Gujarat High Court
Cholamandalam Ms General Insurance Co … vs Kanuji Sakraji Thakor on 25 February, 2026
NEUTRAL CITATION
C/FA/1560/2022 JUDGMENT DATED: 25/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1560 of 2022
With
R/FIRST APPEAL NO. 2660 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
√
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CHOLAMANDALAM MS GENERAL INSURANCE CO LTD
Versus
KANUJI SAKRAJI THAKOR & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR CHIRAG B PATEL(3679) for the Defendant(s) No. 1
MR N P CHAUDHARY(3980) for the Defendant(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHARDate : 25/02/2026
COMMON JUDGMENT
Since both these appeals arise out of the common impugned
judgment and award, they are being disposed of by this common oral
judgment and First Appeal No.1560/2022 is taken as lead matter for the
sake of brevity.
[1.0] This appeal under Section 173 of the Motor Vehicles Act, 1988 (for
short “MV Act“) has been preferred by the appellant-original opponent
No.2 – Cholamandalam MS General Insurance Company Ltd. against the
impugned common judgment and award dated 25.07.2019 passed by the
learned Motor Accident Claims Tribunal (Main), Patan (for short referred
to as “learned Tribunal”) in Motor Accident Claim Petition Nos.247 and
248 of 2015 under Section 166 of the MV Act whereby the learned
Tribunal has partly allowed the claim petition of original claimants andPage 1 of 10
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awarded compensation of Rs.12,18,800/- in MACP No.247/2015 and
Rs.9,99,948/- in MACP No.248/2015 with interest at the rate of 9% per
annum from the date of the claim petitions.
[2.0] The brief facts of the present appeals are that on 22.05.2013 at
around 3.30 p.m., deceased Motibhai Taljabhai Desai (Rabari) was driving
his Alto Car No.GJ-7-AG-9846 with moderate speed and coming towards
Mithi Vavdi and deceased Gemarbhai @ Ghemarbhai Ishwarbhai Desai
was sitting besides him and when they reached the place of accident, the
original opponent No.1 – driver of Xylo Jeep No.GJ-18-AU-5432 came
driving his car with full speed in rash and negligent manner and having
lost control over steering dashed head on with the Alto Car and due to
the said accident both the passengers of Alto Car i.e. deceased persons
herein died on the spot. Therefore, the legal heirs and representatives of
deceased Motibhai Desai filed MACP No.247/2015 seeking compensation
of Rs.25 lakh and legal heirs and representatives of deceased Gemarbhai
Desai filed MACP No.248/2015 seeking compensation of Rs.20 lakh.
[2.1] After appreciating the evidence, the learned Tribunal held the
driver of Xylo Jeep to be solely negligent for the accident and awarded
compensation of Rs.12,18,800/- in MACP No.247/2015 and Rs.9,99,948/-
in MACP No.248/2015 with interest at the rate of 9% per annum from the
date of the filing of the claim petitions. Present appeals are filed by the
appellant – insurance company challenging the issue of negligence as
well as quantum.
[3.0] Learned advocate Mr. Vibhuti Nanavati appearing for the appellant
– insurance company has submitted that the learned Tribunal has
committed serious jurisdictional error while deciding the issue of
negligence whereby it clearly transpires that there was total non-
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application of mind on the part of the learned Tribunal as it did not
consider the site map (Exh.25). He has further submitted that the learned
Tribunal committed an error in not considering the contents of the site
map which clearly proves that the car was proceeding in east-west
direction and therefore, its correct side was south and the correct side of
the jeep was north and thus, the car went on the wrong side and dashed
against the jeep and therefore, the learned Tribunal ought not to have
held the jeep driver solely negligent for the accident. He has further
argued that learned Tribunal erred in relying upon the legal principle of
res ipsa loquitur on the ground that the driver of the jeep fled away from
the place of accident though the jeep driver might have surrendered
before the police. He has also argued that learned Tribunal ought to have
held the driver of Alto Car solely negligent for the accident.
