High Court of Gujarat
RUPASANGJI RAVAJI THAKORversusTHAKOR KAPURJI MOHANJI
- Disposal
- 44-PARTLY ALLOWED @ FH
- Bench
- HASMUKH D SUTHAR
Holding
The Tribunal’s finding of 20% contributory negligence against the motorcyclist is set aside and compensation is enhanced as calculated by the Court.
Summary
The appellant, a pillion rider injured in a 2013 collision with a tractor, appealed a Motor Accident Claims Tribunal award under Section 173 of the Motor Vehicles Act, 1988, alleging errors in income assessment, future loss calculations, and the Tribunal's apportionment of 20% contributory negligence to the motorcyclist. The High Court held that no evidence proved negligence on the part of the motorcyclist and set aside the Tribunal’s 20% negligence finding, holding the tractor driver solely liable. It recalculated the claimant’s monthly income using the prevailing minimum wage, added a 40% future prospect, and accepted the parties’ agreement on 60% disability. The Court enhanced compensation for pain, shock, suffering, special diet, attendant charges, actual loss of income, and an artificial limb, increasing total compensation from Rs 4,89,487 to Rs 14,05,315. Consequently, the appeal was partly allowed and the insurer was directed to pay the additional amount of Rs 9,15,828 with interest.
Issues considered
- Whether the Tribunal erred in attributing 20% contributory negligence to the motorcyclist.
- Whether the Tribunal correctly assessed the claimant's income in the absence of proof.
- Whether the Tribunal properly accounted for future loss of earnings and disability percentage.
- Whether the compensation for pain, shock, suffering, special diet, attendant charges, actual loss of income and artificial limb was adequate.
Legislation cited
- Motor Vehicles Act, 1988s. 173
Subjects
motor accident claimcompensationcontributory negligenceincome assessmentfuture loss of earningsdisabilityartificial limbSection 173Motor Vehicles Act
Judgment
C/FA/2639/2022 JUDGMENT DATED: 03/02/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2639 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
==============================================
Approved for Reporting Yes No
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RUPASANGJI RAVAJI THAKOR
Versus
THAKOR KAPURJI MOHANJI & ORS.
==============================================
Appearance:
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1
ARUNKUMAR R DAVE(8949) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,4
SHARMISHTA A DAVE(8735) for the Defendant(s) No. 3
==============================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 03/02/2026
ORAL JUDGMENT
1) Feeling aggrieved and dissatisfied with the judgment and award
dated 31.01.2022 passed by learned Motor Accident Claims
Tribunal (Auxi.), Mahesana at Visnagar (which shall hereinafter be
referred to as "the Tribunal" for short), in Motor Accident Claim
Petition No.44 of 2013, the appellant – original claimant has
preferred the present appeal under Section 173 of the Motor
Vehicles Act, 1988 (which shall hereinafter be referred to as "the
Act" for short).
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2) Heard Mr. Yogendra Thakore, learned Advocate for the appellant –
original Claimant and Mr. A. R. Dave, learned Advocate for the
respondent no.3 – Insurance Company. The respondent nos.1 and
2 were duly served but did not appear before this Court. Perused
the original record and proceedings.
3) It is the case of the appellant – original claimant that on
07.03.2013, when the applicant was travelling on his motorcycle
bearing Reg. No.GJ-02-BG-5118 as a pillion rider and which was
driven by one Chelaji Bhaikhaji Thakor in a moderate speed at that
time one Tractor bearing Reg. No.Gj-08-A-4748, came in full speed
in rash and negligent manner and dashed on the rear side of his
motorcycle and thereby the applicant fell down from the motorcycle
and sustained grievous injuries. Therefore, the appellant had filed
MAC Petition seeking compensation, wherein, the learned Tribunal
after appreciating the evidence produced on record the learned
Tribunal has partly allowed the claim petition.
4) Learned Advocate for the appellant has submitted that the learned
Tribunal has committed error by not assessing the income as per
the minimum wages and also erred in not considering future
prospect. He has further submitted that the learned Tribunal has
committed error in considering the contributory negligence and
sliced down the compensation. He has further submitted that the
learned Tribunal has erred in awarding meagre amount towards
pain, shock and suffering, artificial limb though amputation was
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done. Hence, he has requested to allow the present appeal.
5) Learned Advocate for the respondent no.3 – Insurance Company
has opposed the present appeal on the ground that the learned
Tribunal has properly assessed the income of the appellant in
absence of any proof of income and the I-Card of Homeguard is
valid upto 20.12.2008 only whereas the accident took place in the
year 2013. He has further submitted that the learned Tribunal has
properly appreciated the evidence and held that there was
negligence on the part of motorcyclist also and while overtaking the
Tractor the motorcycle was dashed with the bumper of the Tractor
and sustained grievous injury and the alleged incident took place.
