UNITED INDIA INSURANCE COMPANY LIMITEDversusBHARATBHAI MANUPRASAD UPADHYAY

    C/FA/3904/2025                                    JUDGMENT DATED: 06/01/2026




 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/FIRST APPEAL NO. 3904 of 2025
                                  With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
                   In R/FIRST APPEAL NO. 3904 of 2025

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
==========================================================
        Approved for Reporting         Yes       No
                                        √
==========================================================
            UNITED INDIA INSURANCE COMPANY LIMITED
                              Versus
           BHARATBHAI MANUPRASAD UPADHYAY & ORS.
==========================================================
Appearance:
MS MASUMI V NANAVATY(9321) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
ABATED for the Defendant(s) No. 2
MR NISHIT A BHALODI(9597) for the Defendant(s) No. 3,4,5
NOTICE SERVED for the Defendant(s) No. 1,6,7
==========================================================
  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                              Date : 06/01/2026
                              ORAL JUDGMENT

       ADMIT. Learned advocate Mr. Nishit Bhalodi waives service of
notice of Admission. With the consent of learned advocates
appearing for respective parties, present appeal is taken up for 9nal
hearing today.

[1.0] This appeal under Section 173 of the Motor Vehicles Act,
1988 has been preferred by the appellant–original opponent No.2 –
United India Insurance Company Ltd. against the judgment and
award dated 17.02.2025 passed by the learned Motor Accident
Claims Tribunal (Auxi.), at Halol, District Panchmahals (for short
referred to as “learned Tribunal”) in Motor Accident Claim Petition


                                    Page 1 of 8
    C/FA/3904/2025                            JUDGMENT DATED: 06/01/2026




No.2 of 2019 9led under Section 166 of the Motor Vehicles Act,
1988 (for short referred to as “MV Act”) whereby the learned
Tribunal has partly allowed the claim petition of respondent Nos.3
to 7 herein – original claimants and awarded compensation of
Rs.22,03,800/- with interest at the rate of 6% per annum from the
date of 9ling of the claim petition.

[2.0] The brief facts of the claim petition are that the accident took
place on 21.08.2017, when Ghanshyambhai Bariya i.e. the driver of
Tavera Car No.GJ-17-BA-3487 (hereinafter referred to as “oJending
vehicle”) was driving the vehicle in rash and negligent manner and
at around 14.00 hours, when the oJending vehicle was passing
through Dahod-Limkheda road, at that time, the deceased rammed
the vehicle in a stationary tanker, resulting into death of the driver
of oJending vehicle (hereinafter referred to as “deceased”) and
serious injuries was caused to other passengers sitting in the
oJending vehicle. The legal heirs and representatives of the
deceased preferred the captioned MACP under section 167 of the
MV Act claiming compensation of Rs.25,00,000/- and the learned
Tribunal awarded the aforesaid amount of compensation.


[3.0] Learned advocate Mr. Vibhuti Nanavati appearing for the
appellant has strenuously argued that the learned Tribunal has
committed an error in not appreciating the evidence produced on
record and erred in deciding the issue of liability on the part of the
appellant – insurance company. The learned Tribunal has also erred
in not considering that the claim petition was 9led under Section
167 of the MV Act and deceased driver of oJending vehicle himself
was held sole tort feasor in causing the accident whereby he cannot


                               Page 2 of 8
    C/FA/3904/2025                            JUDGMENT DATED: 06/01/2026




take advantage of his own wrong and learned Tribunal ought to
have considered that the owner of oJending vehicle had not paid
the additional premium under the head of ‘legal liability towards
the paid driver’ and appellant – insurance company was wrongly
held liable to pay the compensation under Section 147 of the MV
Act. He has further submitted that the learned Tribunal has erred in
relying upon Clause “PA Cover Paid Driver” IMT-17 i.e. additional
premium for compulsory PA cover to owner-driver as in GR 36 shall
apply. Hence, he has requested to allow the present appeal and
alternatively, without admitting the liability, he has argued that the
learned Tribunal ought to have calculated the compensation as per
Section 4 of the Workmen Compensation Act, 1923 relying upon
the prevailing minimum wages.


