Gujarat High Court
Lahernath Raghunath Gauswami vs Ram Babulal Trivedi on 18 February, 2026
NEUTRAL CITATION
C/FA/1729/2022 JUDGMENT DATED: 18/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1729 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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LAHERNATH RAGHUNATH GAUSWAMI
Versus
RAM BABULAL TRIVEDI & ANR.
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
MS DIMPLE A THAKER(6838) for the Defendant(s) No. 2
RULE NOT RECD BACK for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 18/02/2026
ORAL JUDGMENT
[1.0] By way of present First Appeal under Section 173 of the Motor Vehicles Act, 1988 (for short "MV Act"), the appellant - original claimant has assailed the impugned common judgment and award dated 25.11.2021 passed by the learned Motor Accident Claims Tribunal (Auxi.), at Deesa, District Banaskantha (for short "learned Tribunal") in Motor Accident Claim Petition No.3090/2009, whereby the learned Tribunal has been pleased to partly allow the claim petition by holding the driver of the Jeep No.RJ-24-T-1122 80% negligent for the accident and claimant motorcyclist to be 20% contributory negligent for the accident and after deducting Rs.90,000/- towards 20% contributory negligence of the claimant, the learned Tribunal has awarded Rs.3,60,000/- to the claimant to be paid by the respondent No.2 - insurance company.
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[2.0] The brief facts of the case of appellant - original claimant are that, on 02.03.2006, the claimant was returning to his village Navapura (Varmoda) from village Bajrangpura by driving his Motorcycle No.RJ- 24-2M-5267 and when the claimant reached at the place of accident, driver of Jeep No.RJ-24T-1122 came driving his jeep with full speed in rash and negligent manner from opposite direction and losing control over the steering, jeep driver dashed his jeep with the claimant's motorcycle due to which the applicant was thrown away from the motorcycle and sustained serious bodily injuries and therefore, the claimant filed MACP No.3090/2009 seeking compensation of Rs.10 lakh.
[2.1] After appreciating the evidence, the learned Tribunal held the driver of jeep to be 80% negligent and claimant motorcyclist to be 20% contributory negligent for the accident and after deducting Rs.90,000/- towards 20% contributory negligence of the claimant, the learned Tribunal has awarded Rs.3,60,000/- to the claimant out of total compensation of Rs.4,50,000/-, to be paid by the respondent No.2 - insurance company. Being aggrieved with 20% contributory negligence saddled on the claimant motorcyclist and against inadequate compensation, present appeal is filed by the original claimant.
[3.0] Heard learned advocate Mr. Vishal Mehta for the appellant - original claimant and learned advocate Ms. Dimple Thaker appearing for the respondent - insurance company.
[4.0] Learned advocate Mr. Vishal Mehta appearing for the appellant
- original claimant has assailed the impugned common judgment and award on the ground that the learned Tribunal has held 20% Page 2 of 13 Uploaded by MR. AJAY C MENON(HC00939) on Thu Feb 19 2026 Downloaded on : Sat Mar 14 02:58:07 IST 2026 NEUTRAL CITATION C/FA/1729/2022 JUDGMENT DATED: 18/02/2026 undefined contributory negligence of the claimant motorcyclist without assigning any reason by observing that the accident took place due to head on collision between the jeep and motorcycle and there is no thumb rule to consider contributory negligence. He has further argued that though the claimant was serving as a driver and his left hand is amputated, 100% functional disability is not considered and only 50% disability is considered. He has further argued that considering the year of accident, minimum wages of skill person at the relevant point of time ought to have been considered and learned Tribunal failed to award just and proper compensation under other non-pecuniary heads like pain, shock and suffering, transportation and hence, he has requested to allow the appeal and enhance the compensation accordingly.
[5.0] Learned advocate Ms. Thaker appearing for the respondent - insurance company has opposed the appeal on the ground that the learned Tribunal has not committed any error in considering the claimant motorcyclist to be 20% contributory negligent considering the panchnama of place of accident and width of road and further, if the claimant motorcyclist would have taken extra care, then the accident could have been avoided and hence, question to consider 100% negligence of the jeep driver does not arise. She has further argued that as per the averments made in the claim petition and in the affidavit of the claimant, no any evidence is produced to show that the claimant was doing driving work and hence, question to consider 100% functional disability of the claimant does not arise. As per the claim petition, the claimant was running STD/PCO and in absence of any proof of income, learned Tribunal has properly considered the income of Rs.2500/- per month of the claimant. Hence, she has submitted that no interference is called for and has requested to Page 3 of 13 Uploaded by MR. AJAY C MENON(HC00939) on Thu Feb 19 2026 Downloaded on : Sat Mar 14 02:58:07 IST 2026 NEUTRAL CITATION C/FA/1729/2022 JUDGMENT DATED: 18/02/2026 undefined dismiss the present appeal.
