HEIRS OF DECEASED KALUBHAI NANJIBHAI DESAI PATEL, KUNVARBEN vs ABDULSALAM @ RAYBAHAN S/O NOORMOHMED KHAN
- Court
- Gujarat High Court
C/FA/3457/2010 (GJHC240443722010) JUDGMENT DATED: 01/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3457 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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HEIRS OF DECEASED KALUBHAI NANJIBHAI DESAI PATEL,
KUNVARBEN & ORS.
Versus
ABDULSALAM @ RAYBAHAN S/O NOORMOHMED KHAN & ORS.
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Appearance:
MR HENIL M SHAH(10677) for the Appellant(s) No. 1,2,3,4,5,6
MR SHASHIKANT S GADE(1706) for the Defendant(s) No. 6
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
NOTICE ISSUED BY PUBLICATION for the Defendant(s) No. 1,2,4
UNSERVED EXPIRED (R) for the Defendant(s) No. 5
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 01/09/2026
JUDGMENT
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellants – original
claimants being aggrieved and dissatisfied with the judgment
and award dated 11.6.2010 passed by the Motor Accident
Claims Tribunal, Panchmahal at Godhra in Motor Accident
Claim Petition No.40 of 1991.
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2. Brief facts of the case are as under:
2.1 That deceased Kalubhai Nanjibhai Desai Patel was
travelling as passenger in car bearing registration No.GUY 207
from Godhra to Surat on 18.7.1990 and when the car reached
near village Khadki on Godhra Baroda Highway, at that time, the
driver Dhanjibhai parked the car on the left strip of the road for
attending nature calls. In the meantime, the opponent No.1 –
driver of truck bearing registration No.DIG 1800 came from
Baroda side and opponent No.2 – driver of another truck bearing
registration No.GQC 4433 came from Godhra side. That both
the trucks were being driven in rash and negligent manner and
with an excessive speed and that both the drivers could not
control their trucks and crushed the car, as a result, the victim
who was occupant of the car sustained injuries and later on
succumbed to the injuries.
3. Learned advocate Mr.Vishal Mehta appearing for
learned advocate Mr.Henil Shah for the appellants - claimants
has submitted that the deceased was the sole bread winner of
the family and he was 44 years old at the time of accident and
was engaged in the profession of diamond cutting. According to
the claimants, the deceased was earning Rs.2500/- per month to
maintain his family. The claim was filed against the driver,
owner and insurer of the truck bearing registration No.DIG 1800
and driver, owner and insurer of the truck bearing registration
No.GQC 4433. He submitted that learned Tribunal permitted
both the sides to lead the evidence and ultimately exonerated the
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driver, owner and insurer of truck bearing registration No.GQC
4433 from the liability to pay compensation qua the present
claimants. That learned Tribunal assessed the compensation at
Rs.4,80,000/- and in operative part of the order, learned
Tribunal permitted to recover 70% of the total amount of
compensation from opponent Nos.1, 2 and 3. However, in
paragraph 13 of the impugned judgment, it has been observed
by learned Tribunal that the insurance policy of truck No.DIG
1800 is not found or traced out and the claimants could not
produced and therefore, the window was kept open for claimants
to recover the amount of compensation upto 30% from the
opponent No.3 provided that the claimants or the insurance
company could produce the copy of the effective policy.
3.1 It is submitted that the claimants are aggrieved on
two aspects, firstly, that learned Tribunal has wrongly assessed
the amount of compensation and secondly since it is a case of
composite negligence, learned Tribunal could not deal with 30%
being the negligence of the driver of the car.
3.2 He has submitted that the compensation is required
to be enhanced by modifying the award impugned accordingly
and this appeal may be allowed.
4. Per contra , learned advocate for respondent –
Insurance Company has submitted that the impugned judgment
and award passed by the Tribunal is just and proper. The
Tribunal has rightly considered the income of the deceased. He
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has submitted that this appeal may be dismissed and no
interference be made by this Court.
5. Heard learned advocate Mr.Vishal Mehta for the
appellants – claimants, learned advocate Mr.Sunil Parikh for
respondent No.3 and learned advocate Mr.S.S.Gade for
respondent No.6.
6. Apt to note that the Motor Vehicle Act, 1988 is a
beneficial piece of Legislation. The concept of just and fair
compensation is integral and seminal to the MV Act. The
compensation to be awarded under the principle of just and fair
compensation to the injured of the road accident or the legal
representative/s of the deceased person is based on the principle
of fairness, reasonableness and equability. Anguish of the heart
or for mental turbulence being consequential result of the road
accident cannot be actually compensated, but the quint
essentiality lies in adopting holistic and pragmatic view to the
computation of the compensation for the loss sustained, which is
to be in the realm of realistic approximation. Although exact or
perfect arithmetical calculation of compensation for reparation of
the loss arrived from the road accident is almost impossible. The
Tribunal is bestowed with duty to make an endevour to award
just compensation regardless of the amount claimed by the
claimants. The determination of the quantum of compensation
therefore, must be liberal and not niggardly since the law values
life and limb in a free country in generous scale. Needless to
state that money may be awarded, so that something tangible
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may be procured to reach something else of the like nature,
which has been destroyed or lost, but money cannot renew
physical frame that has been battered and shattered being a
result of the road accident. Yet Tribunal to endavour to bring
back victim to stage of pre-road accident as far as possible
Thus, the award must be reasonable and cannot be assessed
with moderation though it cannot at the same time be pity and
what could be granted must be just, fair and equitable
compensation.
