Gujarat High Court
Prabodhakumar Behera S\O Rama Chandra ... vs Vijaysing S\O Jaswantsinh Jat on 27 March, 2026
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
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Reserved On : 17/12/2025
Pronounced On : 27/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 799 of 2010
With
R/FIRST APPEAL NO. 247 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
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PRABODHAKUMAR BEHERA S\O RAMA CHANDRA BEHERA
Versus
VIJAYSING S\O JASWANTSINH JAT & ORS.
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
CAV JUDGMENT
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE) The First Appeal No. 799 of 2010 is preferred by the original claimant under Section 173 of the Motor Vehicles Act, 1988 Page 1 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined (hereinafter to be referred as 'the Act of 1988') whereas First Appeal No. 247 of 2010 has been preferred by the New India Assurance Company Limited-original opponent No. 3 (hereinafter to be referred as "Insurance Company"), being aggrieved and dissatisfied with the judgment and award dated 19.02.2009 (hereinafter to be referred as "the impugned judgment and award") passed by the learned Motor Accident Claims Tribunal (Auxi.), Ahmedabad, in M.A.C.P. No. 1284 of 1997. By the said impugned judgment and award, the Tribunal has partly allowed the claim petition preferred by the present appellant of First Appeal No. 799 of 2010 under Section 166 of the Act of 1988. The original claimant is thus held entitled to recover a sum of Rs. 8,69,941/- from the original opponents Nos. 1 to 3, jointly and severally, with proportionate costs and interest at the rate of 8% from the date of petition till its actual realization. [2.] The original claimant is thus mainly aggrieved by the amount of compensation being confined to Rs. 17,39,882/- as against the claim of Rs. 15,00,000/-. In the process, the claimant has also disputed the issue of contributory negligence to the extent of 50% being attributed to the claimant as arbitrary and against the basic principles of law, and are therefore, seeking enhancement of the amount of compensation on the aforesaid ground as well as are also raising the issue of permanent partial disability being not rightly Page 2 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined considered while awarding the loss of future prospects. The other heads of compensation have also been disputed. On the other hand, the appellant-Insurance Company in the cognate appeal i.e. First Appeal No. 247 of 2010, has raised the issue of liability as well as the quantum of compensation being determined on the higher side. [2.1] Noticing the fact that both the appeals challenge the same impugned judgment and award, were directed to be notified together and heard finally, and are decided by this common judgment. [3.] This Court, vide order dated 15.03.2011, while hearing the application for stay preferred in First Appeal No. 247 of 2010, on the deposit of the entire award amount, had permitted the original claimant to seek withdrawal of 20% of such deposited award amount, and the remaining 80% of the amount deposited before the Tribunal, was directed to be invested in a fixed deposit scheme in any Nationalized Bank initially for a period of three years, which was further directed to be renewed from time to time till disposal of the captioned appeals, with further liberty to seek periodical withdrawal or periodical interest by the claimant. This Court, with such conditions, had confirmed ad-interim relief granted earlier, pending the appeal.
[4.] With consent of the learned advocates appearing for the
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C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
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respective parties, the matters were taken up for final hearing. [5.] Learned advocate Mr. Mohsin M. Hakim has appeared on behalf of the original claimant. Mr. Palak Thakkar, learned advocate, has entered appearance on behalf of respondent No. 3-Insurance Company, and has also appeared in the cognate appeal preferred by the appellant-Insurance Company therein. Though, the rule of admission of the appeals qua respondents Nos. 1 and 2 is reported to have remained unserved; however, with the able assistance of the learned advocates on record, the matters have peremptorily heard finally.
[6.] The learned advocate for the original claimant has vehemently assailed the impugned judgment and award passed by the Tribunal, mainly on the issue of negligence and the quantum of compensation. It is submitted that the Tribunal has mechanically apportioned the negligence merely on the ground that the accident had occurred because of a head-on collision between two vehicles involved, without further appreciating the documentary and oral evidence adduced by the claimant. The attention of this Court was invited to the panchnama of the place of accident, which is marked and admitted as evidence at Exh.47. Reference was also made to the sketch of a map prepared by the investigating officer appended with Page 4 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined such panchnama drawn during the course of investigation in reference to the FIR registered against the driver of the offending truck. [6.1] According to the learned advocate, the panchnama clearly demonstrated the fact that the offending truck had encroached upon the wrong side of the road and had violently dashed with the car of the claimant. Upon close appreciation of the panchnama, the position of the respective vehicles is evident. The post impact position clearly demonstrates the sole negligence of the driver of the truck. The learned advocate has further disputed the findings of head-on collision highlighting the damages sustained by the respective vehicles. He has further submitted that pursuant to the investigation carried out, the charge-sheet was filed against the driver of the offending truck; the copy of which has been produced on record at Exh.48.