[4.0] Learned advocate Mr. Nishit Bhalodi appearing for the
respondent Nos.3 to 5 has opposed the present appeal by
submitting that the learned Tribunal has properly appreciated the
evidence and claimants have a right to 9le claim petition either
under Section 166 or under Section 167 of the MV Act. If the claim
petition is 9led under Section 167 of the MV Act, once additional
premium is accepted, as per the judgment of the coordinate Bench
of this Court in the case of Valiben Laxmanbhai Thakore (Koli)
Wd/O Late Laxmanbhai Ramsinghbhai Thakore (Koli) vs. Kandla
Dock Labour Board and Another reported in 2022 (1) GLR 440,
the learned Tribunal has not committed any error in saddling the
appellant – insurance company with the liability. Hence, he has
requested to dismiss the present appeal.


[5.0] Having heard learned advocates appearing for the respective

                               Page 3 of 8
    C/FA/3904/2025                            JUDGMENT DATED: 06/01/2026




parties, it appears that the main contention of the learned advocate
for the appellant is that the learned Tribunal has committed error in
calculation of amount of compensation mainly on the ground that
once the learned Tribunal come to conclusion that claim petition is
9led under Section 167 of the MV Act and once it is an admitted
fact that under Section 167 of the MV Act, claim petition is 9led as
accident occurred due to negligence of the driver of oJending
vehicle then the tort feasor is not entitled get the compensation
for his own wrong under Section 166 of the MV Act and for getting
compensation under Section 166 of the MV Act, claimants have to
prove the negligence of driver of the oJending vehicle. Herein, it is
admitted fact that the owner of oJending vehicle i.e. Tavera Car
had not paid the additional premium under the head of “legal
liability towards paid driver” though the learned Tribunal has
considered the liability of insurance company to pay the
compensation under Section 147 of the MV Act. As per section 147
of the MV Act, it is the statutory liability while the learned Tribunal
has relied on IMT-17 and come to conclusion that additional
premium for compulsory PA cover to owner-driver is paid.


[5.1] But, if we peruse the insurance policy produced at Exh.55,
premium of Rs.100/- towards compulsory PA cover to owner-driver
is paid and under the head of legal liability towards paid driver, no
additional premium has been paid and no any premium is paid to
cover the legal liability of the employee. Hence, in absence of any
premium, once the insurance company has not accepted any
contractual liability or received any premium, the appellant –
insurance company cannot be held liable to pay the compensation.



                               Page 4 of 8
    C/FA/3904/2025                                    JUDGMENT DATED: 06/01/2026




The additional premium for compulsory PA cover to owner-driver is
a contractual liability and not a statutory liability under Section 147
of the MV Act. Hence, once the learned Tribunal come to conclusion
that claim petition was 9led under Section 167 of the MV Act, in
absence of any additional premium qua legal liability towards paid
driver, this Court is of considered view that upto that extent the
learned Tribunal has committed an error in relying upon IMT-17 and
coming to conclusion that the owner of oJending vehicle has paid
additional premium of Rs.50/- towards compulsory PA cover to
owner-driver. The said 9nding is perverse which requires
interference by this Court.


[5.2] As stated in earlier part, appellant – insurance company has
not accepted any additional premium and hence, IMT-17 is not
applicable. Hence, authority relied upon by the learned Tribunal on
the judgment of the coordinate Bench of this Court in the case of
Valiben Laxmanbhai Thakore (Koli) Wd/O Late Laxmanbhai
Ramsinghbhai Thakore (Koli) (Supra) is wrongly relied upon by the
learned Tribunal as no any additional premium is accepted by the
appellant – insurance company and in absence of any additional
premium, insurance company has not undertaken to indemnify the
owner     of     the   oJending   vehicle       for   making       payment         of
compensation on behalf of the owner of the oJending vehicle. In
this regard, reference is required to be made to the decision of the
Hon’ble Supreme Court in the case of New India Assurance Co.
Ltd. v. C.M. Jaya reported in (2002) 2 SCC 278 as well as in the
case of National Insurance Co. Ltd. v. Prembai Patel and others
reported in (2005) 6 SCC 172. Hence, liability under Section 147(1)



