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
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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,
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
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