IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 666 of 2022 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR ========================================================== Approved for Reporting Yes No √ ========================================================== UNITED INDIA INSURANCE COMPANY LTD Versus PRITESH KRISHNAKUMAR PANDYA & ORS. ========================================================== Appearance: MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1 MR HEMAL SHAH(6960) for the Defendant(s) No. 5,6 RULE NOT RECD BACK for the Defendant(s) No. 4 RULE SERVED for the Defendant(s) No. 1,2,3 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 04/02/2026 ORAL JUDGMENT [1.0] Present First Appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “MV Act”) is =led by the appellant – The United Insurance Co. Ltd. challenging the impugned judgment and award dated 02.07.2021 passed by the learned Motor Accident Claims Tribunal (Auxi.), Jamnagar (for short “learned Tribunal”) in Motor Accident Claim Petition No.129 of 2013, whereby the learned Tribunal was pleased to partly allow the claim petition and awarded compensation of Rs.44,89,530/- to the original claimants. [2.0] The brief facts leading to =ling of present appeal is as follows: [2.1] On 02.01.2013, deceased Bharatbhai Ramjibhai Changani Vora (hereinafter referred to as “deceased”) was going on Motorcycle bearing registration No.GJ-10-BF-4431 from GIDC Phase-II on left side p. 2 of the road, slowly, carefuly and when he reached at the place of accident, one Motorcycle bearing registration No.GJ-3-AG-4952 came in very rash and negligent manner and dashed with the motorcycle of the deceased as a result of which deceased sustained serious injuries and was immediately hospitalized however, died on 15.05.2013 i.e. four months after the accident. Therefore, the legal heirs and representatives of the deceased =led MACP No.129/2013 seeking compensation of Rs.75,00,000/-. [2.2] After considering the evidence produced and adduced, the learned Tribunal held the opponent No.1 - driver of Motorcycle No.GJ- 3-AG-4952 (hereinafter referred to as “opponent No.1”) solely negligent for the accident and was pleased to award Rs.44,89,530/- to the original claimants. Being aggrieved with the =nding of the learned Tribunal holding opponent No.1 to be solely negligent for the accident, appellant herein – original opponent No.3 – The United Insurance Co. Ltd. has =led the present First Appeal as well as on the ground of exorbitant compensation being awarded to the original claimants. [3.0] Though served, respondent Nos.1, 2 and 3 have chosen not to appear before this Court. [4.0] Learned advocate Ms. Masumi Nanavaty appearing for the appellant – insurance company has submitted that the learned Tribunal has materially erred in fastening legal liability solely on original opponent No.3 – insurance company of Motorcycle No.GJ-3- AG-4952 as the accident took place between two motorcycles and deceased i.e. driver of Motorcycle No.GJ-10-BF-4431 was equally negligent in causing the accident and therefore, she has submitted that learned Tribunal ought to have considered atleast contributory p. 3 negligence of the deceased motorcyclist. She has further submitted that the opponent No.1 appeared before the learned Tribunal and tendered his oral evidence though learned Tribunal has not properly appreciated the evidence and discarding the documentary evidence produced on record i.e. panchnama of scene of accident, which is admissible document, learned Tribunal has ignored the fact that the deceased motorcyclist was coming from opposite direction on wrong side and has come to conclusion that the said version is belated and an afterthought and therefore, has committed an error in holding the opponent No.1 i.e. driver of Motorcycle No.GJ-3-AG-4952 to be solely negligent for the accident. She has further argued that the learned Tribunal has awarded exorbitant compensation which is required to be interfered with. Hence, she has requested to allow the present appeal. [5.0] Learned advocate Mr. Hemal Shah appearing for the original claimants has opposed the present appeal by submitting that in absence of any evidence, learned Tribunal has properly appreciated the evidence in written statement and no defence has been raised or taken by the opponent No.1 and whatever evidence led is at the instance of the present appellant which is nothing but an afterthought and learned Tribunal has properly appreciated the evidence in holding that the deceased motorcyclist was not negligent for the accident. Hence, question does not arise to hold the deceased motorcyclist to be negligent for the accident. Hence, he has requested to dismiss the present appeal. [6.0] Having heard learned advocate for the appellant – insurance company and learned advocate for the original claimants and perusing the record, it appears that present is a case wherein accident took place between two motorcycles bearing Nos.GJ-10-BF-4431 and GJ-3- p. 4 AG-4952. The complaint (Exh.68) and charge-sheet (Exh.61) is =led against the driver of