Gujarat High Court
Vasantbhai Manilal Gajjar vs Ishwarbhai Virabhai Sabad Rabari on 31 July, 2025
NEUTRAL CITATION
C/FA/986/2018 JUDGMENT DATED: 31/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 986 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE D. M. VYAS
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Approved for Reporting Yes No
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VASANTBHAI MANILAL GAJJAR
Versus
ISHWARBHAI VIRABHAI SABAD RABARI & ORS.
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Appearance:
MR MAYUR S BAROT(1637) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 4
MR HG MAZMUDAR(1194) for the Defendant(s) No. 4
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
MR YOGI K GADHIA(5913) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE D. M. VYAS
Date : 31/07/2025
ORAL JUDGMENT
1. The present appeal is filed by the original claimant under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act, 1988") being aggrieved and dissatisfied with the impugned judgment and award dated 26.09.2017 passed by the Motor Accident Claims Tribunal, Surendranagar in MACP No.189 of 2014.
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2. Vide the said impugned judgment and award, the Tribunal has partly allowed the claim petition preferred by the present appellant - original claimant under Section 166 of the Act, 1988 holding the present appellant- original claimant entitled to an amount of Rs.2,77,000/- with interest at the rate of 9% per annum from the date of filing of such claim petition till its actual realization with proportionate costs. Thus, the Tribunal has not entertained the claim petition for an amount of Rs.10 lakhs as total compensation.
3. This Court vide order dated 05.04.2018 noticing the submissions made by the learned advocate for the appellant- original claimant and the grounds raised in the appeal, has admitted the appeal.
4. Learned advocate Mr. Mayur Barot, appearing for the appellant- original claimant has assailed the impugned judgment and award passed by the Tribunal mainly on the issue of quantum of compensation. Firstly, it was submitted that the Tribunal erred in assessing the Page 2 of 12 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:38:25 IST 2025 NEUTRAL CITATION C/FA/986/2018 JUDGMENT DATED: 31/07/2025 undefined income of the appellant and secondly, erred in assuming the consent of both the parties in assessing the total disability as 17%. It was contended that the said 17% disability is required to be rejected as the appellant has neither given oral nor written consent and the disability certificate given by the doctor at exhibit 41, who had assessed the disability as 43.5%, should have been considered by the tribunal.
5. Further, the learned Advocate for the appellant vehemently argued on the provisions of Section 45 of the Indian Evidence Act, 1872 and submitted that the tribunal must consider the expert evidence. It is further submitted that the tribunal must consider Doctor Yogendra Solanki as an expert, assessed the 43.5% disability of the claimant. In support of this contention, he has placed reliance on the judgment of Hon'ble Supreme Court in the case of State (Through CBI/New Delhi) Vs. S.J. Choudhary reported in 1996 SCC (2) 428 and lastly prayed to consider the disability certificate produced at exhibit 41. Page 3 of 12 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:38:25 IST 2025
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6. So far as income aspect is concerned, Learned advocate has invited my attention to the finding of the tribunal wherein the tribunal has assessed the income of the appellant as Rs.3500/- per month as against the claim of Rs.4000/- per month. It is submitted that the tribunal has erred in considering the Income Tax Return for the AY 2010-2011 and 2011-12 instead of Income Tax Return for the AY 2013-14. By making the aforesaid submissions, learned advocate has urged this Court to enhance the amount of compensation to the tune of Rs.4,89,060/- which may be awarded with interest at the rate of 12% per annum from the date of filing of claim petition till its actual realization
7. Mr. Rathin Raval, learned advocate for the respondent no.3/insurance company submitted that the appellant cannot now raise any grievance with regard to the permanent disability assessed since 17% disability was agreed upon by both the side. He has placed reliance upon the findings and reasons assigned by the Page 4 of 12 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:38:25 IST 2025 NEUTRAL CITATION C/FA/986/2018 JUDGMENT DATED: 31/07/2025 undefined Tribunal and vehemently argued that the compensation must be awarded as just, proper and reasonable and not on higher side and further submitted that the Tribunal, after appreciating the materials available on record, awarded the compensation under each head is just, proper and reasonable and not required to interfere and lastly prayed to dismiss the present appeal.
8. Learned Counsel for the respondent no.4 Mr. G. C. Mazmudar submitted that the respondent no.4 i.e, New India Insurance Co. Ltd. was deleted by the tribunal vide order below exhibit 19 dated 17.04.2015.
9. Heard learned advocates for the respective parties, the disputes between the parties in narrow compass and perused the record and proceedings and impugned judgment and award, more particularly, the findings and reasons assigned by the Tribunal while considering the issue of quantum of compensation. Page 5 of 12 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:38:25 IST 2025
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10. So far as the assessment of disability is concerned, the tribunal has rightly assessed the disability at 17% considering the disability certificate at exhibit 41. The appellant raised the contention that the appellant has neither given oral nor written consent to assess the disability as 17% as against the disability assessed by the Doctor Yogendra Solanki as 43.5%. The said contention is unsustainable in the eye of law and deserves to be rejected and the findings of the tribunal in assessing the disability is just and proper.
11. Learned Advocate for the appellant relied on the judgment of Hon'ble Supreme Court in the case of State (Through CBI/New Delhi) (supra). The Hon'ble Supreme Court held as under:
"The opinion of the typewriter expert in the present case is admissible under Section 45 of the Evidence Act."
