JASMINABEN W/O MAYURBHAI DHADIYA v. BHARATBHAI ARJANBHAI SARVAIYA SINCE DECD THROUGH HARDIK BHARATBHAI SARVAIYA

C/FA/3685/2024 JUDGMENT DATED: 22/12/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 3685 of 2024 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

========================================================== Approved for Reporting Yes No √ ========================================================== JASMINABEN W/O MAYURBHAI DHADIYA & ORS.

Versus

BHARATBHAI ARJANBHAI SARVAIYA SINCE DECD THROUGH HARDIK BHARATBHAI SARVAIYA & ANR.

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

MR HEMAL SHAH(6960) for the Appellant(s) No. 1,2,3,4 MR KRUNAL R SAKSENA(5915) for the Defendant(s) No. 2 NOTICE SERVED for the Defendant(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

Date : 22/12/2025

ORAL JUDGMENT

Admit. With the consent of learned advocates for the respective parties, present appeal is taken up for ;nal hearing.

[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 23.08.2024 by the learned Motor Accident Claims Tribunal (Sp ecial), Rajkot (for short “learned Tribunal”) in Motor Accident C laim Petition No.257 of 2016, whereby the learned Tribunal was pleased to partly allow the claim petition by holding the deceased 40% contributory negligence for the accident and awarded compensation of Rs.34,96,886/-.

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C/FA/3685/2024 JUDGMENT DATED: 22/12/2025 [2.0] The brief facts leading to ;ling of present appeal is as follows:

[2.1] On 24.01.2016 at about 1.00 p.m., Mayurbhai Rameshbhai Dhadhiya (hereinafter referred to as “deceased”) was riding his Activa Scooter No.GJ-3-CD-2891 in a moderate speed on the correct side of road at Chandreshnagar Main Road, Opp. Backbone Shopping Complex and at that time, driver of Motorcycle came driving his motorcycle in rash and negligent manner with an excessive speed and collided head on with the Activa Scooter being driven by the deceased pursuant to which the deceased sustained serious injuries over his body and died. Therefore, the legal heirs and represent atives of the deceased ;led MACP No.257/2016 seeking compensation.

[2.2] After considering the evidence produced and adduced, the learned Tribunal held the driver of Motorcycle to be 60% and deceased i.e. driver of Activa Scooter to be 40% contributory negligent for the accident and was pleased to award Rs.34,96,8 86/- to the original claimants. Hence, the appellants herein – original claimants have ;led the present appeal challenging the impugned judgment and award to the extent it holds the deceased – dr iver of Activa Sctooer to be 40% negligent and also for enhancemen t of the compensation.

[3.0] Though served, respondent No.1 has chosen not to appear before this Court.

[4.0] Learned advocate Mr. Hemal Shah appearing for the appel lants – original claimants has submitted that the learned Tribunal has committed an error in holding the deceased – driver of Activ a to be 40% contributory negligent though oral evidence tendere d by one of the claimants remained unrebutted and merely based on presumpt ion Page 2 of 11 C/FA/3685/2024 JUDGMENT DATED: 22/12/2025 contributory negligence of the deceased is considered. Learned Tribunal has failed to consider the fact that driver of oLending motorcycle was minor and driving the vehicle without license and hence, sole negligence on the part of motorcycle driver ought to have been held by the learned Tribunal. He has further submitted that learned Tribunal has committed an error in not considering the income tax returns for the years 2015 and 2016 which are produced at Exhs.47 and 49 which shows income of the deceased as Rs.4,74,070/- after deducting income tax of Rs.25,720/-. But the learned Tribunal has ignored the said fact and has considered income tax returns of previous years. He has further submitted that learned Tribunal has committed an error in considering the income of the deceased and even future prospects on the said amount is not awarded. He has further submitted that the learned Tribunal has not awarded appropriate amount under the head of loss of consortium an d hence, just and proper compensation is not awarded. He has therefore requested to allow the present appeal.

[5.0] Learned advocate Mr. Krunal Saksena appearing for the respondent – insurance company has submitted that the learned Tribunal has not committed any error while holding the driver of Activa Scooter to be 40% negligent as both the vehicles dashed with each other head on and that too in market area and hence, the learned Tribunal has rightly held that driver of motorcycle was not solely negligent for the accident as the road where the accident took place was wide enough and if the deceased – driver of Activa would have taken proper care and caution, accident could have been avoided.