Motorcycle No.GJ-3-AG-4952. Further, claimant No.1, who is not an eye-witness, has tendered her aLdavit at Exh.40 wherein she has stated that her husband was riding Motorcycle No.GJ- 10-BF-4431 and driver of Motorcycle No.GJ-3-AG-4952 in very full speed and in rash and negligent manner endangering human lives and dashed with the motorcycle of the deceased as a result of which her husband sustained serious injuries pursuant to which he was admitted in the hospital and after a period of four months, her husband died due to accidental injuries. In this regard, oMence was registered with Jamnagar City ‘B’ Division Police Station against opponent No.1. [6.1] The main contention of appellant – insurance company is that the learned Tribunal has committed an error in considering the fact that opponent No.1 was sole negligent in causing the accident who as driving Motorcycle No.GJ-3-AG-4952. If we peruse the evidence produced on record, opponent No.1 appeared before the learned Tribunal and =led written statement at Exh.29 wherein he has denied the averments of negligence on the part of Motorcycle No.GJ-3-AG- 4952. The opponent No.1 also stepped into the witness box and stated that the deceased motorcyclist himself was negligent as he was coming from opposite direction on wrong side on a one way road and though the opponent No.1 had taken due care to avoid the accident, the deceased motorcyclist failed to take suLcient care and dashed with the motorcycle of opponent No.1. Herein, it is not the case that opponent No.1 has not appeared before the learned Tribunal and not rebutted the evidence produced or tendered by claimant No.1. Hence, in this case, question does not arise to draw adverse inference against the opponent No.1 i.e. driver of Motorcycle No.GJ-3-AG-4952. Herein, speci=c evidence is led before the learned Tribunal and therefore, it p. 5 was the duty of the learned Tribunal to appreciate the evidence. [6.2] Perusing the record and proceeding, written statement (Exh.29) and evidence of opponent No.1 (Exh.98) i.e. Pritesh Krishnakumar Pandya, it appears that opponent No.1 has categorically stated that the deceased motorcyclist was coming from opposite direction on wrong side of a one way road and alleged accident took place due to sole negligence of the deceased motorcyclist as the opponent No.1 was driving his motorcycle with moderate speed on correct side of the road and he was also holding valid and eMective driving license, which is produced on record. He has admitted that complaint as well as charge-sheet is =led against him. At the time of appreciating the evidence, the learned Tribunal has assigned the reason that the aforesaid version is =rst time declared before the learned Tribunal and is an afterthought. But, perusing the cross-examination of opponent No.1, it appears that the learned Tribunal has committed an error in appreciating the evidence. It is an admitted fact that the accident took place near the bridge where there was a slope. If we peruse the panchnama of scene of accident produced at Exh.69, it clearly transpires that the deceased motorcyclist was coming from opposite direction on wrong side and motorcycle of the opponent No.1 was on the correct side of the road. There was a slope and due to this reason, motorcycle of deceased was in speed and alleged accident took place. Thus, from day one, version of wrong side is revealed from the record and also from the panchnama of scene of accident and hence, it cannot be said that it was afterthought. In the written statement produced at Exh.29, the opponent No.1 has denied the negligence on his part and hence, now question does not arise to prove or to show any contradiction merely on the basis of written statement. In the written statement, once the opponent No.1 has denied the negligence p. 6 and even otherwise when relying on the documents produced on record i.e. panchnama of scene of accident which substantiates the version of eye-witness i.e. opponent No.1 and proof of contents of said panchnama by admission of both the parties ought to have been considered by the learned Tribunal and learned Tribunal ought to have relied upon such evidence in light of sections 61 and 58 of the Indian Evidence Act. As per Section 61, once the contents of document are proved then it can be relied upon. Without assigning any reason, learned Tribunal has come to conclusion that said version is an afterthought and therefore, said =nding of the learned Tribunal is perverse and not acceptable on the ground that whatever evidence tendered before the Tribunal including cross-examination of opponent No.1 produced at Exh.98 by the learned advocate for the claimants, it clearly reveals that there was contributory negligence on the part of deceased motorcyclist also. In this regard, reference is required to be made to the decision of the Hon’ble Supreme Court in the case of Oriental Insurance Company Limited vs. Premlata Shukla and Others reported in (2007) 13 SCC 476 wherein it is held that claimant ought to have proved rash and negligent driving on the part of the driver is sine