YASIN YAKUB TEKA vs SANJAYKUMAR BHUPATSINH RATHOD
- Court
- Gujarat High Court
C/FA/542/2023 JUDGMENT DATED: 02/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 542 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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YASIN YAKUB TEKA
Versus
SANJAYKUMAR BHUPATSINH RATHOD & ORS.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR VC THOMAS(5476) for the Defendant(s) No. 2,4
RULE NOT RECD BACK for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 02/07/2026
JUDGMENT
1. The captioned appeal has been preferred against the impugned
judgment and award dated 07.10.2021 passed by the learned Motor
Accident Claims Tribunal (Main), Panchmahals at Godhra in M.A.C.P.
No. 231 of 2019, whereby the learned Tribunal had partly allowed the
Claim Petition and awarded a sum of Rs.54,666/-, along with interest at
the rate of 9% per annum, from the date of filing of the claim petition
till its realization, as compensation. The learned Tribunal has deducted
70% of the total awarded amount on account of self-negligence of the
claimant/appellant herein.
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2. The succinct facts, which led to the filing of the captioned appeal,
as narrated in the Claim Petition are summarized as under:-
i. On 26.08.2012, original claimant/appellant herein - Mr.
Yasin Yakub Teka was driving a luxury bus bearing
registration No.GJ-20-T-9603 from Godhra to Morwa.
When he reached near the place of the accident, original
opponent No.3/respondent No.5 herein (deleted vide
Exh.10) came by driving one trailer bearing registration
No.RJ-14-GC-6546 in a rash and negligent manner and at
an excessive speed and dashed with the luxury bus driven
by the claimant/appellant herein, thereby causing the
vehicular accident. The original claimant/appellant herein
sustained grievous injuries in the said vehicular accident.
ii. Therefore, the original claimant/appellant herein
preferred the Claim Petition before the learned Tribunal,
seeking compensation on account of the injuries
sustained in the vehicular accident.
iii. Having been served with the notices/summons of the
Claim Petitions, the United India Insurance Company
(Insurer of both vehicles involved in the accident is same)
filed its Written Statement, thereby denying the
averments made in the Claim Petition, and prayed for
dismissal of the Claim Petition.
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iv. Having considered the submissions advanced by the
learned counsels for the respective parties and having
regard to the evidence available on record, the learned
Tribunal had partly allowed the Claim Petition and
awarded a sum of Rs.54,666/-, along with interest at the
rate of 9% per annum, from the date of filing of the claim
petition till its realization, as compensation. The learned
Tribunal has deducted 70% of the total awarded amount
on account of self-negligence of the claimant/appellant
herein.
Being aggrieved and dissatisfied with the impugned
v.
judgment and award, the original claimants/appellants
herein have preferred the captioned appeal on ground of
deduction of 70% of the awarded amount on account of
the self negligence of the claimant/appellant herein, as
well as quantum.
3. Heard learned counsels for the parties.
4. At the outset, Mr. Nishit A Bhalodi, learned counsel appearing on
behalf of the original claimant/appellant herein vehemently argued that
the learned Tribunal has erroneously deducted 70% of the awarded
amount on account of self-negligence of the claimant/appellant herein.
He contended that the risk of the claimant/appellant herein, who was
the driver of the luxury bus was duly covered under the insurance
policy, as an additional premium was charged by the Insurance
Company. Therefore, he argued that 70% of the awarded amount
ought not to have been deducted by the learned Tribunal. In support of
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his contentions, learned counsel for the claimant/appellant herein has
placed reliance upon the judgment rendered by the full bench of this
High Court in the case of Valiben Laxmanbhai Thakore (Koli) Wd/
O Late Laxmabhai Ramsingbhai Thakore (Koli) v. Kandla Dock
Labour Board reported in 2021 (0) AIJEL-HC 243219. Having
placed reliance upon the aforesaid judgment, learned counsel for the
original claimant/appellant herein contended that the deduction of 70%
of the awarded amount on account of self-negligence of the
claimant/appellant herein is erroneous, as such, he prayed for
modification of the impugned judgment and award.
5. Learned counsel for the original claimant/appellant herein further
contended that at the time of the vehicular accident, the
claimant/appellant herein was aged about 29 years, however, the
learned Tribunal had not considered the future prospects of the
claimant/appellant, therefore, he prayed that 40% of the monthly
income is required to be added on account of his future prospects. In
support of his contentions, learned counsel for the original
claimant/appellant herein has placed reliance upon the judgment
rendered by the Hon’ble Apex Court in the case of the National
Insurance Company Ltd. Vs. Pranay Sethi reported in 2017 (16)
SCC 680. Having placed reliance upon the aforesaid judgment, he
prayed for modification of the impugned judgment and award.
