[Cites 10, Cited by 0]

Gujarat High Court

Trikambhai Bhimjibhai Rathod vs Mohmad Nanjibhai Pathan on 4 May, 2026

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                            C/FA/2140/2015                                     JUDGMENT DATED: 04/05/2026

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                             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/FIRST APPEAL NO. 2140 of 2015

                       FOR APPROVAL AND SIGNATURE:
                       HONOURABLE MS. JUSTICE NISHA M. THAKORE

                      =============================================
                                  Approved for Reporting                       Yes          No
                                                                                            NO
                      =============================================
                                              TRIKAMBHAI BHIMJIBHAI RATHOD
                                                          Versus
                                             MOHMAD NANJIBHAI PATHAN & ANR.
                      =============================================
                      Appearance:
                      MR. VISHAL P THAKKER(7079) for the Appellant(s) No. 1
                      DISMISSED FOR NON PROSECUTION for the Defendant(s) No. 1
                      MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
                      MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
                      =============================================
                        CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                                       Date : 04/05/2026
                                       ORAL JUDGMENT

1. The present appeal is filed at the instance of the original

claimant under Section 173 of the Motor Vehicle Act, 1988,

being aggrieved and dissatisfied with the judgment and award

dated 28th July 2015, passed by the learned Motor Accident

Claim Tribunal (Main), Bhavnagar in MACP No.821 of 2005.

By the said impugned judgment and award, the Tribunal had

partly allowed the claim petition filed by the original claimant

against original opponents no.3 and 4, whereas has dismissed

against original opponents no.1 and 2. The Tribunal has held

the claimant entitled to a sum of Rs.2,21,500/- towards

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compensation, with interest at the rate of 9% per annum from

the date of filing of the claim petition till its actual realization,

to be recovered from original opponents no.3 and 4 jointly and

severally. Hence, the present appeal, praying for an

enhancement of the amount of compensation for a further

sum of Rs.6,21,000/-.

2. Considering the grounds raised in the appeal memo and

the submissions made by the learned advocate for the

appellant, this Court, vide order dated 23 rd December 2015,

had admitted the appeal. The record and proceedings were

called for. The record suggests that the notice of admission of

the appeal was reported to have been duly served upon

respondent no.2- Insurance Company, whereas, though

attempts were made to serve respondent no.1 viz. the owner

of the offending vehicle, in the absence of any fresh address

being provided on record within the time period as directed

by this Court vide order dated 2 nd November 2017, the matter

had stood dismissed for non-prosecution against respondent

no.1. Considering the fact that the appeal of 2015 is pending

consideration, the appeal was peremptorily heard finally with

the able assistance of learned advocates on record.

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3. Learned advocate Mr. Vishal P. Thakkar, appearing for

the appellant-original claimant had assailed the impugned

judgment and award mainly on the issue of the quantum of

compensation on the ground that the same has determined by

the Tribunal on the lower side.

3.1. It was submitted that the Tribunal has erroneously

adopted a notional income of the claimant as Rs.2,500/- per

month despite having established on record that the claimant

was earning his livelihood as a professional driver. In order to

substantiate his argument that the claimant was earning a

monthly income of Rs.9,000/- as a professional driver, the

learned advocate had placed reliance upon the deposition of

the claimant recorded at Exhibit 55 and the driving license

authorizing him to drive a light motor vehicle, which is

produced on record at Exhibit 58. He has further invited my

attention to the facts, more particularly, the FIR and the

panchnama of the scene of the accident, which also

corroborates the case of the claimant that admittedly he was

the driver of the Bolero Jeep bearing registration no. GJ-4D-

7751 at the time of the accident.

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3.2. Assailing the findings and reasons assigned by the

Tribunal on the issue of income, the learned advocate

submitted that merely because no proof of income has been

produced on record, the Tribunal's rejection of actual salary,

in favour of minimum wages, ignores the benevolent intent of

the Motor Vehicle Act, 1988 as well as the binding precedents

laid down by the Hon'ble Supreme Court mandating the

acceptance of pleaded salary in the case of skilled drivers

even in the absence of any documentary proof of income.

