[Cites 13, Cited by 0]
Gujarat High Court
Nyalkhan Kamrakhan Sameja vs Babubhai Hirabhai Varvadiya on 23 February, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3567 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
√
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NYALKHAN KAMRAKHAN SAMEJA
Versus
BABUBHAI HIRABHAI VARVADIYA & ORS.
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Appearance:
MR HEMAL SHAH(6960) for the Appellant(s) No. 1
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 23/02/2026
ORAL JUDGMENT
[1.0] By way of First Appeal under Section 173 of the Motor Vehicles
Act, 1988, the appellant - original claimant has assailed the impugned
judgment and award dated 24.07.2019 passed by the learned Motor
Accident Claims Tribunal (Auxi.), Bhuj (for short "learned Tribunal") in
Motor Accident Claim Petition No.662/2005, whereby the learned
Tribunal has partly allowed the claim petition in favor of the appellant
- original claimant and awarded Rs.4,00,400/- to the appellant -
original claimant with interest at the rate of 9% per annum from the
date of claim petition.
[2.0] The brief facts leading to filing of present appeals and cross-
objections are as follows:
[2.1] On 24.06.2004, when the appellant - minor claimant was taking
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rest near the gate No.2/6 of F.R.M.-2/6 firm at Adani Port, Mundra-
Kachchh, at that time, opponent No.1 while in employment of
opponent No.2 started the Truck No.GJ-11-W-3059 and abruptly took
the Truck in reverse without giving any signal or blowing horn and
dashed the appellant and ran over him and thereby caused accident in
which the claimant sustained serious injuries causing permanently
disabled the appellant. Therefore, the appellant - original claimant
filed MACP seeking compensation of Rs.3 lakh which was thereafter
amended to Rs.8 lakh.
[2.2] After considering the evidence produced on record by the
respective parties, learned Tribunal has been pleased to hold the
original opponent No.1 solely negligent for the accident and awarded
compensation of Rs.4,00,400/- to the original claimant with 9%
interest per annum. Being aggrieved with the quantum of
compensation, the appellant - original claimant has filed the present
appeal seeking enhancement of compensation.
[3.0] Though served, respondent Nos.1 and 2 have not appeared
before this Court.
[4.0] Learned advocate Mr. Hemal Shah for the appellant has
submitted that the learned Tribunal has committed an error in not
awarding the just compensation. Learned Tribunal has not considered
the functional disability and though doctor has opined that claimant
sustained 86% disablement, only 37% disability is considered. The
appellant at the time of accident was aged 14 years and vehicle ran
over his leg due to which the appellant sustained crush injury and
sustained permanent partial disability of lower limb. He has further
submitted that even under the heads of pain, shock and suffering and
special diet, attendant and transportation charges, learned Tribunal
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has not awarded just compensation. He has submitted that the
learned Tribunal has straightway relied on the decision of Hon'ble
Supreme Court in the case of Master Mallikarjun vs. Divisional
Manager, The National Ins. Co. Ltd., reported in (2014) 14 SCC 396
and erred in assessing the physical disability for body as a whole. He
has also argued that though the doctor has not examined the
appellant, he has opined about the disablement. Hence, he has
requested to allow the present appeal.
[5.0] Learned advocate Mr. R.M. Meena appearing for the respondent
No.3 - insurance company has opposed the present appeal and
submitted that in absence of any evidence, the learned Tribunal has
properly considered 37% disability as the doctor has admitted in his
evidence that there was 37% disability body as a whole. Initially, he
had stated that there was 86% disablement. However, the doctor is
not having any right to assess the functional disablement. He has
further submitted that there is a difference between physical and
functional disablement and thus, no error has been committed by the
learned Tribunal. Hence, he has requested to dismiss the first appeal.
[6.0] Since present appeal raises challenge to quantum of
compensation only and involvement of vehicle, negligence and liability
is not in dispute, present first appeal is considered in narrow compass.
[7.0] Having heard learned advocate for the appellant - original
claimant and learned advocate appearing for the respondent No.3 -
insurance company and perusing the record, it appears that in absence
of any evidence with regard to income of original claimant, the
learned Tribunal has straightway awarded lump sum compensation of
Rs.4,00,400/- to the appellant - original claimant in view of decision of
Hon'ble Supreme Court in the case of Master Mallikarjun (Supra).
