Gujarat High Court
Dayaldas Zamtmal Vasvani vs Mayur Shreechand Chhabda - Sindhi on 20 November, 2025
NEUTRAL CITATION
C/FA/2894/2014 JUDGMENT DATED: 20/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2894 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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DAYALDAS ZAMTMAL VASVANI
Versus
MAYUR SHREECHAND CHHABDA - SINDHI & ORS.
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Appearance:
MR VILAV K BHATIA(5338) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 8
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
MRS KALPANA K RAVAL(1046) for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 6
RULE UNSERVED for the Defendant(s) No. 1,2,4,7
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CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 20/11/2025
ORAL JUDGMENT
1. The captioned appeal is filed against the impugned judgment and award dated 31.01.2013 passed by learned Tribunal (Auxiliary) in MACP No.940/2007, whereby the learned Tribunal partly allowed the claim petition and awarded a sum of Rs.3,85,800/- as a compensation along with interest at the rate of 7.5% per annum from the date of filing of claim petition till its realization.
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2. The succinct facts leading to file the present appeal are that on 31.01.2007 at about 10:30 am, the claimant was going from his home to his shop at Dariyapur on Activa Moped bearing registration No.TC-1-G- GJW-06L-3535 as a pillion rider and the said Activa was being driven, at the time of accident by his son. At the time of accident, the son of the claimant/appellant herein was riding the said Activa at very moderate speed, on the correct side of the road by following the traffic rules and when the appellant reached near Bhadreshwar Ashray Bungalows Three Roads Crossing, within the jurisdiction of Sardarnagar Police Station, in the meantime, a Tata Sumo bearing registration no.GJ-1- XX-7575 came in rash and negligent manner, endangering the human life from the behind and behind the said Tata Sumo, another car bearing registration no.GJ-1-HA-9184 which was being driven in rash and negligent manner, endangering the human life came there and the said motor car dashed with the Tata Sumo and the said Tata Sumo dashed with the Activa Moped, on which the claimant/appellant was riding as a pillion rider. As a result of the said accident, the appellant fell down from the Activa Moped and sustained serious fracture on vertebra in the neck and also sustained serious injuries on chest and other parts of the body. It is the case of the appellant that the accident has occurred owing to the sole negligence of the drivers of motor car and Tata Sumo. Therefore, the owners, drivers and insurer of the vehicles involved in the accident are jointly and severally liable to pay the compensation. It is also the case of the appellant that at the time of accident, the appellant was aged about 62 years and was doing the business of consultancy under the name and style of M/s. Dayal Auto Consultant and thereby earning Rs.2,02,539/- per annum.
3. Having being served with the summons of the claim petition, the Page 2 of 9 Uploaded by MR.HARSHIT SANCHETI (HCD0070) on Mon Nov 24 2025 Downloaded on : Mon Nov 24 21:04:26 IST 2025 NEUTRAL CITATION C/FA/2894/2014 JUDGMENT DATED: 20/11/2025 undefined driver, owner and the insurance of the motor car filed the written statement at Exh.43, 41 and 29 respectively, inter alia denying the averments made in the claim petition and contended to dismiss the claim petition. The respondent nos.4 and 5, who were the driver and owner of the Tata Sumo car also filed the written statement at Exh.26, thereby denying the contents of the claim petition. The respondent no.5/ Ahmedabad Municipal Corporation also filed the written statement denying its ownership of the Tata Sumo car and prayed for dismissal of the claim petition.
4. Having considered the pleadings of the parties, the learned Tribunal framed the following issues at Exh.121:-
(1) Whether the petitioner(s) prove(s) that he/she sustained injury in a vehicular accident due to rash and negligent driving of the driver of the vehicle involved?
(2) Whether the petitioner(s) is/are entitled to compensation amount?
If yes, what amount?
(3) What order and award?
5. Having considered the evidences on record, the learned Tribunal partly allowed the claim petition and awarded a sum of Rs.3,85,800/- along with interest at the rate of 7.5% per annum from the date of filing of claim petition till its realization. The learned Tribunal has also apportioned the liability in the ratio of 60:40 between the driver, owner and insurer of motor car at one side and driver of Tata Sumo on the other side.
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6. Being aggrieved and dissatisfied with the impugned judgment and award, the appellant has challenged the award on the point of quantum.
