UDABEN WD/O DHULABHAI BADARBHAI MAKWANA vs ASHWINBHAI RATILAL PATEL

C/FA/2775/2010 JUDGMENT DATED: 14/10/2026
(GJHC240441882010)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2775 of 2010
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UDABEN WD/O DHULABHAI BADARBHAI MAKWANA & ORS.
Versus
ASHWINBHAI RATILAL PATEL & ORS.
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Appearance:
MS. VIDHI V. SHARMA(18861) for the Appellant(s) No. 1,2,3,4
MR KK NAIR(499) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 14/10/2026

JUDGMENT
1. Being aggrieved and dissatisfied with the judgment and
order dated 16.06.2010, passed by the learned Motor Accident
Claims Tribunal (Auxi.), Modasa (in brief, ‘tribunal’), in MACP
No.103 of 2003, whereby, the tribunal granted total
compensation of Rs.2,06,100/- along with 6% interest per
annum, the appellants-claimants have filed this appeal under
Section 173 of the Motor Vehicles Act (‘M.V. Act’, in short).
2. Brief facts of the case are that on 12.11.2000, in the
morning at about 09:30 a.m., while the deceased Dhulabhai was
coming back from his farm, Opponent No.1-driver came driving
his tractor, bearing registration No. GJ-9-E-1314, with excessive
speed and in negligent manner and dashed the same with the
deceased Dhulabhai. Therefore, the deceased was taken to
Medhasan Hospital, where, he breathed his last.
2.1 The FIR for the alleged incident, being I-C.R. No.
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116/2000, came to be lodged with Modasa Rural Police Station.
2.2 Therefore, the appellants-claimants, filed a claim petition
under Section 166 of the M.V. Act, inter alia, contending that the
deceased Dhulabhai was earning Rs.3,000/- per month by doing
labour work, animal husbandry and digging-up wells and that
he was 40 years old and was hale and hearty. By making the
above claims, the appellants-claimants claimed total
compensation of Rs.4,00,000/- along with 18% interest and
proportionate costs.
2.3 After considering the oral as well as the documentary
evidence, the tribunal hold that Opponent No.1-driver was not
holding valid and effective driving license to drive tractor and
therefore, there being breach of terms and conditions of the
policy, the tribunal exonerate Opponent No.3-insurance
company from the liability to pay compensation and allowed the
claim petition partly, as referred to in Paragraph-1 herein above.
Hence, the present appeal.
3. Heard, learned advocate, Ms. Sharma, appearing for the
appellants-claimants and learned advocate, Mr. Meena, for
opponent No.3-insurance company, who is permitted to file his
vakalatnama before the Registry and the Registry is directed to
accept the same. Though served, none appeared for Opponent
Nos. 1 and 2.
4. Learned advocate, Ms. Sharma, firstly submitted that this
appeal is mainly preferred on the ground that the tribunal did
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not grant any amount towards loss of future or prospective
income and taking monthly income of the deceased at
Rs.1800/-, which is less than the minimum daily-wages for the
skilled worker prevailing, at the time of accident. The appellants-
claimants are also not satisfied with the multiplier adopted by
the tribunal as well as improper deduction of amount towards
personal / pocket expenses and non-grant of just amounts
under the conventional heads.
4.1 Learned advocate, Ms. Sharma, secondly submitted that in
view of the findings recorded by the tribunal that the deceased
Dhulabhai was traveling as a gratuitous passenger, this Court
may invoke the principle of ‘Pay & Recover’ laid down by the
Hon’ble Apex Court in the case of ‘ Kaminiben & Ors. Vs. The
Oriental Insurance Company Limited & Ors.’ , 2026 LiveLaw
(SC) 174.
4.2 By making the above submissions, it was prayed that this
appeal may be allowed and the just, fair and adequate
compensation be granted.
5. Per contra, learned advocate, Mr. Meena, appearing for
Opponent No.3-insurance company submitted that the tribunal
rightly held that the deceased Dhulabhai was traveling in the
tractor as gratuitous passenger and since, the tractor does not
have any seat for carrying passenger and as, Opponent No.3-
insurance company did not purchase risk of any passenger
traveling on the tractor, the tribunal has rightly exonerated
Opponent No.3-insurance company and the said finding be
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maintained.
6. Having heard the learned advocates for the parties and
having perused the material on record, here, it would be apt to
state that the appellants-claimants did not lead any evidence to
show that the deceased Dhulabhai was earning Rs.3,000/- per
month and therefore, tribunal took monthly deceased of the
deceased Dhulabhai at Rs.1800/-, which is not a correct
approach. The tribunal ought to have taken the minimum daily-
wages for the skilled worker prevailing at the time of accident.
