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Gujarat High Court
Oriental Insurance Company Ltd vs Nooriben Wd/O Sakirbhai Mansuri - Legal ... on 1 May, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2370 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
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ORIENTAL INSURANCE COMPANY LTD
Versus
NOORIBEN WD/O SAKIRBHAI MANSURI - LEGAL HEIRS OF SAKIRBHAI
KARIMBHAI MANSURI & ORS.
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MR AMRISH K PANDYA(3219) for the Defendant(s) No. 1,2,3
RULE SERVED for the Defendant(s) No. 4,5
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 01/05/2026
ORAL JUDGMENT
1. The present appeal is filed at the instance of the
Insurance Company under Section 173 of the Motor
Vehicles Act, 1988 (for short "the Act"), being aggrieved and
dissatisfied with the judgment and award dated 05.08.2016,
passed by the learned Motor Accident Claims Tribunal
(Aux), Vadodara in MACP No. 1171 of 2007.
2. By the said impugned judgment and award the
Tribunal has partly allowed the claim petition preferred by
the original claimants under Section 166 of the Act, 1988
holding them entitled to recover a sum of Rs. 8,57,120/-
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with interest at the rate of 9% from the date of filing of the
claim petition till its actual realisation with proportionate
cost, from the original opponents jointly and severally.
Hence, the present appeal at the instance of the Insurance
Company, challenging the impugned judgment and award
on the count of negligence, quantum of compensation being
determined on higher side and the liability of Insurance
company being erroneously fixed.
3. Considering the ground raised in the appeal memo and
the submissions made by learned advocate-appellant
Insurance company, this Court vide order dated
23.11.2016, had admitted the appeal. In the interim
application for stay preferred by the applicant-appellant
Insurance Company, this Court had on condition of deposit
of entire award amount with the concerned Tribunal, had
stayed the impugned judgment and award pending the
appeal. This Court had issued further directions to release
30% of such deposited awarded amount in favour of the
original claimants subject to due verification and the
remaining 70% amount was directed to be invested in a
fixed deposit scheme in any nationalised bank. The interest
to be accrued on such fixed deposit were permitted to be
paid to the claimants. The fixed deposit receipts were made
subject to outcome of the present appeal.
4. Learned advocate Mr. Palak Thakkar appearing for the
appellant Insurance company has assailed the impugned
judgment and award by submitting that the Tribunal
committed grave error in not entertaining the plea of
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contributory negligence raised by the Insurance Company.
The attention of this Court was invited to the findings and
reasons assigned by the Tribunal. It was submitted that the
Tribunal failed to appreciate the fact that admittedly it was
a case of head on collision. He has further submitted that
even though driver of the tempo was not examined,
however, considering the panchnama of the place of
accident it can be inferred that the deceased had also
contributed to the occurrence of the accident. Considering
the fact that it was head on collision, the Tribunal ought to
have held the deceased equally negligent towards the
occurrence of accident.
4.1 On the quantum of compensation, learned advocate
had submitted that the Tribunal has fixed the notional
income of the deceased as Rs. 4000/-. The attention of this
Court was invited to the fact that the deceased was earning
his livelihood by doing masonry work and in absence of any
documentary proof of income being produced on record in
the peculiar facts of the case, the Tribunal ought to have
followed the standard rates of minimum wages notified by
the State Government for the purpose of determination of
income of the deceased.
4.2 Learned advocate had invited my attention to the
standard rates of minimum wages prevailing during the
time of accident between i.e 1 st April 2007 to 30th
September, 2007 which in case of skilled workman was Rs.
2,800/-. He has further submitted that considering the
subsequent law laid down by the Hon'ble Supreme Court in
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the case of National Insurance Company Vs. Pranay
Sethi reported in (2017) 16 SCC 680, the prospective rise
of the income is required to be determined by giving
addition of 25% rise to the aforesaid income.
