[Cites 2, Cited by 0]
Gujarat High Court
Parmar Arjanji @ Arjunji Viraji vs Raval Arvindbhai Chamanbhai on 5 December, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4053 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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PARMAR ARJANJI @ ARJUNJI VIRAJI
Versus
RAVAL ARVINDBHAI CHAMANBHAI & ANR.
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Appearance:
MR NISHIT A BHALODI(9597) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 05/12/2025
ORAL JUDGMENT
Learned advocate Mr. Yogi Gadhia states that he has
instructions to appear for the respondent - insurance company.
Registry to accept his vakalatnama.
ADMIT. As the issue in the present appeal is only with regard
to quantum of compensation, with the consent of learned advocate
appearing for respective parties, present appeal is taken up for final
hearing today.
[1.0] By way of present First Appeal under Section 173 of the
Motor Vehicles Act, 1988, the appellant herein - orignial claimant
has assailed the impugned judgment and award dated 07.07.2022
passed by the learned Motor Accident Claims Tribunal (Auxi.-6), at
Mahesana (for short "learned Tribunal") in Motor Accident Claim
Petition No.368/2014, whereby the learned Tribunal has partly
allowed the claim petition in favor of the original claimant by
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awarding Rs.7,30,000/- to the appellant - original claimant with
interest at the rate of 9% per annum from the date of claim
petition.
[2.0] The brief facts leading to filing of present appeals and cross-
objections are as follows:
[2.1] On 04.12.2014 at about 10.30 a.m., when the appellant herein
- original claimant and one Parmar Pamba Kasalsinh were going
from Mahesana in Jeep bearing No.GJ-1-HG-7130, at that time, near
the temple of 'Sadhi Mata', on the road towards Kherva to
Sangalpur, the driver of jeep lost control over steering and the jeep
got turtled as a result of which the appellant herein - original
claimant sustained serious injuries and pursuant thereto, the
appellant herein - original claimant filed MACP No.368/2014
seeking compensation of Rs.5,00,000/-.
[2.2] After considering the evidence produced on record by the
respective parties, learned Tribunal has been pleased to hold the
original opponent No.1 solely negligent for the accident and
awarded compensation of Rs.7,30,000/- to be paid by the
respondent - insurance company. Hence, present First Appeal is
filed by the original claimant seeking enhancement of the
compensation.
[3.0] Learned advocate for the appellant has assailed the
impugned judgment and award mainly on the ground of quantum
by submitting that the appellant - claimant has sustained the
grievous injury due to vehicular accident and learned Tribunal has
to consider the functional disability as per the decision of the
Hon'ble Supreme Court in the case of Rajkumar vs. Ajaykumar &
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Ors. reported in (2011)1 SCC 343 though the learned Tribunal
without considering functional disability has awarded the
compensation. He has further submitted that 100% disablement is
required to be considered and future prospect is not considered
considering the said disablement. Even, pain, shock and suffering is
not appropriately considered and only Rs.10,000/- has been
awarded which is required to be enhanced. He has further
submitted that even under the head of special diet, attendant
charges and transportation, only Rs.10,000/- is awarded by the
learned Tribunal which is required to be enhanced. Hence, he has
requested to allow the present appeal.
[4.0] Learned advocate Mr. Yogi Gadhia has appeared on behalf of
the respondent - insurance company and opposed the appeal
mainly on the ground that the learned Tribunal has not committed
any error and the award is just and proper and the learned Tribunal
has appropriately considered the income of the claimant and as
such there was no loss of actual income to the claimant though the
learned Tribunal has awarded compensation under the said head.
He has submitted that the claimant was engaged in agricultural
work and no any evidence is produced on record to prove the
income and therefore, the learned Tribunal has not committed any
error. So far as disability is concerned, before the learned Tribunal
disability is agreed and admitted by the parties at 32%. Hence, he
has requested to dismiss the present appeal.
[5.0] Having heard the learned advocate appearing for the
respective parties and going through the record, it appears that
after perusing the evidence tendered on record, the learned
Tribunal has held the driver of offending jeep to be solely negligent
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for the accident. The learned Tribunal has considered the complaint
(Exh.29), panchnama (Exh.30), charge-sheet filed against the driver
of offending jeep (Exh.43), insurance policy of offending jeep
(Exh.42), driving license and RC book produced at Exhs.40 & 41,
medical bills produced at Exhs.31 to 51 and disability certificate of
the claimant produced at Exh.61. Further, the original opponent has
not produced any evidence before the learned Tribunal in support
of his case. As per the case of the claimant and affidavit produced
at Exh.25, claimant has stated that he was earning Rs.20,000/- per
month from partnership business running in the name and style as
A. Raja Courier and he was also serving as a Manager in P. Umesh
Courier at Gandhidham and also doing the agriculture work at
village Jhankana but he has not produced any material or evidence
to establish the factum of his job as Manager at P. Umesh Courier.
Further, the claimant has produced on record village abstracts 7/12
and 8-A at Exh.44 to show that he is having agricultural property.
However, as the claimant was the co-owner of the said agricultural
land but no other proof is produced to prove the income of the
claimant. Considering the aforesaid fact and in absence of any
material or evidence pertaining to other employment or
partnership, the learned Tribunal has considered the income at
Rs.6000/- but considering the aforesaid fact and minimum wages
prevailing at the time of accident, to award just compensation,
minimum monthly income of Rs.7500/- is required to be considered.
As the claimant was aged about 37 years at the time of accident,
40% increase in monthly income was required to be added towards
future prospects and therefore, monthly future loss of income
would come to Rs.10,500/- [Rs.7500 + Rs.3000 (40% escalation)].