The alleged accident took place on 12.11.2000 and at that time,
the minimum daily-wages for a skilled worker was Rs.2100/- per
month. Therefore, the tribunal ought to have taken monthly
income of the deceased Dhulabhai at Rs.2100/- per month.
Further, PM Report of the deceased Dhulabhai, which is the sole
evidence showing his age, i.e. 40 years. Thus, tribunal rightly
took the age of the deceased at 40 years. Further, in view of the
decision of the decision of the Apex Court in the case of
‘National Insurance Company Limited Vs. Pranay Sethi &
Others’ , reported in (2017) 16 SCC 680, if, the multiplier of 15 is
applied, the same would be just and proper. Moreover, in view of
the aforesaid decision and considering the fact that the deceased
Dhulabhai was aged 40 years and was not having any
permanent source of income or job, 40% rise is required to be
given towards future or prospective income. The deceased
Dhulabhai left behind four dependents and therefore, 1/4
amount is required to be deducted towards personal / pocket
expenses.
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6.1 Here, it would be apt to note that the Apex Court in
Paragraph-61(viii) in the case of ‘ Pranay Sethi ’ (Supra), while
setting the reasonable figure of compensation under the
conventional heads, namely loss of estate, loss of consortium,
funeral expenses at Rs.15,000/-, Rs.40,000/- and Rs.15,000/-
respectively and directed to enhance the amounts under the
conventional heads at the rate of 10% every three years. The
aforesaid judgment was delivered by the Apex Court on
31.10.2017 and as of now, nine years have passed and therefore,
cumulative rise of the compensation under the conventional
heads would also required to be granted.
6.2 Thus, the recalculated amount of compensation would be
as under;
Monthly Income: Rs.2100/-
Prospective Income (40%): + Rs.840/-
Gross Monthly Income: Rs.2940 /-
1/4 Personal Deduction: - Rs.735/-
Net Monthly Income: Rs.2205 /-
Annual Income: X 12 months
Rs.26,460 /-
Multiplier: X 15 Years
Total Loss of Dependency: Rs.3,96,900 /-
Loss of Estate: Rs.19,965/-
Funeral Expenses: Rs.19,965/-
Loss of Consortium (4 persons): Rs.53,940 X 4=Rs.2,15,760/-
Enhanced Compensation:
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Rs.3,96,900/-
Amount Awarded By the Tribunal: + Rs.2,15,760/-
+ Rs.19,965/-
+ Rs.19965/-
Total Compensation: Rs.6,52,590 /-
6.3 Insofar as the grant of 6% interest by the tribunal is
concerned, Section 171 of the MV Act provides that simple
interest should be granted on the amount of compensation. Of
course, such a direction are discretionary, but, it has to be
exercised in favour of the claimants. This court in the case of
‘Shivajirao Ramdas Sonavne Vs. Gurumejsing Ajitsing Jaat
& Ors.’ , vide its judgment dated 08.10.2026, passed in First
Appeal No. 1871 of 2015, has observed as under at Paragraph-
14.1;
“4.1. Moreover, let me observe that section 171 of Motor Vehicle
Act statutorily mandates claim Tribunal to direct that interest be
paid on awarded compensation. Section 168 requires “just”
compensation and award. Delayed by years loses real value
unless interest is added. One cannot be oblivious that for all the
years claimant has been kept out from rightful due which he was
entitled on the day of filing claim petition. And above all, the MV
Act is social welfare law, so it has to be read liberally in favour
of victim. Thus, non grant of interest from date of claim petition
requires special reason existing against claimant; lacks thereof,
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as in case on hand, do not justify grant of interest for limited or
specific time period. This Court deplore and disapprove rigid
approach of learned Tribunal for denying to grant interest from
date of claim petition. ”
6.4 In view of the above, the tribunal ought to have granted
7.5% interest to the claimants and therefore, the appellants-
claimants shall be entitled to get 7.5% interest.
6.5 Insofar as the findings of the learned tribunal, holding
Opponent Nos. 1 and 2 to pay the amount of compensation and
exonerating Opponent No.3-insurance company, is concerned,
though, the said finding is upheld, but, by invoking the principle
laid down by the Apex Court in the case of ‘ Kaminiben & Ors.’
(Supra), if, Opponent No.3 is directed to first satisfy the claim
and then, to recover the same from Opponent Nos. 1 and 2, the
ends of the justice would meet. As the appellants-claimants
cannot be made to suffer due to technicalities, which is an issue
between the ‘Insured’ and the ‘Insurer’.