6. Per contra, Mr. V.C. Thomas, learned counsel appearing on behalf
of the respondent Nos.2 & 4 herein – United India Insurance Co. Ltd,
vehemently submitted that the learned Tribunal, after considering the
evidence on record, has rightly deducted 70% of the awarded amount
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on account of the self-negligence of the claimant/appellant himself. He
further submitted that the learned Tribunal had award just
compensation under all the heads, as such, he argued that there is no
infirmity in the impugned judgment and award, and submitted that the
captioned appeal being devoid of any merits, is liable to be dismissed.
7. Having considered the submissions of the learned counsels for
the parties and having perused the material available on record, it is to
be noted that the original claimant/appellant herein have preferred the
captioned appeal on ground of deduction of 70% of the awarded
amount on account of the self negligence of the claimant/appellant
herein, as well as quantum.
8. So far as the quantum is concerned, the learned Tribunal has
assessed the monthly income of the deceased as Rs.4,000/- per month.
The said monthly income assessed by the learned Tribunal is not under
challenge. It is also not in dispute that at the time of the vehicular
accident, the claimant/appellant herein was aged about 29 years,
therefore, in view of the ratio of the judgment rendered by the Hon’ble
Apex Court in the case of Pranay Sethi (supra), the notional monthly
income of the claimant/appellant is required to be enhanced by 40% on
account of his future prospects. Therefore, after adding 40% of the
notional income to the monthly income of the claimant/appellant, the
monthly income of the claimant/appellant would come to Rs.5,600/-
(i.e, Rs.4,000/- plus 40% of Rs.4,000/-).
9. The learned Tribunal has considered the functional disability of
the claimant/appellant at 17%. The same is not under challenge. Thus,
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considering the functional disability at 17% and applying the multiplier
of “17” as per age of the claimant/appellant herein, the Future loss of
income would come to Rs.1,94,208/- (i.e., Rs.5,600 X 17% X multiplier
of “17” X 12 months).
10. The learned Tribunal had awarded a sum of Rs.20,000/- under
the head of Pain, shock & sufferings, a sum of Rs.7,500/- under the
head of Special, diet, attendant & transportation charges, a sum of
Rs.4,000/- under the head of Medical expenses and a sum of
Rs.12,000/- under the head of Actual Loss of income. I am of the
considered view that the compensation awarded by the learned
Tribunal under the aforesaid heads is just and proper, as such, they are
not required to be interfered with and are accordingly maintained.
11. Therefore, in view of the above discussion, the original
claimants/appellants herein shall be entitled for the following amount of
compensation:-
Sr.
No.
Head Amount in rupees.
1 Future Loss of Income. 1,94,208/-
2 Pain, Shock & Sufferings. (+) 20,000/-
3 Special Diet, Attendant &
Transportation Charges. (+) 7,500/-
4 Medical Expenses (+) 4,000/-
5 Actual Loss of Income (+) 12,000/-
6 Total Compensation 2,37,708/-
Less : Compensation already
7
awarded by the learned
Tribunal vide its impugned
(-) 54,666/
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judgment and award.
8 Enhanced amount of
1,83,042/
Compensation
12. Therefore, in view of the above discussion, the original claimant
shall be entitled for an additional compensation to the tune of
Rs.1,83,042/-. The learned Tribunal has awarded interest at the rate of
9% per annum from the date of filing of the Claim Petition till
realization. The said rate of interest is maintained; accordingly, the
original claimants shall be entitled to 9% of interest per annum on the
additional amount of compensation from the date of filing of the Claim
Petition till its realization.
13. The learned Tribunal had deducted 70% of the awarded amount
on account of the self-negligence of the claimant/appellant herein. It
has been argued by the learned counsel for the claimant/appellant that
the risk of the driver is duly covered under the insurance policy. Perusal
of the insurance policy transpires that the Insurance Company has
charged a premium of Rs.50/- under the head of “WC to employee 2”.
The policy further shows that it is subject to the terms and conditions
and IMT Endorsement Nos.21, 38, and 40. This Court finds it
appropriate to reproduce IMT 40 of Indian Motor Tarriff Act, which
reads as under: -
“ IMT 40 Legal Liability to paid driver and/or
conductor and/cleaner employed in connection
with the operation of Motor vehicle.
