MAKVANA HARGOVANBHAI TEJABHAIversusKUMBHAR PRAKASH SOMABHAI

      C/FA/3842/2025                                  JUDGMENT DATED: 27/01/2026




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3842 of 2025


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

==============================================

              Approved for Reporting                  Yes          No

==============================================
             MAKVANA HARGOVANBHAI TEJABHAI & ORS.
                              Versus
               KUMBHAR PRAKASH SOMABHAI & ORS.
==============================================
Appearance:
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1,2,3,4,5
CHETANKUMAR V DARJI(9309) for the Defendant(s) No. 6
MS DIMPLE A THAKER(6838) for the Defendant(s) No. 7
NOTICE SERVED for the Defendant(s) No. 1,2,3,4,5
==============================================

     CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                              Date : 27/01/2026

                               ORAL JUDGMENT

              Learned Advocate Mr. S. B. Parikh, states that he has
         instructions to appear on behalf of the respondent no.5 and
         thereby, seeks permission to file his Vakalatnama. The Registry is
         directed to accept the Vakalatnama.

              With consent of learned Advocates for respective parties the
         present appeal is taken for final hearing.

1)      Feeling aggrieved and dissatisfied with the judgment and award

         dated 10.12.2021 passed by learned Motor Accident Claims

         Tribunal (Auxi.), Mahesana (which shall hereinafter be referred to

         as "the Tribunal" for short), in Motor Accident Claim Petition



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        No.254 of 2018, the appellants – original claimants have preferred

        the present appeal under Section 173 of the Motor Vehicles Act,

        1988 (which shall hereinafter be referred to as "the Act" for short).


2)     Heard learned Advocate Mr. Yogendra Thakore, for the appellants –

        original Claimants, learned Advocate Mr. S. B. Parikh for the

        respondent no.5 – insurance Company, learned Advocate Mr. C. V.

        Darji, for respondent no.6 and learned Advocate Ms. D. A. Thaker

        for respondent no.7 – Insurance Company. Perused the original

        record and proceedings.


3)     It is the case of the appellants that on 16.04.2018, the deceased

        Amitkumar Hargovanbhai Makvana (who shall hereinafter be

        referred to as “deceased”) by sitting in Rikshaw bearing Reg.

        No.GJ-02-VV-9290 was going from Palavasana cross road towards

        village Boriyavi, the said rickshaw was going towards village

        Boriyavi through signboard of village Mevad, near Government

        tube-well, one Tractor bearing No.GJ-02-CL-2724, attached with

        trolley bearing Reg. No.GRW-5896 came from opposite side in rash
        and negligent manner and dashed with Rickshaw. Due to which

        they sustained severe injuries on abdomen and face and taken to

        Government Hospital where Doctor declared him dead. Therefore,

        the appellants had filed MAC Petition seeking compensation,

        wherein, the learned Tribunal after appreciating the evidence

        produced on record has allowed the claim petition.


4)     The learned Advocate for the appellants has submitted that the

        learned Tribunal has committed error in considering the income of

        the deceased as Rs.4,500/- whereas the deceased was earning

        Rs.8,000/- per month by service in Vimal Dairy and agricultural

        activities. He has further submitted that the learned Tribunal also



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     C/FA/3842/2025                              JUDGMENT DATED: 27/01/2026




        erred in awarding only Rs.40,000/- towards loss of consortium.

        Hence, he has requested to allow the present appeal.


5)     Learned Advocates for the respective Insurance Companies have

        submitted that the learned Tribunal has not committed any error in

        appreciating the evidence produced on record and awarded just and

        proper compensation to the appellants in absence of evidence and

        material on record. They have further submitted that the deceased

        was bachelor at the time of accident and hence ½ deduction

        towards personal and living expenses of the deceased is required to
        be considered and the married sisters of the deceased are not

        entitled for any compensation under the conventional heads.

        Hence, they have requested to dismiss the present appeal.


6)     Having heard the learned Advocates for the parties and going

        through the record it appears that the learned Tribunal has

        considered the evidence on record and relied on the judgment in

        the cases of Bimla Devi Vs. H.R.T.C, reported in AIR 2009 SC

        2819, and Parmeshwari Devi Vs. Amir Chand, reported in

        2011 (11) SCC 635, and appreciated the evidence based on

        preponderance of probabilities. The claimant no.1 has tendered the

        affidavit at Exhibit 24 wherein all the facts of the accident have

        been narrated in the chief-examination and supported the claim

        petition and relied on the complaint at Exhibit 37, panchnama at

        Exhibit 38, inquest panchnama at Exhibit 39, PM Note at Exhibit 40

        and charge-sheet at Exhibit 53. 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. In the present case the accident


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        occurred on 16.04.2018 and during that time the deceased was

        doing job at Vimal Dairy and also doing agricultural labour work

        and used to earn Rs.8,000/-, whereas, the Tribunal has assessed

        the income of the deceased as Rs.4,500/- per month as no

        evidence is produced on record by the appellants, however, as per

        the rate of minimum wages of the prevalent time the income of the

        deceased is required to be enhanced and hence, the income of the

        deceased is reassessed as Rs.8,400/- per month. Further, as the

        deceased was aged 21 years at the time of accident on the basis of

        which the learned Tribunal has considered future prospective

        income as 40% and as the deceased was bachelor 1/2 deduction

        towards personal and living expenses of the deceased and

        multiplier of 18 were considered by the learned Tribunal as per the

        judgment of the Apex Court in the case of Sarla Verma (Smt) &

        Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC

        121] which are just and proper.


