SHARDABEN MOHANBHAI CHABHAIYA vs DEEPSANGJI DIPUBHA BADHUBHA RATHOD
- Court
- Gujarat High Court
C/FA/2371/2014 (GJHC240406962014) JUDGMENT DATED: 03/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2371 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd./-
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Approved for Reporting Yes No
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SHARDABEN MOHANBHAI CHABHAIYA & ORS.
Versus
DEEPSANGJI DIPUBHA BADHUBHA RATHOD & ORS.
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1,2,3,4
UNSERVED EXPIRED (N) for the Appellant(s) No. 5,6
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
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. The instant appeal is filed, under Section 173 of the
Motor Vehicles Act, challenging the judgment and award
passed by the learned Motor Accident Claims Tribunal
(Auxi.6), Kachchh at Bhuj (in brief, ‘Tribunal’), Dated:
13.03.2014, passed in Motor Accident Claim Petition No.
609 of 2002, whereby, the tribunal assessed compensation
at Rs.5,14,500/-, but, paid Rs.3,85,875/-, after deducting
Rs.1,28,625/-, i.e. towards 25% self-negligence on the part
of the deceased - Mohanbhai Chabhaiya, along with interest
at the rate of 7.5% per annum, from the date of filing of the
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claim petition, till realization. The award was passed against
opponent Nos. 1 to 3 and they were held liable to pay
amount of compensation.
1.1 Being aggrieved with the aforesaid judgment and
award, the claimants have preferred the present first appeal,
mainly on two counts, (i) learned tribunal incorrectly
attributed self-negligence on the part of the deceased –
Mohanbhai to the extent of 25% and (ii) the amount of
compensation worked out by the learned tribunal is not
just, fair and adequate and the same is also missing, some
of the non-pecuniary heads.
2. The brief facts of the case are that on 20.04.2002, in
the morning at about 08:30 a.m., the deceased – Mohanbhai
was going to Bhitara from Khirsara on his scooter, bearing
registration No. GJ-12-C-5385, along with one Ladhabhai
Mavani as a pillion rider and when they reached near cross-
roads, near Danada, on Vejalpur – Kotda road, opponent
No.1, who was driving jeep bearing registration No. GJ-12-
B-8841 in rash and negligent manner, came from wrong
side and dashed the said scooter. On account of that the
deceased Mohanbhai received serious injuries. Therefore,
firstly, he was taken to Kotda Hospital and then to hospital
of Dr. Mukesh Chande at Bhuj and then to hospital of Dr.
Prakash Modh at Rajkot, where, while undergoing the
treatment, he breathed his last on 21.04.2002.
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2.1 Hence, the heirs and legal representatives of the
deceased – Mohanbhai filed the aforesaid claim petition,
under Section 166 of the MV Act, against the driver, owner
and the insurance company, seeking compensation of
Rs.20,00,000/-, pleading that the deceased – Mohanbhai
was earning Rs.1,00,000/- per annum from the agricultural
field and he also used to earn Rs.5,000/- per month as
agricultural advisor. It was also pleaded that the deceased
was aged 38 years and was hale and hearty and he was the
sole breadwinner of his family. The claimants also claimed
compensation under other conventional heads, as well.
2.2 Learned tribunal, after taking into consideration the
evidence on record, was pleased to pass the impugned
judgment and award dated 13.03.2014. Hence, the
appellants, being aggrieved with the same, have approached
this Court by way of this appeal, seeking enhancement of
compensation.
3. Heard, learned advocate, Mr. Mehta, for the appellants
and learned advocate, Mr. Thakkar, for Respondent No.3-
insurance company. Though served, Opponent Nos. 1 and 2
did not chose to appear before this Court.
4. Learned advocate, Mr. Mehta, appearing for the
appellants relied on the decision of the Hon’ble Apex Court
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in the case of ‘M. Nithya Vs. SBI General Insurance Co.
Ltd.’ , reported in 2026 (0) ACJ 1099. It was submitted that
the tribunal committed a serious error in attributing self-
negligence to the extent of 25% on the ground that the
deceased – Mohanbhai was riding the scooter without
helmet. Such finding is contrary to the judgment of the
Hon’ble Supreme Court and therefore, he submitted that the
finding recorded by the tribunal that the deceased –
Mohanbhai was riding scooter without helmet has to go.
