[Cites 12, Cited by 0]
Gujarat High Court
Shitalben Shaileshbhai Bera vs Prabhulal Jagjivan Pithadiya on 15 January, 2026
NEUTRAL CITATION
C/FA/2095/2022 JUDGMENT DATED: 15/01/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2095 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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SHITALBEN SHAILESHBHAI BERA & ORS.
Versus
PRABHULAL JAGJIVAN PITHADIYA & ORS.
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Appearance:
MR HIREN M MODI(3732) for the appellants(s) No. 1,2,3,4
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 15/01/2026
ORAL JUDGMENT
[1.0] Present First Appeal under Section 173 of the Motor Vehicles
Act, 1988 (for short "MV Act") is filed by the appellants - original
claimants challenging the impugned judgment and award dated
24.10.2018 passed by the learned Motor Accident Claims Tribunal
(Auxi.), at Keshod, District Junagadh (for short "learned Tribunal") in
Motor Accident Claim Petition No.547 of 2017, whereby the learned
Tribunal was pleased to partly allow the claim petition and awarded
compensation of Rs.25,06,598/- to the appellants - original claimants.
[2.0] The brief facts leading to filing of present appeal is as follows:
[2.1] On 20.05.2013, the deceased Shaileshbhai Bera (hereinafter
referred to as "deceased") and one another person were going on
motorcycle No.GJ-11-BB-6907 of the deceased from Keshod to
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Khorasa for attending marriage function and the deceased was driving
his motorcycle with moderate speed on correct side of the road and
when he reached at the place of accident, original opponent No.1 -
driver of Wagon-R Car No.GJ-10-AC-4688 came driving his car with full
speed in rash and negligent manner on wrong side of the road and
collided head on with the motorcycle due to which the deceased as
well as the pillion rider of the motorcycle died on the spot. The
appellants herein - original claimants i.e. legal heirs and
representatives of the deceased filed MACP No.547/2017 seeking
compensation of Rs.53,29,000/-.
[2.2] After considering the evidence produced and adduced, the
learned Tribunal held the driver of Wagon-R Car to be 80% negligent
and deceased motorcyclist to be 20% contributory negligent for the
accident and was pleased to award Rs.25,06,598/- after deducting 20%
towards contributory negligence of the deceased motorcyclist from
total compensation of Rs.31,33,248/- and the appellants - original
claimants have filed the present First Appeal challenging 20%
contributory negligence held on the part of deceased motorcyclist as
well as for enhancement of compensation.
[3.0] Though served, respondent No.2 has chosen not to appear
before this Court and respondent No.1 is unserved as expired.
[4.0] Learned advocate Mr. Hiren Modi appearing for the appellants -
original claimants has submitted that the learned Tribunal has
committed an error in considering the deceased motorcyclist to be
20% contributory negligent for the accident and in not considering
the income-tax returns which are produced and duly proved by the
claimants and awarded compensation on lesser side. Hence, he has
requested to allow the present appeal.
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[5.0] Learned advocate Mr. Rathin Raval appearing for the
respondent No.3 - insurance company has opposed the present
appeal on the ground that in the present case the deceased
motorcylist was self-negligent and in a cognate matter, his
contributory negligence was considered at 20% which is not
challenged and hence, on hypothetical ground, now to challenge the
issue of contributory negligence is not permissible. He has further
submitted that the learned Tribunal has properly appreciated the
evidence of original opponent No.2 - owner of offending vehicle who
was eye-witness examined by the insurance company and rebutted
the presumption while the claimant who has tendered the evidence
was not an eye-witness. He has further submitted that income tax
return on higher side income is filed subsequent to the accident.
Hence, he has requested to atleast consider the mean of income
stated in various income tax returns but not to straightway accept the
return filed subsequent to the accident. Hence, he has requested to
dismiss the first appeal.
[6.0] Having heard learned advocate for the appellants - original
claimants and learned advocate for the respondent No.3 - insurance
company and perusing the record, it appears that the learned Tribunal
has considered the evidence produced and adduced by both the
parties including the affidavit of the claimant No.3 (Exh.23), complaint
(Exh.25) and panchnama of scene of accident (Exh.26) and in view of
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 doubt. It further
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appears that arising out of the accident, two different claim petitions
were filed and insurance company has satisfied two awards while
challenging the impugned judgment and award passed in MACP
No.547/2017, present appeal is filed.
[6.1] The claimant No.3 has led his evidence at Exh.23, FIR is
produced at Exh.25 and panchnama is produced at Exh.26. Coverage
of insurance and factum of accident as well as involvement of two
vehicles is not in dispute and hence, this Court is not discussing the
said aspects any further. Learned Tribunal has appreciated the
evidence produced on record qua negligence wherein claimant No.3
examined at Exh.23 has submitted that he has not seen the accident
and he is not the eye-witness and is a hearsay witness and he has
further admitted that at the time of accident, work of widening of
road was going on and diversion was given. He has further denied that
he is not knowing as to whether at the time of overtaking Chhota
Hathi, the deceased motorcyclist was negligent and dashed with the
car. Another witness namely Vinod Vachhani is examined at Exh.36. He
has stated about the negligence of driver of car and that vehicles
collided head on. The said witness has further stated that the car was
coming from opposite direction on wrong side near the divider. In the
cross-examination, said witness has admitted that he was riding his
motorcycle behind the offending car and when both the vehicles
involved in accident collided, he could not see the position of vehicles.
