Gujarat High Court
Jaidip Hasmukhbhai Dholaria vs Gujarat State Road Transport ... on 26 November, 2025
NEUTRAL CITATION
C/FA/3361/2011 JUDGMENT DATED: 26/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3361 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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JAIDIP HASMUKHBHAI DHOLARIA
Versus
GUJARAT STATE ROAD TRANSPORT CORPORATION LTD
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Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1
MS HINA DESAI(1023) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 26/11/2025
ORAL JUDGMENT
1. The captioned appeal is filed against the impugned judgment and
award dated 03.09.2011 passed by the learned Tribunal (Auxiliary),
Morbi in MACP No.166/2008, whereby the learned Tribunal partly
allowed the claim petition and awarded a sum of Rs.1,77,200/- as a
compensation along with interest at the rate of 7.5% per annum from
the date of filing of claim petition till its realization.
2. The succinct facts leading to file the present appeal are that on
25.05.2008, the claimant/appellant herein was riding his motorcycle
bearing registration no.GJ-5EAF-6600 and at about 9:00 in the morning,
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when he reached near Bapuna Bavla on the road leading towards Morbi
Railway station, in the meantime, the respondent no.1 came by driving
the ST bus bearing registration no.GJ-18-V-9702 in rash and negligent
manner, so as to endanger the human life and thereby dashed with the
motorcycle of the claimant/appellant. In the said accident, the appellant
sustained grievous injuries and the FIR being I C.R. No.147/2008 came
to be registered under Sections 279 and 337 of IPC and Sections 177
and 184 of M.V. Act. It is also the case of the appellant before the
learned Tribunal that at the time of accident, he was aged about 22
years and sustained serious injury of fracture on his left leg and also
sustained the other injuries on the body. He remained admitted as
indoor patient in the hospital. It is also pleaded before the learned
Tribunal that at the time of accident, he was earning Rs.7,000/- per
month by doing a job in GIDC. Therefore, the appellant/claimant
claimed a sum of Rs.7,00,000/- as a compensation.
3. On being served, the respondent/ST Corporation filed the written
statement at Exh.20, thereby denying the contents pleaded in the claim
petition and prayed for rejection of the claim petition.
4. Having considered the pleadings of the parties, the learned
Tribunal framed the following issues at Exh.21:-
(1) Whether it is proved that the applicant/injured sustained the
injuries because of rash and negligent driving by the driver of vehicle
involved in the accident?
(2) What amount, if any, the claimant is/are entitled to have towards
compensation? and from whom?
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(3) What order?
5. In order to prove his claim, the claimant/appellant led the
following oral as well as documentary evidence:-
Sr. No. Particular Exh. No.
1. Affidavit of claimant in examination-in-chief 24
4. Panchnama of arrest of driver of offending vehicle 27
6. The respondent/ST Corporation led the oral evidence and filed
the affidavit in examination-in-chief of Mehboobbhai Hasanbhai/the
driver of the ST bus at Exh.34. Except the affidavit in examination-in-
chief of the driver, no other oral or documentary evidence was produced
on record by the respondent/ST Corporation.
7. Having considered the evidences on record, the learned Tribunal
had awarded a sum of Rs.2,21,500/- and thereafter deducted 20% from
the said amount on account of the contributory negligence of the
original claimant/appellant herein and hence awarded a net
compensation of Rs.1,77,200/- along with interest at the rate of 7.5%
per annum from the date of filing of claim petition till its realization.
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8. Heard learned counsels for the parties.
9. Ms. Amrita Ajmera, learned counsel appearing on behalf of the
original claimant/appellant vehemently submitted that the learned
Tribunal had ignored the oral as well as documentary evidence on
record and held contributorily negligent the original claimant/appellant to
the extent of 20% for causing the accident. She further submitted that
the motorcycle of the appellant was hit from the behind near the bridge
and therefore, he came under the rear wheel of the bus and sustained
the injuries. In support of her contention, learned counsel for the
appellant drawn the attention of the Court to FIR and charge sheet at
Exhs.25 and 28 respectively. She further submitted that the FIR was
lodged against the driver of the ST bus. As per FIR, the accident
occurred near the bridge while the ST bus was overtaking the
motorcycle of the appellant and the ST bus hit the motorcycle from the
behind and resultantly, the appellant came under the rear wheel of the
bus. She further submitted that after investigation, the prosecution
agency had also filed the charge sheet against the driver of the ST bus.