[6.2] Learned advocate has further invited our attention to the fact that the driver and owner of the offending truck had chosen not to contest the case of the claimant, despite service of summons before the Tribunal. In such circumstances, the Insurance Company had also moved an application under Section 170 of the Act of 1988, seeking permission of the Tribunal to raise all the contentions available in law to object to the claim petition. With such undisputed Page 5 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined facts on record, the Tribunal ought to have drawn an adverse inference to hold the driver of the offending truck solely negligent towards the occurrence of the accident, more particularly, when the panchnama of the place of accident demonstrates his negligence. Learned advocate has further submitted that there is no straitjacket formula to mechanically draw an inference of a head to head collision, to be a case of contributory negligence. Reliance was placed on the judgment of the Division Bench of this Court in the case of United India Insurance Company Ltd. vs. Jentibhai Khimjibhai Parmar reported in 2016 (0) AIJEL HC 236525. Our attention was invited to the facts of the case, it was held that in absence of evidence establishing negligence on the part of the claimant, apportionment of negligence ought not to be done; on the contrary, an adverse inference was required to be drawn against the driver of the truck. [6.3] The learned advocate has further referred to the cross- examination of the claimant, which is recorded at Exh. 32. It is submitted that the Tribunal misinterpreted the cross-examination to arrive at a conclusion of contributory negligence merely on the fact that the claimant had admitted that he did not see the truck. According to the learned advocate, in absence of any evidence with regard to rash and negligent driving or violation of traffic rules by the Page 6 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined claimant, such admission of the claimant cannot be a sole criteria to draw an adverse inference of having equally contributed to the occurrence of the accident. Our attention was invited to the material time when the accident had taken place, to point out that there was heavy traffic on the National Highway No.1 where the accident had occurred, and it was the specific case of the claimant that he was driving his Premier Padmini Fiat Car following traffic rules at slow speed, and the truck had, in fact, abruptly encroached on the wrong side of the road and had heavily dashed with the car, which was otherwise on the driver side. He therefore, submitted that the findings and reasons assigned by the Tribunal on the issue of negligence, are perverse to the evidence on record and are merely based on assumption and presumption, and therefore, the conclusion drawn by the Tribunal, attributing 50% contributory negligence to the claimant, is required to be quashed and set aside. [6.4] On the issue of quantum of compensation, the learned advocate has drawn our attention to the findings and reasons assigned by the Tribunal, more particularly, the permanent disability of the claimant being restricted to 30% of the body as a whole, despite medical evidence in the nature of disability certificate produced on record at Exh.37, wherein the medical expert has clearly Page 7 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined opined 60% permanent partial disability being sustained by the claimant. Referring to the relevant medical case papers, the learned advocate has submitted that the claimant had sustained multiple fractures including fracture of the right femur and lower limb, and had undergone almost 11 surgeries including bone grafting, which has substantially affected the mobility of the claimant, resulting into prolonged immobilization. It is further submitted that the finding arrived at by the Tribunal while considering the loss of income, is perverse, inasmuch as, the claimant has proved that on account of multiple injuries sustained, he had remained absent at his workplace for almost 240 days, as against his future leave which he would have earned during his employment. Referring to the evidence of the claimant, it was submitted that there is no rebuttal of the aforesaid part of the evidence at the instance of the Insurance Company. The Tribunal failed to appreciate the fact that the claimant had remained on medical leave for about 235-240 days, thereby exhausting his earned and future leave entitlement. In such circumstances, the Tribunal ought to have awarded actual loss of income to the tune of Rs. 5,87,015/- instead of Rs. 2,61,288/-, which is contrary to the documentary evidence on record. It was therefore submitted that the Tribunal committed a serious error in not awarding a sum of Rs. 5,87,015/- under the head of actual loss of income.
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compensation under the head of pain, shock and suffering and loss of amenities being determined on the lower side. According to the learned advocate, considering the multiple injuries sustained and the prolonged treatment, the Tribunal ought to have awarded a sum of Rs. 3 Lakhs towards pain, shock and suffering. It was further submitted that the Tribunal failed to consider awarding a sum of Rs. 2,40,000/- towards the expenses incurred for the attendant, more particularly, looking at the injuries and prolonged treatment. Enhancement of compensation was also sought by seeking an amount of Rs. 2 Lakhs towards the head of special diet and transportation expenses. In order to substantiate the aforesaid claims, the learned advocate has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Jakir Hussein vs Sabir & Ors reported in 2015 (7) SCC 252. Referring to the observations made in paragraphs 11, 15, and 18, wherein the Court held that while awarding compensation under the heads of pain, shock and suffering and loss of amenities, the Tribunal was required to consider the nature and gravity of injuries, the prolonged period of hospitalization, the multiple surgeries undergone, and the permanent disability suffered. It was submitted that the claimant was entitled to enhancement of the amount of compensation.
