Champaben Bhagvanjibhai Bhutani vs Rajabhai Bhagvanjibhai Makwana on 4 May, 2026

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    Gujarat High Court

    Champaben Bhagvanjibhai Bhutani vs Rajabhai Bhagvanjibhai Makwana on 4 May, 2026

                                                                                                                     NEUTRAL CITATION
    
    
    
    
                                C/FA/1868/2015                                     JUDGMENT DATED: 04/05/2026
    
                                                                                                                      undefined
    
    
    
    
                                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    
                                                 R/FIRST APPEAL NO. 1868 of 2015
    
                                                        With
                                       R/CIVIL APPLICATION NO. 1579 of 2026
                                                         In
                                    F/MISC. CIVIL APPLICATION NO. 10137 of 2026
                                                        With
                                    F/MISC. CIVIL APPLICATION NO. 10137 of 2026
                                                         In
                                          R/FIRST APPEAL NO. 1868 of 2015
    
                          FOR APPROVAL AND SIGNATURE:
    
                          HONOURABLE MS. JUSTICE NISHA M. THAKORE
                          =============================================
    
                                      Approved for Reporting                       Yes          No
                                                                                                NO
                          =============================================
                                      CHAMPABEN BHAGVANJIBHAI BHUTANI & ANR.
                                                       Versus
                                       RAJABHAI BHAGVANJIBHAI MAKWANA & ANR.
                          =============================================
                          Appearance:
                          MR DEEP D VYAS(3869) for the Appellant(s) No. 1,2
                          DISMISSED FOR NON PROSECUTION for the Defendant(s) No. 1
                          MR PALAK H THAKKAR(3455) for the Defendant(s) No. 2
                          =============================================
                            CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                                           Date : 04/05/2026
                                           ORAL JUDGMENT

    1. The present appeal is filed at the instance of the original

    claimants under Section 173 of the Motor Vehicle Act, 1988,

    SPONSORED

    being aggrieved and dissatisfied with the judgment and award

    dated 30.06.2014, passed by the learned Motor Accident

    Claims Tribunal (Aux.), Gondal in MACP No. 249 of 2001.

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    2. By the said 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.5,13,000/- with interest at the rate of

    7.5% per annum from the date of filing of the claim petition

    till its actual realisation with proportionate costs, from the

    original opponents jointly and severally. Hence, the present

    appeal praying for enhancement of further amount of

    compensation of Rs.4,90,000/- with interest and cost.

    3. Considering the grounds raised in the appeal memo and

    the submissions made by learned advocate appearing for the

    appellant, this Court vide order dated 30.09.2015 has

    admitted the appeal. The record and proceedings were called

    for. From the record it transpires that attempts were made to

    serve respondent No.1 namely the owner of the offending

    vehicle. However, notice of admission of appeal had remained

    unserved qua respondent No. 1. In such circumstances, the

    appeal was directed to be dismissed for non-prosecution vide

    order 29.11.2017 passed in the present proceedings.

    4. Learned advocate Mr. Palak H. Thakkar has entered

    appearance on behalf of respondent No. 2-Insurance

    Company. With the able assistance of learned advocate on

    record appearing for the respective parties, the appeal was

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    finally heard.

    5. Learned advocate Mr. Deep D. Vyas appearing for the

    appellants has at the outset prayed for an adjournment on the

    ground that appropriate application for restoration of the

    appeal qua original respondent No.1 namely the owner of the

    offending vehicle has been preferred before the Registry on

    27.03.2026. Despite attempts being made to seek circulation

    the matter could not be placed before this Court. Considering

    the fact that the appeal is of the year 2015, in absence of any

    appeal or cross-objections being filed by the respondent No.2-

    Insurance Company disputing their liability to indemnify the

    owner of the offending vehicle, considering the fact that the

    interest of the owner of the offending vehicle is represented

    through counsel of Insurance Company, the appeal was taken

    up in absence of the owner of the offending vehicle.

    6. On merits, learned advocate for the appellant has

    vehemently assailed the impugned judgment and award on

    the ground of 10% contributory negligence attributed to the

    deceased as well as on the quantum of compensation.

    6.1 Inviting my attention to the findings and reasons assigned

    by the Tribunal on the issue of negligence, learned advocate

    has submitted that no specific reasons has been assigned by

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    the Tribunal to hold the deceased contributory negligent to

    the extent of 10% towards occurrence of accident. He had

    further submitted that even on perusal of the FIR which has

    been admitted as an evidence at Exh. 42, if appreciated in

    light of the case put forward by the claimants, it clearly

    suggest that the accident had occurred due to sole negligence

    on the part of the driver of the offending vehicle. The

    panchnama of the place of accident which has been admitted

    as evidence at Exh. 43 was relied upon. Referring to the

    aforesaid two documents, learned advocate has submitted

    that the motorcycle which was driven by the deceased was

    stretched for almost 15 feet from the point of the accident

    which clearly suggest the excessive speed of the offending

    vehicle. As against the aforesaid evidence brought on record,

    the respondents have failed to examine any independent

    witness or contradict the evidence of the claimants as

    produced on record. In absence of any counter-evidence or

    witness being examined, there is no rebuttal of the evidence

    of the claimant, pointing towards sole negligence of the driver

    of the offending vehicle. Learned advocate has therefore

    urged this Court to modify the impugned judgment and award

    by holding the driver of the offending matador solely

    negligent towards occurrence of accident.

