Gujarat High Court
Jagdishbhai Khimabhai Jambucha vs Panchabhai Ghughabhai Bhil on 16 September, 2025
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2690 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J. L. ODEDRA
==========================================================
Approved for Reporting Yes No
==========================================================
JAGDISHBHAI KHIMABHAI JAMBUCHA
Versus
PANCHABHAI GHUGHABHAI BHIL & ORS.
==========================================================
Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,4
==========================================================
CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA
Date : 16/09/2025
ORAL JUDGMENT
1. The present Appeal arises against the judgment and award
dated 30.09.2019 passed in MACP No. 104 of 2017, by the
Learned Motor Accident Claim Tribunal (Main), Bhavnagar.
2. By way of the impugned judgment and award, the Tribunal
was pleased to partly allow the claim petition against the
opponent nos. 1, 2 and 3. The opponent no.4 was
exonerated. The total compensation as awarded by the
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
Tribunal was Rs. 3,81,610/- from the opponent nos. 1, 2
and 3 with simple interest at the rate of 9% from the date
of filing of the claim petition till its actual realization.
3. The accident in question had occurred on 10.09.2016. It
appears that the appellant was traveling on its motorcycle
bearing registration no. GJ-4-AR-4452 as a pillion rider
and the said motorcycle was being driven by the opponent
no.4. It appears that when were on Kantala-Mandava
Road, the driver of the Truck bearing registration no. GJ-
15-V-7783, driving his vehicle in rash and negligent
manner, collided his vehicle with the motorcycle. Hence,
the appellant suffered grievous injuries, and therefore, he
preferred the concerned claim petition before the Tribunal.
4. The present Appeal has been preferred for the purpose of
enhancement of compensation as ordered by the Tribunal.
5. Heard learned advocates for the respective parties.
6. Learned advocate Mr. Nishit Bhalodi, appearing for the
appellant, has submitted that the Tribunal, has assessed
the income of the mason at a lower amount i.e. only at the
rate of Rs.4,000/- per month. It was submitted that
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
nobody has doubted that the said appellant was not
engaged in masonry work, and therefore, even if this Court
were to take the minimum wages applicable, then too, for a
semi-skilled individual, the minimum wages have been
prescribed at Rs.7,800/- at the relevant point in time. It
was thus submitted that the said amount may kindly be
considered. It was next submitted that the Tribunal, after
elaborate discussion on disability at paragraph-12,
running into a total of four pages i.e. from page nos.8 to
11, has finally come to a conclusion that though the
disability for the lower limbs were adjudged at 62% by the
Doctor, the said disability for the purpose of a body as a
whole would be to the tune of 32%. It was submitted that
the said evidence indicates that the Doctor had
categorically stated that the injured cannot walk without
the help of another person and cannot do working with
either of his leg. It was, thus, submitted that resultantly,
not just 62%, but the functional disability of the injured
would be to the tune of 100% in as much as the person
who had 62% disability in his leg, and cannot stand on his
own, cannot do mason work and, therefore, functional
disability would be to the tune of 100%. He, therefore,
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
submitted that view of the Tribunal that the disability
would be 32% is only based on the arithmetical calculation
whereby, whilst calculating the disability for the body as a
whole, the disability for the lower limb is divided by two. It
was next submitted that the Tribunal has not discussed
the aspect of functional disability. Thus, it was urged that
the functional disability in the present matter may be
adjudged to 100%.
7. It was next submitted that the pain, shock and suffering
suffered by the appellant were enormous. For the said
purpose, the deposition of the appellant at Exhibit-34 was
relied on. It was specifically argued before this Court that
as stated in the internal page nos. 3 to 6 of the said
document at Exhibit-34, the appellant has suffered
numerous operations and that, constantly, he has
complaints pertaining to his leg. It was thus submitted that
the pain, shock and suffering may be revised from
Rs.20,000/- to Rs.1,00,000/-. It was next submitted that
under the head of special diet, attendant charges and
transportation cost, the Tribunal has awarded a sum of
Rs.15,000/-. It was thus submitted that in view of the
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
prolonged treatment, the same may kindly be enhanced. It
was submitted that the actual loss of income has been
assessed by the Tribunal at 12,000/-. It was submitted
that the appellant has been continuously suffered and
undergone operations till 17.10.2018. It was submitted
that irrespective of the treatment as aforesaid, the claimant
would be satisfied if the actual loss of income for a period
of 9 months and accordingly Rs.70,200/- may kindly be
awarded towards the actual loss of income. It was
submitted that the Tribunal has otherwise considered the
amount of Rs.88,850/- towards the medical expenses, for
which, the appellant does not have any grievances. Lastly,
it was submitted that for the loss of amenities and
enjoyment of life that the appellant would suffer, he may be
compensated with a sum of Rs.50,000/-. Thus, it was
submitted that suitable enhancement may be allowed as
prayed.
