Bombay High Court
Bharti Axa General Insurance Co. Ltd. ... vs Avesh Zubir Ahmed Khan Minor Thr. Next ... on 18 February, 2026
2026:BHC-AS:8542 FA 2390-25-C.DOC
Priya Soparkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.2390 OF 2025
Bharti AXA General Insurance Co. Limited
having office at 1st floor, Nirlon Building,
Dr. Anne Besant Road, Worli, Mumbai
40030 Pol No.
FCV/12502653/24/03/005419 Now
known as ICICI Lombard General
Insurance Company Limited. Having office
at 2nd floor, Meher House, Cawasji Patel
Street, Fort, Mumbai 400023. ...Appellant
~ versus ~
1. Mast. Avesh Zubir Ahmed Khan aged
about 4 years, through next friend and
father. R/at Kamla Ratan Nagar,
Baiganwadi Line 43, Near Shahnai
Hall, dumping Road, Shivaji Nagar,
Govandi, Mumbai 400043.
2. SKIPL MK DI JV, 10, Atul Niwas, 1 st
floor, 20/21, Khetwadi, Girgaon, 7th
Lane, Mumbai 400004 (owner of
Motor Dumper No.MH-01-LA-9284.) ...Respondents
A PPEARANCES
For the Appellant Ms. Varsha Chavan (through online)
For Respondents Mr. T. J. Mendon.
PRIYA
RAJESH
SOPARKAR
Digitally signed by
PRIYA RAJESH
SOPARKAR
Date: 2026.02.18
18:53:40 +0530
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FA 2390-25-C.DOC
CORAM : R.M. JOSHI, J.
RESERVED ON : 9th FEBRUARY, 2026.
PRONOUNCED ON : 18th FEBRUARY, 2026.
JUDGMENT :-
1. This appeal filed by the Insurer takes exception under Section 173 of the Motor Vehicles Act, 1988 being aggrieved by the judgment and award dated 22nd December, 2023 passed in MACT Application No.118 of 2019, whereby injury claim filed by four years old Claimant came to be allowed directing Opponents to jointly and severally pay compensation of Rs.43,87,800/- with interest at the rate of 7.5% per annum on the date of institution of petition till realization of the entire amount.
2. Insurer preferred this appeal challenging the judgment and award on the ground that the Tribunal has erred in considering the disability of the Claimant to the extent of 84% and has granted excessive compensation by accepting notional income of four years old child at the rate of Rs.10,000/- per month. It is further claimed that the compensation granted under the heads of pain and sufferings, loss of marriage prospects and future medical expenses etc. is on higher side.
3. Learned counsel for the Insurer submits that the Tribunal ought to have recorded reasons for accepting disability of the Claimant to the extent of 84%. It is her submission that the Tribunal has simply produced the evidence led by the Claimant and without recording its own finding decided the disability. She further argued that while deciding the compensation on loss of Page 2 of 8 th 18 February, 2026.
::: Uploaded on - 18/02/2026 ::: Downloaded on - 18/02/2026 20:54:09 :::FA 2390-25-C.DOC income, the Tribunal has failed to take into consideration judgment of the Hon'ble Supreme Court in case of Kajal Vs. Jagdish Chand and ors. reported in (2020)4 SCC 413 , wherein according to her, the Hon'ble Supreme Court has held that the minimum wages paid to the skilled workman to be accepted at the rate of Rs.4846/- per month. It is submitted that, since the judgment impugned has been passed in ignorance of law laid down by the Hon'ble Supreme Court, the same deserves interference. Learned counsel for the Appellant further argued that the Tribunal had committed error in considering the multiplier of 18 which ought to have been taken at 15 in view of the judgment of the Hon'ble Supreme Court in the case of Divya Vs. The National Insurance Company Limited and anr. reported in 2022 LiveLaw SC 892 passed in Criminal Appeal No. 7605 of 2022.
4. Learned counsel for the Respondents/Claimants by relying upon judgment in the case of Surekha w/o Rajendra Nakhate Vs. Santosh s/o Namdeo Jadhav and ors. reported in 2021 (16) SCC 467 of enhancement of the compensation. It is his submission that the Tribunal ought to have accepted the minimum wage of skilled workman to be more that Rs.10,000/- per month. To support this submission, he sought to place reliance on the minimum wage prescribed for a skilled workman covered under the Shops and Establishment Act. It is his further submission that workman would also be entitled to special allowance, as declared by the competent authority by its order dated 4th February, 2019. To support its submission to place reliance on the following judgments:
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FA 2390-25-C.DOC
1. Vijay Kumar Rastogi Vs. U.P. State Road Transport Corporation reported in 2018 ACJ 1029
2. Branch Manager, Oriental Insurance Company Limited Vs. Manohar (deceased) through Lrs. Reported in 2018 ACJ 1035.
3. Kavita Vs. Deepak and ors. reported in Civil Appeal No. 5945 of 2012.
4. Sona (Minor) through Next Friend Vs. Manual C.M. and anr. Reported in Special Leave Petition (Civil) Diary No. 10567 of 2023 dated 11th February, 2025.
5. Perusal of the record indicates that admittedly an accident occurred on 31st August, 2018 when the Claimant was crossing the road and being given dash by Motor Dumper bearing No. MHA-01- LA-9284. In this unfortunate accident, Claimant aged about four years sustained crush injury to his right leg which has resulted into severe shortening of leg and deformity of foot.
6. The Opponent-owner failed to appear before the Tribunal and hence, claim proceeded ex-parte against him. Whereas written statement came to be filed by the Insurer taking exception to the maintainability of the claim petition on the ground of non-joinder of the necessary party i.e. driver of the offending vehicle. It is alleged that the parents of the minor contributed to the occurrence of the accident allowing him to cross the road. It is also claimed that driver of the offending vehicle was not holding valid and effective license at the relevant time and there is breach of conditions of the policy. Claimant led evidence of Mr. Zubair Page 4 of 8 th 18 February, 2026.