    6.2. On the quantum of compensation, learned advocate had

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    submitted that in the claim petition as well as in the

    deposition, the claimants have categorically contended that

    the deceased was earning monthly income of Rs. 4000/- by

    doing business of Transport Contractor. The aforesaid

    evidence of the claimant has not been contradicted as evident

    from the appreciation of cross-examination. Merely because

    no documentary proof with regard to the aforesaid income has

    been brought on record, the Tribunal committed grave error

    in applying standard rates of minimum wages in the facts of

    the case. In this regard learned advocate has placed reliance

    upon the decision of Hon’ble Supreme Court in the case of

    Sarla Verma Vs. Delhi Transport Corporation reported in

    (2009) 6 SCC 121, and has submitted that though the

    assessment of compensation invoice was certain hypothetical

    consideration that should nevertheless be the objective in

    order to ascertain just compensation. Considering the fact

    that it has clearly transpired on record that the deceased was

    earning by doing business of transport contractor and the

    surrounding circumstances as emerged on record which can

    be gathered from the contents of the FIR whereby the

    deceased was approaching from a market yard, there was no

    reason for the Tribunal to disbelieve the case of the claimant.

    It was further submitted that considering the fact that the

    accident had taken place in the year 2001 and the age of the

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    deceased which was approximately between 44 to 45 years at

    the time of accident, at this age, the Tribunal ought to have

    believed the notional income of the deceased as Rs. 4000/-,

    even in absence of any documentary proof of income being

    produced on record. The reference was also made to the

    judgment of Hon’ble Supreme Court in the case of National

    Insurance Company Ltd Vs. Pranay Sethi reported in

    2017 (16) SCC 680 which emphasis on the core object of the

    beneficial legislation of awarding fair, reasonable and just

    amount of compensation.

    6.3 It was further submitted that the Tribunal has completely

    lost sight of, considering the component of future rise of

    income for the purpose of determination of loss of future

    income. The reliance was placed on the settled principles laid

    down in the case of Pranay Sethi (supra) to contend that the

    considering the age of the deceased in the age group of 40 to

    50 years and deceased being self employed, at least 25%

    future rise addition is required to be applied for the purpose

    of determination of prospective income of the deceased. He

    has further submitted that the multiplier of 15 has been

    rightly applied by considering the case of the claimant in the

    age group of 44 to 45 years.

    6.4 As regards deduction of 1/3rd being made, learned

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    advocate has fairly submitted noticing the fact that the

    claimants include the widow of the deceased and his son

    treating it as a case of 2 to 3 dependents in the family, the

    Tribunal has rightly applied 1/3rd deduction. He has,

    therefore, submitted that the amount awarded under the head

    of future loss of income is required to be reconsidered by

    applying Rs.4000/- as income and by further addition of 25%

    future rise on the aforesaid income. Learned advocate had

    further invited my attention to the amount awarded under the

    head of medical bills and has submitted that considering the

    medical case papers produced on record collectively at

    Exh.51, the Tribunal has rightly considered the amount of

    Rs.1,61,000/- towards medical expenses. However, he has

    submitted that in fact, considering the fact that the deceased

    had survived for 6 years in a coma condition, the medical

    expenses were incurred on the higher side.

    6.5 The attention of this Court was invited to the fact that

    the accident had taken place on 19.03.2001 whereas the

    deceased as evident from the cross-examination of the wife

    has expired in the year 2006. The deceased was initially

    treated at Gondal Hospital under the care of Dr. Hemang

    Vasavda. Later on he was shifted to Rajkot under the care of

    Dr. Naimish Trivedi. He has therefore submitted that the

    hospitalisation was almost for a period of six years.

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    Considering the aforesaid prolonged medical treatment, and

    the grievous injuries suffered by the injured in the motor

    vehicle accident, the Tribunal ought to have awarded just

    compensation under the head of pain, shock and suffering.

    However, the Tribunal has completely lost sight of the

    aforesaid head while determining the total amount of

    compensation. He has urged this Court to award a reasonable

    amount of compensation under the head of pain, shock and

    suffering bearing in mind the prolonged treatment and the

    nature of injuries sustained.

    6.6 As regards the amount awarded under the head of

    attendant charges, food etc. are concerned, learned advocate

    has submitted that the same are inadequate and unrealistic.

    Considering the fact that the injured was hospitalised and

    treated for almost six years in coma condition, the claimants-

    wife and son have attended continuously throughout these

    years, a reasonable amount is required to be awarded under

    aforesaid head. He has further submitted that considering the

    nature of injuries sustained, a special attendant would be

    required for 24/7 hours to take care of the injured. He has

    urged this Court to enhance the amount of compensation

    under the head of attendant charges, food etc., by applying

    the minimum wages to engage the person towards the same.

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    6.7 As regards conventional heads are concerned, learned

    advocate has placed reliance upon the decision of the Hon’ble

    Supreme Court in the case of Pranay Sethi (supra), and has

    submitted that considering the fact all throughout these years

    the claimants have pursued the appeal praying for

    enhancement of amount of compensation, the appellant may

    be extended the benefit of 10% rise under the conventional

    heads.

    6.8. Learned advocate has lastly invited my attention to the

    interest of 7.5% being awarded on the lower side. It was

    submitted that admittedly, the accident had taken place on

    19.03.2001 and considering the prevailing rates of RBI, the

    Tribunal ought to have awarded 9% rate of interes instead of

    7.5% as awarded. He has, therefore, urged this Court to allow

    the appeal and to modify the impugned judgment and award

    by enhancing the amount of compensation with appropriate

    rate of interest as prayed for as well as with proportionate

    cost.

