KISHANKUMAR PRAVINBHAI PATEL vs LAXMANBHAI SHAKRABHAI THAKOR
- Court
- Gujarat High Court
C/FA/245/2010 JUDGMENT DATED: 14/10/2026
(GJHC240436312010)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 245 of 2010
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KISHANKUMAR PRAVINBHAI PATEL
Versus
LAXMANBHAI SHAKRABHAI THAKOR & ORS.
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Appearance:
MS DISHA N NANAVATY(2957) for the Appellant(s) No. 1
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 14/10/2026
JUDGMENT
1. Being aggrieved and dissatisfied with the judgment and
award dated 27.03.2009, passed by the learned Motor Accident
Claims Tribunal (Aux.), Fast Track Court No.2, Kheda at Nadiad
(in short, ‘tribunal’), in Motor Accident Claim Petition No. 2581 of
2001, whereby, the tribunal granted total compensation of
Rs.2,42,400/- along with 9% interest per annum from the date
of filing of the claim petition till 31.12.2002 and at the rate of
7.5% per annum from 01.01.2003 till realization, the appellant-
claimant has filed the present appeal under Section 173 of the
Motor Vehicles Act, 1988 (in brief, ‘M.V. Act’).
2. The original claim petition was filed by one Dr. Samir J.
Patel, as the Power-of-Attorney holder of the victim, namely
Kishankumar Pravinbhai Patel, urging that on 12-13/02/2001,
in the afternoon at about 12:00 Hrs., when the victim-
Kishankumar reached near the place of accident, i.e. Nr.
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Gohelnagar Patia, on the outskirts of village Adas on National
Highway No.8, while driving his Maruti car bearing registration
No. GJ-6-AA-6009 and going towards Anand from Vadodara,
Opponent No.1-driver came driving, the truck bearing
registration No. GJ-1V-4981 from Ahmedabad side, with
excessive speed and in rash and negligent manner and dashed
the same with the Maruit car of the victim-Kishankumar. As a
result of the accident, Maruti car fell in the gutter on its left-side,
whereas, the truck went turtle on the road.
2.1 The victim-Kishankumar sustained grave injuries due to
the accident and he had to take treatment from various
hospitals, viz. Bhailal Amin Hospital, Vadodara, Kardiac Center,
Ahmedabad, Ratan Hospital, Maninagar and Sanjay Hospital,
Ahmedabad. Therefore, the POA of the victim-Kishankumar,
namely Dr. Samir J. Patel filed the claim petition, under Section
166 of the M.V. Act, claiming that the victim-Kishankumar was
holding the degree in B.E. (Chemical) and he was earning
Rs.3,000/- per month by working in a factory producing
lubricating oil. It was also claimed that the victim-Kishankumar
had obtained study visa for Australia and he was aged 25 years
and was hale and hearty. After evaluating the evidence on
record, the tribunal passed the impugned order. Hence, the
present appeal.
3. Heard, learned advocate, Ms. Nanavati, for the appellant-
claimant and learned advocate, Mr. Meena, for Opponent No.3.
None appeared for Opponent Nos. 1 and 2.
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4. Learned advocate, Ms. Nanavati, appearing for the
appellant-claimant made two fold submissions. Firstly, it was
submitted that the tribunal committed a grave error by recording
inconsistent findings with regard to contributory negligence. She
invited the attention of this Court to the findings recorded by the
tribunal in Paragraph-13 of the impugned judgment, where, the
tribunal, in no uncertain terms, held that Opponent No.1-driver
was solely responsible for the alleged road accident and then,
suddenly, in Paragraph-16, the tribunal took a summersault and
attributed 20% negligence on the part of the victim-
Kishankumar and 80% negligence on the part of Opponent No.1-
driver of the truck. She, therefore, submitted that such
contradictory findings recorded by the tribunal shows total non-
application of mind on the part of the tribunal. She submitted
that Opponent No.1-driver did not enter the witness box before
the tribunal to controvert the case of the victim-Kishankumar
that Opponent No.1-driver drove his truck in rash and negligent
manner and dashed Maruti car of the victim and on account of
that the car fell into the ditch on its left side, whereas, truck
went turtle in the middle of the road. According to her, this piece
of evidence is sufficient enough to establish that Opponent No.1-
driver was driving his truck in rash and negligent manner and
caused the road accident.
4.1 Secondly, learned advocate, Ms. Nanavati, submitted that
the tribunal without assigning any reason assessed the monthly
income of the victim at Rs.1750/- or Rs.21,000/- per annum.
