NATIONAL INSURANCE COMPANY LIMITED vs AJMERI INDRESHKUMAR JAMALBHAI

C/FA/135/2020 JUDGMENT DATED: 15/10/2026
(GJHC240606842019)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 135 of 2020
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NATIONAL INSURANCE COMPANY LIMITED
Versus
AJMERI INDRESHKUMAR JAMALBHAI & ORS.
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Appearance:
MS MASUMI NANAVATI for MR VIBHUTI NANAVATI(513) for the
Appellant(s) No. 1
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 3
MS AMRITA AJMERA(5204) for the Defendant(s) No. 5,6,7,8
RULE SERVED for the Defendant(s) No. 4
SERVED BY PUBLICATION IN NEWS for the Defendant(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 15/10/2026

JUDGMENT
1. The present appeal arises out of the judgment and award
dated 12.6.2019passed by the learned Motor Accident Claims
Tribunal (MACT), Morbi, wherein the learned Tribunal was
pleased to allow the claim petition under Section 166 of the
Motor Vehicles Act, 1988, awarding compensation of Rs.
12,04,000/- [along with interest at 9% per annum from the
date of filing of the claim petition until realization, holding the
opponents jointly and severally liable.
2. Brief facts of the case are as under:-
2.1 That, Deceased Gautamkumar @ Kishor Maheshbhai @
Mavjibhai Solanki was traveling in a Pic Up Van No.
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GJ.02.X.2808 from Charadva to Morbi on 29.09.2005. That,
the rear wheel of the Van got punctured near Unchi-Nichi
Mandal Road. So, the Deceased was helping the driver-cum-
owner, Opponent No: 4 of the Pic Up Van to change the
wheel. Meanwhile, the Opponent No: 1 came from the back
driving his Eicher No: GJ.03.U.7542 in a very rash and
negligent manner that he dashed his Eicher with the Van from
the back. That, Deceased Gautamkumar @ Kishor Maheshbhai
stained grievous injuries and succumbed to the same.
Claimants No: 1 & 2 are the parents, No: 3 is the widow @
No: 4 is the minor Daughter of the Deceased. That, Opponent
No: 1 is the Driver, No: 2 is the Owner and No: 3 is the
Insurer of the Eicher involved in the accident. Likewise,
Opponent No: 4 is the Driver-cum-Owner and No: 5 is the
Insurer of the Van involved in the accident. The said accident
resulted in the death of the deceased due to the negligence of
the Eicher Driver-Opponent No: 1. That, all the opponents are
jointly and severally liable to pay the amount of compensation
to the applicants - LRs of the deceased. That, the deceased
was earning the wages of 6,000/- per month. That, deceased
was @ 22 years of age at the time of fatal accident. Thus,
Claimants have claimed 8,00,000/- by way of compensation
from the opponents under various Heads.
2.2 The opponent Nos.1 to 3 and 5 on being served
appeared through learned advocate and filed written
statement at Exhs.10,13 and 21 denying the averments and
allegations made in the claim petition.
2.3 The learned Tribunal after hearing both the parties and
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considering the evidence on record, was pleased to pass the
impugned judgment and award.
2.4 Hence, present First Appeal.
3. Heard learned advocate Ms. Masumi Nanavati for
learned advocate Mr. Vibhuti Nanavati appearing for the
appellant – insurance company, learned advocate Mr. Chirayu
Mehta appearing for the respondent No.3 – the Oriental
Insurance Co. Ltd. and learned advocate Ms. Amrita Ajmera
appearing for the respondents – original claimants.
4. Learned advocate Ms. Masumi Nanavati for learned
advocate Mr. Vibhuti Nanavati appearing for the appellant –
insurance company would submit that the learned Tribunal
erred in apportioning or holding liability without properly
appreciating that the Pickup Van was parked safely on the
side of the road. She would further submit that the deceased
was originally traveling as an unauthorized/gratuitous
passenger in a goods vehicle (Pickup Van) beyond the
permitted seating capacity, and therefore, the insurer of the
Pickup Van ought to be exonerated from liability. She would
attempt to rely upon precedents regarding gratuitous
passengers falling off moving vehicles to contend that the
original status of a passenger remains unchanged. Hence,
she prays to allow this First Appeal.
5. On the other hand, learned advocates appearing for the
respective respondents suppors the impugned judgment and
award, and submits that the learned tribunal has rightly
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assessed the evidence on record, and therefore no interference is
required.
6. Regard being had to the rival submissions of learned
advocates for the respective parties , at the outset, let refer para
7 to 9 i.e. findings of the learned Tribunal, which read as
under:-
“7. Now, in order to prove his Case, Claimant No: 1
has examined himself as PW-1 at Ex: 34 by way of
Examination-in-chief. He has deposed in consonance
of his pleading. Hence, needless to repeat the same.
Now, on perusal of deposition of PW-1, police FIR,
spot panchnama, Inquest Panchnama and PM
produced by the PW-1 vide Ex: 35 to 38, it clearly
transpires that, the Van was stationery due to the
rear wheel puncture on the side of the road, that the
Eicher dashed the Van from the back and the
Deceased was helping the Van Driver for changing
the wheel. So, the van was stationery and the
deceased was not inside the Car. The Deceased was
not supposed to travel with the punctured Van.
