THE ORIENTAL INSURANCE CO.LTD.versusBHARATBHAI GULABBHAI MALIVAD

    C/FA/2632/2022                                     JUDGMENT DATED: 03/02/2026




 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                      R/FIRST APPEAL NO. 2632 of 2022
                                   With
                      R/FIRST APPEAL NO. 1655 of 2020
                                   With
                     R/CROSS OBJECTION NO. 68 of 2020
                                    In
                      R/FIRST APPEAL NO. 1655 of 2020


FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
==========================================================
        Approved for Reporting         Yes     No
                                                √
==========================================================
               THE ORIENTAL INSURANCE CO.LTD.
                              Versus
    KAILASHBEN PUNABHAI ALIAS RAMESHBHAI MALIVAD & ORS.
==========================================================
Appearance in First Appeal No.2632/2022:
MR VC THOMAS(5476) for the Appellant(s) No. 1
MS LILU K BHAYA(1705) for the Defendant(s) No. 6
RULE SERVED for the Defendant(s) No. 7
RULE UNSERVED for the Defendant(s) No. 1,2,3,4,5

Appearance in First Appeal No.1655/2020:
MR HIREN MODI for the Appellant
MS LILU K BHAYA(1705) for the Defendant(s) No. 3
MR VC THOMAS(5476) for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 1, 2, 4

Appearance in X-Obj.68/2020 in First Appeal No.1655/2020:
MR VC THOMAS(5476) for the Appellant
MR HIREN MODI for Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 4, 5
NOTICE UNSERVED for the Defendant(s) No. 2, 3
==========================================================
  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                           Date : 03/02/2026
                        COMMON ORAL JUDGMENT

[1.0] Since these ?rst appeals and cross-objections are arising out of
the common judgment and award passed by the learned Motor



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    C/FA/2632/2022                               JUDGMENT DATED: 03/02/2026




Accident Claims Tribunal (Auxi.), at Vadodara, they are heard, decided
and disposed of by this common order.

[2.0] First Appeal No.2632 of 2022 is ?led by the appellant – original
opponent No.5 – Oriental Insurance Company Ltd. under Section 173
of the Motor Vehicles Act, 1988 (for short referred to as “MV Act”)
challenging the impugned judgment and award dated 20.09.2017
passed by the learned Motor Accident Claims Tribunal (Auxi.),
Vadodara in Motor Accident Claim Petition No.1505/2009 on the
ground of contributory negligence of 40% held on the part of driver of
Truck No.GJ-7Z-9264 as well as on the ground of exorbitant
compensation awarded to the original claimants. First Appeal
No.1655/2020 is ?led by the original claimants seeking enhancement
of compensation awarded by the learned Tribunal, Vadodara in MACP
No.1506/2009 vide its judgment dated 20.09.2017 and Cross
Objection No.68/2020 in First Appeal No.1655/2020 is ?led by the
Oriental Insurance Company Ltd. challenging contributory negligence
held on the part of insurance company of Truck at 40%.

[3.0] The brief facts leading to ?ling of present appeals and cross-
objections are as follows:

[3.1] On       11.11.2009,   deceased      Punabhai   alias     Rameshbhai
Manglabhai Malivad was going from Vadodara to Mumbai by driving
Truck No.GJ-7Z-9264 with moderate speed on correct side of the road
and when he reached near the place of accident, as the driver of
Trailer No.HR-38-N-2699 had parked his trailer without indicating side
signal and parking light, deceased Punabhai could not see the
stationary trailer and dashed on the back of the trailer with full speed
as a result of which the driver of the truck died on the spot. The
appellant of First Appeal No.1655/2020 – original claimant was serving

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    C/FA/2632/2022                              JUDGMENT DATED: 03/02/2026




in the Truck as cleaner and due to the accident he sustained injuries of
multiple fractures on both legs because of which his both legs were
required to be amputated and urine vain also got punctured and teeth
were broken and also sustained injuries on other parts of body.
Therefore, the appellant of First Appeal No.1655/2020 ?led MACP
No.1506/2009.

[3.2] After considering the evidence produced on record by the
respective parties, learned Motor Accident Claims Tribunal (Auxi.), at
Vadodara (hereinafter referred to as “learned Tribunal”) has been
pleased to hold driver of Trailer No.HR-38-N-2699 negligent to the
extent of 60% and driver of Truck No.GJ-7Z-9264 contributory
negligent to the extent of 40% and awarded compensation of
Rs.10,57,700/- to the appellant of First Appeal No.1506/2009 – original
claimant.

