TAMUBEN RAJKUBHAI BORICHAversusMEHBUBBHAI ISMAILBHAI PATHAN

    C/FA/1771/2022                              JUDGMENT DATED: 08/01/2026




IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     R/FIRST APPEAL NO. 1771 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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               TAMUBEN RAJKUBHAI BORICHA & ORS.
                                Versus
              MEHBUBBHAI ISMAILBHAI PATHAN & ORS.
==========================================================
Appearance:
MR MONARCH K PANDYA(11437) for the Appellant(s) No. 1,2,3,4,5,6,7
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                            Date : 08/01/2026
                            ORAL JUDGMENT

[1.0] Present First Appeal under Section 173 of the Motor Vehicles
Act, 1988 (for short “MV Act”) is filed by the appellants – original
opponent claimants challenging the impugned judgment and award
dated 22.10.2021 passed by the learned Motor Accident Claims
Tribunal (Main), Botad (for short “learned Tribunal”) in Motor Accident
Claim Petition No.7 of 2019, whereby the learned Tribunal was
pleased to partly allow the claim petition and awarded compensation
of Rs.36,40,000/- to the appellants – original claimants i.e. after
deducting 20% towards contributory negligence of the deceased.

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

[2.1] On 29.11.2018, at abour 3.00 hours, Rajkubhai Kanubhai Boricha
(hereinafter referred to as “deceased”) was coming from Rajkot and



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proceeding towards Botad in his Wagon-R Car bearing registration
No.GJ-07-BN-6381 and he was driving his car on the left side of the
road with moderate speed and when he reached on Rajkot-Bhavnagar
Highway, near Bhadar river bridge, one Eicher Truck bearing
registration No.GJ-14-W-1144 came in excessive speed in rash and
negligent manner on wrong side of the road and said Eicher Truck
collided with the Wagon-R car of the deceased due to which the
deceased sustained grievous injuries and succumbed to his injuries.
Therefore, the legal heirs and representatives of the deceased filed
MACP No.7 of 2019 seeking compensation.

[2.2] After considering the evidence produced and adduced, the
learned Tribunal held the driver of Eicher Truck to be 80% negligent
and deceased car driver to be 20% contributory negligent for the
accident and awarded compensation of Rs.45,50,000/- however,
deducting 20% towards contributory negligence of the deceased –
driver of Wagon-R Car, the appellants – original claimants were
declared entitled to get compensation of Rs.36,40,000/-. Being
aggrieved with decision of learned Tribunal holding the deceased
driver of Wagon-R car to be 20% contributory negligent as well as on
the ground of quantum, the appellants – original claimants have filed
the present appeal.

[3.0] Learned advocate Mr. Monarch Pandya appearing for the
appellants – original claimants has submitted that the learned Tribunal
has committed an error in considering contributory negligence on the
part of deceased and in not considering the admitted income of the
deceased which is produced and proved on record and meager
compensation is awarded. He has further submitted that merely
because there was a head-on collision, is not a ground to deduct the



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compensation towards contributory negligence of the deceased. In
this regard, he has relied on the decision of the coordinate Bench of
this Court in the case of United India Insurance Company Limited vs.
Jentibhai Khimjibhai Parmar reported in 2017(0) ACJ 2809;
Samjudaben Wd/o. Afjalkhan @ Kadarkhan Nasratkhan Makrani vs.
Ahmuddin Suleman Muslim reported in 2024 JX (Guj) 1653 and
Nishaben Champakbhai Patel vs. Nandlal T. Nishad reported in
2022(0) AAC 219 and has requested to allow the present appeal.

[4.0] Learned advocate Ms. Kirti Pathak appearing for the respondent
No.3 – insurance company has opposed the appeal on the ground that
the learned Tribunal has not committed any error in holding the
deceased driver of Wagon-R came to be held 20% contributory
negligent after appreciating the evidence on record i.e. complaint
(Exh.32) and panchnama (Exh.33), the learned Tribunal has come to
conclusion that there was head-on collision between the Wagon-R car
and Eicher Truck on narrow bridge and the deceased car driver ought
to have taken extra care and ought to have waited for the Eicher Truck
to pass over the bridge however, the deceased driver of wagon-R car
did not take proper care and was in hurry to cross the bridge and
therefore, the accident took place and the car driver has contributed
in the accident. Hence, the learned Tribunal has not committed any
error in holding the deceased driver of Wagon-R car to be 20%
negligent for the accident.

