Gujarat High Court
Jagdishbhai Ratilal Rathod vs Devshibhai Motibhai Kadotra on 27 April, 2026
NEUTRAL CITATION
C/FA/1947/2015 JUDGMENT DATED: 27/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1947 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
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JAGDISHBHAI RATILAL RATHOD
Versus
DEVSHIBHAI MOTIBHAI KADOTRA & ANR.
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MS DIMPLE A THAKER(6838) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 27/04/2026
ORAL JUDGMENT
1. The present appeal is filed at the instance of the original claimant, being aggrieved and dissatisfied with the judgment and award dated 15.04.2014 passed by the Motor Accident Claims Tribunal (Main) at Rajkot in MACP No. 477 of 2006. By the said judgment and award, the Tribunal has partly allowed the claim petition preferred by the original claimants under Section 166 of the Motor Vehicle Act ( for short "the Act"), 1988 holding him entitled to recover a sum of Rs. 2,09,240/-with interest at the rate of 8% per annum from the date of filing of the claim petition till its actual Page 1 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined realisation, from the original opponents jointly and severally. Hence, the present appeal praying for the enhancement of aforesaid amount of compensation with proportionate cost as under.
2. Considering the grounds raised in the appeal memo and submissions made by learned advocate for the appellant, this Court vide order dated 28.09.2015 had admitted the appeal. The record and proceedings have been called for.
3. Learned advocate Ms. Dimple A. Thaker has entered appearance on behalf of respondent No.2-Insurance Company. Despite service of notice of admission of appeal upon respondent No.1, the owner of the offending vehicle involved, for the reasons known has chosen not to enter the appearance for contesting the present appeal. With the able assistance of learned advocates representing the respective parties, the appeal is finally heard.
4. Learned advocate Ms. Dhwani Lakhani has appeared on behalf of Mr. Hemal Shah learned advocate on record for the appellant original claimant and has vehemently assailed the impugned judgment and award passed by the Tribunal mainly on the ground of quantum of compensation being determined on the lower side. The attention of this Court Page 2 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined was invited to the brief facts of the case. It was pointed out that the claimant used to do masonry work and also used to work as a Contractor and thereby used to earn his livelihood. Though it was specifically pleaded on oath before the Tribunal that he was earning Rs. 235/- per day as wages. It was also contended that he was earning additional income of Rs. 30,000/- per annum by doing agricultural activities. However, the Tribunal has refused to accept the aforesaid income for the purpose of assessment of future loss of income. Despite the production of documentary evidence in the nature of income tax returns for A.Ys. 2002- 2003, A.Ys. 2003-2004, A.Ys. 2004-2005, A.Ys 2006-2007 collectively at Exh. 34, the Tribunal has noted that the appellant has failed to produce any further corroborative evidence in the nature of account books to substantiate the aforesaid income. The Tribunal has also noted that no independent witness has also been examined by the claimant. On overall appreciation of the evidence brought on record, the Tribunal has accepted the annual income reflected in Income Tax returns of A.Y 2002-2003 for the purpose of determination of income of the claimant. The Tribunal has accordingly determined the income of the claimant as Rs. 4,500/- which according to her is less. Secondly, the component of disability of 12% has also been determined on lower side. She has invited my attention to the nature of injuries sustained by the claimant. The reliance was placed on disability certificate issued by Dr. Page 3 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined Dinesh Chauhan M.S (Ortho) at Exh. 39. She has pointed out from the aforesaid certificate that the claimant has sustained fracture in the lower head of the femur which has resulted into dislocation of the hip. It was further pointed out that he has sustained fracture in the nature of compress grade II of tibia tyc comminuted. Referring to the fibula disability certificate she has submitted that in fact he was operated for the aforesaid comminuted grade fracture for which he was advised rest for six weeks. Prior to that he had been treated as indoor patient for 21 days. Referring to the post operation difficulties faced by claimant, the doctor upon physical as well as clinical assessment has opined that the claimant has suffered 32% disability of body as a whole. He has further pointed out that in fact in absence of further operation being carried out with regard to hip replacement, the doctor has noticed changes of AVA and arthritis of the lower limb. At this stage she has invited my attention to the findings and reasons assigned by the Tribunal and has submitted that no specific reasons has been assigned by the Tribunal for reducing the aforesaid disability of 32% opined by the Medical officer to 12% for the purpose of assessment of future loss of income. The reliance was placed on the decision of the Hon'ble Supreme Court in the case of Rajkumar Vs. Ajaykumar and another reported in (2011) (1)SCC 343. Referring to the aforesaid decision learned advocate has submitted that in fact that the duty is cast on the Tribunal to award just and Page 4 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined reasonable amount of compensation. The emphasis is made to assess functional