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the aforesaid decision wherein, noticing the period of hospitalization of 235 days and multiple orthopedic surgeries undergone and permanent partial disability suffered, the Court noticed that the mobility and the quality of life has been compromised forever. In such circumstances, the amount of Rs. 50,000/- awarded by the Tribunal under the head of pain and trauma was found grossly inadequate, and therefore, the Supreme Court enhanced the aforesaid amount to the tune of Rs.3 Lakhs. Reliance was also placed on the judgment of the Supreme Court in the case of Dinesh Singh vs. Bajaj Allianz General Insurance Company Limited reported in 2014 (0) AIJEL-SC 55244 wherein, the Court held that even if the injured claimant continues in service or employment, that by itself does not disentitle him from claiming compensation towards loss of future earning capacity, if the evidence on record establishes that the permanent disability has adversely affected his efficiency, functional capacity or future prospects.
[6.7] Applying the aforesaid principles to the facts of the case on hand, it was submitted that merely because the claimant has continued in service, would not negate his loss of future prospects. On the contrary, on close appreciation of the examination-in-chief of the Page 10 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined claimant at Exh.32, it has transpired that post-accident, the claimant was assigned administrative duties in the country of Nigeria- Lagos, and the promotion granted was not effective in real terms. Referring to the aforesaid evidence of the claimant, the learned advocate has submitted that the Tribunal lost sight of loss of qualitative life he was deprived of on account of permanent disability suffered by him. [6.8] It was therefore prayed to allow the appeal on both the issue of negligence as well as the quantum of compensation, and to dismiss the cross-appeal preferred by the appellant Insurance Company.
[7.] Per contra, learned advocate appearing for the Insurance Company, while opposing the appeal preferred by the original claimant, has raised the grounds raised in the appeal preferred by the Insurance Company. Learned advocate for the respondent-Insurance Company has disputed the issue of negligence by contending that the wife of the claimant, who was the original complainant, though being an eyewitness, has not chosen to enter the witness box. In absence of her evidence, no error can be found with the approach of the Tribunal in answering the issue of negligence. Indisputably, the accident was a head-on collision, and therefore, in absence of any cogent and reliable evidence being brought on record suggesting the sole negligence of Page 11 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined the offending truck, the Tribunal has rightly considered the contributory negligence of both the drivers of the vehicles involved to the extent of 50%- 50%. In order to substantiate the aforesaid contentions, the learned advocate has drawn our attention to the decision of the Hon'ble Supreme Court in the case of Bijoy Kumar Dugar vs. Bidyadhar Dutta reported in 2006 ACJ 365 (SC), wherein the Supreme Court has held that in cases of head-on collision, both the drivers of the vehicles involved can be held equally responsible. [7.1] Learned advocate has further argued on the quantum of compensation being determined on the higher side by submitting that the claimant has received reimbursement of medical expenses under Mediclaim policy, and therefore, the amount of medical expenses awarded by the Tribunal would result in unjust enrichment by the claimant. He has therefore, prayed to deduct the amount of Rs. 5,29,787/- being realized by the claimant under the mediclaim policy from the amount of compensation awarded by the Tribunal. In support of his aforesaid submissions, the learned advocate has placed heavy reliance upon the judgment delivered by the learned Single Judge in the case of Narbahadur Nandkishor Prasad vs. Jaheralia A. Shaikh & Ors. rendered in First Appeal No. 2016 of 2012, as well as of the Supreme Court in the case of New India Assurance Company Limited Page 12 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined vs. Sukanta Kumar Bagheria reported in 2015 (0) AIJEL SC 56221. [7.2] Learned advocate have also disputed the amount of compensation awarded under the head of future loss of income. Referring to the examination-in-chief of the claimant at Exh.32, it was pointed out that the claimant has continued in service after the accident, and in fact, he has been promoted and posted in the foreign country at Nigeria-Lagos, and therefore, there was no actual loss of income or future loss of income suffered by the claimant. Although, according to the learned advocate, with such peculiar facts on record, the Tribunal was not justified in adopting the multiplier on the higher side, and in fact, the multiplier of 5 ought to have been adopted by the Tribunal. Reliance was placed on the judgment of the division bench of this court in the case of Rameshbhai Ramnikbhai Vyas Ismail Ibrahim And Suleman Ibrahim & Others rendered in First Appeal No. 705 of 2012, wherein, considering the similar circumstances, the Division Bench of this Court has upheld the Tribunal's decision of adopting the multiplier of 5. [7.3] The learned advocate has therefore, prayed for dismissal of the First Appeal preferred by the original claimant and to modify the amount of compensation appropriately by allowing the appeal Page 13 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined preferred by the appellant Insurance Company.