[6.0] Having heard the learned advocate appearing for the respective parties and perusing the record, it appears that the learned Tribunal has considered the evidence produced and adduced by both the parties including the affidavit of the claimant (Exh.18) and complaint (Exh.31) and panchnama of scene of accident (Exh.32) as well as the decisions of the Hon'ble Supreme Court in the case of Bimla Devi vs. H.R.S.T.C. reported in AIR 2009 SC 2819 and Parmeshwari Devi vs. Amir Chand reported in (2011) 11 SCC 635, wherein it is held that it is settled law that negligence is required to be proved in claim petition under section 166 of the MV Act only on the touchstone of the preponderance of probability and not beyond doubt and even as per the complaint, it emerges that the driver of the offending vehicle came driving his vehicle in rash and negligent manner with full speed from opposite direction and coming on wrong side dashed the motorcycle of the claimant.
[6.1] The claimant in his affidavit of deposition (Exh.18) has stated that accident occurred due to sheer negligence and wrongful act on the part of the jeep driver. Learned Tribunal come to conclusion that both the vehicles collided head on though there was sufficient width of road for passing of involved two vehicles at a time though the learned Tribunal has apportioned 20% contributory negligence on the part of claimant. The learned Tribunal has relied on maxim "res ipsa loquitor". If we appreciate the evidence in light of Bimla Devi (Supra) and Parmeshwari Devi (Supra) alongwith reading of complaint (Exh.31) and panchnama (Exh.32) considering the fact that complaint and charge-sheet is filed against the driver of jeep coupled with the fact that the jeep driver has not stepped into the witness box, sole witness Page 4 of 13 Uploaded by MR. AJAY C MENON(HC00939) on Thu Feb 19 2026 Downloaded on : Sat Mar 14 02:58:07 IST 2026 NEUTRAL CITATION C/FA/1729/2022 JUDGMENT DATED: 18/02/2026 undefined to the accident is the claimant and he in his deposition has specifically alleged 100% negligence on the part of the jeep driver. Further, perusing the panchnama of scene of accident, it transpires that there are brake marks of motorcycle from 10 feet distance and 9 feet away motorcycle is lying. Considering the aforesaid fact, it appears that the claimant motorcyclist was vigilant and he tried his best to avoid the accident. At the same time, topography and spot panchnama demonstrates that there was a turning and as per the evidence of claimant, the claimant was riding the motorcycle on correct side of the road with moderate speed and driver of jeep came from opposite direction with full speed in rash and negligent manner. The said part has remained unchallenged in the cross-examination of insurance company. Not only that, the claimant has denied his negligence and stated that he was riding the motorcycle with moderate speed on correct side of the road. Therefore, the learned Tribunal ought to have decided the negligence based on evidence led before the Tribunal and not on the basis of presumption or assumption. In this regard reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Shrikrishna Kanta Singh Vs. The Oriental Insurance Company Ltd., and Ors. reported in 2025 INSC 394, wherein it is held that in absence of any evidence, if contributory negligence is not proved and no sufficient material is on record based on which contributory negligence can be inferred, Tribunal should not decide the contributory negligence. Hence, in absence of any direct or corroborative piece of evidence, no inference can be drawn with regard to contributory negligence on the part of the claimant motorcyclist based on position of vehicles in panchnama. In this regard, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Jiju Kuruvila & Ors vs Kunjujamma Mohan & Ors reported in (2013) 9 SCC 166 wherein in Page 5 of 13 Uploaded by MR. AJAY C MENON(HC00939) on Thu Feb 19 2026 Downloaded on : Sat Mar 14 02:58:07 IST 2026 NEUTRAL CITATION C/FA/1729/2022 JUDGMENT DATED: 18/02/2026 undefined paragraph 20.5, it has been observed and held as under:
"20.5. The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual."
Hence, in absence of any corroborative piece of evidence to prove the contributory negligence on the part of claimant motorcyclist, learned Tribunal has committed an error in holding the claimant motorcyclist to be 20% contributory negligence for the accident. Therefore, in the considered view of this Court, driver of Jeep No.RJ-24T-1122 is held to be 100% negligence for the accident.