3.3. Reliance was placed on the decision of the Hon'ble

Supreme Court in the case of Manusha Sreekumar and

Others vs. United India Insurance Company Limited

reported in AIR 2022 SC 840. Inviting my attention to the

facts of the case, the learned advocate submitted that it was

also a case of a driver who has been treated as a skilled

worker, and considering the minimum wages for a driver as

prescribed by the government notification, the Hon'ble

Supreme Court had disagreed with the approach of the High

Court whereby the income of the deceased had been reduced

in absence of definite proof of income, considering the

statutory minimum wages for a driver in the year 2015. The

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learned advocate had submitted that the Hon'ble Supreme

Court had fixed the income of the deceased, who was a driver

at Rs.15,600/- per month. Reliance was placed on the

observations made by the Hon'ble Supreme Court in this

regard in paragraph 16. The reference was also made to the

observations made in paragraphs 20, 21, and 22.

3.4. Reliance was also placed on the decision of the Hon'ble

Supreme Court in the case of Shri Ramchandrappa vs. The

Manager, Royal Sundaram Alliance Insurance Company

Limited reported in AIR 2011 SC 2951: (2011) 13 SCC

236. Referring to Head-note A, the learned advocate

submitted that in the case of a coolie, the Hon'ble Supreme

Court had held that in the absence of contrary evidence or an

exorbitant claim being made, the Tribunal should accept the

claimant's stated income, especially for a laborer without

documentation. The Hon'ble Supreme Court had thereby

restored the monthly income to Rs. 4,500/- as pleaded by the

claimant.

3.5. The attention of this Court was further invited to the

decision of the Hon'ble Supreme Court in the case of Kirti

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and Another vs. Oriental Insurance Company Limited

reported in (2021) 2 SCC 166. It was submitted that in the

absence of documentary proof of income, the Hon'ble

Supreme Court had considered the evidence which suggests

that the deceased was a skilled individual and, having noted

the reasonable standard of living from the surrounding

circumstances emerging on record, the Hon'ble Supreme

Court has determined the notional income of the deceased for

the purpose of a just and proper amount of compensation.

3.6. Referring to the aforesaid principles laid down, the

learned advocate urged to consider the income of the claimant

as Rs.9,000/- at the time of the accident. He has further

pressed for an addition of Rs.2,500/- towards allowances as

deposed in his affidavit as well as the claim petition.

4.0. As regards the disability sustained by the claimant is

concerned, the learned advocate submitted that the claimant

has sustained multiple injuries. The disability certificate

produced on record at Exhibit 78 clearly suggests that the

claimant has sustained a permanent disability of 46% body as

a whole. It was pointed out that admittedly the claimant was

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earning his livelihood by doing driving and having sustained a

right knee fracture, it has vitally impacted his earning

capacity. Reliance was placed on the decision of the Hon'ble

Supreme Court in the case of Raj Kumar vs. Ajay Kumar

reported in (2011) 1 SCC 343. Referring to relevant

observations, the learned advocate submitted that this Court

may take into consideration the fact that the claimant was a

driver by profession and because of the aforesaid disability,

more particularly, the fracture sustained in the right knee, the

loss of earning capacity has to be treated as 100%. It was

further submitted that considering the injury certificate as

well as the disability certificate, it has clearly emerged on

record that the claimant has undergone five operations. He

has therefore, submitted that the Tribunal failed to discharge

its duty in ascertaining a just and proper amount of

compensation merely by taking into consideration the fact

that the parties on record have agreed to treat the disability

as 30% of the body as a whole for the purpose of

determination of future loss of income. According to the

learned advocate, considering the disability certificate

produced on record at Exhibit 78 which suggests 46%

permanent disability body as a whole, the Tribunal ought to

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have taken that into consideration for the purpose of

determining the just and proper compensation.

5. The learned advocate pressed the medical case papers

for reconsideration and submitted that the amount of Rs.

