THE NEW INDIA ASSURANCE COMPANY LIMITEDversusVARSHABEN W/O DARSHANKUMAR HITESHBHAI PANDYA

    C/FA/2321/2022                              JUDGMENT DATED: 05/02/2026




IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     R/FIRST APPEAL NO. 2321 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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           THE NEW INDIA ASSURANCE COMPANY LIMITED
                              Versus
   VARSHABEN W/O DARSHANKUMAR HITESHBHAI PANDYA & ORS.
==========================================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR CHINTAN S POPAT(5004) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 3,4
RULE UNSERVED for the Defendant(s) No. 1
==========================================================
  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                            Date : 05/02/2026
                            ORAL JUDGMENT

[1.0] This appeal under Section 173 of the Motor Vehicles Act, 1988
(for short “MV Act”) has been preferred by the appellant–original
opponent No.3 – The New India Assurance Company Ltd. against the
judgment and award dated 25.03.2022 passed by the learned Motor
Accident Claims Tribunal (Auxi.), at Kalol, District Gandhinagar (for
short referred to as “learned Tribunal”) in Motor Accident Claim
Petition No.1256 of 2014 under Section 166 of the MV Act wherein
the learned Tribunal has partly allowed the claim petition of
respondent Nos.1 and 2 and awarded compensation of Rs.35,84,800/-
with interest at the rate of 9% per annum from the date of the claim
petition.

[2.0] Though served, none appeared for respondent Nos.3 and 4.



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Heard learned advocate Mr. Rathin P. Raval for the appellant.


[3.0] The brief facts of the present appeal are that on 15.04.2018,
Darshan Hiteshbhai Pandya was driving Motorcycle No.GJ-18-CQ-9882
and claimant No.1 was pillion rider and at about 11.45 a.m., when they
reached at the place of accident, driver of Eicher Truck No.GJ-18-AT-
8649 came driving his Truck with full speed in rash and negligent
manner and dashed on front side of the motorcycle and due to the
impact, deceased and claimant No.1 fell down and wheel of Eicher
Truck rolled over the head and chest of Darshan Pandya (hereinafter
referred to as “deceased”) and he died on the spot, while claimant
No.1 sustained injuries on various parts of her body. Pursuant to the
accident, oKence being I-CR No.38/2018 came to be registered with
Pethapur Police Station. The original claimants being legal heirs and
representatives of the deceased Lled MACP No.30/2018 seeking
compensation.


[3.1] After appreciating the evidence, the learned Tribunal partly
allowed the claim petition by holding 80% negligence on the part of
driver of Eicher Truck and 20% contributory negligence on the part of
deceased motorcyclist and awarded the compensation. Howover, the
appellant herein – insurance company has Lled the present appeal on
the ground that the learned Tribunal has awarded exorbitant
compensation to the claimants.


[4.0] Learned advocate Mr. Rathin P. Raval appearing for the
appellant has submitted that the learned Tribunal has committed an
error in awarding exorbitant compensation to the claimants and
committed an error in considering the income of the deceased at


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    C/FA/2321/2022                               JUDGMENT DATED: 05/02/2026




Rs.2,61,000/- per annum though there was no any evidence or bank
account statement to that eKect. He has further submitted that
income tax returns for the AYs 2015-16, 2016-17 and 2017-18 were
Lled which raise doubt and same were Lled with a view to show higher
income of the deceased, only with a view to get higher amount of
compensation and hence, he has requested to consider minimum
wages. He has further submitted that wife of deceased has re-married
and hence, deduction towards dependency ought to have been done
at 1/2 instead of 1/3 and hence, he has requested to allow the present
appeal.


[5.0] Herein, there is no challenge to the negligence and only
quantum of compensation is disputed and as involvement of vehicle,
coverage of risk is not in question, present appeal is considered in
narrow compass.


[6.0] Having heard learned advocate appearing for the appellant and
perusing the evidence on record, it appears that the learned Tribunal
has considered the evidence produced and adduced by both the
parties including the chief examination of claimant No.1 (Exh.24),
complaint (Exh.28) and panchnama of scene of accident (Exh.29) and
in view of 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, the learned Tribunal has come to conclusion that driver of
Eicher Truck was solely negligent for the accident.