[3.1] In First Appeal No.1560/2022, on the point of quantum, learned
advocate has submitted that the learned Tribunal has committed an
error in considering Rs.19,800/- per month as pension income of the
deceased and at the same time, the learned Tribunal failed to consider
that the family is receiving family pension of Rs.25,000/- which is more
than the pension amount received by the deceased in the sum of
Rs.19,800/-. He has further submitted that the learned Tribunal ought to
have considered the oral evidence of the witness of the claimant
recorded at Exh.16 and accordingly ought to have considered that there
was no economic loss to the family of deceased.
[3.2] In First Appeal No.2660/2021, on the point of quantum, learned
advocate for the appellant – insurance company has submitted that the
learned Tribunal has committed an error in considering the monthly
income of the deceased at Rs.7000/- in absence of any evidence in that
regard, as the claimants failed to adduce any evidence with regard to
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agricultural income of the deceased and learned Tribunal ought to have
considered minimum wages prevalent at the time of accident i.e.
Rs.5180/- per month. He has further argued that learned Tribunal ought
not to have considered 25% towards future prospective income in
absence of any evidence with regard to regular income of the deceased.
Even, the learned Tribunal has erred in applying 1/3 deduction towards
personal expenses of the deceased. Hence, he has requested to allow
both the appeals.
[4.0] Learned advocate Mr. N.P. Chaudhary appearing for the original
claimants has opposed the present appeals on the ground that the
learned Tribunal has not committed any error and has rightly awarded
the compensation, which does not call for any interference by this Court.
Insofar as contention raised by the learned advocate for the appellant
that monthly income of deceased in MACP No.248/2015 is wrongly
considered at Rs.7000/- is concerned, he has submitted that the
deceased was earning Rs.20,000/- per month from 30 Vighas of
agricultural land for which the claimants had produced village abstracts
at Exhs.36 to 40. Therefore, he has submitted that the learned Tribunal
has not committed any error and has requested to dismiss the present
appeals.
[5.0] Having heard learned advocate appearing for the respective
parties and perusing the evidence on record, it appears that the learned
Tribunal has considered the evidence produced on record alongwith
evidence of claimant No.1 Jalaben (Exh.16) and claimant Ambaben
(Exh.17) wherein they have stated that the accident occurred due to
negligence on the part of driver of Xylo Jeep and in their cross-
examination, both these witnesses have denied that they are having
personal information with regard to how the accident took place.
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Further, the learned Tribunal has considered FIR (Exh.24), which has been
given by brother of deceased Gemarbhai and perusal of the FIR also
transpires that the accident took place due to negligence of driver of
Xylo jeep. Perusing the panchnama of scene of accident (25), the learned
Tribunal has observed that there was head on collision between the two
vehicles and both the vehicles are damaged and Xylo Jeep has rammed
into the Alto Car. Further, even the charge-sheet (Exh.48) is filed against
the driver of Xylo Jeep. It is observed by the Tribunal that the driver of
offending Xylo jeep fled away from the scene of accident and has never
step into the witness box and therefore, the learned Tribunal has drawn
adverse inference against the driver of offending jeep relying on the
principle of res ipsa loquitur. Therefore, the learned Tribunal has rightly
held the driver of Xylo Jeep to be solely negligent for the accident, which
does not call for any interference at the hands of this Court.