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[7.1] Perusing the record and proceeding, it appears that the accident
took place on 24.06.2004 whereas the complaint is filed on 08.04.2005
and the learned Tribunal after appreciating the evidence of original
claimant (Exh.27), complaint (Exh.33) and charge-sheet (Exh.41) has
held the driver of Truck No.GJ-11-W-3059 solely negligent for the
accident as while taking reverse, the accident took place causing
permanent disablement to the appellant - original claimant. However,
negligence, involvement of vehicle and liability is not in dispute, no
further discussion in that regard is required.
[8.0] The appeal is filed mainly on the ground that the learned
Tribunal has not awarded adequate compensation. Perusing the
record, it appears that disability certificate is produced at Exh.49
which is issued by Dr. H.M. Hadiya who is examined at Exh.30. He has
assessed 86% physical disability by stating as under:
- scar mark present (secondarily healed and STG mark) over Lt.
Knee joint and upto M/3 of Lt. Leg covering all Anterior, medial
and lateral aspect of Lt. Leg.
- 7º fixed equines deformity of Lt. Ankle joint 33%
- ROM: Lt. Knee - Knee joint is fixed in 0º 53%
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86%
- Sensation - Altered over scared area
- Walk with support
- Cannot do labour work
As the learned advocate for the appellant has mainly assailed
the impugned judgment and award on the ground that the learned
Tribunal has considered only 37% disability and requested to consider
100% physical disablement, at the outset, it is worth to mention that
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physical and functional disablement operate in different fields. In
order to prove the disablement, Dr. H.M. Hadiya is examined at Exh.30
wherein he has stated that patient / claimant can work with support
and cannot do labour work. It is very early stage to presume that
minor will have to do only labour work in future also. There is no bar
and there is no possibility that the minor is unable to do any other
alternative avocation or there is no possibility that the minor will earn
by doing any intellectual work or any sedentary work. Hence, such an
opinion of the doctor that the claimant that too aged 14 years cannot
do labour work is irrelevant. However, prior to dealing with the
evidence qua disablement, it is profitable to refer to the decision of
the Hon'ble Supreme Court in the case of Rajkumar vs. Ajaykumar &
Ors. reported in (2011)1 SCC 343, wherein the Hon'ble Supreme
Court has observed and held in paragraphs 8, 10 and 11 as under:
"8. Disability refers to any restriction or lack of ability to perform an activity in
the manner considered normal for a human-being. Permanent disability refers
to the residuary incapacity or loss of use of some part of the body, found
existing at the end of the period of treatment and recuperation, after
achieving the maximum bodily improvement or recovery which is likely to
remain for the remainder life of the injured. Temporary disability refers to the
incapacity or loss of use of some part of the body on account of the injury,
which will cease to exist at the end of the period of treatment and
recuperation. Permanent disability can be either partial or total. Partial
permanent disability refers to a person's inability to perform all the duties and
bodily functions that he could perform before the accident, though he is able
to perform some of them and is still able to engage in some gainful activity.
Total permanent disability refers to a person's inability to perform any
avocation or employment related activities as a result of the accident. The
permanent disabilities that may arise from motor accidents injuries, are of a
much wider range when compared to the physical disabilities which are
enumerated in the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any
of the disabilities enumerated in section 2(i) of the Disabilities Act are the
result of injuries sustained in a motor accident, they can be permanent
disabilities for the purpose of claiming compensation.
9. XXXXXXXXXXXXXXXXXXX
10. Where the claimant suffers a permanent disability as a result of injuries,
the assessment of compensation under the head of loss of future earnings,
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would depend upon the effect and impact of such permanent disability on his
earning capacity. The Tribunal should not mechanically apply the percentage
of permanent disability as the percentage of economic loss or loss of earning
capacity. In most of the cases, the percentage of economic loss, that is,
percentage of loss of earning capacity, arising from a permanent disability will
be different from the percentage of permanent disability. Some Tribunals
wrongly assume that in all cases, a particular extent (percentage) of
permanent disability would result in a corresponding loss of earning capacity,
and consequently, if the evidence produced show 45% as the permanent
disability, will hold that there is 45% loss of future earning capacity. In most of
the cases, equating the extent (percentage) of loss of earning capacity to the
extent (percentage) of permanent disability will result in award of either too
low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the
permanently disability on the earning capacity of the injured; and after
assessing the loss of earning capacity in terms of a percentage of the income, it
has to be quantified in terns of money, to arrive at the future loss of earnings
(by applying the standard multiplier method used to determine loss of
dependency). We may however note that in some cases, on appreciation of
evidence and assessment, the Tribunal may find that percentage of loss of
earning capacity as a result of the permanent disability, is approximately the
same as the percentage of permanent disability in which case, of course, the
Tribunal will adopt the said percentage for determination of compensation
(see for example, the decisions of this court in Arvind Kumar Mishra v. New
India Assurance Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M.,
National Insurance Co. Ltd. - 2010 (8) SCALE 567)."