4.1 Secondly, he submitted that, though, jeep driver was
one of the eye-witnesses of the accident in question, he did
not enter the witness box and despite that, the tribunal did
not draw any adverse inference and thereby, committed a
serious error.
4.2 It was submitted that the pillion rider, namely
Ladhabhai, being an eye-witnesses of the accident and the
first informant entered into the witness box and vide his
deposition, Exhibit-42, categorically stated that the accident
took place due to sole negligence on the part of the jeep
driver. From his cross-examination, nothing could be
brought out, which would favour the case of the insurance
company. It was submitted that unfortunately, the learned
tribunal, which has recorded self-negligence or contributory
negligence on the part of the deceased – Mohanbhai to the
extent of 25% in Paragraph-16 of the impugned judgment,
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did not refer to the evidence on record and therefore, it
appears that the learned tribunal recorded such finding
only on the basis of conjectures and surmises. By making
the above submission, learned advocate, Mr. Mehta, prayed
to set aside the findings of the learned tribunal to that
extent.
4.3 Learned advocate, Mr. Mehta, next submitted that,
though, the learned tribunal accepted the income of the
deceased at Rs.4,000/- per month, it did not grant benefit of
loss of future prospects.
4.4 It was also submitted that the statutory deduction
towards personal and pocket expenses ought to have been
1/4 in view of the numbers of heirs, who are six in
numbers, and despite that the tribunal deducted 1/3
amount towards personal and pocket expenses.
4.5 Insofar as, the compensation under the non-pecuniary
heads, i.e. loss of estate, loss of consortium etc. is
concerned, it was submitted that in view of the decision
Hon’ble Apex Court in the case of ‘ National Insurance
Company Ltd. Vs. Pranay Sethi’, reported in 2017 (16)
SCC 680 and ‘ Magma General Insurance Company Vs.
Nanu Ram @ Charu Ram & Ors. ’, reported in AIRONLINE
2018 SC 189, the same may be enhanced.
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4.6 By making the above submissions, it was prayed that
this appeal be allowed.
5. Per contra , learned advocate, Mr. Thakkar, appearing
for Opponent No.3 – insurance company submitted to
sustain the findings arrived at by the learned tribunal with
regard to attributing 25% self or contributory negligence on
the part of the deceased – Mohanbhai.
5.1 Learned advocate, Mr. Thakkar, referred to Paragraph-
16 of the impugned judgment and award and submitted
that it is the case, where, the accident took place at Danada
cross-roads and therefore, when a vehicle is passing
through a cross-roads, the driver of each vehicle is required
to take proper care before crossing the cross-roads. It was
submitted that, in the present case, the site-map or the
panchnama of the place of accident is not produced on
record by the claimants to unfurl actual picture of the
accident and therefore, the learned tribunal rightly assessed
25% self or contributory negligence on the part of the
deceased – Mohanbhai.
5.2 Learned advocate, Mr. Thakkar, secondly submitted
that the learned tribunal assessed the monthly income of
the deceased at Rs.4,000/- per month, as against the
minimum wage rate of Rs.2200/- for a skilled worker
prevailing at that point of time. It was submitted that, in
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this case, no concrete evidence was led by the claimants to
establish that the deceased was earning Rs.5,000/- per
month as agricultural advisor. Thus, it can be considered
that the tribunal has taken care of the granting
compensation for loss of future prospects by assessing
income of the deceased at Rs.4,000/- per month, which is
on higher side than the rate of minimum wages for a skilled
worker prevailing at that point of time and hence, there is
no need to add any income under the head of loss of future
prospects.
5.3 By making the above submissions, learned advocate,
Mr. Thakkar, submitted that this appeal may be dismissed.
6. Having heard the rival submissions and having
considered the impugned judgment and award as well as
R&P of the claim petition, at the outset, let me address the
issue of self or contributory negligence. On perusal of the
findings recorded by the learned tribunal in that regard, it
appears that the deceased – Mohanbhai was riding scooter
without helmet and was passing through cross-roads and
these two findings weighed with the learned tribunal to hold
the deceased – Mohanbhai negligent to the extent of 25%.
The issue of riding a motor-cycle without helmet has been
addressed by the Hon’ble Apex Court in the case of ‘M.
