Gujarat High Court
Trikambhai Bhimjibhai Rathod vs Mohmad Nanjibhai Pathan on 4 May, 2026
NEUTRAL CITATION
C/FA/2140/2015 JUDGMENT DATED: 04/05/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2140 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
NO
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TRIKAMBHAI BHIMJIBHAI RATHOD
Versus
MOHMAD NANJIBHAI PATHAN & ANR.
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Appearance:
MR. VISHAL P THAKKER(7079) for the Appellant(s) No. 1
DISMISSED FOR NON PROSECUTION for the Defendant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 04/05/2026
ORAL JUDGMENT
1. The present appeal is filed at the instance of the original claimant under Section 173 of the Motor Vehicle Act, 1988, being aggrieved and dissatisfied with the judgment and award dated 28th July 2015, passed by the learned Motor Accident Claim Tribunal (Main), Bhavnagar in MACP No.821 of 2005. By the said impugned judgment and award, the Tribunal had partly allowed the claim petition filed by the original claimant against original opponents no.3 and 4, whereas has dismissed against original opponents no.1 and 2. The Tribunal has held the claimant entitled to a sum of Rs.2,21,500/- towards Page 1 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined compensation, with interest at the rate of 9% per annum from the date of filing of the claim petition till its actual realization, to be recovered from original opponents no.3 and 4 jointly and severally. Hence, the present appeal, praying for an enhancement of the amount of compensation for a further sum of Rs.6,21,000/-.
2. Considering the grounds raised in the appeal memo and the submissions made by the learned advocate for the appellant, this Court, vide order dated 23 rd December 2015, had admitted the appeal. The record and proceedings were called for. The record suggests that the notice of admission of the appeal was reported to have been duly served upon respondent no.2- Insurance Company, whereas, though attempts were made to serve respondent no.1 viz. the owner of the offending vehicle, in the absence of any fresh address being provided on record within the time period as directed by this Court vide order dated 2 nd November 2017, the matter had stood dismissed for non-prosecution against respondent no.1. Considering the fact that the appeal of 2015 is pending consideration, the appeal was peremptorily heard finally with the able assistance of learned advocates on record. Page 2 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026
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3. Learned advocate Mr. Vishal P. Thakkar, appearing for the appellant-original claimant had assailed the impugned judgment and award mainly on the issue of the quantum of compensation on the ground that the same has determined by the Tribunal on the lower side.
3.1. It was submitted that the Tribunal has erroneously adopted a notional income of the claimant as Rs.2,500/- per month despite having established on record that the claimant was earning his livelihood as a professional driver. In order to substantiate his argument that the claimant was earning a monthly income of Rs.9,000/- as a professional driver, the learned advocate had placed reliance upon the deposition of the claimant recorded at Exhibit 55 and the driving license authorizing him to drive a light motor vehicle, which is produced on record at Exhibit 58. He has further invited my attention to the facts, more particularly, the FIR and the panchnama of the scene of the accident, which also corroborates the case of the claimant that admittedly he was the driver of the Bolero Jeep bearing registration no. GJ-4D- 7751 at the time of the accident.