Thus while assessing permanent disablement of the claimant
the learned Tribunal ought to have considered on the actual earning
capacity in following three steps as under :
I. The Tribunal has to ascertain what activities the claimant
could carry on in spite of the permanent disability and
what he could not do as a result of the permanent
disability.
II. The Tribunal has to ascertain the claimant's avocation,
profession and nature of work before the accident.
III. The Tribunal has to find out whether the claimant is
totally disabled from earning any kind of livelihood, or
whether in spite of the permanent disability, the claimant
could still effectively carry on the activities and functions,
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which he was earlier carrying on or whether he was
prevented or restricted from discharging his previous
activities and functions, but could carry on some other or
lesser scale of activities and functions so that he
continues to earn or can continue to earn his livelihood.
In view of above it is the duty of the Court and the Tribunals to
ascertain the functional disability of claimant in all injury cases filed
under the MV Act for getting compensation.
[8.1] In the cross-examination, Dr. H.M. Hadiya has admitted 37%
disablement body as a whole. If we peruse the nature of injury in
consonance with Schedule I of the Workmen Compensation Act, in
case of amputation of lower limb, the maximum disablement
mentioned is 90% in case of amputation of both feet. Herein, there is
no any amputation caused to the claimant. Even if for the sake of
argument, it is accepted that there is functional disablement and
permanent partial disablement then also, nature of injury is deformity
in the left ankle joint and there is no any opinion about shortening of
leg or any other deformity has been stated by the doctor. The said
doctor has not given any treatment to the claimant. In view of above,
it appears that the disability certificate is ready to use certificate.
However, if we consider that said certificate is used for assessment of
permanent partial disablement as it is even though as per Kessler's
Reference, 86% x 0.40 = 34.4%, which may be treated as disability
body as a whole. The learned Tribunal has assessed 37% disability
body as a whole. Therefore, question does not arise to consider 100%
functional disability. Hence, no interference is called for insofar as
disability assessed at 37% by the learned Tribunal is concerned. Hence,
argument canvassed by the learned advocate to consider 100% is not
accepted.
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[9.0] So far as quantum of compensation is concerned, there is no
thumb rule that in all cases, decision of Hon'ble Supreme Court in the
case of Master Mallikarjun (Supra) is required to be followed. It is
pertinent to note that the compensation is required to be calculated
on case to case basis. However, the learned Tribunal relying on the
decision of the Hon'ble Supreme Court in the case of Master
Mllikarjun (Supra) has awarded lump sum compensation to the
appellant - original claimant which is not permissible in view of the
fact that the Hon'ble Supreme Court in the said decision has not fixed
the parameters as inviolable standard and declared that in exceptional
circumstances the Tribunal and the Court would be empowered to
grant more as per the factual requirement which varies from case to
case. In the case on hand, as discussed in earlier part and also in the
case of Baby Sakshi Greola Vs. Manzoor Ahmed Simon and Anr,
reported in 2024 INSC 963, the Hon'ble Supreme Court referring to its
decision in the case of Kajal vs. Jagdish Chand and Others reported
in (2020) 4 SCC 413 more particularly in paragraphs 26 and 27 and in
the case of Master Ayush vs. Branch Manager, Reliance General
Insurance Company Limited and Anr. reported in (2022) 7 SCC 738
more particularly in paragraph 14, has held that the determination of
damages in personal injury cases is not easy. The mental and physical
loss cannot be computed in terms of money but there is no other way
to compensate the victim except by payment of just compensation. In
this regard paragraphs 23 and 24 of the case of Kajal (Supra) are
required to be considered. Herein the age of minor was only 14 years
at the time of accident and he will miss out the enjoyment with the
friends, he cannot enjoy the pleasure of life and also miss out fun of
childhood. Herein, due to injuries the minor is in a vegetable existence.
Hence, the learned Tribunal has committed a grave error in awarding
lump sum compensation of Rs.4,00,400/- to the appellant - original
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claimant by straightway relying on the decision of the Hon'ble
Supreme Court in the case of Master Mallikarjun (Supra) is not
acceptable.
[9.1] It is needless to state that even in the case of a minor, as per the
law laid down by the Hon'ble Supreme Court in Hitesh Nagjibhai
Patel v. Bababhai Nagjibhai Rabari & Anr. reported in 2025 INSC
1070, the Tribunal or the High Court, while dealing with a case
involving a child who has suffered injuries or has died, is required to
assess loss of income on the basis of the minimum wages payable to a
skilled worker in the concerned State at the relevant point of time.
