IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 4413 of 2022 FOR APPROVAL AND SIGNATURE:

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

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

PARBATBHAI DAYABHAI SOLANKI & ANR.

Versus VINUBHAI HARIBHAI VEKARIYA & ORS.

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Appearance:

NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2 ARUNKUMAR R DAVE(8949) for the Defendant(s) No. 3 RULE UNSERVED for the Defendant(s) No. 1,2 SHARMISHTA A DAVE(8735) for the Defendant(s) No. 3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 03/03/2026

ORAL JUDGMENT

1. Feeling aggrieved by and dissatisfied with the judgment and award dated 28.04.2017 passed by learned Motor Accident Claims Tribunal (Aux), Junagadh, (hereinafter referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.247/2007, the appellants –original claimants preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short).

2. Heard Mr. Nishit Bhalodi, learned Advocate for the appellants – original Claimants and Mr. Arunkumar Dave, learned counsel for respondent No.3.

3. It is the case of the claimants that on 14.02.2007, while the deceased Dahyabhai Parbatbhai was going on his motorcycle and when he reached at MG Road, at that time, one tractor bearing No.GJ-01-R-

8505 came with full speed and in rash and in rash and negligent manner dashed with the deceased from behind. As a result, the deceased got serious injuries and succumbed to it. Therefore, the claim petition was filed by the legal heirs of the deceased to get compensation of Rs.4,00,000/- from the opponents. After appreciating the evidence produced on record, the learned Tribunal awarded compensation of Rs.2,48,500/- along with cost and interest @ 9% p.a.

4. The appeal is filed on limited ground of quantum and no future prospective is considered. Therefore, learned counsel for the claimant has mainly argued that, the Tribunal has erred in considering monthly income of the deceased as Rs.2200/- on notional basis as he was doing masonry work and earning Rs.4,000/- p.m. Further, the Tribunal has also erred in not awarding future prospective income and other conventional heads are required to be enhanced. It is also submitted that, the Tribunal has wrongly held the deceased 25% negligent in the accident. Hence, he has prayed to allow the appeal as prayed for.

5. Learned counsel for the respondent No.3- Insurance Company has opposed the present appeal and submitted that, the Tribunal has rightly awarded compensation in absence of any evidence of income and adequate compensation is awarded under the head of other conventional heads. Therefore, requested to dismiss the appeal.

6. Having considered the submissions made by learned counsel for the parties, it appears that alleged incident is not in dispute. Involvement of the vehicle is also not in dispute. In order to prove the claim, the claimant No.1 has filed an Affidavit at Exh:28, FIR at Exh:36, Panchnama of scene of incident at Exh:37, Inquest Panchanama at Exh:38 and PM report at Exh:39 and driving license of the deceased at Exh:40. After appreciating the evidence produced on record, the Tribunal held the offending vehicle 75% negligent and deceased 25 % negligent in causing the accident relying on the decisions of the Bimla Devi Vs. HRTC reported in AIR 2009 SC 2819 and Parmeshwari Devi Vs. Amir Chand, reported in 2011 (11) SCC 635. As per the PM report at Exh:39 it reveals that the deceased was 25 years.

7. As per the law laid down by the Hon’ble Supreme Court in the case of Govind Yadav Vs. National Insurance Co. Ltd., reported in 2012(1) TAC 1 (SC), that if no proof of income is produced on the record, then Tribunal has to consider prevalent minimum wages in absence of evidence of month