QUANTUM IN FIRST APPEAL NO.1560/2022 (MACP NO.247/2015)
[6.0] Now, so far as quantum of compensation is concerned, learned
Tribunal has considered the evidence of claimant No.1 Jalaben (Exh.16)
wherein she has stated that the deceased was aged 59 years 11 months
and 21 days and to establish the age of deceased, claimants have
produced driving license of deceased at Exh.49 which shows date of birth
of deceased as 01.06.1952 and the accident took place on 22.05.2013 and
therefore, the deceased at the time of accident fell in the age group of
61 to 65 years and therefore, in view of decision of Hon’ble Supreme
Court in the case of Sarla Verma (Smt) & Ors. Vs. Delhi Transport
Corporation & Anr. reported in (2009)6 SCC 121, learned Tribunal has
rightly applied the multiplier of 7, which does not call for any
interference. Further, the said witness has stated that the deceased was
a retired Veterinary Doctor and was getting monthly pension of
Rs.18,839/- and over and above the same, deceased was also earning
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monthly Rs.30,000/- by practicing in nearby areas as Veterinary Doctor
and was also having 9 Vighas of agricultural land from which the
deceased used to earn monthly Rs.20,000/-. The claimants have produced
true copy of Form 16 of the deceased for the years 2009-10, 2010-11 and
2011-12 at Exhs.33, 34 and 35 however, the learned Tribunal has found
that the said Form 16 were of the period when the deceased was in
service. Further, the claimants have produced village abstracts at Exhs.41
to 43 which shows that agricultural lands were in the name of father of
the deceased and therefore, it is needless to say that income from
agricultural source has continued.
[6.1] However, the learned advocate for the appellant – insurance
company has mainly contended that the learned Tribunal has committed
an error in considering Rs.19,800/- per month as pension income of the
deceased and at the same time, the learned Tribunal failed to consider
that the family is receiving family pension of Rs.25,000/- which is more
than the pension amount received by the deceased in the sum of
Rs.19,800/-. He has further submitted that the learned Tribunal ought to
have considered the oral evidence of the claimant recorded at Exh.16 and
accordingly ought to have considered that there was no economic loss to
the family of deceased. In considered opinion of this Court, the learned
Tribunal has not committed any error in considering the monthly income
of the deceased at Rs.19,800/-.
[6.2] At this stage, it is apposite to refer to the decision of the Hon’ble
Supreme Court of India in the case of Lal Dei vs. Himachal Road
Transport reported in (2007)8 SCC 319 wherein the Hon’ble Supreme
Court set aside the deduction of family pension amount from
dependency of claimants by observing that heirs of deceased receive
family pension even otherwise then accidental death and thus, there is
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no co-relation between the two and therefore, family pension amount
paid to family cannot be deducted while calculating the compensation.
Relying on the said ratio in the case of Lal Dei (Supra), the Hon’ble
Supreme Court once again reiterated the said proposition of law in the
case of National Insurance Company Limited vs. Nainaben Wd/o. Decd.
Bhupendra Kanaiyalal Shah reported in 2016(0) ACJ 253. Even,
recently, in the case of Hanumantharaju B (Dead) by LR vs. M. Akram
Pasha reported in 2025 (0) ACJ 1521, the Hon’ble Supreme held that
pensionary benefit cannot be treated as “pecuniary advantage” liable to
be deducted for the purpose of computation of compensation within the
scope of MV Act. Hence, in view of aforesaid pronouncements of Hon’ble
Supreme Court and in considered opinion of this Court, the learned
Tribunal has not committed any error in considering Rs.19,800/- as
pension income of the deceased. In this regard, reference is required to
be made to the decision in the case of K Ramya v National Insurance Co.
Ltd., reported in 2022 SCC OnLine SC 1338; S. Vishnu Ganga v Oriental
Insurance Company Limited, reported in 2025 SCC OnLine SC 182 and
Shivaleela and Ors., Vs The Divisional Manager, United India
Insurance Co. Ltd., & Ors., reported in 2025 INSC 357 wherein it has
been held that Motor Vehicles Act which is a beneficial and welfare
legislation 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 and therefore, the
compensation under the Act shall be awarded so as to provide stability
and continuity in peoples’ lives in the future.
