ALMABANU WD/O. SIKANDAR HUSAIN RAJAD vs VIKRAMSINH GEMALSINH CHAUHAN

C/FA/2727/2025 JUDGMENT DATED: 16/10/2026
(GJHC240374682025)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2727 of 2025
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ALMABANU WD/O. SIKANDAR HUSAIN RAJAD & ORS.
Versus
VIKRAMSINH GEMALSINH CHAUHAN & ORS.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5,6,7,8
MASUMI V NANAVATY(9321) for the Defendant(s) No. 3
MR DHRUV K DAVE(6928) for the Defendant(s) No. 1,2
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 16/10/2026

JUDGMENT
1. Heard learned advocate Mr. Nishit Bhalodi for the
appellants – original claimants, learned advocate Mr. Vibhuti
Nanavati for respondent–insurance company, and learned
advocate Mr. Dhruv K. Dave appearing on behalf of opponent
No.1.
2. Admit. Learned advocates Mr.Nanavati and
Mr.Dave waive service of notice of admision for and on behalf
of respecive respondents.
3. Feeling aggrieved by the judgment and award
dated 02.01.2025 passed by the learned Motor Accident
Claims Tribunal, Bharuch, in MACP No. 255 of 2019, the
appellants have preferred the present appeal under Section
173 of the Motor Vehicles Act, 1988 (hereinafter referred to
as “the Act”). By the impugned judgment and award, the
learned Tribunal assessed the total compensation at
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Rs.21,65,260/- with interest at the rate of 9% per annum from
the date of the claim petition till its realization and directed
opponent Nos.1 and 2 to pay the compensation jointly and
severally, and exonerated the Insurance Company from its
liability to satisfy the award.
4. The factual matrix of the case, according to the
claimants, is that on 21.03.2019, at about 8.30 a.m., the
deceased was travelling from village Khimali to village
Muland. At that time, opponent No.1, while driving the tractor
bearing registration No. GJ-5AA-2087 at a high speed and
without observing the traffic rules, drove the tractor towards
the side of the road, as a result of which the tractor
overturned. Consequently, the deceased sustained grievous
injuries and died.
4.1 FIR was registered against the tractor driver
before Kim Police Station vide C.R. No. I-14 of 2019.
4.2 The deceased was 22 years of age, was hale and
hearty, and was earning Rs.9,000/- per month by doing animal
husbandry work, thereby maintaining his family.
4.3 On the basis of the aforesaid pleadings, the
claimants filed a claim petition under Section 166 of the Act
before the learned Tribunal, claiming compensation of
Rs.14,00,000/- with interest and costs.
4.4 Opponent Nos.1 and 2 filed their reply, inter alia,
denying the averments and allegations made in the claim
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petition. They contended that opponent No.1 was driving the
tractor at a moderate speed, but a stone suddenly came under
the wheel of the tractor, causing it to overturn. It was,
therefore, contended that opponent No.1 was not negligent in
causing the accident.
4.5 Opponent No.3- Insurance Company, filed its
written statement at Ex.19. While adopting a defence similar
to that of opponent Nos.1 and 2, the insurance company
denied the averments made in the claim petition. It further
contended that the deceased was travelling in the tractor
alongside the driver, contrary to the permitted seating
capacity, and his status at the time of the accident was that of
a gratuitous passenger. It was further contended that
opponent No.1 had committed a breach of the terms and
conditions of the insurance policy by permitting the deceased
to travel as a gratuitous passenger. Accordingly, the Insurance
Company contended that it could not be held liable to pay the
compensation.
4.6 The learned Tribunal, after framing the issues at
Ex. 23 and appreciating the evidence on record, assessed the
compensation and passed the impugned judgment and award
in the aforesaid terms. While exonerating the insurance
company from its liability, the learned Tribunal recorded its
findings in paragraphs 18.3 and 18.5 as under:
18.3 Considering the rival submissions made by Ld.
Advocates for the parties, it is required to be considered
whether the deceased was pedestrian going with buffaloes
or was sitting on the tractor besides driver of tractor. In
issue No.1, relying on the material on record, this tribunal
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has held that deceased was sitting besides driver of tractor.
However, for deciding the liability of the insurance company,
the said question is once again discussed in the following
paragraphs.