    7. Per contra, learned advocate Mr. Palak H. Thakkar

    appearing for respondent No. 2- Insurance Company has

    forcefully submitted that the Tribunal has taken into

    consideration the panchnama and the FIR produced on record

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    for the purpose of ascertaining the issue of negligence. It is

    evident from the aforesaid documents produced on record at

    Exhs. 42 and 43 that the accident had taken place on a

    national highway and the deceased was exiting from the gate

    of market yard. Considering the fact that the deceased was in

    the process of entering the national highway, the deceased

    was expected to be more cautious and careful to verify the

    traffic conditions before entering into the national highway.

    According to him, considering the regulations, the duty is cast

    upon the person who is entering into the main road to take

    care of the surroundings. With such evidence on record, no

    fault can be found with the approach of the Tribunal in

    holding the deceased negligent to the extent of 10% having

    contributed to the occurrence of accident. On the issue of

    quantum of compensation, learned advocate had mainly relied

    upon the findings and reasons assigned by the Tribunal and

    has submitted that in the facts of the case and the evidence

    brought on record the Tribunal has awarded just and

    reasonable amount of compensation which calls for no

    interference. He has, therefore, urged this Court to dismiss

    the appeal.

    7.1 It was submitted that in absence of any direct proof

    income being produced on record the Tribunal has rightly

    determined the notional income of the deceased as Rs.3000/-.

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    According to the learned advocate, even applying the

    standard rates of minimum wages prevailing at the time of

    accident which was around Rs.2100/- in case of skilled

    workmen, if 25% rise to the aforesaid minimum wages is

    applied, it would come to Rs.2,625/-. As against that the

    Tribunal has considered Rs.3000/- income for the purpose of

    determination of prospective loss of income. He has,

    therefore, submitted that the Tribunal has taken care of

    prospective income by awarding higher amount of Rs.3000/-

    as against Rs.2,625/- and therefore, this Court in absence of

    any proof of income being produced on record, may not

    accept the case for income to be fixed at Rs.4000/-. As regards

    the deduction of 1/3rd being made towards personal and

    living expenses is concerned, it was submitted that the same

    is in accordance with the settled principles laid down by the

    Hon’ble Supreme Court in the case of Sarla Verma (supra).

    The attention of this Court was invited to the fact that even in

    absence of any appeal being filed by respondent No.2-

    Insurance Company, considering the age group of the

    deceased between 44 to 45 years, the correct multiplier to be

    adopted would be 13 instead of 15 as applied by the Tribunal.

    He has, therefore, urged this Court to not to interfere with the

    aforesaid amount awarded under the head of future loss of

    income being determined reasonably in the facts of the case

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    and evidence on record.

    7.2. As regards medical bills, the same has been computed as

    per the evidence brought on record by the claimant which

    calls for no interference. On the aspect of attendant charges,

    the learned advocate had submitted that in absence of any

    evidence with regard to actual expenses incurred by the

    claimant for engaging attendance, the Tribunal has a fairly

    determined amount of Rs.24,000/- towards the head of

    attendant charges, food etc.

    7.3 As regards the submission made by learned advocate for

    the pain, shock and suffering is concerned, learned advocate

    had fairly submitted that the same has been completely lost

    sight of by the Tribunal which may be appropriately awarded.

    In so far as the enhancement sought for conventional heads

    are concerned, learned advocate had submitted that in view of

    well settled principles laid down by the Hon’ble Supreme

    Court in the case of Pranay Sethi (supra) and has reiterated

    in the case of Magma General Insurance Co. Ltd vs. Nanu

    Ram Alias Chuhur Ram & Ors reported in (2018)18 SCC

    130, this Court may appropriately award the amount under

    the aforesaid head.

    7.4. On the issue of interest, the learned advocate had

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    vehemently objected by submitting that no evidence worth

    has been brought on record to suggest that the interest at the

    relevant point of time was 9% as prayed for. In fact, the

    general practice which is adopted by the Tribunal as well as

    by the Appellate Court is to confirm the rate of interest as

    awarded by the Tribunal at the appeal stage. He has therefore

    urged this Court not to interfere with the same. By making

    aforesaid submissions, the learned advocate has urged this

    Court to reaffirm the amount of compensation as determined

    by the Tribunal and has prayed for dismissal of the appeal.

    ANALYSIS :

    8. I have heard learned advocates appearing for the

    respective parties and I have carefully considered their

    arguments in light of the findings and reasons assigned by the

    Tribunal. I have also closely re-appreciated the evidence on

    record in light of various authorities relied upon by the

    learned advocates. The short question which arises for

    consideration of this Court is as to whether the Tribunal

    committed any error, in the facts of the case and the evidence

    brought on record, by awarding compensation of Rs.5,13,000/-

    with interest at the rate of 7.5% from the date of filing of the

    claim petition till its actual realisation, from the original

    opponents, jointly and severally, while adjudicating claim

    petition filed under Section 166 of the Motor Vehicles Act,

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    1988?

    9. Before considering the merits of the appeal, it would be

    appropriate to note that the appeal against the owner of the

    offending vehicle has been dismissed for non-prosecution.

    Though the learned advocate for the appellant has pressed for

    circulation of the restoration application as submitted before

    the Registry, considering the fact that the Insurance Company

    has not objected to their liability to indemnify the owner of the

    offending vehicle, this Court has taken up the matter for final

    hearing. It is also required to be noted that neither of the

    respondents have preferred any appeal or cross-objections

    disputing the issue of negligence, quantum of compensation

    and liability as determined by the Tribunal against them.

