IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2632 of 2022 With R/FIRST APPEAL NO. 1655 of 2020 With R/CROSS OBJECTION NO. 68 of 2020 In R/FIRST APPEAL NO. 1655 of 2020 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR ========================================================== Approved for Reporting Yes No √ ========================================================== THE ORIENTAL INSURANCE CO.LTD. Versus KAILASHBEN PUNABHAI ALIAS RAMESHBHAI MALIVAD & ORS. ========================================================== Appearance in First Appeal No.2632/2022: MR VC THOMAS(5476) for the Appellant(s) No. 1 MS LILU K BHAYA(1705) for the Defendant(s) No. 6 RULE SERVED for the Defendant(s) No. 7 RULE UNSERVED for the Defendant(s) No. 1,2,3,4,5 Appearance in First Appeal No.1655/2020: MR HIREN MODI for the Appellant MS LILU K BHAYA(1705) for the Defendant(s) No. 3 MR VC THOMAS(5476) for the Defendant(s) No. 5 RULE SERVED for the Defendant(s) No. 1, 2, 4 Appearance in X-Obj.68/2020 in First Appeal No.1655/2020: MR VC THOMAS(5476) for the Appellant MR HIREN MODI for Defendant(s) No. 1 NOTICE SERVED for the Defendant(s) No. 4, 5 NOTICE UNSERVED for the Defendant(s) No. 2, 3 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 03/02/2026 COMMON ORAL JUDGMENT [1.0] Since these ?rst appeals and cross-objections are arising out of the common judgment and award passed by the learned Motor p. 2 Accident Claims Tribunal (Auxi.), at Vadodara, they are heard, decided and disposed of by this common order. [2.0] First Appeal No.2632 of 2022 is ?led by the appellant – original opponent No.5 – Oriental Insurance Company Ltd. under Section 173 of the Motor Vehicles Act, 1988 (for short referred to as “MV Act”) challenging the impugned judgment and award dated 20.09.2017 passed by the learned Motor Accident Claims Tribunal (Auxi.), Vadodara in Motor Accident Claim Petition No.1505/2009 on the ground of contributory negligence of 40% held on the part of driver of Truck No.GJ-7Z-9264 as well as on the ground of exorbitant compensation awarded to the original claimants. First Appeal No.1655/2020 is ?led by the original claimants seeking enhancement of compensation awarded by the learned Tribunal, Vadodara in MACP No.1506/2009 vide its judgment dated 20.09.2017 and Cross Objection No.68/2020 in First Appeal No.1655/2020 is ?led by the Oriental Insurance Company Ltd. challenging contributory negligence held on the part of insurance company of Truck at 40%. [3.0] The brief facts leading to ?ling of present appeals and cross- objections are as follows: [3.1] On 11.11.2009, deceased Punabhai alias Rameshbhai Manglabhai Malivad was going from Vadodara to Mumbai by driving Truck No.GJ-7Z-9264 with moderate speed on correct side of the road and when he reached near the place of accident, as the driver of Trailer No.HR-38-N-2699 had parked his trailer without indicating side signal and parking light, deceased Punabhai could not see the stationary trailer and dashed on the back of the trailer with full speed as a result of which the driver of the truck died on the spot. The appellant of First Appeal No.1655/2020 – original claimant was serving p. 3 in the Truck as cleaner and due to the accident he sustained injuries of multiple fractures on both legs because of which his both legs were required to be amputated and urine vain also got punctured and teeth were broken and also sustained injuries on other parts of body. Therefore, the appellant of First Appeal No.1655/2020 ?led MACP No.1506/2009. [3.2] After considering the evidence produced on record by the respective parties, learned Motor Accident Claims Tribunal (Auxi.), at Vadodara (hereinafter referred to as “learned Tribunal”) has been pleased to hold driver of Trailer No.HR-38-N-2699 negligent to the extent of 60% and driver of Truck No.GJ-7Z-9264 contributory negligent to the extent of 40% and awarded compensation of Rs.10,57,700/- to the appellant of First Appeal No.1506/2009 – original claimant. [4.0] Learned advocate Ms. Lilu Bhaya has not remained present even in second call. Heard learned advocate Mr. V.C. Thomas appearing for the Oriental Insurance Co. Ltd. and learned advocate Mr. Hiren Modi appearing for the original claimant. [5.0] when the matter is called Learned advocate Mr. V.C. Thomas appearing for the Oriental Insurance Co. Ltd. has submitted that the learned Tribunal has committed an error in holding the driver of Truck to be 40% contributory negligent as driver of stationary trailer left his trailer on the public road in dangerous position without any guard, reNector and in unattended position in breach of Rule 190 of the MV Rules and therefore, the