He has admitted that due to work of widening of road traffic was
passing one-way and one side was closed. Against the said evidence,
insurance company has also examined opponent No.2, who is driver of
offending Wagon-R car, who is also an eye-witness of accident and
against whom charge-sheet is filed. He has stated that his vehicle was
going near the divider and there being one-way traffic, he was driving
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his car carefully and motorcycle came from opposite direction and
collided head on with his car though he applied brakes of the car.
Considering the aforesaid fact, as there was one-way traffic and
diverson due to work of widening of road going on at the place of
accident, driver of both the vehicles were required to take extra care
and caution and even though the driver of offending car applied
brakes and tried to control the vehicle, the motorcyclist dashed with
the car. Considering the aforesaid fact, this is not a case where merely
based on preponderence of probability, drawing adverse inference the
learned Tribunal has fixed the contributory negligence on the part of
the deceased motorcyclist. Further, considering the evidence of eye-
witness - opponent No.2, who stepped into the witness box and even
another witness examined on behalf of the complainant, the learned
Tribunal has rightly held the deceased motorcyclist to be 20%
contributory negligent for the accident. Hence, learned Tribunal has
not committed any error in coming to conclusion that the driver of
offending Wagon-R car was 80% negligent and deceased motorcyclist
was 20% contributory negligent for the accident. Even otherwise, said
finding is accepted in another group of claim petition.
[7.0] So far as quantum of compensation is concerned, in order to
prove the income of the deceased, insurance company has examined
Rekhaben Bhaskarbhai Joshi at Exh.73 who brought the details of
income tax returns filed by the deceased and has stated that the
deceased had filed income tax returns for the years 2011-12, 2012-13
and 2013-14 and that these three returns were filed during one year.
In the respective income tax returns of the deceased is shown as
Rs.1,51,982, Rs.1,82,386 and Rs.2,24,236/- respectively for the
assessment years 2011-12, 2012-13 and 2013-14. It is also stated by
the said witness that income tax return for the year 2013-14 is filed on
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25.07.2013 i.e. two month after the accident in question. The learned
Tribunal has accepted the fact that after filing of return increase in
the income is but natural but the learned Tribunal for considering the
annual income of the deceased has considered income of Rs.1,82,386/-
as mentioned in income tax return for the year 2012-13 but in the
considered opinion of this Court, the learned Tribunal has committed
an error in not considering the annual income of the deceased as
Rs.2,24,236/- as per the income tax return filed on 25.07.2013 which
was filed only two months after the accident as it was filed within the
permissible statutory time period and once the learned Tribunal has
accepted that increase in income is but natural, question does not
arise to refuse the income as per the latest income tax return filed. In
this regard, reference is required to be made to the decision of the
Hon'ble Supreme Court in the case of Nidhi Bhargava v. National
Insurance Co. Ltd. reported in 2025 SCC OnLine 872, wherein the
Hon'ble Supreme Court in paragraph 12 has observed and held as
under:
"12. Just because on the date of the accident i.e., 12.08.2008, the Return
for the Assessment Year 2008-2009 had not been filed, cannot
disadvantage the appellants, for the reason that the period for which the
Return is to be submitted covers the period starting 1 st of April, 2007
and ending 31st March, 2008. Thus, for obvious reasons, the Return
would be only for the period 01.04.2007 to 31.03.2008, and date of
submission would be post-31.03.2008. No income earned beyond
31.03.2008 would reflect in the Income Tax Return for the Assessment
Year 2008-2009. To reject the Return on the sole ground of its
submission after the date of accident alone, in our considered view,
cannot be legally sustained.
13. ... In K Ramya v. National Insurance Co. Ltd., 2022 SCC OnLine SC
1338, after taking note of, inter alia, Ningamma v. United India Insurance
Co. Ltd., (2009) 13 SCC 710, the Court held that the '...Motor Vehicles
Act of 1988 is a beneficial and welfare legislation that seeks to provide
compensation as per the contemporaneous position of an individual
which is essentially forward-looking. Unlike tortious liability, which is
chiefly concerned with making up for the past and reinstating a claimant
to his original position, the compensation under the Act is concerned
with providing stability and continuity in peoples' lives in the future. ...'
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Relying on the said decision, in the case of Sayar Ram vs. Ram
Kara rendered in SLP (Civil) No. 24501/2025, the Hon'ble Supreme
Court in paragraph 12 has observed and held as under:
"12. What flows from Nidhi Bhargava (supra) is that the Income Tax
Returns filed after the accident/death can also be taken into
consideration for calculation of income to award compensation.
However, having due regard for the Tribunal's well-placed doubts, in so
far as returns filed for the relevant year, we take a different approach. In
the instant case, it cannot be simply assumed that there is no profit
accruing from the business of the deceased at the time of the accident.
