RELIANCE GENERAL INSURANCE CO LTDversusKIRANBEN RAJESHBHAI ALIAS RAJUBHAI THUMMAR

    C/FA/530/2022                               JUDGMENT DATED: 11/02/2026




IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/FIRST APPEAL NO. 530 of 2022

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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         Approved for Reporting               Yes       No
                                                         √
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               RELIANCE GENERAL INSURANCE CO LTD
                                Versus
      KIRANBEN RAJESHBHAI ALIAS RAJUBHAI THUMMAR & ORS.
==========================================================
Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
MR ZAFRULLA M PATHAN(2245) for the Defendant(s) No. 5
MR NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3,4
RULE SERVED for the Defendant(s) No. 6
==========================================================
  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                           Date : 11/02/2026
                           ORAL JUDGMENT

[1.0] By way of present First Appeal under Section 173 of the Motor
Vehicles Act, 1988, the appellant – original opponent No.2 has assailed
the impugned judgment and award dated 30.09.2021 passed by the
learned Motor Accident Claims Tribunal (Auxi.), at Dhoraji, District
Rajkot (for short “learned Tribunal”) in Motor Accident Claim Petition
No.33 of 2019, whereby the learned Tribunal has partly allowed the
claim petition in favor of the original claimants and awarded
Rs.39,80,000/- towards compensation to the original claimants with
9% interest per annum from the date of filing of claim petition till its
realization.

[2.0] The brief facts leading to filing of present appeal are as follows:

[2.1] On 02.07.2019, Rajeshbhai Chhaganbhai Thummar (hereinafter


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    C/FA/530/2022                             JUDGMENT DATED: 11/02/2026




referred to as “deceased”) was going on his Motorcycle bearing
registration No.GJ-03-ES-9647 and at about 5.50 p.m., when the
deceased reached at the place of accident, Truck bearing registration
No.GJ-25-U-9928 came from behind with full speed in rash and
negligent manner and hit the motorcycle of the deceased and dragged
the deceased alongwith his motorcycle to some distance as a result of
which the deceased having sustained fatal injuries died. Therefore, the
original claimants – legal heirs and representatives of the deceased
filed the claim petition seeking compensation of Rs.80 lakh.

[2.2] After considering the evidence produced on record by the
respective parties, learned Tribunal has been pleased to hold the
original opponent No.1 – truck driver to be solely negligent for the
accident and awarded compensation of Rs.39,80,000/- to the original
claimants alongwith 9% interest per annum. Hence, present First
Appeal is filed by the appellant – insurance company on the ground
that the learned Tribunal has not considered contributory negligence
of the deceased motorcyclist as well as seeking reduction in
compensation.

[3.0] Though served, respondent No.6 has chosen not to appear
before the Court.

[4.0] Learned advocate Ms. Kirti Pathak appearing for the appellant –
insurance company has submitted that the learned Tribunal has
committed an error in not considering the contributory negligence on
the part of deceased motorcyclist and even the compensation is
awarded on higher side overlooking the evidence and written
submission submitted before the learned Tribunal. She has further
submitted that though the deceased was not wearing protective head
gear while driving the motorcyclist in violation of proviso to Section

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    C/FA/530/2022                              JUDGMENT DATED: 11/02/2026




129 of the MV Act, learned Tribunal has not considered the deceased
motorcyclist to be contributory negligent for the accident. She has
submitted that if the deceased motorcyclist would have worn head
gear, it could have been a case of injury and not a fatal case. She has
argued that even in the post-mortem report, cause of death is stated
“due to head injury”. She has relied on the decision of the Hon’ble
Supreme Court in the case of Ajay Canu vs. Union of India & Ors.
reported in AIR 1988 SC 2027 as well as the decision of Kerala High
Court in the case of Siby Paul vs. Praveen Kumar & Others reported
in 2009 ACJ 2322 and submitted to consider contributory negligence
of the deceased motorcyclist. She has also relied on foreign journal
namely Michigan Auto Law and argued that there is a foreign research
that if motorcyclists wear helmet, it can save lives and considering the
said research also, she has requested to pass some directions in line of
the decision of Kerala High Court to make heltmet wearing mandatory
in order to save lives from the road accidents occurring in our country.