    10. Having noted so, at the outset, it would be appropriate

    first to deal with the issue of negligence. As rightly submitted

    by learned advocate for the appellant, on close reading of the

    findings and reasons assigned by the Tribunal, it is evident

    that the Tribunal after referring to the evidence of the wife of

    the deceased recorded at Exh.39 and her cross-examination,

    has referred to the P.M. report to look into the injuries

    sustained by the deceased due to the accident. The Tribunal

    has taken note of the fact that the deceased has succumbed to

    such injuries caused due to motor vehicle accident. The

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    Tribunal has also noted that the Insurance Company has not

    examined any witness to rebut the evidence on the negligence

    as pleaded by the claimant. The Tribunal has thus drawn

    adverse inference against the rash and negligent driving of

    the driver of the offending matador. However, while

    appreciating the FIR and panchnama produced on record at

    Exhs.42 and 43, the Tribunal has arrived at a conclusion that

    the deceased was also negligent for the accident. With such

    findings and reasons assigned, it is apparent that the Tribunal

    has not assigned any reason to arrive at such a conclusion

    holding the deceased contributory negligence to the extent of

    10%.

    11. At this stage it would be appropriate to refer to the

    decision of the Hon’ble Supreme Court in the case of Minu

    Rout and Another Vs. Satya Pradyumna Mohapatra and

    Ors reported in (2013) 10 SCC 695. The appellants who

    were the claimants have approached in the appeal before the

    Hon’ble Supreme Court thereby disputing the issue of

    contributory negligence on the part of the deceased as held by

    the Tribunal and reaffirmed by the High Court. It was

    contended by the learned counsel for the appellant that the

    Tribunal without there being any rebuttal evidence adduced

    by either the owner of the truck or his driver or any other

    independent witness to prove the alleged fact of contributory

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    negligence on the part of the deceased, has erroneously

    recorded the finding of fact on the contentious issue, holding

    the deceased contributory negligent. It was pointed out that

    though the Tribunal has placed reliance on the charge sheet

    filed against both the deceased and the driver of the offending

    vehicle, the same was not established by producing any

    evidence by the Insurance Company. On the other hand, it

    was categorically pleaded and established that the accident

    had taken place on account of rash negligent driving of the

    driver of the offending truck. The Hon’ble Supreme Court in

    appeal observed as under :-

    17. The Tribunal, on appreciation of the oral and
    documentary evidence, has recorded the
    erroneous, Ext. I without considering the fact that
    the criminal case was abated against the deceased
    and further has made observation in the judgment
    that the appellants had not produced the FIR.

    Therefore, it has held that there was 50%
    contributory negligence on the part of the deceased
    driver in causing accident. The Tribunal ought to
    have seen that non-production of FIR has no
    consequence for the reason that charge-sheet was
    filed against the truck driver for the offences
    punishable under Section 279 read with Section
    302
    IPC read with the provisions of the MV Act.

    The Insurance Company, though claimed
    permission under Section 170(b) of the Motor
    Vehicles Act, 1988 from the Tribunal to contest the
    proceedings by availing the defence of the owner of
    the offending vehicle, it did not choose to examine
    either the driver of the truck or any other
    independent eyewitness to prove the allegation of
    contributory negligence on the part of the deceased
    Susil Rout on account of which the accident took
    place as he was driving the car in a rash and

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    negligent manner. In the absence of rebuttal
    evidence adduced on record by the Tribunal, the
    Tribunal should not have placed reliance on the
    charge-sheet, Ext. 1 in which the deceased driver
    was mentioned as an accused and on his death his
    name was deleted from the charge-sheet. The
    Tribunal has referred to certain stray answers
    elicited from the evidence of PW 2 and PW 3 in
    their cross-examination and placed reliance on
    them to record the finding on Issue 1.

    18. For the aforesaid reasons, the findings and
    reasons recorded by the Tribunal on the
    contentious Issue 1 holding that there is
    contributory negligence on the part of the deceased
    driver in the absence of legal evidence adduced by
    the Insurance Company to prove the plea taken by
    it that accident did not take place on account of
    rash and negligent driving of the truck driver is
    erroneous in law. The Tribunal has accepted the
    part of oral evidence of the eyewitnesses regarding
    the scene of accident and it has placed reliance
    upon
    the charge-sheet, Ext. 1, which was filed
    against the driver of the offending truck and the
    deceased to hold that there was contributory
    negligence on his part by ignoring the fact that the
    criminal case against the deceased was abated.
    Therefore, we have to hold that the finding of fact c
    recorded on Issue 1 by the Tribunal and affirmed
    by the High Court in the impugned judgment, is
    erroneous for want of proper consideration of
    pleadings and legal evidence by both of them.
    Accordingly, we have answered Point 1 in favour of
    the appellants insofar as the finding recorded by
    the Tribunal on the question of contributory
    negligence of 50% on the part of the deceased is
    concerned.”

    12. Applying the aforesaid principles in the facts of the case,

    indisputably, as against the case put forward by the claimant

    attributing sole negligence to the driver of the matador, no

    evidence or any independent witness has been examined to

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    rebut the evidence of the claimant. On the other hand the

    claimants have produced on record the FIR and the

    panchnama of the scene of accident. On independent

    appreciation of the aforesaid two documentary evidence on

    record, it transpires that the accident had taken place on

    National Highway. The circumstances emerging from the

    panchnama, more particularly the manner in which the

    motorcycle was caught in between the front body of the

    matador and being dragged for a distance of almost 15 feet,

    clearly suggest the excessive speed of the matador. As against

    that, no legal evidence has been adduced by the Insurance

    Company to prove the plea taken by it that the deceased was

    also rash and negligent in driving the vehicle. Learned

    advocate for the respondent Insurance Company has argued

    that the deceased was exiting the gate of market yard and was

    entering the National Highway and was therefore expected to

    take sufficient care and caution before entering into the

    National Highway. In order to appreciate the aforesaid

    argument of learned advocate for the respondent-Insurance

    Company, on careful consideration of the panchnama of the

    place of accident, it is difficult to ascertain at what point the

    vehicle had entered the National Highway and had thereby

    attributed to the occurrence of accident. With such evidence

    on record, it was expected from the respondent Insurance

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    Company to bring on record further evidence to establish

    their plea of contributory negligence. Considering the overall

    evidence on record, in my view the Tribunal committed error

    in attributing 10% negligence to the deceased in absence of

    legal evidence adduced by the Insurance Company to prove

    their plea that the accident had also occurred due to rash and

    negligent driving of the deceased.

