Gujarat High Court
Vitthalbhai Bhagabhai Vasava vs Karansinh Jibhaisinh Rathod on 24 November, 2025
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C/FA/3346/2012 JUDGMENT DATED: 24/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3346 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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VITTHALBHAI BHAGABHAI VASAVA
Versus
KARANSINH JIBHAISINH RATHOD & ORS.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 5
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,4
UNSERVED EXPIRED (R) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 24/11/2025
ORAL JUDGMENT
1. The captioned appeal has been preferred against the
impugned judgment and award dated 04.05.2012 passed by
the learned Motor Accident Claims Tribunal (Aux.), at Nadiad,
in M.A.C.P. No. 307 of 2004, whereby the learned Tribunal
has partly allowed the claim petition and awarded a sum of
Rs.1,93,400/- (Rupees One Lakh Ninety Three Thousand Four
Only) along with interest at the rate of 7.5% per annum, from
the date of filing of the claim petition till its realization, as
compensation.
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2. The succinct facts, which lead to the filing of the
captioned appeal are summarized as under :-
i. On 18.12.2003, at about 9:00 a.m., the
appellant, along with a relative of respondent
No. 4, was proceeding to attend agricultural
work in the field of respondent No.4. At that
time, upon receiving information that a person
had expired in the village of Godaj, the
appellant, along with 8 to 10 other persons,
boarded a tractor and trolley bearing
Registration Nos. GJ-7-AA-7186 and GJ-7-U-
9360, respectively, and proceeded towards the
place of cremation. Upon reaching a small turn
near Gadteshwar Ambava Road, near Sarnal
Village, a dumper bearing Registration No. GJ-7-
Y-383, being driven by opponent No. 1 came at
excessive speed in a rash and negligent manner,
endangering human life, dashed with the vehicle
in which the appellant was sitting. As a result,
the appellant sustained grievous injuries.
ii. It is also the case of the appellant that as result
of the grievous injuries sustained at the time of
accident, he was operated thrice and resultantly,
his left hand was amputated. As per the
Disability Certificate, the appellant sustained
disability to the extent of 80% body as a whole.
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iii. It is also the case of the appellant that at the
time of the accident, he was earning Rs.2,000/-
per month and was aged about 54 years.
iv. Having been served with the notices/summons
of the Claim Petition, the respondent No. 3 -
New India Insurance Company filed Exh.15 -
Written Statement, thereby, denying the
contentions raised in the claim petition and in
brief, prayed for dismissal of the claim petition,
while, respondent No.5 - United India Insurance
Company Limited filed Exh.31 - Written
Statement, thereby, denying the averments
made in the claim petition.
v. Having considered the pleadings of the parties,
the learned Tribunal framed the following issues
at Exh.23, for determination.
i. Whether the applicant proves that he
had sustained injuries because of rash
and negligent driving on the part of the
driver/opponent No.1 of the vehicle
involved in the accident ?
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ii. Whether the applicant is entitled to
compensation ? If yes, what amount and
from whom ?
iii. What award and order ?
vi. Having considered the evidences on record, and
having considered the submissions of the
learned counsels for the parties, the learned
Tribunal has partly allowed the claim petition
and awarded a sum of Rs.1,93,400/- (Rupees
One Lakh Ninety Three Thousand Four Only)
along with interest at the rate of 7.5% per
annum, from the date of filing of the claim
petition till its realization, as compensation. The
learned Tribunal also apportioned the liability
for satisfying the award in the ratio of 70:30,
between and amongst the original opponents
Nos. 1 to 3 on one hand and the original
opponent No. 4 on the other respectively.
Learned Tribunal had also exonerated
respondent No.5 - United India Insurance
Company Limited from satisfying the award.
vii. Being aggrieved and dissatisfied with the
impugned judgment and award, the original
Claimant/appellant herein preferred the present
appeal on the point of quantum.
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3. Heard learned counsels for the parties.
