[Cites 3, Cited by 0]
Gujarat High Court
Suvan Navarbhai Sanyabhai vs Sureshkumar Babubhai Bariya on 10 December, 2025
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Reserved On :-
Pronounced On : 10/12/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1883 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J. L. ODEDRA
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Approved for Reporting Yes No
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SUVAN NAVARBHAI SANYABHAI
Versus
SURESHKUMAR BABUBHAI BARIYA & ORS.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA
CAV JUDGMENT
1. The present Appeal arises from the judgment and award
passed in MACP No.1097 of 2008 by the learned Motor
Accident Claims Tribunal (Aux.), Panchmahal at Godhara.
2. By way of the impugned judgment and award, the Tribunal
was pleased to partially allow the said Claim Petition and
was pleased to award a sum of Rs.3,30,400/- against all
the respondents, who were the original opponents, jointly
and severally, along with the interest at the rate of 9% per
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annum from the date of filing of the Claim Petition till
realization along with proportionate costs.
3. On perusal of the Claim Petition, it appears that on the
fateful day, i.e., on 06.06.2008, the appellant was travelling
in a Jeep bearing registration no. GJ-20-A-2774 belonging
to a relative of his. The driver of the said vehicle, the
respondent no.1 herein, (the original opponent no.1), was
driving the said Jeep in rash and negligent manner at
excessive speed. Whilst the vehicle was driven as aforesaid,
all of sudden, a buffalo came on road. The driver, in order
to avoid the buffalo, applied sudden brakes. Resultantly,
he lost control over the Jeep and the Jeep turned turtle.
Thus, the appellant suffered various injuries and as part of
his treatment, his left leg had to be amputated from below
the knee.
4. Learned advocate Mr. Hiren Modi, whilst arguing the
matter, has only challenged the impugned judgment and
award on the aspect of quantum of compensation as
awarded by the learned Tribunal. He has submitted that
the appellant, original injured claimant, was engaged in
doing labour work for polishing diamonds and was earning,
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in terms of the pleadings in the Claim Petition, a sum of
Rs.7,000/- per month. He submitted that the said salary
was not substantiated by any evidence before the learned
Tribunal. Thus, the learned Tribunal was pleased to fix the
notional income of the present appellant at Rs.3,000/- per
month. He submitted that whilst calculating the future
Loss of income for the appellant, the learned Tribunal has
failed to consider prospective increase in income, which,
considering the age of the appellant at 20 years, ought to
be at 40% of the said notional income. He, thus, submitted
that the said prospective increase in income at 40% comes
to Rs.1,200/- and therefore, the income may please be
considered at Rs.3,000/- plus Rs.1,200/-, which comes to
Rs.4,200/-.
5. It was submitted that for determining the age of the
injured(Appellant), reference may be had to document at
Mark-22/6, which is the Disability Certificate issued by Dr.
Jayesh S Patel MS Ortho, Trauma and Research Center,
Godhara, which records the age of the appellant as a 20
years old. He submitted that considering the age, the
prospective income, in terms of judgment in National
Insurance Co. Ltd vs Pranay Sethi reported at 2017 (16)
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SCC 680, would be at 40%.
6. It was submitted that a prolonged treatment had to be
undergone, for treatment of injuries of the appellant and
the consequent amputation of leg, from below the knee. He
submitted that as per the records, the appellant had to
remain as an indoor patient with the hospital for a period
of one and a half months. It was also submitted that the
appellant has been advised to rest for another one and a
half months thereafter. The learned advocate has relied on
Certificate at Exhibit- 28, which, inter alia, indicates that
the patient had been admitted with the concerned hospital
- Shivam Orthopedic Trauma and Research Center on
06.06.2008 and was discharged on 24.07.2008. Thus,
according to the learned advocate, the treatment spanned a
period of approximately one and a half months. It was also
submitted before this Court that the said patient had also
been advised "rest", by the doctor for another period of one
and a half months from 24.07.2008. It was thus submitted
that the patient had to be on bedrest and thereafter to
adjust to such lifestyle, post amputation of leg, it would
have taken another month. It was submitted that therefore,
for the said period of four months, actual loss of income
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may kindly be computed. He submitted that the Tribunal
erred in computing the same only for 3 months, which may
be rectified. It was also submitted that there is no
grievance as to the actual amount spent towards
hospitalization and treatment, i.e. Rs.75,000/-, which the
learned Tribunal itself has been pleased to award.