[8.] In rejoinder, the learned advocate for the claimant has submitted that the issue as to whether medical expenses reimbursed under a mediclaim or insurance policy are to be deducted while awarding compensation under the Motor Vehicles Act is no longer res integra, in view of the decision of the Division Bench of this Court in the case of New India Assurance Co. Ltd. vs. Nipeshbhai Bhagwanjibhai Patel reported in 2022 (2) GLR 962. Our attention was invited to the relevant observations as recorded in paragraphs 27 to
29. Learned advocate has submitted that, responding to the aforesaid issue, the Court categorically held that medical expenses reimbursed under a Mediclaim or insurance policy taken by the claimant are the benefits accrued pursuant to the payment of premium, which constitutes a separate class of collateral benefits. The Court therefore held that denial or deduction of such medical expenses while determining the claim petition under the Motor Vehicles Act would amount to gross error of law. Learned advocate has disputed the judgment relied upon by the learned advocate for the Insurance Company in the case of Bijoy Kumar (supra) as being misplaced in the facts of the case on hand. Referring to the aforesaid decision, learned advocate for the claimant has submitted that the said judgment itself Page 14 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined clarifies that equal apportionment applies only where evidence is evenly balanced. In the present case, the documentary evidence overwhelmingly points towards the sole negligence of the truck driver. Underlying the heavy traffic conditions, learned advocate submitted that the Tribunal failed to appreciate that on a national highway require a higher degree of care from a heavy vehicle like a truck. In such circumstances, the offending truck owes a great duty of care, which has been clearly violated in the facts of the case, as evident from the documentary evidence on record. Learned advocate has vehemently objected to the appeal filed by the Insurance Company.
[9.] We have heard the learned advocates appearing for the respective parties and have closely perused the findings and reasons assigned by the Tribunal on the issue of negligence and the quantum of compensation. We have also re-appreciated the evidence on record, in this regard, more particularly, the panchnama of the place of accident and the medical case papers related to the treatment extended to the claimant. Considering the submissions made by learned advocates appearing for the respective parties, the question, which falls for consideration of this Court in both the appeals is, as to whether the Tribunal committed any error in deciding the issue of Page 15 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined negligence and quantum of compensation, in the facts of the case and the evidence on record while deciding the claim petition under Section 166 of the Act of 1988?
[10.] At the outset, we would like to take note of the manner in which the accident has taken place. Indisputably, the accident occurred on 02.01.1997 at about 4:00 p.m. near Hanuman Temple, Dudu District on the Ajmer Jaipur Highway. On the fateful day, the claimant was travelling with his family members while driving his car which was Premier Padmini Fiat Car bearing registration no.GJ-1- 6530-. It is the case of the claimant that he was driving the car on the left side of the road at a moderate speed, strictly adhering to the traffic rules. The truck bearing registration no.RJ-05-G-0656, which was owned by respondent no.2 herein was driven by respondent no.1 from the opposite direction. It is contended that the truck was driven at a high speed and in rash and negligent manner and dashed against the car of the claimant, resulting in head on collision. Due to collision between the two vehicles, the claimant had sustained serious multiple fracture injuries particularly on the right femur and lower right leg along with other bodily injuries.
[11.] The police complaint was lodged at Dodo Police Station by Sarojini Behera, wife of the claimant, which was registered on same Page 16 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined day against the driver of the offending truck for the offence punishable under Sections 279 and 337 of the I.P.C. The investigation had culminated into filing of the charge-sheet against the driver of the offending truck for the offence alleged. The relevant case papers including the panchnama, FIR, counter of charge-sheet and mechanical inspection reports were produced before the Tribunal. ISSUE OF NEGLIGENCE:
[12.] Having noted the background of the case, at the outset, it would be appropriate to look into the issue of negligence. The claimant has disputed the contributory negligence of 50% and the consequential deduction of the amount of compensation. It is submitted merely because the accident was a head on collision, the Tribunal ought not to have considered contributory negligence by apportioning it equally between the two vehicles involved in the accident, in absence of cogent and reliable evidence establishing negligence of the claimant as well. As against that the advocate for the Insurance Company has argued that in absence of the original complainant of the criminal complaint lodged, against the driver of the truck, being examined as witness the Insurance Company having no opportunity to cross-examine the said eye witness, has rightly apportioned the negligence equally amongst the drivers of the Page 17 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined respective vehicles.