[4.1] She has further argued that the learned Tribunal has awarded
exorbitant compensation without there being any cogent or reliable
evidence to prove the income. She has submitted that the claimants
had submitted income tax returns for the years 2007-08 and 2008-09
but no income tax returns of previous three years of accident were
produced on the record. She has submitted that prior to 11 years
income tax returns were filed which are consisered and learned
Tribunal has committed an error. Further, learned Tribunal has failed
to consider the evidence and cross-examination of the claimant No.1
where she has admitted that she is not having any evidence to show
agricultural income of the deceased though the learned Tribunal has
considered agricultural income and in absence of any material, total
monthly income of deceased is considered at Rs.25,000/-, which is on


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      C/FA/530/2022                             JUDGMENT DATED: 11/02/2026




higher side in absence of any evidence to show that the deceased was
working with Raju Contractor and though income was prior to 10
years, learned Tribunal merely based on presumption accepted the
said version and granted the exorbitant compensation. She has also
relied on the decision of Hon’ble Supreme Court in the case of
National Insurance Company Limited vs. Pranay Sethi and Ors.
reported in 2017 ACJ 2700 more particularly para 17 of the said
judgment and argued that though the discretion vests with the
Tribunal but it is obligatory on the part of the Tribunal to be guided by
the     expression    “just   compensation”.    The   determination          of
compensation has to be on foundation of evidence brought on record.
Herein, in absence of any evidence, the learned Tribunal has awarded
huge compensation with higher rate of interest. Hence, she has
requested to allow the present appeal.

[5.0] Learned advocate Mr. Nishit Bhalodi appearing for respondent
Nos.1 to 4 has opposed the First Appeal by submitting that the
learned Tribunal has not committed any error in not holding the
deceased motorcyclist to be contributory negligent for the accident as
the deceased motorcyclist was dashed by the truck from behind and
hence, question does not arise to consider contributory negligence on
the part of deceased motorcyclist and merely because the deceased
was not wearing head gear is not a ground to hold the deceased
contributory negligent for the accident and such non-wearing of
helmet or violation of MV Act caused the accident. Learned Tribunal
has properly appreciated the evidence and not considered the
contributory negligence on the part of the deceased. He has further
submitted that there is no thumb rule that in all cases evidence of
income is required to be proved. Herein, sufficient material in form of
income tax returns is produced on record for the years 2007-08 and


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    C/FA/530/2022                            JUDGMENT DATED: 11/02/2026




2008-09. Further, the deceased was working in Surat and was earning
and even prior to accident, he has entered into a rent agreement and
was running business and he was paying rent for the said business.
Hence, there is sufficient proof to show that he was engaged in
business in the name and style as Krishna Enterprise. Learned Tribunal
has considered documentary evidences produced at Exhs.20 to 46. He
has further submitted that the deceased was paying tuition of more
than Rs.50,000/- for two children and without any income, it is not
possible to incur such huge expenses. Even, agricultural income is
considered considering 7/12 abstract produced at Exh.47 and further
income from selling groundnuts and bill is produced on record to show
agricultural income and towards supervisory and agricultural income
loss, learned Tribunal has considered Rs.5000/- and Rs.20,000/- from
business income and thus, considered total monthly income of
Rs.25,000/- which does not call for any interference. He has further
submitted that in all cases, it is not necessary to consider minimum
wages as minimum wages is a guiding factor to decide the income if
there is no clue as regards his income. But, herein, positive evidence
has been led by the claimants and hence, this is not a case wherein
minimum wages are required to be considered. He has relied on the
decision of the Hon’ble Supreme Court in the case of Gurpreet Kaur &
Ors. vs. United India Insurance Company Ltd. & Ors. reported in
2022 LiveLaw (SC) 821 and has requested to dismiss the appeal.

[6.0] Having heard learned advocate for the appellant – insurance
company and learned advocate appearing for the original claimants
and perusing the record, it appears that the learned Tribunal has
considered the evidence produced and adduced by both the parties
including the affiadvit of the claimant No.1 (Exh.25), complaint
(Exh.27), panchnama of scene of accident (Exh.29), charge-sheet


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    C/FA/530/2022                             JUDGMENT DATED: 11/02/2026




