[Cites 6, Cited by 0]
Gujarat High Court
Makvana Hargovanbhai Tejabhai vs Kumbhar Prakash Somabhai on 27 January, 2026
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C/FA/3842/2025 JUDGMENT DATED: 27/01/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3842 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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MAKVANA HARGOVANBHAI TEJABHAI & ORS.
Versus
KUMBHAR PRAKASH SOMABHAI & ORS.
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1,2,3,4,5
CHETANKUMAR V DARJI(9309) for the Defendant(s) No. 6
MS DIMPLE A THAKER(6838) for the Defendant(s) No. 7
NOTICE SERVED for the Defendant(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 27/01/2026
ORAL JUDGMENT
Learned Advocate Mr. S. B. Parikh, states that he has
instructions to appear on behalf of the respondent no.5 and
thereby, seeks permission to file his Vakalatnama. The Registry is
directed to accept the Vakalatnama.
With consent of learned Advocates for respective parties the
present appeal is taken for final hearing.
1) Feeling aggrieved and dissatisfied with the judgment and award
dated 10.12.2021 passed by learned Motor Accident Claims
Tribunal (Auxi.), Mahesana (which shall hereinafter be referred to
as "the Tribunal" for short), in Motor Accident Claim Petition
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No.254 of 2018, the appellants - original claimants have preferred
the present appeal under Section 173 of the Motor Vehicles Act,
1988 (which shall hereinafter be referred to as "the Act" for short).
2) Heard learned Advocate Mr. Yogendra Thakore, for the appellants -
original Claimants, learned Advocate Mr. S. B. Parikh for the
respondent no.5 - insurance Company, learned Advocate Mr. C. V.
Darji, for respondent no.6 and learned Advocate Ms. D. A. Thaker
for respondent no.7 - Insurance Company. Perused the original
record and proceedings.
3) It is the case of the appellants that on 16.04.2018, the deceased
Amitkumar Hargovanbhai Makvana (who shall hereinafter be
referred to as "deceased") by sitting in Rikshaw bearing Reg.
No.GJ-02-VV-9290 was going from Palavasana cross road towards
village Boriyavi, the said rickshaw was going towards village
Boriyavi through signboard of village Mevad, near Government
tube-well, one Tractor bearing No.GJ-02-CL-2724, attached with
trolley bearing Reg. No.GRW-5896 came from opposite side in rash
and negligent manner and dashed with Rickshaw. Due to which
they sustained severe injuries on abdomen and face and taken to
Government Hospital where Doctor declared him dead. Therefore,
the appellants had filed MAC Petition seeking compensation,
wherein, the learned Tribunal after appreciating the evidence
produced on record has allowed the claim petition.
4) The learned Advocate for the appellants has submitted that the
learned Tribunal has committed error in considering the income of
the deceased as Rs.4,500/- whereas the deceased was earning
Rs.8,000/- per month by service in Vimal Dairy and agricultural
activities. He has further submitted that the learned Tribunal also
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erred in awarding only Rs.40,000/- towards loss of consortium.
Hence, he has requested to allow the present appeal.
5) Learned Advocates for the respective Insurance Companies have
submitted that the learned Tribunal has not committed any error in
appreciating the evidence produced on record and awarded just and
proper compensation to the appellants in absence of evidence and
material on record. They have further submitted that the deceased
was bachelor at the time of accident and hence ½ deduction
towards personal and living expenses of the deceased is required to
be considered and the married sisters of the deceased are not
entitled for any compensation under the conventional heads.
Hence, they have requested to dismiss the present appeal.
6) Having heard the learned Advocates for the parties and going
through the record it appears that the learned Tribunal has
considered the evidence on record and relied on the judgment in
the cases of Bimla Devi Vs. H.R.T.C, reported in AIR 2009 SC
2819, and Parmeshwari Devi Vs. Amir Chand, reported in
2011 (11) SCC 635, and appreciated the evidence based on
preponderance of probabilities. The claimant no.1 has tendered the
affidavit at Exhibit 24 wherein all the facts of the accident have
been narrated in the chief-examination and supported the claim
petition and relied on the complaint at Exhibit 37, panchnama at
Exhibit 38, inquest panchnama at Exhibit 39, PM Note at Exhibit 40
and charge-sheet at Exhibit 53. 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), that 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
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occurred on 16.04.2018 and during that time the deceased was
doing job at Vimal Dairy and also doing agricultural labour work
and used to earn Rs.8,000/-, whereas, the Tribunal has assessed
the income of the deceased as Rs.4,500/- per month as no
evidence is produced on record by the appellants, however, as per
the rate of minimum wages of the prevalent time the income of the
deceased is required to be enhanced and hence, the income of the
deceased is reassessed as Rs.8,400/- per month. Further, as the
deceased was aged 21 years at the time of accident on the basis of
which the learned Tribunal has considered future prospective
income as 40% and as the deceased was bachelor 1/2 deduction
towards personal and living expenses of the deceased and
multiplier of 18 were 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.
