C/FA/2215/2012 ORDER DATED: 24/09/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2215 of 2012 With R/FIRST APPEAL NO. 2402 of 2012 ========================================================== ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED Versus MERALI @ DADUKHAN SAMEER SINDHI & ORS. ========================================================== Appearance: ADITI S RAOL(8128) for the Appellant(s) No. 1 MR KIRTIDEV R DAVE(3267) for the Defendant(s) No. 1 MR RAHUL K DAVE(3978) for the Defendant(s) No. 1 RULE SERVED for the Defendant(s) No. 3,4,5,6 RULE UNSERVED for the Defendant(s) No. 2 ========================================================== CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI Date : 24/09/2025 ORAL ORDER 1. Both the captioned appeals are arising out of the common impugned judgment and award dated 30.04.2012 passed by the learned Motor Accident Claims Tribunal (Auxiliary), Kachchh at Bhuj in MACP No.494/2007, therefore both the captioned appeals are decided analogously. 2. The common facts leading to file the captioned appeals are that the claimant had filed a claim petition under Section 163-A of the Motor Vehicle Act, 1988 (for short ‘the Act of 1988’) seeking compensation of Rs.7,83,400/- on the ground that on 20.07.2007, the original claimant was travelling in truck bearing registration no.GJ-12-X-2507 in the course of his employment as a cleaner. The driver of the said truck was driving the said truck in rash and negligent manner without observing the traffic rules and safety of the public at excessive speed and C/FA/2215/2012 ORDER DATED: 24/09/2025 resultantly, he lost the control over the steering and dashed with the trailer bearing registration no.HR-46-B-7517 and due to the said accident, the claimant sustained grievous injuries and resultantly, his leg was amputated below the knee and due to the said amputation, he lost his right leg and became permanently disabled to the work as a cleaner and also disabled to do heavy work. 3. Both the insurance companies have contested the claim by way of filing their respective written statement. The insurance company of the truck had filed the written statement at Exh.32, while the insurance company of the trailer had filed the written statement at Exh.26. 4. Having considered the pleadings of the parties, the learned Tribunal had framed the following issues for determination:- (1) Whether the petitioner proves that due to accident, he has sustained grievous injuries which is resulted into permanent disabled him? (2) Whether the petitioner is entitled for compensation? If yes, what amount and from whom? (3) What award? 5. In order to prove his case, the claimant had led the following oral as well as documentary evidence:- S. No. Particulars Exhibit No. 1. An affidavit of the petitioner 31 2. Deposition of Dr. A.M. Kotak 45 C/FA/2215/2012 ORDER DATED: 24/09/2025 3. Copy of F.I.R. 47 4. Copy of panchnama of scene of offence 48 5. Copy of chargesheet 49 6. Copy of Insurance Policy of Truck No.GJ- 12-X-2507 50 7. Copy of Insurance Policy of Trailer 51 8. Injury Certificate 52 9. Disability Certificate 53 10. Bills of medical treatment 54 to 61 6. Except the aforementioned evidences, no other evidence was led by the parties. 7. Having considered the pleadings, evidences and submissions, the learned Tribunal had awarded a sum of Rs.3,02,600/- with proportionate costs and interest at the rate of 7.5% per annum from the date of the claim petition till realization from all the opponents and all the opponents were held liable to satisfy the award jointly and severely. 8. Being aggrieved by the findings of the learned Tribunal, the insurance company of the trailer has preferred the appeal on the ground that in the present case, the two vehicles were involved, therefore, the learned Tribunal ought to have apportioned the liabilities of the insurance company to pay the compensation after determining the negligence of each offending vehicles. However, the learned Tribunal without determining the negligence of the offending vehicles involved in the accident, had jointly held the appellant/insurance company liable to C/FA/2215/2012 ORDER DATED: 24/09/2025 pay the compensation. He further submitted that the accident had occurred owing to the sole negligence of the driver of the truck, therefore, the driver of the trailer would not be held liable. Hence, no liability whatsoever should have been saddled upon the insurance company of the trailer. He further submitted that the operative portion of the impugned judgment and award is liable to be modified to that extent. 