ZALA RANJANBEN NILAYBHAIversusJAYESHKUMAR HARMANBHAI PATHIYAR

    C/FA/3890/2023                               JUDGMENT DATED: 12/02/2026




IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     R/FIRST APPEAL NO. 3890 of 2023


FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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         Approved for Reporting              Yes         No
                                                          √
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                ZALA RANJANBEN NILAYBHAI & ORS.
                                Versus
            JAYESHKUMAR HARMANBHAI PATHIYAR & ORS.
==========================================================
Appearance:
MR NISHIT A BHALODI(9597) for the appellants(s) No. 1,2,3
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
==========================================================
  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                            Date : 12/02/2026
                            ORAL JUDGMENT

[1.0] Present First Appeal under Section 173 of the Motor Vehicles
Act, 1988 (for short “MV Act”) is ?led by the appellants – original
claimants challenging the impugned judgment and award dated
21.12.2021 by the learned Motor Accident Claims Tribunal (Auxi.),
Nadiad (for short “learned Tribunal”) in Motor Accident Claim Petition
No.304 of 2019, whereby the learned Tribunal was pleased to hold
deceased scooterist to be contributory negligent to the extent of 20%
and driver of Maruti Eeco Car to be 80% negligent for the accident and
awarded Rs.12,40,532/- after deducting 20% (towards contributory
negligence of scooterist) from Rs.15,50,664/-.

[2.0] The brief facts leading to ?ling of present appeal is as follows:



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    C/FA/3890/2023                            JUDGMENT DATED: 12/02/2026




[2.1] On 10.02.2019, deceased Nilaykumar Gagubhai Zala (hereinafter
referred to as “deceased”) was plying Activa bearing registration
No.GJ-7-CL-0564 with moderate speed on correct side of the road and
when he reached at the place of accident, driver of Maruti Eeco Car
bearing registration No.GJ-23-BL-7990 came driving his car with full
speed in rash and negligent manner from opposite direction in wrong
side and dashed with the Activa of the deceased as a result of which
the deceased having sustained severe injuries died. Therefore, the
original claimants – legal heirs and representatives of the deceased
?led MACP No.304/2019 seeking compensation of Rs.40 lakh.

[2.2] After considering the evidence produced and adduced, the
learned Tribunal held the driver of Eeco Car to be 80% negligent and
deceased scooterist to be 20% contributory negligent for the accident
and was pleased to award Rs.12,40,532/- after deducting 20%
(towards contributory negligence of deceased scooterist) from
Rs.15,50,664/-. Being aggrieved with the contributory negligence held
by the learned Tribunal on the part of deceased scooterist as well as
on the ground of inappropriate compensation awarded by the learned
Tribunal, the appellants – original claimants have ?led the present
First Appeal.

[3.0] Though served, respondent No.2 has not appeared before the
Court. Heard learned advocate Mr. Nishit Bhalodi for the appellants
and learned advocate Ms. Kirti Pathak for the insurance company.

[4.0] Learned advocate Mr. Nishit Bhalodi appearing for the
appellants – original claimants has submitted that the learned Tribunal
has committed an error in holding the deceased scooterist to be 20%
contributory negligent for the accident in absence of any evidence and
merely based on panchnama (Exh.23) as both the vehicles were

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    C/FA/3890/2023                            JUDGMENT DATED: 12/02/2026




damaged on their front portions, the learned Tribunal has drawn
adverse inference and held the deceased scooterist to be 20%
contributory negligent, which is not permissible. He has further
submitted that merely because there was head on collision between
two vehicles, in absence of evidence of any eye-witness, such type of
apportionment of liability or presumption qua contributory negligence
on the part of deceased scooterist is not permissible. He has relied on
the decision of the Division Bench of this Court in the case of United
India Insurance Co. Ltd. vs. Rehanaben Salimbhai Mukindo and Ors.
reported in 2019 ACJ 2498.

[4.1] So far as quantum is concerned, learned advocate appearing for
the appellants has submitted that the learned Tribunal has not
properly assessed the income of the deceased and even the
compensation under the head of loss of consortium has not been
granted by the learned Tribunal as per the decision of the Hon’ble
Supreme Court in the case of Magma General Insurance Co. Ltd. vs.
Nanu Ram alias Chuhru Ram & Ors. reported in (2018)18 SCC 130.
Hence, he has requested to allow the present appeal.