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NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined 3.2. Assailing the findings and reasons assigned by the Tribunal on the issue of income, the learned advocate submitted that merely because no proof of income has been produced on record, the Tribunal's rejection of actual salary, in favour of minimum wages, ignores the benevolent intent of the Motor Vehicle Act, 1988 as well as the binding precedents laid down by the Hon'ble Supreme Court mandating the acceptance of pleaded salary in the case of skilled drivers even in the absence of any documentary proof of income. 3.3. Reliance was placed on the decision of the Hon'ble Supreme Court in the case of Manusha Sreekumar and Others vs. United India Insurance Company Limited reported in AIR 2022 SC 840. Inviting my attention to the facts of the case, the learned advocate submitted that it was also a case of a driver who has been treated as a skilled worker, and considering the minimum wages for a driver as prescribed by the government notification, the Hon'ble Supreme Court had disagreed with the approach of the High Court whereby the income of the deceased had been reduced in absence of definite proof of income, considering the statutory minimum wages for a driver in the year 2015. The Page 4 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined learned advocate had submitted that the Hon'ble Supreme Court had fixed the income of the deceased, who was a driver at Rs.15,600/- per month. Reliance was placed on the observations made by the Hon'ble Supreme Court in this regard in paragraph 16. The reference was also made to the observations made in paragraphs 20, 21, and 22. 3.4. Reliance was also placed on the decision of the Hon'ble Supreme Court in the case of Shri Ramchandrappa vs. The Manager, Royal Sundaram Alliance Insurance Company Limited reported in AIR 2011 SC 2951: (2011) 13 SCC
236. Referring to Head-note A, the learned advocate submitted that in the case of a coolie, the Hon'ble Supreme Court had held that in the absence of contrary evidence or an exorbitant claim being made, the Tribunal should accept the claimant's stated income, especially for a laborer without documentation. The Hon'ble Supreme Court had thereby restored the monthly income to Rs. 4,500/- as pleaded by the claimant.
3.5. The attention of this Court was further invited to the decision of the Hon'ble Supreme Court in the case of Kirti Page 5 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined and Another vs. Oriental Insurance Company Limited reported in (2021) 2 SCC 166. It was submitted that in the absence of documentary proof of income, the Hon'ble Supreme Court had considered the evidence which suggests that the deceased was a skilled individual and, having noted the reasonable standard of living from the surrounding circumstances emerging on record, the Hon'ble Supreme Court has determined the notional income of the deceased for the purpose of a just and proper amount of compensation. 3.6. Referring to the aforesaid principles laid down, the learned advocate urged to consider the income of the claimant as Rs.9,000/- at the time of the accident. He has further pressed for an addition of Rs.2,500/- towards allowances as deposed in his affidavit as well as the claim petition. 4.0. As regards the disability sustained by the claimant is concerned, the learned advocate submitted that the claimant has sustained multiple injuries. The disability certificate produced on record at Exhibit 78 clearly suggests that the claimant has sustained a permanent disability of 46% body as a whole. It was pointed out that admittedly the claimant was Page 6 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined earning his livelihood by doing driving and having sustained a right knee fracture, it has vitally impacted his earning capacity. Reliance was placed on the decision of the Hon'ble Supreme Court in the case of Raj Kumar vs. Ajay Kumar reported in (2011) 1 SCC 343. Referring to relevant observations, the learned advocate submitted that this Court may take into consideration the fact that the claimant was a driver by profession and because of the aforesaid disability, more particularly, the fracture sustained in the right knee, the loss of earning capacity has to be treated as 100%. It was further submitted that considering the injury certificate as well as the disability certificate, it has clearly emerged on record that the claimant has undergone five operations. He has therefore, submitted that the Tribunal failed to discharge its duty in ascertaining a just and proper amount of compensation merely by taking into consideration the fact that the parties on record have agreed to treat the disability as 30% of the body as a whole for the purpose of determination of future loss of income. According to the learned advocate, considering the disability certificate produced on record at Exhibit 78 which suggests 46% permanent disability body as a whole, the Tribunal ought to Page 7 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined have taken that into consideration for the purpose of determining the just and proper compensation.
5. The learned advocate pressed the medical case papers for reconsideration and submitted that the amount of Rs. 20,000/- awarded under the head of pain and suffering is meager in the peculiar facts of the case. Considering the fact that the claimant has undergone five operations, this Court may award Rs.50,000/- under the head of pain, shock, and suffering instead of Rs.20,000/-. Similarly, the learned advocate urged to reconsider the amount under the head of special diet, attendant charges, and transportation expenses, having taken note of the injuries sustained, the period of hospitalization undergone, and the post-operation treatment for at least a period of three months, this Court may at least award Rs.25,000/- distinctly under each of these head. He has therefore, prayed for an amount of Rs.75,000/- under the head of special diet, attendance charges and transportation expenses. As regards the amount awarded under the head of actual loss of earning, learned advocate has submitted that considering the income of the claimant as Rs.11,500/- and hospitalization period of three months, this Court may Page 8 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined appropriately reconsider the amount under the head actual loss of income, which may be quantified at Rs.69,000/-.
