Gujarat High Court
Ramdevsinh Shaktisinh vs Devubhai Kavabhai on 11 February, 2026
NEUTRAL CITATION
C/FA/263/2022 JUDGMENT DATED: 11/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 263 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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RAMDEVSINH SHAKTISINH
Versus
DEVUBHAI KAVABHAI & ORS.
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Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1
DECEASED LITIGANT for the Defendant(s) No. 1
MR NAGESH C SOOD(1928) for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 2,4
RULE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 11/02/2026
ORAL JUDGMENT
1) Feeling aggrieved and dissatisfied with the judgment and award dated 29.06.2019 passed by learned Motor Accident Claims Tribunal (Auxi.), Morbi (which shall hereinafter be referred to as "the Tribunal"), in Motor Accident Claim Petition No.93 of 2016, the appellant - original claimant has preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (which shall hereinafter be referred to as "the Act"). Page 1 of 14 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Wed Feb 11 2026 Downloaded on : Fri Mar 13 20:43:12 IST 2026
NEUTRAL CITATION C/FA/263/2022 JUDGMENT DATED: 11/02/2026 undefined
2) On 04.02.2026, this Court has passed specific order that on the next date of hearing no leave or sick note shall be entertained. Today, the matter is called out twice in the first session and twice in the second session, though the learned Advocate for the respondent no.5 remained absent.
3) Heard learned Advocate Ms. Amrita Ajmera, for the appellant -
original Claimant.
4) It is the case of the appellant - original claimant that on 07.01.2004 the appellant (who shall hereinafter be referred to as "claimant / injured" for short) was travelling as a pillion rider on motorcycle driven by the opponent no.4 at moderate speed and when the said motorcycle reached near the place of accident at that point of time the opponent rickshaw which was being driven in rash and negligent manner came on wrong side and rammed into the motorcycle due to which the appellant sustained serious injuries. Therefore, the appellant had filed MAC Petition seeking compensation, wherein, the learned Tribunal after appreciating the evidence produced on record the learned Tribunal has partly allowed the claim petition.
5) Learned Advocate for the appellant has submitted that the learned Tribunal has committed error by assessing only Rs.3,333/- income of the appellant despite the fact that the appellant owned agricultural lands and tractor and was doing Page 2 of 14 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Wed Feb 11 2026 Downloaded on : Fri Mar 13 20:43:12 IST 2026 NEUTRAL CITATION C/FA/263/2022 JUDGMENT DATED: 11/02/2026 undefined agricultural activities using modern technique. She has further submitted that the Tribunal also erred in not awarding addition towards future prospect on the income of the appellant. She has further submitted that the Tribunal also erred in assessing 30% disablement body as a whole despite the fact that he suffered 50.81% disability and after operating several times he left with 3 inch of bone loss and effect of paralysis on arm and looking to his injuries the Doctor certified him disabled to the extent of 50.81% however looking to the injuries and occupation the Tribunal ought to have considered 100% functional disability of the appellant. She has further submitted that the Tribunal also committed error in awarding meagre amount towards non - pecuniary loss without considering the period of hospitalization of around 49 days and nature of injuries to the appellant. Hence, she has requested to allow the present appeal.
6) Having heard the learned Advocate for the appellant and going through the record it appears that the learned Tribunal has considered the evidence on record and relied on the judgment in the cases of Bimla Devi Vs. H.R.T.C, reported in AIR 2009 SC 2819, and Parmeshwari Devi Vs. Amir Chand, reported in 2011 (11) SCC 635, and appreciated the evidence. The claimant has tendered the affidavit at Exhibit 41, wherein, all the facts of the accident have been narrated in the chief- Page 3 of 14 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Wed Feb 11 2026 Downloaded on : Fri Mar 13 20:43:12 IST 2026
NEUTRAL CITATION C/FA/263/2022 JUDGMENT DATED: 11/02/2026 undefined examination and supported the claim petition and relied on the FIR at Exhibit 46, panchnama at Exhibit 47, copy of RC Book of Tractor at Exhibit 48, charge-sheet at Exhibit 50, Disability Certificate at Exhibit 44, Medical Bills at Exhibit 62 etc. After appreciating the evidence the learned Tribunal come to the conclusion that the accident was occurred due to composite negligence on the part of drivers of both the vehicles. The factum of accident, involvement of the vehicles, issue of negligence, coverage of policy and liability are not in dispute in the present appeal.
