DAKSHABEN MAGANBHAI JETHVA WD/O DECD MAGANBHAI GOPALJI JETHVAversusOM PRAKASH NIRMAL YADAV

      C/FA/2641/2022                                  JUDGMENT DATED: 03/02/2026




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2641 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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             Approved for Reporting                   Yes          No

==========================================================
 DAKSHABEN MAGANBHAI JETHVA WD/O DECD MAGANBHAI GOPALJI
                      JETHVA & ORS.
                          Versus
             OM PRAKASH NIRMAL YADAV & ORS.
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1,2,3
RULE SERVED for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
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     CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                 Date : 03/02/2026

                             ORAL JUDGMENT
1.      Feeling aggrieved by and dissatis昀椀ed with the judgment and award
dated 09.09.2020 passed by learned Motor Accident Claims Tribunal (Aux),
Bhuj, (hereinafter referred to as "the Tribunal" for short), in Motor Accident
Claim Petition No.222/2003, the appellants –original claimants preferred
present appeal under Section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as "the Act" for short).

2.      Heard Mr. Hemal Shah, learned Advocate for the appellants – original
Claimants. Though served, none appears for the respondents.

3.      It is the case of the claimants that on 24.06.2002, the deceased along
with other persons were going to Gandhinagar in Maruti Car bearing No.GJ-
12-P-1203 which was driving by Vinod Manilal Veghad on the left side of the
road and when they reached near Nani Chirai village, at that time, one Truck
bearing No.MH-04-AL-5393 came from opposite direction in rash and
negligent manner and dashed with the Maruti car of the deceased. As a
result, the deceased got serious injuries and succumbed to it. Therefore, the


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     C/FA/2641/2022                                 JUDGMENT DATED: 03/02/2026




claim petition was 昀椀led by the legal heirs of the deceased to get
compensation of Rs.70,00,000/- from the opponents. After appreciating the
evidence produced on record, the learned Tribunal awarded compensation
of Rs.10,68,200/- along with cost and interest @ 9 % p.a.

4.     The appeal is 昀椀led on limited ground of quantum and no further issue
qua liability or contributory negligence is challenged. Therefore, learned
counsel for the claimant has mainly argued that, the Tribunal has erred in
considering average income of the deceased as Rs.82,270/- per annum
though the income tax returns are 昀椀led and claimants having su昀케cient
proof of income of the deceased, however, the Tribunal has discarded such
documentary evidence and without assigning any reason, assessed his
annual income as Rs.82,270/- based on last income tax returns. It is also
submitted that the deceased was partner in one Hotel Payal at Anjar and
was earning Rs.25,000/- per annum. He was also serving as a Manager in
Shivam Traders and getting salary of Rs.1,17,000/- per annum and also doing
agriculture work and brokerage work. Thereby, the deceased was having
three sources of income and his overall yearly income was of Rs.1,50,000/-.
Hence, he has prayed to allow the appeal as prayed for.

5.     Having heard the submissions made by learned counsel for the
appellants and perusing the material placed on record, it appears that the
appeal is 昀椀led only on the aspect of quantum and liability is not challenged.
The Insurance Company has not 昀椀led any cross-objection. Hence, this appeal
is required to be decided on the aspect of quantum only. Alleged incident is
not not in dispute. Involvement of the vehicle is also not in dispute. In order
to prove the claim, the claimant No.1 has 昀椀led an A昀케davit at Exh:31, FIR at
Exh:32, Panchnama of scene of incident at Exh:33, Inquest Panchanama at
Exh:49, PM report at Exh:47, partnership deed of Hotel Payal at Exh:38,
salary certi昀椀cate issued by Shivam Traders at Exh:39 and Forms No.2D of
Assessment years of 2000-2001, 2001-2002 and 2002-2003. After
appreciating the evidence produced on record, the Tribunal held the



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     C/FA/2641/2022                                JUDGMENT DATED: 03/02/2026




o昀昀ending vehicle sole negligent 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, without producing any
congent evidence qua the age of the deceased, his years was considered as
42 years as per the claim petition and PM report which is at Exh:47 from
which it reveals that the deceased was 42 years.