6. Apart from the aforesaid heads, the learned advocate had also prayed for an amount of compensation under the head of loss of amenities. According to the learned advocate having sustained such grievous injuries, the claimant being deprived of the enjoyment of life, which otherwise he would have been in absence of any injury being sustained, he has, therefore, urged to consider awarding Rs.50,000/- under the head of loss of amenities. As regards the amount of Rs.65,000/- awarded under medical bills, learned advocate prays for further amount of Rs.10,000/- under the medical bills. By making the aforesaid submissions, the learned advocate has urged for an enhancement of an additional amount of Rs.5,17,900/- with interest and proportionate costs to be realized from the respondents.
7. Per contra learned advocate Mr. HG Majmudar appearing for respondent no.2 -Insurance Company at the outset has objected to the entertaining of the appeal on the ground that the appeal against the insured -respondent no.1 Page 9 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined herein has been dismissed for non-prosecution pursuant to the order dated 2nd November 2017 passed by this Court. According to learned advocate, in absence of appeal against insured being filed, the appeal against the Insurance Company would not survive. As regards the submission made by learned advocate for the appellant on the issue of quantum of compensation is concerned, he had submitted that considering the overall evidence on record, no error can be found with the approach of the Tribunal in evaluating the evidence and has thereby awarded just and reasonable amount of compensation, which calls for no interference in the present appeal. On the issue of income of the claimant being determined on lower side, learned advocate had once again invited my attention to the findings and reasons assigned by the Tribunal. According to the advocate in the claim petition preferred before the Tribunal, it was contended by the claimant that he was earning Rs.3000/- as driver of bolero car and additionally allowances was also earned by him. The additional income from agriculture activity was also claimed. However, in his examination in chief affidavit, the claimant had deposed that he was earning Rs.9000/- as salary by driving bolero car and additionally allowances. He has Page 10 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined therefore deposed that he was earning monthly salary of Rs.11,500/- as a professional driver. The Tribunal having appreciated the aforesaid evidence on record in absence of any proof of income being produced on record has applied the yardstick of minimum wages considering the fact that the accident had taken place on 22 nd June 2005. The Tribunal had applied the minimum wages of Rs.2500/- as notified by the state government for the purpose of determination of income of the claimant. Considering the pursis submitted on record at Exhibit 77, the Tribunal has accepted the permanent disability of 30% of body as a whole instead of 46% as opined by the medical officer in the disability certificate produced on record at Exhibit 78. Having consented before the Tribunal to treat the permanent disability as 30% of body as a whole, the claimant has chosen not to examine the medical officer as witness. At the same time, the learned counsel for the Insurance Company having consented for treating the permanent disability of body as a whole as 30%, has lost that opportunity to cross examine the medical officer to verify the actual disability sustained by the claimant for the purpose of determination of future loss of income. With such circumstances on record, no error can be found with the Page 11 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined approach of the Tribunal in accepting the disability of the claimant as 30% for the purpose of determination of compensation under the head of future loss of income. Bearing in mind the aforesaid components, learned advocate had submitted that the Tribunal has determined just and fair amount of compensation in the facts of the case and evidence on record. In view of the aforesaid circumstances, the principles relied upon by the learned advocate in view of the various decisions pointed out before this Court would not be applicable in the facts of the case. He has further invited my attention to the fact that on bare appreciation of the cross examination of the claimant, it has transpired on record that he is holding the driving license which is in force. The attention of this Court was also invited to the driving license produced on record at Exhibit 58 which suggests that the driving license issued on 25th June 2004 having being expired at the end of 10 years, one can assume that the license was renewed thereafter. Considering the above aspect, the contention raised by learned advocate for the appellant that the claimant has suffered 100% disability is required to be rejected. The reliance was placed on Section 14 of the Motor Vehicles Act, 1988. As regards the amount of compensation Page 12 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined prayed with regard to non pecuniary damages are concerned, learned advocate had urged to pass appropriate orders strictly in accordance with the law. Learned advocate has therefore submitted to dismiss the appeal.
