C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2878 of 2016 ========================================================== HDFC ERGO GENERAL INSURANCE COMPANY LTD THROUGH AUTHORISED SIGNATORY Versus PRAGJIBHAI DAYABHAI VITHLANI (DELETED) & ORS. ========================================================== Appearance: HARSH A VYAS(9330) for the Appellant(s) No. 1 DELETED for the Defendant(s) No. 1 GANDHI LAW ASSOCIATES(12275) for the Defendant(s) No. 4 SWAPNESHWAR GOUTAM(9051) for the Defendant(s) No. 2,3 ========================================================== CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA Date : 14/07/2025 ORAL JUDGMENT 1. The present appeal arises from judgment and award passed in MAC Petition no.446 of 2011 passed by the learned Motor Accident Claim Tribunal (Aux.) Rajkot. The judgment and award in question is dated 20.09.2016. 2. By way of the said judgment, the Tribunal was pleased to award a sum of Rs. 11,37,371/- to the claimant who are the heirs of deceased Vijay alias Vijayraj Pragjibhai Vithalani. The said amount was ordered to be paid by opponent nos. 1 and 2, jointly and severally, along with interest at the rate of 9% per annum from the date of the C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 petition till realization to the claimants. 3. The accident in question was of 10.02.2011. It appears that the deceased Vijay alias Vijayraj Pragjibhai Vithalani was on his way to the factory on the morning of 10.02.2011 on his way to his work. It so happened that a bus bearing registration no.GJ-3-W-5464 being driven by opponent no.1 in a rash and negligent manner and in full speed, dashed with the motorcycle causing the deceased grievous injuries for which he was taken to a hospital for treatment. The said Vijaybhai Pragjibhai Vithalani (hereinafter being referred to as “the deceased”), later succumbed to the injuries. Resultantly, claim by way of MACP no.446 of 2011, which has been disposed by impugned judgment and award. 4. The present appeal is preferred, assailing the judgment and award on two counts. Firstly, on the ground that the Tribunal has not had adequately factored the fact that the owner of the bus did not have valid permit to drive the vehicle. Secondly, that the future prospects awarded in the matter, may be reduced from 50% to 40%. Page 2 of 20 C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 5. Heard learned advocates for the parties. 6. Learned advocate Mr. Harsh Vyas, appearing for the Appellant, has submitted that in the present case, there was no valid permit to ply the vehicle on the road at the time of the accident. It was submitted that the accident was dated 10.02.2011. He, however, submitted that the permission granted to the vehicle had expired on 05.02.2011 which is five days prior the date of the accident. He has relied on section 66 of the Motor Vehicles Act and has contended that in terms of the said section, no owner of the motor vehicle could use, nor is permitted to use a vehicle, as a transport vehicle in the public place, in absence of requisite permit. It was submitted that the said section is exhaustive. He also relied on the judgment in the case of Amrit Paul Singh and Anr. Vs. Tata Aig General Insurance Co. Ltd reported in 2018 (7) SCC 558 and has submitted that the absence of valid permit would mean that there is a fundamental breach of condition, and therefore, the insurance company is liable to be exonerated. Emphasis was given to the following phrase found in the judgment, viz, “Use of a vehicle in a public C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 place without a permit is a fundamental statutory infraction”. Thus, it was submitted that this was a fundamental breach of condition, and that therefore, the insurance company may kindly be exonerated. In the alternative, it was submitted that if the said contention does not appeal to this Court, then requisite order to the appellant – Insurance Company, to first pay the compensation to the claimants and thereafter, a liberty to recover it from the owner, may kindly be passed. It was next submitted by the learned advocate that the Tribunal has also erred in adjudging the future prospective loss at the rate of 50%. He has submitted that in the present case, the mother of the deceased Vijayraj Pragjibhai Vithalani has categorically submitted that the said deceased had only been educated till class-12. It was thus submitted that the category of service that the applicant was doing was not permanent in nature, and therefore, he could only be said to be temporary worker drawing a salary. It was submitted therefore, the category to which he falls would be that of 40% and not 50% as has been taken by the Tribunal in the impugned judgment and award. Page 4 of 20 C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 7. Learned advocate Mr. Nisarg Desai from Gandhi Law Associates for respondent no.4 (owner) has submitted that it is not the case that the vehicle did not have permit at all. It was submitted that the Tribunal was very much aware of these facts, and therefore, it has categorically reasoned that this was a case where the permit which was otherwise available, had expired just 5 days before the date of accident. He thus submitted that Section-81, which deals with renewal of permit, provides for eventualities under Section 81(3) of the Act whereby the