6.1 I have considered the submissions made by the rival
parties. I have perused the record and proceedings of the
Tribunal. I have gone through the impugned judgment and
award passed by the learned Tribunal. This Court is in
agreement with the submission of learned advocate for the
appellants – claimants that the amount of Rs.4,80,000/-
assessed by learned Tribunal is required to be re-assessed and
enhanced. Learned Tribunal has correctly assessed the income
of the deceased at Rs.2500/- per month, however, rest of the
calculation is improper and accordingly the same is required to
be re-assessed.
6.2 Learned Tribunal has committed serious error in
deducting 30% amount from the total amount of compensation
treating the driver of the car negligent in causing the vehicular
accident to 30%. The driver of the car may be negligent but the
not the deceased. The deceased was the occupant of the car.
Therefore, it is a case of composite negligence. The deceased is
at liberty to sue the driver, owner and insurer of the car for
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recovery of compensation from any one. Recently, the
Honourable Supreme Court in the case Manomati Chouhan
and another Vs Oriental Insurance Company Ltd and others
while referring the judgment in the case of Khenyei Vs New India
Assurance Co. Ltd, reported in AIR 2015 SC 2261 has observed
in paragraphs 4, 5 and 6 as under.
“4. On appeal by the insurer, the High Court set
aside the award, holding that the determination made
by the Tribunal has resulted in an ambiguous
judgement, since the court concluded that both
trucks involved in the collision were responsible to
some or the other extent, for the unfortunate end
result and yet, did not determine the degree of
composite negligence.
5. A perusal of the award of the Tribunal in our
considered view reveals the reason why the Tribunal
refrained from doing so. Reference was made to a full
bench judgement of this court in Khenyei vs. New
India Assurance Co. Ltd. which in its para 18 holds
as under:
18. This Court in National Insurance Co. Ltd. v.
Challa Upendra Rao [(2004) 8 SCC 517 2005
SCC (Cri) 357] with respect to mode of recovery
has laid down thus: (SCC p. 523, para 13)
"13. The residual question is what would be the
appropriate direction. Considering the beneficial
object of the Act, it would be proper for the
insurer to satisfy the award, though in law it
has no liability. In some cases the insurer has
been given the option and liberty to recover the
amount from the insured. For the purpose of
recovering the amount paid from the owner, the
insurer shall not be suit. It may initiate
proceeding before the executing court
concerned as if the dispute between the insurer
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and the owner was before the the subject-
matter of determination Tribunal and the issue
is decided against the owner and in favour of
the insurer. Before release of the owner of the
offending amount to the claimants, required
court to file a of vehicle shall furnish security
for the entire amount which the insurer will pay
to the claimants. The offending vehicle shall be
attached, as a part of the security. If necessity
arises the executing the Regional assistance
shall take Transport Authority concerned. The
executing court shall pass appropriate orders in
accordance with law as to the manner in which
the owner of the vehicle shall make payment to
the insurer. In case there is any default it shall
be open to the executing court to direct
realisation by disposal of the securities to be
furnished or from any other property properties
of the owner of the or vehicle i.e. the
considering the the discretion of insured. In the
instant case, quantum involved, we leave it to
the insurer to decide whether it would take
steps for recovery of the amount from the
insured."
6. That being the position in law, we find that the
view taken by the High Court was not justified.
Should the respondent be so advised and desire to
pursue the matter with the owners/drivers/insurers
of the stationary truck, it shall be open for them to do
so in accordance with the above. The same shall be
done in a independent proceedings, uninfluenced by
this order.”
The amount of compensation which has been granted to the
claimants is re-worked out as under.
Particulars Amount (Rs.)
Income 2500/-
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Prospective Income 625 (25%)
Deduction towards personal expenses 1/4
Dependency benefit 2344
Multiplier 14
Loss of dependency 3,93,750/-
Loss of consortium (6 dependents) 2,90,400/-
Funeral expense 18,150/-
Loss of estate 18,150/-
Total compensation 7,20,450/-
Enhancement 3,84,450/-
7. Therefore, I hold that the claimants are entitled to get
the enhanced compensation of Rs.3,84,450/- with 7.5% p.a.
interest from the date of filing the claim petition till its
realisation, which would meet the ends of justice.
8. For the reasons recorded above, the following order is
passed.
8.1 The present appeal is partly allowed .
8.2 The claimants would be entitled to recover the entire
amount of compensation from opponent Nos.1 and 2 and in
case, if the insurance policy is traced out even during the
execution proceedings from respondent No.3 jointly and
severally. The Insurance Company is directed to deposit the
enhanced amount with interest as stated herein above within a
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period of six weeks from the date of receipt of this order.
8.3 The Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal, with accrued
interest thereon, if any, to the claimants, by account payee
cheque / NEFT / RTGS, after proper verification and after
following due procedure.
8.4 While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
8.5 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(J. C. DOSHI,J)
H.M. PATHAN
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