4. Mr. Hiren M. Modi, learned counsel for the original
claimant/appellant herein vehemently submitted that though
the learned Tribunal had apportioned the liability for
satisfying the award in the ratio of 70:30, between and
amongst the original opponents Nos. 1 to 3 on one hand and
the original opponent No. 4 on the other, the learned Tribunal
has committed gross illegality in holding opponent nos.1 to 3
liable to pay 70% of the awarded amount and opponent no.4
liable to pay 30% of the awarded amount. He further
submitted the learned counsel has committed illegality in not
holding opponent Nos.1 to 4/respondent Nos.1 to 4 jointly and
severally liable to satisfy the award. He contended that the
said direction of the learned Tribunal is required to be
modified and respondent Nos.1 to 4 be held jointly and
severally liable to satisfy the award.
5. Learned counsel for the original claimant/appellant
herein further submitted that the learned Tribunal has
awarded meagre amount of compensation. He further
submitted a meagre sum of Rs.75,000/- under the head of
Pain, Shock and Sufferings. He further submitted that the
learned Tribunal has not awarded any amount of
compensation under the head of Loss of Amenities and cost
for Artificial Limb. In support of his contentions, learned
counsel for the appellant relied upon the judgments rendered
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by the Hon'ble Apex Court in the case of Mohd. Sabeer @
Shabir Hussain v. Regional Manager, U.P. State Road
Transport Corporation reported in [2022 SCC Online SC
1701] and Pappu Deo Yadav v. Naresh Kumar and Ors.
reported in (2022) 13 SCC 790. Relying upon the ratio of
aforesaid judgments, learned counsel for the appellant
submitted that just compensation be awarded to the appellant
and the impugned judgment and award is required to be
modified to that extent.
6. On the other hand, Mr. S.B. Parikh, learned counsel
appearing for the respondent No.3 - Insurance Company
vehemently submitted that there is no infirmity in the
impugned judgment and award and therefore, contended that
the instant appeal is liable to be dismissed. He further
submitted that the respondent Nos.1 to 4 are to be held jointly
and severally liable to satisfy the award, however, the
Insurance Company after satisfying the award may be
permitted to recover 30% of the awarded amount as
determined by the learned Tribunal from respondent No.4. In
support of his contentions, learned counsel for the respondent
No.3 - Insurance Company relied upon the judgment rendered
by the Hon'ble Apex Court in the case of Khenyei vs New
India Assurance Co. Ltd. & Ors. reported in (2015) 3 ACJ
1441.
7. Having considered the submissions of the learned
counsels for the parties and having regard to the facts and
circumstances of the present case, it is to be noted that the
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learned Tribunal had apportioned the liability for satisfying
the award in the ratio of 70:30, between and amongst the
original opponents Nos. 1 to 3 on one hand and the original
opponent No. 4 on the other. Learned Tribunal had also
exonerated respondent No.5 - United India Insurance
Company Limited from satisfying the award on the ground
that appellant is a gratuitous passenger. So far as the
exoneration of respondent No. 5 is concerned, the same has
not been challenged. The appellant, however, has challenged
the direction issued by the learned Tribunal regarding
satisfaction of the award. It is contended that though the
liability can be apportioned amongst and between the
respondent Nos.1 to 4, yet the learned Tribunal has
committed an error by directing to satisfy the award in the
ratio of liability as determined by it. It is settled preposition of
law that the liability can be determined, but respondent Nos.1
to 4 ought to have been held liable to satisfy the award jointly
and severally. In the case of Khenyei (supra), the Hon'ble
Apex Court at para no.18.(i) had observed as under:-
"18 (i) In the case of composite
negligence, plaintiff/claimant is entitled
to sue both or any one of the joint tort
feasors and to recover the entire
compensation as liability of joint tort
feasors is joint and several."
8. In view of the aforesaid judgment, the original claimant/
appellant herein can recover the entire amount of
compensation from any of the joint tort feasor. It is on record
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that the it is a case of composite negligence, therefore, the
appellant can recover the entire amount of compensation from
any of the joint tort feasor, therefore, the direction of the
learned Tribunal to opponent Nos.1 to 3 to satisfy 70% of the
awarded amount on the one hand and 30% by opponent no.4
is not sustainable. Therefore, respondent Nos.1 to 4 are jointly
and severally liable to satisfy the award.