6.     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 prevalent minimum wages in absence of evidence of monthly
income of the deceased. But in the present case, the accident occurred in
the year 2002 and during that time, the deceased was doing service in
Shivam Traders as a Manager, having partnership in Hotel Payal at Anjar and
also doing agriculture work and land brokerage, so the deceased having
three sources of income. The Tribunal considering the income tax returns
and Form No.2-D for the year 2001-2002, total income comes to
Rs.1,32,210/- p.a and after deduction of income tax Rs.16,442/-, total income
comes to Rs.1,15,768/-. So average three years income comes to Rs.72,237/-
and for the year 2001-2002, total agriculture income comes to Rs.13,050/-.
So average agriculture income of said 3 years of deceased comes to
Rs.10,033/- and after adding the said average agriculture income into total
average, the actual average income including agriculture income of the
deceased comes to Rs.82,270/-.

7.     Further, the deceased was also earning income from agricultural
activities, and while assessing the income of the deceased, the Tribunal was
required to bear in mind the object of the Motor Vehicles Act, which is a
bene昀椀cial and welfare legislation intended to provide just compensation
based on the contemporaneous position of the individual and is essentially
forward-looking in nature. In light of the decisions of the Hon’ble Supreme
Court in S. Vishnu Ganga v. M/s. Oriental Insurance Co. Ltd., reported in



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     C/FA/2641/2022                                    JUDGMENT DATED: 03/02/2026




2025 INSC 123, K. Ramya v. National Insurance Co. Ltd., reported in 2022
SCC OnLine 1338, and Shivleela & Ors. v. The Divisional Manager, United
India Insurance Co. Ltd., reported in 2025 INSC 357.


8.     So far income part is concerned, oral evidence tendered by the
claimant No.1 is produced on record and as per say of claimant No.1,
deceased was earning Rs.20,000/- p.m as deceased was also doing service as
a Manager in Shivam Traders and further he was doing agriculture work and
overall his average income should be considered as Rs.1,50,000/-.
Partnership deed is produced at Exh:38 and income certi昀椀cate at Exh:39.
Village Form Nos.7/12 and 8A is produced on record. Perusing the aforesaid
documents, the Tribunal has taken into consideration the average income
for last three years i.e. Rs.10,033/- p.m but as per last return, for the year
A.Y 2001-02 annual income of the deceased was Rs.1,32,210/- and deducting
income tax, net amount would come to Rs.1,15,768/-. This Court is of
considered view that there is no rule in all cases that Court has to consider
average income. There is no any gradually increase in the income and there
is no bar to consider the last return which is already inspired con昀椀dence and
was 昀椀led prior to the accident. In this regard, reference may be made to the
decision of the Hon’ble Supreme Court in Malarvizhi & Ors. v. United India
Insurance Company Limited & Anr. , reported in 2020 ACJ 526 (SC) ,
wherein it has been held that income-tax returns are statutory documents
and the income of the deceased ought to be considered as per the ITRs.
Once the Tribunal has accepted that increase in income is but natural,
question does not arise to refuse the income as per the latest income tax
return 昀椀led. In this regard, reference is required to be made 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, wherein 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 Return for
       the Assessment Year 2008-2009 had not been 昀椀led, cannot disadvantage the
       appellants, for the reason that the period for which the Return is to be



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      C/FA/2641/2022                                      JUDGMENT DATED: 03/02/2026




        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昀氀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
        bene昀椀cial 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昀氀y concerned with making up for
        the past and reinstating a claimant to his original position, the compensation
        under the Act is concerned with providing stability and continuity in peoples’
        lives in the future.”

9.      Relying on the said decision, in the case of Sayar Ram vs. Ram Kara
rendered in SLP (Civil) No. 24501/2025, the Hon’ble Supreme Court in
paragraph 12 has observed and held as under:

        “12. What 昀氀ows from Nidhi Bhargava (supra) is that the Income Tax Returns
        昀椀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 昀椀led for the relevant
        year, we take a di昀昀erent approach . In the instant case, it cannot be simply
        assumed that there is no pro昀椀t accruing from the business of the deceased at
        the time of the accident. To adopt such a presumption would be contrary to
        the settled principles guiding the assessment of compensation. Rather, the
        returns fo r the preceding year or years must be taken as a foundational
        benchmark, subject to careful judicial examination, recognizing that business
        pro昀椀ts are seldom static and often exhibit a progressive growth trajectory. The
        exercise thus calls for a fair and reasonable assessment, grounded in available
        evidence, of the 昀椀nancial bene昀椀ts that the deceased would have justi昀椀ably
        earned but for the untimely accident. In our considered view, in order to award
        just and fair compensation, the annual income of the deceased is re-assessed
        at Rs.3,50,000/- per annum.”