[4.1]    So far as claim of appellants as regards quantum of
compensation is concerned, she has submitted that the learned
Tribunal properly considered the income-tax returns and has not
committed any error in awarding the compensation. Therefore, she
has requested to dismiss the present appeal.



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[5.0] Having heard learned advocate for the appellants and learned
advocate for the insurance company and perusing the record, it
appears that the learned Tribunal has considered the evidence
produced and adduced by both the parties including the afÏdavit of
the claimant (Exh.21), complaint (Exh.32) and panchnama (Exh.33).
Perusing the said evidence, the learned Tribunal has appreciated the
issue of negligence and come to the conclusion that Eicher Truck
No.GJ-14-W-1144 and Wagon-R Car No.GJ-07-BN-6381 are involved in
the accident and accident took place on the bridge of river Bhadar.
While going through the documentary evidence and panchnama
(Exh.33), it appears that both the vehicles collided head on and
accident took place on the narrow bridge and considering the bigger
size of Eicher truck in comparison to Wagon-R car, apportionment of
negligence is done at 80% on the part of driver of Eicher Truck while
deceased driver of Wagon-R is held 20% contributory negligence on
the ground that drivers of both the vehicles ought to have taken
proper care while passing on the narrow bridge but in the present
case, driver of both the vehicles were negligent and the learned
Tribunal considering 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 has been observed 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 and the learned Tribunal appreciating the panchnama (Exh.33)
has held the driver of bigger size vehicle i.e. Eicher Truck to be 80%
negligent and deceased driver of Wagon-R car to be 20% contributory
negligent considering the principle of res ipsa loquitur as admittedly
the appellants – original claimants are not having personal knowledge.

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Hence, this Court is of considered view that the learned Tribunal has
properly appreciated the evidence and after re-scanning and re-
appreciating the evidence, this Court deems it appropriate to endorse
the finding of the learned Tribunal qua apportionment of negligence
made by the learned Tribunal. Therefore, the decisions relied on by
the learned advocate for the appellants in the case of Jentibhai
Khimjibhai Parmar (Supra); Samjudaben Wd/o. Afjalkhan @
Kadarkhan Nasratkhan Makrani (Supra) and Nishaben Champakbhai
Patel (Supra) are not helpful to the appellants in the peculiar facts of
the present case as in the case on hand, the accident took place on a
narrow river bridge and driver of both the vehicles ought to have
taken extra care of expected and unexpected situation. The learned
Tribunal in the present case has not decided the contributory
negligence based on surmises or conjectures that the accident took
place due to head-on collision between two vehicles. In this regard,
reference is required to be made to the decision of the Hon’ble Apex
Court in the case of Sushil Suri v. Central Bureau of Investigation
and Another reported in (2011) 5 SCC 708, wherein paragraph 32
reads as under:

      “32. It needs little emphasis that even one additional or different fact may
      make a world of difference between the conclusions in two cases and
      blindly placing reliance on a decision is never proper. It is trite that while
      applying ratio, the Court may not pick out a word or sentence from the
      judgment divorced from the context in which the said question arose for
      consideration. (See Zee Telefilms Ltd. V. Union of India, reported in (2005) 4
      SCC 659.) In this regard, the following words of Lord Denning, quoted in
      Haryana Financial Corpn. V. Jagdamba Oil Mills, reported in (2002) 3 SCC
      496, are also quite apt: (SCC p.509, para 22)

               “22. …. ‘Each case depends on its own facts and a close similarity
               between one case and another is not enough because even a single
               significant detail may alter the entire aspect. In deciding such cases,
               one should avoid the temptation to decide cases (as said by
               Cardozo) by matUbuntuching the colour of one case against the


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               colour of another. To decide, therefore, on which side of the line a
               case falls, the broad resemblance to another case is not at all
               decisive.’”

      Hence, the finding of the learned Tribunal as regards
apportionment of negligence does not require any interference by
this Court.

[6.0] In order to prove the income of the deceased, the appellants –
original claimants have examined one Mr. Harsukhbhai Dakiya, LIC
Supervisor, Botad Branch at Exh.24 and have produced income-tax
returns and Form-16A of the deceased and income tax return is
statutory evidence and document, which is required to be considered
and relied upon to award just compensation. Perusing the Form-16A
of the deceased for the AY 2016-17 produced at Exh.28, income of
deceased was Rs.2,90,207/- per annum and for the assessment years
2017-18 and 2018-19, income of the deceased is shown as
Rs.3,56,164/- and Rs.6,26,556/- respectively and therefore, taking
average of three, the learned Tribunal ought to have considered
average income of the deceased as Rs.4,24,309/- per annum i.e.
Rs.35,360/- per month though learned Tribunal has considered per
annum income of the deceased as Rs.2,50,000/-. This Court is of
considered view that once the average income is assessed as
Rs.4,24,309/- per annum as per the documentary and statutory
evidence produced on record, there was no reason for the learned
Tribunal to slice down the said income to Rs.2,50,000/-. In this regard,
reference is required to be made to 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,
wherein it has been held that income tax return is statutory evidence
and document, which is required to be considered and relied upon to
award just compensation. Therefore, this Court is of considered view


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that upto that extent, the learned Tribunal has committed an error.