Nithya’ (Supra) and the relevant observations read thus;
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“ 5. The Tribunal had concluded that the accident took place
only due to the negligence of the driver of the lorry. The
Insurance Company in their Counter before the Tribunal had
stated that the deceased rode the motorcycle without
wearing a helmet and was riding rashly behind the lorry and
thereby contributed to the accident and hence, contributary
negligence has to be determined. The Tribunal considered
the Final Report that showed that the driver of the lorry was
charged for offences under Section 279 and 304(A) IPC. The
Motor Vehicle Inspection Reports made it clear that the lorry
and motorcycle were involved in the accident. Therefore, the
Tribunal rejected the argument of the Insurance Company
that the deceased contributed to the accident. Hence, it was
determined by the Tribunal that the owner of the lorry and
the Insurance Company are jointly and severally liable to
pay the compensation to the claimants.
6. The High Court, on the other hand, observed that the
driver of the lorry drove the vehicle at a normal speed and if
he had given indication while stopping the vehicle, he would
have averted the accident. The High Court was of the view
that though there was negligence on the part of the driver of
the lorry, the deceased could have avoided the accident by
being vigilant and maintaining proper distance from the
lorry. Therefore, it was held that there was contributory
negligence on the part of the driver of the lorry plus the
deceased and fixed the liability to be 60% on the part of the
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driver of the lorry and 40% on part of the deceased. The
High Court recalculated the compensation payable to the
claimants and awarded a reduced amount of Rs.37,94,500/-
as compensation.
7. It is pertinent to observe that the Tribunal noted that the
Insurance Company in their Counter contend that
contributary negligence of the part of the deceased has to be
fixed. However, the Tribunal did not frame any specific issue
in that regard for determination. The Tribunal clearly finds
negligence only on part of the driver of the lorry and
therefore, the owner of the lorry and the Insurance Company
which insured the said lorry are jointly and severally found
liable to pay compensation. Therefore, when the Tribunal
did not even frame an issue on contributary negligence, the
High Court ought not to have considered that argument in
order to reduce the compensation awarded. Even otherwise
the Insurance Company did not lead any evidence on this
aspect nor insisted for framing an issue. Merely making a
bald assertion in their Counter Affidavit cannot derive any
advantage. Hence, we are in agreement with the findings of
the Tribunal that the accident took place only due to the
negligence of the driver of the lorry and therefore, the
contributary negligence awarded on part of the deceased by
the High Court suffers from an error and cannot be
sustained. ”
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6.1 Thus, in view of the aforesaid findings recorded by the
Hon’ble Apex Court, the contention raised by the learned
advocate for Opponent No.3 – insurance company that the
deceased was not wearing helmet at the time of accident is a
contributory factor and contributory negligence is required
to be negatived. Moreover, what transpires from the record
is that the driver of the offending jeep, for no reason, neither
filed any written-statement nor entered into the witness-box
to unfold the correct facts of the road accident and that
makes it a clear case for drawing adverse inference against
the driver of the jeep. However, the pillion rider, namely
Ladhabhai, had entered into the witness-box and he had
stated that the driver of the jeep was solely negligent for the
accident. During the cross-examination, this witness was
asked whether, the deceased – Mohanbhai was also
negligent and except that, no question was put to the said
eye-witness.
6.2 The Hon’ble Apex Court in the case of ‘Reena Vs.
Managing Director, Karnataka State Road Transport
Corporation’ , reported in 2026 (0) INSC 889, has observed
that a ‘Site Map’ or accident sketch cannot be read in
isolation or used as a sole basis to record contributory
negligence against a deceased driver, in absence of
corroborating ocular evidence.
6.2.1 In the present case, the situation is much better,
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wherein, the claimants have examined the popular witness
and the popular witness successfully stated that jeep driver
was fully negligent in causing the accident. Thus, the
findings recorded by the learned tribunal, holding the
deceased – Mohanbhai negligent to the extent of 25%, is
entirely based on conjectures and surmises and cannot be
sustained. Thus, the findings of the tribunal to that extent
are set aside.