To adopt such a presumption would be contrary to the settled principles
guiding the assessment of compensation. Rather, the returns for the
preceding year or years must be taken as a foundational benchmark,
subject to careful judicial examination, recognizing that business profits
are seldom static and often exhibit a progressive growth trajectory. The
exercise thus calls for a fair and reasonable assessment, grounded in
available evidence, of the financial benefits that the deceased would
have justifiably earned but for the untimely accident. In our considered
view, in order to award just and fair compensation, the annual income of
the deceased is re-assessed at Rs.3,50,000/- per annum."
Hence, in considered view of this Court, in view of the decision
of the Hon'ble Supreme Court in the case of Malarvizhi & Ors vs.
United India Insurance Company Limited & Anr. reported in 2020
ACJ SC 526, annual income of the deceased is required to be assessed
at Rs.2,24,236/-. Upto that extent, the learned Tribunal has committed
an error.
[7.1] The deceased at the time of accident was in the age group of 31
to 35 years and therefore, in view of decision of Hon'ble Supreme
Court in the case of National Insurance Company Ltd. Vs. Pranay
Shethi reported in (2017) 16 SCC 680, 40% i.e. Rs.89,694/- (40% of
Rs.2,24,236/-) towards future prospect is required to be added and
thus, the amount of future annual income of the deceased would
come to Rs.3,13,930/- (Rs.2,24,236 + Rs.89,694). As the deceased was
having four dependants, Rs.78,482/- (1/4) is required to be deducted
towards personal expenses and therefore, yearly loss of dependency
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would come to Rs.2,35,448/- and as the deceased was admittedly
aged around 31 years, as per the decision of the Hon'ble Apex Court in
the case of Sarla Verma (Smt) & Ors. Vs. Delhi Transport
Corporation & Anr. reported in (2009)6 SCC 121 and National
Insurance Company Ltd. Vs. Pranay Sethi reported in 2017 ACJ
2700, learned Tribunal has considered multiplier of 16 which in the
considered opinion of this Court is just and proper and does not call
for any interference. In view of above, the amount under the head of
future loss of dependency is required to be reassessed as
Rs.2,35,448/- x 16 = Rs.37,67,168/-.
[7.2] Further, the learned Tribunal by relying on the judgment of
Hon'ble Supreme Court in the case of Pranay Sethi has awarded
Rs.15,000/- each under the two conventional heads of loss of estate
and funeral expenditures which in considered opinion of this Court is
required to be reassessed as Rs.18,150/- each. Further, the learned
Tribunal has awarded Rs.40,000/- towards loss of consortium which in
considered opinion of this Court is required to be reassessed as
Rs.1,93,600/- (Rs.48,400 x 4) in view of the decisions of 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.
[8.0] As discussed above, the appellants - original claimants are
entitled to get compensation computed as under:
Heads Amount Reassessed by this Court
awarded by the
Tribunal
Future loss of Rs.30,63,248/- Rs.37,67,168/-
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dependancy including additional
amount of Rs.7,03,920/-
Loss of Estate Rs.15,000/- Rs.18,150/-
including additional
amount of Rs.3,150/-
Funeral Expenses Rs.18,000/- Rs.18,150/-
including additional
amount of Rs.3,150/-
Loss of Rs.40,000/- Rs.1,93,600/-
including additional
Consortium
amount of Rs.1,53,600/-
Total Rs.31,33,248/- Rs.39,97,068/-
including additional
Compensation
amount of Rs.8,63,820/-
The finding of the learned Tribunal as regards 20% contributory
negligence on the part of deceased motorcyclist is upheld by this
Court in wake of the discussion made hereinabove and therefore, the
compensation reassessed by this Court is required to be sliced down
by Rs.7,99,414/- [20% towards contributory negligence of the
deceased motorcycle) and therefore, the appellants - original
claimants are entitled to get reassessed compensation of
Rs.31,97,654/- and therefore, the impugned judgment and award
passed by the learned Tribunal is modified to the aforesaid extent.
[9.0] In wake of aforesaid conspectus, present First Appeal is partly
allowed. The respondent No.3 - National Insurance Company Limited
is directed to deposit reassessed amount of compensation of
Rs.31,97,654/- alongwith accrued interest as awarded by the learned
Tribunal, with the learned Tribunal within a period of FOUR WEEKS
from the date of receipt of the present judgment. The Impugned
judgment and award dated 24.10.2018 passed by the learned Motor
Accident Claims Tribunal (Auxi.), at Keshod, District Junagadh in Motor
Accident Claim Petition No.547 of 2017 is modified to the aforesaid
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extent and rest of the impugned judgment and award remains
unaltered.
[10.0] After the aforesaid amount of reassessed compensation is
deposited by the insurance company, learned Tribunal is directed to
disburse the amount of compensation with accrued interest thereon,
if any, to the original claimants, by account payee cheque / NEFT /
RTGS, after proper verification and after following due procedure.
[11.0] While making the payment, the Tribunal shall deduct the
courts fees, if not paid.
[12.0] Record and proceedings, if any, be sent back to the
concerned Tribunal, forthwith.
Sd/-
(HASMUKH D. SUTHAR, J.)
Ajay