[4.0] Learned advocate Ms. Lilu Bhaya has not remained present even
in second call. Heard learned advocate Mr. V.C. Thomas appearing for
the Oriental Insurance Co. Ltd. and learned advocate Mr. Hiren Modi
appearing for the original claimant.

[5.0] when the matter is called Learned advocate Mr. V.C. Thomas
appearing for the Oriental Insurance Co. Ltd. has submitted that the
learned Tribunal has committed an error in holding the driver of Truck
to be 40% contributory negligent as driver of stationary trailer left his
trailer on the public road in dangerous position without any guard,
reNector and in unattended position in breach of Rule 190 of the MV
Rules and therefore, the driver of Trailer ought to have been held
100% negligent for the accident and appellant is required to be
exonerated from the liability. Hence, he has requested to allow First
Appeal No.2632/2022 and Cross Objection No.68 of 2020 in First

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    C/FA/2632/2022                              JUDGMENT DATED: 03/02/2026




Appeal No.1655/2020.

[6.0] Learned advocate Mr. Hiren Modi appearing for the appellant –
original claimant of First Appeal No.1655/2020 has submitted that the
learned Tribunal has awarded inadequate compensation. He has
argued that the claimant was serving as cleaner though his monthly
income is assessed at Rs.5500/- per month i.e. Rs.4000 towards salary
and Rs.1500 towards allowances at the rate of Rs.50 per day. He has
further submitted that though the doctor opined permanent partial
disability of the claimant at 130%, the learned Tribunal has considered
only 75% disability body as a whole of the claimant and considering
the fact that both the lower limbs of the claimant have to be
amputated, learned Tribunal ought to have considered 100% as he
was aged 20 years. He has further argued that even no future
prospect is considered and under the head of pain, shock and
suOering, learned Tribunal has not awarded just compensation. Hence,
he has requested to allow First Appeal No.1655/2020.

[7.0] So far as issue of negligence raised by learned advocate Mr. V.C.
Thomas appearing for the Oriental Insurance Co. Ltd. is concerned,
perusing the record, it appears that the learned Tribunal has perused
the evidence of original claimant, complaint (Exh.36), panchnama of
place of accident (Exh.37) and thereafter, relying on the decisions of
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 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 came to conclusion that the
driver of stationary trailer was negligent for the accident to the extent



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    C/FA/2632/2022                            JUDGMENT DATED: 03/02/2026




of 60% and truck to the extent of 40%. To come to such conclusion,
the learned Tribunal has considered evidence produced at Exh.28 as
well as the cross-examination of the claimant done by opponent Nos.3
and 5 and also considered the panchnama of place of accident from
which it emerged that both the vehicles were involved in the accident
and front portion of truck got a dent inside and trailer which was
loaded with iron rods got dent from behind. Further, no any brake
marks have been found on the road and trailer was found in stationary
position on the road and alleged accident took place at 8.00 p.m. The
complaint is registered against the driver of truck. Hence, learned
Tribunal came to conclusion that both the vehicles were involved and
drivers of both the vehicles were negligent in causing the accident. It
appears that at the time of accident, trailer was stationary and due to
darkness, truck dashed behind the back side of stationary vehicle. It
appears from the evidence that Trailer was parked on the road
without putting any signal, reNector or any signal to avoid the
accident. The driver of trailer is not examined and he has not stepped
into the witness box. The learned Tribunal has relied on the
panchnama of scene of accident wherein it is narrated that the trailer
was having back light on and also one red bulb was kept at the end of
iron rod loaded in the trailer. Further, the witness examined at Exh.28
has admitted that head light of the truck was also on and driver of
truck was able to see the vehicle coming from opposite direction and
further he has admitted that though light of the trailer was on, truck
rammed into the trailer and oOence was registered against the driver
of truck and alleged accident took place due to negligence of the
truck driver. Considering the evidence of original claimant, who is an
eye-witness of the accident, learned Tribunal has apportioned
negligence of 60% on the part of stationary trailer and 40% on the
part of truck. At the same time, this Court is of considered view that

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    C/FA/2632/2022                             JUDGMENT DATED: 03/02/2026




while parking the vehicle on the public road, it was the duty of the
driver of trailer to park the vehicle in safe position with suQciently
visible reNectors and warning lights and barriers.