    13. Having held so, this Court is required to revisit the issue

    of quantum of compensation. At the outset, it is required to be

    noted that the accident had taken place on 19.03.2001, the

    claim proceedings were preferred by the injured claimant on

    23.04.2001, however, the injured could not survived

    unfortunately succumbed to the injuries after having

    struggled for almost period of six years. He was reported to

    have expired 02.05.2006 and as per P.M. note (EXH. 50), the

    cause of death was “cardio respiratory failure due to

    complications of coma- brain injury”. In view thereof, the heirs

    of the deceased namely the wife and the son, have been

    brought on record as legal representatives of the original

    claimant. The Tribunal has thus entertained the claim

    proceedings by treating it as an injury case by following

    principles that the claim would survive even after death of the

    original claimant. However, the question arises as to whether

    it could have been treated as injury case when the evidence

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    suggest that the injured claimant had though survived for few

    more years, he had unfortunately succumbed to the fatal

    injuries and therefore the multiplicand and multiplier to be

    applied in a fatal case were to be followed.

    14. As regards dependency loss / future prospective loss of

    income is concerned, admittedly, except for the oral evidence

    adduced by the claimant, no documentary proof of income has

    been produced on record. Considering the wide discretion

    conferred on the Tribunals in view of section 168 of the Motor

    Vehicle Act, the object of the legislation to award just and fair

    amount of compensation, the Tribunals/ Courts are to be on

    guard while exercising such discretion. It would be

    appropriate to take into consideration the guiding principles

    laid down in the case of General Manager, Kerala State

    Road Transport Corporation, Trivandrum v. Susamma

    Thomas (Mrs.) reported in (1994) 2 SCC 176. The Hon’ble

    Supreme Court observed that the determination of the

    quantum must answer what contemporary society “would

    deem to be a fair sum such as would allow the wrongdoer to

    hold up his head among his neighbours and say with their

    approval that he has done the fair thing”. The amount

    awarded must not be niggardly since the “law values life and

    limb in a free society in generous scales?” At the same time, a

    misplaced sympathy, generosity and benevolence cannot be

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    the guiding factor for determining the compensation. The

    object of providing compensation is to place the claimant(s),

    to the extent possible, in almost the same financial position, as

    they were in, before the accident and not to make a fortune

    out of misfortune that has befallen them.

    14.1 Keeping in mind the aforesaid principles, on careful

    consideration of the oral evidence of the wife of the deceased

    whose examination in chief has been recorded at Exh. 39, it is

    evident that she has categorically pleaded that her husband

    was earning monthly income of Rs. 4000/- to Rs. 5000/- by

    running transport company in the market yard. As against the

    aforesaid case pleaded by the claimant, if one looks at her

    cross-examination, she has reasserted her case by stating that

    her husband was well-educated and was running a transport

    business. However, she has fairly submitted that she has no

    documentary proof to establish his income. Except for the

    aforesaid evidence on record no other evidence with regard to

    actual income earned by the deceased was produced on

    record. The question arises whether the Tribunal was right in

    applying standard rates of minimum wages in absence of

    direct proof of the income, in the facts of the case. It is true

    that it is a settled position of law that the Tribunals are guided

    by the standard rates of minimum wages as notified by the

    State government to determine the income of the victims of

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    accident in absence of proof of income however, the same is

    not an absolute rule. In Sidram vs. Divisional Manager,

    United India Insurance Company Limited and Another

    reported in (2023) 3 SCC 439, Hon’ble Supreme Court in

    para Nos.58 & 59 has held as under:

    “58.This Court in the case of Kirti and Another v.
    Oriental Insurance Company Limited
    , (2021) 2 SCC
    166, while discussing the issue of proving the
    income of the victim, held as under:

    “39. Taking the above rationale into account, the
    situation is quite clear with respect to notional
    income determined by a court in the first category
    of cases outlined earlier, those where the victim is
    proved to be employed but claimants are unable to
    prove the income before the court. Once the victim
    has been proved to be employed at some venture,
    the
    necessary corollary is that they would be earning
    an income”.

    59. Thus, we are of the view, more particularly
    keeping in mind the dictum of this Court in the
    case of Kirti (supra) that it is not necessary to
    adduce any documentary evidence to prove the
    notional income of the victim and the Court can
    award the same even in the absence of any
    documentary evidence.
    In the case of Kirti (supra),
    it was stated that the Court should ensure while
    choosing the method and fixing the notional income
    that the same is just in the facts and circumstances
    of the particular case,neither assessing the
    compensation too conservatively, nor too liberally.”

    14.2 Considering the aforesaid principles and the evidence on
    record, this Court is required to look into the surrounding

    circumstances which can be gathered from the record. It has

    been established that the deceased was earning his livelihood

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    by running a transport business. It is also an admitted fact

    that the accident had taken place while the deceased was

    leaving from the market yard. With such circumstances on

    record there is no reason to disbelieve the case put forward

    by the claimant that the deceased was earning monthly Rs.