Insofar as quantum of compensation is concerned, learned Tribu nal has properly considered the income tax returns and no interference by this Court is required as agricultural income of the deceased even Page 3 of 11 C/FA/3685/2024 JUDGMENT DATED: 22/12/2025 after his demise has not stopped and even other income remain ed as it is and there was no any actual loss of income to the claimant s. He has further submitted that the learned Tribunal has properly considered the future prospective income of the deceased. He has further submitted that learned Tribunal has committed an error in passing the order of ‘pay and recover’ and further submitted that considering deduction of 1/4th towards dependency as claiman t No.4, who happens to be the sister of deceased, was major and married and even otherwise she was dependent on her parents and not the deceased and claimant No.1 – widow of deceased has remarried and hence, learned Tribunal ought to have deducted 1/3rd towards dependency and even otherwise claimant No.4 is not entitled fo r any compensation under the head of loss of consortium. Hence, he has requested to dismiss the present appeal.

[6.0] Having heard learned advocate for the appellants – original claimants and learned advocate for the respondent – insurance company and perusing the record, it appears that factum of ac cident, age of deceased and multiplier applied are not in dispute. So far as contributory negligence on the part of deceased is concerned, the learned Tribunal has considered the FIR (Exh.29), which is ;led by cousin brother of the deceased. The learned Tribunal has re lied on the panchnama (Exh.30) of the place of accident from which it tran spires that the the road upon which accident took place is a main ro ad and is suPciently wide on which two 2-wheelers can easily pass by howeve r, as the driver of respective involved vehicles were not cautious enough, alleged accident has taken place and as the claimant No .2 who deposed before the learned Tribunal is not having personal knowledge of accident, learned Tribunal taking into consideration whatever material or evidence on record, has come to conc lusion that Page 4 of 11 C/FA/3685/2024 JUDGMENT DATED: 22/12/2025 there was head on collision between two vehicles however, if the oLending vehicles would have been extra cautious then th e accident could have been avoided and therefore, the learned Tribunal has rightly come to conclusion that driver of motorcycle was 60% contributory negligent and deceased – driver of Activa was 40% contributory negligent. Hence, in absence of any material qua the claim of appellants that deceased – driver of Activa was not at all negligent for the accident is not accepted and no interference is called for.

[6.1] Now, so far as quantum of compensation is concerned, claimant No.2 has tendered her evidence (Exh.27) wherein she has stat ed that deceased was aged 25 years and was holding degree of mechanical engineering and was doing job work of Kankai Plastic and had also started factory in the name and style as ABC Polyplastic in par tnership and was having 20% share in the same and was earning very good income. The witness has further stated that had the accident not occurred, the deceased could have earned upto Rs.7 lakh per annum in future. Claimant No.2 has produced birth certi;cate (Ex.36) and degree certi;cate (Exh.37) of the deceased and has examined Mr.

Naimish Vallabhbhai Rupareliya (Tax Advocate) at Ex.46 who has supported the case of claimants and produced copy of income tax returns for AYs 2013-14, 2014-15 and 2015-16 at Exhs.47 to 49.

Perusing the income tax returns so produced it appears that deceased was earning Rs.1,96,680/-, Rs.2,44,810/- and Rs.4,99,790/- respectiv ely during the said AYs and had paid Rs.25,720/- towards income tax.

Learned Tribunal has considered mean and average income of the deceased at Rs.3,04,293/- without assigning any reason for the same .

Herein, the accident took place in the year 2016 and though the returns were ;led prior to accident, the learned Tribunal has taken the Page 5 of 11 C/FA/3685/2024 JUDGMENT DATED: 22/12/2025 mean and average of three income tax returns and not consid ered the income of the deceased appropriately. At this stage, it is app osite to refer to the decision of the Hon’ble Supreme Court in the case of Nidhi Bhargava v. National Insurance Co. Ltd. reported in 2025 SCC OnLine 872, whererin the Hon’ble Supreme Court in paragraph 12 has observed and held as under:

“12. Just because on the date of the accident i.e., 12.08.2008, the Ret urn for the Assessment Year 2008-2009 had not been led, cannot disadvantage the appellants, for the reason that the period for which the Return is to be submitted covers the period starting 1 st of April, 2007 and ending 31st March, 2008. Thus, for obvious reasons, the Return would be only for the period 01.04.2007 to 31.03.2008, and date of submission would be post-31.03.2008. No income earned beyond 31.03.2008 would re+ect in the Income Tax Return for the Assessment Year 2008-2009. To reject the Return on the sole ground of its submission after the date of accident alone, in our considered view, cannot be legally sustained.