[7.0] Now, so far as argument canvassed by learned advocate for the appellant - original claimant to consider 100% functional disability of the claimant is concerned, it is undisputed and admitted fact that the injury certificate (Exh.33) of the claimant is issued by the Medical Officer of Government Hospital, Palanpur which shows that the claimant has sustained fracture of left femur bone and fracture of left thigh and another injury certificate (Exh.34) of the claimant is issued by Dr. Jitendra M. Solanki, M.S. (Ortho) wherein fractures of left hand and left leg are shown and even in the police complaint, it is stated that the claimant got injured on the parts of left hand and left leg and therefore, it is proved that due to the said accident only, the claimant received fracture injuries on left hand and left leg. The disability certificate (Exh.36) is issued by Dr. H.K. Goswami, M.S. (Ortho) which mentions that the left hand of the claimant is amputated and 100% Page 6 of 13 Uploaded by MR. AJAY C MENON(HC00939) on Thu Feb 19 2026 Downloaded on : Sat Mar 14 02:58:07 IST 2026 NEUTRAL CITATION C/FA/1729/2022 JUDGMENT DATED: 18/02/2026 undefined permanent partial disability of the claimant has been assessed by the said doctor and the Insurer has admitted 50% disability as a whole body and it is an admitted fact that the claimant is doing work of driving. Perusing the evidence produced on record and averments made in the claim petition and affidavit of the claimant, it appears that license of claimant is produced at Exh.39 which shows that the claimant was having license to drive LMV, motorcycle with gear and no license of transport vehicle was possessed by the claimant. Not only that, in his deposition, the claimant has stated that he was running STD PCO and hotel and hence, question does not arise to consider 100% functional disability of the claimant as claimant himself was engaged in another alternate avocation and he was doing sedentary work bearing no direct effect qua his livelihood or income. Hence, question to consider 100% functional disability of the claimant does not arise. It is pertinent to note that in injury cases while awarding just compensation the learned Tribunal has to consider the functional disability and effect of disablement qua in relation to avocation and profession of the claimant. The physical disability and functional disability are all together different and the learned Tribunal has to ascertain the functional disability and Doctor has nothing to do with the functional disability. In this regard, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Rajkumar vs. Ajaykumar & Ors. reported in (2011)1 SCC 343, wherein the Hon'ble Supreme Court has observed and held in paragraphs 8, 10 and 11 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, Page 7 of 13 Uploaded by MR. AJAY C MENON(HC00939) on Thu Feb 19 2026 Downloaded on : Sat Mar 14 02:58:07 IST 2026 NEUTRAL CITATION C/FA/1729/2022 JUDGMENT DATED: 18/02/2026 undefined which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
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10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume 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)."
Thus while assessing permanent disablement of the claimant the learned Tribunal ought to have considered on the actual Page 8 of 13 Uploaded by MR. AJAY C MENON(HC00939) on Thu Feb 19 2026 Downloaded on : Sat Mar 14 02:58:07 IST 2026 NEUTRAL CITATION C/FA/1729/2022 JUDGMENT DATED: 18/02/2026 undefined earning capacity in following three steps as under :
I. The Tribunal has to ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability.
II. The Tribunal has to ascertain the claimant's avocation, profession and nature of work before the accident.
III. The Tribunal has to find out whether the claimant is totally disabled from earning any kind of livelihood, or whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on or whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
In view of above it is the duty of the Court and the Tribunals to ascertain the functional disability of claimant in all injury cases filed under the MV Act for getting compensation. At the same time in Raj Kumar (Supra) the Hon'ble Supreme Court has taken the note and further observed about duty and role of learned Tribunal in paragraphs 16 to 18.
[7.1] The learned Tribunal has assessed 50% permanent disability body as a whole of the claimant however, considering the nature of injury and amputation below shoulder and stump, in Part II of Schedule I of the Workmen Compensation Act, 1923, percentage of loss of earning capacity corresponding to "Amputation from 20.32 cms from tip of acromion to less than 11.43 cms below tip of olecranon", is Page 9 of 13 Uploaded by MR. AJAY C MENON(HC00939) on Thu Feb 19 2026 Downloaded on : Sat Mar 14 02:58:07 IST 2026 NEUTRAL CITATION C/FA/1729/2022 JUDGMENT DATED: 18/02/2026 undefined mentioned as 70% and therefore, it would be just and proper to consider 70% disability however, the learned Tribunal without assigning any reason straightway sliced down the disability to 50% which is impermissible and to that extent, interference at the hands of this Court is required and permanent disability of the claimant is assessed at 70%. Hence, argument canvassed by the learned advocate for the appellant to consider 100% functional disability of the claimant is not accepted.
