[Cites 8, Cited by 0]
Gujarat High Court
Balabhai Devabhai Parmar Charoliya vs Vijaybhai Bachubhai Dodiya on 16 January, 2026
NEUTRAL CITATION
C/FA/2162/2022 JUDGMENT DATED: 16/01/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2162 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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BALABHAI DEVABHAI PARMAR CHAROLIYA & ANR.
Versus
VIJAYBHAI BACHUBHAI DODIYA & ORS.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2
MS E.SHAILAJA(2671) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 16/01/2026
ORAL JUDGMENT
1) Feeling aggrieved and dissatisfied with the judgment and award
dated 01.01.2020 passed by learned Motor Accident Claims
Tribunal (Auxi.), Bhavnagar (which shall hereinafter be referred to
as "the Tribunal" for short), in Motor Accident Claim Petition
No.305 of 2016, 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 Mr. N. A. Bhalodi, learned Advocate for the appellants -
original Claimants and Ms. E. Shailaja, learned Advocate for the
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respondent - Insurance Company. Perused the original record and
proceedings.
3) It is the case of the appellants that on 16.08.2016, deceased
Jayshriben (who shall hereinafter be referred to as "deceased")
was walking in her side of the road and when she reached on
Budhel Mamsa Highway Road, the opponent no.1 came driving
Truck bearing Reg. No.GJ-4-U-9682, in rash and negligent manner
and lost control over steering and eventually dashed with the
deceased and caused her fatal injuries. A complaint being I-C.R.
No.99 of 2016, was registered with Vartej Police Station. 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 Mr. N. A. Bhalodi, for the appellants - original
claimants has submitted that the learned Tribunal has committed
error by not considering the income of the deceased as per the rate
of minimum wages of prevalent time. He has further submitted that
the Tribunal has also committed error by not awarding any amount
towards loss of consortium to the appellants. Hence, he has
requested to allow the present appeal.
5) The learned Advocate Ms. E. Shailaja, for the respondent -
Insurance Company has opposed the present appeal on the ground
that the deceased was minor at the time of accident and hence the
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learned Tribunal has properly considered her income on notional
basis and no interference is required to call for. Hence, she has
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 FIR at Exhibit 25, panchnama at Exhibit
26 and PM Report at Exhibit 33. The involvement of the vehicle,
negligence and coverage of the insurance policy are not in dispute.
As challenge is given only qua income and consortium hence the
appeal is required to be decided in narrow compass. The learned
Tribunal has considered notional income, however, as per the ratio
laid down by the Hon'ble Apex Court in the case of Kajal Vs.
Jagdish Chand, reported in (2020) 4 SCC 413 and Baby Sakshi
Greola Vs. Manzoor Ahmed Simon and Anr, reported in 2024
SCC OnLine SC 3692, and Hitesh Nagjibhai Patel Vs Bababhai
Nagjibhai Rabari & Anr., Neutral Citation - 2025 INSC 1070, it
has been clarified that when the Tribunal or the High Court in
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appeal, is concerned with the case involving a child having suffered
injury or passed away, the calculation of loss of income necessarily
has to be made on the matric of minimum wages payable to a
skilled worker in the respective State at the relevant point of time.
Considering the aforesaid fact in the case on hand the learned
Tribunal has considered the notional income of the deceased child
at Rs.15,000/- per annum and the Insurance Company is also failed
to perform obligation and responsibility as party to point out
applicable minimum wages endorsed by the Government. In view of
above at the relevant point of time the rate as per minimum wages
was Rs.7,691/-, hence, the income of the deceased is reassessed
as Rs.7,700/- per month. Further, as the deceased was aged 16
years at the time of accident the learned Tribunal has considered
future prospective income as 40% and as the deceased was
bachelor ½ 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] and National Insurance Company Ltd.
Vs. Pranay Sethi, reported in 2017 ACJ 2700, which are just and
proper.
7) Therefore, recalculating the income of the deceased as Rs.7,700/-
and future prospect of 40% = Rs.3,080/- which comes to to
Rs.10,780/- and ½ amount is required to be deducted as personal
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expenditure and living of the deceased which comes to Rs.5,390/-
and the net amount comes to Rs.5,390/-. In view of above the
amount under the head of loss of income is required to be
reassessed as Rs.5,390/- x 12 x 18 = Rs.11,64,240/-. Therefore,
the appellants are entitled to get additional amount of
Rs.9,75,240/- towards loss of income.
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.30,000/- under the two
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
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, the learned Tribunal has committed gross error by not
awarding any amount to the appellants towards loss of consortium.
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 appellants have lost
their minor child in an accident caused great shock and agony to
the appellants and the greatest agony for a parent is to lose their
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child during their lifetime, hence, in view of above judgments this
Court is of opinion that filial consortium is the right of appellants
and hence the appellants being parents of the deceased are entitled
for Rs.48,400/- each towards the head of loss of consortium and
accordingly amount of Rs.96,800/- (i.e. Rs.48,400/- X 2) is
awarded towards loss of consortium to the appellants.
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 income Rs.1,89,000/- Rs.11,64,240/-
including additional
amount of Rs.9,75,240/-
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 NIL Rs.96,800/-
including additional
amount of Rs.96,800/-
(Rs.48,400/- X 2)
Total compensation Rs.2,19,000/- Rs.12,97,340/-
including total additional
amount of Rs.10,78,340/-
11) In view of above, as the Tribunal has awarded total compensation
of Rs.2,19,000/-, however, as discussed above the appellants are
entitled to get additional amount of Rs.10,78,340/-
(Rs.12,97,340/- - Rs.2,19,000/-) with proportionate costs and
interest as awarded by the learned Tribunal.
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12) The Hon'ble Supreme Court in case of Nagappa Vs Gurudayal
Singh and others, reported in (2003) 2 Supreme Court Cases
274, has observed that there is no restriction that compensation
could be awarded only up to the amount claimed by the claimant.
In an appropriate case, it appears from the evidence brought on
record then the Tribunal / Court can award more compensation
than claimed.
13) Hence, present appeal is allowed. The judgment and award dated
01.01.2020 passed by learned Motor Accident Claims Tribunal
(Aux.), Bhavnagar in MAC Petition No.305 of 2016 stands modified
to the aforesaid extent. Rest of the judgment and award remains
unaltered. The respondent no.3 - Insurance Company shall deposit
the said additional amount of Rs.10,78,340/- along with interest
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.
14) The learned Tribunal is directed to recover or deduct the deficit
court fees on enhanced amount and thereafter disburse the amount
accordingly.
15) Award to be drawn accordingly.
(HASMUKH D. SUTHAR,J)
ANKIT JANSARI