12. Considering the facts and circumstances of the case on hand, the medical expert Dr. Yogendra Solanki issued disability certificate vide exhibit 41 and assessed the Page 6 of 12 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:38:25 IST 2025 NEUTRAL CITATION C/FA/986/2018 JUDGMENT DATED: 31/07/2025 undefined disability of the appellant body as a whole 43.5%. It is an undisputed fact that the opinion of the doctor is expert opinion, both the parties consented the disability body as a whole 17% and the tribunal considered the disability certificate as an expert opinion. Under the circumstances, the reliance placed by the learned Advocate for the appellant is already considered as an expert opinion and thereafter, on consent of parties, assessed the disability of the appellant accordingly. Hence, no interference is required with the findings recorded by the tribunal on the issue of disability of the appellant.
13. As per the records, the claimant had filed an application to enhance the claim from Rs.3,00,000/- to Rs.10,00,000/- before the Tribunal, the tribunal had enhanced the amount of claim to Rs.10,00,000/- vide order below exhibit 20. It is stated in the petition that the appellant was earning Rs.4,000/- by working as a photo framer. In the chief-examination in form of the affidavit of the appellant at exhibit 23, the appellant Page 7 of 12 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:38:25 IST 2025 NEUTRAL CITATION C/FA/986/2018 JUDGMENT DATED: 31/07/2025 undefined stated his yearly income Rs.2,12,805/- and also filed the income tax return to substantiate the income claim.
14. The appellant mentioned the income of Rs.4,000/- per month in his claim petition and originally claimed Rs.3,00,000/-. Thereafter, the claim amount was amended to Rs.10,00,000/-. It is required to note that the claimant filed the documentary evidences, more particularly, the income tax returns as mentioned above. Keeping in mind that the claimant filed this petition under the provisions of Motor-vehicles Act for compensation for the injuries suffered in motor- vehicular accident. Hence, the object and purpose of this act is concerned, it is beneficial act and not strict examination of the pleadings (claim petition), not only that, the meaning and definition of pleadings is required to consider in wider prospect. The documentary evidences of the claimant is also required to consider as a part of pleadings.
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15. In light of the above factual and legal aspects and the beneficial act, for the true and correct calculation of the income of the appellant/original claimant, the documentary evidences regarding the proof of income i.e., the income tax return in this case, is required to consider. The Tribunal has committed an error in assessing the income of the appellant as Rs.3500/- and as discussed above, the average of last three years of income tax return is required to be considered for the purpose of calculation of the income.
16. The appellant filed the income tax return for the following years vide exhibit 45 to 47:
Assessment Year Income (Rs)
AY 2010-11 1,72,550
AY 2011-12 1,71,716
AY 2012-13 1,96,578
The monthly average income of the above three assessment year's income comes to Rs.15,000/-. Hence, the income of Rs.15,000/- per month is Page 9 of 12 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:38:25 IST 2025 NEUTRAL CITATION C/FA/986/2018 JUDGMENT DATED: 31/07/2025 undefined required to be taken for the calculation of the compensation instead of Rs.3500/- per month.
17. The appellant was aged about 53 years as per the medical papers at the time of the accident. Hence, as per the ratio laid down in the decision of the Hon'ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation and Anr reported in 2009 ACJ 1298, the tribunal has rightly considered the multiplier of 11 for the purpose of calculation of the future loss.
18. Hence, after 17% disability, the average monthly income would be Rs.15000*17%= Rs.2550/-. The future loss of income would be calculated as Rs.2550*12*11=Rs.3,36,600/-. Rest of the amount granted under other heads are appropriate.
19. The amount of compensation is computed and determined as under:
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No.
1. Future loss of income 3,36,600/-
2. Pain, Shock and Suffering 15000
3. Medical Expenses 165000
4. Actual loss of income 10500
5. Special Diet, Attendance 8000 and Transportation Charges Total: 5,35,100/-
20. The amount which the learned Tribunal has granted as a compensation is Rs.2,77,000/-. Hence, the enhancement amount would come to Rs.2,58,100/- (Total: Rs.5,35,100/-) which the claimant would be entitled with the interest at the rate of 9% per annum.
21. The respondent nos.1 to 3 - original opponents are held jointly and severally liable to pay such enhanced amount of compensation with proportionate costs and interest.
22. For the foregoing reasons, the present appeal is partly allowed.
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23. Let, the aforesaid amount be deposited with the concerned Tribunal within a period of 8 weeks from the date of receipt of the present order. On deposit of the aforesaid amount, the Tribunal shall be at liberty to release and disburse the entire award amount in favour of the original claimant, after due verification.
24. Let, such exercise be undertaken by the Tribunal strictly in accordance with the guidelines prescribed by the Hon'ble Supreme Court in this regard; preferably within a period of two weeks from deposit of such amount. The Tribunal is directed to realize the deficit Court fees before proceeding with the disbursement of the amount.
25. R&P be sent back to the concerned tribunal forthwith, if received.
(D. M. VYAS, J) Anuj Page 12 of 12 Uploaded by MR.ANUJSINH CHANDRAVIRSINH SISODIYA(HCD0069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:38:25 IST 2025