VIPULBHAI ASHOKBHAI BAROTversusDEVJIBHAI LAXMANBHAI CHAUDHARY

    C/FA/633/2025                                 JUDGMENT DATED: 29/01/2026




 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/FIRST APPEAL NO. 633 of 2025

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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        Approved for Reporting         Yes      No
                                                 √
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               VIPULBHAI ASHOKBHAI BAROT & ANR.
                              Versus
            DEVJIBHAI LAXMANBHAI CHAUDHARY & ORS.
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Appearance:
MR TIRTH NAYAK(8563) for the appellants(s) No. 1,2
MR KK MAGHNANI(7543) for the Defendant(s) No. 1,2
MS MASUMI V NANAVATY(9321) for the Defendant(s) No. 4
MR K B MAGHNANI(9673) for the Defendant(s) No. 1,2
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 4
NOTICE SERVED for the Defendant(s) No. 3,5,6
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  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                            Date : 29/01/2026
                            ORAL JUDGMENT

      ADMIT. Learned advocate K.B. Maghnani and learned
advocate Mr. Vibhuti Nanavati waive service of notice of Admission
for respondent Nos.1 & 2 and respondent No.4 respectively. With
the consent of learned advocate appearing for respective parties,
present appeal is taken up for final hearing today.

[1.0] By way of present First Appeal under Section 173 of the
Motor Vehicles Act, 1988, the appellants herein – orignial claimants
have assailed the impugned judgment and award dated 06.01.2025
passed by the learned Motor Accident Claims Tribunal (Auxi.), at
Ahmedabad (for short “learned Tribunal”) in Motor Accident Claim
Petition No.120/2021, whereby the learned Tribunal has partly
allowed the claim petition however, held the deceased to be


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    C/FA/633/2025                          JUDGMENT DATED: 29/01/2026




contributory negligent to the extent of 25% and after deducting
the amount of compensation to that extent, learned Tribunal has
awarded Rs.9,40,000/- [Rs.12,53,000 – Rs.3,13,250 (25% of
Rs.12,53,000)] in favor of the appellants – original claimants with
interest at the rate of 9% per annum from the date of claim
petition.

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

[2.1] On 03.03.2021 at about 9.00 p.m., deceased Neelamben
(hereinafter referred to as “deceased”) had gone towards Gayatri
Mandir side by walking and at about 9.15 p.m., while she was
standing on the corner of the road for crossing the road, original
opponent No.1 came driving his Eeco Car bearing registration
No.GJ-01-HY-4752 with full speed in rash and negligent manner and
hit the deceased thereby causing severe injuries to her and
pursuant to the said injuries, deceased died. Therefore, the
appellants – original claimants – legal heirs of the deceased filed
MACP No.120/2021 seeking compensation.

[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 – driver of Eeco Car to be 75% negligent
and deceased to be 25% contributory negligent for the accident
and awarded compensation of Rs.12,53,000/- however, sliced down
the compensation by 25% towards contributory negligence of the
deceased and thereby awarded Rs.9,40,000/- to the appellants –
original claimants. However, present First Appeal is filed by the
appellants – original claimants challenging 25% contributory



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    C/FA/633/2025                          JUDGMENT DATED: 29/01/2026




negligence held on the part of the deceased as well as seeking
enhancement of the compensation.

[3.0] Though served, respondent Nos.3, 5 and 6 have chosen not to
appear before this Court.

[4.0] Learned advocate Mr. Tirth Nayak appearing for the
appellants has submitted that the learned Tribunal has committed
an error in considering 25% contributory negligence on the part of
the deceased in absence of any evidence. In the impugned
judgment, the learned Tribunal has considered contributory
negligence on the part of the deceased at 25% though she was
crossing the road as a pedestrian and learned Tribunal ought to
have considered 100% negligence on the part of the driver of Eeco
Car. He has further submitted that the learned Tribunal ought to
have considered atleast Rs.15,000/- as per the minimum wages
prevailing at the time of accident but the learned Tribunal has
considered only Rs.7000/- as monthly income of the deceased
though the alleged accident took place in the year 2021. He has
further argued that under the conventional heads also, meager
amount is awarded. Hence, he has requested to allow the present
appeal.

