KEYUR CHAMPAKBHAI MAKADIA (PATEL) vs SHANKARNARAYAN PADMANATHAN
- Court
- Gujarat High Court
C/FA/183/2024 JUDGMENT DATED: 24/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 183 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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KEYUR CHAMPAKBHAI MAKADIA (PATEL)
Versus
SHANKARNARAYAN PADMANATHAN & ORS.
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Appearance:
MR PREMAL S RACHH(3297) for the Appellant(s) No. 1
MS DIMPLE A THAKER(6838) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 2,3,5
SERVED BY PUBLICATION IN NEWS for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 24/07/2026
JUDGMENT
1. The captioned appeal is filed against the impugned judgment and
award dated 27.12.2006 passed by the learned Motor Accident Claims
Tribunal (Auxiliary), F.T.C. No.4, Jamnagar in MACP No.960/1998,
whereby the learned Tribunal had partly allowed the claim petition and
awarded a sum of Rs.3,76,000/- as a compensation along with interest
at the rate of 7.5% per annum from the date of filing of claim petition till
its realization.
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2. The succinct facts leading to file the captioned appeal are that on
13.12.1997, the claimant-Shree Keyur Champakbhai Makadia (Patel)
was riding on a motorcycle bearing registration no.GJ-10-C-5989 as a
pillion rider. When he reached at the place of accident, in the meantime,
the respondent no.1 herein came by driving a scooter bearing
registration no.MH-31-C-7007 at an excessive speed, in a rash and
negligent manner and dashed with the said motorcycle, on which the
claimant was travelling, as a result of which the claimant fell down on
the road. It is further averred in the claim petition that at the very same
time, a bus bearing registration no.MH-12-9244 was proceeding on the
same road at very high speed, in a rash and negligent manner and due
to its excessive speed, the driver of the bus could not control the vehicle
and dashed the bus with the claimant. Due to the impact of the said
accident, the claimant sustained grievous injuries.
3. On being served, the respondent no.4/insurance company filed its
written statement at Exh.27, thereby denying all the averments made in
the claim petition and prayed for rejection of the claim petition.
4. Having considered the pleadings, evidence led by the respective
parties and the submissions canvassed by the respective parties, the
learned Tribunal had partly allowed the claim petition and awarded a
sum of Rs.3,76,000/- as a compensation along with interest at the rate
of 7.5% per annum from the date of filing of claim petition till its
realization.
5. Being aggrieved and dissatisfied with the impugned judgment and
award, the original claimant/appellant herein challenged the impugned
judgment and award on the ground of quantum.
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6. Heard learned counsels for the parties.
7. Mr. Premal S. Rachh, learned counsel appearing on behalf of
original claimant/appellant herein vehemently submitted that at the time
of accident, the claimant/appellant was student of B.Com. and he was
aged about 19 years; however, the learned Tribunal has assessed the
annual income of the claimant/appellant as Rs.15,000/- which is at
lower side. He submitted that the learned Tribunal ought to have
considered the minimum wages for the skilled worker prevalent at the
time of accident. He further submitted that the learned Tribunal has not
considered the future prospects of the claimant/appellant. He submitted
that 40% of the notional income ought to have been added on account
of future prospects of the claimant/appellant. In support of his
contention, learned counsel for appellant placed the reliance upon the
judgment rendered by the Hon'ble Apex Court in case of National
Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16)
SCC 680 and Sidram Vs. The Divisional Manager, United India
Insurance Company Limited & Anr., reported in 2022 INSC 1202.
8. Learned counsel for the appellant further submitted that though
the claimant/appellant was aged about 19 years; however, the learned
Tribunal has applied the multiplier of 16 instead of 18. Therefore, he
submitted that the learned Tribunal ought to have applied the multiplier
of 18.
9. Learned counsel for the appellant further submitted that the
learned Tribunal has awarded the compensation towards actual loss of
income at very lower side. He submitted that owing to the injuries
sustained in the accident, the claimant/appellant has lost one year of his
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studies; however, the learned Tribunal has not considered the same.
Therefore, he submitted that the learned Tribunal ought to have
awarded the just compensation under the head of actual loss of income
and loss of studies.