[5.1] Another argument of learned advocate for the original
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claimant is that 100% functional disability ought to have been
considered by the learned Tribunal. It is needless to say that for the
purpose of deciding functional disablement, the learned Tribunal
has relied on the certificate issued by Dr. Chirag Prajapati though he
has not treated the claimant. The alleged accident took place in the
year 2014 and certificate is issued in the year 2018. The injury
certificates are produced at Exhs.34 and 35 and Dr. Chirag Prajapati
is examined at Exh.60. Perusing the said certificate, it appears that
the claimant had sustained grade 3 left hand humerous fracture
injury and claimant could not pick up the weight and his disability is
assessed at 64% body as a whole and due to such injury, the
claimant could not keep his left hand straight and there was
reduction in the movement and strength and therefore, claimant
could not do agricultural work. But in the cross-examination of the
said Doctor, 30% disability body as a whole is admitted. Considering
the aforesaid fact, learned Tribunal has considered 35% permanent
disability body as a whole in view of the law laid down by the
Hon'ble Supreme Court in the case of Rajkumar (Supra). While
considering the functional disability the learned Tribunal ought not
to have mechanically accepted whatever percentage of disability is
given by the doctor. While ascertaining permanent disablement,
effect of such disablement on actual earning capacity is required to
be considered. Always the disability mentioned in the disability
certificate would directly not affect the income and such disability
could not be considered as permanent disability which causes loss
to the income of the claimant. The learned Tribunal ought to have
considered the fact as to whether due to such injury, claimant's
movement or income is restricted or prevented or he is restricted
from discharging his previous activity and the functions and
whether he could carry out some other or lesser activity and
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functions so as to continue his earning or can continue to earn his
livelihood. In aforesaid background, relying on the decision of the
Hon'ble Supreme Court in the case of T.J. Parameshwarappa @
Parameshwarappa @ J.T. Parameshwarappa @ Talalkena
Gowdra Parameshwarappa vs. The Branch Manager, New India
Assurance Co. Ltd. reported in (2022) 17 SCC 51, it is expected
from the Tribunal that the nature of injury suffered and the manner
how it will affect the functional disability is to be stated and
circumstances specially with reference to avocation of the claimant.
Doctor or Medical Officers given their opinion only on disablement
but they not capabale to give any opinion qua functional disability.
Herein, the learned Tribunal has considered that claimant is not
engaged in permanent agriculture work as other co-owners are
continuously engaged in the agriculture work. Even, the agriculture
work is an additional profession. As per the case of the claimant, he
was engaged in courier company working as a Manager and he is
partner in the said firm. In absence of any evidence as regards the
fact that he is unable to perform the work or clerical work as a
Manager due to the injury or disability sustained by him due to
which he has lost the income, the learned Tribunal has properly
considered the disablement at 35% and mere asking or based on
the argument, this Court is not inclined to assess functional
disability of the claimant at 100%. Hence, argument canvassed by
the learned advocate for the appellant is not accepted.
[5.2] Further, the claimant at the time of accident was aged 37
years and hence, applying multiplier of 15, the claimant would be
entitled to Rs.6,61,500/- [Rs.3675/- (Rs.10,500/- x 35%) x 12 x 15]
towards future loss of income. So far as actual loss of income is
concerned, the claimant had to undergo prolonged treatment and
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therefore, it would be just and proper to award compensation of
Rs.31,500/- (Rs.10,500 x 3 months) towards actual loss of
income. So far as compensation awarded by the learned Tribunal
under the head of medical expenses is concerned, no interference is
called for. So far as compensation under the head of pain, shock
and suffering is concerned, considering the fact that claimant had
to remained hospitalized for more than 10 days on different
occasions, an amount of Rs.35,000/- towards pain, shock and
suffering would be just and proper. Further, under the head of
special diet, attendant charges and transportation, amount is
enhanced to Rs.15,000/-. Hence, the claimants are entitled to get
the compensation as under:
Heads Awarded by Reassessed by this Court
Tribunal
Future loss of Rs.3,78,000/- Rs.6,61,500/-
income including additional
amount of Rs.2,83,500/-
Actual loss of Rs.12,000/- Rs.31,500/-
income including additional
amount of Rs.19,500/-
Pain, shock and Rs.10,000/- Rs.35,000/-
suffering including additional
amount of Rs.25,000/-
Medical Expenses Rs.3,20,000/- Rs.3,20,000/-
Special diet, Rs.10,000/- Rs.15,000/-
attendant charges including additional
and transportation amount of Rs.5,000/-
Total Rs.7,30,000/- Rs.10,63,000/-
Compensation including additional
amount of Rs.3,33,000/-
[6.0] In wake of aforesaid conspectus, First Appeal is partly
allowed and the impugned judgment and award is enhanced to
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Rs.10,63,000/- and accordingly, impugned judgment and award
dated 07.07.2022 passed by the learned Motor Accident Claims
Tribunal (Auxi.-6), at Mahesana in Motor Accident Claim Petition
No.368/2014 is modified to the aforesaid extent.
[7.0] The Insurance Company is directed to deposit the enhanced
amount i.e. Rs.3,33,000/- alongwith accrued interest at the rate of
9% per annum within a period of six weeks from the date of receipt
of this order.
[8.0] The Tribunal shall disburse the entire amount of
compensation (lying in the FDR and/or with the Tribunal including
the enhanced amount of compensation), with accrued interest
thereon, if any, to the claimant, by account payee cheque / NEFT /
RTGS, after proper verification and after following due procedure.
[9.0] While making the payment, the Tribunal shall deduct
the courts fees, if not paid.
[10.0] Record and proceedings, if any, be sent back to the
concerned Tribunal, forthwith.
Sd/-
(HASMUKH D. SUTHAR, J.)
Ajay
