IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1163 of 2025 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR ============================================

Approved for Reporting Yes No ============================================

MINOR SAMIR HASMUKHNATH GUNSAI & ANR.

Versus BHARATKUMAR RAMESHBHAI BAMBHANIYA & ORS.

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Appearance:

NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2 MS E.SHAILAJA(2671) for the Defendant(s) No. 3 NOTICE SERVED for the Defendant(s) No. 1,2 ============================================

CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 19/02/2026

ORAL JUDGMENT

1) Feeling aggrieved and dissatisfied with the judgment and award dated 13.09.2024 passed by learned Motor Accident Claims Tribunal (Auxi.), Bhuj - Kutch (which shall hereinafter be referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.578 of 2021, 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. N. A. Bhalodi, for the appellants –

original Claimants and learned Advocate Ms. E. Shailaja, for the respondent nos.3 – Insurance Company. The respondent nos.1 and 2 are duly served but remained absent.

3) It is the case of the appellants that on 09.07.2021, the deceased Hasmukh @ Hasmukhnath Dharamnath Gunsai, (who shall hereinafter be referred to as “deceased”) was riding motorcycle bearing Reg. No.GJ-12-DL 1780, at that time, one Bolero bearing Reg. No.GJ-03-BR-7808, driven by its driver in rash and negligent manner and he lost control over the steering and dashed with the motorcycle. As a result of which the deceased was died. Therefore, the appellants had filed MAC Petition seeking compensation, wherein, the learned Tribunal after appreciating the evidence produced on record has partly allowed the claim petition.

4) Learned Advocate for the appellants – claimants has submitted that the learned Tribunal has committed error in considering the income of the deceased only Rs.15,000/- by taking the average of the salary and the Tribunal ought to have consider last salary before the date of accident i.e. 16,456/-. He has further submitted that the learned Tribunal has also erred in considering 40% addition towards future prospectus which is required to be considered 50% as the deceased was salaried employee. He has further submitted that the Tribunal also erred in deducting ½ towards personal and living expenses of the deceased which ought to have been 1/3 as the deceased was married having one minor son. Hence, he has requested to allow the present appeal.

5) Learned Advocate for the respondent – Insurance Company has opposed the present appeal on the ground that the learned Tribunal has rightly assessed the income of the deceased by taking into consideration average of the salary in absence of any final proof of income and properly appreciated the evidence produced on record and awarded the compensation. She has further submitted that the elder brother of the deceased is not entitled for getting any compensation as he is married and independent earning member and therefore, he cannot be considered as dependent of the deceased. Therefore, the learned Tribunal has not committed any error in considering dependency of only one minor son. Hence, she has requested to dismiss the present appeal.

6) As challenge is given only qua quantum hence the appeal is required to be decided in narrow compass. Having heard the learned Advocates for the respective parties, at the outset the claim petition is filed by minor Samir who happens to be the son of the deceased and the claimant no.2 Bharatnath brother of the deceased and through him the minor has filed the claim petition.

The learned Tribunal has rightly observed in light of The New India Assurance Company Ltd. Vs. Anand Pal and Ors, in Civil Appeal No.7920 of 202