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