    4,000 from transport business.

    14.3 Noticing the age of the deceased, which has been

    determined by the Tribunal between the age group of 44 to 45

    years, and the fact that the deceased was a responsible

    earning member of family consisting of three, this Court has

    no reason to disbelieve the case put forward by the claimant

    earning income of Rs.4000/-. As submitted by the learned

    advocate for the respondent Insurance Company, the Tribunal

    has mainly borne in mind the minimum wages prevailing at

    the time of the accident for the purpose of determining just

    amount of compensation by taking care of future rise in the

    income. However, in the facts of the case, the circumstances

    which have emerged on record, considering the earning from

    transport business and the age of the deceased claimant, the

    Tribunal ought to have determined notional income for the

    purpose of determining just and fair amount of compensation.

    Thus, the income of the deceased is determined as Rs.4000/-

    instead of Rs.3000/- as awarded by the Tribunal.

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    14.4 The Tribunal has ignored the prospective income of the

    deceased for the purpose of determining the just amount of

    compensation applying the principles laid down by the

    Hon’ble Supreme Court in the case of Pranay Sethi (supra).

    Noticing the age group of the deceased being determined

    between 40 to 45 years and the deceased being self-employed,

    it would be appropriate to consider a 25% rise towards

    prospective income of the deceased. The prospective income

    of the deceased is thus determined as Rs.4000/- + Rs.1,000/-

    (25%)= Rs.5,000/-. The deduction of 1/3rd towards personal

    and living expenses of the deceased has rightly been

    considered by the Tribunal in the facts of the case. Applying

    1/3rd deduction towards personal and living expenses of the

    deceased, the loss incurred by the claimant towards monthly

    income of the deceased would come to Rs. 1667/- (Rs. 5000/3)

    (rounded off Rs.1666.66). Thus, the prospective income of the

    deceased being determined as Rs.3,333/-.

    14.5 At this stage, it is required to be noted that the

    P.M. note produced on record at Exh. 50 suggests the age of

    the deceased as 55 years on 02.05.2006 viz. when the post

    mortem was conducted by the medical officer. However,

    inadvertently, the Tribunal appears to have noted the age of

    the deceased as 45 years and has accordingly applied the

    multiplier of 15. As against that, the medical case papers

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    produced on record suggest that the deceased was aged 35

    years. It is required to be noted that the complaint was lodged

    by his son who is stated to be 22 years at the time of

    recording of the FIR on 19.03.2001. With such circumstances

    on record, it would be appropriate to treat the age of the

    deceased in the age group between 46 to 50 years. In a fatal

    accident case, applying the multiplier system, generally the

    multiplier applicable in the age group of 46 to 50 years would

    be 13. However, during the course of hearing, an argument

    was made by the learned advocate for the respondent

    insurance company to treat it as 11 as restricted by the

    Hon’ble Supreme Court in the recent judgment. It is required

    to be noted that unfortunately, the injured claimant lived only

    for 6 years after the accident.

    14.6 It has been argued that in similar circumstances, the

    Hon’ble Supreme Court in the case of Dhannalal alias

    Dhanraj (Dead) Thr. Lrs. Vs. Nasir Khan and others,

    Neutral Citation: 2025 INSC 1177, has taken into

    consideration the actual life span of the deceased which he

    survived after the accident for the purpose of a multiplier to

    be adopted. The Court observed that normally multiplier is

    applied on the assessment of normal life span where an

    injured or deceased would have earned to support his family,

    however, the injured having died in appeal proceedings, the

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    consideration would be with respect to loss occasioned to the

    estate of injured. Considering aforesaid principles, it was

    submitted by the learned advocate for respondent insurance

    company to adopt a multiplier of 6 in the facts of the case by

    considering the fact that the deceased had survived for six

    years after the accident.

    14.7 I have carefully considered the aforesaid argument of

    learned advocate for respondent insurance company, though

    the argument is appealing but it cannot be lost sight of the

    fact that the deceased in the facts of the case had not

    succumbed to the fatal injuries and had died naturally,

    whereas , in present case on hand, the injured has succumbed

    to fatal injuries as evident from the postmortem report. Thus,

    the ratio laid down in the case of Dhannalal (supra) would

    not be applicable in the present case. In my view, even the

    Tribunal committed grave error in treating it as a case of

    injury claims. On death of the injured claimant in peculiar

    facts of the case where he succumbed to fatal injuries, it was

    required to be treated as fatal accident case. Bearing in mind

    the aforesaid facts, instead of ‘Future loss of income’ as

    awarded by the Tribunal, ‘the loss of dependency’ if examined,

    then the correct multiplier to be applied would be 13.

    Considering the aforesaid components, the loss of dependency

    is determined as Rs. 5,19,948/-(Rs.3,333 x 12 x 13).

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    15. This brings me to the head of medical bills which has not

    been controversial. In absence of any challenge being made

    with regard to Rs.1,61,000/- being determined under the head

    of medical bills, the same is reaffirmed , more particularly, in

    absence of any further evidence being made demonstrating

    the actual expenses incurred towards the same. So far as the

    medical expenses are concerned, the medical bills have been

    produced on record at (Exh. 51) which suggest that an

    amount of Rs.1,61,000/- has been spent towards medical

    treatment.