18.4 If the FIR at Exh.34 is perused, the same was filed by
Mukunderbhai Husain Rajad and as per the FIR, deceased
was sitting on the tractor along with driver Vikramsinh and
it is not stated in the FIR that deceased was going with
buffaloes in the field. Therefore, as the FIR is produced by
the claimants, the same is to be considered in the facts and
circumstances of the present case. The claimants could have
examined Mukunderbhai Husain Rajad who filed FIR as well
as witnesses Jamalbhai Hajibhai Sindhi and Hasambhai
Subhanbhai Sindhi. However, none of them are examined,
and therefore adverse inference is required to be drawn
against the claimants. The claimants have relied upon the
deposition of Jamalbhai recorded by criminal court in CC
No.1775/2019. However, the entire deposition is not
produced on record but the judgment of CC No.1775/2019 is
produced at Exh.43. In the said judgment, summary of the
deposition of Jamalbhai is mentioned, in which he has stated
that deceased was going along with buffaloes and dashed by
tractor from behind. However, if police statement of
Jamalbhai is perused at Exh.49, he has not seen the accident
at all. Further, as per the police statement also, deceased
was sitting on the tractor besides driver of tractor
Vikramsinh and at that time tractor turned turtle and
deceased pushed below the tractor and succumbed to the
injuries. Further, if the judgment of the criminal court
passed in CC No.1775/2019 is perused, complainant
Mukandarbhai Rajad specifically stated that deceased was
sitting besides driver of the tractor. Therefore, from the
material on record, it is established that deceased was
sitting on the tractor besides driver and he died as the
tractor turned turtle.
18.5 If the R. C. Book of tractor No.GJ5-AA-2087 at Exh.38 is
perused, it is clear that seating capacity including driver is
one. Further, on perusing the insurance policy of tractor
No.GJ5-AA-2087 at Exh.47, seating capacity is only one.
Therefore, there is breach of policy conditions as deceased
was travelling as unauthorized /gratuitous passenger on the
tractor and looking to the policy, no risk of the passenger is
covered. Therefore, no liability can be fastened upon the
insurance company. As the deceased was gratuitous
passengers, order of pay and recover cannot be passed
against insurance company. Hence, insurance company is
required to be exonerated from its liability to pay
compensation to the claimants. Thus, opponent Nos.1&2 are
jointly and severally liable to pay the amount of
compensation to the claimants with proportionate cost and
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simple interest @ 9% p.a. from the date of claim petition till
realization and hence, I answer Issue No.2 in the
'affirmative' accordingly and for Issue No.3, final order is
passed.
4.7 Being aggrieved by the impugned judgment and
award, the claimants have preferred the present appeal.
5. I have heard learned advocates for the respective
parties and perused the record and proceedings as well as
impugned judgment and order. I am unable to comprehend
how the learned Tribunal, despite recording a finding that the
deceased was sitting in the tractor alongside the driver,
proceeded to exonerate the Insurance Company without
considering the law laid down by the Hon’ble Supreme Court
in Shivraj v. Rajendra & Anr. (2018) 10 SCC 432. The
facts of the present case warranted an order directing the
Insurance Company to pay the compensation in the first
instance and thereafter recover the same from the owner of
the offending vehicle. The learned Tribunal ought to have
taken note of the decision in Shivraj (supra), wherein, in an
identical factual situation, the Hon’ble Supreme Court
directed the insurer to pay and recover the compensation. The
failure to consider the aforesaid binding precedent has
rendered the impugned judgment legally unsustainable to that
extent.
6. Be that as it may, on examining the facts of the
present case, it appears that the claimants pleaded that the
deceased was a pedestrian at the time of the accident.
However, the police investigation papers on record, as
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considered by the learned Tribunal, sufficiently establish that
the deceased was travelling in the tractor alongside its driver,
despite there being no permitted seating capacity for him.
Such travel amounted to breach of the terms and conditions of
the insurance policy. The Hon’ble Supreme Court, in Shivraj
(supra), directed to invoke the principle of “pay and recover”.
The relevant observations made in paragraphs 10 and 11 are
reproduced hereinbelow:
“10. The High Court, however, found in favour of respondent
No.2 (insurer) that the appellant travelled in the tractor as a
passenger which was in breach of the policy condition, for
the tractor was insured for agriculture purposes and not for
carrying goods. The evidence on record unambiguously
pointed out that neither was any trailer insured nor was any
trailer attached to the tractor. Thus, it would follow that the
appellant travelled in the tractor as a passenger, even
though the tractor could accommodate only one person
namely the driver. As a result, the Insurance Company
(respondent No.2) was not liable for the loss or injuries
suffered by the appellant or to indemnify the owner of the
tractor. That conclusion reached by the High Court, in our
opinion, is unexceptionable in the fact situation of the
present case.