qua non. [6.3] Herein, in absence of any evidence and in light of documentary evidence i.e. panchnama produced at Exh.69 and evidence of opponent No.1 (Exh.98), learned Tribunal has committed an error in not properly appreciating the evidence and merely because charge- sheet is =led against opponent No.1 is not a ground to hold opponent No.1 solely negligent for the accident. At the same time, this Court has considered the evidence which shows that the accident took place at 8 p.m. and there was a slope and one way road at the place of accident and considering the equal size of vehicles, both the drivers ought to p. 7 have taken extra care considering situation of road and keeping in mind expected and unexpected circumstances while driving the vehicles. Herein, deceased motorcyclist ought to have taken some degree or standard of care to avoid the accident as he had the chance to avoid the accident. Herein, the deceased motorcyclist has also shown negligence in not avoiding the accident. Considering the situation of place of accident, in the considered opinion of this Court, deceased motorcyclist was contributory negligent to the extent of 30% and upto that extent the learned Tribunal has committed an error. [7.0] Perusing the evidence more particularly salary certi=cate of the deceased produced at Exh.89, it appears that the learned Tribunal has considered yearly income of deceased at Rs.1,20,000/- and as the deceased was in the age group of 40 to 50 years and was self- employed, in view of decision of Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Shethi reported in (2017) 16 SCC 680, the learned Tribunal has assessed 25% addition towards future prospective rise in the salary and accordingly, considered future annual income of the deceased at Rs.1,50,000/- [Rs.1,20,000 + Rs.30,000 (Rs.1,50,000 x 25%)] and as the deceased was married and having four dependents i.e. his widow, two sons and mother, deducting 1/4 i.e. Rs.37,500/- (Rs.1,50,000 x ¼), yearly loss of dependency is assessed at Rs.1,12,500/- and thereafter, applying multiplier of 13 in view of the decision of Hon’ble Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation reported in AIR 2009 SC 3104 as the deceased was in the age group of 46 to 50 years, has applied multiplier of 13 and accordingly, awarded Rs.14,62,500/- (Rs.1,12,500 x 13) under the head of future loss of dependency, which does not call for any interference at the hands of p. 8 this Court. [7.1] Further, the learned Tribunal considering the fact that the deceased died during treatment after four months of the accident has awarded Rs.28,37,030/- towards actual medical expenditure which also does not call for any interference. Under the head of general and non-pecuniary damages, the learned Tribunal in view of the decision of the Hon’ble Supreme Court in the case of Pranay Sethi (Supra) has been pleased to award total Rs.1,60,000/- for loss of consortium and Rs.15,000/- each towards funeral expenses and loss of estate which also in the considered opinion of this Court is just and proper and do not call for any interference. Hence, the learned Tribunal has been pleased to award compensation as under and the same is maintained by this Court. Heads Awarded by Tribunal Future loss of income Rs.14,62,500/- Medical Bills Rs.28,37,030/- Loss of Consortium Rs.1,60,000/- Funeral Expenses Rs.15,000/- Loss of Estate Rs.15,000/- Total Compensation Rs.44,89,530/- However, as discussed in earlier part, the deceased motorcyclist was contributory negligent to the extent of 30% and to that extent the aforesaid compensation is required to be sliced down as the person and/or his legal heirs cannot be paid compensation for the wrongful act of a tort feasor. [8.0] In wake of aforesaid conspectus, First Appeal is partly allowed. Impugned judgment and award dated 02.07.2021 passed by the learned Motor Accident Claims Tribunal (Auxi.), Jamnagar in Motor p. 9 Accident Claim Petition No.129 of 2013 is modi=ed and original opponent No.1 i.e. driver of Motorcycle No.GJ-3-AG-4952 is held negligent to the extent of 70% for the accident and driver (deceased) of Motorcycle No.GJ-10-BF-4431 is held contributory negligent to the extent of 30% for the accident and resultantly, the appellant – United India Insurance Company Limited – original opponent No.3 is liable to pay compensation of Rs.31,42,671/- (70% of total compensation of Rs.44,89,530/-) to the original claimants. [9.0] The learned Tribunal is directed to refund Rs.13,46,859/- (30% of Rs.44,89,530 towards 30% contributory negligence on the part of deceased motorcyclist) to the appellant – United India Insurance Company Limited and thereafter, the learned Tribunal shall disburse Rs.31,42,671/- (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 veri=cation and after following due procedure. [9.1] While making the payment, the Tribunal shall deduct the courts fees, if not paid. [10.0] Record and proceedings, if any, be sent back to the concerned Tribunal, forthwith. [11.0] Pending civil applications, if any, also stands disposed of. Sd/- (HASMUKH D. SUTHAR, J.) Ajay