(Exh.35) and P.M. Note (Exh.30) as well as the decisions of the Hon’ble
Supreme Court in the case of Bimla Devi vs. H.R.S.T.C. reported in
AIR 2009 SC 2819 and Parmeshwari Devi vs. Amir Chand reported in
(2011) 11 SCC 635, wherein it is held that it is settled law that
negligence is required to be proved in claim petition under section 166
of the MV Act only on the touchstone of the preponderance of
probability and not beyond doubt. Further, in the instant case, the FIR
and charge-sheet is filed against the driver of the offending Truck and
hence, the learned Tribunal relying on the decision of coordinate
Bench of this Court in the case of United India Insurance Co. Ltd. vs.
Rehanaben Salimbhai Mukindo and others reported in 2019 ACJ
2498 (Guj. H.C.) has held that adverse inference is to be drawn against
the driver of the offending vehicle, if he does not appear before the
Tribunal to explain the circumstances resulted in motor vehicle
accident. Further, the learned Tribunal has held that if driver of the
offending vehicle is facing trial for causing accident in a rash and
negligent manner, it is prima facie proof of negligence of offending
driver. The learned Tribunal has also relied on the decision of the
Hon’ble Supreme Court in the case of Dinesh Kumar J. vs. National
Insurance company Ltd. reported in 2018 ACJ 535, wherein the
Hon’ble Supreme Court had not admitted the plea of contributory
negligence in absence of any evidence on the part of opponents and
the contributory negligence imposed on the claimant was set aside as
it was being based upon the conjectures. In this regard, reference is
required to be made to the decision of the Hon’ble Supreme Court in
the case of Shrikrishna Kanta Singh Vs. The Oriental Insurance
Company Ltd., and Ors. reported in 2025 INSC 394.

[6.1] Now, so far as the submission of learned advocate for the
insurance company that the deceased motorcyclist was not wearing


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    C/FA/530/2022                                       JUDGMENT DATED: 11/02/2026




head gear at the time of accident and therefore, his negligence ought
to have been considered is concerned, even if the said contention is
believed, merely the fact that the deceased was not wearing a helmet
at the time of the riding the motorcycle does not make him guilty of
contributory negligence without any other material. In this regard, the
learned Tribunal has relied on the decision of the Hon'ble Supreme
Court in the case of Mohammed Siddique & Anr Vs. National
Insurance Company Ltd & Ors. rendered in Civil Appeal No. 79 of
2020, decided on 8th January, 2020 wherein it has been observed that
simply because there is a violation of Section 129 of the MV Act, by a
victim in an accident, there is no presumption that there is
contributory negligence on the part of the person who was not
wearing a helmet. The Hon'ble Supreme Court in the said decision has
observed thus:

      “13) But the above reason, in our view, is flawed. The fact that the deceased
      was riding on a motor cycle along with the driver and another, may not, by
      itself, without anything more, make him guilty of contributory negligence. At
      the most it would make him guilty of being a party to the violation of the law.
      Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the
      driver of a two wheeled motor cycle, not to carry more than one person on
      themotor cycle. Section 194C inserted by the mendment Act 32 of 2019,
      prescribes a penalty for violation of safety measures for motor cycle drivers
      and pillion riders. Therefore, the fact that a person was a pillion rider on a
      motor cycle along with the driver and one more 6 person on the pillion, may be
      a violation of the law. But such violation by itself, without anything more,
      cannot lead to a finding of contributory negligence, unless it is established
      that his very act of riding along with two others, contributed either to the
      accident or to the impact of the accident upon the victim. There must either be
      a causal connection between the violation and the accident or a causal
      connection between the violation and the impact of the accident upon the
      victim. It may so happen at times, that the accident could have been averted or
      the injuries sustained could have been of a lesser degree, if there had been no
      violation of the law by the victim. What could otherwise have resulted in a
      simple injury, might have resulted in a grievous injury or even death due to the
      violation of the law by the victim. It is in such cases, where, but for the
      violation of the law, either the accident could have been averted or the impact
      could have been minimized, that the principle of contributory negligence could
      be invoked. It is not the case of the insurer that the accident itself occurred as
      a result of three persons riding on a motor cycle. It is not even the case of the
      insurer that the accident would have been averted, if three persons were not


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    C/FA/530/2022                                       JUDGMENT DATED: 11/02/2026




      riding on the motor cycle. The fact that the motor cycle was hit by the car from
      behind, is admitted. Interestingly, the finding recorded by the Tribunal that the
      deceased was wearing a helmet and that the deceased was knocked down
      after the car hit the motor cycle from behind, are all not assailed. Therefore,
      the finding of the High Court that 2 persons on the pillion of the motor cycle,
      could have added to the imbalance, is nothing but presumptuous and is not
      based either upon pleading or upon the evidence on record. Nothing was
      extracted from PW3 to the effect that 2 persons on the pillion added to the
      imbalance.

      14) Therefore, in the absence of any evidence to show that the wrongful act on
      the part of the deceased victim contributed either to the accident or to the
      nature of the injuries sustained, the victim could not have been held guilty of
      contributory negligence. Hence the reduction of 10% towards contributory
      negligence, is clearly unjustified and the same has to be set aside.”