disability for the purpose of assessment of loss of earning capacity of the victim of accident rather than to take into consideration the disability opined by the Medical Officer for the purpose of determination of loss of earning capacity. Lastly, learned advocate had submitted that considering the fact that the doctor has suggested hip replacement operation for which the estimated medical expense was indicated as Rs. 3,75,000/-, however, the Tribunal has refused to take into consideration the aforesaid expense for the purpose of compensation on the ground that the claim petition was filed in the year 2006 and while the same was finally adjudicated in the year 2013, till date the applicant has not undergone such operation. In absence of any current assessment being brought on record, has held the claimant not entitled to such compensation. Learned advocate has fairly pointed out that the specific instructions were called for as to pending the appeal whether the applicant has undergone such surgery. In absence of any instructions being received as the claimant being not in contact, she is unable to make any further submission on actual expense incurred. However, she has submitted that even in absence of any documents with regard to actual expense being incurred towards surgery, this Court considering the fact that the claimant have produced on record the medical expert opinion expressing such surgery to be carried out in future and the Page 5 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined medical expenses towards the same required to be incurred, may award appropriate amount towards further medical epxnses. She has, therefore, urged this Court to allow this appeal and to enhance the amount of compensation which may be awarded with interest and proportionate cost.
5. Per contra, learned advocate Ms. Thaker appearing for the respondent No. 2 Insurance Company has vehemently objected to the aforesaid submissions made by learned advocate for the appellant original claimant. She has placed on record the written submissions on behalf of respondent No.2 Insurance Company which is permitted to be taken up on record. Inviting my attention to the summary of submissions, learned advocate has submitted that considering the circumstances emerged on record and the evidence brought on record, the learned Tribunal has rightly assessed the income of the claimant. It was pointed out that the minimum wages prevailing at the relevant point of time was Rs. 2,400/- per month for a skilled labour. As against that, the income tax returns produced by the claimant admittedly are filed after the date of accident. She has, therefore, submitted that no error can be found with the approach of the Tribunal in discarding the same to be read as evidence for the purpose of determination of income. In absence of any cogent documentary evidence thus being produced on record demonstrating higher income of the claimant, despite the Tribunal has taken a liberal view and Page 6 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined has assessed the income which is just and calls for no interference by this Court in the present appeal. On the aspect of the disability, she has submitted that although the disability certificate has been produced on record wherein the doctor who had treated the claimant has assessed his disability as 32% of body as a whole, however, the claimant has failed to led any further evidence to show that the said disability has resulted into corresponding loss of his earning capacity. She has invited my attention to the findings assigned by the Tribunal as recorded in para 11. As against the aforesaid findings and reasons assigned by the Tribunal, nothing has been produced on record before this Court to suggest as to why the disability assessed by the Tribunal as 12% of body as a whole is incorrect. As regards reliance placed on the decision of Hon'ble Supreme Court in the case of Rajkumar (supra), learned advocate had referred to the observations made by the Hon'ble Supreme Court emphasizing on para 19 (ii). She has submitted that the percentage of loss of earning capacity is not the same as the percentage of permanent disability as highlighted by Hon'ble Supreme Court in the aforesaid decision, and, therefore, in facts of the case the Tribunal has rightly assessed the disability of the claimant as 12% instead of 32%. In so far as the claim for future medical expenses of Rs. 3,75,000/- towards hip replacement surgery is concerned, she has mainly relied upon the findings and reasons assigned by the Tribunal. She has submitted that no document worth has Page 7 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined been produced on record by the claimant before the Tribunal or even in appeal before this Court to remotely suggest that he has actually undergone hip replacement and has incurred medical expenses towards the same. Merely because medical certificate has been produced on record suggesting hip replacement surgery and the expenses to be incurred, the same cannot be basis for the purpose of awarding compensation. She has further pointed that even considering the fact that the accident had taken place in the year 2006 and the claim petition being adjudicated finally in the year 2014 and the appeal thereafter being filed and being heard in 2026, all through out the claimant has survived with limb injury. In absence of any medical evidence, opinion or estimate being produced before the Tribunal or before this Court to demonstrate that surgery is necessary, the Tribunal has rightly refused to entertain such claim under the head of future medical expenses. She has, therefore, prayed for dismissal of the appeal on the aforesaid grounds.