8. Mr. Rathin Raval, learned advocate appearing for the
Insurance Company has vehemently objected to the said
petition. He has, indeed, fairly stated that there is no
cross-examination on the categorical assertion of the said
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
deponent - Dr. Pinakin Indulal Vora at Exhibit-50 to the
effect that the injured will not be able to walk for the whole
of his life and that none of his legs work. Thus, the learned
advocate has not been able to satisfactorily explain as to
how a person having such injury would be able to do
Mason work. He has, therefore, urged this Court to take
appropriate view in the matter. He has also submitted that
a mason would be a semi-skilled individual and that as per
the prevalent notification, the minimum wages of the
mason would be to the tune of Rs.7,800/-. He also fairly
conceded that the prospective income, in the facts of the
present case, more so, when the appellant- injured is self-
employed, would be to the tune of 40%, he being the age of
33 years. He has further submitted that however on the
other heads, the view taken by the Tribunal is just and
proper, and therefore, no further interference is warranted
in the impugned judgment and award.
9. Having heard the learned advocates for the respective
parties, this Court proceeds to decide the present Appeal in
terms appearing hereinafter.
10. The point of determination that arises for consideration
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
before this Court in the present matter is as follows:
"Whether the disability and the consequent
compensation as awarded by the Tribunal are just
and proper? If not, what would be the just and proper
compensation in the facts of the present case?"
11. At the outset, the deposition of the deponent at Exhibit-
34, when examined, it appears that immediately after the
accident, which happened on 10.09.2016, the appellant
had taken treatment from 12.09.2016 till 05.11.2016, at
Civil Hospital, Ahmedabad as an in-door patient. During
that time, he had suffered three operations and a surgical
affixation of plate, to the left leg of the deponent, had been
done. Thereafter, it appears that the pus had developed in
his left leg, and therefore, after the discharge from the Civil
Hospital, he visited Dr. Pinakin Vora, Orthopedic Surgeon
at Bhavnagar. There, he was admitted as in-door patient
on 25.09.2017 and through an operation, an Ilizarov Ring (
meant for stabilizing bones/allowing weight bearing etc.)
was affixed to his left leg and he was on bed rest. From
14.06.2018, he was again admitted as in-door patient in
Bhavnagar at Sir T. Hospital and had to be operated in left
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
leg and was kept as indoor patient from 14.06.2018 till
24.06.2018. Thereafter again he developed complications
in his left leg and had to be admitted as in-door patient
from 19.07.2018 till 26.07.2018. After such discharge, he
suffered pain in his legs, and therefore, from 09.08.2018,
he was again admitted in Sir T. Hospital and the received
treatment till 29.08.2018. Unfortunately, he developed
further complications, and therefore, from 03.10.2018 till
17.10.2018, he received treatment as an in-door patient.
The last visit to Dr. Pinakin Vora on 27.06.2019, it appears
that the said Dr. Pinakin Vora had advised him that he
would still have to undergo operations in the knee of left
leg and on the hip in the right leg and that he will have to
get hip replacement for which he would have to bear costs
to the tune of Rs.2,00,000/-. In the cross-examination, the
learned advocate for the original opponent no. 3, i.e., the
Reliance General Insurance Company Limited, there are
suggestions that from 2017 to 2018 he had been admitted
for some other injury and not connected to the injury in
the accident. However, no further cross-examination
appears to have been made by the learned advocate for the
Insurance Company in that respect. Thus, the physical
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
disability of 62% is palatable.
12. It may be seen that the appellant was admittedly doing a
work of mason. Furthermore, a Dr. Pinakin Indulal Vora
has categorically deposed in his deposition, that the
appellant will not be able to move on his own for the rest of
his life and both of his legs cannot work. That being the
case, this Court is inclined to hold that the assessment
qua disability, made by the Tribunal was mechanical. It is
clear that merely because disability of lower limb of the
injured is 62%, it does not automatically translate that the
disability for the purpose of a claim petition would be half
for the body as a whole. Indeed, the general principle is
that the disability of the limbs, when translated to the
disability of the body as a whole, would be half of the
disability of limbs. However, what the Tribunal ought to do
is to assess the functional disability i.e., the effect of the
disability on the vocation or earning capacity of the
injured. In the present case, the appellant was a mason.
Naturally, if a Mason has not been able to work or walk on
his own without assistance of a 3rd person, he cannot, by
any stretch of imagination, possibly continue to work as a
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
mason. Thus, for the purpose of the present case, the
disability would be the functional disability which would be
to the tune of 100% and not 32%, as assessed by the
Tribunal.
13. Secondly, insofar as the monthly income of the injured is
concerned, there is no dispute on record that the
concerned person was not a mason. That the minimum
wages prevalent as on the date of the accident i.e. on
10.09.2016, the minimum wages would clearly be to the
tune of Rs.7,800/- qua this amount, there was no dispute
between the learned advocates before this Court. Thus,
this Court takes the minimum wages to the tune of Rs.
