Gujarat High Court
Shriram General Insurance Co Ltd vs Jaydeepsinh Javansinh Gelot Rajput on 3 December, 2025
NEUTRAL CITATION
C/FA/422/2022 JUDGMENT DATED: 03/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 422 of 2022
With
R/CROSS OBJECTION NO. 147 of 2023
In
R/FIRST APPEAL NO. 422 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting No Yes
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SHRIRAM GENERAL INSURANCE CO LTD
Versus
JAYDEEPSINH JAVANSINH GELOT RAJPUT & ORS.
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
KAASH K THAKKAR(7332) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 03/12/2025
ORAL JUDGMENT
1) The appellant - original opponent no.3 - Shriram General insurance Co. Ltd., has filed the present appeal under Section 173 of the Motor Vehicles Act, 1988 (which shall hereinafter be referred to as "the Act") challenging the judgment and award dated 28.02.2020 passed by learned Motor Accident Claims Tribunal (Aux), Palanpur, District - Banaskantha (hereinafter referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.161 of 2016.
2) The original claimant - respondent no.1 herein has objected the Page 1 of 12 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:11 IST 2025 NEUTRAL CITATION C/FA/422/2022 JUDGMENT DATED: 03/12/2025 undefined present appeal by filing cross objections being Cross Objection No.147 of 2023, on the ground that the learned Tribunal has committed error in considering the income, disability, PSS and also erred in not considering future prospect.
3) Heard Mr. R. P. Raval, learned Advocate for the appellant -
Insurance Company and Mr. K. K. Thakkar, learned Advocate for respondent no.1 - original claimant. The respondent nos.2 and 3 though duly served but did not appear before this Court. Perused the record and proceedings.
4) It is the case of the original claimant that on 04.09.2014, the claimant was travelling to his home from Mumanvas on motorcycle bearing Reg. No.GJ-09-P-9337, and when reached in the sim of Mumanvas on Danta - Palanpur Highway Road, in the meanwhile, a Tavera car bearing Reg. No.GJ-01-HL-5608, came in excessive speed and dashed the motorcycle of the claimant. Due to which the claimant sustained severe injuries all over the body causing permanent disability making him incapacitated in performing his daily chores. Therefore, the claimant has filed MAC Petition seeking compensation. After appreciating the evidence produced on record the learned Tribunal was pleased to allow the claim petition.
5) Learned Advocate for the appellant has submitted that the learned Tribunal has committed error in awarding compensation and considering the income of the claimant in absence of any proof. Further the learned Tribunal has awarded exorbitant compensation and assessed permanent disability at 90% of the whole body and committed error as per Workmen Compensation Act. Even the endorsement on the disability certificate is 35% Page 2 of 12 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:11 IST 2025 NEUTRAL CITATION C/FA/422/2022 JUDGMENT DATED: 03/12/2025 undefined though the Tribunal has considered it as 80% disablement. So far ortho related injuries are concerned disability certificate was for 21.71% whereas endorsement was given for 9%, however, the learned Tribunal has considered 10% and in total of both the injuries was given 90% disablement which is against the settled principle of law and as per the Kessler's Book two disabilities cannot be added. Hence, he has requested to allow the present appeal.
6) Learned Advocate for the respondent no.1 - original claimant has filed Cross Objections and submitted that the learned Tribunal has not properly considered the disability and 100% disability is required to be considered. The claimant has lost his 100% vision. Further he has submited that though the claimant having ITI Degree and working as Electrician and was earning Rs.10,000/- per month, his income is considered lower and at least income as per minimum wages rate is required to be considered. The Tribunal has not considered future prospective income at all which is required to be considered as 40% considering disablement of the claimant. Further the Tribunal has also committed error in awarding meagre amount under PSS and other heads. Hence, he has requested to allow the cross objections and enhance the compensation to the original claimants and dismiss the appeal.
7) Having heard learned Advocates for the respective parties and going through the record it appears that involvement of the vehicles is not in dispute. The charge-sheet is filed at Exhibit 32, complaint at Exhibit 33, Eye Disability Certificate at Exhibit 36, Disability Certificate of Dr. Nirav R. Gadhvi at Exhibit 57, Page 3 of 12 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:11 IST 2025 NEUTRAL CITATION C/FA/422/2022 JUDGMENT DATED: 03/12/2025 undefined however, no witness is examined to prove disabilities but endorsement was put as both the parties were agreed to consider disablement.