9. Further, in the aforesaid judgment, the Hon'ble Apex
Court at para 18 (iii), held as under:-
"In case all the joint tort feasors have
been impleaded and evidence is
sufficient, it is open to the
court/tribunal to determine inter se
extent of composite negligence of the
drivers. However, determination of the
extent of negligence between the joint
tort feasors is only for the purpose of
their inter se liability so that one may
recover the sum from the other after
making whole of payment to the
plaintiff/claimant to the extent it has
satisfied the liability of the other. In
case both of them have been impleaded
and the apportionment/ extent of their
negligence has been determined by the
court/tribunal, in main case one joint
tort feasor can recover the amount from
the other in the execution proceedings."
10. Thus, in view of above settled legal preposition,
respondent No.3 - Insurance Company after satisfying the
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award can recover 30% of the awarded amount from
respondent No.4 in execution proceedings. Therefore, the
findings returned by the learned Tribunal on the point of
apportionment of liability and the direction to satisfy the
award is required to be modified to the above extent.
Accordingly, respondent Nos.1 to 4 shall be jointly and
severally liable to satisfy the award, however, at the first
instance, the respondent No.3 - Insurance Company shall
satisfy the award by depositing the entire awarded amount
and thereafter, respondent No.3 - Insurance Company is at
liberty to file execution proceedings to recover the 30% of the
awarded amount from opponent No.4/respondent No.4 herein.
11. So far as the quantum is concerned, it is pleaded and
proved on affidavit that at the time of the accident, the
appellant was earning Rs.2,000/- per month. Therefore, the
learned Tribunal has not committed any error in accepting the
income of the appellant at the time of accident as Rs.2,000/-
per month. It is also on record that at the time of the accident,
the appellant was aged about 54 years, therefore, the learned
Tribunal ought to have added 10% of the notional income to
the monthly income of the appellant on account of the future
prospects. Therefore, after adding 10% of the monthly income
to the notional income on account of the future prospects in
accordance with the ratio of the judgment rendered by the
Hon'ble Apex Court in the case of Sarla Verma and Ors. Vs.
Delhi Transport Corporation reported in 2009 AIR (SC)
3104 and National Insurance Company Ltd. Vs. Pranay
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Sethi reported in 2017 (16) SCC 680, the total monthly
income would come to Rs.2,200/- (i.e., Rs.2,000/- + Rs.200/-
(10% of Rs.2,000/-)) per month.
12. It is on record that the original claimant/appellant
herein has sustained disability to the extent of 80% body as a
whole. However, the learned Tribunal has considered the
functional disability to the extent of 40% body as a whole. It is
on record that the appellant herein sustained grievous injuries
and has undergone surgical operation thrice for the same,
resultantly, his left hand was amputated. Therefore, in my
considered view, the learned Tribunal could have considered
the appellant at least 60% functionally disabled, however, the
learned Tribunal have considered only 40% functional
disability. Therefore, the functional liability is considered as
60% body as a whole.
13. It is also on record that at the time of the accident, the
appellant was aged about 54 years, therefore the multiplier of
"9" is required to be applied in view of the ratio of the
judgment rendered by the Hon'ble Apex Court in the case of
Sarla Verma (supra). Thus, in view of the above discussions,
the appellant herein shall be entitled for a sum of
Rs.1,42,560/- (i.e, Rs.2,200/- X 60% (functional disability) X 12
X multiplier of "9") under the head of future loss of income.
14. The learned Tribunal has awarded a meagre sum of
Rs.75,000/- under the head of Pain, Shock and Sufferings. It
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is on record that the left hand of the appellant was amputed
and he had suffered lot on account of the accident, therefore,
it would be just and proper if a sum of Rs.2,00,000/- is
awarded under the head of Pain, Shock and Sufferings.
Therefore, in view of the ratio of the judgment rendered by
the Hon'ble Apex Court in the Case of Mohd. Sabeer (supra)
and Pappu Deo Yadav (supra), the compensation awarded
under the head of Pain, Shock and Sufferings is liable to be
enhanced. Thus, in view of the above discussions, the
compensation awarded by the learned Tribunal under head of
Pain, Shock and Sufferings is enhanced from Rs.75,000/- to
Rs.2,00,000/-.