8. I have heard learned advocates appearing for the respective parties and I have carefully considered their arguments in light of the findings and reasons assigned by the Tribunal. I have carefully gone through the relevant evidence on record. Before adverting to the merits of the appeal, it would be appropriate to note that the other issues viz. the issue of negligence and the issue of liability, in absence of any arguments being advanced by learned advocate for the respective parties and in absence of any appeal or cross objections being filed by either of the opponents, the same has attained finality. Thus, the foundational facts with regard to the occurrence of accident, the involvement of the vehicle, the claimant having suffered permanent disability due to injuries caused in the said accident, the liability of the original opponents no.3 and 4 to pay compensation to the claimant, the exoneration of original opponent nos.1 and 2 from their liability to pay any compensation, has remained unchallenged Page 13 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined and uncontroverted.
8.1. In view thereof, the objection raised by learned advocate for the appellant -Insurance Company of dismissing the appeal on ground that the appeal against the owner of insured vehicle is dismissed for non prosecution is not tenable. In view of Section 147 of the Motor Vehicles Act, 1988, merely because of procedure lapse the appeal stands dismissed against the owner would not relieve Insurance Company from its obligation to indemnify owner under contract of indemnify.
9. Having noted so, considering the grounds raised in the appeal memo and the submissions made by the appellant - original claimant, the short question which arises for consideration of this Court in the present appeal is as to whether the Tribunal committed any error in the facts of the case and the evidence on record, while determining the issue of quantum of compensation in claim petition preferred under Section 166 of the Act, 1988?
10. The core contention which has been raised by learned advocate for the appellant is the issue of income of the Page 14 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined claimant being determined on lower side by the Tribunal. I have carefully considered the findings and reasons assigned by the Tribunal on the aspect of income. As evident from the impugned judgment and award, the Tribunal is mainly guided by the pleadings made by the claimant in the original claim petition wherein he has stated that he used to earn income of Rs.3000/- by driving and additionally he used to get allowances. Apart from the aforesaid source of income, he has also pleaded that he used to do agriculture labour work and thereby used to have additional income. As against the aforesaid case pleaded in the original claim petition, the examination in chief affidavit filed by the claimant at Exhibit 55 indicates that the claimant has claimed monthly income of Rs.9000/- and additionally allowances by doing driving. He has deposed on oath that he was a permanent driver appointed by the original opponent no.1 to drive his bolero car and was paid Rs.11,500/- approximately per month. He has also pointed out that he was holding legal driving license to drive Bolero Car. The Tribunal having noted the aforesaid pleadings in the original claim petition and the deposition of the claimant, while appreciating his cross examination has taken note of the objection raised by the respondent Page 15 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined Insurance Company about any documentary proof of income being produced on record. The Tribunal has therefore in absence of any documentary proof of income produced on record has followed the minimum wages notified by the State Government at the time of the accident.
11. Having noted the aforesaid findings and reasons assigned by the Tribunal, if one looks at the various judgments relied upon by learned advocate for the appellant on the issue of income, it is equally settled position of law that considering the Motor Vehicles Act to be a benevolent legislation and the core object underlying of awarding just and reasonable amount of compensation, the Hon'ble Supreme court has emphasized on the fact that the Courts shoulders the responsibility of deciding adequate compensation on a case to case basis. What is thus emphasized upon is adequate compensation, considered to be fair and equitable compensation. On careful consideration of the judgments relied upon by learned advocate for the appellant-original claimant, it is true that even in absence of documentary evidence produced on record, considering the avocation of the victim of the accident in light of the Page 16 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined surrounding circumstances, more particularly, the standard of living as can be gathered from the facts emerging on record, the Hon'ble Supreme Court has considered notional income for the purpose of determination of just and reasonable amount of compensation.
