HIMMATBHAI SUKHABHAI ZALA vs VINODKUMAR MANSANGBHAI PARMAR

C/FA/4299/2025 JUDGMENT DATED: 09/10/2026
(GJHC240606502025)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4299 of 2025
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HIMMATBHAI SUKHABHAI ZALA & ORS.
Versus
VINODKUMAR MANSANGBHAI PARMAR & ORS.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 09/10/2026

JUDGMENT
1. Heard learned advocate Mr.Hiren Modi for the
appellants – original claimants and learned advocate
Mr.Mazmudar for respondent No.3 – Insurance Company.
Though served, none appeared for respondent Nos.1 and 2.
2. Admit. Learned advocate Mr.Mazmudar waives
service of notice of admission for respondent No.3 – insurance
company.

3 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 27.02.2025 passed by the Motor
Accident Claims Tribunal, Kheda at Nadiad in Motor Accident
Claim Petition No.210 of 2024.
4. The brief facts of the case are that on 16.02.2024,
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the deceased was travelling as a pillion rider on the
motorcycle bearing registration No.GJ-07-EA-7238 on the
outskirts of village Malkana. The driver of the dumper bearing
registration No. GJ-07-YZ-4833, while driving the same at an
excessive speed and in a rash and negligent manner, dashed
against the motorcycle from behind. As a result of the impact,
the deceased sustained fatal injuries and succumbed to them.
4.1 FIR came to be registered against the dumper
driver at Kapadwanj Rural Police Station vide C.R. No. I-
11204028240046 of 2014.
4.2 In the aforesaid factual background, the claimants,
being the heirs and legal representatives of the deceased,
preferred a claim petition under Section 166 of the Motor
Vehicles Act, inter alia, contending that the deceased was
aged between 45 and 50 years and was earning Rs.12,000/-
per month by working as a mason, thereby maintaining his
family. It was further contended that the untimely demise of
the deceased had left the family in financial distress.
4.3 The learned Tribunal assessed the compensation
and awarded a sum of Rs.11,28,000/- with interest at the rate
of 7.5% per annum from the date of filing of the claim petition
till realisation, after deducting 10% towards the negligence
attributed to the motorcycle driver. The total compensation
was assessed at Rs.12,54,000/-.
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4.4 Being aggrieved, appellants – claimants are before
this Court.
5. Learned advocate for the appellants - claimants has
submitted that the Tribunal has committed an error in not
properly calculating the amount of compensation. He has
submitted that amount of award is on lower side as the
Tribunal has not properly considered the various aspects; like
prospective income of the deceased, negligence, liability and
family circumstances, etc. He would further submit that the
learned Tribunal has committed error in attributing
negligency of the pillion rider and deducted amount of
compensation, which is erroneous approach of the learned
Tribunal. He would further submit that perhaps, the learned
Tribunal failed to understand the difference between the
contributory negligence and composite negligence. He would
further submit that the Hon’ble Apex Court in case of
Khenyei Versus New India Assurance Company Limited, 2015
(9) SCC 273 explained the difference between contributory
negligence and composite negligence. Yet, the learned
Tribunal without analyzing such difference, mechanically,
decided the issue. Para 22 of the said judgment is relevant,
which reads as under:-
“22. What emerges from the aforesaid discussion is as follows :
(i) In the case of composite negligence, plaintiff/claimant
is entitled to sue both or any one of the joint tort feasors
and to recover the entire compensation as liability of
joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment
of compensation between two tort feasors vis a vis the
plaintiff/claimant is not permissible. He can recover at
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his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded
and evidence is sufficient, it is open to the court/tribunal
to determine inter se extent of composite negligence of
the drivers. However, determination of the extent of
negligence between the joint tort feasors is only for the
purpose of their inter se liability so that one may recover
the sum from the other after making whole of payment to
the plaintiff/claimant to the extent it has satisfied the
liability of the other. In case both of them have been
impleaded and the apportionment/ extent of their
negligence has been determined by the court/tribunal, in
main case one joint tort feasor can recover the amount
from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to
determine the extent of composite negligence of the
drivers of two vehicles in the absence of impleadment of
other joint tort feasors. In such a case, impleaded joint
tort feasor should be left, in case he so desires, to sue
the other joint tort feasor in independent proceedings
after passing of the decree or award.”
5.1 In Sushma Versus Nitin Ganapati Rangole, AIR
2024 SC 4627 , in para 18, the Hon’ble Apex Court has
discussed principle of composite negligency, which reads as
under:-
“In the case of Union of India v. United India Insurance
Co. Ltd., (1997) 8 SCC 683 this Court dealt with the
question whether the driver’s negligence in any manner
vicariously attaches to the passengers of the motor vehicle
of which he was the driver, and it was held as below: -
“ 10 . There is a well-known principle in the law of torts
called the “doctrine of identification” or “imputation”. It is to
the effect that the defendant can plead the contributory