4.3 Considering the fact that there were three dependents
in the family of the deceased including the widow and their
two children, the Tribunal has rightly applied the deduction
of 1/3rd towards personal and living expenses of the
deceased. The Tribunal has rightly determined the age of
the deceased as 41 years at the time of accident. It was
submitted that the school leaving certificate has been
produced on record wherein the date of the birth of the
deceased indicated is 5th June 1966 whereas the accident
had taken place on 22.05.2007.
4.4 Learned advocate has, therefore, submitted that the
Tribunal had rightly applied the multiplier of 14. Having
submitted so, learned advocate had further contended that
the dependency loss is required to be fixed as Rs.
3,91,944/-. He has, therefore, urged this Court to allow the
appeal and to reduce the quantum of compensation under
the head of dependency loss.
4.5 Learned advocate had further submitted that even loss
of consortium is awarded on higher side, considering the
settled legal position, the widow of the deceased would be
entitled to loss of spousal consortium for an amount of Rs.
48,400/-. Similarly, the both children would be entitled to
amount of Rs. 48,400/- towards loss of parental
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consortium. As regards other conventional heads that is
loss of estate and funeral expenses are concerned the same
is also required to be revisited and are to be fixed as Rs.
18,150/-.
5. Lastly learned advocate had invited my attention to the
findings and reasons assigned by the Tribunal on the issue
of driving license. It was submitted that the insured vehicle
is a three wheel tempo which is treated as transport vehicle.
The driving license produced on record suggest that the
driver of the insured vehicle was holding LMV license. In
absence of any endorsement to drive transport vehicle, the
driver was not authorised to drive the insured vehicle.
Despite aforesaid facts have transpired on record, the
Tribunal has refused to entertain their plea of exoneration.
Learned advocate has therefore, submitted that the appeal
is required to be entertained on all grounds and the
impugned judgment and award is required to be quashed
and set aside.
6. Learned advocate Mr. Amrish K. Pandya appearing for
the respondent No. 1 to 3 original claimants has vehemently
objected to the aforesaid submissions made by learned
advocate for the appellant-Insurance Company. At the
outset learned advocate has invited my attention to the
judgment of Hon'ble Supreme Court in the case of M/s
Bajaj Allianz General Insurance Co. Ltd. Rambha Devi
and Ors. Reported in 2025(3) SCC 95. Referring to the
aforesaid judgment learned advocate has submitted that the
operation of the transport vehicle by a driver holding a
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license for light motor vehicle class that is under Section
10(2)(d) for vehicles with a gross vehicle weight under 7500
kg, without additional authorisation is permissible. In view
of the aforesaid principle, even in absence of any
endorsement to drive transport vehicle, the driver holding
license of light motor vehicle itself was sufficient and
therefore, the driver was authorised to ply three wheel
tempo. The attention of this Court was invited to the finding
and reasons assigned by the Tribunal on the issue of
liability, learned advocate has submitted that the appeal is
required to be dismissed in view of the aforesaid decision of
the Hon'ble Supreme Court.
6.1 On the issue of negligence, learned advocate had relied
upon the findings and reasons assigned by the Tribunal as
recorded in para 10. It was submitted that the Tribunal
upon appreciation of evidence in the nature of the FIR,
panchnama as well as the deposition of eyewitness namely
Javed Ghulam Hussain Mansuri (Exh. 23), has arrived at a
finding that the offending vehicle three wheel tempo had in
fact encroached on the wrong side of the road which had
resulted into accident. It was pointed from the evidence of
eyewitness Javed Ghulam Hussain Mansuri (Exh. 23), that
on fateful day. he was on his way heading ahead of the
tempo and had seen the driver of the tempo overtaking his
vehicle which had hit the motorcycle coming from the
opposite direction. With such material on record, no error
can be found with the finding of the Tribunal holding the
driver of the offending vehicle three wheel tempo solely
negligent towards occurrence of accident. He has therefore,
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submitted that the Tribunal has rightly not entertained the
plea of the appellant Insurance Company of contributory
negligence.
