in the year 2016 is properly
assessed and hence, he has requested to dismiss the appeal.
[5.0] Learned advocate Mr. Nagesh Sood has tendered written
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submissions which is taken on record. He has supported the impugned
judgment and award passed by the learned Tribunal and submitted
that the learned Tribunal has rightly apportioned 30% contributory
negligence on the part of the appellant - motorcyclist as it has
emerged from the evidence on record that there was a head on
collision between the two vehicles and the road where the accident
occurred was sufficiently wide for two vehicles to pass each other
without accident. He has further submitted that based on just fair and
prudent legal principle, learned Tribunal has properly awarded the just
compensation and no interference is called for. In absence of any
evidence qua income of the appellant, minimum wages of the year
2016 is required to be considered and so far as functional disability is
concerned, learned Tribunal has properly appreciated the evidence
and considered 36.5% body as a whole as physical disability is not
having any effect on the earning capacity of the appellant and the
learned Tribunal after appreciating the evidence has properly
considered the actual impact on earning capacity of the appellant -
claimant and has rightly assessed the functional disablement at 36.5%.
Hence, he has requested to dismiss the present appeal.
[6.0] Having heard the learned advocate appearing for the respective
parties and going through the record, it appears that after perusing
the evidence tendered on record and the complaint (Exh.44),
panchnama (Exh.45) and oral evidence produced at Exhs.32 and 36 as
well as the decisions of the Hon'ble Supreme Court in the case of
Bimla Devi vs. H.R.S.T.C. reported in AIR 2009 SC 2819 and
Parmeshwari Devi vs. Amir Chand reported in (2011) 11 SCC 635,
wherein it is held that it is settled law that negligence is required to be
proved in claim petition under section 166 of the MV Act only on the
touchstone of the preponderance of probability and not beyond
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doubt and even as per the complaint, it emerges that the car and
motorcycle dashed with each other head on and therefore,
considering the size of respective vehicles, learned Tribunal has held
the driver of car to be 70% negligent and appellant - motorcyclist to
the 30% contributory negligent.
[6.1] Herein, involvement of vehicles and coverage of risk is not in
dispute and limited challenge is to the aspect of 30% contributory
negligence of the appellant as well as quantum of compensation.
However, after arguing for sometime, learned advocate for the
appellant, going through the reasons more particularly in para 15 of
the impugned judgment assigned by the learned Tribunal qua
contributory negligence on the part of the appellant has not pressed
the argument qua contributory negligence of the appellant and hence,
no futher discussion as regards 30% contributory negligence of the
appellant - motorcyclist is required and present appeal is now
required to be decided in narrow compass on the aspect of quantum
of compensation only.
[7.0] Perusing the evidence i.e. oral evidence produced at Exhs.32
and 36, medical bills (Exh.60), injury certificate of the appellant
(Exh.51), prima facie, it appears that the accident took place on
23.08.2016 and as the appellant was doing labour work, the learned
Tribunal considering the minimum wages of the year 2016 has
considered monthly income of Rs.7691/- but no future prospect is
considered 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 claimant was aged about 25
years at the time of accident, 40% increase in monthly income was
required to be added towards future prospects and therefore, future
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monthly income would come to Rs.10,767/- [Rs.7691 + Rs.3076 (40%
escalation)].
[7.1] Further, considering mutually agreed 36.5% disability body as a
whole of the appellant and applying multiplier of 18, 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 claimant was aged 25 years, the appellant - original
claimant would be entitled to Rs.8,48,880/- [Rs.3930/- (Rs.10,767/- x
36.5%) x 12 x 18] towards future loss of income.
[7.2] So far as compensation awarded under other heads is
concerned, no interference is called for as the learned Tribunal has
awarded just and proper compensation under other heads. Hence,
now the claimant is entitled to get the compensation as under:
Heads Awarded by Reassessed by this Court
Tribunal
Future loss of income Rs.6,06,312/- Rs.8,48,880/-
including additional amount of
Rs.2,42,568/-
Medical Expenses Rs.1,13,500/- Rs.1,13,500/-
NIL
Actual loss of income Rs.46,146/- Rs.46,146/-
NIL
Pain, shock and Rs.30,000/- Rs.30,000/-
suffering NIL
Special diet, attendant Rs.10,000/- Rs.10,000/-
charges and NIL
transportation
Total Compensation Rs.8,05,958/- Rs.10,48,526/-
including additional amount of
Rs.2,42,568/-
As discussed hereinabove, the appellant - motorcyclist has been
held 30% contributory negligent for the accident and therefore, the
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compensation to that extent is required to be sliced down and hence,
the appellant - original claimant is entitled to get compensation of
Rs.7,33,969/- [Rs.10,48,526 - Rs.3,14,557 (30% of Rs.10,48,526)]. To
that extent, the impugned judgment and award is required to be
modified.
[8.0] It is needless to say that the MV Act is a benevolent legislation
which has been framed with the object of providing relief to the
victims, or their families and there is no bar that compensation is
restricted up to the claim of the claimant and the High Court and
Tribunal have to award the compensation upto that extent. In this
regard reference is required to be made to the judgment passed by
the Hon'ble Supreme Court in case of Nagappa Vs Gurudayal Singh
and others, reported in (2003) 2 Supreme Court Cases 274, wherein it
has been observed that there is no restriction that compensation
could be awarded only upto the amount claimed by the claimant and
in an appropriate case, where from the evidence brought on record if
the Tribunal / Court considers that the claimant is entitled to get more
compensation than claimed, same can be awarded.
[9.0] In wake of aforesaid conspectus, First Appeal is allowed and
impugned judgment and award dated 19.10.2023 passed by the
learned Motor Accident Claims Tribunal (Special), at Rajkot in Motor
Accident Claim Petition No.1473/2017 is modified and it is held that
the appellant - original claimant is entitled to get Rs.7,33,969/- as
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.
[9.1] The Tribunal shall disburse the entire amount of compensation
(lying in the FDR and/or with the Tribunal including the enhanced
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amount of compensation), with accrued interest thereon, if any, to the
claimant, by account payee cheque / NEFT / RTGS, after proper
verification and after following due procedure.
[10.0] While making the payment, the Tribunal shall deduct the
courts fees, if not paid.
[11.0] 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