[13.] We have carefully considered the aforesaid arguments of learned advocates for the respective parties, in light of the panchnama, the sketch of the accident produced on record, as against the evidence of the claimant who himself is an injured eye witness to the accident. Admittedly, for the reasons best known, the driver of the truck has not entered appearance nor has he been examined as witness by the Insurance Company. In such circumstances, considering the principles laid down by the Supreme Court in the case of Bijoy Kumar Dugar (supra), even where the vehicles involved in the accident had an head on collision itself, cannot be the only criteria to hold the drivers of the respective vehicles equally negligent towards the occurrence of the accident. The said judgment on the contrary further clarifies that equal apportionment applies only where evidence is equally balanced. In the present case, the documentary evidence, more particularly, the panchnama and the sketch prepared by the Investigating Agency clearly demonstrates that the truck had encroached on the wrong side of the road and had hit the rear right side of the car. The impact was violent which had led to heavy damage to the car which in turn had resultantly impacted on the right lower body of the claimant, who was in the driving seat of the car. The Page 18 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined panchnama and the sketch does not suggest brake marks and in fact, the truck is found to be positioned at quite a distance from the spot of the occurrence of accident. The aforesaid fact suggests that the truck was driven at high speed. Thus, we have no hesitation in holding that there is overwhelming evidence on record, which points towards the sole negligence of the driver of the truck. Considering heavy traffic conditions on national highway on the date of accident, the driver of the truck in charge of the heavy vehicle was in fact expected to have a higher degree of care. The driver of the offending truck being in control of a commercial and heavy vehicle owed a greater duty of care while driving the vehicle on a national highway. Considering the manner in which the accident was reported and investigation culminating into a chargesheet against the driver of the truck clearly suggests that the driver of the truck was negligent. With such evidence on record, we are of the view that the Tribunal committed serious error in finding the claimant to have contributed equally towards occurrence of accident, in the absence of any evidence in this regard being noted by the Tribunal. Thus, aforesaid finding on the issue of negligence of the Tribunal deserves to be quashed and is hereby quashed by holding the original claimant entitled to compensation towards 100% negligence of the offending truck driver.
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quantum of compensation requires a structured evidence based analysis to award just and reasonable compensation. Before determining pecuniary and non-pecuniary damages, the core issue centers on establishing impact of injuries. It would be appropriate to consider medical evidence on record. At the outset, it is required to be noted that the claimant was immediately shifted to nearby primary health centre and thereafter for further treatment was shifted to S.M.S. Medical College & Hospital situated at Jaipur, wherein he underwent emergency surgery. The claimant was discharged from the hospital on 07.01.1997 and was referred to orthopedic surgeon at Government Hospital and B.J. Medical College, Ahmedabad for further treatment Subsequently, the claimant was brought to the Ahmedabad, wherein he again underwent treatment. The claimant had opted to undergo surgery at a private nursing home under the observation of Dr. Hiren P. Maniyar. Later on, he was admitted to Navnit Memorial Hospital on 11.01.1997 and wad discharged on 15.01.1997. He was operated for fracture of upper end and a compound lower end right femur and was advised rest for six months.
(02.03.1997). The claimant had also undergone follow-up treatment under observation of Dr. Bhavin R. Zumkhawala. The Medical Officer Page 20 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined had physically examined him and had also investigated healing of the injuries sustained, by referring to X-Ray report of fracture neck femur and lower shaft of right femur. On close inspection of the reports, the Medical Officer had noted that bone graft glitch seen at the lower end small lucency is seen in the interior aspect of femur. Later on, the osteoporoic changes were also noticed. Noticing the aforesaid complications, Dr. Hiren P. Maniyar, who had in fact performed multiple surgeries and had also treated the claimant after post surgery. On clinical examination noted that though the bone segmental defect was filled with corticocancellous chains of bone, which was taken from both iliac bones and several corticocancellous chips, it had resulted in shortening of above 1/2 inch. As a result, the claimant had sustained stiffness of knee after the first operation. The second operation was performed in May-1997 for removal of implants and sequestrated bone grafts as he had persistently discharged sinus on anterolateral aspect of knee sinus on anterolateral aspect of knee, which had resulted into cavity anteriorly. The rest of the lower end was found to have urifine volve. When the said doctor had examined the claimant on 17.07.1997, the small discharge of sinus had still continued and he complained of stiffness of knee. The medical officer had noted shortening of about one and half right lower limb.
[15.] It further transpires on record that the claimant had
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undertaken further treatment at orthopedic hospital based at Jamnagar under the observation of Dr. V.M. Shah, M.S. Ortho. The claimant was admitted in the hospital on 19.07.1997 for the purpose of exploration of excision of devitalized bone and soft tissues. The bone grafting was performed and a 95 degree angled blade plate treatment was undergone on 21.07.1997. The claimant was thereafter discharged on 15.08.1997 with an advice of followup treatment of daily dressing and to continue visit after eight weeks. Despite aforesaid operation being performed, the said medical officer had noted that he had still continued with infection of non-union fracture of the lower femur with stiffness knee and shortening and was therefore advised for medicines with rest for six months. On 23.12.1997, upon close examination of the claimant, the said medical officer found him fit to resume his duties from 29.12.1997. The claimant was again admitted in the orthopedic hospital of Dr. V.M. Shah on 09.04.1998 for removal of implants, D.H.S. and blade plate. Simultaneously, lengthening apparatus were also fixed. After the performance of operation, the claimant was discharged on 12.05.1998 with advice of rest for six months and to visit after 50 days. On 25.12.1998, Dr. V.M. Shah had removed the fixation and found the claimant fit to resume the duties from 30.12.1998. During the aforesaid period, the gradual healing of non-union of the fracture of Page 22 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined lower femur was examined through X-ray reports, which confirm that the external fixation device was in position and compared to earlier reports there was satisfactory new periosteal bone formation at the site of the fracture and no erosion of bone was found. Since the claimant was complaining of difficulty in walking and was found to be limping coupled with weakness of hip abductors and knee moment. He was advised physio therapy with medicines. Noticing the complaint of stiffness of right and open fracture of femur bone, he was once again admitted to the hospital under the observation of Dr.V.M. Shah on 15.05.1999, he was operated for separation of patella and quadricepsplasty and arthrolysis was performed on 17.05.1999. He was thereafter discharged on 14.07.1999 with advice to revisit after six weeks and to continue with physiotherapy and relevant medicines. Upon re-examination of the claimant on 14.07.1999 and 04.08.1999, the claimant was found to be fit to resume his duties from 26.07.1999. Despite prolonged treatment being undergone, though the fracture in the lower end of femur had healed; however, osteoporosis was noticed around the knee, there was also lateral bowing of the lower end of femur.
