NATIONAL INSURANCE COMPANY LIMITED vs DIVYAPRAKASH KANTILAL THAKER

C/FA/2256/2014 JUDGMENT DATED: 14/10/2026
(GJHC240406492014)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2256 of 2014
With
R/CROSS OBJECTION NO. 35 of 2015
In
R/FIRST APPEAL NO. 2256 of 2014
==========================================================
NATIONAL INSURANCE COMPANY LIMITED
Versus
DIVYAPRAKASH KANTILAL THAKER & ORS.
==========================================================
Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR DEEPAK P SANCHELA(2696) for the Defendant(s) No. 2
MR PREMAL S RACHH(3297) for the Defendant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 3
==========================================================
CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 14/10/2026

JUDGMENT
1. The present appeal, at the instance of National
Insurance Company Limited, the insurer of Bolero Jeep No.
GJ-10-F-7120, is directed against the judgment and award
passed by the Motor Accident Claims Tribunal (Main),
Jamnagar, in MACP No.43 of 2009, whereby the learned
Tribunal partly allowed the claim petition filed by the claimant
and directed Opponent Nos. 1 and 2 to pay compensation of
Rs. 5,23,247/- with interest at the rate of 7% per annum from
the date of filing of the claim petition until realization.
Opponent Nos. 3 and 4, being the owner and insurer of the
Taurus truck, respectively, were exonerated from liability.
1.1. The appellant-Insurance Company has challenged
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the impugned judgment and award mainly on the ground that
the learned Tribunal erred in not attributing contributory
negligence to the driver of the Taurus truck involved in the
accident.
1.2. During the pendency of the appeal, the claimant
has filed a cross-objection seeking enhancement of the
compensation awarded by the learned Tribunal.
2. The facts, in brief, are that on August 12, 2008, the
claimant was travelling in Bolero Jeep No. GJ-10-F-7120 on
Dwarka-Khambhalia Highway near village Sinhan. The driver
of the Jeep rammed into a stationary Taurus truck bearing
Registration No.GJ-10-W-5623, which was parked in the
middle of the road. As a result of the accident, the claimant
sustained multiple fractures and injuries to various parts of
his body. He was hospitalized and received inpatient
treatment at various hospitals. The injuries resulted in
permanent functional disability.
2.1. On the basis of the aforesaid pleadings, the
claimant filed a claim petition seeking compensation from the
opponents.
2.2. The learned Tribunal, upon considering the rival
contentions of the two Insurance Companies, namely, National
Insurance Company Limited and Reliance General Insurance
Company Limited, and in the absence of testimony from the
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driver of either vehicle involved in the accident, attributed the
entire negligence causing the accident to the driver of the
Bolero Jeep and passed the impugned judgment and award in
the aforesaid terms.
2.3. Being aggrieved by the impugned judgment and
award, the appellant-Insurance Company has preferred the
present appeal, while the claimant has filed a cross-objection
seeking enhancement of compensation.
3. Heard the learned advocates appearing for the
respective parties and perused the materials available on
record.
4. The main issue arising for consideration in the
present appeal is whether the learned Tribunal erred in failing
to apportion negligence between the drivers of the two
vehicles involved in the accident.
5. In support of the appeal, learned advocate Mr.
Mazmudar submitted that the stationary truck had been
parked on the road without any indicator lights, warning
signs, or boards to alert approaching vehicles to its presence.
It is further submitted that the accident occurred in the
middle of the night, when visibility would have been poor,
making it difficult for an approaching driver to notice the
stationary truck in time.
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6. Learned advocate Mr. Vibhuti Nanavati, appearing
for Reliance General Insurance Company Limited, relied upon
the charge-sheet filed against the driver of the Bolero Jeep
and the pleadings of the claimant, particularly the assertion
that the Jeep was being driven at an excessive speed.
