MANUBHAI MAHIJIBHAI THAKOR vs NIRAJSINH PUSHPASINH YADAV
- Court
- Gujarat High Court
C/FA/4300/2025 JUDGMENT DATED: 03/11/2026
(GJHC240834362025)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4300 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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MANUBHAI MAHIJIBHAI THAKOR
Versus
NIRAJSINH PUSHPASINH YADAV & ANR.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 03/11/2026
ORAL JUDGMENT
1. The present appeal has been preferred by the
appellants-original claimants under Section 173 of the
Motor Vehicles Act, 1988 for enhancement of the
compensation awarded vide judgment and award dated
th
17.09.2025 passed by the M.A.C.T. (Aux.) and 4
Additional District Judge, Anand, in M.A.C.P. No.242 of
2021, whereby the learned Tribunal has awarded an
amount of Rs.4,21,589/- with interest at the rate of 9%
per annum from the date of the claim petition till its
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realization from opponent Nos.1 and 2, jointly and
severally.
2.1 The factual matrix of the present case is that, on
12.01.2021, the present appellant-original claimant was
proceeding towards the Borsad Taluka Panchayat Office
by driving his motorcycle bearing registration No.GJ-23-J-
1083. After completing his work, at about 5:00 p.m.,
while he was passing near Kismat Kathiyavadi Hotel on
Borsad-Tarapur Road, at that time opponent No.1 came
by driving his car bearing registration No.GJ-16-CS-9130
at an excessive speed and in a rash and negligent manner
and dashed against the motorcycle. As a result, the
claimant sustained a fracture of the right hand and ankle
and left leg tibia fibula and also sustained injuries on
other parts of his body. He was shifted to Shraddha
Hospital, Borsad, where primary treatment was given and
was subsequently referred to Karamsad Hospital, where
he remained as an indoor patient for 10 days and an
operation was performed on his right hand, wherein a rod
was inserted and he has incurred handsome amount
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towards medicines, medical treatment, attendant, special
diet etc. and as he was hale and hearty at the time of the
accident and earning Rs.9,000/- per month by doing
agricultural and contractor work and because of the
injuries sustained in the accident, the claimant developed
disability, which adversely affected his earning capacity.
Hence, the original claimant filed a claim petition before
the learned Tribunal seeking compensation of
Rs.15,00,000/- from the opponents.
2.2 After considering the oral and documentary
evidence adduced by the respective parties, the learned
Tribunal assessed the income of the claimant at
Rs.8,000/- per month. Further, the learned Tribunal held
that the claimant was also negligent and attributed 50%
negligence to him, while opponent No.1, the driver of the
car, was held negligent for the remaining 50% of the
accident. The age of the claimant was 51 years, as his
date of birth was 01.01.1970 and the accident occurred
on 12.01.2021. By a pursis at Exh.57, the learned
advocates for both parties agreed to consider the
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disability at 28% of the body as a whole. Accordingly, the
claim petition was partly allowed, and compensation of
Rs.4,21,589/- with interest at the rate of 9% per annum
from the date of the claim petition till realization was
awarded against opponent Nos.1 and 2, jointly and
severally, vide judgment and award dated 17.09.2025.
2.3 Being aggrieved and dissatisfied with the aforesaid
judgment and award, the original claimant has preferred
the present appeal seeking enhancement of the
compensation awarded by the learned Tribunal.
3.1 Learned advocate Mr.Nishit A. Bhalodi for the
appellant submitted that, insofar as the question of
negligence is concerned, the learned Tribunal has erred
in attributing 50% negligence to the claimant without
assigning any cogent reasons. It was submitted that the
claimant had stated in his cross-examination that he had
produced his driving licence. However, upon perusal of
the entire record of the case, it appears that the claimant
had not produced a copy of the driving licence. Therefore,
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an adverse inference was required to be drawn against
the claimant, and it was presumed that he was not
holding a driving licence at the time of the accident.
Despite this, he was driving the motorcycle, and the
accident occurred. On that basis, the learned Tribunal
concluded that the claimant was negligent to the extent
of 50%. It was submitted that the aforesaid findings are
contrary to the settled principles of law. In support of his
submissions, Mr. Bhalodi relied upon the judgment of the
Hon’ble Apex Court in the case of Saraswati Palariya
and Ors. v. New India Assurance Company Limited
and Ors. , reported in (2019) ACJ 42.