[16.] Apart from the aforesaid medical case papers, the claimant has also produced on record the prescriptions of medicines Page 23 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined and the expenses incurred for medical treatment. The bills indicating the expenses incurred for medical treatment vide list of documents are produced on record at Exh.31. The aforesaid documents have been collectively marked and exhibited as Exh.-40. On appreciation of the aforesaid documents, it has transpired on record that right from February-1997 till October-1999, the claimant has incurred medical expenses in total approximately Rs. 32,885/-, which also corroborates the case of the claimant having undergone 11 multiple surgeries and prolonged treatment for more than two years.
[17.] Having appreciated the aforesaid documentary evidence on record, if the findings and reasons assigned by the Tribunal on the issue of quantum of compensation are appreciated, the Tribunal has considered the pay-slip of January 1997 of the claimant produced on record suggesting the monthly income of the claimant as Rs. 13,752/-. The claimant has proved his case of drawing a salary of Rs. 13,752/- as on the date of accident. The aforesaid factum has not been disputed by the Insurance Company in the present appeal. The component for the assessment of loss of future earning capacity, which has been mainly disputed by the claimant, is the percentage of disability of 30% being considered instead of 60%.
[18.] We have carefully considered the arguments of respective
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advocates and on appreciation of the medical case papers, in our view, the claimant has established on record that he had sustained multiple fractures including fracture of the right femur and lower limb as well as undergone has 11 surgeries, bone grafting, and has also faced the trauma of prolonged immobilization. The disability certificate issued by Dr. Maniar at Exh.42, though has been produced on record opining 60% of permanent disability being sustained. Dr. S. G. Patel has been examined by the appellant in this regard, who in his cross-examination has fairly accepted the suggestion that permanent partial disability would be half, to be considered for the body as a whole; and the Tribunal has, therefore, discarded the said disability certificate by holding that the claimant has sustained 30% permanent partial disability of the body as a whole for the purpose of awarding compensation. In our view, the aforesaid approach of the Tribunal is de hors the well-settled principles of law laid down by the Supreme Court in the case of Raj Kumar vs Ajay Kumar & Anr reported in (2011) 1 SCC 343, which was later on reproduced in the case of Sidram vs The Divisional Manager United India & Ors. reported in 2023 (3) SCC 439. The Court has held that the effect of permanent disability of the injured has to be assessed in order to quantify the loss of earnings due to disability. The Court has in detail explained the steps to be followed by the Tribunal to ascertain the effect of Page 25 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined permanent disability on the actual earning capacity of the injured. Relevant paras of the aforesaid judgment are as under:
"40. In the case of Raj Kumar (supra) this Court has explained in the following terms the general principles relating to compensation in injury cases and assessment of future loss of earnings due to permanent disability:
"General principles relating to compensation in injury cases
5. The provision of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. [See C.K. Subramania Iyer v. T. Kunhikuttan Nair [(1969) 3 SCC 64 : AIR 1970 SC 376] , R.D. Hattangadi v. Pest Control (India) (P) Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri) 250] and Baker v. Willoughby [1970 AC 467 : (1970) 2 WLR 50 :
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.Page 26 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
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(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and
(vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses--Item (iii)--depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages--Items (iv),(v) and (vi)--involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability--Item (ii)(a). We are concerned with that assessment in this case.
Assessment of future loss of earnings due to permanent disability
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 Page 27 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined 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 accident 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 ("the 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. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.
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, the 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 Page 28 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanent 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 terms 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 the 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 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC 341 :
(2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567] )
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first 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 (this is also relevant for awarding compensation under the head of loss of Page 29 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) 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 (iii) 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.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings", if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
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 Page 30 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined 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 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, Manual for Evaluation of Permanent Physical Impairment for Orthopaedic Surgeons, prepared by American Academy of Orthopaedic Surgeons or its Indian equivalent or other authorised 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 give 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 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 the 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.