        Hence, in considered view of this Court, in view of the decision 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, annual
income of the deceased is required to be assessed at Rs.1,15,768/-. Upto
that extent, the learned Tribunal has committed an error.

10.      Hence, the income of the deceased is reassessed as Rs.1,15,768/- per


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      C/FA/2641/2022                                  JUDGMENT DATED: 03/02/2026




annum. The deceased at the time of accident was 42 years and therefore, in
view of decision of Hon’ble Supreme Court in the case of National
Insurance Company Ltd. Vs. Pranay Shethi reported in (2017) 16 SCC 680,
30% i.e. Rs.34,730/- (30% of Rs.1,15,768/-) towards future prospect is
required to be added and thus, the amount of future annual income of the
deceased would come to Rs.1,50,498/- (Rs.1,15,768 + Rs.34,730). As the
deceased was married and having three dependents, Rs.50,166/- (1/3) is
required to be deducted towards personal expenses and therefore, yearly
loss of dependency would come to Rs.1,00,332/- and as the deceased was
admittedly aged around 42 years, as per the decision of the Hon’ble Apex
Court in the case of Sarla Verma (Smt) & Ors. Vs. Delhi Transport
Corporation & Anr. reported in (2009)6 SCC 121 and National Insurance
Company Ltd. Vs. Pranay Sethi reported in 2017 ACJ 2700, Tribunal has
considered multiplier of 14, which in the considered opinion of this Court is
just and proper and does not call for any interference. In view of above, the
amount under the head of future loss of dependency is required to be
reassessed as Rs.1,00,332/- x 16 = Rs.14,04,648/-.

11.     Further, the Tribunal by relying on the judgment of Pranay Sethi
(supra) 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.6300/- (i.e. Rs.18,150/- - Rs.15,000/- = Rs.3150/-
towards loss of estate and Rs.18,150/- - Rs.15,000/- = Rs.3150/- towards
funeral expenses).

12.     Further, in view of 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 Tribunal has committed

error in awarding Rs.40,000/- under the head of loss of consortium.
Therefore, the amount towards loss of consortium is reassessed as


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       C/FA/2641/2022                                                      JUDGMENT DATED: 03/02/2026




 Rs.96,800/- for 2 claimants).

 13.       As discussed above, the appellants – original claimants are entitled to
 get compensation computed as under:-
                                    Heads                      Awarded by the               Reassessed by
                                                                    Tribunal                    this Court
                     Future loss of dependency                     9,98,214/-                  14,04,648/-
                     Loss of Estate                                 15,000/-                     18,150/-
                     Funeral expenses                               15,000/-                     18,150/-
                     Loss of consortium                             40,000/-                     96,800/-
                     Total compensation                            1068214/-                   15,37,748/-


 14.       As Rs.10,68,214/- is already awarded by learned Tribunal, the
 appellants – original claimant is entitled to get additional amount of
 Rs.4,69,534/- (Rs.15,37,748 – Rs.10,68,214/-) with proportionate costs and
 interest as awarded by the learned Tribunal.

 15.       Hence, present appeal is partly allowed. The judgment and award
 dated 09.09.2020 passed by learned Motor Accident Claims Tribunal (Aux),
 Bhuj, in Motor Accident Claim Petition No.222/2003 stands modi昀椀ed to the
 aforesaid extent. Rest of the judgment and award remains unaltered. It is
 provided that respondent No.3 shall deposit such additional amount of
 Rs.4,69,534/- 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.

 16.       The Tribunal is directed to recover or deduct the de昀椀cit court fees on
 enhanced amount and thereafter disburse the amount accordingly. Award
 to be drawn accordingly.



                                                                          (HASMUKH D. SUTHAR,J)
 SUCHIT

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 04/02/2026 14:24:44



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