She submitted that during the course of cross-examination, even
the witness for Opponent No.3-insurance company admitted that
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the victim was earning Rs.3,000/- per month, as he was having
the degree of B.E. (Chemical) and therefore, she prayed that the
income of the victim be assessed at Rs.3,000/- per month. She
also submitted that the tribunal ought to have 40% rise in the
income of the victim, considering the fact that he was 25 years of
age at the time of accident.
4.2 By making the above submissions, she prayed that this
Court may allow this appeal by granting just, fair and adequate
compensation.
5. Per contra , learned advocate, Mr. Meena, appearing for
Opponent No.3-insurance company supported the judgment and
award of the tribunal submitted that the findings recorded by
the tribunal, with regard to contributory negligence, go to the
root of the matter and in the present case, the tribunal carried
out the exercise and marshaled the evidence and marked
contributory negligence on the part of Opponent No.1-driver as
well as the victim-Kishankumar. He, therefore, prayed that the
findings of the tribunal, with regard to contributory negligence,
may be upheld.
5.1 It was, further, submitted that, though, the victim-
Kishankumar succeeded in proving that he held a degree in B.E.
(Chemical), no evidence was produced on record to prove his
income, at the time of road accident and therefore, the tribunal
by applying smart guess work rightly assessed the monthly
income of the victim at Rs.1750/- or annual income at
Rs.21,000/-. It was submitted that, in the facts and
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circumstances of this case, there is nothing on record to accept
the argument that the claimant - victim being a chemical
engineer was earning Rs.3,000/- per month. By making the
above submission it was prayed to dismiss the present appeal.
6. Having heard the rival submissions of the learned
advocates for the parties and on perusal of the impugned
judgment and award of the tribunal, it is evident that Opponent
No.1-driver, despite being duly served, neither did come forward
to contest the claim of the victim-claimant in the original claim
petition nor did he denied the assertions made in the claim
petition against him, with regard to causing the road accident.
He also did not chose to enter into the witness box. Opponent
No.3-insurance company had all the defences available to it in
the claim petition, but, it could neither bring Opponent No.1-
driver nor Opponent No.2-owner to witness box, which makes it
clear that the best evidence was withheld and therefore, an
adverse inference is required to be drawn against all the
opponents.
6.1 On the contrary, the claimant-victim entered into the
witness box and in Paragraph-1 of his chief-examination he
asserted that Opponent No.1-driver of the offending vehicle was
fully negligent for causing the road accident. On going through
the cross-examination of the claimant-victim, who was the sole
eye-witness to enter the witness-box, I find that not a single
question was put to him about his liability in causing the road
accident in any manner. Apart from that no further oral evidence
was recorded to master the issue of contributory negligence.
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Further, the documentary evidences, in the form of police
papers, i.e. FIR, Panchnama, Charge-Sheet etc., record the
negligence on the part of Opponent No.1-driver. In the
Paragraph-13 of the impugned judgment and order, the tribunal
has observed as under;
“[13] Further, on perusal of the Panchnama produced under
Exh 49, it reveals that the place of offence, as described by the
claimant under Exh.1 and as it is coming forth , in the complaint
under Exh.48, is situated near Gohelnagar in the sim of village
Adas on National High Way no.8. Panchanama further shows
that at the place of accident, the truck involved in the accident is
found lying on the road side in damaged condition. Thus, from
the complaint as well as panchanama, it reveals that the alleged
accident took place and injuries have been caused to the
claimant due to sole negligence of opponent no.1. Under the
circumstances, it reveals that the driver of the truck has
remained thorough negligent in the said accident. ”
6.1.1 It, however, appears that thereafter, the tribunal
suddenly took a summersault and recorded completely
contradictory finding in Paragraph-16 by holding both, the
victim-claimant and Opponent No.1-driver, negligent for causing
road accident in the ratio of 20% and 80%, respectively.
Paragraph-16 of the impugned judgment and award reads thus;
“[16] Under the aforesaid circumstances, as per complaint and
as per panchanama, and as per perusal of the affidavit produced
under Exh.72 and cross-examination carried by the ld. advocate
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Shri N.B. Dave, and also from the medical and other and further
documentary evidence produced on record, it reveals that the
accident has occurred due to 80% negligency on part of truck
driver — opponent no.1 and 20% on part of Maruti driver, viz.
claimant, thereby negligency remained on the part of the truck
driver, viz., the opponent no.1 is 80%, and claimant shall not. get
20% of amount of award against his own negligency. ”
6.2 Aforesaid would indicate total non-application of mind on
the part of the tribunal and therefore, the latter findings
recorded by the tribunal in Paragraph-16 of the impugned
judgment and award has to go and the same deserves to be
quashed and set aside, accordingly. Nonetheless, the evidence
produced on record prove that Opponent No.1-driver was fully
negligent in causing the road accident, as Opponent No.1-driver
in his hurry to overtake another vehicle, came on the wrong-side
and dashed his truck with Maruti car of the victim-claimant. The
impact of accident was such that Maruti car fell into the ditch on
its left-side, whereas, truck went turtle in the middle of the road.