Otherwise also, he was traveling as an occupant in
the Van prior to rear wheel puncture, with out any
fare by sitting in the Cabin of the Van. Even, the
complaint has been lodged by the Van Driver against
the Eicher Driver-Opponent No: 1. So, the Deceased
was a third party for both the vehicles involved in the
accident. The deposition version of PW-1 as well as
tffe version of FIR lodged by the Van Driver
immediately after accident seems to be consistent.
The Opponents have failed to rebut the same.
Moreover, the Insurers-Opponents No: 3 and 5 have
confirmed the Insurance policies of the vehicles
involved in the accident produced by the PW-1 vide
Ex: 42 & 50. Both the policies are Full-Packaged
Policies which cover the third party risk of the
Deceased. Even, as per RC Book of the Van Produced
at Ex: 47, the official seating capacity of the Van was
for 2 persons including the Driver. It means that, the
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seating of the occupant was allowed. And as per
deposition of PW-1 and FIR versions, there were only
two persons traveling inside the driver cabin of the
van prior to rear wheel Picture, i.e: the police
complainant as a driver of the van and the Deceased
as an occupant traveling without fare. So, the risk of
the Deceased also covers under the Full-Packaged
policy of the Van. So, the argument of the Opponent
No: 5-Insurer that the Deceased was traveling as a
gratuitous passenger does not sustain. So, claimant
has succeeded to prove alleged accident and
involvement of both the offending vehicles driven by
the drivers-Opponents No: 1 and 4 as well as rash
and negligence of both or either of the drivers of
vehicles involved in the accident. Whereas, opponents
have failed to rebut those evidences.
8. Now, so far as distinction between composite and
contributory negligence is concerned, the 3 Judges
Bench of the Hon. Supreme Court has made the law
settled in the Case of PAWAN KUMAR & ANR. ETC.,
V/s. M/S HARKISHAN DASS. MOHAN LAL & ORS.,
reported in 2014 ACJ 704 SC. In the said Case, the
Hon. Supreme Court has considered the distinction
between the principles of composite and contributory
negligence that has been dealt with in Winfield &
Jolowicz on Tort (Chapter 21) (15th Edition, 1998). It
is further observed by the Hon. Supreme Court in the
said Case that, the above principle has been
explained in T. O. Anthony (supra) followed in K.
Hemlatha & Ors. (supra), Para 6 of T.O. Anthony
(supra) which are relevant may be extracted herein
below:
"6. Composite negligence refers to the
negligence on the part of two or more persons.
Where a person is injured as a result of
negligence on the part of two or more
wrongdoers, it is said that the person was injured
on account of the composite negligence of those
wrongdoers. In such a case, each wrongdoer is
jointly and severally liable to the injured for
payment of the entire damages and the injured
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person has the choice of proceeding against all or
any of them. In such a case, the injured need not
establish the extent of responsibility of each
wrongdoer separately, nor is it necessary for the
court to determine the extent of liability of each
wrongdoer separately. On the other hand where
a person suffers injury, partly due to the
negligence on the part of another person or
persons, and partly as a result of his own
negligence, then the negligence on the part of
the injured which contributed to the accident is
referred to as his contributory negligence."
9. The same Principles have been reiterated by the
Larger Bench of the Hon. Apex Court in its recent
Judgment in the Case of Khenyei V/S. New India
Assurance Co.Ltd. and others reported in 2015 ACJ
1441 SC (Para-18), as under: "In the case of
composite negligence, plaintiff/claimant is entitled to
sue both or any one of the joint tortfeasors and to
recover the entire compensation as liability of joint
tortfeasors is joint and several.
In the case of composite negligence,
apportionment of compensation between two
tortfeasors vis-a-vis the plaintiff/claimant is not
permissible. He can recover at his option whole
damages from any of them."
7. Perusing the impugned judgment and award and the
documents placed on record, what appears that at the time of
the incident, the deceased was not inside the vehicle as a
passenger/occupant. He was standing on the side of the road
as a pedestrian/third party assisting the driver with a
punctured tire. The moment the vehicle came to a halt and
the deceased stepped onto the road, his status transformed
into that of a bystander/third party on the road and therefore,
his status at the time of the impact was that of a third party
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standing on the roadside who was crushed by the incoming
Eicher vehicle. Hence, the contention raised by the Insurance
Company that the deceased should be treated as a gratuitous
passenger inside a goods carriage is devoid of merit and
stands rejected.
8. Upon perusal of Paragraph 7 of the impugned judgment
and the deposition of PW-1 claimant No.1 (Exh.34), read in
conjunction with the FIR, it clearly transpires that the Pickup
Van was stationary on the shoulder of the road. The driver of
the Eicher Truck (GJ-03-U-7542), approaching from behind,
failed to apply brakes in time and rammed into the stationary
vehicle. The finding of composite/contributory negligence
arrived at by the learned Tribunal holding both vehicles
involved in the collision is supported by the evidence on
record. Further, it is a case of composite negligenc e and
therefore, the claimants, in a case of composite negligence
involving two tortfeasors, are at liberty to recover the
awarded compensation jointly and severally from the owners,
drivers, and insurers of both offending vehicles.
9. Resultantly, present First Appeal fails and stands
dismissed. The judgment and award passed by the learned
Motor Accident Claims Tribunal is hereby affirmed. The plea
of the Appellant Insurance Company seeking exoneration on
the ground of the deceased being a gratuitous passenger is
dismissed.
10. The Tribunal shall disburse the entire awarded amount
lying in the FDR and/or with the Tribunal, with accrued interest
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thereon, if any, to the claimant, by account payee cheque /
NEFT / RTGS, after proper verification and after following due
procedure.
10.1 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
11. Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
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