3.2 Learned advocate Mr.Bhalodi further submitted that
the income of the claimant has been assessed by the
learned Tribunal on the lower side and that no addition
towards future prospects has been granted. As the
claimant was 51 years old at the time of the accident, he
is entitled to an addition of 10% towards future
prospects. It was further submitted that the learned
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Tribunal awarded only Rs.25,000/- towards pain, shock
and suffering, which deserves to be enhanced considering
the injuries sustained by the claimant. The actual loss of
income was calculated by the learned Tribunal for three
months on the basis of the income assessed at Rs.8,000/-
per month. However, as the income has been assessed on
the lower side and the minimum wages have not been
considered, the actual loss of income is required to be
recalculated on the basis of the applicable minimum
wages.
4. On the other hand, learned advocate Mr.H.G.
Mazmudar appearing for respondent No.2 - Insurance
Company submitted that the appeal is devoid of merit and
that the learned Tribunal has rightly assessed the income
of the claimant at Rs.8,000/- per month. He further
submitted that the learned Tribunal has also considered
the fact that the claimant was not holding a driving
licence on the date of the accident. In this regard,
opponent No.1, the driver of the car, has given his
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evidence. In his examination-in-chief at Exh.62, Nirajsinh
Pushpasinh Yadav, who was driving the motor car bearing
registration No.GJ-16-CS-9130 and was an eyewitness to
the accident, specifically stated that he was driving his
car on the correct side at a moderate speed and that the
motorcycle rider attempted to cross the road, resulting in
the accident. Nothing fruitful has emerged from the
cross-examination of this witness. Therefore, the learned
Tribunal has rightly concluded that the claimant was also
negligent and attributed 50% negligence to him. It was
further submitted that the learned Tribunal has rightly
calculated the compensation and partly allowed the claim
petition. Considering the overall evidence produced by
the respective parties, the findings recorded by the
learned Tribunal are just and proper and does not require
any interference.
5. Having heard the rival submissions of the respective
parties and perusing the judgment and award passed by
the learned Tribunal, the first question for consideration
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is with regard to negligence. The learned Tribunal,
particularly in paragraph 12 of its judgment, observed
that the claimant was contributorily negligent only on the
ground that he had not produced a copy of his driving
licence. On that basis, an adverse inference was drawn
that the claimant was not holding a driving licence and,
despite that, was driving the motorcycle, and the claimant
was held negligent to the extent of 50%, while opponent
No.1, the driver of the car, was held negligent for the
remaining 50% of the accident.
6. Insofar as the finding of contributory negligence is
concerned, contributory negligence requires proof of
negligence on the part of the claimant, or of conduct that
materially contributed to the accident resulting in the
injury. The question of contributory negligence depends
upon the facts and circumstances of each case. The
relevant test is whether, by exercising reasonable care,
the victim could have avoided the consequences of the
negligence that caused the accident. Mere violation of
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law by the victim does not, by itself, constitute
contributory negligence. There must be a causal
connection between such violation and the occurrence of
the accident or the impact of the injury suffered by the
victim. The burden of establishing contributory
negligence lies upon the party alleging it. Mere absence,
invalidity or non-production of a driving licence, by itself,
does not constitute contributory negligence.
7. In the present case, it is an admitted position that an
FIR was registered against opponent No.1 and that a
charge-sheet was also filed against him. Further, it is
pertinent to note that opponent No.1 has not filed his
written statement to the claim petition but has only filed
his examination-in-chief, in the absence of any pleadings.
Opponent No.1 gave his examination-in-chief at Exh.68
and, in his cross-examination, admitted that he had not
filed any written statement. He also admitted that a
charge-sheet had been filed against him in connection
with the said accident. The panchnama was also
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produced by the claimant before the learned Tribunal at
Exh.33. Upon considering the panchnama, it cannot be
said that the claimant had contributed to the occurrence
of the accident.
8. In this regard, learned advocate for the appellant
relied upon the judgment of the Hon’ble Apex Court in
the case of Saraswati Palariya (supra), wherein, in
paragraph 5, it has been held as under:
“5. The finding of the High Court of
contributory negligence on the ground that
the deceased was driving the vehicle without
a driving licence is equally unsustainable.
Driving without a valid driving licence may
expose the claimant(s) to other liabilities but
no inference of contributory negligence can
be arrived at on that basis.”
9. Considering the findings recorded by the learned
Tribunal and the dictum of the Hon’ble Apex Court,
driving without a valid driving licence may expose the
claimant to other liabilities, but no inference of
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contributory negligence can be drawn on that basis alone.
In the absence of any other independent evidence, and
considering the fact that the FIR has been registered and
the charge-sheet has been filed against opponent No.1,
the finding of the learned Tribunal attributing 50%
contributory negligence to the claimant is not supported
by any evidence. Hence, the finding of the learned
Tribunal attributing 50% contributory negligence to the
claimant, who was driving the motorcycle, is required to
be set aside. Accordingly, it is held that original opponent
No.1, i.e. present respondent No.1, the driver of the
Hyundai Creta Car bearing registration No. GJ-16-CS-
9130, was 100% negligent.
