NATIONAL INSURANCE COMPANY LIMITED vs MANISHABEN WD/O VIVEK GARG
- Court
- Gujarat High Court
C/FA/3597/2011 (GJHC240433382011) JUDGMENT DATED: 02/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3597 of 2011
With
R/FIRST APPEAL NO. 2824 of 2010
With
R/CROSS OBJECTION NO. 98 of 2013
In
R/FIRST APPEAL NO. 3597 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
and
HONOURABLE MR.JUSTICE J. L. ODEDRA
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Approved for Reporting Yes No
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NATIONAL INSURANCE COMPANY LIMITED
Versus
MANISHABEN WD/O VIVEK GARG & ORS.
==========================================================
Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
MR. RUSHANG D MEHTA(6989) for the Appellant(s) No. 1
MR ND GOHIL(334) for the Defendant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 2,3
RULE SERVED for the Defendant(s) No. 6,7
RULE UNSERVED for the Defendant(s) No. 4,5
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CORAM: HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
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C/FA/3597/2011 (GJHC240433382011) JUDGMENT DATED: 02/09/2026
and
HONOURABLE MR.JUSTICE J. L. ODEDRA
Date : 02/09/2026
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)
1. On 27.2.2003 an accident occurred between a tanker
and a Maruti Zen car in which Mr.Vivek S.Garg, a 33 year old
engineer who was working as a Senior Sales Officer in Hindustan
Petroleum Corporation Limited was killed. As a result, his wife,
two minor children, and his parents preferred a claim petition.
2. The Tribunal, on assessing the evidence produced
before it, came to the conclusion that the accident occurred as a
result of negligence on the part of the driver of the tanker and
also that of Vivek S. Garg in the ratio of 80:20.
3. The Tribunal, thereafter, determined the monthly
income of the deceased at Rs.24,610/- and by applying a
multiplier of 16 proceeded to ultimately grant a compensation of
Rs.42,80,700/-. Being aggrieved by this award, both the legal
heirs of Mr.Vivek Garg as well as the insurance company are in
appeal.
4. The insurance company is in appeal contending that
the apportionment of negligence at 20% on Mr.Vivek Garg was
incorrect and his contribution to the accident was much larger.
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It is also argued that the Tribunal has failed to take into
consideration the tax component of Mr.Vivek Garg's salary while
computing the compensation and this has resulted in an
enhanced compensation.
5. On the other hand, the claimants contend that the
attribution of 20% negligence on Mr.Vivek S. Garg was wholly
erroneous in regard to the fact that the chargesheet was in fact
laid against the driver of the tanker and the evidence on record
indicate that the tanker was driving at excessive speed which
had in fact resulted in the Zen car being dragged in the reverse
direction for more than 120 feet and the tanker turned turtle. It
is also contended that the amount awarded by the Tribunal is
inadequate inasmuch as future prospects are not granted.
6. From the arguments advanced above, it is clear that
the accident in question is not in dispute. The only argument
being advanced by either side is regarding the negligence. In this
case, the driver of the tanker was examined himself as DW-1 and
the Tribunal in fact has made the following observations as
regards his evidence.
“16. However, the opponent – tanker driver has
deposed on oath at Exh.55 being DW-1 on behalf of
opponent No.3. It is an admitted position of the fact
that opponent No.1 has not filed any reply to contest
the claim petition, but he has stepped into witness
box being DW-1 on behalf of opponent No.3. He has
tried to speak that the accident has not been taken
place due to excessive speed. He has also stated that
width of road is 18-20 fet. He has also stated that
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one motor car came in full speed and dashed to right
side of driver side from opposite direction. While
cross examined by other side, he has admitted that
he had seen the oncoming Maruti Car away at a
distance of 50 to 60 ft from opposite direction on its
correct side of the road. However, it is rebutted fact
that he was driving a vehicle Tanker in excessive
speed, as a result, it dashed with Maruti car and
dragged the Maruti car extent to 120 feet in reverse
direction from the place of incident and ultimately,
tanker was tuurned turtle. He has voluntarily
admitted that he went to police station after
occurrence of accident. He has lastly admitted that
Charge sheet was made against him and, Criminal
proceedings, is pending for hearing and disposal.”