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19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
[19.] In view of the aforesaid guiding principles laid down by the Supreme Court, when applied in the facts of the case on hand, the Tribunal ought to have considered the vocation, profession, and nature of work attended by the claimant prior to the date of accident as also his age. The Tribunal ought to have ascertained as to 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. The Tribunals are also expected to verify as to whether the claimant was prevented or restricted from discharging his previous Page 32 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined activities and functions.
[20.] Following the aforesaid guiding principles, on re- appreciation of the evidence on record, we could notice that the claimant was aged 37 years at the time of accident and was working as a Divisional Manager at Ahmedabad at the time of accident. It has also further transpired on record that after the accident, the claimant has been posted in Nigeria- Lagos, continued in service, and thereafter was promoted. In his deposition, he has specifically contended that the employees, who were similarly positioned while he entered into the service have been selected and got promoted to jobs in NIA with better prospects. In few of the cases, they have opted for private insurance companies with better prospects and are earning handsome salaries with perks; however, in his case, due to accidental injuries, he was unable to secure employment with a private insurance company. He has thus claimed that he has lost better job opportunities. As against the aforesaid evidence of the claimant, it is submitted that the Insurance Company has failed to bring on record any contradictions. However, in our view, the onus is on the claimant to prove that due to disability sustained, his earning capacity has been severally impacted.
[21.] Having noted so, as regards the nature of duties attached
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to the post of Divisional Manager of Insurance Company it does not involve heavy physical work. As against the claim sought on basis of injuries sustained by the claimant notably his mobility has been vitally affected, however, in our view, there is no major impact on the future earning capacity of the claimant due to accidental injuries. The fact remains that the claimant has continued in service and, in his cross- examination, he has fairly admitted the suggestion that he has neither been removed from the service and, despite such disability, he can efficiently discharge his duties however with great efforts. Thus, the career progression has not been affected and appreciating his efficiency, he has been promoted, in absence of any evidence suggesting reduction in his income, we are not inclined to deviate from the view taken by the Tribunal.
[22.] Having appreciated the evidence on record, in order to evaluate the impact of the disability sustained by the claimant on the working capacity of the claimant, we have considered the evidence of the medical officer, Dr. S. G. Patel, who has been examined as a witness. In our view, the disability of the claimant has rightly been confined to 30% of the body as a whole for the purpose of assessment of compensation. However, in view of the pronouncement of the decision of the Supreme Court in the case of National Insurance Page 34 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined Company Ltd. vs. Pranay Sethi and Others reported in (2017) 16 SCC
680., even in case of injury, for the purpose of determination of the future loss of income, the component of prospective income cannot be ignored. Considering the age of the claimant as 37 years as on the date of accident, and the fact the claimant was a salaried person, the claimant would be entitled to an addition of 50% of the actual salary. The prospective income of the claimant is thus determined as Rs. 20,628/- ( Rs.13,752 +50% of Rs.13,752/-). The loss of income is determined as Rs.6189/- (30% of Rs.20,628/-). This brings us to the multiplier of 16 being applied, considering the age of the claimant as 37 years as on the date of the accident. In view of the Second Schedule, as considered in the case of Sarla Verma & Ors vs Delhi Transport Corp.& Anr reported in (2009) 2 ACJ 1298, no error can be found with the approach of the Tribunal in applying the multiplier of 16 in the facts of the case. The future loss of income is thus determined as Rs.11,88,288/- (Rs.6189x12x16). [23.] As regards the arguments canvassed by the learned advocate about higher multiplier being adopted by the Tribunal, and to consider multiplier of 5, in view of the judgment of the Division Bench of this Court in the case of Rameshbhai (supra) is concerned, we are not much impressed by the said argument of the learned Page 35 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined advocate for the Insurance Company. The facts of the case, as can be distinguished, suggest that the claimant therein was discharging his duty as a teacher and after the accident, despite having sustained 32% disability of the body as a whole, had continued in service as a teacher. The Division Bench has noted the injury suffered by the claimant and, noticing the fact that since there is no reduction in his salary, had upheld the decision of the Tribunal by applying the multiplier of 5 while considering the future loss of income. It is significant to note that the Supreme Court, in the case of Hari Om Const. vs. National Insurance Company Limited reported in 2023 (0) ACJ 595, had an occasion to consider similar arguments being advanced on behalf of the Insurance Company. The Supreme Court opined that though the claimant continued to be in service, but his efficiency to discharge his duty as a constable has been seriously compromised and has, therefore, considering the age of the claimant, applied the multiplier of 16 while determining the future loss of income. Thus, disagreeing with the view of the High Court reducing compensation on ground of no loss of employment.