[5.0] Learned advocate Ms. Kirti Pathak appearing for the respondent
– insurance company has opposed the present appeal on the ground
that the learned Tribunal has not committed any error and on the
contrary learned Tribunal considering the involvement of vehicles and
as there was head on collision, 50-50% apportionment of liability
ought to have been done by the learned Tribunal. She has further
submitted that panchnama clearly depicts that the deceased
scooterist was negligent and he has caused the accident however, the
learned Tribunal has assessed only 20% contributory negligence of the
deceased scooterist instead of 80% and has requested to hold the



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    C/FA/3890/2023                              JUDGMENT DATED: 12/02/2026




deceased scooterist to be 80% negligent for the accident. She has
relied on the decision of the Hon’ble Supreme Court in the case of T.O.
Anthony vs. Karvarnan and Others reported in (2008) 3 SCC 748 and
requested to either dismiss the appeal or to hold both the vehicles
equally negligent for the accident.

[6.0] Having heard learned advocate for the appellants – original
claimants 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 aOdavit of the claimant No.1 – wife of the deceased at
Ex.19. The said witness in her cross-examination has admitted that she
is not an eye-witness. The learned Tribunal has also considered FIR
(Ex.22) and Panchnama (Ex.23) and perusing the said documents, it
appears that both the vehicles were damaged mostly on their
respective front side and hence, it is clear that both the vehicles
collided with each other head on. Perusing the oral as well as
documentary evidence namely aOdavit of claimant No.1, complaint,
panchnama etc., it is an admitted position of fact that the driver of
Eeco Car, who was the best person to depose on oath, did not step
into the witness-box and therefore, the learned Tribunal has drawn
adverse inference against the driver of Eeco Car driver. If the drivers
of both the vehicles would have taken due care then the accident
could have been avoided. It is a cardinal principle of law that a person
driving a motor vehicle on a road must drive the vehicle with
reasonable care, strictly observing the traOc regulations and the rules
of the road and should always be conscious of the motto “expect the
unexpected” and should be apprehensive of a vehicle from the
opposite direction. It is cardinal principle of law that one has to drive
his vehicle in such a fashion that it may not cause any damage/injury to


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    C/FA/3890/2023                             JUDGMENT DATED: 12/02/2026




any property/person but in the case on hand, both the drivers have
failed in their duty. Thus, considering the oral as well as documentary
evidence, the learned Tribunal held the deceased scooterist i.e. driver
of Activa bearing registration No.GJ-7-CL-0564 to be negligent to the
extent of 20% and driver of Maruti Eeco Car bearing registration
No.GJ-23-BL-7990 to be negligent to the extent of 80% in causing the
accident.

[6.1] So far as reliance placed by the learned advocate for the
appellants on the case of Rehanaben Salimbhai Mukindo (Supra) in
support of his submission that the driver of Eeco Car ought to have
been held 100% negligent is concerned, the facts of the said case are
distinguishable with the facts of the case on hand. Considering the
panchnama produced at Exh.23, the learned Tribunal has opined that
both the vehicles were mostly damaged on their front portion and
both the vehicles collided with each other head on. In the case on
hand, the accident took place on Umreth – Sarsa road having width of
24 feet and on both the sides, parapet wall is situated and the middle
portion of the bonnet of Eeco car is damaged and even headlight and
windshield of eeco car is also broken and driver side door glass is also
broken. Thus, there was suOcient chance for the scooterist to keep
aside his vehicle however, the deceased scooterist failed to do so.
Further, in absence of any evidence of eye-witness and claimant No.1
having no personal knowledge about the negligence of driver of
oPending vehicle and considering the fact that driver of oPending
vehicle did not step into the witness box, due to this reason the
learned Tribunal has relied upon the panchnama produced on record
which is an admitted document. The panchnama substantiates the
?nding which is based on admission of the claimant herself which is
required to be considered and relied upon in light of sections 61 and


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    C/FA/3890/2023                                    JUDGMENT DATED: 12/02/2026




58 of the Indian Evidence Act. The learned Tribunal has rightly relied
upon the said panchnama and contents thereof and come to the
conclusion that deceased scooterist was 20% contributory negligent
for the accident. In this regard, reference is required to be made to
the decision of the Hon’ble Supreme Court in the case of Oriental
Insurance Company Limited vs. Premlata Shukla and Others
reported in (2007) 13 SCC 476.

[6.2] In the case of Rehanaben Salimbhai Mukindo (Supra), facts
were diPerent and therein, the luxury bus was in excessive speed
which dashed with the maruti van and considering the panchnama, the
Division Bench come to the conclusion that both the vehicles were
badly damaged but maruti van was lying near the road side petrol
pump. It is true that merely based on the panchnama or position of
vehicle, negligence is not required to be considered. But, in the case
on hand, speci?c evidence is led and claimants have also failed to lead
any evidence by examining any eye-witness to show sole negligence of
the driver of Eeco Car. Therefore, in the considered opinion of this
Court and in view of the decision of the Hon’ble Supreme Court in the
case of T.O. Anthony (Supra), learned Tribunal has rightly come to the
conclusion that driver of both the vehicles were liable to cause the
accident and it was a case of 20% contributory negligence on the part
of the deceased scooterist and 80% on the part of the driver of Eeco
Car. At this stage, it is apposite to refer 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 di erent fact may
      make a world of di erence 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


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    C/FA/3890/2023                                    JUDGMENT DATED: 12/02/2026




      judgment divorced from the context in which the said question arose for
      consideration. (See Zee Tele'lms 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
             signi'cant 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
             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.’”