12. In the case of Manusha Srikumar (Supra), it transpires that the accident had taken place in the year 2015. It was a case of driver who is treated as skilled worker by the Court and considering the statutory minimum wages for the driver prescribed by the Government Notification of 2015 under the Kerala Fair Wages Act, 1971, the Hon'ble Supreme Court had fixed the notional income as Rs.15,600/- per month. In the case of Shri Ramchandrappa (Supra), in the case of coolie, in absence of documentary evidence the claim of Rs.4500/- per month was accepted by the Hon'ble Supreme Court by holding that considering the avocation of coolie, ordinarily, there would not be any proof of income available on record and therefore has accepted the deposition of the claimant of earning Rs.4500/- in absence of any contrary evidence or exorbitant claim being made out. In the case of Kirti (Supra), the Hon'ble Supreme Court has considered the Page 17 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined concept of notional income of deceased homemaker recognizing the value of their unpaid domestic labour and her contribution to the family and national economy, while addressing the historical societal biases and aligning with the international obligations of gender equality and dignity, the Hon'ble Supreme Court had considered amount of Rs.3000/-. The Court had also taken into consideration the reasonable standard of living in case of skilled individual who was owning a motorcycle and therefore had disagreed with the approach of the Tribunal adopting lowest minimum wage for unskilled worker.
13. Considering the aforesaid principles in the facts of the case, the claimant has established on record that he was earning his livelihood by driving Bolero Car. The avocation of driver being accepted as a skilled worker, if one looks at the standard rates of minimum wages notified by the State of Gujarat as prevailing on the date of accident which has admittedly taken place on 22 nd June 2005, the minimum wages in the case of skilled worker between period 1.4.2005 to 30.9.2005 was Rs.2500/-. Having appreciated the aforesaid Notification, the Tribunal has rightly applied Rs.2500/- as the Page 18 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined income of the claimant. However, considering the age of the claimant being determined as more than 50 years and the driving license produced on record at Exh. 58, which suggests the date of issuance as 25th June 2004, it can be inferred that the claimant was having experience of at least 10 years of driving. One looks at the evidence of the claimant who has deposed on oath being recorded at Exhibit 55, he has categorically deposed on oath that he was earning Rs.11,500/- including allowances per month from the vocation of driving. He has also asserted that he was a permanent driver of the opponent no.1. In his cross-examination at the instance of the opponent no. 2, he has denied the suggestion that he has not produced any proof of income on record. In the same breath, he has denied that currently he is driving, however, he has admitted that his driving license is in force. As against the aforesaid evidence at the instance of opponent no.2 being brought on record, the opponent no.4- Insurance Company, while cross-examining the claimant, has failed to put any question to the aforesaid claim made by the original claimant. During the course of the hearing, this Court had inquired from the learned advocates on record as to the limit of taxable income during the financial year 2005-2006, which is reported Page 19 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined to be Rs.1,00,000/-. Bearing in mind the aforesaid circumstances on record and the evidence as evaluated, it would be appropriate to fix the income of the claimant as Rs.8,000/- per month.
14. Having held so, the prospective income of the claimant is required to be taken into consideration in view of the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi reported in (2017) 16 SCC 680. Considering the fact that the claimant was aged 50 years and 11 months in view of the birth certificate being produced on record at Exhibit 75 wherein the date of birth is indicated as 9 th July 1954 and the accident having taken place on 22 nd June 2005 and being on a fixed salary, the prospective income of the claimant is required to be considered in the category of age group between 50 to 60 years and therefore, an addition of 10% rise is required to be considered for the purpose of determination of his prospective income. The prospective income of the claimant is therefore determined as Rs.8,000/- multiplied by 10% = Rs.800/- i.e. Rs.8,800/- per month.