6.6 The Apex Court in the case of ‘ Kaminiben & Ors.’
(Supra), held as under in Paragraph-10;
“10. In the present case, the deceased was travelling in the
subject tempo along with Ganesh Idol, which was taken for
immersion in Narmada River. Thus, the dominant purpose for
hiring the vehicle was not for travelling but for carrying the
Ganesh idol for immersion. Travelling in the vehicle was only
incidental, therefore, at best, the deceased can be treated as
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gratuitous passenger travelling with his goods (Ganesh idol).
This being the circumstance, we rely on the judgment in the
matter of Manuara Khatun & Ors. (supra), wherein this Court
has held thus in paragraph Nos. 15 and 16:-
“15. This question also fell for consideration recently in
National Insurance Co. Ltd. v. Saju P. Paul [National
Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1
SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S)
399] wherein this Court took note of entire previous case law
on the subject mentioned above and examined the question in
the context of Section 147 of the Act. While allowing the
appeal filed by the insurance company by reversing the
judgment [Saju P. Paul v. National Insurance Co., 2011 SCC
OnLine Ker 3791:2012 ACJ 1852] of the High Court, it was
held on facts that since the victim was travelling in offending
vehicle as “gratuitous passenger” and hence, the insurance
company cannot be held liable to suffer the liability arising out
of accident on the strength of the insurance policy. However,
this Court keeping in view the benevolent object of the Act and
other relevant factors arising in the case, issued the directions
against the insurance company to pay the awarded sum to the
claimants and then to recover the said sum from the insured in
the same proceedings by applying the principle of “pay and
recover”.
16. R.M. Lodha, J. (as his Lordship then was and later became
CJI) speaking for the Bench held in paras 20 and 26 as under :
(Saju P. Paul case [National Insurance Co. Ltd. v. Saju P.
Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1
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SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] , SCC pp. 52 & 55)
“20. The next question that arises for consideration is whether
in the peculiar facts of this case a direction could be issued to
the Insurance Company to first satisfy the awarded amount in
favour of the claimant and recover the same from the owner of
the vehicle (Respondent 2 herein).
26. The pendency of consideration of the above questions by a
larger Bench does not mean that the course that was followed
in Baljit Kaur [National Insurance Co. Ltd. v. Baljit Kaur,
(2004) 2 SCC 1 : 2004 SCC (Cri) 370] and Challa Upendra
Rao [National Insurance Co. Ltd. v. Challa Upendra Rao,
(2004) 8 SCC 517 : 2005 SCC (Cri) 357] should not be
followed, more so in a peculiar fact situation of this case. In
the present case, the accident occurred in 1993. At that time,
the claimant was 28 years old. He is now about 48 years. The
claimant was a driver on heavy vehicle and due to the accident
he has been rendered permanently disabled. He has not been
able to get compensation so far due to the stay order passed by
this Court. He cannot be compelled to struggle further for
recovery of the amount. The Insurance Company has already
deposited the entire awarded amount pursuant to the order of
this Court passed on 1-8-2011 [National Insurance Co. Ltd. v.
Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul,
(2013) 2 SCC 41, 55 (footnote 14)]] and the said amount has
been invested in a fixed deposit account. Having regard to
these peculiar facts of the case in hand, we are satisfied that
the claimant (Respondent 1) may be allowed to withdraw the
amount deposited by the Insurance Company before this Court
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along with accrued interest. The Insurance Company (the
appellant) thereafter may recover the amount so paid from the
owner (Respondent 2 herein). The recovery of the amount by
the Insurance Company from the owner shall be made by
following the procedure as laid down by this Court in Challa
Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra
Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357].”
7. For the foregoing reasons, this appeal is partly allowed .
The impugned judgment and award, dated 16.06.2010, passed
by the learned Motor Accident Claims Tribunal (Auxi.), Modasa
(in brief, ‘tribunal’), in MACP No.103 of 2003, is modified to the
extent that the appellants-claimants shall be entitled to total
compensation of Rs.6,52,590/-, along with 7.5% simple interest
from the date of the filing of the claim petition, till realization,
except 434 days of delay, from Opponent Nos. 1 and 2, jointly
and severally. However, in the first instance, Opponent No.3-
insurance company is directed to satisfy the judgment and
award and to deposit the total amount of compensation with the
concerned Tribunal within the period of eight weeks , from today
and then, to recover the same from Opponent Nos. 1 and 2,
jointly or severally, by executing this judgment. Upon deposit of
the aforesaid amount, the Tribunal shall disburse the entire
amount in favour of the appellants-claimants through NEFT /
RTGS, after due verification and if required, by passing the fresh
order for disbursement. R&P, if any, be sent back to the
concerned tribunal, forthwith. Direct service is permitted.
(J. C. DOSHI,J)
UMESH/-
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