7. Insofar as the compensation towards Attendant charges,
Transportation Charges and Special Diet, are concerned,
the Tribunal had been pleased to award, an aggregate sum
of Rs.22,000/- (Rs.17,000/- for Attendant and
Transportation Charges; and towards Special Diet, a sum
of Rs.5,000/-). It was submitted that the said amount are
on the lower side, considering the span of treatment and
therefore, appropriate enhancement may kindly be made.
8. It was further submitted that for the Pain, Shock and
Suffering, the Tribunal has already awarded the appellant
a sum of Rs.30,000/- which may also be enhanced. It was
submitted that, however, no corresponding amount
towards Loss of Amenities of Life has been awarded, and
therefore, amount under the said head may kindly be
awarded. The learned advocate has relied on the judgment
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in the case of Mohd. Sabeer Vs. Regional Manager UP State
Transport Corporation reported at AIR 2023 SC 186: (2023)
20 SCC 774: 2023 ACJ 1 (SC). It was submitted that in the
said case, facts and circumstances were similar and thus,
compensation towards artificial limb post amputation of
left lower limb below knee was allowed, and therefore, cost
of artificial limb and its maintenance was permitted by the
Hon'ble Supreme Court at the aggregate of Rs.12,80,000/-.
It was submitted that the Hon'ble Supreme Court had
reasoned that any prosthetic limb would require
maintenance and that lifespan of such limb would be 15
years. It was submitted that in the said case, the accident
had occurred on 12.06.2009 1. It was submitted that thus
considering the fact that the appellant therein, would need
at least three replacements, the Hon'ble Supreme Court
was pleased to award compensation of Rs.7,80,000/- and
for maintenance of artificial limb and a separate amount of
Rs.5,00,000/- which comes to an aggregate of
Rs.12,80,000/-. It is submitted that in the present case
also considering the similarity of facts, such amount for
artificial limb may be awarded. It was submitted that even
1 Refer Paragraph 19of Mohd. Sabeer (Supra)
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when the appellant has not specifically pleaded the same
before the Tribunal, the fact remains that the appellant
would be better placed if he were to avail the
facility/service of such an artificial limb, and if so done, he
would be placed in a position which would be closer to the
position that he was before the accident. Hence, it was
urged that this Court may kindly consider the same.
9. It was submitted that though the disability as rendered by
document at Mark-22/6 was higher, yet the fact remains
that the present appellant has given a pursis (Exhibit-31)
to the Tribunal, wherein, the learned advocate for the
insurance company has scribed that if the disability is
considered at 30% for a body as a whole, he would not
have objection. Thus, the appellant does not dispute the
said degree of disability. It was submitted that in terms of
the said disability, the future loss of income may be
calculated. It was thus, submitted that considering the
income of Rs.4,200/-, the aggregate annual income of the
appellant would be Rs.50,400/- (Rs.4,200 X 12). It was
submitted that as the appellant is 20 years of age, the
multiplier applicable in the case of a 20 year old would be
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18 in terms of the judgment in case of Sarla Verma & Ors
vs Delhi Transport Corp.& Anr reported at 2009 (2) SCC
(CRI) 1002. He has relied on the following paragraph of
Sarla Verma (supra) for the purpose of substantiating the
multiplier:
"15. We therefore hold that the multiplier to be used
should be as mentioned in column (4) of the Table above
(prepared by applying Susamma Thomas, Trilok Chandra
and Charlie), which starts with an operative multiplier of
18 (for the age groups of 15 to 20 and 21 to 25 years),
reduced by one unit for every five years, that is M-17 for
26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40
years, M-14 for 41 to 45 years, and M-13 for 46 to 50
years, then reduced by two units for every five years, that
is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7
for 61 to 65 years and M-5 for 66 to 70 years."
10. As regards the multiplicand, it was submitted that since
the disability is 30%, but his functional disability is 100%.
It was submitted that for polishing diamonds, one has to
sit in cramped space and owing to injuries, the Appellant
cannot sit in cramped space. Hence, he no longer can do
the work of polishing diamonds. Therefore, his functional
disability may be fixed at 100%. The yearly income,
therefore, may not be adjusted to 30% thereof, for the
purpose of arriving at the multiplicand, therefore the
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multiplicand would be (Rs.4,200 X 12 X 18) =
Rs.9,07,200/-. It was, therefore, urged before this Court
that this Appeal may kindly be allowed in totality and
compensation may kindly be enhanced suitably.
11. Opposing the arguments of the learned advocate for the
appellant, learned advocate for the respondent no.3 -
Insurance Company, Ms. Mausami Nanavaty, has
submitted that in the present case, the ratio in the case of
Mohd. Sabeer (supra) was not applicable firstly, because in
the case of Mohd. Sabeer (supra), concerned applicant was
a scrap dealer and that therefore, the functional disability
in his case and that in the case of the appellant- original
claimant would be different. It was submitted that, even,
the amounts under the heads of Pain, Shock and Suffering,
if any, may not be enhanced.