[7.1] Further, as per Section 121 of MV Act, the driver of the motor
vehicle shall make such signals on such occasions and as per Section
122, no person incharge of the motor vehicle shall cause or allow the
vehicle or any trailer to be abandoned or to remain at rest at any
public place which is likely to cause danger, obstruction or undue
inconvenience to the other users of road or the public place. Under
Sections 126 and 127(2) of the MV Act, driver of stationary vehicle is
duty bound to immediately remove such vehicle from the public place
by towing service or try to remove the obstruction as per Regulation
15 of Rules of Road Regulations of 1989 which was also prevailing on
the date of the incident and every driver of motor vehicle shall park
the vehicle in such a way that does not cause or is not likely to cause
danger/obstruction or any undue inconvenience to the other road
users and it cast the duty on the driver of the motor vehicle that
vehicle shall not be parked at or near the road crossing or on the main
road. Herein, the trailer was loaded with iron rods and parked on the
public road and therefore, considering Rules 190 and 191 of the Motor
Vehicles Rules and Regulation 122 of the MV Act, learned Tribunal has
not committed any error in holding the negligent of trailer at 60%
considering the size of the vehicle. Learned Tribunal also appreciated
the fact that the accident in question took place at 8 p.m. and the
lights of truck were on and driver of truck was able to see the vehicle
coming from the opposite direction and therefore, the driver of
oOending truck ought to have taken suQcient care to avoid the
accident. Further, there is no any material or evidence on the record
which reveals that the driver of truck applied the brakes to avoid the


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    C/FA/2632/2022                             JUDGMENT DATED: 03/02/2026




accident. Considering night time driving and that too heavy vehicle
like truck, the driver of truck ought to have been more careful and
degree and standard of care and caution to meet with expected and
unexpected situation ought to have been extra. Upto that extent, the
driver of truck failed to take such standard of care and caution and
therefore, the driver of truck contributed in the accident upto that
extent and hence, the learned Tribunal has not committed any error in
considering the evidence of appellant of First Appeal No.1655/2020
(original claimant) who was eye-witness as was serving as cleaner in
the oOending truck. In view of above, no interference is called for qua
?nding of the learned Tribunal as regards apportionment of
negligence. Hence, First Appeal No.2632/2022 fails.

[8.0] So far as First Appeal No.1655/2020 is concerned, it is the case
of the claimant that at the time of accident, the claimant was serving
as a cleaner and earning salary of Rs.4000/- per month and Rs.100/-
per day towards bhattha and was also earning Rs.50,000/- per annum
from doing farming and Rs.2500/- from cattle rearing and milk selling
– dairy activities but no any evidence in that regard is produced before
the learned Tribunal. The alleged accident took place in the year 2009
and in absence of any material or evidence with regard to income of
the claimant, considering minimum wages of Rs.3800/- prevailing in
the year 2009 i.e. Rs.4000/- is considered by the learned Tribunal
alongwith Rs.50 per day towards bhattha and hence, to award just and
proper compensation, the learned Tribunal has considered monthly
income of claimant at Rs.5500/- (Rs.4000 towards salary + Rs.1500
towards bhattha) and in the considered opinion of this Court, the
learned Tribunal has not committed any error in assessing income of
the claimant at Rs.5500/- per month. Hence, to that extent, no
interference is called for. But, the learned Tribunal has not considered


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    C/FA/2632/2022                              JUDGMENT DATED: 03/02/2026




future prospects of the claimant on the said monthly income. The
claimant was aged 28 years and hence, as per the 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 17 is rightly applied. Further, as per the decision of
Hon’ble Supreme Court in the case of National Insurance Company
Limited vs. Pranay Sethi and Ors. reported in 2017 ACJ 2700, as the
deceased was below 40 years of age, additional income under the
head of future prospective income at 40% is required to be
considered. Hence, adding Rs.2200/- i.e. 40% towards future
prospects, monthly loss of income of the claimant would come to
Rs.7700/- (Rs.5500 + Rs.2200).

[8.1] So far as disability sustained by the claimant is concerned,
disability certi?cate issued by Dr. Tushar is produced wherein the
doctor has opined 130% permanent partial disability of the claimant.
The claimant has examined said Dr. Tushar Modi at Exh.42 but after
appreciating the evidence, learned Tribunal has assessed 75%
disability in absence of any evidence that the claimant is unable to
engage in any other type of avocation or profession and merely
because the appellant – claimant does not want to perform or engage
in any profession for livelihood, it does not mean that 100% functional
disability is required to be considered as prayed for by the learned
advocate Mr. Hiren Modi. Hence, no interference is called for insofar
as disability assessed by the learned Tribunal is concerned. Hence,
considering 75% disability and applying multiplier of 17, the claimant
would be entitled to Rs.11,78,100/- [Rs.5775/- (Rs.7700/- x 75%) x 12
x 17] towards future loss of income.