driver of Trailer ought to have been held 100% negligent for the accident and appellant is required to be exonerated from the liability. Hence, he has requested to allow First Appeal No.2632/2022 and Cross Objection No.68 of 2020 in First p. 4 Appeal No.1655/2020. [6.0] Learned advocate Mr. Hiren Modi appearing for the appellant – original claimant of First Appeal No.1655/2020 has submitted that the learned Tribunal has awarded inadequate compensation. He has argued that the claimant was serving as cleaner though his monthly income is assessed at Rs.5500/- per month i.e. Rs.4000 towards salary and Rs.1500 towards allowances at the rate of Rs.50 per day. He has further submitted that though the doctor opined permanent partial disability of the claimant at 130%, the learned Tribunal has considered only 75% disability body as a whole of the claimant and considering the fact that both the lower limbs of the claimant have to be amputated, learned Tribunal ought to have considered 100% as he was aged 20 years. He has further argued that even no future prospect is considered and under the head of pain, shock and suOering, learned Tribunal has not awarded just compensation. Hence, he has requested to allow First Appeal No.1655/2020. [7.0] So far as issue of negligence raised by learned advocate Mr. V.C. Thomas appearing for the Oriental Insurance Co. Ltd. is concerned, perusing the record, it appears that the learned Tribunal has perused the evidence of original claimant, complaint (Exh.36), panchnama of place of accident (Exh.37) and thereafter, relying on the decisions of Hon’ble Supreme Court in the case of Bimla Devi vs. H.R.S.T.C. reported in AIR 2009 SC 2819 and Parmeshwari Devi vs. Amir Chand reported in (2011) 11 SCC 635, wherein it is held that negligence is required to be proved in claim petition under section 166 of the MV Act only on the touchstone of the preponderance of probability and not beyond doubt, the learned Tribunal came to conclusion that the driver of stationary trailer was negligent for the accident to the extent p. 5 of 60% and truck to the extent of 40%. To come to such conclusion, the learned Tribunal has considered evidence produced at Exh.28 as well as the cross-examination of the claimant done by opponent Nos.3 and 5 and also considered the panchnama of place of accident from which it emerged that both the vehicles were involved in the accident and front portion of truck got a dent inside and trailer which was loaded with iron rods got dent from behind. Further, no any brake marks have been found on the road and trailer was found in stationary position on the road and alleged accident took place at 8.00 p.m. The complaint is registered against the driver of truck. Hence, learned Tribunal came to conclusion that both the vehicles were involved and drivers of both the vehicles were negligent in causing the accident. It appears that at the time of accident, trailer was stationary and due to darkness, truck dashed behind the back side of stationary vehicle. It appears from the evidence that Trailer was parked on the road without putting any signal, reNector or any signal to avoid the accident. The driver of trailer is not examined and he has not stepped into the witness box. The learned Tribunal has relied on the panchnama of scene of accident wherein it is narrated that the trailer was having back light on and also one red bulb was kept at the end of iron rod loaded in the trailer. Further, the witness examined at Exh.28 has admitted that head light of the truck was also on and driver of truck was able to see the vehicle coming from opposite direction and further he has admitted that though light of the trailer was on, truck rammed into the trailer and oOence was registered against the driver of truck and alleged accident took place due to negligence of the truck driver. Considering the evidence of original claimant, who is an eye-witness of the accident, learned Tribunal has apportioned negligence of 60% on the part of stationary trailer and 40% on the part of truck. At the same time, this Court is of considered view that p. 6 while parking the vehicle on the public road, it was the duty of the driver of trailer to park the vehicle in safe position with suQciently visible reNectors and warning lights and barriers. [7.1] Further, as per Section 121 of MV Act, the driver of the motor vehicle shall make such signals on such occasions and as per Section 122, no person incharge of the motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest at any public place which is likely to cause danger, obstruction or undue inconvenience to the other users of road or the public