13. ... In K Ramya v. National Insurance Co. Ltd. , 2022 SCC OnLine SC 1338, after taking note of, inter alia, Ningamma v. United India Insurance Co. Ltd ., (2009) 13 SCC 710, the Court held that the ‘…Motor Vehicles Act of 1988 is a benecial and welfare legislation that seeks to provide compensation as per the contemporaneous position of an individual which is essentially forward-looking. Unlike tortious liability, which is chie+y concerned with making up for the past and reinstating a claimant to his original position, the compensation under the Act is co ncerned with providing stability and continuity in peoples’ lives in the future. …’ Relying on the said decision, in the case of Sayar & Ors. vs.

Ram Karan rendered in SLP (Civil) No. 24501/2025, the Hon’ble Supreme Court in paragraph 12 has observed and held as under:

“12. What +ows from Nidhi Bhargava (supra) is that the Income Tax Returns led after the accident/death can also be taken into consideration for calculation of income to award compensation.

However, having due regard for the Tribunal's well-placed doubts, in so far as returns led for the relevant year, we take a diAerent approach. In the instant case, it cannot be simply assumed that there is no prot accruing from the business of the deceased at the time of t he accident.

To adopt such a presumption would be contrary to the settled p rinciples guiding the assessment of compensation. Rather, the returns for the preceding year or years must be taken as a foundational benchmark, subject to careful judicial examination, recognizing that busi ness prots are seldom static and often exhibit a progressive growth trajectory. Th e Page 6 of 11 C/FA/3685/2024 JUDGMENT DATED: 22/12/2025 exercise thus calls for a fair and reasonable assessment, grounded in available evidence, of the nancial benets that the deceased would have justiably earned but for the untimely accident. In our co nsidered view, in order to award just and fair compensation, the annual inc ome of the deceased is re-assessed at Rs.3,50,000/- per annum.”

Hence, in considered view of this Court, in view of the d ecision of the Hon’ble Supreme Court in the case of Malarvizhi & Ors vs.

United India Insurance Company Limited & Anr . reported in 2020 ACJ SC 526, deducting Rs.25,720/- from Rs.4,99,790/- towards income tax, annual income of the deceased is required to be assessed at Rs.4,74,070/- per annum.

[6.2] Further, considering the fact that the deceased was aged 25 years at the time of accident and was holding a degree of me chanical engineering, 40% addition towards future prospects is requir ed to be assessed which comes to Rs.6,63,698/- (Rs.4,74,070 + 40% of Rs.4,74,070) towards annual loss of dependency. The claimant No.1 i.e. widow of the deceased has remarried is not a ground to refuse her the compensation as after untimely death of husband, remarriage cannot be considered as a taboo to get compensation. In this regard, reference is required to be made to the decision in the case of I?co Tokio General Insurance Co. Ltd. vs. Smt. Bhagyashri Ganesh Gaekwad & Ors. reported in 2023 ACJ 1813 and hence, argument canvassed by learned advocate for the insurance company is not accepted. Further, The deceased was having three dependent s and as appellant No.4, who is married sister of deceased and aged 28 ye ars, she cannot be said to be dependent of the deceased and is de pendent of her parents. It is true that there is no bar to ;le claim petition by the legal representatives of the deceased but so far as depe ndency is concerned, right to ;le claim petition and to claim depende ncy are diLerent aspects. Hence, in considered opinion of this Court, Page 7 of 11 C/FA/3685/2024 JUDGMENT DATED: 22/12/2025 appellant No.4 – original claimant No.4, who is sister aged 28 years of deceased is not entitled to get compensation under the head of future loss of dependency. Therefore, deducting Rs.2,21 ,233/- (1/3rd of Rs.6,63,698/-) towards personal expenses, net future loss of dependency would come to Rs.4,42,465/- (Rs.6,63,698 – Rs.2,21,233 .

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 18 would apply, as rightly adopted by the learned Tribunal. Applying the multiplier of 18, amount under the head of future loss of dependency would come to Rs.79,64,370/- [Rs.4,42,465 x 18 (multiplier)] . Hence, towards future loss of dependency, the appellant Nos.1 to 3 are entitled to amount of compensation of Rs.79,64,370/-.

[6.3] Further, as discussed herein above, appellant No.4 is not entitled to get compensation under the head of loss of co nsortium and therefore, in view of the law laid down by the Hon’bl e Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Ors. reported in 2017 ACJ 2700, the appellants are entitled get Rs.1,45,200/- (Rs.48,400 x 3) under the head of loss of consortium. Further, the learned Tribunal has awarded Rs.16,500/- each under the head of loss of estate and funeral expenses respectively which ought to have been awarded as Rs.18,150/- each under the heads of loss of estate and funeral expenses.