Therefore, in the present case, as the accident was occurred on
24.06.2004 and the rate of minimum wages for unskilled person of
that time is Rs.2200/-, the monthly income of the appellant is required
to be reassessed as Rs.2200/-. Considering the nature of injury and
age of the victim and has sustained the partial permanent disability
and other consequential losses of said injury, claimant is entitled for
getting the compensation in view of the decision of the Hon'ble
Supreme Court in the case of Kajal (Supra) wherein, it has been held
that the Tribunal shall award the compensation very conservatively
keeping in mind the degree of deprivation and the loss caused by such
deprivation which can be termed as "just compensation" as insured /
injured claimant has to face the consequences throughout his life and
that should not be any token damages. Even, in the case of Master
Ayush vs. Branch Manager, Reliance General Insurance Company
Limited and Anr. reported in (2022) 7 SCC 738, relying on the decision
in the case of Kajal (Supra), the Hon'ble Supreme Court observed in
paragraph No.7 as under:
"7. It was also argued that in a judgment reported as Kajal v. Jagdish
Chand2, the injured was a 12 years old girl who had suffered an injury to
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the extent that her IQ got less than 20% as compared to a child of her age
and the medical board had assessed her social age to be only of a 9-
months' old child. This Court had recognized that Schedule II of the Act
could be used as a guide for the multiplier to be applied in each case. This
Court in the aforesaid case held as under (SCC pp. 419, 421 & 426, paras 6,
12 & 27)
"6. It is impossible to equate human suffering and personal
deprivation with money. However, this is what the Act enjoins
upon the courts to do. The court has to make a judicious
attempt to award damages, so as to compensate the claimant
for the loss suffered by the victim. On the one hand, the
compensation should not be assessed very conservatively, but
on the other hand, the compensation should also not be
assessed in so liberal a fashion so as to make it a bounty to the
claimant. The court while assessing the compensation should
have regard to the degree of deprivation and the loss caused
by such deprivation. Such compensation is what is termed as
just compensation. The compensation or damages assessed for
personal injuries should be substantial to compensate the
injured for the deprivation suffered by the injured throughout
his/her life. They should not be just token damages.
xxx xxx xxx
12. The assesment of damages in personal injury cases raises
great difficulties. It is not easy to convert the physical and
mental loss into monetary terms. There has to be a measure of
calculated guesswork and conjecture. An assessment, as best
as can, in the circumstances, should be made.
xxx xxx xxx
27. One factor which must be kept in mind while assessing the
compensation in a case like the present one is that the claim
can be awarded only once. The claimant cannot come back to
court for enhancement of award at a later stage praying that
something extra has been spent. Therefore, the courts or the
Tribunals assessing the compensation in a case of 100%
disability, especially where there is mental disability also,
should take a liberal view of the matter when awarding the
compensation. While awarding this amount, we are not only
taking the physical disability but also the mental disability and
various other factors. This child will remain bedridden for life.
Her mental age will be that of a nine-month-old child.
Effectively, while her body grows, she will remain a small baby.
We are dealing with a girl who will physically become a
woman but will mentally remain a 9-month-old child. This girl
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will miss out playing with her friends. She cannot
communicate; she cannot enjoy the pleasures of life; she
cannot even be amused by watching cartoons or films; she will
miss out the fun of childhood, the excitement of youth; the
pleasures of a marital life; she cannot have children who she
can love, let alone grandchildren. She will have no pleasure.
Her's is a vegetable existence. Therefore, we feel in the
peculiar facts and circumstances of the case even after taking
a very conservative view of the matter an amount payable for
the pain and suffering of this child should be at least Rs
15,00,000."
Thus, the Hon'ble Supreme Court in the aforesaid case relating
to a minor has considered the multiplier of 18.
[9.2] Further, compensation is required to be awarded once and for
all, as the victim is not at fault, and it is the duty of the Tribunal to
award just compensation. Considering the overall facts and
circumstances relating to the treatment undergone by the claimant,
mental agony, pain, disablement, loss of future earning capacity,
expenditure incurred towards hospitalization, nutritious diet, and
attendant charges, the said aspects were required to be duly taken
into consideration. However, the learned Tribunal has not properly
appreciated these factors and has failed to award just compensation
under the heads of non-pecuniary damages, including loss of
amenities. It is also pertinent to observe that adopting a sensitive
approach is crucial for the Tribunal, as it plays a vital role in ensuring
not only justice to the victim of a motor accident but also in
determining fair and reasonable compensation. The Tribunal is
expected to act with empathy so as to prevent further trauma, since
victims of road accidents and their families often suffer severe
physical and emotional distress, and a humane approach by the
adjudicating authority instills a sense of support and understanding.