12. It was secondly submitted that in the present case,
though there was an amputation of leg below knee, which
is commensurate to the injury caused in case of Mohd.
Sabeer (supra), yet, there were additional injuries in the
said case, which are described at Para-13 of the Hon'ble
Supreme court's judgment. Referring to the said Para-13, it
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was submitted that in the said case not only amputation of
lower right limb, but there was a fracture in medial wall of
the bilateral orbit. It was submitted that a bilateral orbit
injury would mean injury to the socket containing eyeballs.
Additionally, even the second lower limb of the concerned
injured was suffering from a fracture of tibula right leg and
with exposed vessels and other injuries. It was submitted
that it was in such circumstances, that Hon'ble Supreme
Court was placed to award an amount of Rs.2,00,000/-
towards Pain, Shock and Suffering. However, considering
that the present appellant has not suffered such grave
injury, therefore, no sum, much less such huge sum of
compensation under the head of Pain, Shock and Suffering
may be awarded.
13. It was submitted by the learned advocate of the
respondent - Insurance Company that in the present case,
there is no evidence indicating that the appellant herein
has availed of any artificial limb. It was submitted that that
being the case, the question of compensating him for the
purpose of any prosthetic limb would not be just.
14. It was also submitted that even the Loss of Amenities of
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Life would not be to that extent as were in the case of
Mohd. Sabeer (supra). Lastly, it was submitted that loss
due to disfigurement did not occur in the present case.
Hence, on that count also, it was prayed that no
compensation be awarded.
15. It was further submitted that the learned Tribunal has
indeed not considered prospective income. But, insofar as
that aspect is concerned, it was urged that the said aspect
is left to the discretion of the Court in awarding, if any,
prospective income, considering that the accident had
occurred on 06.06.2008. It was submitted that in any case,
the minimum wages prevalent, at that point in time, were
Rs.2,900/- and despite the same, the learned Tribunal has
considered Rs.3,000/- as the notional income of the
injured appellant. Therefore, the issue of prospective
income may be considered keeping in view the said aspect.
It was thus urged that appropriate order may kindly be
passed.
16. Having heard the learned advocates for the respective
parties, this Court proceeds to decide the present appeal in
terms appearing hereinafter.
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17. The point of determination that arises in the present
Appeal is whether the compensation as awarded by the
Tribunal is just and reasonable? If not, whether it calls for
any enhancement, and if so, to what extent?
18. Looking to the impugned judgment and award, it appears
that the learned Tribunal has considered the monthly
income of the appellant at Rs.3,000/- per month. On
perusal of the impugned judgment and award, it does not
appear that the said notional monthly income was arrived
at by the learned Tribunal after taking into consideration
the prospective income, i.e., additional amount of Rs.100/-
over and above the minimum wages, as prevalent at that
point in time. In any case, this Court believes that the
learned Tribunal is the best judge of adjudging the notional
income, the deposition of the appellant having been
recorded before such Tribunal. The learned Tribunal
having recorded the deposition of the appellant, it would
have seen the demeanour and the overall personality of the
appellant and therefore, the learned Tribunal has arrived
at the monthly income of Rs.3,000/-. Moreover, if indeed
the Tribunal had taken into account the prospective
increase in income whilst arriving at the notional income, it
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would have surely indicated so in the impugned judgment.
However, no such observation was made by the Learned
Tribunal. Thus the inference would be that the prospective
income was not factored in, when the Tribunal had arrived
at the notional income. Thus, in view of the judgment in
case of Pranay Sethi (supra), a prospective increase to the
extent of 40% would be liable to be given, on the income,
more particularly, when the age of the injured appellant is
not disputed by either parties to be anything other than 20
years. As such the appellant was engaged in the work of
polishing diamonds and therefore, he cannot be said to be
having a permanent job. Rather, he would fall under the
category of person receiving, "fixed salary". Thus, in view of
Pranay Sethi (supra), the prospective income is taken at
40%. The relevant paragraph in Pranay Sethi (supra) reads
as follows:-
"59.4 In case the deceased was self-employed or
on a fixed salary, an addition of 40% of the
established income should be the warrant where the
deceased was below the age of 40 years. An addition
of 25% where the deceased was between the age of
40 to 50 years and 10% where the deceased was
between the age of 50 to 60 years should be
regarded as the necessary method of computation.