6. I have heard the learned advocates appearing for the respective parties and have carefully considered their arguments in light of the findings and reasons assigned by the Tribunal. I have carefully gone through the record and proceedings being made available by the Tribunal. The short question which falls for consideration of this Court in the Page 8 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined present appeal is as to whether the Tribunal committed any error in facts or in law in determining the compensation while adjudicating the claim petition filed under Section 166 of the Act, 1988?
7. Before adverting to the merits of the appeal, it would be appropriate to note that in absence of any appeal being filed by either of the original opponents, and in absence of any grounds being urged contradicting the findings and reasons assigned by the Tribunal on the issue of negligence and the liability incurred by respondent No.2 Insurance Company to indemnify the owner of the offending vehicle, the same has attained finality. Keeping in mind the foundational facts of the case, if one looks at the findings and reasons assigned by the Tribunal on the quantum of compensation, having noted the age of the claimant which is determined as 36 years at the time of accident and the nature of injuries sustained by the claimant more particularly the fracture of femur bone as well as tibia fibula on the left leg resulting into shortening of 1.5 cm of the left lower limb, this Court is of the view that the Tribunal failed to meet with the object of awarding just and reasonable amount of compensation.
7.1 Firstly, it would be appropriate to take into consideration on the issue of the income of the claimant being determined on the lower side. As rightly pointed out Page 9 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined by learned advocates on record, the documentary evidence in the nature of income tax returns of A.Y 2002-2003 (filed on 21st February 2003) for annual income of Rs. 53,798/-, A.Y 2004-2005 filed on 31st March 2005 reflecting the income from business or profession as Rs. 29,792/-,A.Y 2005-2006 filed on 31st March 2007 reflecting income from business or profession as Rs. 60,424/- and A.Y 2006-2007 filed on 31st March 2007 reflecting income from business or profession as Rs, 96,113/- has been produced on record. Having noted the date of filing of the income tax returns, it is evident that the income tax returns for A.Y 2005-2006 and A.Y 2006-2007 has been filed on 31st March 2007 which is subsequently to the date of the occurrence of accident which is 14.02.2006. Having noted the aforesaid dates, no error can be found with the approach of the Tribunal in discarding the aforesaid two assessment year income tax returns for the purpose of determination of income. The Tribunal was thus left with the two documentary evidence of income tax returns of A.Y 2002- 2003 filed on 21st February 2003 and A.Y 2004-2005 for the purpose of determination of income of the claimant at the time of accident. It is required to be noted that A.Y 2004-2005 would relate to finance year 2003-2004 that is between period 1st April 2003 to 31st March 2004 whereas A.Y 2002-2003 would relate to financial year 2001-2002. Considering the income tax returns of earlier year being placed for consideration and the nature of avocation of the Page 10 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined claimant, who claims to be earning from masonry work and the agricultural activity, in absence of any direct proof of income with regard to agricultural income being produced on record, it would be appropriate to consider the income generated from the business and profession that is masonry work and contract work for the purpose of the determination of the income. Having noted the aforesaid evidence on record, in my view the Tribunal has rightly fixed the income of the claimant as Rs. 4,500/- per month.
7.2 This brings me to the prospective income of the claimant to be considered for the purpose of determination of future prospective loss of the income. As can be gathered from the findings and reasons assigned by the Tribunal, the Tribunal has failed to consider the aforesaid component despite the judgment of the Hon'ble Supreme Court which otherwise permits the Courts to take into consideration the prospective income even in the injured cases for the purpose of determination of future loss of income. Having noted the age of the claimant as 36 years and the fact that the claimant used to independently earn being self-employed, in view of the settled principles laid down by the Hon'ble Supreme Court in the case of National Insurance Company Ltd Vs. Pranay Sethi reported in 2017 (16) SCC 680, treating the case on hand falling in the age group below the age of 40 years, an addition of 40% is required to be considered for the purpose of determination of Page 11 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined prospective income. Thus, the prospective income of the claimant is determined as Rs. 4,500/- multiply by 40% is equal to Rs. 1800/- plus Rs. 4,500/- is equal to Rs. 6,300/- per month. As regards multiplier of 13 being applied, in view of the principles laid down by the Hon'ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation (2009) 6 SCC 121, the Tribunal ought to have applied multiplier of 15 treating it to be in the age group between 36 to 40 years.