10. Learned counsel for the appellant further submitted that the
learned Tribunal has awarded a meagre amount of Rs.20,000/- under
the head of special diet, attendant charges and transportation. He
submitted that after the accident, the claimant/appellant was admitted to
the hospital in Pune and thereafter he was shifted from Pune to
Jamnagar; however, the learned Tribunal has ignored all these facts
and awarded a meagre amount of Rs.20,000/- under this head. Learned
counsel for the appellant further submitted that owing to the injuries
sustained in the accident, the claimant/appellant has to undergo surgery
in future; however, the learned Tribunal has awarded meagre amount of
compensation under the head of future surgery. Therefore, he prayed
for enhancement of compensation under these heads.
11. Learned counsel for the appellant further submitted that owing to
the injuries sustained in the accident, the claimant/appellant has
remained hospitalized for a long period. He received the treatment at
Pune and thereafter he received the treatment at Jamnagar. During the
course of treatment, he underwent surgical intervention and suffered a
lot of mental agony, pain, shock and suffering; however, the learned
Tribunal has awarded a meagre amount of compensation under the
head of pain, shock and suffering. Therefore, he prayed for
enhancement of compensation under this head.
12. Learned counsel for the appellant further submitted that at the
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time of accident, the claimant/appellant was travelling on a motorcycle
as a pillion rider. He further submitted that the accident has occurred
owing to the composite negligence of the rider of the scooter bearing
registration no.MH-31-C-7007 and the driver of the bus bearing
registration no.MH-12-9244. He submitted that in case of composite
negligence, the claimant/appellant can recover the compensation from
any of the tortfeasors. He further submitted that the learned Tribunal
was not even required to apportion the liability; however, the learned
Tribunal, in the operative portion of the judgment, apportioned the
liability between the tortfeasors. He submitted that the said direction of
the learned Tribunal in the operative portion is against the settled
proposition of law. In support of his contention, learned counsel for the
appellant placed the reliance upon the judgment rendered by the
Hon’ble Apex Court in case of Khenyei Vs. New India Assurance
Company Limited, reported in 2015 (9) SCC 273. Having placed the
reliance upon the aforesaid judgment, learned counsel for the appellant
submitted that the captioned appeal deserves to be allowed.
13. Mr. Dimple A. Thaker, learned counsel appearing on behalf of
respondent no.4/New India Assurance Co. Ltd., vehemently submitted
that at the time of accident, the claimant/appellant was a student and he
was not having any actual income, therefore, the learned Tribunal has
rightly assessed the annual income of the claimant/appellant as
Rs.15,000/-. She further submitted that the learned Tribunal has
awarded just compensation under all the heads of compensation.
Therefore, she prayed for dismissal of the captioned appeal.
14. Learned counsel for the respondent no.4/insurance company
further submitted that the captioned appeal came to be filed on
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17.04.2007 and after filing the appeal, the claimant/appellant has not
pursued the matter with the registry. She further submitted that it
appears that the file was misplaced and thereafter the same was
reconstructed on 18.12.2023. Therefore, she submitted that the
insurance company cannot be saddled with the liability to pay the
interest for the period commencing from the date of filing of claim
petition i.e. 17.04.2007 till 18.12.2023. In support of her contention, she
placed the reliance upon the judgment rendered by the Hon'ble Apex
Court in case of New India Assurance Company Ltd. Vs. Hansaben
Sureshbhai Prajapati & Ors., reported in (SLP (C) No.15860 of 2025).
15. In rebuttal, Mr. Premal S. Rachh, learned counsel appearing on
behalf of original claimant/appellant herein, submitted that the mistake
of the registry cannot be attributed to the claimant/appellant as the
registry has misplaced the file. He further submitted that initially the
present appeal came to be filed by another lawyer and thereafter, when
the claimant/appellant engaged him as a lawyer, he inquired from the
registry and upon his request, the file came to be reconstructed. He
submitted that the claimant/appellant should not suffer on account of
mistakes of the previous lawyer and the registry, therefore, the
claimant/appellant is entitled to interest for the entire period.
16. Having considered the submissions of the learned counsels for
the parties and having gone through the record, it is to be noted that the
appellant/claimant has preferred the present appeal seeking
enhancement of compensation.