20,000/- awarded under the head of pain and suffering is

meager in the peculiar facts of the case. Considering the fact

that the claimant has undergone five operations, this Court

may award Rs.50,000/- under the head of pain, shock, and

suffering instead of Rs.20,000/-. Similarly, the learned

advocate urged to reconsider the amount under the head of

special diet, attendant charges, and transportation expenses,

having taken note of the injuries sustained, the period of

hospitalization undergone, and the post-operation treatment

for at least a period of three months, this Court may at least

award Rs.25,000/- distinctly under each of these head. He has

therefore, prayed for an amount of Rs.75,000/- under the head

of special diet, attendance charges and transportation

expenses. As regards the amount awarded under the head of

actual loss of earning, learned advocate has submitted that

considering the income of the claimant as Rs.11,500/- and

hospitalization period of three months, this Court may

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appropriately reconsider the amount under the head actual

loss of income, which may be quantified at Rs.69,000/-.

6. Apart from the aforesaid heads, the learned advocate

had also prayed for an amount of compensation under the

head of loss of amenities. According to the learned advocate

having sustained such grievous injuries, the claimant being

deprived of the enjoyment of life, which otherwise he would

have been in absence of any injury being sustained, he has,

therefore, urged to consider awarding Rs.50,000/- under the

head of loss of amenities. As regards the amount of

Rs.65,000/- awarded under medical bills, learned advocate

prays for further amount of Rs.10,000/- under the medical

bills. By making the aforesaid submissions, the learned

advocate has urged for an enhancement of an additional

amount of Rs.5,17,900/- with interest and proportionate costs

to be realized from the respondents.

7. Per contra learned advocate Mr. HG Majmudar

appearing for respondent no.2 -Insurance Company at the

outset has objected to the entertaining of the appeal on the

ground that the appeal against the insured -respondent no.1

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herein has been dismissed for non-prosecution pursuant to the

order dated 2nd November 2017 passed by this Court.

According to learned advocate, in absence of appeal against

insured being filed, the appeal against the Insurance

Company would not survive. As regards the submission made

by learned advocate for the appellant on the issue of quantum

of compensation is concerned, he had submitted that

considering the overall evidence on record, no error can be

found with the approach of the Tribunal in evaluating the

evidence and has thereby awarded just and reasonable

amount of compensation, which calls for no interference in

the present appeal. On the issue of income of the claimant

being determined on lower side, learned advocate had once

again invited my attention to the findings and reasons

assigned by the Tribunal. According to the advocate in the

claim petition preferred before the Tribunal, it was contended

by the claimant that he was earning Rs.3000/- as driver of

bolero car and additionally allowances was also earned by

him. The additional income from agriculture activity was also

claimed. However, in his examination in chief affidavit, the

claimant had deposed that he was earning Rs.9000/- as salary

by driving bolero car and additionally allowances. He has

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therefore deposed that he was earning monthly salary of

Rs.11,500/- as a professional driver. The Tribunal having

appreciated the aforesaid evidence on record in absence of

any proof of income being produced on record has applied the

yardstick of minimum wages considering the fact that the

accident had taken place on 22 nd June 2005. The Tribunal had

applied the minimum wages of Rs.2500/- as notified by the

state government for the purpose of determination of income

of the claimant. Considering the pursis submitted on record at

Exhibit 77, the Tribunal has accepted the permanent disability

of 30% of body as a whole instead of 46% as opined by the

medical officer in the disability certificate produced on record

at Exhibit 78. Having consented before the Tribunal to treat

the permanent disability as 30% of body as a whole, the

claimant has chosen not to examine the medical officer as

witness. At the same time, the learned counsel for the

Insurance Company having consented for treating the

permanent disability of body as a whole as 30%, has lost that

opportunity to cross examine the medical officer to verify the

actual disability sustained by the claimant for the purpose of

determination of future loss of income. With such

circumstances on record, no error can be found with the

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approach of the Tribunal in accepting the disability of the

claimant as 30% for the purpose of determination of

compensation under the head of future loss of income.