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The established income means the income minus
the tax component."
19. Therefore, overall monthly income for the purpose of
determining the amount of compensation would be
Rs.4,200/- being the aggregate of Rs. 3,000/- plus 40% of
Rs.3,000/-.
20. Even the medical disability to the tune of 30 % is not
disputed before this Court, therefore, for the purpose of
calculating Future Loss of Income, the said monthly
income will have to be reduced by 70%. So done, the
monthly income would come to Rs.1,260/- (Rs.4,200/- -
Rs.4,200 x 70/100). For determining the multiplicand, the
said amount will have to be multiplied by 12, which comes
to Rs.15,120/-. The said multiplicand, for the purpose of
arriving at the Future Loss of Income ought to be
multiplied by 18 which comes to Rs.2,72,160/-. It however
appears that the Tribunal has taken the entire amount of
salary whilst calculating the Future Loss of Income. It is
worthy to note that no discussion on functional disability
has been made by the Tribunal. And the Tribunal has
straightaway considered 100% salary for the purpose of
deciding Future Loss of Income. This Court, however has
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deemed it fit to peruse the assertions at paragraph 7 of the
affidavit of examination-in-chief Exhibit 30. There, at
paragraph 7, the deponent asserts that owing to the
injuries, he cannot work as before, nor can he walk as
before, and that his working capacity has declined
drastically. He states that without the aid of a walking
stick, he cannot stand. That at his work-place, he is
continuously required to alternate between standing and
sitting, which he no longer can, owing to the injury.
However, by what percentage has the working capacity
declined, is not adequately described. Thus, form such
limited assertions, it is difficult for this court to come to a
conclusion that the working capacity has completely
destroyed. In the circumstances, the functional disability is
maintained at 30%, more so when, the job that he was
doing was a job of polishing diamonds. Contrary to the
arguments advanced by learned Advocate for the Appellant
(original claimant), the deponent (claimant-Appellant) at
deposition Exhibit-30 does not even assert that he cannot
sit for extended periods of time or that the sitting space at
his place of work is cramped. Thus, as stated hereinabove,
the functional disability too is kept at 30% as loss of one
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of the lower limbs below knee, does not have a drastic
effect on his working, i.e., for polishing diamonds.
21. Now, the discussion on prosthetic limb. It may be recalled
that the contention of the learned advocate for the
respondent was that the appellant has not availed any
prosthetic limb, and therefore, consequential compensation
may not be awarded to him.
22. Now, it is apparent that the accident was of 06.06.2008,
whereas, the accident in the case of Mohd. Sabeer (supra),
as indicated in Para-19 of the said judgment in case of
Mohd. Sabeer (supra), indicates that the injured in that
case had suffered accident on 12.06.2009. Thus, the date
of accident in both the cases are of similar period.
However, in the case before the Hon'ble Supreme Court,
the appellant was 37 years of age, whereas in the present
case, the appellant was 20 years of age when he suffered
an accident. If it was assumed that he did not avail of any
prosthetic limb, so far, be it on account of crunch of funds,
as in the judgment of Mohd. Sabeer (supra), the amount
for availing artificial limb is substantial and thus,
affordability of such prosthetic limb is also a consideration;
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or, for lack of appropriate advice, then too, he may avail
such prosthetic limb post this judgment. The object of
awarding compensation for prosthetic limb by this Court
would be to place the injured in, more or less, the same
position as he was before the accident. For the said
purpose, this Court is of the view that irrespective of the
availing of prosthetic limb by the concerned injured
appellant, this Court would still consider awarding the
compensation under the said head, so that the injured
appellant could be in a position, as close as the position
that he was before the accident.
23. Furthermore, considering that the age of the appellant
was 37 years in case of Mohd. Sabeer (supra) when he
suffered the case, the cost of artificial limb was calculated
from the said date. However, today, in the year of 2025, it
can be stated that the accident had occurred about 17
years back. The age of the Appellant, considering the said
lapse of period, would be more or less, the same, as the age
on which the appellant in the case of Mohd. Sabeer
(supra), has suffered accident i.e., in the present case also,
by now, the appellant would be about 37 years of age. That
being the case, he deserves exactly the same amount of
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compensation as was awarded by the Hon'ble Supreme
Court in that case, in terms of the following paragraph:-
"As per the current compensation given for the prosthetic
limb and its maintenance, it would last the Appellant for
only 15 years, even if we were to assume that the limb
would not need to be replaced after a few years. The
Appellant was only 37 years at the time of the accident,
and it would be reasonable to assume that he would live
till he is 70 years old if not more. We are of the opinion
that the Appellant must be compensated so that he is able
to purchase three prosthetic limbs in his lifetime and is
able to maintain the same at least till he has reached 70
years of age. For the Prosthetic limbs alone, the Appellant
is to be awarded an additional Rs. 5,00,000/-."