15. The learned Tribunal has not awarded any amount of
compensation under the head of Loss of Amenities though it is
on record that after amputation of his left hand, the appellant
is unable to lead a normal life as he was leading prior to the
accident. Therefore, having regard to the ratio of judgment
rendered in the case of Mohd. Sabeer (supra) Pappu Deo
Yadav (supra), a sum of Rs.2,00,000/- is awarded under the
head of Loss of Amenities.
16. It is on record that the learned Tribunal has not awarded
any compensation under the head of Artificial Limb though it
is proved on record that as a result of the accident, the left
hand of the appellant was amputated. Therefore, in view of
the ratio of the judgment rendered by the Hon'ble Apex Court
in the case of Mohd. Sabeer (supra) & Pappu Deo Yadav
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(supra), a sum of Rs.5,00,000/- is awarded under this head of
Artificial limb.
17. Further, the learned Tribunal has awarded a sum of
Rs.12,000/- under the head of Actual Loss of Income,
Rs.5,000/- under the head of Medical Expenses and a sum of
Rs.15,000/- under the head of Special diet, transportation and
attendance charges. In my considered view, no inference is
required for the amounts awarded under these heads,
accordingly, the same are maintained.
18. Therefore, in view of the above discussions, the
appellant herein shall be entitled for the compensation under
the following heads.
Sr. No. Head Amount in rupees
1 Future loss of income 1,42,560/-
2 Pain, shock & sufferings. (+) 2,00,000/-
3 Loss of amenities (+) 2,00,000/-
4 Special Diet, Transportation (+) 15,000/-
and Attendance Charges.
5 Medical Expenses (+) 5,000/-
6 Actual loss of Income (+) 12,000/-
7 Artificial Limb (+) 5,00,000/-
8 Total Compensation 10,74,560/-
19. Originally, the original Claimant/appellant herein has
filed the Claim Petition seeking compensation to the tune of
Rs.3,00,000/-. However, in view of the above discussions, this
Court has awarded a total compensation of Rs.10,74,560/-. It
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is settled preposition of law in view of the judgment rendered
by the Hon'ble Apex Court in the case of Nagappa v.
Gurudayal Singh and Ors., reported in (2003) 2 SCC 274,
that the Tribunal/Court has to award the just compensation,
which can be more than that as claimed by the
claimant/appellant. Thus, in view of these discussions, the
appellant herein shall be entitled to a total compensation of
Rs.10,74,560/-. The learned Tribunal vide its judgment and
award dated 04.05.2012 has awarded a sum of Rs.1,93,400/-
as compensation. Therefore, the appellant shall be entitled for
an additional compensation to the tune of Rs.8,81,160/-(i.e.,
Rs.10,74,560/- - Rs.1,93,400/-). The learned Tribunal has
awarded interest at the rate of 7.5% per annum from the date
of filing of claim petition till its realization. The said rate of
interest is not interfered with and the same is maintained.
Therefore, the appellant herein shall be entitled for the same
rate of interest per annum on the additional amount of
compensation from the date of filing the claim Petition till
realization.
20. In view of the above discussions, the impugned judgment
and award stands modified to the aforesaid extent and
accordingly, the captioned appeal stands allowed.
21. The respondent no.3 - Insurance Company shall deposit
the additional amount of compensation along with interest
within a period of Eight weeks from the today. Upon
depositing the said amount, respondent No.3 - Insurance
Company shall be entitled to recover 30% share of liability of
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respondent No.4, from respondent No.4 by way of filing
Execution Proceedings.
22. Upon depositing the awarded amount, learned Tribunal
shall disburse the entire amount of compensation (excluding
deficit Court fee, if any) to the appellant herein, after due
verification.
23. Amount, if any, lying deposited with the Registry of this
Court shall be transmitted to the learned Tribunal concerned
forthwith. Records & Proceedings, if any be sent to the
learned Tribunal concerned. No order as to costs.
24. Pending application, if any, stands disposed of,
accordingly.
(MOOL CHAND TYAGI, J)
ARUN