9. The original Claimant has also filed the appeal challenging the impugned judgment and award on the ground that the learned Tribunal has ascertained the income of the claimant at lower side and determined the income at Rs.1,500/- only on the basis of the statement allegedly made by the claimant before the police under Section 162 of the Cr.P.C. He further submitted that the said statement was neither proved on record nor the investigating officer, who allegedly recorded the statement, stepped into witness box to prove same. He further submitted that the claimant had pleaded his income as Rs.40,000/- per annum. The said was proved on record by way of filing the affidavit on record. He further submitted that, however, the learned Tribunal relied upon the statement allegedly recorded under Section 162 and came to the conclusion that the income of the claimant was Rs.1,500/- per month. He further submitted that in absence of any documentary evidence, the income of the claimant ought not to have been considered less than the minimum wages. He further submitted that it is not in dispute that at the time of accident, the claimant was working as a cleaner in the truck, therefore, he was semi-skilled. 10. On the other hand, Mr. Ninad P. Shah, learned counsel for Ms. Aditi S. Raol, learned counsel for the ICICI Lombard General Insurance Company Ltd., submitted that the cleaner would not fall in the category C/FA/2215/2012 ORDER DATED: 24/09/2025 of semi-skilled and he comes under the category of unskilled. He further submitted that the learned Tribunal had rightly ascertained the income of the claimant at Rs.1,500/- per month on the basis of the statement of the claimant made to the police authority during the course of investigation in the criminal case registered in respect of the accident in question. He further submitted that the income of the claimant was not proved on record therefore, the learned Tribunal had rightly considered the income of the claimant on the basis of the statement made to the police. He further submitted that, even otherwise, the cleaner would fall in the category of unskilled worker and not in the category of semi- skilled, therefore, his income may be considered under the category of unskilled labourer. 11. Mr. Palak H. Thakkar, learned counsel for The New India Assurance Company Ltd., has submitted that the award of the learned Tribunal is just and proper and no interference is required by this Court. He further submitted that the monthly income of Rs.1500/- considered by the learned Tribunal is appropriate and accordingly, the future loss of income awarded Rs.2,75,400/- is just and proper. The compensation awarded under other heads are also just and proper. He further submitted that the claim petition was filed under Section 163-A of the Act, therefore, the question of negligence is not required to be looked into by the learned Tribunal. Therefore, he submitted that both the appeals deserve to be dismissed. 12. Having considered the submissions of the learned counsels for the parties and having gone through the records, it is not to be noted that the claim petition was filed under the provisions of Section 163-A of the MV Act. So far as the issue of negligence under Section 163-A of C/FA/2215/2012 ORDER DATED: 24/09/2025 the MV Act is concerned, the said issue has been settled by the Hon’ble Apex Court in the judgment rendered in the case of United India Insurance Company Limited Vs. Sunil Kumar & Anr., passed in Civil Appeal No.9694/2013, wherein the Hon’ble Apex Court has observed in para nos.7, 8 and 9 as under:- “7. As observed in Hansrajbhai v. Kodala (supra) one of the suggestions made by the Transport Development Council was "to provide adequate compensation to victims of road accidents without going into long drawn procedure." As a sequel to the recommendations made by the Committee and the Council, Section 140 was enacted in the present Act in place of Section 92A to 92E of the Old Act. Compensation payable thereunder, as under the repealed provisions, continued to be on the basis of at an no fault liability though enhanced rate which was further enhanced by subsequent amendments. Sections 140 and 141 of the present Act makes it clear that the compensation payable thereunder does not foreclose the liability to pay or right to receive compensation under any other provision of the Act or any other law in force except compensation awarded under Section 163A of the Act. Compensation under Section 140 of the Act was thus understood to be in the nature of an interim payment pending the final award under Section 166 of the Act. Section 163-A, on the other hand, was introduced in the New Act for the first time to remedy the situation where determination of final compensation on fault basis under Section 166 of the Act was progressively getting protracted. The Legislative intent and purpose was to provide for payment of final compensation to a class of claimants (whose income was below Rs.40,000/- per annum) on the basis of a structured formula without any reference to fault liability. In fact, in Hansrajbhai V. Kodala (supra) the bench had occasion to observe that: "Compensation amount is