(For buses, taxis and motorized three/four
wheelers under commercial vehicles tariff)
In consideration of the payment of an additional
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premium it is hereby understood and agreed that
notwithstanding anything contained herein to the
contrary the insurer shall indemnify insured against his
legal liability under the Workmen's Compensation Act,
1923 and subsequent amendments of that Act prior to
the date of this endorsement, the Fatal Accidents Act,
1855 or at Common Law in respect of personal injury to
any paid driver and/or conductor and/or cleaner whilst
engaged in the service of the insured in such occupation
in connection with the vehicle insured and will in
addition be responsible for all costs and expenses
incurred with its written consent The premium to be
calculated and paid while taking insurance of the vehicle
concurred at the rate of Rs. 25/- per driver and/or
conductor and/or cleaner. Provided always that:
(1) this Endorsement does not indemnify the insured in
respect of any liability in cases where the insured holds
or subsequently effects with any insurer or Group of
Underwriters a Policy of Insurance in respect of liability
as herein defined for his general employees.
(2) the insured shall take reasonable precautions to
prevent accidents and shall comply with all statutory
obligations.
(3) the insured shall keep a record of the name of each
driver cleaner conductor or person employed in loading
and/or unloading and the amount of wages salary and
other earnings paid to such employees and shall at all
times allow the insurer to inspect such record.
(4) in the event of the Policy being cancelled at the
request of the insured no refund of the premium paid in
respect of this Endorsement will be allowed.
Subject otherwise to the terms exceptions conditions
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and limitations of this Policy except so far as necessary
to meet the requirements of the Motor Vehicles Act,
1988.”
14. Thus, in view of IMT 40, the risk of the claimant/appellant herein,
who was the driver of the luxury bus, is covered under the insurance
policy. In case of self negligence, if the Insurance Company has
charged an additional premium to cover the risk of the driver, it shall be
held liable. The same issue came for consideration in Valiben
Laxmanbhai Thakore (Koli) (supra), wherein the full bench of this
High Court at para Nos. 13 & 15 had observed as under :-
“13. Thus, when the owner of a vehicle pay
additional premium and same is accepted by the
Insurance Company, liability of the Insurance
Company gets extended under the Motor Vehicles
Act. Section 147 of the Act clearly prescribes for
statutory liability to cover risk of paid Driver and
Conductor under the Insurance Policy, which is a
matter of contract. On payment of such additional
premium by the owner, the liability of the owner shifts
upon the Insurance Company. Thus, the risk of paid
Driver and Conductor would be covered under the
Insurance Policy. Only when the additional premium is
not paid, liability would be as per the Employees
Compensation Act, 1923 and in such cases,
compensation would be computed as prescribed
under the Act which is limited to the extent provided
under provisions of the Act. However, when owner
pays additional premium to cover the legal liability of
his paid driver and conductor to the Insurance
Company, as such, the Insurance Company is
enlarging the scope for unlimited liability for payment
of compensation, when additional premium is
accepted. The liability of the Insurance Company gets
extended and it has no right to raise issue of self
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negligence or otherwise of the such class of the driver
of the Insured vehicle. By accepting additional
premium as per the IMT 28, the Insurance Company
expressed its willingness to extend its liability under
the Clause of Legal Liability to the Paid driver and
conductor as envisaged under Section 147 of the Act.
Thus, in our opinion, Insurance Company has no legal
right to avoid its legal liability under the indemnity
clause arising from the contract of insurance towards
the insured – owner of such classes of vehicles.
………………………………………………………………
………………………………………………………………
15. In our opinion, by accepting additional
premium, the Insurance Company indemnifies the
owners for paid Driver and / or Conductor and risk of
Driver / Conductor is covered under it. Upon death or
injury caused to the paid Driver and / or Conductor,
the Insurance Company would be liable to satisfy such
claim irrespective of the self negligence. Thus, the
observations made by the Division Bench in the case
of Saberabibi Hisammiya Umarvmiya & Anr (supra)
lays down the correct law. Reference is thus,
answered accordingly.”
15. Thus, on considering the above provision of law under the Indian
Motor Tarriff Act and the findings rendered in the aforesaid judgment;
which are found aptly applicable in the present case, this court is of the
view that the learned Tribunal has committed a grave illegality by
deducting 70% of the awarded amount on account of self-negligence of
the claimant/appellant herein.
16. Thus, in view of the above discussion, the impugned judgment
and award stands modified to the aforesaid extent, and accordingly, the
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captioned appeal preferred by the original claimant/appellant herein
stands partly allowed.
17. The Insurance Company, viz., United India Insurance Company is
directed to satisfy the award, including the additional amount of
compensation along with interest, within six weeks from the date of
receipt of copy of this order. Upon depositing the said amount, the
learned Tribunal shall disburse the entire awarded amount to the
original claimant (deducting deficit Court fee, if any), after due
verification.
18. Statutory amount, if any, lying deposited with the Registry of this
Court shall be transmitted to the learned Tribunal concerned forthwith.
Records & Proceedings, if any be sent to the learned Tribunal
concerned. No order as to costs.
19. Pending application, if any, stands disposed of, accordingly.
(MOOL CHAND TYAGI, J)
ARUN...
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