REKHABEN MANUBHAI SONGARA vs MAHENDRA NATHUBHA JADEJA
- Court
- Gujarat High Court
C/FA/1413/2016 (GJHC240426622016) JUDGMENT DATED: 03/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1413 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
No
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REKHABEN MANUBHAI SONGARA & ORS.
Versus
MAHENDRA NATHUBHA JADEJA & ORS.
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Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1,2,3,4,5
MR AB GATESHANIYA(3766) for the Defendant(s) No. 3
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 03/09/2026
JUDGMENT
1. Judgment and award dated 31.03.2016 passed by learned
MACT (Auxi), Surendranagar in MACP No.270 of 2009, by which
learned Tribunal has granted compensation of Rs. 3,70,600/-
with with 9% interest from the date of the claim petition till
realization for the death of Manubhai Bhopabhai Sonagara is
appealed by this original claimants under section 173 of the
motor.
2. The factual aspects born out of impugned judgment is as
under :-
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2.1. On 17.12.2008, the deceased was riding a motorcycle
bearing registration no. GJ-13-2730 on the roadside on the
outskirts of Village Baldana. When the motorcycle reached near
the GSPC gas pump, truck / trolley bearing nos. GJ-10-AD-0480
and GJ-10-W-8882 came from the hotel adjacent to the GSPC
gas pump and collided with the motorcycle of the deceased,
resulting in his death. The deceased was 25 years old and
worked as a diamond polisher, earning Rs. 4,500/- per month.
His family consisted of a widow, two minor daughters, and
parents, all of whom were dependent on his income. The fatal
road accident deprived the dependents of his income; therefore,
the claimants filed a claim petition under Section 166 of the
Motor Vehicles Act, claiming compensation of Rs. 9 lakhs with
yearly interest at 18% from the date of the claim petition until
realization, jointly and severally from the opponents.
3. Except Insurance Company, none appeared to file written
statement. Insurance Company vide Exh.18 raised usual
contention of denial.
4. Learned Tribunal after fixing the issues was pleased to
partly allow the claim petition in aforesaid terms. Learned
Tribunal has also assessed 20% contributory negligence of
deceased and deducted amount of compensation towards
contributory negligence out of total amount of compensation.
5. Heard learned advocate Ms. Amrita Ajmera for the
appellant and learned advocate Mr. Palak Thakkar for the
respondent Insurance Company.
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6. The appeal is filed on two grounds: firstly, that the learned
Tribunal committed an error in assessing the contributory
negligence of the deceased in the absence of any evidence; and
secondly, that the compensation of Rs. 3,70,600/- granted is too
meager. Learned advocate Ms. Ajmera, finding fault with the
judgment of the learned Tribunal, submitted that compensation
for loss of future prospects was not assessed and granted.
Moreover, the amount deducted for personal expenses is on the
higher side considering the number of claimants, and the
compensation assessed for non-pecuniary heads is not in
conformity with the law laid down by the Hon’ble Apex Court in
National Insurance Company Ltd. v. Pranay Sethi [2017 (16)
SCC 680] and Magma General Insurance Company Limited v.
Nanu Ram @ Chuhru Ram & Ors. [2018 (18) SCC 130] .
Learned advocate Ms. Ajmera also disputed the monthly income
assessed by learned Tribunal by submitting that the learned
Tribunal assessed at Rs. 2,800/-, which is lower than the
minimum rate wages of Rs. 3,460/- at the time of the road
accident.
6.1. Upon above submissions, it is submitted to allow the
appeal and modify impugned judgment and award.
7. While addressing impugned judgment as just and property,
learned advocate Mr. Thakkar for Insurance Company submitted
that going by FIR, accident took place in such a way that
motorcycle was driven by three persons (triple-seat) without
taking due care that the road from the hotel is open towards
main road and that deceased has to take care before passing the
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road. However, deceased did not take sufficient care and thereby
the road accident has taken place due to his negligence. It is
further submitted that learned Tribunal has rightly taken up
the income of Rs.2800/- per month in absence of any any
evidence. In all he submitted to confirm the judgment and award
and to dismiss the appeal.
8. Regard being had to the rival submissions of learned
advocates for the parties, perusal of impugned judgment and
award as well as record and proceedings, at the outset, let me
refer para 11 of the impugned judgment, by which learned
Tribunal has discussed contributory negligence of 20%. Para 11
reads as under : -
“11. Having heard, both advocates and perusing the
document on record more particularly the deposition given
by the applicant and opponent, Insurance Co., has not
examined any witness and the offending driver has
remained undefended,therefore, adverse inference requires
to be drawn against the opponent No.3 driver and the
manner in which the accident occurred , this Tribunal is
inclined to consider 20% contributory negligence on the part
of the deceased. Therefore,while granting the final
award,the amount of 20% contributory negligence will be
deducted from the total amount. Hence, the applicant has
established the factum of rash and negligent driving on the
part of the opponent no.3 to the aforesaid extent.”