7.3 This brings me to the core contention raised by learned advocate for the claimant of disability of 12% being determined on lower side. I have carefully considered the medical case papers produced on record. As evident from the injury certificate produced on record at Exh. Mark 20/1 as rightly pointed out by learned advocate for the claimant, the claimant has suffered fracture of head of femur of lower hip. He has also sustained fracture in the nature of compress grade II of tibia fibula communitiad. The disability certificate dated 31.08.2006, issued by Yash Hospital further suggest that he was operated for the tibia fibula fracture suffered in the left lower limb. He was hospitalised for a period of 21 days and was advised six weeks rest thereafter. It is required to be noted that the doctor who had issued the said certificate has further examined the claimant physically and he has also assessed clinically. He has noted the restrictive movements of left hip Page 12 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined and has noted that the claimant has difficulty in walking or attending hard work and labour work. The doctor has noted that the claimant has suffered shortness of lower limb by 1.5 cm. He has also noticed limping while he is walking and he is unable to walk or sit cross-legged. He has also complained of difficulties in getting up or moving on stair case or sitting on floor. Having noted the aforesaid difficulties in physical movement, the doctor has noted that fracture of the head of the femur has resulted into dislocation of hip and in absence of same being treated there are changes being noted of AVA arthritis of leg. Considering the aforesaid physical changes in the body more particularly the restriction of the movements, arthritis, the pain, the doctor has opined that the claimant is unable to attend his daily routine activity efficiently, he has opined that said injuries has resulted into partial permanent disability of 32% of body as a whole. It is also required to be noted that with such injuries despite the opinion expressed by the doctor to undergo hip replacement as evident from the certificate dated 14th November 2013 which is marked as Exh. 37, in absence of any confirmation of the fact that the claimant has actually undergone hip replacement, the same could not be ascertained. May that be so, the question arises as to whether this Court in absence of any medical expert being examined as witness or any other evidence indicating the loss of earning capacity, would concur with the view expressed by the Tribunal assessing the disability Page 13 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined of the claimant as 12% of body as a whole?
7.4 On careful consideration of the principles laid down by the Hon'ble Supreme Court in the case of Rajkumar (supra), the Courts are under obligation to find out the effect and impact of the permanent disability on the earning capacity of the victim of the accident for the purpose of determination of future loss of income. The Courts have been cautioned to not to mechanically apply the percentage of permanent disability of percentage of economic loss or loss of earning capacity. Thus, what is required to be assessed by the Tribunal/Courts is the effect of permanent disability on the earning capacity of the injured and after assessing the loss of earning capacity in terms of percentage of income, it has to be quantified in terms of money, to arrive at future loss of earning by applying the standard multiplier method usually applied for the loss of future earning. It would be appropriate to revisit relevant observations which reads as under :-
"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:
(2) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is Page 14 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined 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.
20. The assessment of loss of future earnings is explained below with reference to the following illustrations:
Illustration `A': The injured, a workman, was aged 30 years and earning Rs.3000/- per month at the time of accident. As per Doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on Page 15 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows:
a) Annual income before the accident : Rs.36,000/-.
b) Loss of future earning per annum (15%
of the prior annual income) : Rs. 5400/-.
c) Multiplier applicable with reference
to age : 17
d) Loss of future earnings : (5400 x 17) : Rs. 91,800/-
Illustration `B': The injured was a driver aged 30 years, earning Rs.3000/- per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive.
His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows:
a) Annual income prior to the accident : Rs.36,000/-.
b) Loss of future earning per annum 75%
of the prior annual income) : Rs.27000/-.
c) Multiplier applicable with reference
to age : 17
d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/-
Illustration `C': The injured was 25 years and a final Page 16 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows:
a) Minimum annual income he would have got if had been employed as an Engineer : Rs.60,000/-
b) Loss of future earning per annum (70% : Rs.42000/-
of the expected annual income)
c) Multiplier applicable (25 years) : 18
d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/-
[Note : The figures adopted in illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on actuals taken from the decision in Arvind Kumar Mishra (supra)].
23. Tribunals should realize that a busy Surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy Surgeons refuse to treat medico-legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the Doctors to attend the Tribunal to give evidence. The solution lies in recognizing the valuable Page 17 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined time of Doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating Doctors on commission, after ascertaining their convenient timings. Secondly, if the Doctors attend the Tribunal for giving evidence, their evidence may be recorded without delay, ensuring that they are not required to wait. Thirdly, the Doctors may be given specific time for attending the Tribunal for giving evidence instead of requiring them to come at 10.30 A.M. or 11.00 A.M. and wait in the Court Hall. Fourthly, in cases where the certificates are not contested by the respondents, they may be marked by consent, thereby dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a long way in demonstrating that Courts/Tribunals show concern for litigants and witnesses."