11. At the same time, however, in the facts of the present
case the High Court ought to have directed the Insurance
Company to pay the compensation amount to the claimant
(appellant) with liberty to recover the same from the tractor
owner, in view of the consistent view taken in that regard by
this Court in National Insurance Co. Ltd. Vs. Swarna Singh
& Ors.1 , Mangla Ram Vs. Oriental Insurance Co. Ltd.2 , Rani
& Ors. Vs. National Insurance Co. Ltd. & Ors.3 and including
Manuara Khatun and Others Vs. Rajesh Kumar Singh And
Others.4 In other words, the High Court should have partly
allowed the appeal preferred by the respondent No.2. The
appellant may, therefore, succeed in getting relief of
direction to respondent No.2 Insurance Company to pay the
compensation amount to the 1 (2004) 3 SCC 297 2 (2018) 5
SCC 656 3 2018 (9) SCALE 310 4 (2017) 4 SCC 796
appellant with liberty to recover the same from the tractor
owner (respondent No.1).
In Shivraj (supra), the
Hon’ble Supreme Court, in paragraphs 10 and 11,
held as under:
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7. In view of the aforesaid legal position, the present
case warrants the application of the principle of “pay and
recover”.
8. At this juncture, learned advocate Mr. Nanavati,
appearing for the insurance company, drew the attention of
this Court to the status of claimant Nos.5 to 8 and submitted
that they are the minor brothers and sisters of the deceased.
He further submitted that claimant No.4 is the father of the
deceased and that, in the presence of the father, claimant
Nos.5 to 8 could not be treated as dependants of the deceased
for the purpose of determining the deduction towards
personal and living expenses. He further contended that the
learned Tribunal had failed to consider this aspect and had
erroneously deducted only one-fifth of the deceased’s income
towards personal and living expenses, thereby resulting in an
excessive award of compensation.
9. Learned advocate Mr. Bhalodi, appearing for the
claimants, fairly conceded that the learned Tribunal had erred
in deducting only one-fifth of the deceased’s income towards
personal and living expenses. He, therefore, submitted that
the compensation may be recalculated in accordance with law.
10. Having considered the submissions advanced by
the learned advocates for the respective parties, I find
substantial force in the contention raised by learned advocate
Mr. Nanavati. Accordingly, the compensation is required to be
recalculated as follows:
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Particulars Amount (Rs.)
Total loss of dependency 18,14,400/-
Loss of spousal, parental & filial 1,93,600/-
Loss of estate and funeral expenses 36,300/
Total… 20,44,300/-
Less: compensation to be awarded 21,65,260/-
Additional amount 1,20,960/-
11. In view of the aforesaid calculation, the total
compensation payable to the claimants works out to
Rs.20,44,300/- as against Rs.21,65,260/- awarded by the
learned Tribunal. The rate of interest at 9% per annum from
the date of the claim petition till realization is maintained.
12. Accordingly, the claimants shall be entitled to
recover additional amount from opponent Nos.1 and 2, jointly
and severally, together with interest at the rate of 9% per
annum from the date of the claim petition till realization.
13. The Insurance Company shall satisfy the award in
the first instance and deposit the decretal amount, together
with interest thereon, before the learned Tribunal within nine
weeks from today. The Insurance Company shall thereafter be
entitled to recover the amount so deposited from the owner of
the offending vehicle by executing the present judgment in
accordance with law.
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14. Upon deposition of the decretal amount, the
learned Tribunal shall disburse the compensation to the
claimants in accordance with law after passing a fresh order
of disbursement in respect of claimant Nos.1, 2 and 4, if
required. While making the payment, the Tribunal shall
deduct the courts fees, if not paid, in accordance with
rules/law.
15. The present Appeal is allowed to the aforesaid
extent. The judgment and award dated 02.01.2025 passed by
the learned Motor Accident Claims Tribunal, Bharuch, in
MACP No. 255 of 2019, is hereby modified to the aforesaid
extent.
16. The Record and Proceedings, if any, be sent back to
the concerned Court.
(J. C. DOSHI,J)
MANOJ
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