7) Now the appeal is filed on limited ground qua enhancement of quantum and assessment of disability of the appellant. Perusing the evidence it appears that the claimant was doing labour work and was earning Rs.100/- per day and monthly income of Rs.3,000/- and Rs.2,00,000/- from the agricultural lands. The appellant has produced RC Book of Tractor at Exhibit 48 and abstract of 8A and 7/12 at Exhibit 58 and 59, but the appellant has not produced any supportive evidence showing generation of income from the land or tractor i.e. any bill of purchase of fertilizer or seeds, selling of crops or any rent receipt of tractor nor examined any owner of land in whose land the tractor was given on rent for farming. Further, the rate of minimum wages of prevalent time for unskilled worker is Rs.2,200/-, however, Page 4 of 14 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Wed Feb 11 2026 Downloaded on : Fri Mar 13 20:43:12 IST 2026 NEUTRAL CITATION C/FA/263/2022 JUDGMENT DATED: 11/02/2026 undefined the Tribunal has assessed the notional income at Rs.40,000/- per annum which would come Rs.3,333/- per month. Therefore, as per the law laid down by the Hon'ble Supreme Court in the case of Govind Yadav Vs. National Insurance Co. Ltd., reported in 2012(1) TAC 1 (SC), the income of the appellant assessed by the learned Tribunal at Rs.3,333/- per month, is just and proper. However, the learned Tribunal has observed the age of claimant as 18 years at the time of accident but committed error by not considering future prospect, however, this Court is of the view that considering the age and nature ov work of the appellant at the time of accident, 40% addition towards future prospectus is required to be awarded.
8) The primary argument of the learned Advocate for the appellant is that though the Doctor has certified the disability of the appellant to the extent of 50.81%, the learned Tribunal has seriously erred in assessing 30% only, without considering the nature of injuries and nature of occupation of the appellant and ought to have considered 100% permanent disability. Perusing the evidence of Dr. Ashish Champaklal Shah, at Exhibit 43, it reveals that he has assessed 50.81% permanent disability of the appellant as per kessler's book and produced certificate at Exhibit 44. In his cross-examination he has stated that he has not mentioned in the disability certificate that he has used Page 5 of 14 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Wed Feb 11 2026 Downloaded on : Fri Mar 13 20:43:12 IST 2026 NEUTRAL CITATION C/FA/263/2022 JUDGMENT DATED: 11/02/2026 undefined kessler's book for assessing the disability. He has admitted that he has assessed the disability by clinically examining the applicant. He has also admitted that he has used formula of A plus B (90-A)/90 to assess the disability but did not mentioned the same in the certificate. Moreover, in the Disability Certificate also it is stated that permanent disability of 50.81% body as a whole due to the accident. The learned Tribunal has observed that the Doctor in his cross-examination he has admitted that he has not mentioned the use of Kessler's book and not mentioned A plus B formula in the certificate, therefore, the Tribunal considered permanent disability of the applicant at 30% body as a whole.
9) It is pertinent to note that in injury cases while awarding just compensation the learned Tribunal has to consider the functional disability and effect of disablement qua in relation to avocation and profession of the claimant. The physical disability and functional disability are all together different and the learned Tribunal has to ascertain the functional disability and Doctor has nothing to do with the functional disability. In this regard reference is required to be made from the judgment of the Hon'ble Supreme Court in case of Raj Kumar (supra), in paragraphs 8, 10 and 11 reads as under:
8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a Page 6 of 14 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Wed Feb 11 2026 Downloaded on : Fri Mar 13 20:43:12 IST 2026 NEUTRAL CITATION C/FA/263/2022 JUDGMENT DATED: 11/02/2026 undefined 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.
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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, 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 Page 7 of 14 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Wed Feb 11 2026 Downloaded on : Fri Mar 13 20:43:12 IST 2026 NEUTRAL CITATION C/FA/263/2022 JUDGMENT DATED: 11/02/2026 undefined 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)."
10) 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.
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NEUTRAL CITATION C/FA/263/2022 JUDGMENT DATED: 11/02/2026 undefined 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, 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.
11) 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. At the same time in Raj Kumar (supra) the Hon'ble Supreme Court has taken the note and further observed about duty and role of learned Tribunal in paragraphs 16 to 18, read as under :-
"16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just Page 9 of 14 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Wed Feb 11 2026 Downloaded on : Fri Mar 13 20:43:12 IST 2026 NEUTRAL CITATION C/FA/263/2022 JUDGMENT DATED: 11/02/2026 undefined compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.
17. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and, if so, the percentage.
18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Page 10 of 14 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Wed Feb 11 2026 Downloaded on : Fri Mar 13 20:43:12 IST 2026 NEUTRAL CITATION C/FA/263/2022 JUDGMENT DATED: 11/02/2026 undefined Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability."
