JENBEN JOSEPHBHAI MECWAN v. VINUBHAI ISHWARBHAI PARMAR

C/FA/1439/2022 JUDGMENT DATED: 11/02/2026 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1439 of 2022 With R/FIRST APPEAL NO. 1450 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

========================================================== Approved for Reporting Yes No ========================================================== RAJESHBHAI ALIAS IGNASBHAI FRANCISBHAI MECWAN Versus VINUBHAI ISHWARBHAI PARMAR & ORS.

========================================================== Appearance:

MR VAIBHAV N SHETH(5337) for the Appellant(s) No. 1 RULE SERVED for the Defendant(s) No. 1,2,3 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

Date : 11/02/2026

COMMON ORAL JUDGMENT

Since both these appeals are arising out of the same ac cident, they are being heard together and are being decided by this common judgment. The First Appeal No.1439 of 2022 arises out of MAC Petition No.230 of 2018 and the First Appeal No.1450 of 2022 arises out of MAC Petition No.606 of 2015.

1) Feeling aggrieved and dissatis>ed with the judgment and award dated 16.12.2021, passed by learned Motor Accident Cl aims Tribunal (Aux.), Petlad, (hereinafter referred to as "the Tribuna l" for short), in Motor Accident Claim Petition Nos.230/2018, the appel lant – injured has >led First Appeal No.1439/2022 for enhancement of Page 1 of 9 C/FA/1439/2022 JUDGMENT DATED: 11/02/2026 compensation, whereas, the appellants – original claim ants have >led First Appeal No.1450/2022 against the judgment and aw ard dated 13.10.2021 passed by learned Motor Accident Claims Tr ibunal (Aux.), Anand, in Motor Accident Claim Petition Nos.606/2015 fo r enhancement of compensation under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short).

2) Heard Mr. Vaibhav N. Sheth, learned Advocate for the appellants – original Claimants in both the appeals. Though served, none appears for the respondents.

3) It is the case of the appellants that on 28.08.2015, at about 19:45 hours, the appellant and his brother Josefbhai were travelling on TVS scooter bearing No.GJ-06-FA-6333 and his brother was dri ving the scooter, at that time, one Dumper bearing No.GJ-23-W-2163 came with excessive speed and in rash and negligent manner and dashed with the scooter of the appellant. As a result, the appellant Rajeshbhai @ Ignasbhai Macwan and his brother Josefbha i Macwan got serious fracture injuries. In the said accident, due to fatal injuries sustained by Josefbhai, he died on the spot. Therefore, the appellants have >led MAC Petitions seeking compensation. After appreciating the evidence produced on record the lear ned Tribunal was pleased to partly allowed both the claim petitions.

FIRST APPEAL NO.1439 OF 2022

4) In First Appeal No.1439/2022, it is submitted that t he Tribunal has erred in assessing monthly income of the appellant as R s.20,000/-, whereas, he was earning Rs.20,812/- at the time of ac cident. Further, the Tribunal has also committed an error in assessing 5 % negligence on the part of deceased as the accident occurred due to sole Page 2 of 9 C/FA/1439/2022 JUDGMENT DATED: 11/02/2026 negligence on the part of driver of oHending vehicle Dum per came on wrong side and dashed with the motorcycle of the appellants.

Further, the Tribunal has committed error in not awarding any amount under the head of loss of future income and not ade quately awarded compensation under the head of pain, shock an d suHering.

In such circumstances, he has prayed to enhance the c ompensation in First Appeal No.1439/2022.

5) After considering the submissions made by the learned counsel for the parties, it appears that the appeal is >led on two grounds: (i)

quantum and (ii) disability. The Insurance Company has not >led any cross-objection. Therefore, the appeals required to be decided on the aspects of quantum and negligence. The occurrence of the al leged incident is not in dispute, and the involvement of the veh icle is also uncontested. Based on the documentary evidence, the Tribun al has concluded that the accident occurred on the right side of the white line on the road, which reveals that the accident too k place in the middle of the road. After considering both oral and documentary evidence, the Tribunal found the driver of the dumper to be 95% negligent and the driver of the TVS scooter to be 5% ne gligent for causing the accident. The dumper was traveling from Bha vanipura to Rangaipura, while the TVS scooter was going in the opposite direction, from Rangaipura to Bhavanipura.

6) Regarding the income aspect is concerned, the appellant has >led an aJdavit at Exh:26 that, as a result of the alleged accident, he sustained a serious fracture and was hospitalized at Karamsad Hospital, where he stayed for 7 days. At the time o f the accident, he was 44 years old and employed as a Clerk at Don Bosco School, Vadodara, drawing a monthly salary of Rs. 22,000/-. To substantiate Page 3 of 9 C/FA/1439/2022 JUDGMENT DATED: 11/02/2026 his income, the appellant presented the deposition of Sanjaybhai K.

Macwan, Clerk at Don Bosco High School, Vadodara at Exh:39.