Bearing in mind the aforesaid components, learned advocate

had submitted that the Tribunal has determined just and fair

amount of compensation in the facts of the case and evidence

on record. In view of the aforesaid circumstances, the

principles relied upon by the learned advocate in view of the

various decisions pointed out before this Court would not be

applicable in the facts of the case. He has further invited my

attention to the fact that on bare appreciation of the cross

examination of the claimant, it has transpired on record that

he is holding the driving license which is in force. The

attention of this Court was also invited to the driving license

produced on record at Exhibit 58 which suggests that the

driving license issued on 25th June 2004 having being expired

at the end of 10 years, one can assume that the license was

renewed thereafter. Considering the above aspect, the

contention raised by learned advocate for the appellant that

the claimant has suffered 100% disability is required to be

rejected. The reliance was placed on Section 14 of the Motor

Vehicles Act, 1988. As regards the amount of compensation

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prayed with regard to non pecuniary damages are concerned,

learned advocate had urged to pass appropriate orders

strictly in accordance with the law. Learned advocate has

therefore submitted to dismiss the appeal.

8. I have heard learned advocates appearing for the

respective parties and I have carefully considered their

arguments in light of the findings and reasons assigned by the

Tribunal. I have carefully gone through the relevant evidence

on record. Before adverting to the merits of the appeal, it

would be appropriate to note that the other issues viz. the

issue of negligence and the issue of liability, in absence of any

arguments being advanced by learned advocate for the

respective parties and in absence of any appeal or cross

objections being filed by either of the opponents, the same has

attained finality. Thus, the foundational facts with regard to

the occurrence of accident, the involvement of the vehicle, the

claimant having suffered permanent disability due to injuries

caused in the said accident, the liability of the original

opponents no.3 and 4 to pay compensation to the claimant,

the exoneration of original opponent nos.1 and 2 from their

liability to pay any compensation, has remained unchallenged

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and uncontroverted.

8.1. In view thereof, the objection raised by learned advocate

for the appellant -Insurance Company of dismissing the appeal

on ground that the appeal against the owner of insured

vehicle is dismissed for non prosecution is not tenable. In view

of Section 147 of the Motor Vehicles Act, 1988, merely

because of procedure lapse the appeal stands dismissed

against the owner would not relieve Insurance Company from

its obligation to indemnify owner under contract of indemnify.

9. Having noted so, considering the grounds raised in the

appeal memo and the submissions made by the appellant -

original claimant, the short question which arises for

consideration of this Court in the present appeal is as to

whether the Tribunal committed any error in the facts of the

case and the evidence on record, while determining the issue

of quantum of compensation in claim petition preferred under

Section 166 of the Act, 1988?

10. The core contention which has been raised by learned

advocate for the appellant is the issue of income of the

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claimant being determined on lower side by the Tribunal. I

have carefully considered the findings and reasons assigned

by the Tribunal on the aspect of income. As evident from the

impugned judgment and award, the Tribunal is mainly guided

by the pleadings made by the claimant in the original claim

petition wherein he has stated that he used to earn income of

Rs.3000/- by driving and additionally he used to get

allowances. Apart from the aforesaid source of income, he has

also pleaded that he used to do agriculture labour work and

thereby used to have additional income. As against the

aforesaid case pleaded in the original claim petition, the

examination in chief affidavit filed by the claimant at Exhibit

55 indicates that the claimant has claimed monthly income of

Rs.9000/- and additionally allowances by doing driving. He

has deposed on oath that he was a permanent driver

appointed by the original opponent no.1 to drive his bolero car

and was paid Rs.11,500/- approximately per month. He has

also pointed out that he was holding legal driving license to

drive Bolero Car. The Tribunal having noted the aforesaid

pleadings in the original claim petition and the deposition of

the claimant, while appreciating his cross examination has

taken note of the objection raised by the respondent

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Insurance Company about any documentary proof of income

being produced on record. The Tribunal has therefore in

absence of any documentary proof of income produced on

record has followed the minimum wages notified by the State

Government at the time of the accident.