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15. This brings me to another vital issue of disability of the claimant being erroneously considered as 30% of body as a whole by the Tribunal. As rightly submitted by the learned advocate for the respondent- Insurance Company and as evident from the record, the parties on record have agreed before the Tribunal by submitting their pursis at Exhibit 77 to treat the permanent disability as 30% of body as a whole instead of 46% as opined by the Doctor in the disability certificate produced on record at Exhibit 78. I have carefully considered the content of pursis produced on record at Exhibit 77 wherein, the claimant himself has signed across the said pursis. Considering the aforesaid pursis, the learned counsel for the respondent -Insurance Company on record has expressed his no objection to admit the disability certificate produced on record, and accordingly, the Tribunal has admitted the disability certificate at Exhibit 77. The record suggests that the parties have therefore chosen not to examine / cross-examine the medical officer as a witness on record. Having noted the aforesaid circumstances on record and having appreciated the findings and reasons recorded by the Tribunal, it is evident that the Tribunal was guided by the aforesaid pursis filed by the parties. However, in my view, the Page 21 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined Tribunal failed to discharge its obligation as mandated by the legislation.
16. As pointed out by the learned advocate for the appellant in the case of Raj Kumar (Supra), the Courts have been cautioned to take into consideration the aspect of functional disability rather than mechanically converting the permanent disability opined in the medical certificate for the purpose of determination of the earning capacity of the claimant. Bearing in mind the aforesaid principles laid down by the Hon'ble Supreme Court in the case of Raj Kumar (supra) and having appreciated the injury certificate as well as the disability certificate produced on record, it would be appropriate to reassess the actual disability for the purpose of determination of a just and fair amount of compensation. From the injury certificate and the disability certificate, it has transpired that apart from having sustained a fracture of patella right side, fracture of lower end radius and fracture of face bone, the claimant has suffered damage to the right knee due to a motor vehicle accident. The claimant having established the fact of he being engaged as a driver and with such disability, in my view, the claimant has suffered functional disability more than Page 22 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined 30% as considered by the Tribunal for the purpose of determination of loss of earning capacity. In order to appreciate the case of the claimant, I have carefully considered the medical case papers produced on record. Considering the fact that the claimant was aged around 50 years and 11 months at the time of the accident and having suffered the fracture of the right knee, this Court has reason to accept the case of the claimant about his complaint with regard to restriction in movement of his leg. The disability certificate admitted as evidence with the consent of the parties at Exhibit 78 suggests that the injuries have impacted his muscular strength which has been reduced to 10% insofar as the left knee is concerned. It has also been noted that there is weakness over the right knee which has caused difficulty in performing daily routine activities whereby 5% disability has been assessed. Accordingly, the disability of the lower limb has been determined as 28%, considering the muscular strength weakness of 10%, the medical officer has considered the reference of Dr. Kessler's and considering the restriction of temporomandibular joint movement by 10% has opined that the claimant has sustained 46% permanent disability of body as a whole. It is required to be noted that with 36% disability Page 23 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined with the addition of 10% towards restriction of temporomandibular joint movement, the doctor has opined it as 46% permanent disability of whole body. Thus, the disability of the lower and upper limb contributes to 11% and 28% i.e. 36% of body as a whole. Having noted the aforesaid opinion of the medical officer in light of the avocation of the claimant, in my view, it would be appropriate to consider 40% functional disability of body as a whole. Having held so, the future loss of income of the claimant is redetermined as Rs.8,800/- multiplied by 40%, =Rs.3,520/-. The Tribunal has considered the age of the claimant as 50 years, 11 months for the reasons recorded earlier and has accordingly adopted a multiplier of 11 in the facts of the case. Considering the principles laid down by the Hon'ble Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121, the Tribunal has rightly adopted a multiplier of 11 in the facts of the case. Considering the aforesaid components, the future loss of income of the claimant is redetermined as Rs.4,64,640/- instead of Rs.99,000/- as awarded by the tribunal.