Mr.Macwan con>rmed that he had been working as a Cler k at Don Bosco School since last 27 years and produced a certi> cate showing the salary paid to the appellant for the months of Jul y, August, and September 2015, issued by the Principal of Don Bosco Hi gh School, Vadodara. The certi>cate marked as Exh:40 signed by the Principal. In cross-examination, Mr. Macwan admitted that the salary of employees was disbursed after receiving a grant from t he DO OJce and that the salary details were based on school rec ords, over which he had no personal knowledge. He also acknowledged th at he was unaware of how many days, the appellant was absent due to the injuries. The appellant resumed his duties with a >tness certi>cate, and his current gross salary is Rs. 36,966/-. Upon reviewing the certi>cate at Exh:40) issued by the Principal of Don Bosco High School, it is established that the appellant was paid a net salary of Rs.

20,812/- for the months of July, August, and September 2015.

Considering the fact that the alleged accident took pl ace in August 2015, the Tribunal rightly assessed the appellant's mo nthly income at Rs. 20,000/- and hence, does not require any interference in the aspect of quantum.

7) So far as disability is concerned, the appellant has produced a disability certi>cate at Exh:34, issued by Dr. Yoges h Parikh of Tulsi Hospital, Nadiad, which certi>es 22% disability in the right upper limb. However, learned advocate for the appellant before the Tribunal >led a Pursis, declaring that the appellant is a government employee and has no objection if 5% disability for t he entire body is considered, which was agreed upon by both parties, w hich does not require any interference of this Court.

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C/FA/1439/2022 JUDGMENT DATED: 11/02/2026 8) So far future loss of income is concerned, the Tribunal c onsidering the disability and other evidence, held that the appe llant continued his employment, drawing a higher salary than his prev ious salary, and that there was no impact on his disability as a resul t of the accident.

The appellant claimed that due to the disability, he could not be promoted and suHered a loss of future earnings. However, there is no evidence to support this claim of future earnings loss , nor any evidence to link the lack of promotion to the disabil ity caused by the accident. The appellant did not show any impact on his earning capacity due to the disability. The disability certi >cate referred to a 22% disability in the right upper limb, not for the e ntire body. The percentage of disability may result in varying degrees of loss of earning capacity, depending on the nature of the job, profession, age, and other factors. In the case of a driver or a part icular laborer, the functional loss of earning capacity might be higher than the percentage of permanent disability. In this case, the appellant’s permanent disability of the limb could not be considered as a functional disability of the entire body, nor it could be assumed to result in a corresponding loss of earning capacity, as the disability did not prevent the appellant from continuing his work as a cl erk in the school. Moreover, there was no evidence to establish that the appellant’s failure to receive a promotion was due to the disability caused by the accident. In fact, the appellant did not suHer any economic loss as a result of the disability caused by the injury.

Therefore, no compensation was awarded for future loss of income.

Consequently, this Court >nds no reason to interfere with the Tribunal’s decision on this aspect.

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C/FA/1439/2022 JUDGMENT DATED: 11/02/2026 9) Further, the Tribunal has properly awarded Rs.47,327/- towards medical bills on the basis of the medical bills pro duced at Exh:48, which is also just and proper.

10) For the foregoing reasoning, observations and evidence pr oduced on record, this Court is of view that, the Tribunal has n ot committed any error in awarding compensation to the appellant – inj ured. Hence, impugned judgment and award dated 16.12.2021, passed by learned Motor Accident Claims Tribunal (Aux.), Petlad, in Motor Accident Claim Petition Nos.230/2018 does not call for any inter ference. First Appeal No.1439 of 2022 fails and is hereby dismissed.

FIRST APPEAL NO. 1450 OF 2022

11) In First Appeal No.1450/2022, it is submitted that, the Tribunal has committed an error in considering monthly income of th e deceased as Rs.4,000/- on notional basis and ought to have consid ered the fact that the deceased was doing oJce work of computer oper ator and being semi skilled person, used to earn Rs.8,000/- p.m and even as per the minimum wage prevailing at the time of accident, mi nimum wage at the time of accident i.e. 2015, was Rs.7,400/- is required to be considered.

12) In order to prove the claim, the claimant No.2 has > led an AJdavit at Exh:18, FIR at Exh:26, Panchnama of scene of incident at Exh:27, Inquest Panchanama at Exh:22 and PM report at Exh:29. After appreciating the evidence produced on record, the Tri bunal held the oHending vehicle 87 % negligent and 3 % negligent on the p art of the deceased relying on the decisions of the Bimla Devi Vs. HRTC reported in AIR 2009 SC 2819 and Parmeshwari Devi Vs. Amir Chand, reported in 2011 (11) SCC 635. Further, the age of the Page 6 of 9 C/FA/1439/2022 JUDGMENT DATED: 11/02/2026 deceased is 54 years as per the PM report which is at Exh:29.

13) Further, the claimants have produced simple certi>cate at Exh:17/5 showing that the deceased was serving as computer oper ator in the oJce of Shree Sai Copier. But the claimants have not ex amined any witness / owner of the said >rm to prove the employme nt of the deceased and his income. Therefore, said certi>cate has no evidentiary value for income aspect and the income of th e deceased was not proved.