This scenario of the accident, emerging from the police papers,
would make this Court to mark total liability for causing road
accident on Opponent No.1-driver. Thus, the finding recorded
by the tribunal, holding the victim-claimant negligent to the
extent of 20% and Opponent No.1-driver of the offending vehicle
to the extent of 80% for causing the road accident, is quashed
and set aside, accordingly.
6.3 Further, the evidence on record prove that the claimant-
victim was holding the degree of B.E. (Chemical) at the time of
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road accident. The degree certificate was also produced on the
record along with the mark-sheet, which indicate that the
claimant-victim was studying in Bharati Vidhyapeeth College of
Engineering, University of Mumbai. Even, it is not the case of
Opponent No.3-insurance company that the victim-claimant was
not holding degree of B.E. (Chemical). For the first time, during
the course of cross-examination, Exhibit-72, sufficiently
establishes that Opponent No.3-insurance company did not
dispute the claimant being a chemical engineer. In addition
thereto, it also appears that the claimant-victim was earning
Rs.3,000/- per month by serving with a factory producing
lubricating oil was also not disputed by the insurance company.
From the record, it is also revealed that the claimant-victim had
also obtained study visa for Australia.
6.3.1 At this juncture, learned advocate, Ms. Nanavati,
referred to the judgment of the Hon’ble Apex Court in the case of
‘ S. Mohammed Hakim Vs. National Insurance Company
Ltd .’, reported in (2025) 10 SCC 263, which pertains to taking
notional income. It is also the case of the claimant-appellant that
he was earning Rs.3,000/- per month and he was 25 years of
age and therefore, 40% amount towards loss of the future or
prospective income is required to be granted and the multiplier
of 18 is required to be applied. Since, the tribunal did not grant
sufficient amount under the head of special diet, attendant
charges and transportation, therefore, the claimant-victim shall
be entitled to get that, as well.
6.4 Thus, the recalculated amount of compensation shall be as
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under;
Monthly Income: Rs.3,000/-
Prospective Income (40%): + Rs.1,200/-
Net Monthly Income: Rs.4200/-
Net Annual Income: x 12 Months
Rs.50,400/-
Multiplier: x 18
Loss of Future Income: Rs.9,07,200/ -
Disability: - 15%
Rs.1,36,080/-
Medical Expenditure: Rs.2,00,000/-
Actual Loss of Income: Rs.36,000/-
Pain, Shock & Suffering: Rs.25,000/-
Special Diet, Attendant: Rs.25,000/-
Rs.4,22,080 /-
Amount Awarded by Tribunal: - Rs.2,42,400/-
Enhanced / Additional Compensation Rs.1,79,680/-
6.5 Here, it is apt to note that the tribunal has granted interest
rate at two different rates for different time period, i.e. 9%
interest per annum from the date of filing of the claim petition
till 31.12.2002 and at the rate of 7.5% per annum from
01.01.2003 till realization for no justifiable reason and therefore,
the same is set aside and the claimant-victim shall be entitled to
9% interest per annum from the date of filing of the claim
petition, till realization of the entire amount of compensation.
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7. In view of the above discussion, this appeal is partly
allowed and the judgment and award dated 27.03.2009, passed
by the learned Motor Accident Claims Tribunal (Aux.), Fast Track
Court No.2, Kheda at Nadiad, in Motor Accident Claim Petition
No. 2581 of 2001, is modified to the extent that Opponent No.1-
driver of the offending vehicle is solely held liable for causing the
road accident and therefore, all the opponents shall satisfy the
claim and shall pay additional compensation of Rs.1,79,680/-
along with 9% interest per annum from the date of filing of the
claim petition, till realization. Opponent No.3-insurance
company is directed to deposit the additional amount of
compensation with the concerned Tribunal within the period of
eight weeks , from today. Upon deposit of the aforesaid amount,
the Tribunal shall disburse the entire amount in favour of the
appellants-claimant through RTGS / NEFT, after due verification
and if required, by passing the fresh order for disbursement.
R&P, if any, be sent back to the concerned tribunal, forthwith.
7.1 Before parting, this Court would like to thank learned
advocate, Ms. Nanavati, for her assistance in disposing of this
appeal.
Direct service is permitted.
(J. C. DOSHI,J)
UMESH/-
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