6.3 Insofar as, the calculation of the compensation is
concerned, evidently, opponent No.3 – insurance company
has neither filed any appeal nor any cross-objections
against the impugned judgment and award of the tribunal,
assessing the monthly income of the deceased – Mohanbhai
at Rs.4,000/- per month. In that view of the matter, the
contention raised by learned advocate, Mr. Thakkar, that
the tribunal ought to have assessed the income of the
deceased – Mohanbhai at Rs.2200/- per month, which was
the minimum wages prevailing at the relevant point of time
for the skilled worker, deserves to be negatived and is
negatived. The tribunal has recorded the findings, with
regard to assessing the income of the deceased – Mohanbhai
at Rs.4,000/- per month, in Paragraphs-17 and 18 of the
impugned judgment and award, wherein, the tribunal has
elaborately discussed, how the deceased was obtaining
income from the agricultural produce and his agricultural
land. The extract of Village Form No. 7/12 was also
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produced on record vide Exhibit-64, whereas, other relevant
evidences were produced vide Exhibits-66 onward. Thus, as
the findings arrived at by the learned tribunal has not been
challenged by Opponent No.3 – insurance company, the
income of the deceased assessed by the tribunal at
Rs.4,000/- appears to be just and proper.
6.4 Now, what is noticeable is that the learned tribunal did
not grant any amount towards loss of future prospects and
the deduction towards personal expenses made by it was on
higher side, as the deceased had left behind six heirs, the
tribunal ought to have deducted 1/4 amount towards
persons expenses and hence, the findings of the tribunal in
that regard deserves to be modified to that extent. Further,
the appellants-claimants shall also be entitled to get
compensation under non-pecuniary heads, i.e. funeral
expenses, loss of estate etc..
6.5 In view of the aforesaid discussion, the appellants-
claimants shall be entitled to the following amounts towards
compensation, which are just, fair and adequate;
Sr.
Heads Amount Awarded
Amount Awarded
No.
by the Tribunal
in the Appeal
1. Income Future
Rs.4,000/-
Rs.4,000/-
Rise (40%)
-
+ Rs.1,600/-
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Rs.5,600/-
Deduction
Rs.4,000/-
Rs.5,600/-
rd
-Rs.1,333/- (1/ 3 )
th
-Rs.1,400/- (1/4 )
Towards
Personal
Rs.2,667/-
Rs.4,200/-
Expenses
Yearly Income
12
12
Rs.32,000/-
Rs.50,400/-
Multiplier
15
15
Rs.4,80,000/-
Rs.7,56,000 /-
2. Medical
Rs.12,500/- Rs.12,500/-
Expenses
3. Transportation
Rs.5,000/- Rs.5,000/-
Charges
4. Pain, Shock
Rs.7,500/- Rs.7,500/-
and Suffering
5. Funeral
Rs.2,500/- Rs.18,150/-
Expenses
6. Loss of Estate Rs.2,000/- Rs.18,150/-
7. Loss of
Rs.5,000/- Rs.2,90,400/-
Consortium
8. Negligence
Rs.5,14,500/- Rs.11,07,700/-
(25%)
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-Rs.1,28,625/-
-
Rs.3,85,875/-
______________
Rs.11,07,700/-
Additional Amount
Rs. 7,21,825 /-
with interest @ 7.5% per annum
7. Thus, the appellant-claimants shall be entitled to get
total enhanced compensation of Rs.7,21,825/- along with
interest at the rate of 7.25% per annum from the date of the
filing of the claim petition, till realization and the following
order is passed;
1) Resultantly, this appeal is partly allowed ;
2) The findings of the learned Tribunal, vide order dated
13.03.2014, holding the deceased - Mohanbhai negligent to
the extent of 25% is set aside;
3) The total amount of the enhanced compensation,
which the appellants-claimants shall be entitled to get, is
worked out at Rs.11,07,700/- and after deducting the
amount already awarded by the tribunal, i.e. Rs.3,85,875/-,
the appellant-claimants shall be entitled to get additional
amount of compensation of Rs. 7,21,825 /-;
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4) The appellant-claimants shall be entitled to get interest
at the rate of 7.25% per annum, from the date of the filing of
the claim petition, till realization;
5) Opponent No.3-Insurance Company is directed to
deposit the additional amount of compensation along with
interest and the proportionate costs with the learned
Tribunal within the period of twelve weeks from the date of
receipt of a copy of this order;
6) After the amount of compensation is deposited, the
learned Tribunal shall disburse the same by passing a fresh
order, as the original claimant Nos. 5 and 6 have already
expired;
7) R&P be send back, forthwith;
Direct service is permitted.
Sd./-
(J. C. DOSHI,J)
UMESH/-
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