ZALA RANJANBEN NILAYBHAI v. JAYESHKUMAR HARMANBHAI PATHIYAR

C/FA/3890/2023 JUDGMENT DATED: 12/02/2026 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 3890 of 2023

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

========================================================== Approved for Reporting Yes No √ ========================================================== ZALA RANJANBEN NILAYBHAI & ORS.

Versus

JAYESHKUMAR HARMANBHAI PATHIYAR & ORS.

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

MR NISHIT A BHALODI(9597) for the appellants(s) No. 1,2,3 MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3 RULE SERVED for the Defendant(s) No. 2 UNSERVED EXPIRED (R) for the Defendant(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

Date : 12/02/2026

ORAL JUDGMENT

[1.0] Present First Appeal under Section 173 of the Motor V ehicles Act, 1988 (for short “MV Act”) is ?led by the appellants – original claimants challenging the impugned judgment and award dated 21.12.2021 by the learned Motor Accident Claims Tribunal (Auxi.), Nadiad (for short “learned Tribunal”) in Motor Accident Cl aim Petition No.304 of 2019, whereby the learned Tribunal was pleased to hold deceased scooterist to be contributory negligent to the extent of 20% and driver of Maruti Eeco Car to be 80% negligent for the accident and awarded Rs.12,40,532/- after deducting 20% (towards contributory negligence of scooterist) from Rs.15,50,664/-.

[2.0] The brief facts leading to ?ling of present appeal is as follows:

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C/FA/3890/2023 JUDGMENT DATED: 12/02/2026 [2.1] On 10.02.2019, deceased Nilaykumar Gagubhai Zala (hereinafter referred to as “deceased”) was plying Activa bearing registration No.GJ-7-CL-0564 with moderate speed on correct side of the road and when he reached at the place of accident, driver of Maruti Eeco Car bearing registration No.GJ-23-BL-7990 came driving his car with full speed in rash and negligent manner from opposite direction in wrong side and dashed with the Activa of the deceased as a result o f which the deceased having sustained severe injuries died. Therefore, the original claimants – legal heirs and representatives of the dec eased ?led MACP No.304/2019 seeking compensation of Rs.40 lakh.

[2.2] After considering the evidence produced and adduced, the learned Tribunal held the driver of Eeco Car to be 80% n egligent and deceased scooterist to be 20% contributory negligent for the accident and was pleased to award Rs.12,40,532/- after deducting 20% (towards contributory negligence of deceased scooterist) from Rs.15,50,664/-. Being aggrieved with the contributory neglige nce held by the learned Tribunal on the part of deceased scooterist as well as on the ground of inappropriate compensation awarded by the l earned Tribunal, the appellants – original claimants have ?led the present First Appeal.

[3.0] Though served, respondent No.2 has not appeared befor e the Court. Heard learned advocate Mr. Nishit Bhalodi for the ap pellants and learned advocate Ms. Kirti Pathak for the insurance company.

[4.0] Learned advocate Mr. Nishit Bhalodi appearing for the appellants – original claimants has submitted that the learned Tribunal has committed an error in holding the deceased scooterist to be 20% contributory negligent for the accident in absence of any evidence and merely based on panchnama (Exh.23) as both the vehicles were Page 2 of 10 C/FA/3890/2023 JUDGMENT DATED: 12/02/2026 damaged on their front portions, the learned Tribunal has drawn adverse inference and held the deceased scooterist to be 20% contributory negligent, which is not permissible. He has further submitted that merely because there was head on collision betwe en two vehicles, in absence of evidence of any eye-witness, such ty pe of apportionment of liability or presumption qua contributory negligence on the part of deceased scooterist is not permissible. He has r elied on the decision of the Division Bench of this Court in the case of United India Insurance Co. Ltd. vs. Rehanaben Salimbhai Mukindo and O rs.

reported in 2019 ACJ 2498.