    16. The other head which deserves consideration is the

    amount to be awarded under the head of pain, shock and

    suffering. Considering the peculiar facts of the case whereby

    it has emerged on record that the deceased had survived for

    six years and had been bedridden, in coma condition,

    considering the various medical case papers produced on

    record which supports the aforesaid aspect, in my view the

    Tribunal failed to live to the object of beneficial legislation

    which otherwise aims at just and reasonable amount of

    compensation to be awarded. On close appreciation of the

    medical case papers on record, it transpires that the

    deceased was hit by the speeding matador and was dragged

    for a distance of 15 feet between the wheels of the offending

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    vehicle which has caused serious injuries on his head more

    particularly the internal injuries received in the brain. The

    deceased had though survived the aforesaid injuries,

    however, had unfortunately succumbed to the same after

    having struggled for six years with such injuries. In such a

    peculiar set of facts, the Hon’ble Supreme Court has time

    again cautioned the Courts that while assessing the

    compensation in such a case, it should bear in mind that

    claimant would not come back to Court for enhancement of

    award at a later stage praying that something extra has been

    spent. Though the claimant had survived with such injuries he

    was remained completely in coma condition and was

    bedridden for his remaining life till he survived as evident

    from the disability certificate and as mentioned in the cause

    title of the claim petition he was unable to speak,

    communicate and thus, he was unable to enjoy the pleasures

    of life with such vegetative existence. However, since the

    injured had expired, the question arises as to whether the

    claimants would be entitled to the aforesaid compensation. In

    the case of Oriental Insurance Company ltd. vs. Kahlon

    reported in (2022) 13 SCC 494, the Hon’ble Supreme Court

    in para 20 has observed that in personal injuries the claim for

    pain, shock and suffering will be unsustainable. However, it is

    required to be noted that it was a case where the injured

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    claimant had expired pending the appeal but his death was

    not attributable on account of injuries sustained. In my view,

    the Tribunal ought to have objectively considered the amount

    of compensation under the head of pain, shock and suffering.

    Considering the peculiar facts and circumstances of the case

    even after taking a very conservative view of the matter, it

    would be appropriate to consider the amount of Rs.3 lakhs

    towards the head of pain, shock and suffering.

    18. The attendant charges which have been sought for in

    the peculiar facts of the case, it is evident that the Tribunal

    has failed to take into consideration the fact that the injured

    had undergone prolonged medical treatment for almost a

    period of 6 years. With such circumstances, the Hon’ble

    Supreme Court has recognised the multiplier system factor to

    be borne in mind for the purpose of determination of just

    compensation under the head of attendant charges. At this

    stage it would be appropriate to revisit the judgment of

    Hon’ble Supreme Court in the case of Kajal Vs. Jagdish

    Chand reported in (2020) 4 SCC 413.

    22. The attendant charges have been awarded by
    the High Court @ Rs 2500 per month for 44 years,
    which works out to Rs 13,20,000. Unfortunately.
    this system is not a proper system. Multiplier
    system is used to balance out various factors.
    When compensation is awarded in lump sum,
    various factors are taken into consideration. When

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    compensation is paid in lump sum, this Court has
    always followed the multiplier system. The
    multiplier system should be followed not only for
    determining the compensation on account of loss
    of income but also for determining the attendant
    charges, etc. This system was recognised by this
    Court in Gobald Motor Service Lid. v. R.M.K.
    Veluswamito The multiplier system factors in the
    inflation rate, the rate of interest payable on the
    lump sum award, the longevity of the claimant,
    and also other issues such as the uncertainties of
    life. Out of all the various alternative methods, f
    the multiplier method has been recognised as the
    most realistic and reasonable method. It ensures
    better justice between the parties and thus results
    in award of “just compensation” within the
    meaning of the Act.

    23. It would be apposite at this stage to refer to the
    observation of Lord Reid in Taylor v. O’Connor: (AC p.

    128)

    “Damages to make good the loss of dependency over a
    period of years must be awarded as a lump sum and
    that sum is generally calculated by applying a
    multiplier to the amount of one year’s dependency.
    That is a perfectly good method in the ordinary case
    but it conceals the fact that there are two quite
    separate matters involved the present value of the
    series of future payments, and the discounting of that
    present value to allow for the fact that for one reason
    or another the person receiving the damages might
    never have enjoyed the whole of the benefit of the
    dependency. It is quite unnecessary in the ordinary
    case to deal with these matters separately. Judges and
    counsel have a wealth of experience which is an
    adequate guide to the selection of the multiplier and
    any expert evidence is rightly discouraged. But in a
    case where the facts are special I think that these
    matters must have separate consideration if even
    rough justice is to be done and expert evidence may
    be valuable or even almost essential. The special
    factor in the present case is the incidence of income
    tax and, it may be. surtax.”

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    24. This Court has reaffirmed the multiplier method in
    various cases like MCD v. Subhagwanti, U.P. SRTC v.
    Trilok Chandra
    , Sandeep Khanuja v. Atul Dande14, This
    Court has also recognised that Schedule II of the Act can
    be used as a guide for the multiplier to be applied in
    each case. Keeping the claimant’s age in mind, the
    multiplier in this case should be 18 as opposed to 44
    taken by the High Court.