      Therefore, the learned Tribunal, in view of the above discussion,
the contention on behalf of the insurance company that as, at the time
of accident, the deceased was not wearing a helmet, negligence
should be counted on his part, is not acceptable.

[6.2] So far as the submission of learned advocate for the insurance
company to issue directions making wearing of helmet to be
mandatory in the State of Gujarat is concerned, it is needless to say
that the Hon’ble Division Bench of this Court in the proceedings of
Writ Petition (PIL) Nos.43 and 50 of 2024, has issued slew of
directions to the State Authorities to strictly implement the traffic
rules and regulations including wearing of helmet / headgears by the
two wheeler riders and therefore, this Court is not required to issue
any such directions as statutory provisions are already there and it is
upon the State Authorities to see to it that strict compliance of such
statutory provisions is achieved.

[7.0] In order to prove the income of the deceased, original claimant
No.1 deposed at Exh.25 before the learned Tribunal wherein she has
stated that the deceased was having agricultural land and by
managing the same, at the time of accident, he was earning


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    C/FA/530/2022                               JUDGMENT DATED: 11/02/2026




Rs.3,00,000/- per annum and was also doing the business of
construction in the name of Krishna Enterprise and was earning
Rs.25,000/- per month. The said witness has produced the rent
agreement (Exh.62) which has been admitted by the Insurance
company. The said rent agreement of 11 months executed on
07.09.2018 shows that the deceased had taken office No.604 at Jimmy
Tower, Opp. Swami Narayan Mandir, at Gondal Road, Rajkot on rent.
The claimants have also produced the documents pertaining to
registration of firm Krishna Enterprise at Exhs.43 and 44 and the rent
receipts at Exh.65 and electricity bills at Exh.66. Further, the claimants
have produced the documents i.e. work order etc. at Exhs. 52, 53, 54,
55, 56 and 57 which shows that earlier the deceased was working in
the name of "Raju Contractor". All these documents had been
admitted by the opponent no.2 . The claimants have also produced the
fee receipts towards fees paid by the deceased for his two sons
produced at Exhs.45 and 46. Further, the claimants have also produced
the income tax return for the assessment years 2007-08 and 2008-09
of the deceased, which shows that annual gross total income of the
deceased was Rs.3,43,097/- and Rs.3,40,229/- respectively. It is
pertinent to mention here that the claimants have not produced any
income tax return after the assessment year 2008-09, so it can be
assumed that after 2008-09, the deceased had not filed any income
tax return. Although it is correct that the claimants have been unable
to produce any documentary evidence which clearly shows the exact
income of the deceased at the time of the accident, but that doesn’t
justify adoption of the lowest tier of minimum wage while computing
his income. From the statement of witnesses, documentary evidence
on record and circumstances of the accident, it is apparent that the
deceased was maintaining a reasonable standard of living for his
family as evidenced by the fact that he was spending about

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    C/FA/530/2022                             JUDGMENT DATED: 11/02/2026




Rs.1,00,000/- annualy, on the education of his two sons. Further, the
insurance company has admitted the fact that the deceased was
running the firm in the name of Krishna Enterprises at Rajkot and the
only defence was that at the time of accident, the deceased was
incurring losses. The income tax returns for the assessment years
2007-08 and 2008-09 as well as the work orders which are produced
before the learned Tribunal at Exhs. 52, 53, 54, etc. shows that the
deceased was earning quite well during that period. In the normal
course of natural events, the income of every person has some
increase with each passing year, but the claimants have not produced
any income tax return of the deceased after the assesment year 2008-
09 and therefore, it can be considered that the deceased had not filed
any income returns after the assessment year 2008-09. Therefore,
considering the standard of living of deceased and the nature of work
he was doing, it is held that the deceased was earning Rs.20,000/ per
month from his firm Krishna Enterprises. As far as the fact that the
deceased was having agricultural land is concerned, that land has still
remained with the family of the deceased, and they have not been
deprived of the income which he used earn from that agricultural land.
However, it was the deceased who was looking after the work of the
farming/harvesting on that land, and now the family has to incur
expenses in deploying a new worker/labourer who will look after the
work of farming/harvesting and therefore, considering that, an
additional amount of Rs. 5,000/ is rightly added in the monthly income
of the deceased. Therefore, in total, the monthly income of the
deceased is rightly assessed by the learned Tribunal at Rs.25,000/-,
which comes to Rs.3,00,000/- per annum to award just compensation.
Hence, keeping in mind the aforesaid facts and in view of the decisions
of Hon’ble Supreme Court in the cases of K Ramya vs. National
Insurance Co. Ltd., reported in 2022 SCC OnLine SC 1338; S Vishnu