14) As per the law laid down by the Hon’ble Supreme Court i n the case of Govind Yadav Vs. National Insurance Co. Ltd., reported in 2012(1)

TAC 1 (SC) , that if no proof of income is produced on the recor d, then Tribunal has to consider prevalent minimum wages in absence of evidence of monthly income of the deceased. In the present case, the accident occurred in the year 2015 and during that time, the deceased was doing job and used to earn Rs.20,000/- which is not proved, and even considering the deceased as semi ski lled person, the minimum income is required to be considered as Rs.7,400/-.

Hence, and the income of the deceased is reassessed a s Rs.7,400/- per month. Further, the Tribunal has considered future pro spective income of the deceased as 10%, which is just and proper. As the deceased was 54 years married person and having depen dents, 1/3rd deduction as personal expenditure and living of the dec eased and multiplier of 11 were considered by the learned Tribuna l as per the judgment of the Apex Court in the case of Sarla Verma (Smt) & Ors.

Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121 ] which are just and proper.

15) Therefore, calculating the income of the deceased as R s.7,400/- and future prospect of 10 % = Rs.740/- which comes to Rs. 8,140/- and Page 7 of 9 C/FA/1439/2022 JUDGMENT DATED: 11/02/2026 1/3rd amount is required to be deducted as personal expenditure and living of the deceased which comes to Rs.2,713/- and the net amount comes to Rs.5,427/-. In view of above, the amount under the head of loss of future dependency is required to be reassessed as Rs.5,427/- x 12 months x 11 multiplier = Rs.7,16,364/-. Therefore, the appellants are entitled to get additional amount of Rs.3,29,208/- under the head of future loss of dependency.

16) Further, the Tribunal by relying on the judgment of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 20 17 (16)

SCC 680 has awarded total Rs.30,000/- under the two conventional heads, however, this Court is of the view that amount is required to be reassessed as Rs.18,150/- towards loss of estate and Rs.18,150/- towards funeral expenses. Therefore, the appellants – original claimants are entitled for additional amount of Rs.6,300/- (i.e.

Rs.18,150/- - Rs.15,000/- = Rs.3150/- towards loss of estate and Rs.18,150/- - Rs.15,000/- = Rs3150/- towards funeral expenses).

17) Further, in view of ratio laid down by the Hon’ble Sup reme Court in the case of Magma General Insurance Co. Ltd., Vs. Nanu Ram, reported in (2018) 18 SCC 130 and Janabai Wd/o Dinka rrao Ghorpade & Ors., Vs M/s ICICI Lambord Insurance Company Ltd., reported in 2022 LiveLaw (SC) 666 , the appellants are entitled for loss of consortium for two claimants. Therefore, the amount towards loss of consortium is reassessed as Rs.96,800/- for two claimants).

18) As discussed above, the appellants – original claimants are entitled to get compensation computed as under:- Page 8 of 9 C/FA/1439/2022 JUDGMENT DATED: 11/02/2026 Heads Awarded by the Tribunal Reassessed by this Court Future loss of dependency Rs.3,87,156/- Rs.7,16,364/- Loss of Estate Rs,15,000/- Rs.18,150/- Funeral expenses Rs.15,000/- Rs.18,150/- Loss of consortium Rs.40,000/- Rs.96,800/- Total compensation Rs.4,57,156/- Rs.8,49,464/- 3 % deduction towards negligence Rs.13,715/- Rs.25,483/- Net compensation Rs.4,43,441/- Rs.8,23,981/- (19) As Rs.4,43,441/- is already awarded by learned T ribunal, the appellants – original claimants of First Appeal No. 14 50 of 2022 are entitled to get additional amount of Rs.3,80,540/- (Rs.8,23,981/- - Rs.4,43,441/-)

with proportionate costs and interest as awarded by the learned Tribunal.

(20) Hence, First Appeal No.1450 of 2022 is partly allowed. The judgment and award dated 13.10.2021 passed by learned Motor Accident Claims Tribunal (Aux.), Anand, in Motor Accident Claim Petition Nos.606/2015 stands modi>ed to the aforesaid extent. Rest of the j udgment and award remains unaltered. It is provided that respondent No.2 shall deposit such additional amount of Rs.3,80,540/- along with interest as awarded by the Tribunal, before the Tribunal within a period of four weeks from the date of receipt of this order. Record and proceedings be remitted back to the concerned Tribunal forthwith.

(21) The Tribunal is directed to recover or deduct the de>cit court fees on enhanced amount and thereafter disburse the amount accordi ngly. Award to be drawn accordingly.

(HASMUKH D. SUTHAR,J)

SUCHIT

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Original copy of this order has been signed by the Hon'ble Judge.

Digitally signed by: PATEL SUCHIT JAYESHBHAI(HC01083), Private Secretary, at High Court of Gujarat on 12/02/2026 17:09:02