C/FA/4053/2025 JUDGMENT DATED: 05/12/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 4053 of 2025 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR ========================================================== Approved for Reporting Yes No √ ========================================================== PARMAR ARJANJI @ ARJUNJI VIRAJI Versus RAVAL ARVINDBHAI CHAMANBHAI & ANR. ========================================================== Appearance: MR NISHIT A BHALODI(9597) for the Appellant(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 05/12/2025 ORAL JUDGMENT Learned advocate Mr. Yogi Gadhia states that he has instructions to appear for the respondent – insurance company. Registry to accept his vakalatnama. ADMIT. As the issue in the present appeal is only with regard to quantum of compensation, with the consent of learned advocate appearing for respective parties, present appeal is taken up for 9nal hearing today. [1.0] By way of present First Appeal under Section 173 of the Motor Vehicles Act, 1988, the appellant herein – orignial claimant has assailed the impugned judgment and award dated 07.07.2022 passed by the learned Motor Accident Claims Tribunal (Auxi.-6), at Mahesana (for short “learned Tribunal”) in Motor Accident Claim Petition No.368/2014, whereby the learned Tribunal has partly allowed the claim petition in favor of the original claimant by C/FA/4053/2025 JUDGMENT DATED: 05/12/2025 awarding Rs.7,30,000/- to the appellant - original claimant with interest at the rate of 9% per annum from the date of claim petition. [2.0] The brief facts leading to 9ling of present appeals and cross- objections are as follows: [2.1] On 04.12.2014 at about 10.30 a.m., when the appellant herein – original claimant and one Parmar Pamba Kasalsinh were going from Mahesana in Jeep bearing No.GJ-1-HG-7130, at that time, near the temple of ‘Sadhi Mata’, on the road towards Kherva to Sangalpur, the driver of jeep lost control over steering and the jeep got turtled as a result of which the appellant herein – original claimant sustained serious injuries and pursuant thereto, the appellant herein – original claimant 9led MACP No.368/2014 seeking compensation of Rs.5,00,000/-. [2.2] After considering the evidence produced on record by the respective parties, learned Tribunal has been pleased to hold the original opponent No.1 solely negligent for the accident and awarded compensation of Rs.7,30,000/- to be paid by the respondent – insurance company. Hence, present First Appeal is 9led by the original claimant seeking enhancement of the compensation. [3.0] Learned advocate for the appellant has assailed the impugned judgment and award mainly on the ground of quantum by submitting that the appellant – claimant has sustained the grievous injury due to vehicular accident and learned Tribunal has to consider the functional disability as per the decision of the Hon’ble Supreme Court in the case of Rajkumar vs. Ajaykumar & C/FA/4053/2025 JUDGMENT DATED: 05/12/2025 Ors. reported in (2011)1 SCC 343 though the learned Tribunal without considering functional disability has awarded the compensation. He has further submitted that 100% disablement is required to be considered and future prospect is not considered considering the said disablement. Even, pain, shock and suOering is not appropriately considered and only Rs.10,000/- has been awarded which is required to be enhanced. He has further submitted that even under the head of special diet, attendant charges and transportation, only Rs.10,000/- is awarded by the learned Tribunal which is required to be enhanced. Hence, he has requested to allow the present appeal. [4.0] Learned advocate Mr. Yogi Gadhia has appeared on behalf of the respondent – insurance company and opposed the appeal mainly on the ground that the learned Tribunal has not committed any error and the award is just and proper and the learned Tribunal has appropriately considered the income of the claimant and as such there was no loss of actual income to the claimant though the learned Tribunal has awarded compensation under the said head. He has submitted that the claimant was engaged in agricultural work and no any evidence is produced on record to prove the income and therefore, the learned Tribunal has not committed any error. So far as disability is concerned, before the learned Tribunal disability is agreed and admitted by the parties at 32%. Hence, he has requested to dismiss the present appeal. [5.0] Having heard the learned advocate appearing for the respective parties and going through the record, it appears that after perusing the evidence tendered on record, the learned Tribunal has held the driver of oOending jeep to be solely negligent C/FA/4053/2025 JUDGMENT DATED: 05/12/2025 for the accident. The learned Tribunal has considered the complaint (Exh.29), panchnama (Exh.30), charge-sheet 9led against the driver of oOending jeep (Exh.43), insurance policy of oOending jeep (Exh.42), driving license and RC book produced at Exhs.40 & 41, medical bills produced at Exhs.31 to 51 and disability certi9cate of the claimant produced at Exh.61. Further, the original opponent has not produced any evidence before the learned Tribunal in support of his case. As per the case of the claimant and aPdavit produced at Exh.25, claimant has stated that he was earning Rs.20,000/- per month from partnership business running in the name and style as A. Raja Courier and he was also serving as a Manager in P. Umesh Courier at Gandhidham and also doing the agriculture work at village Jhankana but he has not produced any material or evidence to establish the factum of his job as Manager at P. Umesh Courier. Further, the claimant has produced on record village abstracts 7/12 and 8-A at Exh.44 to show that he is having agricultural property. However, as the claimant was the co-owner of the said agricultural land but no other proof is produced to prove the income of the claimant. Considering the aforesaid fact and in absence of any material or evidence pertaining to other employment or partnership, the learned Tribunal has