[4.1] So far as quantum is concerned, learned advocate appe aring for the appellants has submitted that the learned Tribunal has not properly assessed the income of the deceased and even the compensation under the head of loss of consortium has not been granted by the learned Tribunal as per the decision of the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd. vs.

Nanu Ram alias Chuhru Ram & Ors. reported in (2018)18 SCC 130 .

Hence, he has requested to allow the present appeal.

[5.0] Learned advocate Ms. Kirti Pathak appearing for the resp ondent – insurance company has opposed the present appeal on the g round that the learned Tribunal has not committed any error and on the contrary learned Tribunal considering the involvement of veh icles and as there was head on collision, 50-50% apportionment of liability ought to have been done by the learned Tribunal. She has further submitted that panchnama clearly depicts that the deceased scooterist was negligent and he has caused the accident however, the learned Tribunal has assessed only 20% contributory negligence of the deceased scooterist instead of 80% and has requested to hold the Page 3 of 10 C/FA/3890/2023 JUDGMENT DATED: 12/02/2026 deceased scooterist to be 80% negligent for the accident. S he has relied on the decision of the Hon’ble Supreme Court in the case of T.O.

Anthony vs. Karvarnan and Others reported in (2008) 3 SCC 748 and requested to either dismiss the appeal or to hold both the vehicles equally negligent for the accident.

[6.0] Having heard learned advocate for the appellants – original claimants and learned advocate for the insurance company and perusing the record, it appears that the learned Tribunal has considered the evidence produced and adduced by both th e parties including the aOdavit of the claimant No.1 – wife of the dece ased at Ex.19. The said witness in her cross-examination has admitted that she is not an eye-witness. The learned Tribunal has also considered FIR (Ex.22) and Panchnama (Ex.23) and perusing the said documents, it appears that both the vehicles were damaged mostly on their respective front side and hence, it is clear that both the vehicles collided with each other head on. Perusing the oral as well as documentary evidence namely aOdavit of claimant No.1, complaint, panchnama etc., it is an admitted position of fact that the drive r of Eeco Car, who was the best person to depose on oath, did not step into the witness-box and therefore, the learned Tribunal has drawn adverse inference against the driver of Eeco Car driver. If the drivers of both the vehicles would have taken due care then the accident could have been avoided. It is a cardinal principle of law that a person driving a motor vehicle on a road must drive the vehicle with reasonable care, strictly observing the traOc regulations and the rules of the road and should always be conscious of the motto “e xpect the unexpected” and should be apprehensive of a vehicle from the opposite direction. It is cardinal principle of law that one h as to drive his vehicle in such a fashion that it may not cause any damage/injury to Page 4 of 10 C/FA/3890/2023 JUDGMENT DATED: 12/02/2026 any property/person but in the case on hand, both the drivers have failed in their duty. Thus, considering the oral as well as doc umentary evidence, the learned Tribunal held the deceased scooter ist i.e. driver of Activa bearing registration No.GJ-7-CL-0564 to be negligent to the extent of 20% and driver of Maruti Eeco Car bearing registration No.GJ-23-BL-7990 to be negligent to the extent of 80% in causing the accident.

[6.1] So far as reliance placed by the learned advocate for the appellants on the case of Rehanaben Salimbhai Mukindo (Supra) in support of his submission that the driver of Eeco Car ought to have been held 100% negligent is concerned, the facts of th e said case are distinguishable with the facts of the case on hand. Considering the panchnama produced at Exh.23, the learned Tribunal has opine d that both the vehicles were mostly damaged on their front portio n and both the vehicles collided with each other head on. In th e case on hand, the accident took place on Umreth – Sarsa road having width of 24 feet and on both the sides, parapet wall is situated and the middle portion of the bonnet of Eeco car is damaged and even he adlight and windshield of eeco car is also broken and driver side door g lass is also broken. Thus, there was suOcient chance for the scooterist to keep aside his vehicle however, the deceased scooterist failed to do so.