[5.0] Learned advocates Mr. K.B. Maghnani for respondent Nos.1
and 2 and learned advocate Mr. Vibhuti Nanavati for respondent
No.4 have opposed the appeal and submitted that the learned
Tribunal has not committed any error in considering 25%
contributory negligence on the part of the deceased on the ground
that the deceased was standing on the middle of the road and
alleged accident took place on State Highway near the divider.



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    C/FA/633/2025                                JUDGMENT DATED: 29/01/2026




However, in absence of any evidence, learned Tribunal has not
committed any error in considering the notional income of the
deceased at Rs.7000/- and even under the conventional heads and
future prospect, compensation is properly considered by the
learned Tribunal. Hence, it is submitted that present appeal be
dismissed.

[6.0] Having heard the learned advocate appearing for the
respective parties and going through the evidence as well as the
record and proceeding, it appears that the learned Tribunal has
considered the oral evidence of claimant No.1 (Exh.34) and to prove
the factum of accident, two witnesses namely Vandanaben
Arunbhai Barot and Prakash Kanubhai Thakor are examined at
Exhs.36 and 45 respectively. The complaint is filed at Exh.42, spot
panchnama at Exh.43 and post-mortem report at Exh.45 and
considering the said evidence, based on the settled principle of 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, learned
Tribunal came to conclusion that driver of Eeco Car was 75%
negligent and deceased herself was 25% contributory negligent for
the accident. As involvement of vehicle and coverage of risk is not
in dispute, no further discussion is required.

[6.1] The first blush of argument of learned advocate Mr. Nayak is
that the learned Tribunal has committed an error in considering
25% contributory negligence on the part of the deceased. The
complaint is produced at Exh.42 before the learned Tribunal. Even,
as per the claim petition and averments made in the afÏdavit
(Exh.45) of Prakash Thakor, deceased was standing for crossing the


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    C/FA/633/2025                             JUDGMENT DATED: 29/01/2026




road and she was waiting on the service road for passing of vehicles
on the road and in the meantime, offending Eeco Car came from
Mahesana side being driven by original opponent No.1 in full speed
and rashly and negligently and the said car hit the deceased but
perusing the cross-examination of the said witness, who is an eye-
witness, it appears that the accident took place due to negligence
on the part of the driver of Eeco Car but prior to offering the
evidence before the learned Tribunal, said witness has not
disclosed anything before the police. The said witness has admitted
that claimant No.1 happens to be his friend and whatever he has
deposed before the learned Tribunal, he has disclosed for the first
time before the learned Tribunal. But, perusing the evidence of the
said witness and spot panchnama, it appears that there is variance
between the pleading and proof. It is true that while deciding
Motor Accident Claims, Court has to decide the same summarily and
based on preponderance of probability but at the same time, the
Tribunal cannot shut its eye while appreciating the evidence. As per
the pleading and spot panchnama, it clearly reveals that the
deceased was standing on the divider. It is needless to say that
divider was on the middle of the road havind width of 2 feet which
clearly transpires from the spot panchnama and Eeco car was
passing on the State Highway and while deceased was trying to
cross the road, at that time, near the divider, the alleged accident
took place. Further, blood stains are also found at the place of
accident and Eeco car is found on extreme left side of the road.
Perusing the sadi fact, it clearly reveals that the accident took place
near the divider on the road and not on the cut of the service road.
Further, the driver of the Eeco car has not stepped into the witness
box. In considered opinion of this Court, thd deceased, who was
major, ought to have taken extra care while crossing the road that

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    C/FA/633/2025                            JUDGMENT DATED: 29/01/2026




too busy State Highway road having heavy trafÏc, which she did not
and therefore, she contributed in the accident and therefore, the
learned Tribunal has not committed any error in considering the
deceased to be 25% contributory negligent for the accident. The
learned Tribunal has rightly appreciated the evidence on record
which is also corroborated by the spot panchnama which clearly
depicts the factum of accident and based on the principle of res ipsa
loquitor no interference is required qua finding of the learned
Tribunal insofar as it holds deceased to be 25% contributory
negligent for the accident. Hence, argument canvassed by the
learned advocate for the appellants is not sustainable.

