THE NEW INDIA ASSURANCE COMPANY LIMITED vs JAYESH PRAKASHBHAI PARMAR
- Court
- Gujarat High Court
C/FA/2231/2024 JUDGMENT DATED: 27/10/2026
(GJHC240463052023)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2231 of 2024
With
R/FIRST APPEAL NO. 2232 of 2024
With
R/FIRST APPEAL NO. 2622 of 2024
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THE NEW INDIA ASSURANCE COMPANY LIMITED
Versus
JAYESH PRAKASHBHAI PARMAR & ORS.
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Appearance:
MS DIMPLE A THAKER(6838) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 2,3
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CORAM: HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
and
HONOURABLE MR.JUSTICE J. L. ODEDRA
Date : 27/10/2026
COMMON JUDGMENT
(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)
1. Notice of the appeal has not been served upon the owner and
driver of the Truck. It is noticed that the owner and driver of the
truck, though served before the Tribunal, did not chose to defend
themselves before the Tribunal and they were placed ex-parte. In our
view, since they were placed ex-parte and taking into consideration
Order XLI Rule 14(4) of the Civil Procedure Code, 1908, notice to them
would be unnecessary.
2. The occurrence of an accident on 31.03.2015 between a car and
a truck trailer is not in dispute. As a result of the accident, the
occupant and the driver were both seriously injured.
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C/FA/2231/2024 JUDGMENT DATED: 27/10/2026
(GJHC240463052023)
3. The occupant and the driver preferred claim petitions. The
Tribunal, by a common order, has awarded a sum of Rs. 35,51,000/-
for the occupant and a sum of Rs. 10,59,000/- to the driver of the car.
4. Being aggrieved by this award, the insurer has preferred two
appeals. In other words, the insurer has filed an appeal in respect of
grant of compensation to both the occupant of the car as well as the
driver of the car.
5. The occupant of the car has also preferred an appeal contending
that the amounts awarded are inadequate.
6. It is the contention of the insurer in their appeals that the driver
of the truck which it had insured did not have a licence and therefore
they would have no liability to pay the compensation. In other words,
they contend that the insured had committed a breach of the policy
conditions and therefore they would not be liable for recovery of the
said sum.
7. The insurer, apart from raising the contention that the driver of
the trailer did not have any licence, did not adduce any evidence to
establish the said fact. Consequently, the Tribunal has held that there
was no evidence adduced by the insurer to establish there was a
violation of the terms and conditions of the policy. In our view, if an
insurer merely raises a plea that the driver of the vehicle that they had
insured did not have a licence, that cannot be proof of the assertion.
The insurer has to establish its defense that there was a breach of
policy conditions. Since in the instant case, no evidence was adduced
by the insurer that there was a breach of a policy condition such as
lack of a driving licence, there is no ground worthwhile in favour of
the insurer to entertain the appeal. Consequently, their appeals i.e.,
FA/2231/2024 & FA/2232/2024 are dismissed.
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C/FA/2231/2024 JUDGMENT DATED: 27/10/2026
(GJHC240463052023)
8. As far as the appeal i.e., FA/2622/2024 by the occupant of the
car, the principal argument advanced is that the Tribunal, though
considered the income tax returns, has wrongly come to the
conclusion that only 50% of the income returned should be taken as
the basis for determining the compensation. It is pointed out that no
justifiable reason is given to reduce the income of Rs. 3,97,000/-
(which was arrived at by comparing the average of the preceding 3
years) to Rs. 2,00,000/-.
9. A perusal of the judgment indicates that the Tribunal did give a
finding that the income for the assessment year 2012-13 was Rs.
3,58,338/-, income for the assessment year 2013-14 was Rs.
3,70,765/-, and income for the assessment year 2014-15 was Rs.
4,64,202/-, and it has thereafter observed that the average of these
three would be Rs. 3,97,000/-.