Further, in absence of any evidence of eye-witness and c laimant No.1 having no personal knowledge about the negligence of driver of oPending vehicle and considering the fact that driver of oPe nding vehicle did not step into the witness box, due to this reason the learned Tribunal has relied upon the panchnama produced on record which is an admitted document. The panchnama substantiates the ?nding which is based on admission of the claimant herself which is required to be considered and relied upon in light of sec tions 61 and Page 5 of 10 C/FA/3890/2023 JUDGMENT DATED: 12/02/2026 58 of the Indian Evidence Act. The learned Tribunal has rig htly relied upon the said panchnama and contents thereof and come to the conclusion that deceased scooterist was 20% contributory neglig ent for the accident. 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.

[6.2] In the case of Rehanaben Salimbhai Mukindo (Supra), facts were diPerent and therein, the luxury bus was in excessive speed which dashed with the maruti van and considering the panchnama, the Division Bench come to the conclusion that both the vehicles were badly damaged but maruti van was lying near the road side petrol pump. It is true that merely based on the panchnama or positio n of vehicle, negligence is not required to be considered. Bu t, in the case on hand, speci?c evidence is led and claimants have also failed to lead any evidence by examining any eye-witness to show sole negligence of the driver of Eeco Car. Therefore, in the considered op inion of this Court and in view of the decision of the Hon’ble Supreme Court in the case of T.O. Anthony (Supra), learned Tribunal has rightly come to the conclusion that driver of both the vehicles were liable to cause the accident and it was a case of 20% contributory negligence on the part of the deceased scooterist and 80% on the part of the drive r of Eeco Car. At this stage, it is apposite to refer to the decision of the Hon’ble Apex Court in the case of Sushil Suri v. Central Bureau of Investigation and Another reported in (2011) 5 SCC 708 , wherein paragraph 32 reads as under:

“32. It needs little emphasis that even one additional o r dierent fact may make a world of dierence between the conclusions in two cases and blindly placing reliance on a decision is never proper . It is trite that while applying ratio, the Court may not pick out a word or sentence from the Page 6 of 10 C/FA/3890/2023 JUDGMENT DATED: 12/02/2026 judgment divorced from the context in which the said qu estion arose for consideration. (See Zee Tele’lms Ltd. V. Union of India, reported in (2005) 4 SCC 659.) In this regard, the following words of Lord Den ning, quoted in Haryana Financial Corpn. V. Jagdamba Oil Mills, reporte d in (2002) 3 SCC 496, are also quite apt: (SCC p.509, para 22)

“22. …. ‘Each case depends on its own facts and a close sim ilarity between one case and another is not enough because e ven a single signi’cant detail may alter the entire aspect. In deci ding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matUbuntuching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.’”

In view of above, reliance placed on the decision of Hon’ble Supreme Court in the case of Rehanaben Salimbhai Mukindo (Supra)

would not avail any assistance to the appellants – original claimants.

[7.0] In order to prove the income of the deceased, claimant No.1 has stated in her aOdavit that the deceased was doing agricultural wo rk and animal husbandry work for which the claimants had produced village abstracts 7/12 and 8-A at Exhs.30 to 42 however, the learned Tribunal considering oral as well as documentary evidence and the fact that accident took place in the year 2019, has considered Rs.8000/- as monthly income of the deceased however, in con sidered opinion of this Court, monthly income ought to have been c onsidered at Rs.8100/- per month and considering the Aadhar Card (Exh.28)

wherein birth date of deceased is shown as 02.06.1987 and accide nt occurred on 10.02.2019 and therefore, the deceased was aged 32 years at the time of accident and hence in view of 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 16 is rightly applied by the learned Tribunal.