[7.0] Insofar as quantum is concerned, it is the case of the
appellants that deceased was earning Rs.15,000/- per month by
doing stitching work and preparing food items but no any
documentary evidence in that regard is produced on the record. In
that event, learned Tribunal ought to have taken minimum wages
prevailing in the year 2021 as the accident took place on 03.03.2021
and there was no reason for the learned Tribunal to presume that
the deceased was only a homemaker and therefore, minimum
wages prevailing in the year 2021 ought to have been considered by
the learned Tribunal though the learned Tribunal has considered
notional income of the deceased at Rs.7000/- which requires
interference. The minimum wages prevalent in the year 2021 was
Rs.9000/- for unskilled person and therefore, in view of the decision
of the Hon’ble Supreme Court in the case of National Insurance
Company Ltd. Vs. Pranay Shethi reported in (2017) 16 SCC 680, as
the deceased was aged about 36 years at the time of accident, 40%
increase in monthly income was required to be added towards
future prospects and therefore, future monthly income of deceased


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    C/FA/633/2025                              JUDGMENT DATED: 29/01/2026




is required to be reassessed at Rs.12,600/- [Rs.9000 + Rs.3600
(40% escalation)].

[7.1] Further, as the deceased was aged 36 years at the time of
accident and married, Rs.4200/- (1/3 of Rs.12,600) is required to be
deducted towards personal expenses and therefore, monthly loss
of dependency would come to Rs.8400 (Rs.12,600 – Rs.4200) and
yearly loss of dependency would come to Rs.1,00,800/- (Rs.8400 x
12) and in view of decision of Hon’ble Supreme Court in the case of
Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr.
reported in 2009 ACJ 1298, as the deceased claimant was aged 36
years, applying multiplier of 15, the appellants – original claimants
would be entitled to Rs.15,12,000/- [Rs.1,00,800/- x 15] towards
future loss of dependency.

[7.2] 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 learned Tribunal has
committed error in awarding only Rs.44,000/- towards loss of
consortium, however, in view of above judgments the appellants –
original claimants being legal heirs of the deceased are entitled for
Rs.48,400/- each towards the head of loss of consortium. Therefore,
the amount towards loss of consortium is reassessed as
Rs.96,800/- (Rs.48,400/- x 2).

[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



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    C/FA/633/2025                                             JUDGMENT DATED: 29/01/2026




estate and funeral expenses.

[8.0] Hence,          now       the   claimants        are    entitled     to    get       the
compensation as under:

                    Heads               Awarded by             Reassessed by this Court
                                         Tribunal
              Future loss of           Rs.11,76,000/-                Rs.15,12,000/-
               dependency                                    including additional amount of
                                                                      Rs.3,36,000/-
           Loss of Consortium           Rs.44,000/-                    Rs.96,800
                                                                     (Rs.48,400 x 2)
              Loss of Estate            Rs.16,500/-                   Rs.18,150/-

            Funeral Expenses            Rs.16,500/-                   Rs.18,150/-
                    Total ...          Rs.12,53,000/-                Rs.16,45,100/-
          Deduction (25%) for          Rs.3,13,250/-                 Rs.4,11,275/-
        contributory negligence
              of deceased
          Total Compensation           Rs.9,40,000/-                 Rs.12,33,825/-


      As discussed hereinabove, the deceased has been held 25%
contributory negligent for the accident and therefore, the
compensation to that extent is required to be sliced down and
hence, the appellants – original claimants are entitled to get
compensation of Rs.12,33,825/- [Rs.16,45,100 – Rs.4,11,275 (25%
of Rs.16,45,100)]. To that extent, the impugned judgment and
award is required to be modified.

[9.0] In wake of aforesaid conspectus, First Appeal is partly
allowed and impugned judgment and award dated 06.01.2025
passed by the learned Motor Accident Claims Tribunal (Auxi.), at
Ahmedabad in Motor Accident Claim Petition No.120/2021 is
modified and it is held that the appellants – original claimants are
entitled to get Rs.12,33,825/- as compensation from the



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       C/FA/633/2025                                                       JUDGMENT DATED: 29/01/2026




respondent No.4 – insurance company alongwith accrued interest
at the rate of 9% per annum within a period of FOUR WEEKS from
the date of receipt of this judgment.

[9.1] The Tribunal shall disburse the entire amount of reassessed
compensation alongwith with accrued interest thereon, if any, to
the claimants, by account payee cheque / NEFT / RTGS, after proper
verification and after following due procedure and as per 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 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 30/01/2026 15:24:25




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