      In view of above, reliance placed on the decision of Hon’ble
Supreme Court in the case of Rehanaben Salimbhai Mukindo (Supra)
would not avail any assistance to the appellants – original claimants.

[7.0] In order to prove the income of the deceased, claimant No.1 has
stated in her aOdavit that the deceased was doing agricultural work
and animal husbandry work for which the claimants had produced
village abstracts 7/12 and 8-A at Exhs.30 to 42 however, the learned
Tribunal considering oral as well as documentary evidence and the
fact that accident took place in the year 2019, has considered
Rs.8000/- as monthly income of the deceased however, in considered
opinion of this Court, monthly income ought to have been considered
at Rs.8100/- per month and considering the Aadhar Card (Exh.28)
wherein birth date of deceased is shown as 02.06.1987 and accident
occurred on 10.02.2019 and therefore, the deceased was aged 32
years at the time of accident 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 is rightly applied by the learned Tribunal.

[7.1] Further, in view of the decision of the Hon’ble Supreme Court in

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    C/FA/3890/2023                            JUDGMENT DATED: 12/02/2026




the case of National Insurance Company Ltd. Vs. Pranay Shethi
reported in (2017) 16 SCC 680, as the deceased was aged about 32
years at the time of accident i.e. below 40 years and hence, 40%
towards future prospects is required to be added in monthly income
and therefore, future monthly income of deceased is required to be
reassessed at Rs.11,340/- [Rs.8100 + Rs.3240 (40% of Rs.8100)]. It is
not in dispute that the deceased was married and therefore, Rs.3780/-
(1/3 of Rs.11,340) is required to be deducted towards personal
expenditure of the deceased and accordingly, monthly future loss of
dependency would come to Rs.7560/- (Rs.11,340 – Rs.3780) and
applying multiplier of 16, the appellants – original claimants would be
entitled to Rs.14,51,520/- (Rs.7560 x 12 x 16) towards future loss of
dependency.

[7.2] Further, in view of the 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 and Rs.40,000/- towards parental 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.1,45,200/- (Rs.48,400/- x 3).

[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 estate
and funeral expenses.



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    C/FA/3890/2023                                            JUDGMENT DATED: 12/02/2026




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

              Heads                 Amount awarded by      Reassessed by this Court
                                      the Tribunal
   Future loss of                     Rs.14,33,664/-              Rs.14,51,520/-
   dependency                                               including additional amount of
                                                                      Rs.17,856/-
   Loss of Consortium                   Rs.44,000/-                Rs.1,45,200/-
                                        Rs.40,000/-
   Loss of Estate                       Rs.16,500/-                 Rs.18,150/-

   Funeral                              Rs.16,500/-                 Rs.18,150/-

                         Total...     Rs.15,50,664/-              Rs.16,33,020/-
        Deduction (20%) for            Rs.3,10,132/-              Rs.3,26,604/-
     contributory negligence of
             deceased
     Total Compensation               Rs.12,40,532/-             Rs.13,06,416/-
                                                          including additional amount
                                                                 of Rs.65,884/-

       As discussed hereinabove, the ?nding of the learned Tribunal as
regards deceased scooterist to be 20% contributory negligent for the
accident being upheld, the compensation to that extent is required to
be sliced down and hence, the appellants – original claimants are
entitled to get compensation of Rs.13,06,416/- [Rs.16,33,020 –
Rs.3,26,604 (20% of Rs.16,33,020)]. To that extent, the impugned
judgment and award is required to be modi?ed.

[9.0] In wake of aforesaid conspectus, present First Appeal is partly
allowed. The impugned judgment and award dated 21.12.2021 by the
learned Motor Accident Claims Tribunal (Auxi.), Nadiad in Motor
Accident Claim Petition No.304 of 2019 is modi?ed and respondent
No.3 – Insurance Company is directed to deposit reassessed amount of
compensation of Rs.13,06,416/- alongwith accrued interest at the rate
of 7.5% per annum, with the learned Tribunal within a period of four
weeks from the date of receipt of the present judgment.



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[9.1] After the aforesaid amount of reassessed 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 veri?cation and after following due procedure and strictly in
accordance with 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.

                                                                                          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 13/02/2026 10:49:58




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