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   C/FA/2321/2022                               JUDGMENT DATED: 05/02/2026




[6.1] The main ground raised by the appellant is that income tax
returns produced on record by the claimants ought to have been
discarded and learned advocate for the appellant has raised doubt qua
income tax returns produced before the learned Tribunal at Exhs.35 to
37 for the AYs 2015-16, 2016-17 and 2017-18. If we peruse the income
tax returns, it appears that income of the deceased in the respective
income tax returns is shown as Rs.2,52,013/-, Rs.2,63,250/- and
Rs.2,69,050/- respectively for the assessment years 2015-16, 2016-17
and 2017-18 and therefore, the learned Tribunal has considered
average yearly income of the deceased at Rs.2,61,000/-, which in
considered opinion of this Court is just and proper. 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
      led, cannot disadvantage the appellants, for the reason that
     the period for which the Return is to be 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,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 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,y concerned with making up for the past and reinstating


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    C/FA/2321/2022                              JUDGMENT DATED: 05/02/2026




      a claimant to his original position, the compensation under
      the Act is concerned with providing stability and continuity in
      peoples’ lives in the future. …’

        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 ,ows from Nidhi Bhargava (supra) is that the
      Income Tax Returns 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 led for the relevant
      year, we take a diBerent approach. In the instant case, it
      cannot be simply assumed that there is no pro 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 for the preceding year or years must be taken as a
      foundational benchmark, subject to careful judicial
      examination, recognizing that business pro 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 nancial bene ts that
      the deceased would have justi 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 properly assessed at
Rs.2,61,000/-.

[6.2] The deceased at the time of accident was in the age group of 21
to 25 years and therefore, in view of decision of Hon’ble Supreme
Court in the case of National Insurance Company Ltd. Vs. Pranay


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    C/FA/2321/2022                            JUDGMENT DATED: 05/02/2026




Shethi reported in (2017) 16 SCC 680, 40% i.e. Rs.1,04,400/- (40% of
Rs.2,61,000/-) towards future prospect is appropriately be added and
thus, the amount of future annual income of the deceased comes to
Rs.3,65,400/- (Rs.2,61,000 + Rs.1,04,400). Learned advocate for the
appellant has submitted that as claimant No.1 after the demise of
deceased has married again, learned Tribunal ought to have deducted
1/2 towards personal expenses of the deceased. It is needless to say
that 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 as the deceased was married,
question does not arise to consider deduction of 1/2 merely because
claimant No.1 i.e. widow of deceased married again and she is not
entitled to get any compensation or 1/2 deduction is required to be
done. As there were more than one dependents and deceased was
married, deduction of 1/3 is appropriately done by the learned
Tribunal and therefore, the argument canvassed by the learned
advocate for the appellant is not acceptable. Hence, the learned
Tribunal has rightly deducted 1/3 for calculating future loss of
dependency in view of ratio of Bombay High Court in the case of
Nandini Patil vs. Subbarao & Others reported in 2020 ACJ 1206
(Bombay). Hence, the learned Tribunal has rightly awarded
Rs.43,84,800/- towards future loss of dependency after deducting
Rs.21,92,400/- (1/3) from total amount of Rs.65,77,200/- [Rs.3,65,400 x
18 (multiplier)] which in the considered opinion of this Court is just
and proper and does not call for any interference.

[6.3] Further, the learned Tribunal by relying on the judgment of
Hon’ble Supreme Court in the case of Pranay Sethi has awarded
Rs.16,500/- each under the two conventional heads of loss of estate
and funeral expenditures which in considered opinion of this Court is


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    C/FA/2321/2022                                        JUDGMENT DATED: 05/02/2026




just and proper. Further, the learned Tribunal has awarded Rs.44,000/-
towards loss of consortium which in considered opinion of this Court
is just and proper in view of the decisions of 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. Hence, insofar as quantum of
compensation is concerned, no interference is called for at the hands
of this Court.

[7.0] This Court has taken note of the fact that the learned Tribunal
has considered 20% contributory negligence on the part of deceased
motorcyclist         and   and   therefore,        the   total   compensation          of
Rs.43,84,800/- is appropriately sliced down by Rs.8,76,960/- [20%
towards contributory negligence of the deceased motorcyclist) and
therefore, the appellants – original claimants have been awarded total
compensation of Rs.35,84,840/- which is maintained.


[8.0] In wake of aforesaid conspectus, present First Appeal stands
dismissed. The Impugned judgment and award dated 25.03.2022
passed by the learned Motor Accident Claims Tribunal (Auxi.), at Kalol,
District Gandhinagar (for short referred to as “learned Tribunal”) in
Motor Accident Claim Petition No.1256 of 2014 hereby conLrmed.

[9.0]          The learned Tribunal is directed to disburse the amount of
compensation with accrued interest thereon as awarded by the
learned Tribunal and as per the apportionment made by the learned
Tribunal, to the original claimants, by account payee cheque / NEFT /
RTGS, after proper veriLcation and after following due procedure.



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       C/FA/2321/2022                                                       JUDGMENT DATED: 05/02/2026




[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 06/02/2026 17:10:26




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