[24.] On the issue of enhancement of compensation awarded under the head of pain, shock and suffering and the loss of amenities, considering the judgment of the Supreme Court in the case of Jakir Page 36 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined Hussein (supra), the Supreme Court, in the case of a driver aged 33 years with right hand completely crushed, had considered the case of 100% personal functional disability rendering the claimant incapable of earning livelihood, and has broadly considered the damages both under the pecuniary heads as well as non-pecuniary heads. The Court expressed that, though it is not possible for the courts to make a precise assessment of the pain and trauma suffered by a person who has sustained permanent disability due to accident and will have to struggle and face different challenges; however, in the facts of the case, the court should make a broad estimate for the purpose of determining the amount of "just and reasonable" compensation under pecuniary loss. Considering the fact that the claimant was a young man and will suffer trauma for not leading a normal life, thought it fit to award sum of Rs.1,50,000/- towards the pain, suffering, and trauma caused to him, and had also awarded further amount of Rs. 1,50,000/- for the loss of amenities and enjoyment of life.
[25.] Considering the aforesaid decision in the facts of the case and noticing the fact that the claimant had undergone 11 multiple surgeries and had also faced prolonged medical treatment and hospitalization, due to which the claimant had not only undergone physical trauma but also mental agony, we are of the view that the Page 37 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined claimant is also entitled for amount of compensation under the head of loss of amenities of life as a distinct head of compensation. [26.] Considering the fact that the claimant has been deprived of leading a normal life and his mobility has been seriously prejudiced on account of permanent disablement, the amount of compensation of Rs. 50,000/- awarded under the head of pain, shock and suffering is grossly inadequate and contrary to the principles laid down by the Supreme Court. Thus, we are inclined to enhance the aforesaid amount of compensation under the head of pain, shock and suffering and loss of amenities of life to the extent of Rs. 3 Lakhs. [27.] As regards the amount awarded under the actual loss of income is concerned, the Tribunal failed to appreciate the voluminous medical case papers produced on record which clearly support the case of the claimant having remained on medical leave for a period of almost 235 to 240 days, which certainly would have bearing on his entitlement of earned and future leave. Though the Tribunal has awarded a meager sum of Rs. 2,61,288/-; however, in our view, if the documentary evidence are considered, it suggests actual loss of income to the tune of Rs. 5,87,015/-. Thus, the argument advanced by the learned advocate for the claimant seeking enhancement under the head of actual loss of income deserves consideration and the same is Page 38 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined hereby modified from Rs. 2,61,288/- to Rs. 5,87,015/-. Similarly, as far as the amount of compensation awarded towards the expenses of attendance charges are concerned, the same is enhanced to Rs. 2,40,000/-. The amount of compensation awarded under the head of special diet and transportation expenses also requires reconsideration, noticing the prolonged medical treatment undergone by the claimant, and the same is revised to Rs. 2,00,000/-. [28.] For the foregoing reasons, the total amount of compensation is hereby enhanced to the tune of Rs.22,21,960/- as against the awarded amount of Rs.8,69,941/-. The revised calculation of the enhanced amount of compensation is reproduced in tabular form hereunder:
Compensation of Compensation of
Under the Head of Rs. (Awarded by Rs. (Awarded by
the Tribunal) this Court)
Future loss of income
7,92,000/- 11,88,288/-
Actual Loss of Income 2,61,288/- 5,87,015/-
Medical Expenses 5,76,598/- 5,76,598/-
Pain, shock and suffering 50,000/- 3,00,000/-
Special diet,
50,000/- 2,00,000/-
transportation charges
Attendant charges 10,000/- 2,40,000/-
Total 30,91,901/-
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undefined
Less awarded amount of
8,69,941/-
compensation by Tribunal
Enhanced amount
(Rs.30,91,901-Rs. 22,21,960/-
8,69,941)
Interest @8%
[29.] With the above, the First Appeal No.799 of 2010
preferred by the original claimant is partly allowed. The impugned judgment and award dated 19.02.2009 passed by the learned Motor Accident Claims Tribunal (Auxi.), Ahmedabad, in M.A.C.P. No. 1284 of 1997, is hereby modified by enhancing the amount of Rs.22,21,960/- towards total compensation to the original claimant-appellant herein with proportionate costs and interest at the rate of 8% per annum from the date of filing of claim petition till its actual realization. [30.] The First Appeal No. 247 of 2010 preferred by the Insurance Company- original opponent No. 3 is hereby dismissed. [31.] The respondent no.3-Insurance Company is directed to deposit the enhanced amount of compensation with proportionate cost and interest within a period of eight weeks from the date of receipt of the copy of this order. On deposit of the aforesaid enhanced amount by the respondent-Insurance Company, the Tribunal is directed to release and disburse the aforesaid amount in favour of Page 40 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined the original claimant, subject to due verification, strictly in accordance with the guidelines issued by the Hon'ble Supreme Court in this regard. While making the payment, the learned Tribunal/Court shall deduct the Court Fees, if not paid, in accordance with prevailing Rule. Let the aforesaid exercise be undertaken by the Tribunal within a period of two weeks from the date of deposit of the award amount. [32.] With these observations, present First Appeals stand disposed of in aforesaid terms.
[33.] Registry is directed to send back the Record & proceedings (R & P) to the concerned Tribunal forthwith along with the Writ of this judgment.
(SANGEETA K. VISHEN,J) (NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 41 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026