application for the renewal of permit could have been rejected. However, he submitted that none of the said eventualities were proved, as existing in respect of the present owner – respondent no.4. It was submitted that thus, it can be stated that the owner could have simply asked for renewal of the said permit and it would have been granted as a matter of right. It was emphasized that there is no allegation whatsoever forthcoming that the financial condition of the applicant was deteriorating, or, that the applicant was on the verge of insolvency, or, that there was any prosecution whereby the owner was held liable for him having plied his vehicle without payment of tax, or, the owner being on any C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 unauthorized route, or, alleged to have made any unauthorized trips. It was submitted that only if there had existed, then the authorities could have rejected extension of permit under Section 81 of the Act. It was, thus, submitted that the act of renewal of the said permit would only be a mechanical act, and that therefore, not too much ought to be read into the said expired permit. It was also submitted that the Fitness Certificate of the vehicle for the said period is also in order. However, for two counts the said document was not taken on record of this Court. One, as the learned advocate for the Insurance Company had made a categorical statement that the said issue, namely that vehicle not bearing a “Fitness Certificate” had not been agitated before the Tribunal. Secondly, such a formal application under Order 41 Rule 27 of the Code of Civil Procedure had not been preferred. Hence, the said Certificate of Fitness of the relevant period, sought to be adduced on record of this Court at appellate stage, was not permitted to be taken on record. 8. Learned advocate, Mr. Swapneshwar Goutam, appearing for the respondents - original claimants has vehemently C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 submitted that the judgment does not require any interference. He submitted that as a claimant, they are not concerned with the dispute between the insurance company and the owner especially on the count of valid permanent. He has however submitted that insofar as the compensation in terms of conventional heads is concerned, the Tribunal has not considered adequately the said factor. He also relied on judgment in the case of Surekha Vs. Santosh reported in 2021 (16) SCC 467 wherein the Hon’ble Supreme Court was pleased to hold that the High Court concerned, in declining enhancement of compensation, merely on the ground that there was no cross-appeal filed by the concerned appellant (original claimants), was not sustainable; and ultimately, the Hon’ble Supreme Court, in that matter, was pleased to grant enhancement in compensation without there being any cross-appeal. It was submitted that the Hon’ble Supreme Court held that a High Court should not take hyper technical approach. It was held that Court should ensure that just compensation is awarded to the affected persons, or, to the claimants. Relying on the said judgment, it was urged that the compensation under the C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 conventional heading may kindly be awarded. It was thus submitted that, therefore, the computation of the compensation under the impugned judgment at paragraph- 15 may kindly be interfered with, by suitably adding conventional amounts to the dependency loss. He has therefore submitted that all 3 claimants ought to have been awarded a sum of Rs. 48,400/- each, towards consortium amounts in as much as that is the amount which is liable to be awarded in terms of the ratio in case of National Insurance Co. Ltd vs Pranay Sethi reported in AIR 2017 SUPREME COURT 5157. He, therefore, urged that the said aspect may suitably be modified even in absence of cross- objections. 9. Having heard the learned advocates for the parties, this Court proceeds to decide the present appeal in terms of appearing hereinafter. 10. The point of determination that arises for consideration before this Court in the present appeal is as follows: (a) Whether in facts of the present case, the insurance company was liable to be exonerated owing to the fact that there was no permit? Whether pay and recover C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 order needs to be passed in the facts and circumstances of the matter? (b) Whether the compensation as awarded by the Tribunal was just in as much as; (i) Whether future prospects, as alleged by the appellant, have been calculated on the exorbitant side? And; ii) Whether the conventional amounts as awarded by the Tribunal are just and fair as alleged by the learned advocate for the claimants? If not, how much of conventional amounts ought to be awarded? 11. The admitted case before this Court is that there was no permit of the concerned vehicle i.e. the bus bearing registration number GJ-3-W-5464. The said aspect has been dealt by the Tribunal by observing that this was not a case where there was no permit having been in place for the concerned vehicle. What has been alleged is that the said permit had expired on 05.02.2011, and the accident had occurred about 5 days thereafter, i..e. on 10.02.2011. Thus, relying on the judgment in the case of Amrit Paul Singh (Supra), the learned advocate for the appellant has submitted that a vehicle in public place without a permit is C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 a fundamental statutory infraction, and therefore, the submission by the learned advocate was that it ought to be exonerated. It may be noted that vide the said authority i.e. Amrit Paul Singh (Supra), based on which the said submission was made, Hon’ble Supreme Court has observed as follows in paragraph-23 of the said judgment: “ 23. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle.” 12. The ratio, as can be delineated from the aforesaid paragraph-23, is that the moment the concerned permit is not adduced on record, it stands proved that there is no valid permit. The contrary submission in the present matter before this Court, made on behalf of the owner that the permit is given for asking and that the circumstances, as stated in the Section 81(3) of the Act, based on which a permit could be refused, do not exist, stand impliedly overruled by the aforesaid decision of the Hon’ble Supreme Court, viz, Amrit Paul Singh (supra). In fact, the Hon’ble Supreme Court has held that onus cannot possibly be cast, in such a situation, on the insurer to “prove” that the permit does not exist. Thus, the Hon’ble Supreme Court upheld, in the said decision, the finding of the Tribunal as well as that of the High Court to the effect that insurer was required to pay the compensation amount to the claimant C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 with a stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said ratio applies to the facts of the present case. In this case as well, the finding of the Tribunal that the opponents are jointly and severally liable, is liable to be interfered with and the present appellant is directed to pay the amount, as awarded by the Tribunal and duly enhanced by this Court vide the present judgment, and to permit the same to be recovered from the owner i.e. the present respondent no.4. 13. Insofar as the compensation is concerned, on perusal of record it transpires that the deceased was tax paying individual, with 2006-07 and 2009 Income Tax Returns being to the tune of Rs.97,500/- and Rs.1,49,785/- respectively. The same translates to a monthly income of Rs.8,125/- and Rs.12,482/- per month. Subsequently, he had joined service. The question is whether the same is to be treated as permanent job, or, fixed salary? The claim is that that he was working as Computer Operator with certain “Atul Auto”. He also claimed certain income by doing “mobile recharge” work. In the considered view of this Court, the same would amount to “Self Employment C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 and Fixed Salary”, even if the claim of the claimant is taken on face value. At this stage, the observations in Pranay Sethi (Supra), more particularly, at (iii) and (iv) of Paragraph-61 of the said judgment, may be seen: “(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.” 14. Hence, in the present case, in addition to the actual salary, 40% amount of future prospects ought to be awarded and not at the rate of 50%, as done by the Tribunal, for the reason that the applicant is undisputedly on a fixed salary. Therefore, the original finding of the Tribunal on this count is liable to be interfered with as aforesaid. 15. Now, the argument of the learned advocate for the C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 appellant that despite there being no cross-appeal in the matter, the amounts under the conventional heads may be enhanced. In the present case, the original claimants, present respondents nos. 1,2,3 are respectively being the father, mother and sister of the deceased herein. 16. Resuming the discussion on eligibility of the aforesaid respondents, it may be noted that in Surekha (Supra), the Hon’ble Supreme Court was pleased to allow enhancement of compensation without the need of any cross-appeal. Therefore, in the present circumstances, this Court is inclined to rely on the said ratio and proceed with enhancement of amounts under conventional heads. The said conventional heads have been enumerated by the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd Vs Nanu Ram Alias Chuhru Ram & Ors. reported at AIRONLINE 2018 SC 189 : (2018) 18 SCC 130. In that matter, a father, mother and a handicapped sister were considered for award of consortium. In the said judgment, under the head of filial consortium, the Hon’ble Supreme Court was pleased to award compensation to a brother. At this juncture, the objections to the C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 consideration of handicapped sister as dependent may be considered. 17. The contention of learned advocate for the appellant was that notwithstanding the grant by the Hon’ble Supreme Court, in various judgments, compensation to the siblings of the deceased, even if they were not dependent on the deceased, the said does not constitute a precedent, to be followed by this Court. It was submitted that indeed, the Hon’ble Supreme Court has taken a view that under the head of filial consortium, the brother was awarded consortium. It was submitted that the Hon’ble Supreme Court in these judgments has exercised power under Article-142 of the Constitution of India, and that it does not become a ratio, and therefore, this Court may not allow compensation to a handicapped sister as the case may be in the present matter in terms of the dictum of the Hon’ble Supreme Court. It was vehemently submitted that the Hon’ble Supreme Court can exercise powers under Article- 142 of the Constitution of India, to which this Court cannot have any claim. 