The charge sheet also transpires that the accident occurred while the
driver of the ST bus was overtaking the motorcycle of the appellant. She
further submitted that the claimant/appellant had also deposed before
the learned Tribunal on the same line and in the cross-examination, he
remained firm to his version. She further submitted that considering the
oral as well as documentary evidence, it cannot be held that the
claimant was contributorily negligent for causing the accident to the
extent of 20%. She further submitted that the accident occurred owing
to the sole negligence of the driver of the ST bus. Therefore, the finding
returned by the learned Tribunal on the point of negligence is required
to be reversed.
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10. Learned counsel for the appellant further submitted that the
appellant had pleaded in the pleadings that he was gainfully working as
a Dispatch Incharge at Soriso Ceramics Pvt. Ltd. and thereby drawing a
salary of Rs.7,000/- per month. She further submitted that the said
version was also proved by the appellant by way of filing the affidavit in
examination-in-chief. She further submitted that the said income of the
appellant was not challenged in the cross-examination. She further
submitted that the appellant had also filed the certificate issued by the
Soriso Ceramics Pvt. Ltd., whereby the Soriso Ceramics Pvt. Ltd.
certified that the appellant was working with the said company and was
getting a sum of Rs.9,000/- as a monthly salary. She further submitted
that the learned Tribunal miserably failed to appreciate these evidences
on record and determined the monthly notional income of the appellant
at Rs.2,500/-. She further submitted that the learned Tribunal had
considered the income at very lower side, therefore, the same is
required to be enhanced in the light of evidence available on record.
She further submitted that it is undisputed fact that at the time of
accident, the appellant was the young boy of 22 years; however, the
learned Tribunal had applied the multiplier of 15 in place of 18. She
further submitted that the learned Tribunal has not awarded any
compensation under the head of attendant charges, though the claimant
remained bedridden for a period of more than 6 months and he
underwent four surgical operations during that period and got admitted
time and again in the hospital. Therefore, a reasonable amount is
required to be awarded under this head. She further submitted that
though the appellant had proved on record the medical bills to the tune
of Rs.2,08,710/-; however, the learned Tribunal has awarded only a
sum of Rs.1,50,000/- under the head of medical expenses. She further
submitted that the learned Tribunal could have awarded the
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compensation under this head on the basis of actual bills produced by
the appellant on record. She further submitted that the learned Tribunal
has awarded a meagre amount of Rs.5,000/- under the head of special
diet and transportation though the appellant got admitted number of
times in the hospital. Therefore, a sum of Rs.25,000/- ought to have
been awarded under the head of special diet and transportation. She
further submitted that the learned Tribunal had totally ignored the fact
and the medical evidences on record that the appellant remained
badridden for a period of six months; however, the learned Tribunal had
awarded a meagre amount of Rs.2,500/- for actual loss of income for a
period of one month. She further submitted that the impugned judgment
and award is required to be modified to the above extent.
11. Per contra, Ms. Hina Desai, learned counsel appearing on behalf
of the respondent/ST Corporation vehemently submitted that at the time
of accident, the appellant was trying to overtake the bus, therefore, he
dashed with the bus and came below the rear wheel of the bus. She
further submitted that the driver of the bus had filed the affidavit in
examination-in-chief at Exh.34 and he was also cross-examined by the
advocate of the appellant and he remained firm to his version in the
cross-examination. He further submitted that the driver of the bus in his
deposition at Exh.34 had proved on record that the appellant was
negligent contributorily for causing the accident. She further submitted
that the learned Tribunal had not committed any error in holding that the
appellant was contributorily negligent for causing the accident to the
extent of 20%. Therefore, the finding returned by the learned Tribunal is
required to be upheld.