[6.1] It has come on record by school leaving certificate (Exh.37) that
the deceased at the time of accident was aged 32 years and 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 16 would apply. As the deceased was
self-employed and his monthly income is considered Rs.35,360/-
(Rs.4,24,309/- per annum), 40% i.e. Rs.14,144/- (40% of Rs.35,360/-)
towards future prospect is required to be added and thus, the amount
comes to Rs.49,504/- per month. The deceased was admittedly having
five dependants and therefore, 1/5 is required to be deducted
towards personal expenses and therefore,           monthly loss of
dependancy would come to Rs.39,604/- [Rs.49,504 – Rs.9900/- (1/5th
of Rs.49,504/-). As discussed above, applying multiplier of 16,
appellants – original claimants would be entitled to Rs.76,03,968/-
(Rs.39,604 x 12 x 16) towards future loss of dependancy.

[6.2] Further, the learned Tribunal by relying on the judgment of
Pranay Sethi (Supra) has awarded Rs.16,500/- each under the two
conventional heads of loss of estate and funeral expenditures
however, this Court is of the view that said amount is required to be
reassessed as Rs.18,150/- towards loss of estate and Rs.18,150/-
towards funeral expenses.

[6.3] 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 Jana Bai Wd/o Dinkarrao
Ghorpade & Ors. vs. M/s ICICI Lambord Insurance Company Ltd.
reported in 2022 LiveLaw (SC) 666, the learned Tribunal has



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committed error in awarding Rs.44,000/- towards loss of consortium
to the appellants – original claimants though there are five
dependants 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 loss of consortium. Therefore, the
amount towards loss of consortium is reassessed as Rs.2,42,000/-
(i.e. Rs.48,400/- X 5).

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

           Heads              Amount                 Reassessed by this Court
                           awarded by the
                              Tribunal
     Future loss of          Rs.44,72,832/-              Rs.76,03,968/-
     dependency                            including additional amount of
                                                   Rs.31,31,136/-
     Loss of Estate            Rs.16,500/-           Rs.18,150/-
                                           including additional amount of
                                                     Rs.1,650/-
     Funeral                   Rs.16,500/-           Rs.18,150/-
     Expenses                              including additional amount of
                                                     Rs.1,650/-
     Loss            of        Rs.44,000/-          Rs.2,42,000/-
     Consortium                             including additional amount of
                                                     Rs.1,98,000/-
                Total...     Rs.45,49,832/-         Rs.78,82,268/-
                            Rounded off to including additional amount of
                             Rs.45,50,000/-        Rs.33,32,268/-

[8.0] The      learned      Tribunal     has    considered       20%     contributory
negligence on the part of the deceased – driver of Wagon-R car which
has been upheld by this Court and therefore, 20% amount is required


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to be sliced down from the aforesaid reassessed amount of
compensation and therefore, the appellants – original claimants now
would be entitled to Rs.63,05,815/- [Rs.78,82,268 – Rs.15,76,453/-
(20% of Rs.78,82,268/-) and therefore, the impugned judgment and
award passed by the learned Tribunal is modified to the aforesaid
extent.

[9.0] In wake of aforesaid conspectus, present First Appeal is
allowed. The respondent No.3 – Shriram General Insurance Co. Ltd. is
directed to deposit Rs.63,05,815/- 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 22.10.2021 passed by the
learned Motor Accident Claims Tribunal (Main), Botad in Motor
Accident Claim Petition No.7 of 2019 is modified to the aforesaid
extent and rest of the impugned judgment and award remains
unaltered.

[9.1] After the aforesaid amount of compensation is deposited by the
insurance company, learned Tribunal is directed to disburse the entire
amount with accrued interest thereon, if any, to the original claimants,
by account payee cheque / NEFT / RTGS, after proper verification and
after following due procedure.

[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.
                                                                                          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 09/01/2026 18:08:46

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