7. Heard learned counsels for the parties.
8. Learned counsel for the appellant submitted that the learned Tribunal has committed the gross illegality in ignoring the income tax returns proved by the appellant on record. He further submitted that the appellant had proved the income tax returns for the years 1989-90 for Rs.18,100/-, 1994-1995 for Rs.35,500/-, 2002-2003 for Rs.42,500/-, 2003-2004 for Rs.45,200/-, 2004-2005 for Rs.81,410/-, 2005-2006 for Rs.1,15,148/- and 2006-2007 for Rs.2,02,593/-. He submitted that the income of the appellant could have been considered on the basis of the income tax returns and the appellant had filed the income tax return for the period covering the date of accident, which shows his income as Rs.2,02,593/- per annum. Therefore, the learned Tribunal could have considered the said income as proved by the appellant for calculating the future loss of income; however, the learned Tribunal has committed serious illegality in not considering the income tax returns on record and determined the income of the appellant as Rs.6,000/- per month. He further submitted that the learned Tribunal has also awarded the meager amount of Rs.10,000/- under the head of pain, shock and suffering and a meager amount of Rs.18,000/- under the head of actual loss of income. He further submitted that the learned Tribunal has also awarded a very meager amount of Rs.4,000/- under the head of special diet, transportation and attendance charges. He further submitted that the learned Tribunal ought to have awarded the just compensation under these heads. He further submitted that the award is required to Page 4 of 9 Uploaded by MR.HARSHIT SANCHETI (HCD0070) on Mon Nov 24 2025 Downloaded on : Mon Nov 24 21:04:26 IST 2025 NEUTRAL CITATION C/FA/2894/2014 JUDGMENT DATED: 20/11/2025 undefined be modified accordingly.
9. On the other hand, Mr. Palak H. Thakkar, learned counsel appearing on behalf of respondent no.3/insurance company vehemently submitted that there is no infirmity in the impugned judgment and award. He further submitted that the learned Tribunal has rightly assessed the income of the appellant as Rs.6,000/- per month at the time of accident. He further submitted that the learned Tribunal has awarded just compensation. Therefore, the appeal is liable to be dismissed.
10. Ms. Kalpana K. Raval, learned counsel appearing on behalf of respondent no.5/Ahmedabad Municipal Corporation vehemently submitted that the learned Tribunal has awarded just compensation. Therefore, the present appeal deserves to be rejected.
11. Having considered the submissions of the learned counsels for the parties and having gone through the record, it is to be noted that it is not in dispute that at the time of accident, the appellant was aged about 62 years and was doing the business under the name and style of M/s. Dayal Auto Consultant. It is the case of the appellant that the income of the appellant could have been ascertained on the basis of the income tax return filed by the appellant for the year 2006-2007. He further submitted that the appellant has paid the income tax on his annual income for the year 2006-2007 of Rs.2,02,593/-. Therefore, the income of the appellant could have been ascertained as Rs.2,02,593/- per annum. Perusal of the income tax return produced on record, it is evident that the income tax return for the year 2006-2007 for Rs.2,02,593/- was filed on 09.07.2008 i.e. after the date of accident.
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The appellant has also placed on record the income tax return for the year 2005-2006 for Rs.1,15,148/- but this income tax return was also filed on 07.12.2007 i.e. after the date of accident. Therefore, the learned Tribunal has rightly ignored the income tax return, which was filed after the date of accident. It is to be noted that the appellant has also placed on record the income tax return for the year 2004-2005, which reflects that the appellant had paid the income tax on Rs.81,410/-. The said income tax return can be taken as the base for determining the annual income of the appellant. It is to be noted that from the income tax return, it is reflected that the income of the appellant is increasing every year. If we take Rs.81,410/- as the base income for the year 2004-2005, then there must be an increase of 10% per annum in the income of the appellant. Thus, considering the increase at the rate of 10% every year, I assess the annual income of the appellant at the time of accident as Rs.90,000/- per annum. It is not in dispute that the appellant at the time of accident was aged about 62 years, therefore, the learned Tribunal has rightly applied the multiplier of 7. The learned Tribunal has also assessed the functional disability of the appellant at 20%; however, learned counsel for the appellant has pointed out that the disability certificate issued by Dr. R.C. Goyal at Exh.106 transpires that the appellant has sustained the permanent functional disability of orthopedic injuries to the extent of 20% body as a whole and Dr. Harshad H. Jhaveri has assessed the disablement of the petitioner for abdominal injuries, which came to be assessed at 15% body as a whole. Thus, the petitioner sustained the total disabilities as per Kessler's formula, which is as under:-
A+B=15%+20%(100-15)/100=32%.