9. Aforesaid finding of learned Tribunal is utter surprising.
The learned Tribunal did not refer to any evidence on record, yet
recorded a finding of 20% contributory negligence against the
deceased. This is a case where the driver of the offending vehicle
did not enter the witness box, neither defended the claim
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petition nor adduced any evidence, whether oral or
documentary. It was a fit case where the learned Tribunal was
required to draw an adverse inference, but instead, the learned
Tribunal saddled the claimants with 20% contributory
negligence. Much more could be observed regarding the
Tribunal's finding on contributory negligence; nonetheless, such
a finding, based on surmises and conjectures without any
sustainable evidence, deserves to be set aside. The FIR speaks
for itself and clearly indicates that the driver of the offending
vehicle was driving in a rash and negligent manner from the
hotel premises, and jumped on the main road without looking to
either side. The impact of the collision with the motorcycle was
so severe that the deceased sustained fatal head injuries and
died instantaneously on the spot. In light of these facts, the
Tribunal's finding assessing 20% contributory negligence to the
deceased is unsustainable and is accordingly set aside.
10. The Hon’ble Supreme Court in case of [Hitesh Nagjibhai
Patel v/s. Babahai Nagjibhai Rabari (2025 Live Law SC 871)]
held that in absence of any evidence with regard to income of
deceased, Tribunal owes the duty to take the minimum wages of
the skilled worker and relevant time towards assessing
compensation.
11. In para 14 of the impugned judgment, learned Tribunal on
its own took income of deceased at Rs.2800/- per month, it did
not refer to rate of minimum wages at the time of the road
accident ie. 17.12.2008. The rate of minimum wage of skilled
worker in the state of Gujarat in year 2008 was Rs.3633/- per
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month, therefore, same is required to be adopted. The deceased
admittedly was 25 years old, therefore multiplier of 18 should be
taken as per settled proposition of law. There are as many as five
defendants on record. Out of out of five claimants, widow is
claimant no.1, claimant nos.2 and 3 are minor children and
claimant nos.4and 5 are parents of the deceased and that would
lead to deduction of 1/4 of the total income including income
towards personal and pocket expenses, instead of 1/3 taken up
by learned Tribunal and the amount of compensation under
non-pecuniary heads have to be revised in view of the judgment
of Magma (supra), whereby the each claimant is entitled to
receive the compensation under the head of loss consortium.
For claimant no.1, it would be loss of spousal consortium; for
claimant nos.2 and 3, it would be loss of parental consortium
and for claimant no.4 and 5, it would be filial consortium.
12. In view of above finding, re-calculation of just and fair
compensation is worked out as under : -
Particulars Amount (Rs.)
Amount (Rs.)
awarded by
assessed by this
learned Tribunal
Court
Loss of dependency 4,03,272/- 7,84,728/-
(Rs.3633/- x 12
x18)
Loss of consortium 20,000/- 2,42,000/-
(Rs.48,400/- x5)
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Funeral expenses 20,000/- 18,150/-
Loss of estate 20,000/- 18,150/-
Total… 3,70,618/-
10,63,028/-
i.e. Rs.3,70,600/-
Less: amount which is
3,70,600/-
already awarded by
learned Tribunal.
Additional amount
6,92,428/-
which is awarded
13. Therefore, I hold that the claimant/s are entitled to
get the total amount of additional compensation of round off
Rs.6,92,500/- with 9% p.a. interest from the date of filing the
claim petition till its realisation, which would meet the ends of
justice. The Tribunal has already awarded Rs.3,70,600/-,
therefore, remaining amount of Rs.6,92,500/- would be the
enhanced amount of compensation payable to the claimant/s.
14. For the reasons recorded above, the following order is
passed.
14.1 The appeal is partly allowed in aforesaid terms .
14.2. Finding of learned Tribunal assessing 20%
contributory negligence of deceased is hereby set aside.
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14.3. The Insurance Company is directed to deposit the
enhanced amount Rs.6,92,500/- with 9% p.a. interest from the
date of claim petition till its realisation before the concerned
Tribunal, within a period of 12 weeks from the date of receipt of
this order.
14.4. Upon deposit of amount, the Tribunal concerned
shall disburse the entire awarded amount including 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 and if required by passing necessary order.
14.5. While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
14.6. Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(J. C. DOSHI,J)
SATISH
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