[7.1] Further, in view of the decision of the Hon’ble Sup reme Court in Page 7 of 10 C/FA/3890/2023 JUDGMENT DATED: 12/02/2026 the case of National Insurance Company Ltd. Vs. Pranay Shethi reported in (2017) 16 SCC 680, as the deceased was aged about 32 years at the time of accident i.e. below 40 years and hence, 40% towards future prospects is required to be added in monthl y income and therefore, future monthly income of deceased is re quired to be reassessed at Rs.11,340/- [Rs.8100 + Rs.3240 (40% of Rs.8100)] . It is not in dispute that the deceased was married and therefore, R s.3780/- (1/3 of Rs.11,340) is required to be deducted towards personal expenditure of the deceased and accordingly, monthly fut ure loss of dependency would come to Rs.7560/- (Rs.11,340 – Rs.3780) and applying multiplier of 16, the appellants – original claimants would be entitled to Rs.14,51,520/- (Rs.7560 x 12 x 16) towards future loss of dependency.

[7.2] Further, in view of the ratio laid down by the Hon’ ble Supreme Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram reported in (2018) 18 SCC 130 and Janabai Wd/o Dinkarrao Ghorpade & Ors. vs. M/s. ICICI Lambord Insurance Company Ltd.

reported in 2022 LiveLaw (SC) 666, the learned Tribunal has committed error in awarding only Rs.44,000/- towards loss of consortium and Rs.40,000/- towards parental consortium, however , in view of above judgments the appellants – original claimants being legal heirs of the deceased are entitled for Rs.48,400/- eac h towards the head of loss of consortium. Therefore, the amount towards loss of consortium is reassessed as Rs.1,45,200/- (Rs.48,400/- x 3).

[7.3] Further, in view of the law laid down by the Hon’ble Supreme Court in the case of Pranay Sethi & Ors. (Supra), claimants are entitled to get an amount of Rs.18,150/- each towards loss of estate and funeral expenses.

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C/FA/3890/2023 JUDGMENT DATED: 12/02/2026 [8.0] Thus, now the appellants – original claimants are entitled to the compensation as under:

Heads Amount awarded by

the Tribunal

Reassessed by this Court

Future loss of

dependency

Rs.14,33,664/- Rs.14,51,520/-

including additional amount of

Rs.17,856/-

Loss of Consortium Rs.44,000/-

Rs.40,000/-

Rs.1,45,200/-

Loss of Estate Rs.16,500/- Rs.18,150/-

Funeral Rs.16,500/- Rs.18,150/-

Total... Rs.15,50,664/- Rs.16,33,020/-

Deduction (20%) for

contributory negligence of

deceased

Rs.3,10,132/- Rs.3,26,604/-

Total Compensation Rs.12,40,532/- Rs.13,06,416/- including additional amount of Rs.65,884/- As discussed hereinabove, the ?nding of the learned Tribun al as regards deceased scooterist to be 20% contributory neglige nt for the accident being upheld, the compensation to that extent is required to be sliced down and hence, the appellants – original claimants are entitled to get compensation of Rs.13,06,416/- [Rs.16,33,020 – Rs.3,26,604 (20% of Rs.16,33,020)]. To that extent, the impugned judgment and award is required to be modi?ed.

[9.0] In wake of aforesaid conspectus, present First Appeal is partly allowed. The impugned judgment and award dated 21.12.2021 by the learned Motor Accident Claims Tribunal (Auxi.), Nadiad in Motor Accident Claim Petition No.304 of 2019 is modi?ed and respo ndent No.3 – Insurance Company is directed to deposit reassessed amount of compensation of Rs.13,06,416/- alongwith accrued interest at the rate of 7.5% per annum, with the learned Tribunal within a period of four weeks from the date of receipt of the present judgment.

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C/FA/3890/2023 JUDGMENT DATED: 12/02/2026 [9.1] After the aforesaid amount of reassessed compensation is deposited by the insurance company, learned Tribunal is dire cted to disburse the entire amount with accrued interest thereon, if any, to the original claimants, by account payee cheque / NEFT / RTGS , after proper veri?cation and after following due procedure and strictly in accordance with the apportionment made by the learned Tribunal.

[10.0] 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 t he concerned Tribunal, forthwith.

Sd/-

(HASMUKH D. SUTHAR, J.)

Ajay

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

Digitally signed by: AJAY CHANDRAN MENON(HC00939), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 13/02/2026 10:49:58