12. Therefore, the appellant has sustained the total permanent functional disability to the extent of 32% in relation to whole body. Dr. Page 6 of 9 Uploaded by MR.HARSHIT SANCHETI (HCD0070) on Mon Nov 24 2025 Downloaded on : Mon Nov 24 21:04:26 IST 2025 NEUTRAL CITATION C/FA/2894/2014 JUDGMENT DATED: 20/11/2025 undefined R.C. Goyal in his certificate at Exh.107 and also certified that the appellant has sustained the permanent functional impairment of 32% body as a whole. After considering the functional disability, the learned Tribunal has assessed the permanent functional disability for calculating the future loss of income at 20% body as a whole. Considering the nature of injuries sustained by the appellant and having regard to the occupation, in my considered view, the permanent functional disability ought to have been considered at 25% and accordingly, I hold that the appellant had sustained the permanent functional disability to the extent of 25% and hence, the appellant shall be entitled for the compensation under the head of future loss of income of Rs.1,57,500/- i.e. (90,000X25%X7).
13. So far as the compensation under the head of pain, shock and suffering is concerned, the learned Tribunal had awarded a meager amount of Rs.10,000/- under the said head. It is on record that the doctors have certified that the appellant has sustained the permanent functional disability of 32% in relation to whole body. It is also on record that the appellant has sustained vertebra fracture in the neck and also abdominal injuries. He remained hospitalized for long period and he was hospitalized thrice. Thus, considering the nature of injuries and hospitalization of appellant, a sum of Rs.30,000/- is awarded under the head of pain, shock and suffering. Therefore, the compensation awarded under this head is enhanced from Rs.10,000/- to Rs.30,000/-.
The learned Tribunal has awarded a sum of Rs.18,000/- as actual loss of income for a period of three months by taking the annual income of the appellant as Rs.72,000/-. Now, this Court has considered the annual income of the appellant as Rs.90,000/-, therefore, the appellant shall be entitled for a compensation of Rs.22,500/- under the head of actual loss Page 7 of 9 Uploaded by MR.HARSHIT SANCHETI (HCD0070) on Mon Nov 24 2025 Downloaded on : Mon Nov 24 21:04:26 IST 2025 NEUTRAL CITATION C/FA/2894/2014 JUDGMENT DATED: 20/11/2025 undefined of income. The appellant has proved the medical bills for Rs.2,53,000/- on record and the learned Tribunal has awarded the compensation for a sum of Rs.2,53,000/- under this head. Therefore, the compensation awarded under the head of medical expenses requires no interference. The learned Tribunal has awarded a meager sum of Rs.4,000/- under the head of special diet, transportation and attendance charges etc., which is in my considered view, at very lower side considering the nature of injuries, period of treatment and hospitalization of the appellant. Therefore, the compensation awarded under this head is to be enhanced from Rs.4,000/- to Rs.30,000/-. Accordingly, a sum of Rs.30,000/- is awarded under the head of special diet, transportation and attendance charges. Therefore, in view of the above discussions, the appellant shall be entitled for the following amount of compensation under the following heads:-
Sr. No. Particular Amount
1. Future loss of income 1,57,500/-
2. Pain, shock and suffering 30,000/-
3. Actual loss of income 22,500/-
4. Special diet, transportation and 30,000/-
attendance charges
5. Medical expenses 2,53,000/-
Total 4,93,000/-
14. Learned Tribunal has awarded a sum of Rs.3,85,800/-, therefore, the appellant shall be entitled for an additional amount of compensation of Rs.1,07,200/- i.e. (4,93,000-3,85,800). The learned Tribunal has awarded the interest at the rate of 7.5% per annum. The said rate of interest is not required to be interfered. Therefore, the appellant shall be entitled for the interest at the rate of 7.5% per annum on the additional Page 8 of 9 Uploaded by MR.HARSHIT SANCHETI (HCD0070) on Mon Nov 24 2025 Downloaded on : Mon Nov 24 21:04:26 IST 2025 NEUTRAL CITATION C/FA/2894/2014 JUDGMENT DATED: 20/11/2025 undefined amount of compensation from the date of filing of the claim petition till its realization.
15. In view of the above discussions, the appeal stands allowed partly. The respondent no.3/insurance company and respondent no.5/Ahmedabad Municipal Corporation shall deposit the additional amount of compensation along with interest in the ratio of liability as determined by the learned Tribunal within a period of six weeks from today.
16. Upon depositing of the amount of compensation, the learned Tribunal shall disburse the entire amount of compensation to the claimants after due verification and after deducting the deficit of Court fee, if any. The statutory amount, if any, lying deposited with the registry of this Court, the same shall be transmitted to the learned Tribunal concerned forthwith. No order as to costs.
17. Record and Proceedings, if any, be sent back to the learned Tribunal concerned.
(MOOL CHAND TYAGI, J) HARSHIT Page 9 of 9 Uploaded by MR.HARSHIT SANCHETI (HCD0070) on Mon Nov 24 2025 Downloaded on : Mon Nov 24 21:04:26 IST 2025