7. Having heard the learned advocates for the
respective parties and having perused the material available
on record, it would be appropriate to examine the findings
recorded by the learned Tribunal in this regard. The relevant
observations in paragraph 11 of the impugned judgment are
reproduced hereinbelow:
“[11] Both the learned advocates appearing on behalf of the
insurance companies have contested that driver of their
vehicle was not responsible for causing the accident. It has
been argued by Ms. Karia, learned advocate for the National
Insurance Co. Ltd., that it is clearly established on the
record that the truck was lying in middle of the road without
any indicators or obstacles. On other hand, Ms. Oza, learned
advocate for the Reliance General Insurance Co. Ltd.
submits that there is no possibility of coming to any other
conclusion but holding that the driver of the jeep was solely
liable for causing accident since the driver and the claimant
have both admitted that the jeep was in full speed and it
dashed with the stationary truck in the process of overtaking
another vehicle. Ms. Oza further submits that even the
police, on completion of the investigation, have filed charge-
sheet against the jeep driver. Having considered the rival
submissions, and perusing the FIR and Panchnama of scene
of the accident, as also evaluating cross-examination of the
claimant, there cannot be any dispute that the jeep was in
excessive speed and it dashed with the stationary truck
while trying to overtake another ongoing vehicle. Even the
police have filed charge-sheet against the jeep driver. The
jeep driver, though summoned, has not stepped into the
witness box to rebut the allegations of accident. In any case,
on perusal of the FIR and Panchnama of scene of the
accident it clearly emerges that the Matador No.GJ-10-V-
5260 had come on wrong side and collided with the jeep of
the petitioner. An adverse inference is, therefore, required to
be drawn, and the opponent insurance company cannot be
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heard on this aspect at all. In any case, the documentary
evidence in the shape of Ex-39 being a certified copy of the
FIR, Ex-40 being a certified copy of the Panchnama of place
of accident, copy of the charge-sheet and Ex-50 being the
Discharge Summary, clearly establish that the applicant
sustained injuries in an accident that took place at the time
and place, and in a manner specified in the petition.”
8. The non-application of mind by the learned
Tribunal is apparent from its observation that Matador No. GJ-
10-V-5260 came from the wrong side and collided with the
Jeep in which the claimant was travelling. The factual
position, however, is that no such Matador was involved in the
accident, nor was any such vehicle present at the spot of the
accident.
9. Recently, the Hon'ble Supreme Court, in case of
Oriental Insurance Company Limited v. Kalu Ram, 2026 INSC
653, held that the mere fact that a car collided with a truck
from behind does not, by itself, warrant an inference of
negligence on the part of the car driver. The Hon'ble Supreme
Court observed that the question of negligence must be
examined in the light of the totality of the circumstances,
bearing in mind that a stationary vehicle occupying a public
road in the dead of night without any warning signals or
indicators may pose an evident hazard to other road users.
The Hon'ble Supreme Court also emphasized the need to draw
an adverse inference against drivers who fail to enter the
witness box and to determine the proximate cause of the
accident on the basis of the evidence available on record.
Paragraphs 14 to 16 of the said judgment read as under:
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14. Insofar as the question of negligence is concerned, we
find no reason to take a view different from that
concurrently taken by the Tribunal and the High Court. The
evidence on record, particularly the testimony of Nikhil
Kumar Jain, who himself was an injured eyewitness to the
occurrence, establishes that the offending truck had been
stationed on the road without parking lights, indicators,
reflectors or any cautionary signs. The accident having
occurred at about 3:00 a.m., the absence of such warning
measures assumes significance. The said testimony has
remained materially unshaken.
15. The defence set up by the driver and owner of the
offending truck was that the vehicle had suffered puncture in
its rear tyres and had been stationed on the extreme left side
of the road. However, neither the driver nor the owner
entered the witness box to substantiate such plea. In the
absence of any evidence from the side of the truck driver,
the Tribunal was justified in drawing an adverse inference
against them. The site photographs and the attendant
circumstances also do not support the case that the truck
had been stationed with due care and caution.
16. The mere fact that the Wagon-R collided with the truck
from behind cannot, by itself, lead to an inference of
negligence on the part of its driver. The issue of negligence
has to be examined in the totality of circumstances. A
stationary vehicle occupying the road in the dead of night
without any warning indication poses an evident hazard to
road users. The Tribunal and the High Court have, on
appreciation of the evidence, rightly concluded that the
proximate cause of the accident was the negligent act of the
truck driver in leaving the vehicle unattended on the road
without adequate precautionary measures.
10. In the present case, upon a careful examination of
the evidence on record, it appears that the claimant, who was
travelling as a passenger in the Jeep, entered the witness box
and deposed in his examination-in-chief that the Jeep was
being driven at an excessive speed and that the truck had
been parked on the road without any warning signals in the
dead of night. Upon perusal of his cross-examination does not
reveal anything material that would assist either Insurance
Company in establishing its defence. The suggestions put to
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the claimant in this regard were denied, and nothing was
elicited in cross-examination to discredit his testimony on the
material aspects of the accident.