place. Under Sections 126 and 127(2) of the MV Act, driver of stationary vehicle is duty bound to immediately remove such vehicle from the public place by towing service or try to remove the obstruction as per Regulation 15 of Rules of Road Regulations of 1989 which was also prevailing on the date of the incident and every driver of motor vehicle shall park the vehicle in such a way that does not cause or is not likely to cause danger/obstruction or any undue inconvenience to the other road users and it cast the duty on the driver of the motor vehicle that vehicle shall not be parked at or near the road crossing or on the main road. Herein, the trailer was loaded with iron rods and parked on the public road and therefore, considering Rules 190 and 191 of the Motor Vehicles Rules and Regulation 122 of the MV Act, learned Tribunal has not committed any error in holding the negligent of trailer at 60% considering the size of the vehicle. Learned Tribunal also appreciated the fact that the accident in question took place at 8 p.m. and the lights of truck were on and driver of truck was able to see the vehicle coming from the opposite direction and therefore, the driver of oOending truck ought to have taken suQcient care to avoid the accident. Further, there is no any material or evidence on the record which reveals that the driver of truck applied the brakes to avoid the p. 7 accident. Considering night time driving and that too heavy vehicle like truck, the driver of truck ought to have been more careful and degree and standard of care and caution to meet with expected and unexpected situation ought to have been extra. Upto that extent, the driver of truck failed to take such standard of care and caution and therefore, the driver of truck contributed in the accident upto that extent and hence, the learned Tribunal has not committed any error in considering the evidence of appellant of First Appeal No.1655/2020 (original claimant) who was eye-witness as was serving as cleaner in the oOending truck. In view of above, no interference is called for qua ?nding of the learned Tribunal as regards apportionment of negligence. Hence, First Appeal No.2632/2022 fails. [8.0] So far as First Appeal No.1655/2020 is concerned, it is the case of the claimant that at the time of accident, the claimant was serving as a cleaner and earning salary of Rs.4000/- per month and Rs.100/- per day towards bhattha and was also earning Rs.50,000/- per annum from doing farming and Rs.2500/- from cattle rearing and milk selling – dairy activities but no any evidence in that regard is produced before the learned Tribunal. The alleged accident took place in the year 2009 and in absence of any material or evidence with regard to income of the claimant, considering minimum wages of Rs.3800/- prevailing in the year 2009 i.e. Rs.4000/- is considered by the learned Tribunal alongwith Rs.50 per day towards bhattha and hence, to award just and proper compensation, the learned Tribunal has considered monthly income of claimant at Rs.5500/- (Rs.4000 towards salary + Rs.1500 towards bhattha) and in the considered opinion of this Court, the learned Tribunal has not committed any error in assessing income of the claimant at Rs.5500/- per month. Hence, to that extent, no interference is called for. But, the learned Tribunal has not considered p. 8 future prospects of the claimant on the said monthly income. The claimant was aged 28 years and hence, as per the decision of the Hon’ble Supreme Court in the case of Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr. reported in 2009 ACJ 1298, multiplier of 17 is rightly applied. Further, as per the decision of Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Ors. reported in 2017 ACJ 2700, as the deceased was below 40 years of age, additional income under the head of future prospective income at 40% is required to be considered. Hence, adding Rs.2200/- i.e. 40% towards future prospects, monthly loss of income of the claimant would come to Rs.7700/- (Rs.5500 + Rs.2200). [8.1] So far as disability sustained by the claimant is concerned, disability certi?cate issued by Dr. Tushar is produced wherein the doctor has opined 130% permanent partial disability of the claimant. The claimant has examined said Dr. Tushar Modi at Exh.42 but after appreciating the evidence, learned Tribunal has assessed 75% disability in absence of any evidence that the claimant is unable to engage in any other type of avocation or profession and merely because the appellant – claimant does not want to perform or engage in any profession for livelihood, it does not mean that 100% functional disability is required to be