[8.0] It is the case of the claimant that the claimant was earning Rs.4,500/ per month by doing driving work and running business of STD PCO and hotel and the same fact has also been pleaded in his oral evidence. But to prove such income, the claimant has not produced any documentary or oral evidence on record. The claimant has produced certificate of his profession which is issued by the Sarpanch of Gram Panchayat, Varman vide Exh.38 but the said Sarpanch is not examined by the claimant. The learned Tribunal in absence of any evidence with regard to income of the claimant, has assessed monthly income of the claimant at Rs.2500/-, which in the considered opinion of this Court does not call for any interference. The claimant at the time of accident was aged 25 years and therefore, in view of decision of Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Shethi reported in (2017) 16 SCC 680, Rs.1000/- (25% of Rs.2500/-) towards future prospects is required to be added in the monthly income of the claimant which would come to Rs.3500/-. Hence, considering 70% disability and applying multiplier of 18, in view of the decision of the Hon'ble Supreme Court in the case of Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr. reported in 2009 ACJ 1298, as the claimant was aged 25 years, the claimant would be entitled to Rs.5,29,200/- [Rs.2450/- (Rs.2,00,000/- x 70%) x Page 10 of 13 Uploaded by MR. AJAY C MENON(HC00939) on Thu Feb 19 2026 Downloaded on : Sat Mar 14 02:58:07 IST 2026 NEUTRAL CITATION C/FA/1729/2022 JUDGMENT DATED: 18/02/2026 undefined 12 x 18] towards future loss of income.
[8.1] So far as actual loss of income is concerned, considering the disability and injuries sustained by the claimant, the learned Tribunal considered actual loss for 12 months and awarded Rs.30,000/-, which is just and proper. So far as compensation awarded by the learned Tribunal under the head of medical expenses is concerned, the learned Tribunal has rightly awarded Rs.52,500/- considering the medical bills produced at Exh.37 and in the considered opinion of this Court, no interference is called for so far as compensation under the head of medical expenses is concerned.
[8.2] So far as compensation under the head of pain, shock and suffering is concerned, considering the nature of injury and disability, learned Tribunal has rightly awarded Rs.40,000/- towards pain, shock and suffering however, considering 70% disability assessed by this Court, it would be just and proper to award Rs.1,50,000/- towards pain, shock and suffering. In the considered opinion of this Court, compensation under the head of loss of amenities is required to be reassessed at Rs.1,00,000/- and it would be just and proper to award Rs.1,50,000/- under the head of artificial limb. The learned Tribunal has awarded Rs.7500/- towards special diet, attendant and transportation charges, which does not call for any interference. Hence, the original claimant is now entitled to get the compensation as under:
Heads Awarded by Reassessed by this Court
Tribunal
Future loss of income Rs.2,70,000/- Rs.5,29,200/-
Actual loss of income Rs.30,000/- Rs.30,000/-
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NEUTRAL CITATION
C/FA/1729/2022 JUDGMENT DATED: 18/02/2026
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Pain, shock and Rs.40,000/- Rs.1,50,000/-
suffering
Medical Expenses Rs.52,500/- Rs.52,500/-
Attendant, Spl. Diet and Rs.7,500/- Rs.7,500/-
transportation
Loss of Amenities Rs.50,000/- Rs.1,00,000/-
Artificial Limb --- Rs.1,50,000/-
Total Compensation 4,50,000/- Rs.10,19,200/-
Thus, total compensation of Rs.4,50,000/- as awarded by the learned Tribunal being on lower side, for the reasons recorded hereinabove, same is required to be reassessed at Rs.10,19,200/- and therefore, the impugned judgment and award passed by the learned Tribunal is required to be modified to the aforesaid extent. At the cost of repetition it is stated that the finding of the learned Tribunal holding the claimant motorcyclist to be 20% contributory negligent is set aside by this Court as discussed hereinabove.
[9.0] In wake of aforesaid conspectus, First Appeal stands partly allowed and impugned judgment and award 25.11.2021 passed by the learned Motor Accident Claims Tribunal (Auxi.), at Deesa, District Banaskantha in Motor Accident Claim Petition No.3090/2009 is modified and it is held that original claimant is entitled to get reassessed compensation of Rs.10,19,200/- from the respondent No.2
- insurance company. The respondent No.2 - insurance company is directed to deposit the entire reassessed amount with the learned Tribunal within a period of four weeks from the date of receipt of this judgment alongwith the interest as awarded by the learned Tribunal.
[9.1] After the reassessed amount of compensation is deposited by the insurance company, the learned Tribunal shall disburse the entire Page 12 of 13 Uploaded by MR. AJAY C MENON(HC00939) on Thu Feb 19 2026 Downloaded on : Sat Mar 14 02:58:07 IST 2026 NEUTRAL CITATION C/FA/1729/2022 JUDGMENT DATED: 18/02/2026 undefined amount with accrued interest thereon as awarded by the learned Tribunal, if any, to the claimant, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
[9.2] While making the payment, the Tribunal shall deduct the courts fees, if not paid.
[10.0] Record and proceedings, if any, be sent back to the concerned Tribunal, forthwith.
Pending civil application, if any, stands disposed of.
Sd/-
(HASMUKH D. SUTHAR, J.) Ajay Page 13 of 13 Uploaded by MR. AJAY C MENON(HC00939) on Thu Feb 19 2026 Downloaded on : Sat Mar 14 02:58:07 IST 2026