17. So far as the compensation is concerned, at the time of accident,
the claimant/appellant was aged about 19 years and he was studying in
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B.Com. at Pune. The learned Tribunal has assessed the income of the
claimant/appellant as Rs.15,000/- per annum. It is true that at the time
of accident, the claimant/appellant was a student, therefore, he was not
having any actual income. Recently, the Hon'ble Apex Court in the case
of Hitesh Nagjibhai Patel Vs. Bababhai Nagjibhai Rabari, reported in
2025 (0) AIJEL-SC 75833, held that in the case of a student, the
Tribunal or to Court has to assess the income of the student as per the
minimum wages for the skilled worker prevalent at the time of accident.
In the present case, the accident took place on 13.12.1997. At the
relevant point of time, the minimum wages for the skilled worker was
Rs.1,700/- per month as notified by the Government of Gujarat.
Therefore, the monthly income of the claimant/appellant is reassessed
at Rs.1,700/- per month. At the time of accident, the claimant/appellant
was aged about 19 years, therefore, 40% of the monthly income is to be
added on account of future prospects of the claimant/appellant in view
of the ratio laid down by the Hon'ble Apex Court in case of Pranay Sethi
(supra) and Sidram (supra). Thus, after adding 40% of the monthly
income on account of future prospects of the claimant/appellant, it
would come to Rs.2,380/- i.e. (1,700+1,700X40%). The learned Tribunal
has assessed the functional disability at 35%, which is not in dispute.
Thus, considering the functional disability of 35% and applying the
multiplier of 18 as per the age of the claimant/appellant, the future loss
of income would come to Rs.1,79,928/- i.e. (2,380X35%X12X18).
18. The learned Tribunal has awarded a sum of Rs.10,000/- under
the head of actual loss of income. It is not in dispute that at the time of
accident, the claimant/appellant was studying in B.Com. at Pune. It
emerges from the record that the accident took place on 13.12.1997.
After the accident, he received medical treatment at Pune till
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29.12.1997 and thereafter he was shifted to Jamnagar, where he
received the treatment for a considerable period. During the period of
treatment, his studies were affected; however, the learned Tribunal has
not awarded any compensation under the head of loss of studies. Thus,
having regard to the totality of facts and circumstances, a sum of
Rs.50,000/- is awarded under the head of actual loss of income and
loss of studies.
19. The learned Tribunal has awarded a sum of Rs.20,000/- under
the head of special diet, attendant charges and transportation. It
emerges from the record that after the accident, he received the
treatment at Pune and thereafter, he was shifted to Jamnagar. He was
shifted by ambulance from Pune to Jamnagar. He also remained
hospitalized for a considerable period and thereafter, he was treated as
an outdoor patient. Thus, considering the period of treatment,
transportation from Pune to Jamnagar and all the attending
circumstances, the compensation awarded under this head is enhanced
from Rs.20,000/- to Rs.50,000/-.
20. The learned Tribunal has awarded a sum of Rs.30,000/- under
the head of future surgery. The claimant/appellant has examined Dr.
Madhukar M. Oza, who proved on record that the claimant/appellant
has to undergo the surgery in future for the injuries sustained in the
accident. Thus, considering the evidence on record, the compensation
awarded under the head of future surgery is enhanced from Rs.30,000/-
to Rs.50,000/-.
21. The learned Tribunal has awarded a sum of Rs.10,000/- under
the head of loss of amenities. The compensation awarded under this
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head requires no interference and accordingly, the same is upheld.
22. The learned Tribunal has awarded a sum of Rs.30,000/- under
the head of pain, shock and suffering. It is evident from the record that
the claimant/appellant has sustained multiple fractures in the vehicular
accident. He remained hospitalized for a quite long period and
thereafter, he received the treatment as an outdoor patient. Thus,
considering all the attending circumstances, the compensation awarded
under this head is enhanced from Rs.30,000/- to Rs.75,000/-.
23. The learned Tribunal has awarded the compensation under the
head of medical expenses to the tune of Rs.1,50,000/-. The learned
Tribunal has awarded the said amount of compensation on the basis of
the evidence produced on record. Therefore, no interference is required
in the compensation awarded under this head.
24. In view of the above discussion, the appellant/claimant shall be
entitled for the following amount of compensation under the following
heads:-
Sr. No. Particular Amount
1. Future loss of income 1,79,928/-
2. Actual loss of income and loss of
studies
50,000/-
3. Medical expenses 1,50,000/-
4. Pain, shock and suffering 75,000/-
5. Special diet, attendant charges and
transportation
50,000/-
6.
