IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 530 of 2022 FOR APPROVAL AND SIGNATURE:

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

Approved for Reporting Yes No √

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RELIANCE GENERAL INSURANCE CO LTD Versus KIRANBEN RAJESHBHAI ALIAS RAJUBHAI THUMMAR & ORS.

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Appearance:

MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1 MR ZAFRULLA M PATHAN(2245) for the Defendant(s) No. 5 MR NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3,4 RULE SERVED for the Defendant(s) No. 6 ==========================================================

CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 11/02/2026 ORAL JUDGMENT [1.0] By way of present First Appeal under Section 173 of the Motor Vehicles Act, 1988, the appellant – original opponent No.2 has assailed the impugned judgment and award dated 30.09.2021 passed by the learned Motor Accident Claims Tribunal (Auxi.), at Dhoraji, District Rajkot (for short “learned Tribunal”) in Motor Accident Claim Petition No.33 of 2019, whereby the learned Tribunal has partly allowed the claim petition in favor of the original claimants and awarded Rs.39,80,000/- towards compensation to the original claimants with 9% interest per annum from the date of filing of claim petition till its realization.

[2.0] The brief facts leading to filing of present appeal are as follows: [2.1] On 02.07.2019, Rajeshbhai Chhaganbhai Thummar (hereinafter referred to as “deceased”) was going on his Motorcycle bearing registration No.GJ-03-ES-9647 and at about 5.50 p.m., when the deceased reached at the place of accident, Truck bearing registration No.GJ-25-U-9928 came from behind with full speed in rash and negligent manner and hit the motorcycle of the deceased and dragged the deceased alongwith his motorcycle to some distance as a result of which the deceased having sustained fatal injuries died. Therefore, the original claimants – legal heirs and representatives of the deceased filed the claim petition seeking compensation of Rs.80 lakh.

[2.2] After considering the evidence produced on record by the respective parties, learned Tribunal has been pleased to hold the original opponent No.1 – truck driver to be solely negligent for the accident and awarded compensation of Rs.39,80,000/- to the original claimants alongwith 9% interest per annum. Hence, present First Appeal is filed by the appellant – insurance company on the ground that the learned Tribunal has not considered contributory negligence of the deceased motorcyclist as well as seeking reduction in compensation.

[3.0] Though served, respondent No.6 has chosen not to appear before the Court.

[4.0] Learned advocate Ms. Kirti Pathak appearing for the appellant – insurance company has submitted that the learned Tribunal has committed an error in not considering the contributory negligence on the part of deceased motorcyclist and even the compensation is awarded on higher side overlooking the evidence and written submission submitted before the learned Tribunal. She has further submitted that though the deceased was not wearing protective head gear while driving the motorcyclist in violation of proviso to Section

129 of the MV Act, learned Tribunal has not considered the deceased motorcyclist to be contributory negligent for the accident. She has submitted that if the deceased motorcyclist would have worn head gear, it could have been a case of injury and not a fatal case. She has argued that even in the post-mortem report, cause of death is stated “due to head injury”. She has relied on the decision of the Hon’ble Supreme Court in the case of Ajay Canu vs. Union of India & Ors. reported in AIR 1988 SC 2027 as well as the decision of Kerala High Court in the case of Siby Paul vs. Praveen Kumar & Others reported in 2009 ACJ 2322 and submitted to consider contributory negligence of the deceased motorcyclist.