8) The main grievance of the learned Advocate for the Insurance Company is about considering the disablement as per MLC of claimant at Exhibit 35, wherein it has been stated that the claimant sustained multiple injuries and major injury over right eye and eyeball eye go to deep. As per Certificate at Exhibit 36 issued by Dr. Daxesh Modi, M.S. (Eye Surgeon) has assessed permanent and partial disability to the extent of 100% irreversible and permanent vision loss in right eye. The Insurance Company put endorsement and admitted 35% permanent disability body as whole of the claimant.
8.1) It is needless to say that while deciding the disability or deciding injury cases and fixing quantum it is expected from the Tribunals that the nature of injuries suffered and the manner how it will transfer into functional disability is required to be considered. More particularly facts and circumstances of the case and avocation of the claimant. It is also obvious that Medical Officer will given his opinion in respect of physical disability but they are not capable if functional disability as avocation of the injury not brought before them. While deciding the disability the learned Tribunal has to consider the earning capacity and how earning will be affected due to such injury and considering aforesaid fact merely relying on physical disability the Tribunal ought to have considered functional disability.
9) As per the judgment of the Hon'ble Supreme Court in case of Raj Kumar Vs. Ajay Kumar & Anr., reported in 2011 (1) Page 4 of 12 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:11 IST 2025 NEUTRAL CITATION C/FA/422/2022 JUDGMENT DATED: 03/12/2025 undefined SCC 343, the settled principle to assess the physical disability of claimant restricts or prevents the claimant performing his avocation which he used to do before the accident. In the present case the claimant was engaged in the work of Electrician and Security Guard and not lost his total vision but lost vision from one eye and Doctor has assessed 100% loss of vision of right eye and it is nowhere mentioned that claimant has vision loss in both the eyes. This is not a case in which due to such vision loss the claimant become jobless and unable to perform any work and unable to work as Electrician and Security Guard and other avocation. Though consent was given for 35% disability without any reason the learned Tribunal has accepted the disability of 35%. In the case of Raj Kumar (Supra), in paragraphs 8 to 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 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, Page 5 of 12 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:11 IST 2025 NEUTRAL CITATION C/FA/422/2022 JUDGMENT DATED: 03/12/2025 undefined 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.
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, 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 6 of 12 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:11 IST 2025 NEUTRAL CITATION C/FA/422/2022 JUDGMENT DATED: 03/12/2025 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) The learned Tribunal has to consider or ascertain the effect of permanent disability on the actual earning or capacity while ascertaining the said fact the learned Tribunal has to consider the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of 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 Page 7 of 12 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:11 IST 2025 NEUTRAL CITATION C/FA/422/2022 JUDGMENT DATED: 03/12/2025 undefined 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. Relying upon the aforesaid principle subsequently in the case of Chanappa Nagappa Muchalagoda Vs. Divisional Manager, New India Insurance Company Limited, reported in 2020 (11) SCC 796, the Hon'ble Supreme Court has reiterated the aforesaid principle and stated that the Tribunal has to first ascertain what activities the claimant was carrying. The second step is to ascertain his avocation, profession and nature of work before the accident, and also his age. The third step is 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. Herein in the case on hand the learned Tribunal has not made any assessment of the alleged disablement and without assigning any reason or without considering the agreed disability straightaway on its own considered 80% disability. In every injury case the aforesaid findings should be recorded in respect of functional disability in terms of Raj Kumar (supra), without describing nature of Page 8 of 12 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:11 IST 2025 NEUTRAL CITATION C/FA/422/2022 JUDGMENT DATED: 03/12/2025 undefined injuries suffered by the injured the learned Tribunal has accepted the disability is not acceptable. 10.1) If we consider the guidelines issued for assessment of evaluation of disability and procedure for certification of various disability by the Central Government, Ministry of Social Justice and Empowerment, Notification dated 04.01.2018, the Central Government has decided the guidelines for the purpose of assessing extent of specified disability. If we peruse the said guidelines for assessment of visual impairment the blindness means total absence of sight, there is different between loss of vision and total blindness. In case of one eye total vision loss then at that point disability of one eye person impairment is considered as 30% and such partial disability never totally effect the other avocation or claimant profession of Electrician or Security Guard and to decide the said disability the medical authority is also fixed. The certificate must be signed by Medical Superintendent or Chief Medical Officer or Civil Surgeon of the State Government. Considering the above disability is required to be considered as 30% functional disability and the learned Tribunal has committed error while considering the disabilities as 80% and 10 % for fracture shaft humerus which is required to be considered as 9%. Hence, to award just and proper compensation the learned Tribunal ought to have accepted disability as 39% of the whole body, taking a lenient view to award just compensation as both the parties have agreed though without assigning any reason. In view of above the total permanent disability of the claimant is reassessed at 39% of the whole body.