11. Having noted the aforesaid findings and reasons

assigned by the Tribunal, if one looks at the various

judgments relied upon by learned advocate for the appellant

on the issue of income, it is equally settled position of law that

considering the Motor Vehicles Act to be a benevolent

legislation and the core object underlying of awarding just

and reasonable amount of compensation, the Hon'ble

Supreme court has emphasized on the fact that the Courts

shoulders the responsibility of deciding adequate

compensation on a case to case basis. What is thus

emphasized upon is adequate compensation, considered to be

fair and equitable compensation. On careful consideration of

the judgments relied upon by learned advocate for the

appellant-original claimant, it is true that even in absence of

documentary evidence produced on record, considering the

avocation of the victim of the accident in light of the

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surrounding circumstances, more particularly, the standard of

living as can be gathered from the facts emerging on record,

the Hon'ble Supreme Court has considered notional income

for the purpose of determination of just and reasonable

amount of compensation.

12. In the case of Manusha Srikumar (Supra), it

transpires that the accident had taken place in the year 2015.

It was a case of driver who is treated as skilled worker by the

Court and considering the statutory minimum wages for the

driver prescribed by the Government Notification of 2015

under the Kerala Fair Wages Act, 1971, the Hon'ble Supreme

Court had fixed the notional income as Rs.15,600/- per month.

In the case of Shri Ramchandrappa (Supra), in the case of

coolie, in absence of documentary evidence the claim of

Rs.4500/- per month was accepted by the Hon'ble Supreme

Court by holding that considering the avocation of coolie,

ordinarily, there would not be any proof of income available

on record and therefore has accepted the deposition of the

claimant of earning Rs.4500/- in absence of any contrary

evidence or exorbitant claim being made out. In the case of

Kirti (Supra), the Hon'ble Supreme Court has considered the

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concept of notional income of deceased homemaker

recognizing the value of their unpaid domestic labour and her

contribution to the family and national economy, while

addressing the historical societal biases and aligning with the

international obligations of gender equality and dignity, the

Hon'ble Supreme Court had considered amount of Rs.3000/-.

The Court had also taken into consideration the reasonable

standard of living in case of skilled individual who was owning

a motorcycle and therefore had disagreed with the approach

of the Tribunal adopting lowest minimum wage for unskilled

worker.

13. Considering the aforesaid principles in the facts of the

case, the claimant has established on record that he was

earning his livelihood by driving Bolero Car. The avocation of

driver being accepted as a skilled worker, if one looks at the

standard rates of minimum wages notified by the State of

Gujarat as prevailing on the date of accident which has

admittedly taken place on 22 nd June 2005, the minimum wages

in the case of skilled worker between period 1.4.2005 to

30.9.2005 was Rs.2500/-. Having appreciated the aforesaid

Notification, the Tribunal has rightly applied Rs.2500/- as the

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income of the claimant. However, considering the age of the

claimant being determined as more than 50 years and the

driving license produced on record at Exh. 58, which suggests

the date of issuance as 25th June 2004, it can be inferred that

the claimant was having experience of at least 10 years of

driving. One looks at the evidence of the claimant who has

deposed on oath being recorded at Exhibit 55, he has

categorically deposed on oath that he was earning Rs.11,500/-

including allowances per month from the vocation of driving.

He has also asserted that he was a permanent driver of the

opponent no.1. In his cross-examination at the instance of the

opponent no. 2, he has denied the suggestion that he has not

produced any proof of income on record. In the same breath,

he has denied that currently he is driving, however, he has

admitted that his driving license is in force. As against the

aforesaid evidence at the instance of opponent no.2 being

brought on record, the opponent no.4- Insurance Company,

while cross-examining the claimant, has failed to put any

question to the aforesaid claim made by the original claimant.

During the course of the hearing, this Court had inquired from

the learned advocates on record as to the limit of taxable

income during the financial year 2005-2006, which is reported

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to be Rs.1,00,000/-. Bearing in mind the aforesaid

circumstances on record and the evidence as evaluated, it

would be appropriate to fix the income of the claimant as

Rs.8,000/- per month.