12) Similarly, as per the case of Anoop Maheshwari vs Oriental Insurance Co., Neutral Citation - 2025 INSC 1075, the actual impact on earning capacity should be the guiding factor rather than just medical disability.
13) In the present case, the humerus bone of right hand of the appellant was broken and he also suffered paralysis of radial vein of right hand. The Tribunal has taken into consideration the overall evidence but while perusing the judgment it appears that the learned Tribunal has straightaway reduced and accepted 30% disability. Therefore, with a view to award just compensation 50% functional disability is required to be considered. Hence, without assigning any reason the learned Tribunal has assessed 30% disability, up to that extent the learned Tribunal has committed error in assessment of functional disability and accordingly, disability of the appellant is Page 11 of 14 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Wed Feb 11 2026 Downloaded on : Fri Mar 13 20:43:12 IST 2026 NEUTRAL CITATION C/FA/263/2022 JUDGMENT DATED: 11/02/2026 undefined reassessed at 50% functional disability.
14) Further, considering the age of claimant as 18 years at the time of accident the Tribunal has considered multiplier of 18 which as per the judgment of the Apex Court in the case of Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121] is just and proper. Further, the Tribunal has awarded Rs.2,73,592/- towards Medical Expenses and Rs.5,000/- towards special diet, attendant and transportation charges are just and proper and no interference is required.
15) Therefore, recalculating the income of the appellant as Rs.3,333/- and future prospect of 40% = Rs.1,333/- which comes to Rs.4,666/-. Now total income under the head of future loss of income is required to be considered as Rs.4,666/- x 12 x 18 x 50% / 100 = Rs.5,03,928/-. Therefore, the appellant is entitled to get additional amount of Rs.2,87,928/- towards future loss of income. Similarly, considering the nature of injuries and amputation, period of treatment and recovery, age and disablement of the claimant, this Court is of the view that the learned Tribunal has committed error while considering pain, shock and suffering only Rs.10,000/- which is required to be enhanced to Rs.50,000/- i.e. additional amount of Rs.40,000/- towards pain, shock and sufferings. The Tribunal has also committed error in awarding Rs.6,666/- (Rs.3,333/- for 2 Page 12 of 14 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Wed Feb 11 2026 Downloaded on : Fri Mar 13 20:43:12 IST 2026 NEUTRAL CITATION C/FA/263/2022 JUDGMENT DATED: 11/02/2026 undefined months) towards actual loss of income but considering the period of hospitalization of around 49 days and time taken for recovery from the injuries the same is required to be enhanced to Rs.13,332/- (Rs.3,333/- for 4 months) towards actual loss of income (additional amount of Rs.6,666/-).
16) As discussed above, the appellant - injured - original claimant is entitled to get compensation computed as under:
Heads Awarded by Reassessed by this Court
Tribunal
Future loss of income Rs.2,16,000/- Rs.5,03,928/-
including additional
amount of Rs.2,87,928/-
Actual loss of income Rs.6,666/- Rs.13,332/-
including additional
amount of Rs.6,666/-
Pain, shock and Rs.10,000/- Rs.50,000/-
sufferings including additional
amount of Rs.40,000/-
Special diet, Rs.5,000/- Rs.5,000/-
attendance and
transportation
Medical Expenses Rs.2,73,592/- Rs.2,73,592/-
Total compensation Rs.5,11,258/- Rs.8,45,852/-
including total additional
amount of Rs.3,34,594/-
17) In view of above, as the Tribunal has awarded total
compensation of Rs.5,11,258/-, however, as discussed above the appellant is entitled to get additional amount of Rs.3,34,594/- (Rs.8,45,852/- - Rs.5,11,258/-) with proportionate costs and interest as awarded by the Tribunal. Page 13 of 14 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Wed Feb 11 2026 Downloaded on : Fri Mar 13 20:43:12 IST 2026
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18) Hence, present appeal is partly allowed. The judgment and award dated 29.06.2019 passed by learned Motor Accident Claims Tribunal (Aux), Morbi, in MAC Petition No.93 of 2016 (Old MAC Petition No.91 of 2024) stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered. The respondent no.5 - Insurance Company shall deposit the said additional amount of Rs.3,34,594/- along with interest as awarded by the Tribunal, before the Tribunal within a period of four weeks from the date of receipt of this order. Record and proceedings be remitted back to the concerned Tribunal forthwith.
19) The learned Tribunal is directed to recover or deduct the deficit court fees on enhanced amount and thereafter disburse the amount accordingly.
20) Interim application, if any, also stands disposed of.
21) Award to be drawn accordingly.
(HASMUKH D. SUTHAR,J)
ANKIT JANSARI
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