12. Learned counsel for the respondent/ST Corporation further
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submitted that the appellant could not prove the income on record by
leading the evidence, therefore, the income was not proved on record
hence, the learned Tribunal has rightly considered the monthly notional
income of Rs.2,500/- per month. She further submitted that the learned
Tribunal has committed the mistake of calculation in awarding the
compensation under the head of medical expenses. She submitted that
the total of the medical bills produced on record comes to Rs.1,05,235/-;
however, the learned Tribunal had awarded a sum of Rs.1,50,000/-
without any basis, therefore, the compensation awarded under this
head is required to be reduced to Rs.1,05,235/-. She further submitted
that the learned Tribunal has awarded the just compensation under the
heads of special diet and transportation, actual loss of income and
future loss of income, therefore, there is no infirmity in the impugned
judgment and award. Hence, the present appeal deserves to be
rejected.
13. Having considered the submissions of the learned counsels for
the parties and having gone through the record, it is to be noted that the
learned Tribunal has held the claimant/appellant contributorily negligent
for causing the accident to the extent of 20%. The learned Tribunal has
held that the accident occurred owing to the contributory negligence of
the appellant/claimant as he was trying to overtake the ST bus. The
perusal of the FIR at Exh.25 transpires that the said FIR was lodged by
the cousin brother of the appellant. In the said FIR, it is stated that the
ST bus hit the motor cycle from the behind and thereafter, the appellant
fell down on the road and was run over by the rear wheel of the bus.
After investigation, the prosecution agency had filed the charge sheet
against the driver of the bus. The said charge sheet was placed before
the learned Tribunal at Exh.28 on record. Perusal of the charge sheet
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also reveals that the accident occurred in the same manner as stated in
the FIR. The original claimant/appellant had also filed his affidavit in
examination-in-chief at Exh.24. In the said affidavit, he deposed on the
same line. He was cross-examined by the ST corporation, wherein he
was suggested that the bus came from the behind and dashed with the
motor cycle. The driver of the ST bus also filed his affidavit in
examination-in-chief at Exh.34. In the said affidavit, he stated that the
accident occurred owing to the sole negligence of the claimant/appellant
but in the cross-examination, he admitted that the bus in question was
the express bus therefore, he has to drive the said bus in speed so that
the passengers can reach at their destination in time. He also admitted
that while he was overtaking the motor cycle, the said motor cycle was
dashed with the bus. In the light of the documentary evidence in the
nature of FIR, charge sheet and the oral evidence in the nature of
affidavit in examination-in-chief of original claimant and cross-
examination of the driver of the ST bus, it is evident on record that the
accident occurred owing to the sole negligence of the driver of ST bus.
Thus, the learned Tribunal has committed error in holding the
claimant/appellant negligent to the extent of 20% for causing the
accident. Therefore, the finding returned by the learned Tribunal is
required to be reversed and accordingly, it is held that the accident had
occurred owing to the sole negligence of the driver of the
respondent/ST Corporation.
14. So far as the quantum is concerned, it is the case of the appellant
that he was working in Soriso Ceramics Pvt. Ltd. at the time of accident.
The appellant has not examined any officer from the said company to
prove said version or the salary of the appellant. The appellant had filed
a letter dated 20.12.2008 on record, whereby Soriso Ceramics Pvt. Ltd.
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certified that the appellant/claimant was working with the said company
as a Dispatch Incharge but the said letter has also not been proved on
record, therefore, the claimant failed to prove the income on record. In
the absence of proof of income, the learned Tribunal had determined
the income of the claimant/appellant as Rs.2,500/- per month which is
lower than the minimum wages prevalent at that time of accident. At the
relevant point of time, the minimum wages for skilled worker was
Rs.2,900/- per month. Therefore, the notional income of the appellant is
taken as Rs.2,900/-. At the time of accident, the claimant/appellant was
aged about 22 years; however, the learned Tribunal has not considered
the future prospects of the claimant. Therefore, 40% of the monthly
notional income is required to be added to the monthly income of the
claimant/appellant on account of future prospects of appellant. After
adding 40% of the notional monthly income on account of future
prospects of the claimant/appellant, the net monthly income for
calculating the future loss of income would come to Rs.4,060/- i.e.