    25. Having held so, we are clearly of the view that the
    basic amount taken for determining the attendant
    charges is very much on the lower side. We must
    remember that this little girl is severely suffering from
    incontinence, meaning that she does not have control
    over her bodily functions like passing urine and faeces.
    As she grows older, she will not be able to handle her
    periods. She requires an attendant virtually 24 hours a
    day. She requires an attendant who though may not be
    medically trained but must be capable of handling a child
    who is bedridden. She would require an attendant who
    would ensure that she does not suffer from bedsores. The
    claimant has placed before us a notification of the State
    of Haryana of the year 2010, wherein the wages for
    skilled labourer is Rs 4846 per month. We, therefore,
    assess the cost of one attendant at Rs 5000 and she will
    require two attendants which works out to Rs 10,000 per
    month, which comes to Rs 1,20,000 p.a., and using the
    multiplier of 18, it works out to Rs 21,60,000 for the
    attendant charges for her entire life. This takes care of
    all the pecuniary damages.

    19. Applying the aforesaid principles in the facts of the case,

    considering the fact that the accident had taken place in the

    year 2001 and the rates of minimum wages notified by the

    State of Gujarat during the aforesaid period, it can be inferred

    that the claimant would have incurred Rs.2,100/- in case if an

    attendant was engaged to take care of the injured for 24/7

    hours. Considering the fact that the injured had survived for 6

    years, applying the aforesaid minimum wages, the claimant

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    shall be entitled to an amount of Rs.1,51,200/- towards the

    head of attendant charges. The amount of Rs.24,000 awarded

    under the head of attendant charges, food etc. by the Tribunal

    is considered under the head of special diet considering

    prolonged treatment of the injured. Since the deceased has

    expired, the claimants shall be entitled to such an amount

    having incurred expenses towards the same as part of the

    estate of the deceased.

    20. As regards the compensation sought towards

    transportation expenses are concerned the same is quantified

    to Rs.20,000/- in the facts of the case. It is required to be

    noted that the Tribunal has considered compensation for loss

    of estate and funeral expenses as a part of conventional

    amount and has held claimants entitled for Rs.20,000/-, under

    the head of conventional amount for the loss of estate and for

    the funeral expenses. It is required to be noted that the

    injured claimant has succumbed to the injuries after

    struggling for six years. The cause of death is evident from the

    post mortem report produced on record is due to the injuries

    sustained through the motor vehicle accident. In such

    circumstances, considering the fact that the claimant have

    pursued the remedy of appeal essentially praying for

    enhancement of compensation, the claimant shall be entitled

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    to enhanced amount under the head of funeral expenses and

    loss of estate, in view of subsequent decision of the Hon’ble

    Supreme Court in the case of Pranay Sethi (supra). Thus,

    the amount of compensation under the head of funeral

    expenses is determined as Rs.18,150/- and towards loss of

    estate is fixed as Rs.18,150/-.

    21. In view of the above discussions, since the amount of

    compensation is re-determined under different heads, the

    total amount of compensation is computed as under:-

                             Sr.                                                    Tribunal          Final amount
                                                  Particulars
                             No.                                                      (Rs.)               (Rs.)
                               1.        Future loss of income                      3,60,000/-            5,19,948/-
                               2.          Conventional head                         20,000                 18,150/-
                               3.           Funeral expenses                         5,000/-                18,150/-
                               4.           Attendant charges                       24,000/-              1,51,200/-
                               5.                 Special diet                         Nil                  24,000/-
                               6.                 Medical bills                     1,61,000/-            1,61,000/-
                               7.                Transportation                        Nil                  20,000/-
                                                 Pain, shock and
                               8.                                                      Nil                3,00,000/-
                                                    suffering
                                                 Total amount of
                               9.                                                   5,70,000/-           12,12,448/-
                                                  compensation
                                          Enhanced amount of
                              10.                                                                        6,99,448/-
                                            Compensation
                              11.                   Interest                                                  7.5%
    
    
                           Note:          Enhanced compensation considered as per Net
    
    
    
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                           Compensation Rs.5,13,000/-.
    
    

    22. Thus, the claimants/appellants herein are hereby held

    entitled to total amount of compensation of Rs.12,12,448/-

    with interest at the rate of 7.5% per annum from the date of

    filing of the claim petition till its realization, to be realized

    from the original opponents jointly and severally.

    23. For the foregoing reasons, the First Appeal is allowed.

    The impugned judgment and award dated 30.06.2014 passed

    by Motor Accident Claims Tribunal (Aux.) at Gondal in MACP

    No.249 of 2001 is hereby modified by holding the original

    claimants entitled to total compensation of Rs.12,12,448/- to

    be realized from original opponents jointly and severally with

    interest and costs.

    24. In view of the aforesaid directions, the respondent No.2-

    Insurance Company is directed to deposit enhanced amount

    of compensation of Rs.6,99,448/- with interest at the rate of

    7.5% per annum from the date of filing the claim petition till

    its actual realization with proportionate costs with the

    concerned Tribunal within a period of six weeks from the date

    of receipt of certified copy of this order. On deposit of entire

    amount of compensation with the concerned Tribunal, the

    Tribunal shall be liberty to proceed with the release and

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    disbursement of the entire award amount as per the

    apportionment which may be directed by the Tribunal in

    favour of the original claimants, subject to due verification

    strictly adhering to 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. The Tribunal shall be at liberty to verify the aspect

    of court fees, if any, to be realized from the claimants before

    parting with the amount of compensation.

    25. In view of above, the First Appeal stands disposed in the

    aforesaid terms. The Record and proceedings are hereby

    directed to be sent back to the concerned Tribunal forthwith

    with the Writ of this judgment.

    26. In view of the disposal of the main matter, connected Civil

    Application and Misc. Civil Application does not survive and

    stands disposed of accordingly.

    (NISHA M. THAKORE,J)
    MARRY VADAKKAN/ RATHOD KAUSHIKSINH

    Page 35 of 35

    Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Tue May 19 2026 Downloaded on : Fri May 22 22:02:39 IST 2026



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