[Cites 2, Cited by 0]

Gujarat High Court

Dinesh Raghunathrai Gakhar vs Zala Prathvisinh Laxmansinh on 27 January, 2026

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                          C/FA/1578/2015                                          JUDGMENT DATED: 27/01/2026

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/FIRST APPEAL NO. 1578 of 2015


                     FOR APPROVAL AND SIGNATURE:


                     HONOURABLE MR.JUSTICE J. L. ODEDRA

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                                 Approved for Reporting                          Yes            No

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                                              DINESH RAGHUNATHRAI GAKHAR
                                                          Versus
                                           ZALA PRATHVISINH LAXMANSINH & ORS.
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                     Appearance:
                     MR ANAND B GOGIA(5849) for the Appellant(s) No. 1
                     MR BB GOGIA(5851) for the Appellant(s) No. 1
                     MS KAJAL L KALWANI(6623) for the Appellant(s) No. 1
                     MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
                     RULE SERVED for the Defendant(s) No. 1,2
                     ==========================================================

                        CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA

                                                         Date : 27/01/2026

                                                        ORAL JUDGMENT

1. The present Appeal arises from the judgment and award

dated 30.04.2015 passed in MACP No.326 of 2002 by the

learned Motor Accident Claims Tribunal (Aux.),

Gandhidham - Kachchh.

2. By way of the impugned judgment and award, the learned

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Tribunal was pleased to order that the claimant (present

appellant) was entitled to claim an amount of

Rs.1,96,223/- with proportionate costs and interest at the

rate of 9% per annum from the date of filing of the claim

petition till its actual realization from the opponents who

were held liable, jointly and severally.

3. At the outset, the accident in question may be examined. It

appears that the appellant was traveling in his car with

certain individuals - Lalit Lakhwani, Vikaschandra More

and Randhir. The car was a Maruti Esteem car bearing

registration no. GJ-12-P-1160. They were traveling from

Gandhidham to Mata No Madh. It appears that when they

reached near Sag River, Anjar, allegedly, a luxury bus

bearing registration no.GJ-12-T-4384, coming from Anjar,

allegedly on wrong side, dashed against the Maruti Esteem

car belonging to the appellant and as a result, the

appellant sustained injuries over his right leg, chest, head

and other body parts. The appellant also suffered partial

disablement owing to the injuries and hence, the claim

petition.

4. The impugned judgment and award has been challenged by

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the appellant both on the account of negligence and on

quantum.

5. Learned advocate for the appellant Mr. Anand B Gogia has

submitted that the Tribunal has not properly discussed the

aspect of negligence and that it has only reasoned that it

was a head-on collision and therefore, 50% of negligence

has been attributed to the appellant (original claimant). It

was submitted that the same is to the detriment and

prejudice of the appellant as no other factors pertaining to

the accident were considered by the Tribunal. It was

submitted that in the affidavit of examination-in-chief, the

appellant has specifically pleaded that it was the offending

vehicle - luxury bus which was being driven on the wrong

side, and therefore, no negligence could have been possibly

attributed to the appellant. Attention of this Court was also

drawn to the FIR and Panchmnama to submit that no

negligence can possibly be attributed to the appellant.

6. Arguing on the quantum, it was submitted that as such,

the Tribunal has not committed any error insofar as

assessing yearly income of the appellant at Rs.2,80,000/-.

However, he submitted that the fact remains that the

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appellant was engaged in hotel business as he is one of the

partners of Hotel City Plaza. Furthermore, it was also

submitted that the appellant was also managing and

running Hotel Aakashdeep at Gandhidham. It was, thus,

submitted that in terms of the judgment in case of National

Insurance Co. Ltd vs Pranay Sethi reported at 2017 (16)

SCC 680, the appellant is entitled for prospective income to

the tune of 40%. It was, therefore, urged that appropriate

prospective income ought to have been factored while

arriving at the future loss of income of the appellant.

Therefore, it was urged that the multiplicand may be

considered at Rs.3,92,000/-(Rs.2,80,000 X 1.40).

7. It was next submitted that the age of the appellant, as on

the date of the accident, was 27 years. It was, thus,

submitted that in terms of the judgment of Sarla Verma &

Ors vs Delhi Transport Corp.& Anr. reported at 2009 (2)

SCC (CRI) 1002, the applicable multiplier would be 17.

Multiplying the said multiplier with multiplicand i.e.,

Rs.3,92,000/-, the future loss of income may be

calculated, subject to the extent of the disability suffered

by the appellant. It was also submitted that in the

Disability Certificate, Exhibit 38, the learned advocate for

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the other side i.e., learned advocate B J Bhindi, has made

an endorsement to the effect, that if 16% disability is taken

to be the disability for the body as a whole, the same would

be admitted by the other side. It was submitted that,

however, the Tribunal has ignored the said endorsement

and has taken the disability at 8%, which may kindly be

corrected. It was further submitted that accordingly, once

the said disability is factored into, the Future Loss of

Income may kindly be considered at Rs.10,66,240/-

(calculated by multiplying Rs.3,92,000/- X 17 X 16%).