11. If the aforesaid oral evidence is considered
alongside the documentary evidence, including the FIR,
charge-sheet, and statements of witnesses, it becomes evident
that neither of the drivers of the vehicles involved in the
accident entered the witness box. Nor did either Insurance
Company take effective steps to secure their presence for
examination. In these circumstances, an adverse inference is
warranted. In my considered opinion, the learned Tribunal
committed a serious error in attributing the entire negligence
to the driver of the Bolero Jeep. The Taurus truck had been
left stationary on a public highway in circumstances that
attracted the prohibitions contained in Sections 122 and 126
of the Motor Vehicles Act, 1988, as well as Regulation 15 of
the Rules of the Road Regulations, 1989. The conduct of the
truck driver, therefore, also warrants a finding of negligence.
12. Accordingly, I hold that the driver of the Bolero
Jeep was negligent to the extent of 60%, whereas the driver of
the Taurus truck was negligent to the extent of 40% in
causing the accident. However, as against the claimant, the
liability remains one of composite negligence, and the
claimant shall be entitled to recover the entire compensation
jointly and severally from any of the opponents held liable.
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13. So far as the cross-objection seeking enhancement
of compensation is concerned, it appears that the learned
Tribunal adopted an unduly conservative approach in
assessing the claimant's monthly income at Rs.4,000/-, despite
the production of the Income Tax Return (ITR) at Exhibit 52.
An Income Tax Return is a relevant statutory document
evidencing the declared income of the claimant and cannot be
disregarded arbitrarily or on mere conjecture. The income
reflected therein ought to be duly considered while
determining the appropriate compensation.
14. The learned Tribunal applied a multiplier of 15,
having regard to the claimant's age of 42 years. However, the
appropriate multiplier for the said age is 14. Further, future
prospects are required to be added at the rate of 25%, in
accordance with the applicable principles governing the
assessment of compensation. The remaining components of
compensation also require appropriate rationalization in
accordance with the evidence on record and the applicable
legal principles. Accordingly, the compensation is required to
be reassessed as follows:
Particulars Amount (Rs.)
Future loss of income 8,85,662.4/-
Loss of actual income 25,304.7/-
Pain, shock and suffering 45,000/-
Medical expenses 1,11,247/-
Special diet, attendant charges, 20,000/-
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transportation
Total… 10,87,214/-
Less : Amount which is already awarded 5,23,247/-
Additional amount which is awarded 5,63,967/-
15. Therefore, I hold that the claimant/s are entitled to
get the enhanced compensation of Rs. 5,63,967/- with 7% p.a.
interest from the date of filing the claim petition till its
realisation, which would meet the ends of justice.
16. For the foregoing reasons, following order is
passed:
16.1 The appeal preferred by National Insurance
Company Limited allowed to the aforesaid extent.
16.2 Cross Objection filed by the claimant is allowed
the aforesaid extent.
16.3 The impugned judgment and award are modified
insofar as they attribute the entire negligence to the driver of
the Bolero Jeep and assess the compensation payable to the
claimant. The negligence of the drivers of the Bolero Jeep and
the Taurus truck shall stand apportioned in the ratio of 60:40,
respectively, and the compensation shall stand enhanced in
the aforesaid terms.
16.4 The claimant shall be entitled to recover a total
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compensation together with interest as stated above from the
date of filing of the claim petition till realization, jointly and
severally from the opponents held liable in accordance with
law.
16.5 Any amount already paid or deposited by any of the
opponents towards satisfaction of the compensation awarded
under the impugned judgment and award shall be duly
adjusted against the amount payable by such opponent.
16.6 The Insurance Companies shall deposit the
respective amounts payable by them, in accordance with their
liability under this judgment, within eight weeks from the date
of this judgment.
16.7 The Tribunal shall disburse the entire 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.
16.8 While making the payment, the Tribunal shall
deduct the courts fees, if not paid, in accordance with
rules/law.
16.9 Record and proceedings, if any, be sent back to the
concerned Tribunal, forthwith
(J. C. DOSHI,J)
MANOJ
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