8. Applying the aforesaid principles in the facts of the case, in my view the Tribunal committed grave error in reducing the disability to 12% instead of 32% without assigning any reasons. Learned advocate appearing for the respondent No. 2-Insurance Company has emphasised on the fact that except for the disability certificate, the medical case papers being placed on record, no other cogent evidence or even medical expert has been examined as witness to justify the fact Page 18 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined that the claimant had sustained actual loss of earning because of the impact of the injuries sustained in the accident. However, as expressed by the Hon'ble Supreme Court in the aforesaid decision, even in absence of the medical officer been examined as witness, the duty was casted upon the Tribunal to independently assess the functional disability for the purpose of determination of future loss of earning. It is true that mere production of a disability certificate cannot be treated as an absolute proof of the extent of disability. The certificate is required to be proved by examining the doctor who issued it, the same can be put to scrutinisation.
I have carefully considered the cross-examination of the claimant at the instance of respondent No.2-Insurance Company. The Counsel representing the Insurance Company has chosen not to challenge the disability certificate produced on record. The claimant on the other hand has denied the question put to him that he has not sustained any disability and he is attending the work as he used to prior to the accident. He has re-asserted that he is unable to attend work and he is not filing any income tax returns. Apart from the disability certificate produced on record the claimant has also produced on record the medical bills and the prescriptions collectively at Exh. 35 Page 19 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined which has been accepted by the Tribunal as being admitted at Exh. 35. The medical expenses has been awarded by the Tribunal as Rs. 90,000/-. The X ray report of the claimant has also been produced on record at Exh. 36. The X ray bill has also been produced on record at Exh. 38. Apart from the aforesaid medical case papers, the claimant has also produced on record the opinion of Dr.Dinesh Chauhan dated 14.11.2013 which is admitted as evidence and marked as Exh. 37.
9. On overall appreciation of the medical case papers on record, this Court has no reason to disbelieve the case of the claimant having suffered fracture of the femur of hip region and fracture of tibia fibula bone of the left lower limb. As rightly pointed out by learned advocate for the appellant, he has also been operated for tibia fibula bone of left over limb. Despite medical advice from the doctor to undergo hip replacement, the claimant, mainly due to financial contraints, seems to have not undergone such treatment. Considering the aforesaid injuries sustained by the claimant if one looks at the avocation of the claimant, it is established that the the claimant was earning his livelihood by doing masonry work and as a contractor. It was also pleaded that he was earning additional income by doing agricultural activity. Thus, the claimant was earning his livelihood by doing physical work. Considering the avocation of the masonry by engaging in heavy manual Page 20 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined lifting, standing for long hours or walking wherein he is required to be physically involved; with such injuries being sustained, he is likely to suffer functional disability of body which would have direct impact on extent of his earning. Considering the disability certificate produced on record wherein the doctor has opined of him having suffered 32% disability of body as a whole, if one looks into the evaluation of disability as expressed in the reference of "Disability-Determination and Evaluation" by Henry S. Kessler, it has been expressed that in case of permanent impairment on the part of the lower limb, on account acute limping limitation of the hip joint and the possibility of future development of arthritic changes due to excessive callus cannot be ruled out. It has also been opined that non-union of fracture of the pelvis is almost unknown but it does occur in patients with fractures of the antero superior spine which are not given sufficient time for rest. The estimation of permanent impairment in case of fracture of femur which takes usually 6 to 8 months for the severe type of pelvic fracture of reunion, it has been found that in such kind cases the patients do complain of the pain followed by difficulty in walking which is due mostly to pain and causes to limitation of movement, restriction of hip motion shortening of the limbs, followed by muscular atrophy of thigh. Bearing in mind the aforesaid aspects in the facts of the case as evident from the disability certificate produced on record, the fracture in the lower limb and in absence of Page 21 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined any document suggesting hip replacement surgery being undergone by the claimant, looking to the avocation of the claimant, it has corresponding impact on the earning capacity of the claimant.
10. Considering the medical case papers in light of the aforesaid reference, in my view the Tribunal ought to have taken into consideration 32% disability for the purpose of determination of loss of future earnings of the claimant. Having noted so, even the multiplier is also required to be revisited. Considering the age of the claimant as 36 years at the time of accident as determined by the Tribunal based on the date of birth as reflected in the income tax returns, the correct multiplier applicable was 15 instead of 13. Considering the aforesaid components, future of loss of earning of the claimant is re-determined as under:-
Rs. 6,300 multiply by 12 = Rs. 75,600 multiply by 32% = Rs. 24,192/-
Annual loss of income comes to Rs. 75,600 minus Rs. 24,192 = Rs. 51,408 per annum.