14. Having held so, the prospective income of the claimant is

required to be taken into consideration in view of the

judgment of the Hon'ble Supreme Court in the case of

National Insurance Company Limited vs. Pranay Sethi

reported in (2017) 16 SCC 680. Considering the fact that the

claimant was aged 50 years and 11 months in view of the

birth certificate being produced on record at Exhibit 75

wherein the date of birth is indicated as 9 th July 1954 and the

accident having taken place on 22 nd June 2005 and being on a

fixed salary, the prospective income of the claimant is

required to be considered in the category of age group

between 50 to 60 years and therefore, an addition of 10% rise

is required to be considered for the purpose of determination

of his prospective income. The prospective income of the

claimant is therefore determined as Rs.8,000/- multiplied by

10% = Rs.800/- i.e. Rs.8,800/- per month.

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15. This brings me to another vital issue of disability of the

claimant being erroneously considered as 30% of body as a

whole by the Tribunal. As rightly submitted by the learned

advocate for the respondent- Insurance Company and as

evident from the record, the parties on record have agreed

before the Tribunal by submitting their pursis at Exhibit 77 to

treat the permanent disability as 30% of body as a whole

instead of 46% as opined by the Doctor in the disability

certificate produced on record at Exhibit 78. I have carefully

considered the content of pursis produced on record at

Exhibit 77 wherein, the claimant himself has signed across the

said pursis. Considering the aforesaid pursis, the learned

counsel for the respondent -Insurance Company on record has

expressed his no objection to admit the disability certificate

produced on record, and accordingly, the Tribunal has

admitted the disability certificate at Exhibit 77. The record

suggests that the parties have therefore chosen not to

examine / cross-examine the medical officer as a witness on

record. Having noted the aforesaid circumstances on record

and having appreciated the findings and reasons recorded by

the Tribunal, it is evident that the Tribunal was guided by the

aforesaid pursis filed by the parties. However, in my view, the

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Tribunal failed to discharge its obligation as mandated by the

legislation.

16. As pointed out by the learned advocate for the appellant

in the case of Raj Kumar (Supra), the Courts have been

cautioned to take into consideration the aspect of functional

disability rather than mechanically converting the permanent

disability opined in the medical certificate for the purpose of

determination of the earning capacity of the claimant. Bearing

in mind the aforesaid principles laid down by the Hon'ble

Supreme Court in the case of Raj Kumar (supra) and having

appreciated the injury certificate as well as the disability

certificate produced on record, it would be appropriate to

reassess the actual disability for the purpose of determination

of a just and fair amount of compensation. From the injury

certificate and the disability certificate, it has transpired that

apart from having sustained a fracture of patella right side,

fracture of lower end radius and fracture of face bone, the

claimant has suffered damage to the right knee due to a motor

vehicle accident. The claimant having established the fact of

he being engaged as a driver and with such disability, in my

view, the claimant has suffered functional disability more than

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30% as considered by the Tribunal for the purpose of

determination of loss of earning capacity. In order to

appreciate the case of the claimant, I have carefully

considered the medical case papers produced on record.

Considering the fact that the claimant was aged around 50

years and 11 months at the time of the accident and having

suffered the fracture of the right knee, this Court has reason

to accept the case of the claimant about his complaint with

regard to restriction in movement of his leg. The disability

certificate admitted as evidence with the consent of the

parties at Exhibit 78 suggests that the injuries have impacted

his muscular strength which has been reduced to 10% insofar

as the left knee is concerned. It has also been noted that there

is weakness over the right knee which has caused difficulty in

performing daily routine activities whereby 5% disability has

been assessed. Accordingly, the disability of the lower limb

has been determined as 28%, considering the muscular

strength weakness of 10%, the medical officer has considered

the reference of Dr. Kessler's and considering the restriction

of temporomandibular joint movement by 10% has opined that

the claimant has sustained 46% permanent disability of body

as a whole. It is required to be noted that with 36% disability

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with the addition of 10% towards restriction of

temporomandibular joint movement, the doctor has opined it

as 46% permanent disability of whole body. Thus, the

disability of the lower and upper limb contributes to 11% and

28% i.e. 36% of body as a whole. Having noted the aforesaid

opinion of the medical officer in light of the avocation of the

claimant, in my view, it would be appropriate to consider 40%

functional disability of body as a whole. Having held so, the

future loss of income of the claimant is redetermined as

Rs.8,800/- multiplied by 40%, =Rs.3,520/-. The Tribunal has

considered the age of the claimant as 50 years, 11 months for

the reasons recorded earlier and has accordingly adopted a

multiplier of 11 in the facts of the case. Considering the

principles laid down by the Hon'ble Supreme Court in the

case of Sarla Verma vs. Delhi Transport Corporation

reported in (2009) 6 SCC 121, the Tribunal has rightly

adopted a multiplier of 11 in the facts of the case. Considering

the aforesaid components, the future loss of income of the

claimant is redetermined as Rs.4,64,640/- instead of

Rs.99,000/- as awarded by the tribunal.