8. It was also submitted that owing to serious injuries

suffered by the appellant, appropriate amounts under

Attendant Charges, Special Diet and Medical Expenses

may be awarded. It was prayed that Rs.50,000/- each

under the head of Special Diet, Attendant Charges and

Medical Expenses may be awarded. It was also submitted

that, moreover, under the head of Pain, Shock and

Suffering, an additional amount of Rs.50,000/- may kindly

be awarded.

9. None has appeared for respondent nos.1 and 2, though

they have been served.

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10. Learned advocate for the respondent no.3 - Insurance

Company Mr. Tanmay Karia has submitted that the

Tribunal's judgment and award is not erroneous to any

extent, and therefore, it may kindly be retained. It was

submitted that the Tribunal, after assessing the medical

papers and the nature of injury suffered by the appellant,

has correctly assessed the negligence of the appellant at

8%. It was submitted that the Tribunal would have had the

occasion to examine, first hand, the status of the disability

suffered by the appellant, and therefore, the assessment by

the Tribunal may not be disturbed.

11. It was next submitted that looking to the medical bills on

record, they are totaling to the tune of Rs.2,647/-. It was

submitted that, therefore, it can safely be assumed that the

treatment did not last too long. It was thus submitted that,

therefore, the amounts claimed under the head of Special

Diet to the tune of Rs.50,000/- would be highly

exaggerated. Similarly, it was submitted that for Attendant

Charges also, a sum of Rs.50,000/- as claimed by the

appellant cannot be sustained. It was submitted that de

hors any additional medical documents, even the sum

awarded towards medical expenses i.e., Rs.2,647.65 would

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be sustainable and no additional amount, as claimed by

the learned advocate for the appellant may be awarded. It

was submitted that even when the disability suffered by

the appellant is only to the extent of 8%, and the expenses

towards medical treatment is only to the tune of

Rs.2,647.65, amount awarded by the Tribunal under the

head of Pain, Shock and Suffering viz., Rs.3,000/- is also

sustainable. It was thus submitted that the Tribunal's

award may kindly be sustained.

12. Having heard learned advocates for the respective parties,

this Court proceeds to decide the present appeal in terms

appearing hereinafter.

13. The points of determination which arise for consideration

of this Court in the present matter are as follows:

1. Whether the negligence of 50%, attributed to the

appellant in the present case, is correct? If not, what

would be the actual negligence liable to be attributed to

the appellant?

2. Whether the Tribunal has correctly assessed the

compensation liable to be awarded to the appellant? If

not, what would be the compensation liable to be

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awarded to the appellant?

14. At the outset, it may be noted that for the negligence, the

Tribunal has stated that it was a head-on collision.

However, it may be noted that in the present case, the

affidavit of examination-in-chief of the appellant (original

claimant) in terms states that he was traveling on the

correct side of the road and that it was the offending

vehicle - luxury bus which had veered towards the vehicle

of the appellant and had caused a collision. Now, to check

the veracity of such assertion, this Court is inclined to look

into the corresponding FIR and Panchnama. It may be

noted that the FIR has been lodged by the victim himself,

wherein it has been stated by the victim that it was the

offending vehicle - the luxury bus, which had veered

towards the wrong side and caused the accident. Looking

to the Panchnama, again, it may be seen that the road was

16 ft. wide and the offending vehicle - luxury bus is stated

to be lying on the road itself. The Panchnama further

indicates that the other vehicle i.e., the vehicle in which

the appellant was traveling, was also lying nearby. Thus, it

can be seen that after the accident, the vehicles had not

been moved.

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15. Under the Panchnama, the bus is stated to be lying in the

middle of the road. Naturally therefore, on the left side of

the bus, there will be at least a gap of about 5 to 7 ft. for

the bus to be said to be lying in the middle of the road.

Again, as far as the damage that the accident has caused

to the bus, it can be seen that the damage is on the front

part of the vehicle, though in the Panchnama, it has been

described as a damage towards the driver side. Now,

"damage to the driver side" could be construed as follows:

(a) It could be damage on the front part of vehicle,

towards the driver side i.e., towards the right hand

side of the front part;

(b)It could be damage on the right side of the bus

(where the door from which the driver usually boards

the bus is situated) as that part of bus also would be

towards the right hand side of the driver.

16. However, no damage is reflected on the said door, and

therefore, it can be deduced that the accident so occurred

that there was a damage on front part of the bus, towards

the side where the driver sits. Insofar as the damage to the

car is concerned, the damage is occurred towards the

bonnet, engine and the door towards the driver side. Thus,

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the impact was such that it damaged not only the bonnet

and the engine but also the door towards the driver.