7) Therefore, recalculating the income of the deceased as Rs.8,400/-
and future prospect of 40% = Rs.3,360/- which comes to
Rs.11,760/- and 1/2 amount is required to be deducted towards
personal living expenses of the deceased which comes to
Rs.5,880/- and the net amount comes to Rs.5,880/-. In view of
above the amount under the head of loss of future dependency
income is required to be reassessed as Rs.5,880/- x 12 x 18 =
Rs.12,70,080/-. Therefore, the appellants are entitled to get
additional amount of Rs.5,89,680/- towards the head of loss of
future dependency.
8) Further, the learned Tribunal by relying on the judgment of
National Insurance Company Ltd. Vs. Pranay Sethi, reported
in 2017 ACJ 2700, has awarded total Rs.70,000/- under the three
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conventional heads, however, this Court is of the view that amount
is required to be reassessed as Rs.18,150/- towards loss of estate,
Rs.18,150/- towards funeral expenses. Therefore, the appellants -
original claimants are entitled for additional amount of Rs.6,300/-
(i.e. Rs.18,150/- - Rs.15,000/- = Rs.3,150/- towards loss of estate
and Rs.18,150/- - Rs.15,000/- = Rs.3,150/- towards funeral
expenses).
9) 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 learned Tribunal
has committed error in awarding only Rs.40,000/- towards loss of
consortium, however, in view of above judgments the appellant
nos.1 and 2 being parents of the deceased they are entitled for
Rs.48,400/- each towards filial consortium under the head of loss of
consortium, whereas, the appellant nos.3 to 5 being brother and
sisters of the deceased are not entitled for any amount towards loss
of consortium. Therefore, the amount towards loss of consortium is
reassessed as Rs.96,800/- (i.e. Rs.48,400/- X 2). Therefore, the
appellants are entitled for additional amount of Rs.56,800/- under
the head of loss of consortium.
10) As discussed above, the appellants - original claimants are entitled
to get compensation computed as under:
Heads Awarded by Reassessed by this Court
Tribunal
Loss of future Rs.6,80,400/- Rs.12,70,080/-
dependency including additional
amount of Rs.5,89,680/-
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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/-
Loss of consortium Rs.40,000/- Rs.96,800/-
including additional
amount of Rs.56,800/-
(Rs.48,400/- X 2)
Total compensation Rs.7,50,400/- Rs.14,03,180/-
including total additional
amount of Rs.6,52,780/-
11) In view of above, as the Tribunal has awarded total compensation
of Rs.7,50,400/-, however, as discussed above the appellants are
entitled to get additional amount of Rs.6,52,780/-
(Rs.14,03,180/- - Rs.7,50,400/-) with proportionate costs and
interest as awarded by the learned Tribunal.
12) So far negligence part is concerned, in First Appeal No.288 of 2022
preferred by the National Insurance Company Ltd., the findings qua
apportionment of the negligence to the extent of 80% of the driver
of the Tractor and Trolley and 20% of driver of Rickshaw have been
confirmed by the Co-ordinate Bench of this Court and the same
attained finality and the appeal was dismissed. Hence, no
interference on negligence part of offending vehicles is required.
13) Moreover, as present appeal was preferred belatedly, the appellants
had filed Civil Application No.3617 of 2025, wherein, vide order
dated 06.10.2025, the Co-ordinate Bench has been pleased to pass
order condoning the delay of 1194 days subject to the condition
that the claimants shall not be entitled for any interest, on the
enhanced amount of compensation for the delayed period, in case,
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the appeal for enhancement is allowed. Accordingly, the appellants
are not entitled for interest on the enhanced amount for aforesaid
period of delay.
14) Hence, present appeal is partly allowed. The judgment and award
dated 10.12.2021 passed by learned Motor Accident Claims
Tribunal (Aux.), Mahesana, in MAC Petition No.254 of 2018 stands
modified to the aforesaid extent. Rest of the judgment and award
remains unaltered. The respondent nos.5 and 7 - Insurance
Companies shall deposit the said additional amount of
Rs.6,52,780/- along with interest as per their respective ratio as
awarded by the Tribunal, before the Tribunal within a period of four
weeks from the date of receipt of this order. Record and
proceedings be remitted back to the concerned Tribunal forthwith.
15) The learned Tribunal is directed to recover or deduct the deficit
court fees on enhanced amount and thereafter disburse the amount
accordingly.
16) Award to be drawn accordingly.
(HASMUKH D. SUTHAR,J)
ANKIT JANSARI