The Hon'ble Supreme Court in the case of Sidram vs. Divisional
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Manager, United India Insurance Company Limited and Anr.
reported in (2023) 3 SCC 439 relying on its decision in the case of
Pappu Deo Yadav vs. Naresh Kumar reported in (2022) 13 SCC 790
has observed and held in paragraph 113 as under:
"113. Before we close this matter, it needs to be underlined, as observed in
Pappu Deo Yadav (supra) that Courts should be mindful that a serious injury
not only permanently imposes physical limitations and disabilities but too
often inflicts deep mental and emotional scars upon the victim. The
attendant trauma of the victim's having to live in a world entirely different
from the one she or he is born into, as an invalid, and with degrees of
dependence on others, robbed of complete personal choice or autonomy,
should forever be in the judge's mind, whenever tasked to adjudge
compensation claims. Severe limitations inflicted due to such injuries
undermine the dignity (which is now recognized as an intrinsic component
of the right to life under Article 21 of the individual, thus depriving the
person of the essence of the right to a wholesome life which she or he had
lived, hitherto. From the world of the able bodied, the victim is thrust into
the world of the disabled, itself most discomfiting and unsettling. If courts
nit-pick and award niggardly amounts oblivious of these circumstances,
there is resultant affront to the injured victim."
Thus, considering future prospects of the claimant at 40% in
view of decision of National Insurance Company Ltd. Vs. Pranay
Sethi reported in 2017 ACJ 2700, future monthly prospective income
of the claimant would come to Rs.3080 [Rs.2200 + Rs.880 (40% of
Rs.2200)] and considering the same with 37% disability, future
monthly loss of income would come to Rs.1940/- [(Rs.3080 - Rs.1140
(37% of Rs.3080)] and applying multiplier of 18, future loss of income
for which the appellant - original claimant would be entitled to is
Rs.4,19,040/- (Rs.1940 x 12 x 18).
[9.3] Further, considering the nature of injury and hospitalization of
the claimant, the claimant is entitled to compensation of Rs.6600/-
(Rs.2200 x 3) towards actual loss of income for a period of three
months. The claimant in his affidavit has stated that he has spent
Rs.50,000/- towards medical expenses, special diet, attendant charges
and transportation expenses but there is no any evidence in that
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regard, however, considering the nature of injury and disability
sustained by the claimant, in the considered opinion of this Court, it
would be just and proper to award Rs.50,000/- under the heads of
medical expenses, special diet, attendant charges and
transportation expenses. Further, in the considered opinion of this
Court, it would be just and proper to award Rs.50,000/- under the
head of pain, shock and suffering.
[10.0] As discussed above, the appellant is entitled to compensation
which is reassessed and computed as under:
Heads Awarded by Reassessed by this Court
Tribunal
Future economic Rs.4,00,400/- Rs.4,19,040/-
loss lump sum
Actual Loss of compensation Rs.6,600/-
income
Pain, shock and Rs.50,000/-
suffering
Transportation, Rs.50,000/-
special diet and
attendant charges
Rs.4,00,400/- Rs.5,25,640/-
Thus, the lump sum compensation of Rs.4,00,400/- as awarded
by the learned Tribunal is on lower side, for the reasons recorded
hereinabove, and same is reassessed at Rs.5,25,640/-.
[11.0] In wake of aforesaid conspectus, present appeal is partly
allowed. The impugned judgment and award dated 24.07.2019 passed
by the learned Motor Accident Claims Tribunal (Auxi.), Bhuj in Motor
Accident Claim Petition No.662/2005 is hereby modified and it is held
that the appellant - original claimant is entitled to reassessed
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compensation of Rs.5,25,640/- alongwith proportionate costs and
interest as awarded by the learned Tribunal. The respondents shall
deposit said reassessed amount of compensation with the learned
Tribunal within a period of four weeks from the date of receipt of this
judgment.
[12.0] Record and proceedings be remitted back to the concerned
Tribunal forthwith. The Tribunal is directed to recover or deduct the
deficit court fees on enhanced amount and thereafter disburse the
amount accordingly.
Sd/-
(HASMUKH D. SUTHAR, J.)
Ajay