negligence of the plaintiff or of an employee of the plaintiff
where the employee is acting in the course of employment.
But, it has been also held in Mills v. Armstrong [(1888) 13
AC 1, HL] (also called The Bernina case) that that principle
is not applicable to a passenger in a vehicle in the sense that
the negligence of the driver of the vehicle in which the
passenger is travelling, cannot be imputed to the passenger.
(Halsbury's Laws of England, 4th Ed., 1984 Vol. 34, p. 74;
Ratanlal and Dhirajlal, Law of Torts, 23rd Ed., 1997, p. 511;
Ramaswamy Iyer, Law of Torts, 7th Ed., p. 447.) The Bernina
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case [(1888) 13 AC 1, HL] in which this principle was laid in
1888 related to passengers in a steamship. In that case a
member of the crew and a passenger in the ship Bushire
were drowned on account of its collision with another ship
Bernina. It was held that even if the navigators of the ship
Bushire were negligent, the navigators' negligence could not
be imputed to the deceased who were travelling in that ship.
This principle has been applied, in latter cases, to
passengers travelling in a motor vehicle whose driver is
found guilty of contributory negligence. In other words,
the principle of contributory negligence is confined to
the actual negligence of the plaintiff or of his agents.
There is no rule that the driver of an omnibus or a
coach or a cab or the engine driver of a train, or the
captain of a ship on the one hand and the passengers
on the other hand are to be “identified” so as to fasten
the latter with any liability for the former's
contributory negligence. There cannot be a fiction of
the passenger sharing a “right of control” of the
operation of the vehicle nor is there a fiction that the
driver is an agent of the passenger. A passenger is not
treated as a backseat driver. (Prosser and Keeton on
Torts, 5th Ed., 1984, pp. 521- 22.) It is therefore clear that
even if the driver of the passenger vehicle was negligent, the
Railways, if its negligence was otherwise proved — could not
plead contributory negligence on the part of the passengers
of the vehicle. What is clear is that qua the passengers of the
bus who were innocent, — the driver and owner of the bus
and, if proved, the Railways — can all be joint tortfeasors.”
(emphasis supplied).”
5.2 He has submitted that the compensation is
required to be enhanced by modifying the award impugned
accordingly and this appeal may be allowed.
6. 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, the age of the deceased, the dependency and future
aspect of income. It is submitted that under the head of loss of
estate and funeral expenses, the Tribunal has rightly awarded
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compensation. It is submitted that the amount under the head
of loss of consortium is just and proper. It is submitted that
this appeal may be dismissed and no interference be made by
this Court.
7. 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 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
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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.
7.1 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. From the record, it
transpires that the learned Tribunal has not properly
considered monthly income of the deceased. Further,
considering the ratio laid down by the Hon’ble Apex Court in
the case of National Insurance Company Ltd. Vs. Pranay
Shethi reported in (2017) 16 SCC 680, the general and non-
pecuniary damages, Rs.18,150/- each towards loss of estate
and funeral expenses should be awarded. Towards loss of
consortium, there are four dependents and therefore,
Rs.48,400/- to each dependent should be awarded as per the
decision of the Hon’ble Apex Court in the case of United India
Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur
reported in (2021) 11 SCC 780.
7.2 Therefore, total compensation would be as under,
which the claimants/s is/are entitled to get.
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C/FA/4299/2025 JUDGMENT DATED: 09/10/2026
(GJHC240606502025)
Particulars Amount (Rs.)
Future dependency Loss 17,98,680/-
Loss of Consortium 1,93,600/-
Loss of Estate & funeral expenses 36,300/-
Total… 20,28,580/-
Less: compensation to be awarded 11,28,600/-
Additional amount which is awarded 8,99,980/-
8. Therefore, I hold that the claimants are entitled to
get the enhanced compensation of Rs.8,99,980/- with 7.5 p.a.
interest from the date of filing the claim petition till its
realisation, which would meet the ends of justice. Rest of the
direction(s) of the Tribunal remain same.
9. For the reasons recorded above, the following
order is passed.
9.1 The finding of the learned Tribunal in para 17 of
the impugned judgment is quashed and set aside.
9.2 The appeal is allowed to the aforesaid extent. The
impugned judgment and award is modified to the aforesaid
extent.
9.3 The Insurance Company is directed to deposit the
enhanced amount with interest as stated herein above within
a period of six weeks from the date of receipt of this order.
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9.4 The Tribunal shall disburse the entire amount lying
in the FDR and/or with the Tribunal, with accrued interest
thereon, if any, to the claimant/s, by account payee cheque /
NEFT / RTGS, after proper verification and after following due
procedure.
9.5 While making the payment, the Tribunal shall
deduct the Courts fees, if not paid, in accordance with
rules/law.
9.6 Record and proceedings, if any, be sent back to the
concerned Tribunal, forthwith.
9.7 Connected Civil Application, if any, stands
disposed of accordingly.
(J. C. DOSHI,J)
MANOJ
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