Merely the claimant was a pillion rider is not a ground to consider
contributory negligence. The compensation is sliced down on the
ground that he is the owner of the motorcycle and the learned
Tribunal has properly apportioned 20% negligent of motorcycle and
80% of Tractor. He has further submitted that the learned Tribunal
has considered 60% disablement on the basis of consent of the
parties. Therefore, question does not arise to enhance the
compensation and requested to dismiss the present appeal.
6) Having heard the learned Advocates for the respective parties and
going through the record it appears that the learned Tribunal has
considered the evidence on record and relied on the judgment in
the cases of Bimla Devi Vs. H.R.T.C, reported in AIR 2009 SC
2819, and Parmeshwari Devi Vs. Amir Chand, reported in
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2011 (11) SCC 635, and appreciated the evidence. The claimant
has tendered the affidavit wherein all the facts of the accident have
been narrated in the chief-examination at Exhibit 20 and supported
the claim petition and relied on the FIR at Exhibit 23, panchnama at
Exhibit 24, Injury Certificate at Exhibits 26 and 49, Disability
Certificate at Exhibit 50 and charge-sheet at Exhibit 55.
7) So far the issue of negligence is concerned, the learned Tribunal
has appreciated the evidence as per which the claimant was a
pillion rider on motorcycle bearing Reg. No.GJ-02-BG-5118, and
also the owner of the said motorcycle and has not joined rider of
the motorcycle as a party. The learned Tribunal has taken into
consideration that while overtaking the tractor, the rear side of
motorcycle was dashed with the front side of tractor and relied on
panchnama at Exhibit 25. The respondent no.1 driver of the tractor
neither filed written statement nor cross-examined the claimant
before the learned Tribunal and not led any evidence and not
denied his negligence but the learned Tribunal come to the
conclusion that for the claimant this is the case of composite
negligent and motorcyclist was negligent and held 20% negligent.
If we peruse the record and proceeding, wherein, the claimant has
tendered his evidence at Exhibit 20, wherein, he has stated that the
tractor dashed with the motorcycle from back side. In the cross-
examination he has also admitted the fact that his nephew
Chelabhai was riding the motorcycle and he was a pillion rider but
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he has denied that the alleged incident took place due to negligence
on the part of his nephew. The respondent no.3 has nowhere
challenged the factum of accident. Except these no evidence is
produced on record. The learned Tribunal has relied on the version
of one Chelaji who is not examined but stated in the complaint at
Exhibit 23, wherein, also nowhere stated that at the time of
overtaking the tractor, the motorcycle was dashed with the tractor.
There is consistent pleading right from the claim petition to
evidence that he was riding the motorcycle and while he was going
to overtake the tractor at that time the tractor dashed with the
motorcycle from the backside and now it is clearly reveals from the
said version that the motorcycle was dashed with the tractor and
there was negligence on the part of motorcyclist. In absence of any
evidence produced before the Tribunal merely based on
preponderance of probabilities the contributory negligence cannot
be presumed. The negligence is required to be proved on the basis
of preponderance of probabilities as standard. In absence of any
kind of evidence the learned Tribunal has on its own considered
20% negligence on the part of motorcyclist which is required to be
overturned. In this regard reference is required to be drawn in the
case of Shrikrishna Kanta Singh Vs. The Oriental Insurance
Company Ltd., and Ors., Neutral Citation – 2025 INSC 394.
Hence, reasons assigned by the learned Tribunal is not accepted
and perverse findings qua evidence on record. Therefore, up to that
extent the learned Tribunal has committed error in considering 20%
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negligence of the motorcyclist which is required to be quashed and
set aside and interference is required to modify the impugned
judgment to the extent that the respondent no.1 - driver of
Tractor is held sole negligent for the occurrence of the accident.
8) Now coming to the quantum part, as per the law laid down by the
Hon’ble Supreme Court in 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 record then Tribunal has to
consider prevailing rate of minimum wages in absence of evidence
of monthly income of the claimant. In the present case the accident
occurred on 07.03.2013 and during that time the appellant –
injured was working as Homeguard and earning Rs.6,120/- and
also doing cattle feeding work and earning Rs.5,000/- in total was
earning Rs.11,120/- per month, whereas, the Tribunal has assessed
the income of the appellant only Rs.4,000/- per month, however,
as per the rate of minimum wages of the prevalent time of skilled
person is Rs.5,180/- and therefore, the income assessed by the
learned Tribunal is required to be enhanced and the same is
reassessed as Rs.5,200/- per month. It appears that the learned
Tribunal has observed the age of appellant as 34 years at the time
of accident and the learned Tribunal has committed error in not
considering future prospect, however, this Court is of the view that
40% addition towards future prospectus is required to be
awarded. Moreover, the parties have agreed to consider 60%
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disablement body as a whole before the learned Tribunal, therefore,
once the parties have voluntarily agreed to consider 60%
disablement the learned Tribunal has not committed any error in
considering 60% disability of the injured.