(2,900+2,900X40%). The learned Tribunal has considered the
functional disability at 12% body as a whole. The said disability is not in
dispute. However, while calculating the future loss of income, the
learned Tribunal had applied the multiplier of 15 in place of 18 though at
the time of accident, the claimant was aged about 22 years.
Accordingly, after applying the multiplier of 18, the future loss of income
would come to Rs.1,05,235/-(4,060X12%X12X18).
15. The learned Tribunal has awarded a sum of Rs.10,000/- under
the head of pain, shock and suffering. It is on record that at the time of
accident, the claimant was the young boy of 22 years and remained
hospitalized for a long period and during the treatment, he underwent
four surgical operations. Therefore, in my considered view, the learned
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Tribunal has awarded a meager amount under the head of pain, shock
and suffering. Thus, considering the totality of facts and circumstances
of the present case, the compensation of Rs.10,000/- awarded under
this head is enhanced to Rs.50,000/-.
16. The learned Tribunal has awarded the compensation under the
head of medical expenses to the tune of Rs.1,50,000/-. The claimant
had proved the total bills of Rs.2,08,710/- on record. Therefore, the
claimant is entitled for the actual medical expenses incurred by him on
his treatment. Accordingly, a sum of Rs.2,08,710/- is awarded under the
head of medical expenses and the compensation awarded by the
learned Tribunal under this head is enhanced from Rs.1,50,000/- to
Rs.2,08,710/-. The learned Tribunal had awarded a meager amount of
Rs.5,000/- under the head of special diet and transportation. It is on
record that the appellant remained hospitalized for a long period and he
had to visit the Wockhardt Hospital and he had to travel for the same
from Morbi to Rajkot. Thus, considering the distance between Morbi and
Rajkot, his visits to hospital and his period of hospitalization, it would be
just and proper if the compensation of Rs.5,000/- awarded under this
head is enhanced to Rs.25,000/-.
17. The learned Tribunal has awarded a sum of Rs.2,500/- towards
the actual loss of income for a period of one month. However, it is on
record that the appellant underwent four surgical operations and he
remained hospitalized for 55 days in Wockhardt Hospital and for a
considerable period of time in hospital of Dr. Pethapara. Thus,
considering the period of hospitalization and period of medical
treatment, it would be just and proper if the compensation for actual loss
of income is awarded for six months. Accordingly, a sum of Rs.24,360/-
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i.e. (4,060X6) is awarded under the head of actual loss of income. It is
on record that though the appellant remained hospitalized for a long
period; however, learned Tribunal has not awarded any compensation
under the head of attendant charges. Therefore, a sum of Rs.24,360/- is
awarded for a period of six months as an attendant charges under this
head to the appellant. Thus, in view of the above discussions, the
appellant/claimant shall be entitled for the following amount of
compensation under the following heads:-
Sr. No. Particular Amount
1. Future loss of income 1,05,235/-
2. Pain, shock and suffering 50,000/-
3. Attendant charges 24,360/-
4. Medical expenses 2,08,710/-
5. Special diet and transportation 25,000/-
6. Actual loss of income for six months 24,360/-
Total 4,37,665/-
18. The learned Tribunal has awarded a compensation of
RS.1,77,200/-, therefore, the appellant/claimant shall be entitled for the
additional compensation of Rs.2,60,465/- i.e. (4,37,665-1,77,200). The
learned Tribunal has awarded the interest at the rate of 7.5% per
annum. The said rate of interest is maintained and accordingly, the
appellant/claimant shall be entitled for interest at the rate of 7.5% per
annum on the additional amount of compensation.
19. In view of the above discussions, the captioned appeal stands
allowed partly. The respondent is directed to deposit the additional
amount of compensation along with interest at the rate of 7.5% per
annum from the date of filing of claim petition till its realization within a
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period of six weeks from today. Upon depositing of the said amount, the
learned Tribunal shall disburse the said amount, after deducting deficit
of Court fee, if any, after due verification. The amount, if any, lying
deposited with the registry of this Court, the same shall be transmitted
to the learned Tribunal concerned forthwith. No order as to costs.
20. Record & Proceedings, if any, be sent back to the learned
Tribunal concerned.
(MOOL CHAND TYAGI, J)
HARSHIT