Future surgery 50,000/-
7. Loss of amenities 10,000/-
Total 5,64,928/-
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25. The learned Tribunal has already awarded a sum of
Rs.3,76,000/- as a compensation, therefore, the original
claimant/appellant shall be entitled for additional compensation of
Rs.1,88,928/- i.e. (5,64,928-3,76,000).
26. It has been argued on behalf of the learned counsel for the
respondent no.4/insurance company that the insurance company
cannot be saddled with the liability to pay the interest from the date of
filing of the appeal till the date of reconstruction thereof, as the
claimant/appellant had totally abandoned the appeal and had not shown
any interest in pursuing the matter. Reliance has also been placed upon
the judgment rendered by the Hon'ble Apex Court in case of Hansaben
Sureshbhai Prajapati & Ors. (supra). So far as the contention of the
learned counsel for the insurance company is concerned, it emerges
from the record that the present appeal came to be filed on 17.04.2007
against the impugned judgment and award dated 27.12.2006, which
was preferred within the period of limitation. It also emerges from the
record that the appeal was initially filed by another lawyer, who has
since been elevated as a Designated Senior Advocate of this High
Court and thereafter, the present lawyer has been engaged by the
claimant/appellant. It also emerges from the record that soon after his
engagement as a lawyer for the claimant/appellant, he inquired about
the status of the matter from the registry and thereafter, the record was
reconstructed. The appeal was reconstructed on 18.12.2023 and
thereafter it was registered on 11.01.2024. Thus, it is evident from the
record that there was no mistake on the part of the claimant/appellant. It
was either due to the lackadaisical approach of the previous lawyer who
had filed the appeal or the mistake of registry which misplaced the file.
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Therefore, the claimant/appellant cannot be made to suffer on account
of the mistake of the previous lawyer or the mistake of the registry. So
far as the ratio of the judgment rendered by the Hon'ble Apex Court in
case of Hansaben Sureshbhai Prajapati & Ors. (supra) is concerned,
the same is not applicable to the present facts and circumstances, as
the delay caused in that matter was attributed to the claimant/appellant.
However, in the present case, no delay can be attributed to the
claimant/appellant. Therefore, the contention raised by the learned
counsel for the insurance company is not sustainable and hence
rejected. The learned Tribunal has awarded the interest at the rate of
7.5% per annum, therefore, the original claimant/appellant shall be
entitled for the same rate of interest on additional amount of
compensation from the date of filing of claim petition till its realization.
27. Perusal of the impugned judgment and award further transpires
that the claimant/appellant sustained the injuries owing to the composite
negligence of the rider of the scooter as well as the driver of the bus.
However, the learned Tribunal in the operating portion of the judgment,
has apportioned the liability between the tortfeasors. In case of Khenyei
(supra), the Hon'ble Apex Court has held that in case of composite
negligence, the claimant/appellant can recover the compensation from
any of the tortfeasors. Thus, in view of the ratio laid down by the Hon'ble
Apex Court in case of Khenyei (supra), the said direction of the learned
Tribunal in the operating portion of the judgment is required to be
modified. Hence, the respondent no.4/insurance company is directed to
satisfy the award at the first instance and thereafter may recover 90% of
the awarded amount along with interest from the other tortfeasors jointly
and severally by way of preferring the execution petition before the
learned Tribunal concerned.
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28. In view of the above discussion, the captioned appeal stands
allowed partly and the impugned judgment and award is to be modified
to the aforesaid extent. The respondent no.4/insurance company is
directed to deposit the amount of compensation along with interest
within a period of 8 weeks from the date of receipt of copy of this order
and thereafter the insurance company shall be at liberty to recover 90%
of the awarded amount along with interest from the other tortfeasors
jointly and severally by way of preferring the execution petition before
the learned Tribunal concerned.
29. Upon depositing of the said amount of compensation, the learned
Tribunal shall disburse the entire amount of compensation along with
interest to the original claimant/appellant herein after deducting deficit of
Court fee, if any, after due verification. The amount, if any, lying
deposited with the registry of this Court, the same shall be transmitted
to the learned Tribunal concerned. No order as to costs.
30. Record & Proceedings, if any, be sent back to the learned
Tribunal concerned.
(MOOL CHAND TYAGI, J)
HARSHIT
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