6.2 On the issue of quantum of compensation, learned
advocate has placed heavy reliance upon the finding and
reasons assigned by the Tribunal. The attention of the Court
was invited to the evidence of the widow of the deceased
whose examination in chief affidavit has been produced on
record at Exh. 20. Placing reliance upon the aforesaid
evidence, learned advocate has submitted that the Tribunal
has rightly determined the notional income of the deceased
as Rs. 4000/-.
6.3 Considering the fact that the masonry work is a skilled
work and the number of dependents in the family, the
Tribunal has taken into consideration the economic
condition prevailing in the country in the year 2007, and
has notionally fixed the income of the deceased as Rs.
4000/-. He has further submitted that the age of the
deceased has rightly been determined as 41 years.
Considering the aforesaid factors, the learned advocate has
urged this Court to not to interfere with the aforesaid
findings and reasons of the Tribunal, fixing the income of
the deceased as Rs. 4000/-.
6.4 As regards the deduction of 1/3rd and multiplier of 14
being applied, he has fairly submitted that the same has
rightly been applied in the facts of the case. On the aspect of
prospective income, learned advocate has submitted that
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the Tribunal was guided by the principles laid down by the
Hon'ble Supreme Court at the relevant point of time and has
accordingly considered 30% future rise which may not be
interfered with. On the quantum of compensation under
conventional heads are concerned, by making aforesaid
submissions, learned advocate has urged this Court to
dismiss the appeal.
7. I have heard learned advocates appearing for the
respective parties. I have also considered their arguments in
light of the findings and reasons assigned by the Tribunal. I
have carefully considered the evidence brought on record.
8. Before adverting to the merits of the appeal, it is
required to be noted that the foundational facts as regards
the involvement of the vehicle, the deceased having
succumbed to fatal injuries caused due to motor vehicle
accident, has attained finality, in absence of any challenge
being made to the aforesaid facts.
9. Considering the same, the short question which arises
for the consideration of this Court is as to whether the
Tribunal committed any error in passing the impugned
judgment and award while adjudicating the claim petition
preferred under Section 166 of the Act, 1988, in the facts of
the case and the evidence on record?
10. At the outset, it would be appropriate to consider the
issue of negligence and liability. The core contention which
has been raised by learned advocate for the appellant-
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Insurance Company on the issue of negligence is on the
ground that it was a case of head on collision and, therefore,
the driver of the respective vehicles involved in the accident
are required to be held equally negligent towards occurrence
of accident. In order to appreciate the aforesaid contentions
of learned advocate for the appellant Insurance company, I
have carefully gone through the findings and reasons
assigned by the Tribunal and have also re-appreciated the
evidence, more particularly, the FIR at Exh. 24 and the
panchnama of the place of accident at Exh. 25. The FIR was
registered on the same day of the date of accident that is on
22.05.2007 at around 18:20 hours which is immediately
after the occurrence of the accident. The FIR is registered
pursuant to the information given by the ASI on duty with
the Government Hospital where the deceased was brought
for treatment. It is reported that the deceased had suffered
injuries on account of motor vehicle accident caused by a
three wheeler tempo bearing registration No. GJ 23 T 8298.
It was further reported that the deceased had succumbed to
the injuries during treatment. The said FIR has been
registered against the driver of the vehicle for the offence
punishable under Sections 279, 304 (a) of the Indian Penal
Code and Sections 177, 184, and 134 of the Motor Vehicle
Act, 1988.
10.1 Pursuant to the registration of the offence. the
Investigating Officer had visited the place of accident and
had drawn the panchnama. It is recorded in the
panchanama that the accident had taken place on
Vaghodhia-Vadodara road. The said road travels from east
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to west directions. From the panchnama, it further
transpires that the scooter driven by the deceased was lying
facing towards west direction that is towards Vadodara. It is
further noted that the right side of body of the tempo had
suffered impact and scratches were noted. The right portion
of the body of the scooter had bend and the front accessory
including the bucket is found to be damaged. The steering
has got detached and the gear handle is also found to be in
a broken condition. It was further found that the driver of
the tempo has ran away from the scene of accident. The
panchnama of the tempo has been carried out by the
Investigating Officer after two days that is on 24.05.2007.