                                  Page 5 of 8
   C/FA/3904/2025                            JUDGMENT DATED: 06/01/2026




(b) of the MV Act and under Section 4 of the Workmen
Compensation Act, 1923 both are diJerent. Section 147(1)(b) of the
MV Act may be fastened upon the insurance company and
insurance company may become liable to satisfy the entire award
under Section 166 of the MV Act and for this purpose, owner or
employer must have to take policy of that particular kind for which
he may may be required to pa additional premium and policy must
clearly show a clause to the eJect that liability of insurance
company is not limited to that provided under the Workmen
Compensation Act, 1923, as in absence of any such additional
premium in the schedule of policy (Exh.55). Herein, the insurance
company has not taken any higher liability or higher premium.
Hence, insurance company cannot be held liable to satisfy the
impugned judgment and award.


[5.3] Even otherwise, if we consider that the claim petition is 9led
under Section 167 of the MV Act, option is given to the claimants to
receive the compensation either under the MV Act or under the
Workmen Compensation Act, 1923 but it is not open for the
claimants to avail both the remedies i.e. under the MV Act as well as
under the Workmen Compensation Act, 1923 as risk of deceased is
not covered in absence of any additional premium. As discussed in
earlier part, the insurance policy is produced at Exh.55 and
deceased is not entitled to receive the compensation for his own
wrong as he himself is the tort feasor and hence, the compensation
is required to be considered in light of section 167 of the MV Act
and admittedly, the learned Tribunal has come to conclusion that
the claimants have 9led the claim petition under Section 167 of the



                              Page 6 of 8
    C/FA/3904/2025                              JUDGMENT DATED: 06/01/2026




MV Act. Hence, the learned Tribunal ought to have awarded
compensation under the provisions of the Workmen Compensation
Act, 1923 considering the minimum wages prevailing at the time of
accident to award just compensation. It is undisputed fact that the
accident took place in the August, 2017 and considering the fact
that the deceased was engaged in skilled profession of driving and
therefore, minimum wages of Rs.8000/- per month is assessed and
50% of the said minimum wages taken into consideration then it
would come to Rs.4000/- and as the deceased was aged 30 years,
factor of 207.98 is required to be applied. Thus, the claimants would
be entitled to Rs.8,31,920/- (Rs.4000 x 207.98) and towards
compensation as per section 4 of the Workmen Compensation Act,
1923 alongwith interest of 12% per annum from the date of claim
petition. Hence, the impugned judgment and award whereby the
learned Tribunal has awarded compensation of Rs.22,03,800/- to
the original claimants with 6% interest per annum is erroneous
which calls for interference in hands of this Court.

[6.0] In wake of aforesaid conspectus, present appeal succeeds.
The impugned judgment and award dated 17.02.2025 passed by the
learned Motor Accident Claims Tribunal (Auxi.), at Halol, District
Panchmahals is modi9ed and it is held that the original claimants
are entitled to recover compensation of Rs.8,31,920/- from the
owner of Tavera Car No.GJ-17-BA-3487, under the Workmen
Compensation Act, 1923 with interest at the rate of 12% per annum
from the date of 9ling of claim petition till its realization.

[7.0] The Tribunal after disbursing Rs.8,31,920/- in favor of the
original claimants from the amount of Rs.22,03,800/- (already



                                 Page 7 of 8
       C/FA/3904/2025                                                       JUDGMENT DATED: 06/01/2026




deposited by the appellant – insurance company with the learned
Tribunal) alongwith accrued interest thereon at the rate of 12% per
annum from the date of 9ling of claim petiton till its realization, as
per the apportionment already made by the learned Tribunal, by
account payee cheque / NEFT / RTGS, after proper veri9cation and
after following due procedure, shall refund the remaining amount
to the appellant – United India Insurance Company Ltd..

[8.0] While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.

[8.1] Record and proceedings, if any, be sent back to the concerned
Tribunal, forthwith.

[9.0] Pending Civil Application (For Stay) stands disposed of in view
of disposal of First Appeal.

                                                                                       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 07/01/2026 14:18:53




                                                   Page 8 of 8