Gujarat High Court
Nitaben Vasantbhai Gajjar vs Ishwarbhai Virabhai Sabad Rabari on 31 July, 2025
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C/FA/987/2018 JUDGMENT DATED: 31/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 987 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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NITABEN VASANTBHAI 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. 5
MR HG MAZMUDAR(1194) for the Defendant(s) No. 5
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
RULE UNSERVED for the Defendant(s) No. 4
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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
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C/FA/987/2018 JUDGMENT DATED: 31/07/2025
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Accident Claims Tribunal, Surendranagar in MACP
No.190 of 2014.
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.58,600/- 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.2 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
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the issue of quantum of compensation. It was
submitted that the tribunal erred in assuming the
consent of both the parties in assessing the total
disability as 9%. It was contended that the said 9%
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 39,
who had assessed the disability as 28.5%, should
have been considered by the tribunal for calculation of
the compensation.
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
28.5% 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
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SCC (2) 428 and lastly prayed to enhance the
compensation amount to Rs.1,39,910/- by considering
the disability above submissions.
6. 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 9% disability was
agreed upon by both the side. He has placed reliance
upon the findings and reasons assigned by the
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.
7. Heard learned advocates for the respective parties the
disputes between the parties in narrow compass and
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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.
8. So far as the assessment of disability is concerned, the
tribunal has rightly assessed the disability at 9%
considering the disability certificate at exhibit 39. The
appellant raised the contention that the appellant has
neither given oral nor written consent to assess the
disability as 9% as against the disability assessed by
the Doctor Yogendra Solanki as 28.5% and more
particularly, the tribunal assessed the disability with
consent as 9% body as a whole. 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.
9. 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
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Supreme Court held as under:
"The opinion of the typewriter expert in the present
case is admissible under Section 45 of the
Evidence Act."
10. Considering the facts and circumstances of the case on
hand, the medical expert Dr. Yogendra Solanki issued
disability certificate vide exhibit 39 and assessed the
disability of the appellant body as a whole 28.5%. It is
an undisputed fact that the opinion of the doctor is
expert opinion, both the parties consented the
disability body as a whole 9% 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.
11. Learned Advocate for the appellant submitted that the
Tribunal has assessed the income of the claimant as
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Rs.3,000/- per month, is not just and proper. He
vehemently argued that the income should be
calculated as per the minimum wages Act. He further
submitted that the tribunal committed the error while
assessing the income of the claimant and lastly prayed
to assess the income of the claimant as per the
Minimum Wages Act.
12. Considering the facts and circumstances of the subject
matter, the appellant/claimant stated in her claim
petition that her monthly income is Rs.3000/- per
month and in oral evidence, she stated that her
monthly income is Rs.4,000/- per month.
Undisputedly, the appellant/claimant has not
produced any income proof. The learned Tribunal
calculated her income Rs.3,000/- per month as per
her claim petition. Under the circumstances, the
learned Tribunal has not committed any error in
calculation of the income of the appellant/claimant.
The contention raised by the learned Advocate for the
appellant is not sustainable.
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13. The compensation of Rs.58,500/- awarded by the
tribunal is just and proper and no interference is
required with the findings recorded by the tribunal
while compensating the claim amount.
14. Recording the above, the present appeal preferred by
the appellant/original claimant under Section 173 of
the Motor Vehicles Act deserves to be rejected
confirming the judgment and award of the Motor
Accident Claim Tribunal, Surendranagar passed in
MACP No.190 of 2014 dated 26.09.2017. Accordingly
the present appeal is dismissed. No order as to cost.
15. R&P be sent back to the concerned Tribunal
forthwith.
(D. M. VYAS, J)
Anuj