17. This brings me to the enhancement of compensation Page 24 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined sought for towards the pecuniary damages. Considering the medical bills produced on record, the Tribunal has rightly awarded Rs.65,000/- under the aforesaid head. The actual loss of income is required to be revisited in light of the income of the claimant being fixed as Rs.8,000/- per month. Considering the period of hospitalization and the further treatment undergone, the Tribunal has rightly considered actual loss of income for a period of 3 months. Bearing in mind the aforesaid reasoning of the Tribunal, the actual loss of income is redetermined as Rs.8,000/- X 3 = Rs.24,000/-
18. This brings me to the amount of compensation sought for under the head of pain, shock, and suffering. The learned advocate has prayed for a sum of Rs.50,000/- under the aforesaid head on the ground that the claimant has undergone five operations. I have carefully considered the medical case papers on record which suggest that the claimant has sustained four fractures and having been operated, he has also undergone plastic surgery. Having noted the aforesaid circumstances on record, this Court is inclined to accept the amount of Rs.50,000/- under the head of pain, shock, and suffering instead of Rs.20,000/- as awarded by the Tribunal. Page 25 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026
NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined Learned advocate for the appellant has pressed for a distinct amount of compensation under the head of special diet, attendant charges, and transportation expenses. I have carefully considered the medical case papers and the treatment undergone as recorded by the Tribunal, the claimant has been hospitalized for a period between 22 nd June 2005 to 16th September 2005. Considering the nature of injuries sustained, it cannot be ignored that there is a likelihood that the treatment has been prolonged for 3 months. Considering the aforesaid circumstances on record, the amount of Rs.50,000/- would be appropriate to be considered under the head of special diet, attendant charges, and transportation expenses in the facts of the case and evidence on record. Though the learned advocate has pressed for a distinct amount of compensation under the head of loss of amenities, the Tribunal in my view has rightly confined it to Rs.15,000/- which calls for no interference in the present appeal.
19. In view of the above discussion, since the amount of compensation under respective heads has been reconsidered and re-appreciated, the total amount of compensation is Page 26 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined computed as under:
Particulars Awarded by Awarded by
Tribunal this Court
Future Loss of Income 99,000/- 4,64,640/-
Actual Loss of Income 7,500/- 24,000/-
Pain, Shock, and 20,000/- 50,000/-
Suffering
Medical Expenses 65,000/- 65,000/-
Special Diet, Attendant 15,000/- 50,000/-
& Transportation
Loss of Amenities 15,000/- 15,000/-
Total Compensation 2,21,500/- 6,68,640/-
Enhanced amount 4,47,140/-
20. Resultantly, the First Appeal is allowed in the aforesaid terms. The impugned judgment and award dated 28 th July 2015, passed by the learned Motor Accident Claim Tribunal (Main), Bhavnagar in MACP No.821 of 2005 is hereby modified by holding the appellant-claimant is entitled to seek recovery of total amount of compensation of Rs.4,47,140/-. (Rs.6,68,640/- minus Rs.2,21,500/-) with interest at the rate of 9% from the date of filing of claim petition till actual realization, with proportionate costs, from the original opponents No. 3 and 4, jointly and severally. Since the appeal is allowed, the respondent No. 3 & 4 are is directed to deposit the enhanced amount of compensation of Rs.4,47,140/- with Page 27 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026 NEUTRAL CITATION C/FA/2140/2015 JUDGMENT DATED: 04/05/2026 undefined interest and proportionate costs as awarded by this Court by this order, within a period of six weeks from the date of receipt of the certified copy of this order. On deposit of the aforesaid amount of compensation, the Tribunal shall be at liberty to proceed with the release and disbursement of the awarded amount in favour of the claimant subject to due verification and strictly adhering to the guidelines of the Hon'ble Supreme Court in this regard.
21. With these observations, the First Appeal stands disposed of in the aforesaid terms. The record and proceedings are directed to be sent back to the concerned Tribunal forthwith with the writ of this order.
sd/-
(NISHA M. THAKORE,J) RATHOD KAUSHIKSINH Page 28 of 28 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 07 2026 Downloaded on : Thu May 07 21:23:00 IST 2026