17. Considering that the bus was lying in middle of the road

and that the damage was towards the side of the driver of

the luxury bus, it can be deduced that it was the bus

which veered towards the right, causing the accident.

Thus, the negligence of the driver of the car (present

appellant) is liable to be reduced to 10% only. This would

be more reasonable and practical assessment of the

negligence attributed to the driver.

18. Insofar as the quantum is concerned, the yearly income of

the appellant is not disputed to the extent of

Rs.2,80,000/-, as assessed by the Tribunal. However, to

that, prospective income to the tune of 40%, is liable to be

awarded in terms of the judgment in case of Pranay Sethi.

Relevant paragraph of the judgment in case of Pranay Sethi

(supra) is quoted hereinbelow for the ease of reference:

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

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regarded as the necessary method of computation. The established income means the income minus the tax component.

19. Prospective income, when factored to the tune of 40%, the

yearly income would be Rs.3,92,000/- (calculated by

multiplying Rs.2,80,000 /- with 1.40).

20. Now, the disability. It appears that the endorsement on

the disability certificate by the learned advocate for the

other side reads as follows:

"Body As Hole (sic., whole) 16% Disablety (sic., disability) admitted.

Sign/-

(B.J. Bhindi) advocate D.8/1/10

seen signature/-

(S.H. Sachde) Adv for oppo.

8-1-10"

21. The advocate, Ms. S H Sachde was a learned advocate for

the Insurance Company. Her endorsement, as can be seen,

is only, "seen". The same merely indicates that she, as an

advocate for the Insurance Company has become aware of

the "inclination" of the learned advocate for the applicant

to limit the disability of the injured - applicant to 16%.

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However, this does not translate to her accepting the so

called proposal of the applicant to limit the disability of the

applicnat at 16%. Despite this factural position, it appear

that the applicant did not deem it necessary to examine the

doctor issuing the Disability Certificate. This, of course, is

to the peril of the applicant. It was in these circumstances

that the Tribual has assessed the disability at 8% for the

body as a whole. Indeed, it was the Tribunal who had seen

the applicant, first hahnd. Moreover, the cost treatment of

the injured applicant too was of a meager amount of

Rs.2,648/-. And, it is the disability, post treatment, which

the applicant continues to suffer with,which matters. And

in absence of the applicant refraining from examining the

doctor issuing the Disability Certificate, this Court would

be very circumspect in reassessing disability. Hence, this

Court too retains the finding of the Tribunal on disabiilty at

8%, for the body as a whole. In the circumstances, the

computation on Future Loss of Income would be

Rs.5,33,120/- (computed:- Rs.3,92,000/- X 17 X 8%).

22. However, the fact remains that the negligence attributable

to the appellant has been assessed by this Court at 10%.

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Therefore, the total compensation, liable to be deducted

would be to the extent of 10%.

23. Insofar as the medical expenses are concerned, the

Tribunal has correctly taken the said medical expenses at

Rs.2,646/-, for the reason that the bills have been

produced by appellant - original claimant at document

Exhibit-36. The total whereof is Rs.2647.65, rounded to

Rs.2,648/-.

24. Insofar as the compensation on ground of Special Diet and

Attendant Charges, there is nothing on the record to

indicate that the the appellant was admitted for a

prolonged period and would have required for attendant

charges. However, the fact remains that for the treatment

and the nature of injuries as assessed by Tribunal, the

Tribunal has awarded attendant charges to the tune of

Rs.6,000/-. Therefore, this Court is inclined to sustain the

same.

25. Similarly, for an accident which had occurred in the year

of 2002, the amount of Pain, Shock and Suffering has been

assessed by the Tribunal at Rs.3,000/- which, this Court,

in the overall circumstances of the matter, is inclined to

award at Rs.10,000/-.

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26. Accordingly the total compensation would be as follows:

Sr. Particulars Amount awarded Amount No. by the Tribunal determined by (in Rs.) this Court (in Rs.) 1 Yearly Income 2,80,000/- 2,80,000/- 2 Prospective Income NIL 40%

4 Disability 8% 8% 5 Future Loss of Income 3,80,800/- Rs.5,33,120/-

(Rs.3,92,000/- X 17 X 8%) 6 Special Diet and Attendant 6,000/- 6,000/-

Charges 7 Medical Expenses 2,646/- 2,648/- 8 Pain, Shock and Suffering 3,000/- 10,000/-

                                    TOTAL                                    3,92,446/-            5,51,768/-
                                    Negligence :                                50%                    10%
                                    TOTAL                                    1,96,223/-           4,96,591.2
                                                                                                 Rounded of to
                                                                                                 Rs.4,96,591/-
                                    Less:                                                          1,96,223/-
                                    Amount already awarded by
                                    the Tribunal
                                    Enhanced amount awarded                                       3,00,368/-
                                    by this Court                                                Rounded of to
                                                                                                 Rs.3,00,370/-