paid without pleading or proof of fault, on the principle of social justice as a social security measure because of ever-increasing motor vehicle accidents in fast-moving society. Further, the law before insertion of Section 163-A was giving limited benefit to the extent provided under Section 140 for no-fault liability and determination of compensation amount on fault liability was taking a long time. That mischief is sought to be remedied by introducing Section 163-A and the disease of delay is sought to be cured to a large extent by affording benefit to the victims structured- formula basis. Further, if the question of determining compensation on fault liability is kept alive it would result in additional litigation and C/FA/2215/2012 ORDER DATED: 24/09/2025 complications in case claimants fail to establish liability of the owner of the defaulting vehicles." 8. From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis liability was taking an unduly long time. In fact, to understand Section 163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention. 9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim.” 13. Thus, in the light of the ratio of the aforesaid judgment, the contention of the learned counsel for the insurance company of the trailer that the learned Tribunal has not apportioned the negligence of both the vehicles, is not sustainable. 14. So far as the contention of the learned counsel for the appellant/claimant is concerned, the Claimant has pleaded in the claim petition that he was earning Rs.40,000/- per year as a cleaner in the truck. It is not in dispute that the claimant was working as a cleaner at the time of accident but the claimants did not lead any evidence to C/FA/2215/2012 ORDER DATED: 24/09/2025 prove the income. In absence of the proof of income, the learned Tribunal relied the statement of claimant allegedly recorded by the investigating officer during the course of investigation, which was recorded under Section 162 of the Cr.P.C. The said statement was not proved on record. Even the investigating officer was not examined by any of the insurance companies. In absence of any evidence, the learned Tribunal ought to have determined the monthly income on the guess work but the learned Tribunal ascertained the income on the basis of statement recorded under Section 162 of Cr.P.C. Thus, in the considered view, the learned Tribunal has committed the gross error in ascertaining the income of the claimant at Rs.1,500/- per month at the time of accident. Thus, considering the pleadings and version of the claimant on oath and the notification of the Government regarding minimum wages, in my considered opinion, it would be just and equitable if the annual income of the deceased is ascertained at Rs.36,000/- per annum. It is not in dispute that the age of the claimant was 24 years at the time of accident and there are also no disputes about the multiplier and the disability. It is also undisputed that the leg of the claimant was amputated and he has sustained the disability to the extent of 90%. Therefore, the claimant shall be entitled under the future loss of income as Rs.5,50,800/- i.e. (36,000X17X90%). The learned Tribunal has awarded a sum of Rs.15,000/- for medical charges and a sum of Rs.5,000/- for pain, shock and suffering and also a sum of Rs.7,200/- for the loss of actual income. So far the compensation awarded under the heads for medical expenses, pain, shock and suffering and loss of actual income, is concerned, the award under these heads has not been challenged. Therefore, in view of the above discussion, the claimant shall be entitled for the total compensation of Rs.5,78,000/- under the following heads:- C/FA/2215/2012 ORDER DATED: 24/09/2025 S. No. Particulars Amount 1. Loss of future income Rs.5,50,800/- 2. Medical Charges Rs.15,000/- 3. Pain, shock and suffering Rs.5,000/- 4. Loss of actual income Rs.7,200/- Total Rs.5,78,000/- 15. The learned Tribunal has awarded the compensation of Rs.3,02,600/-. The enhanced compensation i.e. Rs.2,75,400/- i.e. (5,78,000-3,02,600) is to be deposited by the original opponents along with 7.5% interest within the period of six weeks from the receipt of the order. The accident has occurred in the year 2007 therefore, on depositing of the amount, the learned Tribunal shall disburse the entire amount including the amount lying deposited with the learned Tribunal. The amount, if any, lying deposited with the Registry of this Court, be transmitted to the concerned learned Tribunal. 16. The First Appeal No.2215/2012 is dismissed and First Appeal No.2402/2012 is partly allowed in the aforesaid terms by modifying the award of the learned Tribunal. No order as to costs. (MOOL CHAND TYAGI, J) HARSHIT Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: HARSHIT SANCHETI(HCD0070), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 07/11/2025 11:43:46