The said panchnama has been produced on record at Exh.
26. The tempo is also found to be in a damaged condition
mainly the right side of the door of the tempo has suffered
impact and scratches are also noticed.
11. Having appreciated the aforesaid evidence on record, if
the evidence of the witness at Exh. 23 is examined, it
appears that he is an eyewitness to the incident. He has on
oath categorically deposed that he was heading on the road
on the Vaghodia-Vadodara road at the time of accident,
ahead of the tempo. He has witnessed that the driver of the
tempo had overtaken and in the process had hit the
motorcycle which was coming from the opposite side. He
has also deposed that the said tempo was coming from
Vadodara and moving towards Vaghodia and the correct
side for them was the left side of the road leading towards
northern direction whereas the right side for the driver of
the scooter that is the deceased was left side leading
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towards south direction.
12. Having noted the aforesaid evidence of the eyewitness,
in light of the panchanama of the place of accident, no error
can be found with the finding of the Tribunal that the driver
of the tempo was solely negligent towards occurrence of
accident. As regards the submission made by learned
advocate for the appellant-Insurance Company of head to
head collision and the contributory negligence is concerned,
it is required to be noted that as against the aforesaid
evidence of the claimants, the Insurance Company has
chosen not to examine any independent witness or to lead
any evidence to establish the fact that the deceased was
also negligent and had contributed to the occurrence of the
accident. Merely because the circumstances suggest head to
head collision that itself is not sufficient to draw conclusion
that the accident had occurred due to contributory
negligence of the drivers of the respective parties.
13. For the aforesaid reasons, this Court is not inclined to
interfere with the findings and reasons assigned by the
Tribunal holding the driver of the tempo solely negligent
towards occurrence of the accident.
14. This brings me to the issue of quantum of
compensation being determined on higher side as pleaded
by the appellant-Insurance Company. On the aspect of the
income, it is an established fact that the deceased was
earning his livelihood by masonry work. It is an admitted
fact that no documentary proof of income about the claim of
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the deceased earning Rs. 7000/- has been brought on
record. However, the Tribunal considering the fact that the
accident had taken place in the year 2007, being guided by
the economic conditions prevailing in the country, has fixed
notional income of the deceased as Rs. 4000/-. Having
noted the findings and reasons assigned by the Tribunal, in
absence of any documentary proof of income being
produced on record, considering the social background and
the fact that the deceased was doing skilled labour work, it
would have been appropriate to apply the standard rates of
minimum wages notified by the State Government for the
purpose of determining the income of the deceased. At this
stage it would be appropriate to consider the principle laid
down by the Hon'ble Supreme Court in the case of Govind
Yadav vs. New India Assurance Company Limited
reported in 2012 ACJ 28 (SC), wherein the Court has held
that in order to maintain the uniformity in approach of
awarding compensation in absence of any documentary
proof of income being produced on record the Courts may
follow the yardstick of minimum wages prevailing at the
time of accident for the purpose of determination of just and
fair amount of compensation.
15. Applying the aforesaid principles in the facts of the
case, if one looks at the standard rates of minimum wages
prevailing during the period of accident i.e 22.05.2007, the
standard rates of minimum wages notified by the State of
Gujarat for the period between 01.04.2007 to 30.09.2007,
was Rs. 2,800/- in case of skilled workman. Having noted
so, in my view the income of the deceased is required to be
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fixed as Rs, 2,800/- per month. As regards the deduction
of 1/3rd and multiplier of 14 being applied, the same has
rightly been considered by the Tribunal in the facts of the
case. This brings me to the aspect of prospective income to
be considered. Considering the subsequent position of law,
whereby it has been held that in case of self employed and
the age group of persons above 40 years, the addition of
25% future rise is required to be applied instead of 30%.