Applying by multiplier of 15 it comes to Rs. 7,71,120/-.
Thus, future loss of earning is re-determined as Rs. 7,71,120/-Page 22 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026
NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined This brings me on the aspect of future medical expenses has to be considered in the facts of the case as recorded earlier. It has been established on record that the claimant has suffered fracture in the femur as well as fracture of tibula fibula bone of the left lower limb. The medical certificate produced on record at Exh. 37 re-assert the aforesaid fact. It is required to be noted that the said medical certificate is dated 14.11.2013 which suggest that the claimant has developed avascular necrosis of head of femur bone. With such progress in the injury, the doctor has again has advised him for total hip replacement, the total expenses for which is indicated is Rs. 3,75,000/- approximately. With such medical certificate on record though the medical expert has not been examined as witness however, the fact remains that the claimant has produced on record evidence to indicate that even in the year 2013, he was advised to undergo total hip replacement surgery. In absence of any contradiction being brought on record, this Court has no reason to disbelieve the fact that having sustained such injuries the same has progressed with the lapse of time.
11. Considering the economy prevailing in the year 2006, this Court is inclined to consider the case of future medical expenses. It is required to be noticed that the Courts are guided by the approach of the lawyers who chose not to contest the certificate and they being marked by consent Page 23 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined as evidence thereby dispensing with the oral evidence. Having appreciated the original record and proceedings, the medical certificate produced on record at Exh. 37, looking to the injuries sustained, had the claimant being extended the compensation at the right point of time he would have perhaps undergone the hip replacement surgery. The same being not adjudicated for a period of almost 7 years, and the limited income which he used to earn by doing masonry work no fault can be found with the claimant of having not produced any further document to suggest that he had actually undergone such treatment by incurring such medical expenses. This Court is therefore, inclined to accept the case of the claimant for future medical expense to the extent of Rs. 2 lakhs. Considering the fact that total hip replacement surgery has been advised by the doctor way back in the year 2013.
For the foregoing reasons, the total amount of compensations is re-determined as under :-
Sr. Particulars Tribunal Final amount
No. (Rs.) (Rs.)
1. Future loss of income 7,71,120/-
2. Pain shock and 18,500/- 18,500/-
suffering
3. Medical expenses 19,000/- 19,000/-
4. Special Diet 6,500/- 6,500/-
5. Attendant charges 2,500/- 2,500/-
Page 24 of 26
Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026
NEUTRAL CITATION
C/FA/1947/2015 JUDGMENT DATED: 27/04/2026
undefined
6. Transportation 2,500/- 2,500/-
expenses
7. Actual loss of income 5,000/- 5,000/-
8. Future Medical -- 2,00,000/-
expenses
9. Total amount of 2,09,240/- 10,25,120/-
compensation
12. For the foregoing reasons, the appeal is allowed. The impugned judgment and award dated 15.04.2014, passed by the Motor Accident Claims Tribunal (Main) at Rajkot in MACP No, 477 of 2006 is hereby modified by holding the original claimants entitled to total amount of compensation of Rs. 10,25,120/- with interest at the rate of 8 % from the date of filing the claim petition till his actual realisation from the original opponents jointly and severally.
13. In view of the aforesaid directions, the respondent No.2 Insurance Company is hereby directed to deposit enhanced amount of compensation of Rs. 8,15,880/- with interest and cost as awarded by this Court, within a period of 6 weeks from the date of receipt of certified copy of this order.
14. On deposit of the aforesaid entire amount of compensation, the Tribunal shall be at liberty to proceed with the release and disbursement of the awarded amount in favour of the claimant subject to due verification and Page 25 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026 NEUTRAL CITATION C/FA/1947/2015 JUDGMENT DATED: 27/04/2026 undefined strictly adhering to guidelines of Hon'ble Supreme Court in this regard. The Tribunal shall undertake this exercise within a period of two weeks thereafter.
15. With these observations, the First Appeal stands disposed of in the aforesaid terms. The record and proceedings are directed to be sent back to the concerned Tribunal alongwith the writ of this judgment.
(NISHA M. THAKORE,J) MARY VADAKKAN Page 26 of 26 Uploaded by MARY VADAKKAN(HC00204) on Fri May 01 2026 Downloaded on : Sat May 02 04:19:31 IST 2026