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    C/FA/530/2022                              JUDGMENT DATED: 11/02/2026




Ganga v Oriental Insurance Company Limited, reported in 2025 SCC
OnLine SC 182 and Shivaleela and Ors., Vs The Divisional Manager,
United India Insurance Co. Ltd., & Ors., reported in 2025 INSC 357,
yearly income of the deceased in considered opinion of this Court is
rightly assessed as Rs.3,00,000/- and does not call for any interference
by this Court. It is worth to mention that non-production of
documentary evidence as regards income of the deceased is not
necessary always to consider the minimum wages as minimum wages
can only be considered as a guiding factor in absence of clue or proof
of monthly / annual income. But, in the case on hand, as discussed
abvoe, sufficient evidence is produced on record and based on said
evidence, there is no bar to consider the income based on guess work.
In this regard, reference is required to be made to the decision of
Hon’ble Supreme Court in the case of Chandra @ Chanda @
Chandraram vs. Mukesh Kumar Yadav reported in (2022)1 SCC 198

[7.1] Further, the claimants have produced and proved the Driving
License of the deceased at Exh. 37, in which his date of the birth is
shown as 07.09.1978, and hence the deceased was 40 years and 9
months at the time of accident and considering the principle of future
prospective income as laid down by Hon’ble Supreme Court in the case
of Pranay Sethi & Ors. (Supra), 25% towards future prospects is
rightly added in the actual income of the deceased as deceased was
aged more than 40 years. Hence, the annual income of the deceased is
rightly assessed as Rs.3,75,000/- [Actual Income Rs.3,00,000 +
Rs.75,000 (25% of Actual Income)]. Further, so far as deduction
towards personal expenses of deceased is concerned, the learned
Tribunal has rightly deducted 1/3 towards dependency and personal
expenses of the deceased and has rightly awarded Rs.2,50,000/-
towards annual loss of dependency [Rs.3,75,000 – Rs.1,25,000 (1/3rd


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    C/FA/530/2022                                  JUDGMENT DATED: 11/02/2026




of Rs.3,75,000] and as the deceased was aged 41 years at the time of
accident, in view of decision of Hon’ble Supreme Court in the case of
Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr.
reported in (2009)6 SCC 121, has rightly applied multiplier of 15 and
rightly awarded Rs.37,50,000/- (Rs.2,50,000 x 15) towards future loss
of dependency.

[7.2] So far as compensation under the conventional heads of loss of
consortium, loss of estate and funeral expenses is concerned, as per
the law 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, learned Tribunal has rightly awarded Rs.40,000/- towards spousal
consortium and Rs.80,000/- towards parental consortium for claimant
Nos.2 and 3 and Rs.80,000/- towards loss of filial consortium and
Rs.15,000/- each towards loss of estate and funeral expenses is also
rightly awarded by the learned Tribunal, which does not call for any
interference.

[8.0] Hence, the compensation awarded by the learned Tribunal
being just and proper does not call for any interference by this Court
and the learned Tribunal has rightly awarded the compensation as
under:

                   Heads                     Awarded by Tribunal
         Future loss of dependency             Rs.37,50,000/-
         Loss of Spousal Consortium              Rs.40,000/-
         Loss of Parental Consortium             Rs.80,000/-
            to claimant Nos.2 & 3
          Loss of Filia Consortium to            Rs.80,000/-
             parents (40,000 x 2)


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       C/FA/530/2022                                                       JUDGMENT DATED: 11/02/2026




                    Loss of Estate                                      Rs.15,000/-
                   Funeral Expenses                                     Rs.15,000/-
                Total Compensation                                   Rs.39,80,000/-


[9.0] In wake of aforesaid conspectus, First Appeal stands
dismissed. The entire amount of compensation of Rs.39,80,000/-
deposited by the appellant – original                               opponent No.2 – insurance
company with the learned Tribunal alongwith accrued interest
thereon at the rate of 9% per annum be disbursed by the Tribunal to
the claimants, by account payee cheque / NEFT / RTGS, after proper
verification and after following due procedure and strictly in
accordance with the apportionment made by the learned Tribunal.

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

[10.0]            Record and proceedings, if any, be sent back to the
concerned Tribunal, forthwith.
                  Pending civil application, if any, stands disposed of.


                                                                                          Sd/-
                                                                        (HASMUKH D. SUTHAR, J.)
Ajay
 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 12/02/2026 11:25:51




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