Considering the aforesaid components the prospective
income is determined as Rs. 2,800/- multiply 25%
(prospective rise) Rs. 3,500/- per month. For the purpose of
loss of prospective income applying one third deduction, it
would come to Rs. 3,500 minus 1/3rd deduction = Rs.
1,167/-. Therefore, loss of prospective income is determined
as Rs. 2,333/- The dependency loss comes to Rs. 2,333/-
multiply by 12 multiply 14 viz Rs. 3,91,944/-. Having held
so, the amount of compensation under conventional heads
is also required to be revisited in light of the the settled
principles laid down by the Hon'ble Supreme Court in the
case of Pranay Sethi (supra). Considering the fact that the
deceased was survived by a widow and their two children,
each of the claimant shall be entitled to amount of Rs.
48,400/- towards loss of consortium. Similarly, amount
under the head of loss of estate, and funeral expenses are
re-determined as Rs. 18,150/- each.
16. In view of the above discussion, since the amount of
compensation under respective heads is re-determined and
reconsidered, the total amount of compensation is
calculated as under :-
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Sr.No Details Tribunal Final Amount
(Rs.) (Rs.)
1. Dependency loss 5,82,120/- 3,91,944/-
2. Loss of 50,000/- 48,400/-
consortium(spousal)
3. Loss of love and 1,50,000/- 96,800/-
affection(parental (48,400/-
consortium) (multiply by
2)
4. Loss of estate 50,000/- 18,150
5. Funeral expenses 25,000 18,150/-
6. Total amount of 8,57,120/- 5,73,444/-
compensation
17. Thus, the original claimants shall be entitled to total
amount of compensation Rs. 5,73,444/- with interest at the
rate of 9 % from the date of filing the claim petition till its
actual realization from the original opponents, jointly and
severally, with proportionate cost.
18. For the foregoing reasons, the appeal is partly allowed.
The impugned judgment and award dated 05.08.2016,
passed by the Motor Accident Claims Tribunal (Aux.),
Vadodara in MACP No. 1171 of 2007 is hereby modified by
holding the original claimants entitled to recovery of sum of
Rs. 5,73,444/- with interest at the rate of 9% per annum
from the date of filing the claim petition till its actual
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realization with proportionate costs, from the original
opponents jointly and severally.
19. In view of the aforesaid directions, the appellant-
Insurance Company shall be entitled to refund of Rs.
2,83,676/- with interest of 9% from the date of deposit of
the award amount till its realization.
20. Since the 70% of the deposited award amount is
invested in a fixed deposit scheme with the nationalized
bank, in view of the directions issued by this Court vide
order dated 23.11.2016, the Tribunal shall undertake
necessary exercise in this regard. Needless to clarify the
entire award amount of Rs. 5,73,444/- with interest and
cost awarded by this Court shall be released and disbursed
in favour of the claimants whereas the refund amount of Rs.
2,83,676/- with interest shall be returned to the appellant-
Insurance Company.
21. Let the aforesaid exercise be undertaken by the
Tribunal within a period of six weeks from the date of
receipt of certified copy of this order. The Tribunal shall
proceed with the release and disbursement of the awarded
amount in favour of the original claimants as per the
apportionment order which may be passed by Tribunal
subject to due verification of the claimant and strictly in
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accordance with the guidelines of the Hon'ble Supreme
Court in this regard. Let the aforesaid exercise be
undertaken by the Tribunal within a period of two weeks
thereafter.
22. With these observations, the First Appeal stands
disposed of with the aforesaid directions. Registry is
directed to send back the record and proceedings to the
concerned Tribunal with the writ of the judgment.
(NISHA M. THAKORE,J)
MARY VADAKKAN