7,800/-. The future prospects will have to be added thereto
in terms of paragraph-59.4 of the judgment in the case of
National Insurance Co. Ltd vs Pranay Sethi reported at
2017 (16) SCC 680 which reads as follows:
"59.4. In case the deceased was self-employed or on a
fixed salary, an addition of 40% of the established income
should be the warrant where the deceased was below the
age of 40 years. An addition of 25% where the deceased
was between the age of 40 to 50 years and 10% where the
deceased was between the age of 50 to 60 years should be
regarded as the necessary method of computation. The
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
established income means the income minus the tax
component."
14. Thus, the total monthly salary would be to the tune of
Rs.10,920/- (Rs.7,800/- plus an addition to the extent of
40%). Thus, in the present case, the annual salary would
be to the tune of Rs.1,31,040/- (Rs.10,920 X 12). This
multiplicand will have be multiplied by the multiplier as
provided in the case of Sarla Verma & Ors vs Delhi
Transport Corp.& Anr reported at 2009 (2) SCC (CRI) 1002,
as the age of the appellant was of 33 years at the time of
the accident, therefore, the appropriate multiplier in terms
of the Sarla Verma (supra) would be 16. At this juncture,
the said paragraph of Sarla Verma (supra) is quoted herein
below for the ease of reference:
"15. We therefore hold that the multiplier to be used
should be as mentioned in column (4) of the Table above
(prepared by applying Susamma Thomas, Trilok Chandra
and Charlie), which starts with an operative multiplier of
18 (for the age groups of 15 to 20 and 21 to 25 years),
reduced by one unit for every five years, that is M-17 for
26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40
years, M-14 for 41 to 45 years, and M-13 for 46 to 50
years, then reduced by two units for every five years, that
is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7
for 61 to 65 years and M-5 for 66 to 70 years."
15. Thus, the multiplier applicable having been concluded at
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
16. Resultantly, the future loss would be Rs. 20,96,640/-
(Rs.10,920 X 12 X 16).
16. The appellant has a long history of medical interventions
in as much as he has undergone multiple operations and
the span of such treatment has continued for about 3 to 4
years. In such circumstances, this Court is inclined to
award a compensation under the heading of pain, shock
and suffering to the tune of Rs.1,00,000/-.
17. Insofar as the special diet, attendant charges and
transportation cost is concerned, again looking to the
treatment endured by the claimant and the fact that he will
not be able to walk by himself, an attendant will have to
continuously attend to him. Ordinarily, attendant cannot
function 24 hours a day, and therefore, for each 24 hours
a day, at least 3 attendants working in 3 shifts of 8 hours a
day would be needed by the injured. Furthermore, keeping
the attendant wages, for the Year-2016, and onwards as
the attendant will have to be retained throughout the life of
the victim, therefore, this Court is inclined to award a sum
of Rs.3,50,000/- towards attendant charges. Further, an
amount under special diet and transportation charges to
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
the tune of Rs.25,000/- are being awarded.
18. The actual loss suffered by the claimant has been limited
for a period of six months by the learned advocate for the
claimant. Therefore, for the period of six months, the
actual loss is awarded which comes to Rs.65,520/-
(Rs.10,920 X 6). The medical expenses, as awarded by the
Tribunal, are not disputed before this Court, and hence
they are retained.
19. Lastly, for the loss of amenities of life, this Court is aware
that in view of the judgment in the case of Raj Kumar Vs.
Ajay Kumar reported at AIRONLINE 2010 SC 144, it was
observed that where the disability is 100% or anything
above 50%, the corresponding loss of amenities may not be
awarded or it may be awarded at a token amount.
Therefore, under the head of loss of amenities, no further
amount need to be awarded.
20. Therefore, the total compensation would be as follows:
Sr. Particulars Amount (in Rs.)
No.
1 Loss of Future Income 20,96,640/-
2 Pain, Shock and Suffering 1,00,000/-
3 Actual Loss of Income 65,520/-
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
4 Medical Expenses 88,850/-
5 Attendant Charges 3,50,000/-
6 Special Diet and Transportation 25,000/-
Charges
Grand Total 27,26,010/-
Less: 3,81,610/-
Compensation already awarded by
the Tribunal
Enhanced amount awarded by this 23,44,400/-
Court
21. Accordingly, the amount comes to Rs.27,26,010/- less Rs.
3,81,610/- which would come to Rs. 23,44,400/-. The said
enhanced amount would incur interest at the rate of 9%
per annum from the date of filing of the claim petition and
till its actual realization.
22. The aforesaid compensation, shall be deposited by the
Insurance Company within a period of eight weeks from
the date of availability of the signed copy of this Judgment.
23. On deposit of the said amount, the Tribunal shall
forthwith disburse the said amount to the appellant
without any need of further creation of FDRs in view of the
fact that the accident is of the Year-2016. Applicable court
fees shall be paid by the appellant to the extent that it has
NEUTRAL CITATION
C/FA/2690/2020 JUDGMENT DATED: 16/09/2025
undefined
not been paid so far.
24. The present appeal stands disposed of as allowed to the
aforesaid extent.
25. R&P, if any, be remitted back to the concerned Tribunal.
26. Consequently, civil application, if any, preferred in the
Appeal shall be disposed of in view of the aforesaid orders.
(J. L. ODEDRA, J)
JIGAR J RABARI