7. As could be seen from the above, the evidence
indicates that the Zen car was visible to the driver of the tanker
at a distance of more than 50 to 60 feet, and yet the tanker
collided with the Zen car and dragged the car to an extent of 120
feet, and thereafter the tanker turned turtle. This finding by
itself indicates the speed at which the tanker was travelling. If a
tanker was to drag a car in the reverse direction for more than a
100 feet and ultimately turned turtle despite the fact that the car
was visible to the driver at a distance of 50 to 60 feet, it is
obvious that the entire fault for the accident can lie only at the
door of the driver of the tanker. The fact that a chargesheet was
also laid against the tanker driver confirms this particular
aspect. We are, therefore, of the view that the attribution of 20%
negligence on Mr.Vivek Garg for contributing to the accident
cannot be sustained and the same is set aside. It is hereby held
that it is the driver of the tanker alone was responsible for the
accident.
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8. As far as the quantum of compensation is concerned,
the salary slip that was produced and a copy of which is also
placed before us indicates that the deceased was earning a gross
pay of Rs.25,133/- and out of this, a sum of Rs. 2,600/- was
payable towards income tax, income tax surcharge, and
professional tax. It is settled law that the tax component of a
salary will have to be deducted while calculating the
compensation. Accordingly, for the purpose of determining the
monthly income, the said amount will be deducted and this
would result in the monthly income becoming Rs.22533/-
(Rs.25,133 – 2,600 = Rs.22533/-).
8.1 In the light of the judgment rendered by Pranay
Sethi's case and taking into consideration that the deceased had
a permanent job and was aged about 33 years, 50% future
prospects will have to be added to the income. Consequently, the
monthly income of Mr.Vivek Garg will have to be determined at
Rs.33800/-.
8.2 Taking his age of 33 years into consideration, a
multiplier of 16 will be applicable and out of this, 1/4th will
have to be deducted towards his personal expenses since he had
5 dependents.
8.3 As a result, the income to be determined for the
purpose of calculating loss of dependency would be at Rs.
25350/- and the loss of dependency would be that of Rs.
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25350/- x 12 x 16 = Rs.48,67,200/-.
8.4 As per the decision of Pranay Sethi, each of the
dependents would be entitled to towards consortium and
conventional head at Rs.52,000/- and the said amount would
come to Rs.2,60,000/- (Rs.52,000/- x 5 = Rs.2,60,000/-) and
the claimants will be entitled towards funeral expenses,
transportation charges and loss of estate at Rs.38200/-
(Rs.19100 x 2 = Rs.38,200/-. The claimants shall be entitled to
total compensation of Rs.51,65,400/-, out of which, the Tribunal
has already awarded compensation of Rs.42,80,700/- and
hence, the claimants would be entitled to enhanced compenation
of Rs.8,84,700/- with 9% interest from the date of filing of the
claim petition till its realization.
9. There is yet another appeal filed by the claimants
being First Appeal No.2824 of 2010. This appeal arises out of the
award of the Tribunal on a claim made by the owner of the
tanker towards damages which occurred to the tanker in the
accident. In these proceedings, the Tribunal by a separate order
has come to the conclusion that both the driver of the tanker as
well as the driver of the Zen car, i.e. Mr.Vivek Garg were
responsible equally, i.e. to the extent of 50-50. In our view, in the
view that we have held above, it is the driver of the tanker alone
who was responsible for the accident, and therefore, the finding
that Mr.Vivek Garg had contributed 50% negligence to the
accident cannot be sustained and the same is set aside. As a
consequence, the entire award towards vehicle damages will
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have to be borne by the insurer of the tanker, and not by the
insurer of the Zen car.
10. First Appeal No.2824 of 2010 is accordingly allowed.
The amount deposited by the appellants in this First Appeal
shall be refunded to them.
11. So far as First Appeal No.3597 of 2011 is concerned,
the same is dismissed and Cross Objection No.98 of 2013 filed
by the claimants is allowed in part.
12. The Insurance Company is directed to deposit the
enhanced amount with interest as stated herein above within a
period of ten weeks from the date of receipt of this order.
13. The Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal, with accrued
interest thereon, if any, to the claimants, by account payee
cheque / NEFT / RTGS, after proper verification and after
following due procedure.
14. While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
15. It is brought to our notice that parents of Mr.Vivek
Garg have given up their claim in favour of two minor children
and therefore, entire money shall be apportioned between the
widow and two minor children in the ratio of 60 : 20 : 20.
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16. Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(N.S.SANJAY GOWDA,J)
(J. L. ODEDRA, J)
H.M. PATHAN
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