[7.0] Thus, now the appellants – original claimants are entitled to the compensation as under:

Heads Awarded by

Tribunal

Reassessed by this Court

Future loss of Rs.57,51,144/- Rs.79,64,370/- Page 8 of 11 C/FA/3685/2024 JUDGMENT DATED: 22/12/2025 dependency including additional amount of Rs.22,13,226/- Consortium Rs.44,000/- Rs.1,45,200/- including additional amount of Rs.1,01,200/- Loss of Estate Rs.16,500/- Rs.18,150/- including additional amount of Rs.1,650/- Funeral Expenses Rs.16,500/- Rs.18,150/- including additional amount of Rs.1,650/- Total Compensation Rs.58,28,144/- Rs.81,45,870/- including additional amount of Rs.23,17,726/- Final Total after deducting 40% towards negligence of deceased Rs.34,96,886/- Rs.48,87,522/- Thus, ;nal total compensation of Rs.34,96,886/- as awarded by the learned Tribunal is on lower side, for the reasons recorded hereinabove, and therefore, same is required to be enhanc ed to the aforesaid extent i.e. Rs.48,87,522/-. Hence, appellants – original claimants are entitled to get additional enhanced compenation of Rs.13,90,636/- (Rs.48,87,522 – Rs.34,96,886) . Therefore, the impugned judgment and award passed by the learned Tribunal is modi;ed to the aforesaid extent.

[8.0] Insofar as order of ‘pay and recover’ as passed by the learned Tribunal is concerned, in view of decisions of Hon’ble Su preme Court in the case of Anu Bhanvara and Others vs. I?co Tokio General Insurance Company Limited and Others reported in (2020) 20 SCC 632; Sunita & Ors. United India Insurance Co. Ltd. & Ors. as well as in the case of Rama Bai vs. M/s. Amit Minerals reported in 2025 INSC Page 9 of 11 C/FA/3685/2024 JUDGMENT DATED: 22/12/2025 1162, learned Tribunal has not committed any error in passing the order of ‘pay and recover’. Hence, no interference is called for in that regard. Further, it is apposite to refer to the decision o f the Hon’ble Supreme Court in the case of K. Nagendra vs. New India Insurance Co. Ltd. reported in 2025 SCC OnLine SC 2297, wherein the Hon’ble Supreme Court has re-aPrmed the social welfare intent behind t he MV Act. The principle or order of “ To Pay and Recover ” embodies judicial empathy ensuring victims are not left uncompensated du e to dispute between owner and insurer. At the same time, considering the contractual accountability, owner who breaches the condition of insurance policy cannot escape ;nancial responsibility as insurers retain the right to recover paid sum to claimant. The dual b alance of justice for victim and fairness for insurers strenghthens int egrity of Motor Vehicles Accident Compensation system.

[9.0] In wake of aforesaid conspectus, present First Appeal is partly allowed. The respondent No.2 – ILco Tokio General Insurance Company Limited is directed to deposit reassessed enhanced compensation of Rs.48,87,522/- alongwith accrued interest at the rate of 9% per annum, with the learned Tribunal within a period of FOUR WEEKS from the date of receipt of the present judgment. The Impugned judgment and award dated 23.08.2024 by the learned Motor Accident Claims Tribunal (Special), Rajkot in Motor Accident Claim Petition No.257 of 2016 is modi;ed to the aforesaid extent and rest of the impugned judgment and award remains unaltered.

[9.1] After the aforesaid amount of enhanced compensation is deposited by the insurance company, learned Tribunal is dire cted to disburse the entire amount (as awarded by the learned Tribunal)

alongwith the enhanced amount of compensation as well as earlier Page 10 of 11 C/FA/3685/2024 JUDGMENT DATED: 22/12/2025 deposited amount, if any, with accrued interest thereon, if any, to the original claimant, by account payee cheque / NEFT / RTGS, after proper veri;cation and after following due procedure.

[9.2] While making the payment, the Tribunal shall deduct the courts fees, if not paid.

[10.0] It is made clear that the respondent No.2 – insurance company shall be entitled to recover the amount of compensation from the owner of the oLending Motorcycle for the re asons recorded hereinabove following the decision of the Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. vs. Nanjappan reported in (2004) 13 SCC 224 wherein it has been observed and held that if the insurance company satis;es the award, it will not be required to ;le a separate suit or independent proceedings for recovery, as it may recover the excess amount from the owner of the vehicl e in the same execution proceedings.

[11.0] Record and proceedings, if any, be sent back to the 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 22/12/2025 18:45:35