11) Further, the learned Advocate for the respondent - claimant has Page 9 of 12 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:11 IST 2025 NEUTRAL CITATION C/FA/422/2022 JUDGMENT DATED: 03/12/2025 undefined relied on Jayanandan Vs. Varkey and others, reported in 2025 ACJ 421, wherein, the claimant was a diamond cutter and considering his diamond cutting work which involves great degree of precision which would be difficult to achieve with only one eye assessed functional disability at 100%. Herein in the case on hand the claimant is doing work of Security Guard and this is not the case that due to such injury he has lost vision of both the eyes and he become jobless and unable to perform his duty, therefore, question does not arise to consider 80% or 100% total disability. Hence, authorities relied by the learned Advocate for the claimant would not avail any assistance to the claimant.
12) Now coming to the aspect of income the learned Tribunal has considered the evidence produced on record and considered Rs.5,000/- per month, however, as the accident was of the year 2014, as per minimum wages rate the income of the claimant is required to be reassessed as Rs.6,000/- per month. Further, the learned Tribunal has failed to consider the ratio laid down in National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 ACJ 2700 and failed to consider future prospective income of the claimant, however, this Court is of the view that considering the age of applicant 40% increase in income is required to be added towards future prospective income of the applicant. The multiplier of 17 was considered by the learned Tribunal as per the judgment of the Apex Court in the case of Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121].
13) Therefore, recalculating the income of the deceased as Rs.6,000/- and future prospect of 40% = Rs.2,400/- which Page 10 of 12 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:11 IST 2025 NEUTRAL CITATION C/FA/422/2022 JUDGMENT DATED: 03/12/2025 undefined comes to Rs.8,400/-. Now total income under the head of future loss of income is required to be considered as Rs.8,400/- x 12 x 39% x 17 / 100 = Rs.6,68,304/-. The Tribunal has awarded Rs.9,18,000/- towards future loss of income, however, this Court is of the view that the appellant is entitled to get only Rs.6,68,304/- under the head of future loss of income. Similarly, the learned Tribunal has awarded Rs.10,000/- towards actual loss of income, however, this Court is of the view that claimant is entitled for Rs.16,800/- towards actual loss of income. Therefore, the claimant is entitled for additional amount of Rs.6,800/- towards actual loss of income. Further, the learned Tribunal has awarded Rs.15,000/- under the head of pain, shock and suffering which is required to be enhanced to Rs.1,00,000/- and hence the claimant is entitled for additional amount of Rs.85,000/- towards the head of pain, shock and suffering. So far other heads are concerned this Court is of the view that the learned Tribunal has rightly awarded the amount under remaining heads and the same are just and proper.
14) As discussed above, the appellant is entitled to get compensation computed as under:
Heads Awarded by Reassessed by this Court
Tribunal
Future loss of income Rs.9,18,000/- Rs.6,68,304/-
Actual loss of income Rs.10,000/- Rs.16,800/-
including additional
amount of Rs.6,800/-
Pain, shock and Rs.15,000/- Rs.1,00,000/-
sufferings including additional
amount of Rs.85,000/-
Attendance charges, Rs.10,000/- Rs.10,000/-
special diet and
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NEUTRAL CITATION
C/FA/422/2022 JUDGMENT DATED: 03/12/2025
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transportation
Medical expenses Rs.61,300/- Rs.61,300/-
Total compensation Rs.10,14,300/- Rs.8,56,404/-
15) In view of above, as the Tribunal has awarded total
compensation of Rs.10,14,300/-, however, as discussed above the appellant is entitled to for only Rs.8,56,404/- with proportionate costs and interest as awarded by the learned Tribunal.
16) Hence, present appeal filed by Insurance Company is partly allowed and Cross Objection No.147 of 2023 filed by the original claimant is also stands partly allowed. The judgment and award dated 28.02.2020 passed by learned Motor Accident Claims Tribunal (Main), Bhavnagar, in MAC Petition No.161 of 2016 stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered.
17) The appellant - Shriram General Insurance Co. Ltd., has already deposited 100% amount under award and hence as discussed above the appellant - Insurance Company shall be at liberty to recover the surplus amount i.e. Rs.1,57,896/- (Rs.10,14,300/-
- Rs.8,56,404/-).
18) The learned Tribunal is directed to release / refund the surplus court fees on surplus amount (if any) and thereafter disburse the amount accordingly.
19) Award to be drawn accordingly.
(HASMUKH D. SUTHAR,J)
ANKIT JANSARI
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