9) Further, considering the age of claimant as 34 years at the time of
accident the Tribunal has considered multiplier of 16 which as per
the judgment of the Apex Court in the case of Smt. Sarla Verma
& Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC
121] and National Insurance Company Ltd. Vs. Pranay Sethi,
reported in 2017 ACJ 2700, is just and proper and no interference
of this Court is required. Further, the Tribunal has awarded
Rs.51,059/- towards Medical and transportation expenses which is
just and proper.
10) Therefore, recalculating the income of the claimant as Rs.5,200/-
and future prospect of 40% = Rs.2,080/- which comes to
Rs.7,280/-. Now total income towards future loss of income is
required to be considered as Rs.7,280/- x 12 x 16 x 60%/ 100 =
Rs.8,38,656/-. Therefore, the appellant is entitled to get additional
amount of Rs.3,77,856/- towards future loss of income.
Similarly, considering the nature of injuries and amputation, period
of treatment and recovery, younger age and disablement of the
claimant, this Court is of the view that the learned Tribunal has
committed error while considering pain, shock and suffering as only
Rs.50,000/- which is required to be enhanced to Rs.1,50,000/- i.e.
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additional amount of Rs.1,00,000/- towards pain, shock and
suffering, in view of the ratio laid down in the cases of
K.S.Murlidhara Vs. R. Subbulakshmi, reported in 2024 SCC
Online SC 3385 and Reshma Vs. Dajiba Krishna Lad and Anr.,
reported in 2025 INSC 1320.
The Tribunal has also erred in awarding only Rs.50,000/-
towards special diet and attendant charges which is also required to
be enhanced to Rs.2,00,000/- i.e. additional amount of
Rs.1,50,000/- in view of Reshma (supra).
Further, the learned Tribunal has committed error in not
awarded any compensation towards actual loss of income and
artificial limb and this Court is of the view that actual loss for three
months is required to be awarded and hence Rs.15,600/-
towards actual loss of income and Rs.1,50,000/- for artificial
limb are awarded to the appellant.
11) As discussed above, the appellant – injured – original claimant is
entitled to get compensation computed as under:
Heads Awarded by Reassessed by this Court
Tribunal
Future loss of income Rs.4,60,800/- Rs.8,38,656/-
including additional
amount of Rs.3,77,856/-
Medical and Rs.51,059/- Rs.51,059/-
Transportation
Expenses
Pain, shock and Rs.50,000/- Rs.1,50,000/-
suffering including additional
amount of Rs.1,00,000/-
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Special diet and Rs.50,000/- Rs.2,00,000/-
attendant charges including additional
amount of Rs.1,50,000/-
Actual loss of income NIL Rs.15,600/-
including additional
amount of Rs.15,600/-
Artificial limb NIL Rs.1,50,000/-
including additional
amount of Rs.1,50,000/-
Total compensation Rs.6,11,859/- Rs.14,05,315/-
including total additional
amount of Rs.7,93,456/-
Total awarded Rs.4,89,487/- NIL
amount of (After deducting (as this Court has
compensation 20% self considered 100%
negligence of the negligence of the driver of
appellant) offending Tractor)
Final amount of compensation Rs.14,05,315/-
12) The Hon’ble Supreme Court in case of Nagappa Vs Gurudayal
Singh and others, reported in (2003) 2 Supreme Court Cases
274, has observed that there is no restriction that compensation
could be awarded only up to the amount claimed by the claimant
and in an appropriate case, where from the evidence brought on
record if the Tribunal / Court considers that the claimant is entitled
to get more compensation than claimed, the amount of
compensation more than the claimed amount can be awarded.
13) In view of above, as the Tribunal has awarded total compensation
of Rs.4,89,487/- (after deducting 20% negligence), however, as
discussed above the appellant is entitled to get additional amount
of Rs.9,15,828/- (Rs.14,05,315/- - Rs.4,89,487/-) with
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proportionate costs and interest as awarded by the learned
Tribunal.
14) Hence, present appeal is partly allowed. The judgment and award
dated 31.01.2022 passed by learned Motor Accident Claims
Tribunal (Aux.), Mahesana at Visnagar, in MAC Petition No.44 of
2013 stands modified to the aforesaid extent. Rest of the judgment
and award remains unaltered. The respondent no.3 – Insurance
Company shall deposit the said additional amount of
Rs.9,15,828/- 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.
15) The learned Tribunal is directed to recover or deduct the deficit
court fees on enhanced amount and thereafter disburse the amount
accordingly.
16) Interim application, if any, also stands disposed of.
17) Award to be drawn accordingly.
(HASMUKH D. SUTHAR,J)
ANKIT JANSARI
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: ANKIT YOGESHBHAI JANSARI(HCW0109), ENGLISH STENOGRAPHER GRADE I, at High Court of Gujarat on 04/02/2026 15:51:10
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