10. So far as the question of income of the claimant is
concerned, the learned Tribunal assessed the same at
Rs.8,000/- per month. It is an admitted fact that no cogent
evidence was produced regarding the claimant’s
agricultural income or other earnings. In the absence of
such evidence, the learned Tribunal assessed his income
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at Rs.8,000/- per month. The accident occurred on
12.01.2021, and the learned Tribunal assessed the
income in the absence of cogent evidence by considering
the minimum wages. The minimum wage prevailing at the
time of the accident was Rs.9,079/- per month. Therefore,
the income of the claimant is required to be reassessed at
Rs.9,079/- per month.
11. Further, as per the judgment of the Hon’ble Apex
Court in the case of National Insurance Company
Limited v. Pranay Sethi, reported in (2017) 16 SCC
680, an addition of 10% towards future prospects is
required to be considered on account of the fact that the
claimant was 51 years old at the time of accident.
Accordingly, the monthly income of the appellant,
including addition of 10% future prospects, comes to
Rs.9,987/-.
12. So far as the question of disability is concerned,
there is no dispute, as both parties have agreed to
consider the disability at 28% of the body as a whole. The
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age of the claimant at the relevant time was 51 years old.
Therefore, considering 51 years old of the claimant at
the time of accident, as per Sarla Varma’s case 11
multiplier is required to be applied, Therefore, the
claimant would be entitled to Rs.9987/- x 28% = 2,796/-
and 2,796/- x 12 x 11 = Rs.3,69,072/-. The medical
expenses have already been awarded by the learned
Tribunal. So far as amount awarded for pain, shock and
suffering is concerned, considering the injuries sustained
by the claimant, the amount of Rs.25,000/- awarded by
the learned Tribunal is required to be enhanced to
Rs.75,000/-. The actual loss of income, calculated by the
learned Tribunal at Rs.24,000/- for three months, is
required to be enhanced to Rs.54,474/- for three months,
considering the reassessed income. The amount of
Rs.9,000/- awarded towards special diet, attendance and
transportation charges is required to be enhanced to
Rs.15,000/-.
13. As discussed above, the compensation payable to the
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present appellant is reassessed as under:
Heads of
Compensation
Awarded by the
Reassessed by this
Court
Tribunal
Future Loss
Of Income
Rs.2,95,680/- Rs.3,69,072/-
Medical Expenses Rs.4,89,499/- Rs.4,89,499/-
Pain, Shock and
Rs.25,000/- Rs.75000/-
Suffering
Actual Loss of Income Rs.24,000/- Rs.54,474/-
Special Diet,
Rs.9,000/- Rs.15,000/-
Transportation and
Attendant Charges
Total Compensation Rs.8,43,179/- Rs.10,03,045/-
Deduction of 50%
Rs.4,21,589/- Nil
towards contributory
negligence by the
Tribunal
Net Compensation Rs.4,21,589/- Rs.10,03,045/-
Less: Compensation
- - Rs.4,21,589/
awarded by the
learned Tribunal
=Rs.5,81,456/-
-
Enhanced
amountEnhanced
Compensation
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14. Considering the above, the learned Tribunal had
awarded compensation of Rs.4,21,589/-. Upon
reassessment, the claimant is entitled to enhance
compensation of Rs.5,81,456/-, with interest at the rate of
9% per annum from the date of the claim application till
realization.
15. Hence, the present appeal is partly allowed. The
judgment and award dated 17.09.2025 passed by the
M.A.C.T. (Aux.) and 4th Additional District Judge, Anand,
in M.A.C.P. No.242 of 2021, stands modified to the
aforesaid extent. The respondent-Insurance Company
shall deposit the enhanced amount of Rs.5,81,456/- along
with interest, as awarded by the learned Tribunal, before
the learned Tribunal within a period of four weeks from
the date of receipt of copy this order.
16. Considering that the accident took place in the year
2021, upon deposit of the enhanced amount by the
Insurance Company, the total amount lying with the
concerned Tribunal, along with the enhanced amount and
accrued interest, if any, shall be disbursed to the
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claimants by Account Payee Cheque and/or NEFT and/or
RTGS, after due verification and following proper
procedure.
17. The learned Tribunal is directed to recover or
deduct the deficit court fees, if any, on the enhanced
amount and thereafter disburse the amount accordingly.
18. Record and proceedings, if any, shall be sent back to
the concerned Tribunal forthwith.
19. The award shall be modified accordingly.
(L. S. PIRZADA, J)
STANCY GOMES
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