7)     Therefore, recalculating the income of the deceased as Rs.8,400/-

        and future prospect of 40% = Rs.3,360/- which comes to

        Rs.11,760/- and 1/2 amount is required to be deducted towards

        personal      living   expenses   of   the   deceased   which     comes      to

        Rs.5,880/- and the net amount comes to Rs.5,880/-. In view of

        above the amount under the head of loss of future dependency

        income is required to be reassessed as Rs.5,880/- x 12 x 18 =

        Rs.12,70,080/-. Therefore, the appellants are entitled to get

        additional amount of Rs.5,89,680/- towards the head of loss of

        future dependency.


8)     Further, the learned Tribunal by relying on the judgment of

        National Insurance Company Ltd. Vs. Pranay Sethi, reported

        in 2017 ACJ 2700, has awarded total Rs.70,000/- under the three


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         conventional heads, however, this Court is of the view that amount

         is required to be reassessed as Rs.18,150/- towards loss of estate,

         Rs.18,150/- towards funeral expenses. Therefore, the appellants –

         original claimants are entitled for additional amount of Rs.6,300/-

         (i.e. Rs.18,150/- - Rs.15,000/- = Rs.3,150/- towards loss of estate

         and Rs.18,150/- - Rs.15,000/- = Rs.3,150/- towards funeral

         expenses).


9)      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.40,000/- towards loss of

         consortium, however, in view of above judgments the appellant

         nos.1 and 2 being parents of the deceased they are entitled for

         Rs.48,400/- each towards filial consortium under the head of loss of

         consortium, whereas, the appellant nos.3 to 5 being brother and

         sisters of the deceased are not entitled for any amount towards loss

         of consortium. Therefore, the amount towards loss of consortium is

         reassessed as Rs.96,800/- (i.e. Rs.48,400/- X 2). Therefore, the

         appellants are entitled for additional amount of Rs.56,800/- under

         the head of loss of consortium.


10)     As discussed above, the appellants – original claimants are entitled

         to get compensation computed as under:


                   Heads         Awarded by       Reassessed by this Court
                                  Tribunal
               Loss of future    Rs.6,80,400/-        Rs.12,70,080/-
                dependency                          including additional
                                                  amount of Rs.5,89,680/-




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               Loss of estate             Rs.15,000/-                Rs.18,150/-
                                                                 including additional
                                                                amount of Rs.3,150/-
             Funeral expenses             Rs.15,000/-                Rs.18,150/-
                                                                 including additional
                                                                amount of Rs.3,150/-

            Loss of consortium            Rs.40,000/-              Rs.96,800/-
                                                               including additional
                                                              amount of Rs.56,800/-
                                                                (Rs.48,400/- X 2)

            Total compensation           Rs.7,50,400/-            Rs.14,03,180/-
                                                             including total additional
                                                             amount of Rs.6,52,780/-



11)     In view of above, as the Tribunal has awarded total compensation

         of Rs.7,50,400/-, however, as discussed above the appellants are

         entitled      to     get       additional       amount      of     Rs.6,52,780/-

         (Rs.14,03,180/- - Rs.7,50,400/-) with proportionate costs and

         interest as awarded by the learned Tribunal.


12)     So far negligence part is concerned, in First Appeal No.288 of 2022

         preferred by the National Insurance Company Ltd., the findings qua

         apportionment of the negligence to the extent of 80% of the driver

         of the Tractor and Trolley and 20% of driver of Rickshaw have been

         confirmed by the Co-ordinate Bench of this Court and the same

         attained      finality   and    the   appeal     was     dismissed.     Hence,      no

         interference on negligence part of offending vehicles is required.


13)     Moreover, as present appeal was preferred belatedly, the appellants

         had filed Civil Application No.3617 of 2025, wherein, vide order

         dated 06.10.2025, the Co-ordinate Bench has been pleased to pass

         order condoning the delay of 1194 days subject to the condition

         that the claimants shall not be entitled for any interest, on the

         enhanced amount of compensation for the delayed period, in case,



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          the appeal for enhancement is allowed. Accordingly, the appellants

          are not entitled for interest on the enhanced amount for aforesaid

          period of delay.



14)       Hence, present appeal is partly allowed. The judgment and award

          dated 10.12.2021 passed by learned Motor Accident Claims

          Tribunal (Aux.), Mahesana, in MAC Petition No.254 of 2018 stands

          modified to the aforesaid extent. Rest of the judgment and award

          remains unaltered. The respondent nos.5 and 7 - Insurance

          Companies              shall       deposit          the       said       additional          amount            of

          Rs.6,52,780/- along with interest as per their respective ratio 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.



15)       The learned Tribunal is directed to recover or deduct the deficit

          court fees on enhanced amount and thereafter disburse the amount

          accordingly.



16)       Award to be drawn accordingly.




                                                                             (HASMUKH D. SUTHAR,J)

ANKIT JANSARI
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: ANKIT YOGESHBHAI JANSARI(HCW0109), ENGLISH STENOGRAPHER GRADE I, at High Court of Gujarat on 27/01/2026 18:20:58




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