GAGVANI JAYABEN PURSOTAMBHAI vs JANLARSINGH MAHERSINGH OWNER OF TRUCK NO.D.N.G.1127
- Court
- Gujarat High Court
C/FA/2506/2017 JUDGMENT DATED: 16/10/2026
(GJHC240407912017)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2506 of 2017
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GAGVANI JAYABEN PURSOTAMBHAI & ORS.
Versus
JANLARSINGH MAHERSINGH OWNER OF TRUCK NO.D.N.G.1127 & ANR.
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Appearance:
MS KIRAN UDASI, for MR KAMLESH S KOTAI(6150) for the Appellants
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 2
RULE NOT RECD BACK for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
and
HONOURABLE MR.JUSTICE J. L. ODEDRA
Date : 16/10/2026
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)
1. The occurrence of an accident on 14.12.1997
between a car and a truck is not in dispute. As a result of
the accident, the owner-cum-driver of the car suffered
serious injuries, while his wife and son, who were also
travelling in the car, were killed. Another occupant,
Purshottambhai was also killed.
2. It is reported before us that the owner-cum-driver
had initiated claim proceedings not only seeking
compensation for his injuries but also for the death of his
wife and son.
3. The Tribunal has dismissed his claim petition on the
ground that the accident occurred due to his negligence
and he cannot be permitted to recover compensation for
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his own negligence. The Tribunal has, thereafter, also
proceeded to dismiss the claim petition of occupant-
Purshottambhai on the same analogy and, therefore, the
present appeal.
4. At the outset, in respect of this accident, which
occurred in the year 1997, which resulted in the dismissal
of the claim petition of the owner-cum-driver, the owner-
cum-driver of the car has accepted the said decision. It is
only the occupant of the car, who is in appeal.
5. Learned counsel for the claimants submitted that in
a case of composite negligence, the Tribunal had the
jurisdiction to pass an award in favour of the claimants
and then order the insurance company to recover the
money from the tortfeasor. She, therefore, submits that
the Tribunal was in error in dismissing the claim petition.
6. In order to examine the aspect of negligence. we
have perused the deposition of the owner-cum-driver of
the car. It is no doubt true that the charge-sheet had been
laid against the owner-cum-driver by the police. However,
that laying of a charge-sheet would only be prima facie
proof of his negligence and the matter will have to be
examined as to whether he was really negligent, on an
examination of the surrounding circumstances. In this
case, the driver of the truck, who was an eyewitness to
the entire accident and who would have been the
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appropriate witness to talk about the negligence, has not
been examined. The owner-cum-driver of the car, as
already observed above, has been examined.
7. We noticed from the cross examination of this driver
that a suggestion has been put to the driver that the
accident occurred when the truck came from a side road
and joined the highway. This suggestion is contrary to the
stand of the insurer that there was a head on collision. In
other words, the there is no clear evidence regarding the
manner in which the accident occurred. In the pleadings
it is alleged that there was a head on collision, whereas
the suggestions made in the cross-examination indicate
that the accident occurred when the truck came onto the
highway from a side road.
8. In the light of the fact that the evidence is at best
sketchy, it would be appropriate to hold that the owner-
cum-driver of the car as well as the driver of the truck are
negligent to the extent of 50 : 50.
9. As far as compensation is concerned, the claimants
have produced the partnership deed of the mill, to which
the deceased was a partner. They have also produced the
profit and loss account of the said firm. These documents
indicate that the deceased was earning a sum of
Rs.81,760/- from the partnership firm as his share of the
profits. It would, therefore, be appropriate that his
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income be determined at Rs.81,760/- per annum for the
purpose of determining the compensation. As he was
aged 42 years, 25% would have to be added as future
prospects as per the decision in the case of National
Insurance Company Ltd. v. Pranay Sethi and others
reported in (2017) 16 SCC 680 and this would result in his
income to be Rs.1,02,200/-. Out of this, 1/4th would have
to be deducted, i.e. Rs.25,550/-, which results in his net
income to be Rs.76,650/-.
10. As he was aged 42 years, a multiplier of 14 will have
to be applied and consequently, they will be entitled to a
sum of Rs.10,73,100/- towards loss of dependency. In all
the claimants will be entitled to the following sums.
Income Rs.81,760/-
Prospective Income (25%) Rs.20,440/-
Total Rs.1,02,200/-
Deduction (1/4th)
Personal expenses
- Rs.25,550/-
Total Rs.76,650/-
Multiplier X 14
Total Rs.10,73,100/-
Loss of Consortium
(53,240 x 4)
Rs.2,12,960/-
Loss of Estate Rs.19,965/-
Funeral Expenses Rs.19,965/-
Grand Total Rs.13,25,990/-
11. As already held above, the driver of the truck is held
to be negligent to the extent of 50% and, therefore, it will
have to pay 50% of the said compensation. The claimants
are at liberty to proceed against the owner of the car, in
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which the deceased was travelling for the remainder of
the amount.
12. The appeal is hereby PARTLY ALLOWED . The
claimants are entitled to sum of Rs.13,25,990/- with 9%
interest from the date of the claim petition filed by the
claimants before the Tribunal till its realization. The
amount shall be deposited within a period of TEN weeks
from the date of receipt of copy of this order.
13. The amount of compensation which shall be
deposited pursuant to this order shall be disbursed to the
claimants upon proper verification by NEFT / RTGS.
14. R & P if called for, be sent back to the concerned
Court forthwith.
Sd/-
(N.S.SANJAY GOWDA,J)
Sd/-
(J. L. ODEDRA, J)
OMKAR
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