::: Uploaded on - 18/02/2026 ::: Downloaded on - 18/02/2026 20:54:09 :::FA 2390-25-C.DOC Ahmed Mutuza Hussain Khan-Ex. 17, Dr. Abbas Mistry-Ex. 36 and Mr. Mahesh A. Sarfare -Saifee hospital- Ex. 42. Reliance is also placed on police papers, medical bills, discharge summary, disability certificate etc. No evidence was led by the Insurer.
7. Zubair in his testimony has narrated the manner in which the accident has occurred. The police papers on record indicates that the vehicle in question was being driven by negligent manner by its driver and hence, accident occurred. The Claimant has proved the occurrence of the accident, so also the negligence on the part of the driver of the vehicle on probability. The onus, therefore, shifted upon Opponent to prove that contrary. Admittedly, there is no evidence led by the Insurer to hold otherwise.
8. Testimony of Dr. Abbas Mistry indicates that the Claimant was treated in Saifee hospital for sustainment of head injury as well as injury to the right lower limb. He was brought thereafter being treated at Sion hospital after 17 years. His leg was found entirely degloved with the knee and tibia bone, exposed with the fracture. He further states that the patient was advised imputation of knee at Sion hospital, however, on second occasion of his admission in the hospital there was severe shortening of limb and deformity of foot. He claims that the expenses involved in the correction of deformity of foot would be about Rs.10 lakhs to Rs. 14 lakhs or even more. He also opined that patient requires knee replacement. Claimant has suffered locomotive disability and same is assessed at 84% permanent disability in relation to his right lower limb. It is further opined by the doctor that the Claimant has Page 5 of 8 th 18 February, 2026.
::: Uploaded on - 18/02/2026 ::: Downloaded on - 18/02/2026 20:54:09 :::FA 2390-25-C.DOC actually loss one leg permanently. Perusal of the cross-examination of this witness does not indicate that any error has been committed by him in assessment of disability by the Claimant. The entire cross-examination revolves around the opinion expressed by him with regard to the expenses required to be incurred for future treatment. There is suggestion that such estimate could be less in government/municipal hospital, which by itself indicates that future medical expenses are certainly required to be incurred. Thus, on the basis of evidence on record, there is no reason to hold that the Claimant has suffered permanent disability to the right limb to the extent of 84% and has sustained 70% occupational disability as held by the Tribunal. This Court finds no perversity in the said finding recorded by the Tribunal in this regard.
9. The Claimant has also substantiated incurement of actual medical expenses during the treatment, the same has been proved by examining witness from Saifee hospital.
10. Needless to say that, considering serious nature of injury and prolonged period of hospitalization, the Claimant ought to have been on conveyance and special dies.
11. Learned counsel for the Claimant submits that the Tribunal has committed error in not considering the actual loss of income of the Claimant which should have been accepted 100% and post treatment period for the computation of compensation ought to have been done on the basis of minimum wages of a skilled workman. This contention is opposed by the learned counsel for the Insurer stating that unlike an adult or even a minor who was working, there cannot be actual loss of income of the Claimant.
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12. The age of the Claimant is admittedly four years. In view of the judgment in case of Kajal Vs. Jagdish Chand and ors. (supra) Tribunal has applied multiplier of 18. Similarly, Tribunal has accepted the notional income of the Claimant at the rate of Rs.10,000/- per month.
13. No doubt, in case of Kajal Vs. Jagdish Chand and ors. (supra) the minimum wages of a skilled workman was considered at the rate of Rs.4846/- per month, however, it is pertinent to note that the Hon'ble Supreme Court in case of Sona (Minor) through Next Friend Vs. Manual C.M. and anr. has held that even in this case of a minor the compensation is to be calculated accepting income of minor equivalent the minimum wages payable to skilled worker as notified for the relevant period in respective State where the cause of action arises. Thus, what would be relevant for the purpose of computation of compensation is a minimum wage of skilled worker at the relevant time in the State of Maharashtra.
14. As per the law settled by the Hon'ble Supreme Court in the aforestated judgment, this Court has required to take into account minimum wages paid to the skilled workman. In Maharashtra there is no bar on fixation of different minimum wages of the workman in different industries/trades and as such, different minimum wages are prescribed in various industries, occupations/trades in the State. It would not be possible to consider minimum wage of skilled workman for a particular trade. It would be, therefore, appropriate to consider the average minimum wages payable to the category of a skilled workman in the State.
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15. In the instant case the Tribunal has accepted the income of the Claimant at the rate of Rs.10,000/- per month. Having regard to the minimum wages in different trades of a skilled workman during the relevant period, the said amount of Rs. 10,000/- appears to be just and reasonable. This Court therefore finds no justification for enhancement of compensation as sought by the Claimant.
16. The Tribunal has calculated the compensation amount by rightly taking into consideration the age of the Claimant and multiplier as per the judgment in case of Kajal Vs. Jagdish Chand and ors. (supra). This Court, therefore, finds no reason/justification to cause interference therein. In so far as the future medical expenses granted at the rate of Rs.10,000/- is concerned, doctor has specifically stated about the requirement of more than Rs.10 lakhs to 12 lakhs for future medical expenses. Similarly, having regard to the nature of injury caused to the Claimant and the disability, he would require attendant and hence, the compensation granted on both these counts is found reasonable. Similar is the case with compensation under the heads of pain and sufferings and loss of marital prospects, this Court finds no reason to cause interference in the impugned judgment and order.
17. Appeal stands dismissed.
(R. M. JOSHI, J.) { Page 8 of 8 th 18 February, 2026.
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