10. The Tribunal has also noticed that return was filed by the
occupant on 25.01.2016, i.e., about 10 months after the accident, in
which he had declared an income of Rs. 2,97,750/-. If the average of
the preceding three years is taken, the average would be Rs.
3,68,000/-.
11. In our view, the Tribunal ought to have taken the average of
these three years and should not have reduced it to Rs. 2,00,000/-. It
is to be noticed here that if income tax returns are filed to indicate the
income of the claimant, normally, that income will have to be accepted
as the true income. The Tribunal cannot reduce the said income on
the ground that there could be a loss of income due to physical
disability or on the basis of equitability, fairness and reasonableness.
We therefore hold that the claimant was earning a sum of Rs.
3,68,000/- per year.
12. As far as the percentage of disability is concerned, the Tribunal
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C/FA/2231/2024 JUDGMENT DATED: 27/10/2026
(GJHC240463052023)
has rightly come to the conclusion that the claimant was disabled to
the extent of 59%, which was established by the medical evidence that
was adduced before it. We see no reason to disturb the said finding.
The claimant was aged 39 years, and therefore a multiplier of 15
would be applied, and future prospects of 40% would have to be
added to the said income. Consequently, towards loss of future
income, the claimant would be entitled to a sum of Rs. 45,59,520/-.
13. The Tribunal has awarded a sum of Rs. 25,000/- towards pain,
shock and suffering. We notice from the order that a sum of Rs.
27,65,000/- was awarded towards medical expenses, which by itself
indicates the length of hospitalization and the pain and suffering that
the claimant had to undergo. We therefore hold that the claimant
went into a sum of Rs. 1,50,000/- towards pain, shock and suffering,
and Rs. 50,000/- towards attendant charges, transportation and diet.
14. The Tribunal has granted actual loss of income for only two
months. In our view, having regard to the nature of injuries suffered
and the length of hospitalization, it would be appropriate to consider
loss of income for six months as Rs. 1,83,996/- (Rs. 30,666/- per
month salary X 6 months = Rs. 1,83,996/-). Since the claimant has
suffered 59% disability we would also award a sum of Rs. 2,00,000/-
towards loss of amenities. Thus in all, the claimant would be entitled
to the following sums:
Income per annum Rs.3,68,000/-
Prospective Income (40%) Rs. 1,47,200/-
Future Loss of Income
(Rs. 3,68,000/- + 40% = Rs.
5,15,200/- X 59% disability
X 15 multiplier )
Rs. 45,59,520/-
Pain, shock and suffering Rs.1,50,000/-
Loss of amenities Rs.2,00,000/-
Attendant charges, Rs. 50,000/-
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C/FA/2231/2024 JUDGMENT DATED: 27/10/2026
(GJHC240463052023)
transportation and special
diet
Medical expenses Rs. 27,65,000/-
Actual loss (6 months) Rs.1,83,996/-
Total Rs. 79,08,516/-
Awarded by the Tribunal Rs. 35,51,000/-
Additional Compensation Rs. 43,57,516 /-
15. Accordingly, the appellant of FA/2622/2024 is entitled to
receive interest at the rate of 9% on the enhanced amount.
16. Consequently, the appeal i.e., FA/2622/2024 is allowed in
part. R & P, if called for, be sent back to the concerned Tribunal
forthwith.
17. The claimants shall be entitled to withdraw 75% of the
enhanced award amount and the remaining 25% shall be kept in
Fix Deposit for the period of 5 years. Upon deposit of the
amount, the learned Tribunal shall disburse 75% thereof to the
claimants through NEFT/RTGS, upon proper verification, and
invest the remaining 25% in a fixed deposit for the aforesaid
period.
18. The Respondent Insurance Company is directed to deposit
the additional amount of compensation along with interest
within a period of EIGHT WEEKS from the date of receipt of copy
of this judgment.
(N.S.SANJAY GOWDA,J)
(J. L. ODEDRA, J)
Mehul Desai
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