24. In the circumstances, a sum of Rs.12,80,000/- is awarded
towards prosthetic limb to the present appeal. Again,
insofar as compensation under the head of Pain, Shock
and Suffering is concerned, injury is suffered by the
claimant in Mohd. Sabeer (supra) were drastic. The
judgment in case of Mohd. Sabeer (supra) describes the
same at para-13, which is quoted hereinbelow for the ease
of reference:-
"The Appellant has suffered an amputation of the lower
right limb, a fracture in the medical wall of the bilateral
orbit, crush injury right leg, fracture tibia right leg,
exposed vessels and other injuries. As per the disability
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certificate, the Appellant has suffered 70% disability,
however the High Court has held that the Appellant has
only suffered 35% loss in future earnings due to the
disability."
25. In the present case, however, the documents on record do
not indicate exhaustive nature of injuries, however, from
document at Mark-22/6 and Exhibit-28, on perusal of
those documents, this Court finds that the only similarity
between this case and that in Mohd. Sabeer (supra) was
the amputation of leg below knee. Other injuries in the
present case, as has been contended by the learned
advocate for the appellant, are not too severe an injuries
and they do not deserve elaborate discussion. Accordingly,
this Court is inclined to award a sum of Rs.7,000/- under
the head of Special Diet. The costs of Attendant is assessed
by calculating two attendants, so round the clock, for 3
months, which comes to Rs.3,000/- x 3, which comes to
Rs. 9000/- for one Attendant. Hence for two attendants,
the amount comes to Rs.18,000/- and for Transportation
charges, as sum of Rs. 3,000/- is awarded. Considering
that the injuries of the present case are not as severe as
that in the case of Mohd. Shabeer (supra), a sum of
Rs.1,00,000/- is awarded under the head of Pain, Shock
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and Suffering. Under the head of Loss of Amenities of Life,
a sum of Rs.1,00,000/- is awarded. Furthermore, there is
no facial disfigurement in the present matter and therefore,
loss of disfigurement of face is not awarded in the present
case.
26. Lastly, the actual loss of income. Indeed, the view of the
learned Tribunal holding that for a victim of accident, back
to work within mere three months from accident, more so
when there is an amputation of leg below the knee, is too
harsh to say the least. Thus, this Court deems it
appropriate to extent the period for compensation of Actual
Loss of Income to four months, instead of the 3 months
arrived at by the learned Tribunal. Thus, on this court, the
actual loss of income would be Rs. 3,000/- x 4 which
comes to be Rs. 12,000/-. By way of abundant caution, it
is clarified that the income for calculation of actual loss
would be the actual income, not that after adding
prospective future income.
27. Accordingly, the following amount of compensation is
liable to be awarded in the present case.
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Sr.No. Particulars Amount as Amount as
awarded by awarded by
the learned this Court (in
Tribunal (in Rs.)
Rs.)
1 Actual Loss of Income 9,000/- 12,000/-
2 Future Loss of Income 1,94,400/- 2,72,160/-
3 Loss of Amenities of Life NIL 1,00,000/-
4 Prosthetic Limb and its NIL 12,80,000/-
maintenance
5 Pain, Shock and 30,000/- 1,00,000/-
Suffering
6 Special Diet, Attendant Rs.5,000/-in 28,000/-
and Transport Charges Special Diet (Rs.7,000/- in
and Special Diet,
17,000/- in Rs.18,000/-
Attendant Attendant
and Charges and
Transport Rs. 3,000/-
Charges Transportation
Charges)
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7 Medical Expenses 75,000/- 75,000/-
Total 3,30,400/- 18,67,160/-
Enhanced amount by this Rs.15,36,760/-
Court
28. As indicated in the aforesaid chart, the amount of
compensation is liable to be enhanced by Rs. 15,36,760/-
which shall carry interest at the rate of 9% per annum
from the date of filing of the claim petition till actual
deposit by the Insurance company. The Insurance
company shall deposit such amount within a period of 8
weeks from the date of availability of the signed copy of this
judgment.
29. The Tribunal shall thereafter disburse the said amount
without the need for creating any further FDRs.
30. The present appeal stands allowed to the aforesaid extent
and disposed of, accordingly.
31. R&P, if any, be remitted back to the Tribunal forthwith.
(J. L. ODEDRA, J)
JIGAR J RABARI