[8.2] So far as actual loss of income is concerned, considering the



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    C/FA/2632/2022                            JUDGMENT DATED: 03/02/2026




disability and injuries sustained by the claimant, the learned Tribunal
considered actual loss for six months and awarded Rs.33,000/-, which
in considered opinion of this Court, does not call for any interference
and is maintained. So far as compensation awarded by the learned
Tribunal under the head of medical expenses is concerned, the
learned Tribunal has rightly awarded Rs.63,184/- considering the
medical bills produced at Exh.35 and in the considered opinion of this
Court, no interference is called for so far as compensation under the
head of medical expenses is concerned.

[8.3] So far as compensation under the head of pain, shock and
suOering is concerned, considering the fact that the claimant was
shifted in New Civil Hospital, Surat wherein he remained as indoor
patient from 12.09.2009 to 18.11.2009 and two operations were
performed on the claimant and thereafter, he was shifted to Yogini
Hospital, Vadodara where he took treatment as indoor patient from
18.11.2009 to 16.12.2009 and one operation was performed on the
claimant and thus, it appears that total ?ve operations were
performed on the claimant during his treatment however, the learned
Tribunal has awarded Rs.50,000/- towards pain, shock and suOering
which in the considered opinion of this Court is required to be
reassessed at Rs.1,50,000/- and hence, the claimant is entitled to get
Rs.1,50,000/- towards pain, shock and suBering. The compensation
under the head of attendant charges and transportation charges
and nutritious food is enhnaced to Rs.50,000/- and compensation of
Rs.50,000/- for loss of enjoyment and loss of amenities of life as
awarded by the learned Tribunal is enhanced to Rs.1,00,000/-.
Considering the amputation being done, the appellant – original
claimant is also entitled to get compensation of Rs.1,50,000/- under
the head of artiEcial limb. Hence, the appellant of First Appeal


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    C/FA/2632/2022                                      JUDGMENT DATED: 03/02/2026




No.1655/2020 – original claimant is now entitled to get the
compensation as under:

               Heads              Awarded by          Reassessed by this Court
                                   Tribunal
    Future loss of income        Rs.8,41,500/-             Rs.11,78,100/-
                                                    including additional amount
                                                          of Rs.3,36,600/-
     Actual loss of income        Rs.33,000/-                Rs.33,000/-
                                                    including additional amount
                                                           of Rs.51,840/-
          Pain, shock and         Rs.50,000/-               Rs.1,50,000/-
             suOering                               including additional amount
                                                          of Rs.1,00,000/-
         Medical Expenses         Rs.63,200/-                Rs.63,200/-
                                                                 NIL
          Attendant,              Rs.20,000/-                Rs.50,000/-
    transportation charges                          including additional amount
      and nutritious food                                  of Rs.30,000/-
    Loss of enjoyment and         Rs.50,000/-               Rs.1,00,000/-
       amenities of life                            including additional amount
                                                           of Rs.50,000/-
          ArtiEcial Limb              NIL                   Rs.1,50,000/-
     Total Compensation          Rs.10,57,700/-            Rs.17,24,300/-
                                                    including additional amount
                                                          of Rs.6,66,600/-


[9.0] Thus, total compensation of Rs.10,57,700/- as awarded by the
learned Tribunal is on lower side, for the reasons recorded
hereinabove, and therefore, same is required to be enhanced to the
aforesaid extent i.e. Rs.17,24,300/- and therefore, the impugned
judgment and award passed by the learned Tribunal is required to be
modi?ed to the aforesaid extent.

[10.0]         In    wake   of     aforesaid        conspectus,    First     Appeal



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     C/FA/2632/2022                                                         JUDGMENT DATED: 03/02/2026




No.2632/2022 is dismissed and consequently, Cross Objection
No.68/2020 in First Appeal No.1655/2020 also stands dismissed.
First Appeal No.1655/2020 is allowed and the impugned judgment
and award dated 20.09.2017 passed by the learned Motor Accident
Claims Tribunal (Auxi.), Vadodara in MACP No.1506/2009 is modi?ed
and respondents are held liable to pay reassessed compensation of
Rs.17,24,300/- to the appellant of First Appeal No.1655/2020 (original
claimant of MACP No.1506/2009) alongwith accrued interest at the
rate of 9% per annum within a period of FOUR WEEKS from the date
of receipt of this judgment.

[10.1]            The learned Tribunal shall disburse the entire amount of
compensation with accrued interest thereon, if any, to the claimant,
by account payee cheque / NEFT / RTGS, after proper veri?cation and
after following due procedure.

[10.2]            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.
                  Pending civil application, if any, also stands disposed of.


                                                                                          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 04/02/2026 14:56:00




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