18. Of course, it cannot possibly be the view of this Court that C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 this Court too, would be entitled to award compensation, under Article-142 of the Indian Constitution for the purpose of doing complete justice. Clearly the said power under Article 142 could only be exercised by the Hon’ble Supreme Court. However, that said, it is a fact that the Motor Vehicles Act is a benevolent legislation. Moreover, the Hon’ble Supreme Court in Sadhana Tomar Vs. Ashok Kushwaha reported at MANU/SCOR/28227/2025 has relied on its judgment in the case of N. Jayasree vs Cholamandalam Ms General Insurance Company Limited [(2022) 14 SCC 712], whereby the term “legal representative” is urged to be construed liberally, rather widely and to not confine it only to spouse, parents and children of the deceased. And thereafter, Hon’ble Supreme Court in Ashok Kushwaha (supra) held both the father and younger sister of the deceased as legal representatives for claiming compensation. Needless to say, in the present case, it so happens that a sibling (sister of the deceased) is one of the original claimants and that she is deaf and dumb. Thus, she ought to be considered a dependent of the deceased. Thus, to subserve larger interest of justice and to give effect to the purpose of the benevolent C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 legislation, this Court is inclined to allow the consortium under the head of filial consortium, to the applicant no.3 as well. 19. Furthermore, in the case of Chandra @ Chnada @ Chandraram vs Mukesh Kumar Yadav, reported at (2022) 1 SCC 198, the Hon’ble Supreme Court, were pleased to award consortium to parents, wife, minor son, brother and sister of the deceased (a victim of the accident). The consortium was awarded at the rate of Rs.40,000/- each. The concerned paragraph of the judgment reads as follows: “11. For the aforesaid reasons this appeal is allowed and Appellants are entitled a further compensation amount of Rs.3,33,964/- on account of loss of dependency and consortium amount of Rs.40,000/- each. Thus, the total compensation payable to the Appellants is fixed at Rs.4,13,964/- …” 20. Thus, this Court is also inclined to award compensation to respondent no.3, who is a deaf and dumb lady, the sister of the deceased Vijay Raj Vithlani. Thus, this Court is inclined to grant compensation to all 3 claimants i.e., to the parents and the deaf and dumb sister of the deceased. Thus, all the 3 claimants are entitled to compensation under the conventional head to the tune of Rs. 48,400/- C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 each and hence the aggregate amount under this head would be Rs.1,45,200/- (Rs. 48400 X 3). Similarly, under the head of funeral expenses, the Tribunal has only awarded Rs. 5,000/-. The said amount is also liable to be increased to Rs. 18,150/- and similarly under the head of loss of estate, again a sum of Rs. 18,150/- is liable to be awarded. Thus, the enhancement will be in terms of the appearing hereinafter. Sr.No. Particulars Decided and awarded by the Tribunal Decided and enhanced by this Court 1 Monthly income 4,800/- 4,800/- 2 After adding future prospects component 7,200/- (calculated as 50% future prospects) 6,720/- (Calculated as 40% future prospects) 3 Deduction (1/3rd) 4,800/- (7,200/3) 4,480/- (6,720/3) 4 Medical expenses 1,28,171/- 1,28,171/- 5 Loss of dependency (age being 30, multiplier is of 17) 9,79,200/- 9,13,920/- (4,480 X 12 X 17) 6 Loss of love and affection 25,000/- NIL 7 Loss of consortium NIL 1,45,200/- (48,400 X 3) 8 Loss of estate NIL 18,150/- 7 Funeral Expenses 5,000/- 18,150/- Total 12,23,591/- Less: 11,37,371/- C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 Amount already awarded by the Tribunal ENHANCEMENT 86,220/- 21. The enhanced amount would carry interest at the rate of 9% from the date of the claim petition till actual deposit of the said amount. 22. The Insurance Company is directed to deposit the enhanced amount with interest as stated herein above within a period of eight weeks from the date of receipt of this order. 23. The insurance company shall first pay the entire amount as has been held by this Court and then recover the same from the owner of the concerned vehicle. 24. As the accident is of year of 2011, it would not be beneficial if the said amount is again invested in FDRs. Hence, it is ordered that the entire amount shall forthwith be disbursed upon it being paid by the insurance company to the claimants upon due verification. 25. It is also clarified here in that as the claimant no.1, who was the father of the deceased, has expired during the C/FA/2878/2016 JUDGMENT DATED: 14/07/2025 pendency of the present proceedings, the entire amount may be disbursed to the claimant nos. 2 and 3. 26. The R&P, if any, be remitted back to the concerned Tribunal. 27. The present appeal stands disposed of in terms appearing herein above. (J. L. ODEDRA, J) JIGAR J RABARI Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: JIGAR RABARI(HCD0067), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 12/09/2025 12:04:58