[6.3] Further, the learned Tribunal considering the fact that the
deceased was having three dependents, has rightly applied 1/3
deduction and accordingly, deducted Rs.6600/- towards personal
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expenses of the deceased which comes to Rs.13,200/- (Rs.19,800 –
Rs.6600) and applying multiplier of 7, as discussed above, learned
Tribunal has rightly awarded Rs.11,08,800/- (Rs.13,200 x 12 x 7) towards
future loss of dependency, which does not call for any interference. Even,
under the conventional heads, learned Tribunal has rightly awarded
Rs.1,10,000/- which does not call for any interference. Hence, the original
claimants of MACP No.247/2015 (First Appeal No.1560/2022) has rightly
been awarded the compensation as under:
Different Heads Amount
Loss of Dependency Rs.11,08,800/-
Conventional Heads Rs.1,10,000/-
Total Compensation... Rs.12,18,800/-
QUANTUM IN FIRST APPEAL NO.2660/2021 (MACP NO.248/2015)
[7.0] Now, so far as quantum of compensation is concerned, learned
Tribunal has considered the evidence of claimant No.1 Ambaben (Exh.17)
wherein she has stated that the deceased was aged 50 years which is
established from the post-mortem report (Exh.30) of the deceased
Gemarbhai Desai and therefore, the deceased fell in the age group of 46
to 50 years and therefore, in view of decision of Hon’ble Supreme Court
in the case of Sarla Verma (Smt) & Ors. (Supra), learned Tribunal has
rightly applied the multiplier of 13, which does not call for any
interference. Further, the said witness has stated that the deceased was
having 30 Vighas of agricultural land and to support the said claim, the
claimants have produced village abstracts at Exhs.36 to 40 wherein name
of both the claimants appear. The said witness has admitted that there is
no any evidence with regard to fix income of the deceased from the
agricultural source. The learned Tribunal has believed that even after the
demise of deceased, the claimants might be getting the income from
agricultural source. In absence of any evidence with regard to income of
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the deceased, the learned Tribunal on the basis of guess work,
considering minimum wages prevalent at the time of accident i.e. in the
year 2013, has assessed monthly income of deceased at Rs.7000/-, which
in the considered opinion of this Court is properly considered. Even if it is
assumed for the sake of argument that there was no evidence with
regard to income of the deceased then also in view of the decision of the
Hon’ble Supreme Court in the case of Chandra @ Chanda @
Chandraram vs. Mukesh Kumar Yadav reported in (2022)1 SCC 198,
merely because claimants were unable to produce the documentary
evidence to show monthly income of the deceased, same does not justify
adoption of lowest tier of minimum wage while computing income.
[7.1] Further, the learned Tribunal considering the fact that the
deceased was in the age group of 46 to 50 years, 25% addition Rs.1750/-
(25% of Rs.7000) towards future prospects is rightly considered by the
learned Tribunal in view of the decision in the case of National Insurance
Company Ltd. Vs. Pranay Sethi reported in 2017 ACJ 2700 and as the
deceased having two dependents, has rightly applied 1/3 deduction i.e.
Rs.2917/- (1/3 of Rs.8750/-) and accordingly, deducted Rs.2917/- towards
personal expenses of the deceased which comes to Rs.5833/- (Rs.8750 –
Rs.2917) and applying multiplier of 13, as discussed above, learned
Tribunal has rightly awarded Rs.9,09,948/- (Rs.5833 x 12 x 13) towards
future loss of dependency, which does not call for any interference. Even,
under the conventional heads, learned Tribunal has rightly awarded
Rs.90,000/- which does not call for any interference. Hence, the original
claimants of MACP No.248/2015 (First Appeal No.2660/2021) has rightly
been awarded the compensation as under:
Different Heads Amount
Loss of Dependency Rs.9,09,948/-
Conventional Heads Rs.90,000/-
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Total Compensation... Rs.9,99,948/-
[8.0] In wake of aforesaid conspectus, present First Appeals stand
dismissed.
[9.0] The learned Tribunal is directed to disburse the entire amount of
compensation to the original claimants of MACP Nos.247/2015 and
248/2015 alongwith accrued interest at the rate of 9% per annum on the
said amount within a period of four weeks from the date of receipt of
this judgment, by account payee cheque / NEFT / RTGS, after proper
verification and after following due procedure and strictly as per the
apportionment made by the learned Tribunal.
[9.1] While making the payment, the Tribunal shall deduct the
courts fees, if not paid.
[10.0] Record and proceedings, if any, be sent back to the
concerned Tribunal, forthwith.
Sd/-
(HASMUKH D. SUTHAR, J.)
Ajay
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