considered as prayed for by the learned advocate Mr. Hiren Modi. Hence, no interference is called for insofar as disability assessed by the learned Tribunal is concerned. Hence, considering 75% disability and applying multiplier of 17, the claimant would be entitled to Rs.11,78,100/- [Rs.5775/- (Rs.7700/- x 75%) x 12 x 17] towards future loss of income. [8.2] So far as actual loss of income is concerned, considering the p. 9 disability and injuries sustained by the claimant, the learned Tribunal considered actual loss for six months and awarded Rs.33,000/-, which in considered opinion of this Court, does not call for any interference and is maintained. So far as compensation awarded by the learned Tribunal under the head of medical expenses is concerned, the learned Tribunal has rightly awarded Rs.63,184/- considering the medical bills produced at Exh.35 and in the considered opinion of this Court, no interference is called for so far as compensation under the head of medical expenses is concerned. [8.3] So far as compensation under the head of pain, shock and suOering is concerned, considering the fact that the claimant was shifted in New Civil Hospital, Surat wherein he remained as indoor patient from 12.09.2009 to 18.11.2009 and two operations were performed on the claimant and thereafter, he was shifted to Yogini Hospital, Vadodara where he took treatment as indoor patient from 18.11.2009 to 16.12.2009 and one operation was performed on the claimant and thus, it appears that total ?ve operations were performed on the claimant during his treatment however, the learned Tribunal has awarded Rs.50,000/- towards pain, shock and suOering which in the considered opinion of this Court is required to be reassessed at Rs.1,50,000/- and hence, the claimant is entitled to get Rs.1,50,000/- towards pain, shock and suBering. The compensation under the head of attendant charges and transportation charges and nutritious food is enhnaced to Rs.50,000/- and compensation of Rs.50,000/- for loss of enjoyment and loss of amenities of life as awarded by the learned Tribunal is enhanced to Rs.1,00,000/-. Considering the amputation being done, the appellant – original claimant is also entitled to get compensation of Rs.1,50,000/- under the head of artiEcial limb. Hence, the appellant of First Appeal p. 10 No.1655/2020 – original claimant is now entitled to get the compensation as under: Heads Awarded by Tribunal Reassessed by this Court Future loss of income Rs.8,41,500/- Rs.11,78,100/- including additional amount of Rs.3,36,600/- Actual loss of income Rs.33,000/- Rs.33,000/- including additional amount of Rs.51,840/- Pain, shock and suOering Rs.50,000/- Rs.1,50,000/- including additional amount of Rs.1,00,000/- Medical Expenses Rs.63,200/- Rs.63,200/- NIL Attendant, transportation charges and nutritious food Rs.20,000/- Rs.50,000/- including additional amount of Rs.30,000/- Loss of enjoyment and amenities of life Rs.50,000/- Rs.1,00,000/- including additional amount of Rs.50,000/- ArtiEcial Limb NIL Rs.1,50,000/- Total Compensation Rs.10,57,700/- Rs.17,24,300/- including additional amount of Rs.6,66,600/- [9.0] Thus, total compensation of Rs.10,57,700/- as awarded by the learned Tribunal is on lower side, for the reasons recorded hereinabove, and therefore, same is required to be enhanced to the aforesaid extent i.e. Rs.17,24,300/- and therefore, the impugned judgment and award passed by the learned Tribunal is required to be modi?ed to the aforesaid extent. [10.0] In wake of aforesaid conspectus, First Appeal p. 11 No.2632/2022 is dismissed and consequently, Cross Objection No.68/2020 in First Appeal No.1655/2020 also stands dismissed. First Appeal No.1655/2020 is allowed and the impugned judgment and award dated 20.09.2017 passed by the learned Motor Accident Claims Tribunal (Auxi.), Vadodara in MACP No.1506/2009 is modi?ed and respondents are held liable to pay reassessed compensation of Rs.17,24,300/- to the appellant of First Appeal No.1655/2020 (original claimant of MACP No.1506/2009) alongwith accrued interest at the rate of 9% per annum within a period of FOUR WEEKS from the date of receipt of this judgment. [10.1] The learned Tribunal shall disburse the entire amount of compensation with accrued interest thereon, if any, to the claimant, by account payee cheque / NEFT / RTGS, after proper veri?cation and after following due procedure. [10.2] While making the payment, the Tribunal shall deduct the courts fees, if not paid. [11.0] Record and proceedings, if any, be sent back to the concerned Tribunal, forthwith. Pending civil application, if any, also stands disposed of. Sd/- (HASMUKH D. SUTHAR, J.) Ajay