17. This brings me to the enhancement of compensation

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sought for towards the pecuniary damages. Considering the

medical bills produced on record, the Tribunal has rightly

awarded Rs.65,000/- under the aforesaid head. The actual loss

of income is required to be revisited in light of the income of

the claimant being fixed as Rs.8,000/- per month. Considering

the period of hospitalization and the further treatment

undergone, the Tribunal has rightly considered actual loss of

income for a period of 3 months. Bearing in mind the

aforesaid reasoning of the Tribunal, the actual loss of income

is redetermined as Rs.8,000/- X 3 = Rs.24,000/-

18. This brings me to the amount of compensation sought

for under the head of pain, shock, and suffering. The learned

advocate has prayed for a sum of Rs.50,000/- under the

aforesaid head on the ground that the claimant has undergone

five operations. I have carefully considered the medical case

papers on record which suggest that the claimant has

sustained four fractures and having been operated, he has

also undergone plastic surgery. Having noted the aforesaid

circumstances on record, this Court is inclined to accept the

amount of Rs.50,000/- under the head of pain, shock, and

suffering instead of Rs.20,000/- as awarded by the Tribunal.

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Learned advocate for the appellant has pressed for a distinct

amount of compensation under the head of special diet,

attendant charges, and transportation expenses. I have

carefully considered the medical case papers and the

treatment undergone as recorded by the Tribunal, the

claimant has been hospitalized for a period between 22 nd June

2005 to 16th September 2005. Considering the nature of

injuries sustained, it cannot be ignored that there is a

likelihood that the treatment has been prolonged for 3

months. Considering the aforesaid circumstances on record,

the amount of Rs.50,000/- would be appropriate to be

considered under the head of special diet, attendant charges,

and transportation expenses in the facts of the case and

evidence on record. Though the learned advocate has pressed

for a distinct amount of compensation under the head of loss

of amenities, the Tribunal in my view has rightly confined it to

Rs.15,000/- which calls for no interference in the present

appeal.

19. In view of the above discussion, since the amount of

compensation under respective heads has been reconsidered

and re-appreciated, the total amount of compensation is

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computed as under:

                       Particulars                             Awarded                  by Awarded                 by
                                                               Tribunal                    this Court
                       Future Loss of Income                   99,000/-                     4,64,640/-
                       Actual Loss of Income                   7,500/-                      24,000/-
                       Pain,          Shock,            and 20,000/-                        50,000/-
                       Suffering
                       Medical Expenses                        65,000/-                     65,000/-
                       Special Diet, Attendant 15,000/-                                     50,000/-
                       & Transportation
                       Loss of Amenities                       15,000/-                     15,000/-
                       Total Compensation                      2,21,500/-                   6,68,640/-
                       Enhanced amount                                                      4,47,140/-

20. Resultantly, the First Appeal is allowed in the aforesaid

terms. The impugned judgment and award dated 28 th July

2015, passed by the learned Motor Accident Claim Tribunal

(Main), Bhavnagar in MACP No.821 of 2005 is hereby

modified by holding the appellant-claimant is entitled to seek

recovery of total amount of compensation of Rs.4,47,140/-.

(Rs.6,68,640/- minus Rs.2,21,500/-) with interest at the

rate of 9% from the date of filing of claim petition till actual

realization, with proportionate costs, from the original

opponents No. 3 and 4, jointly and severally. Since the appeal

is allowed, the respondent No. 3 & 4 are is directed to deposit

the enhanced amount of compensation of Rs.4,47,140/- with