considered the income at Rs.6000/- but considering the aforesaid fact and minimum wages prevailing at the time of accident, to award just compensation, minimum monthly income of Rs.7500/- is required to be considered. As the claimant was aged about 37 years at the time of accident, 40% increase in monthly income was required to be added towards future prospects and therefore, monthly future loss of income would come to Rs.10,500/- [Rs.7500 + Rs.3000 (40% escalation)]. [5.1] Another argument of learned advocate for the original C/FA/4053/2025 JUDGMENT DATED: 05/12/2025 claimant is that 100% functional disability ought to have been considered by the learned Tribunal. It is needless to say that for the purpose of deciding functional disablement, the learned Tribunal has relied on the certi9cate issued by Dr. Chirag Prajapati though he has not treated the claimant. The alleged accident took place in the year 2014 and certi9cate is issued in the year 2018. The injury certi9cates are produced at Exhs.34 and 35 and Dr. Chirag Prajapati is examined at Exh.60. Perusing the said certi9cate, it appears that the claimant had sustained grade 3 left hand humerous fracture injury and claimant could not pick up the weight and his disability is assessed at 64% body as a whole and due to such injury, the claimant could not keep his left hand straight and there was reduction in the movement and strength and therefore, claimant could not do agricultural work. But in the cross-examination of the said Doctor, 30% disability body as a whole is admitted. Considering the aforesaid fact, learned Tribunal has considered 35% permanent disability body as a whole in view of the law laid down by the Hon’ble Supreme Court in the case of Rajkumar (Supra). While considering the functional disability the learned Tribunal ought not to have mechanically accepted whatever percentage of disability is given by the doctor. While ascertaining permanent disablement, eOect of such disablement on actual earning capacity is required to be considered. Always the disability mentioned in the disability certi9cate would directly not aOect the income and such disability could not be considered as permanent disability which causes loss to the income of the claimant. The learned Tribunal ought to have considered the fact as to whether due to such injury, claimant’s movement or income is restricted or prevented or he is restricted from discharging his previous activity and the functions and whether he could carry out some other or lesser activity and C/FA/4053/2025 JUDGMENT DATED: 05/12/2025 functions so as to continue his earning or can continue to earn his livelihood. In aforesaid background, relying on the decision of the Hon’ble Supreme Court in the case of T.J. Parameshwarappa @ Parameshwarappa @ J.T. Parameshwarappa @ Talalkena Gowdra Parameshwarappa vs. The Branch Manager, New India Assurance Co. Ltd. reported in (2022) 17 SCC 51, it is expected from the Tribunal that the nature of injury suOered and the manner how it will aOect the functional disability is to be stated and circumstances specially with reference to avocation of the claimant. Doctor or Medical OPcers given their opinion only on disablement but they not capabale to give any opinion qua functional disability. Herein, the learned Tribunal has considered that claimant is not engaged in permanent agriculture work as other co-owners are continuously engaged in the agriculture work. Even, the agriculture work is an additional profession. As per the case of the claimant, he was engaged in courier company working as a Manager and he is partner in the said 9rm. In absence of any evidence as regards the fact that he is unable to perform the work or clerical work as a Manager due to the injury or disability sustained by him due to which he has lost the income, the learned Tribunal has properly considered the disablement at 35% and mere asking or based on the argument, this Court is not inclined to assess functional disability of the claimant at 100%. Hence, argument canvassed by the learned advocate for the appellant is not accepted. [5.2] Further, the claimant at the time of accident was aged 37 years and hence, applying multiplier of 15, the claimant would be entitled to Rs.6,61,500/- [Rs.3675/- (Rs.10,500/- x 35%) x 12 x 15] towards future loss of income. So far as actual loss of income is concerned, the claimant had to undergo prolonged treatment and C/FA/4053/2025 JUDGMENT DATED: 05/12/2025 therefore, it would be just and proper to award compensation of Rs.31,500/- (Rs.10,500 x 3 months) towards actual loss of income. So far as compensation awarded by the learned Tribunal under the head of medical expenses is concerned, no interference is called for. So far as compensation under the head of pain, shock and suOering is concerned, considering the fact that claimant had to remained hospitalized for more than 10 days on diOerent occasions, an amount of Rs.35,000/- towards pain, shock and suCering would be just and proper. Further, under the head of special diet, attendant charges and transportation, amount is enhanced to Rs.15,000/-. Hence, the claimants are entitled to get the compensation as under: Heads Awarded by Tribunal Reassessed by this Court Future loss of income Rs.3,78,000/- Rs.6,61,500/- including additional amount of Rs.2,83,500/- Actual loss of income Rs.12,000/- Rs.31,500/- including additional amount of Rs.19,500/- Pain, shock and suOering Rs.10,000/- Rs.35,000/- including additional amount of Rs.25,000/- Medical Expenses Rs.3,20,000/- Rs.3,20,000/- Special diet, attendant charges and transportation Rs.10,000/- Rs.15,000/- including additional amount of Rs.5,000/- Total Compensation Rs.7,30,000/- Rs.10,63,000/- including additional amount of Rs.3,33,000/- [6.0] In wake of aforesaid conspectus, First Appeal is partly allowed and the impugned judgment and award is enhanced to C/FA/4053/2025 JUDGMENT DATED: 05/12/2025 Rs.10,63,000/- and accordingly, impugned judgment and award dated 07.07.2022 passed by the learned Motor Accident Claims Tribunal (Auxi.-6), at Mahesana in Motor Accident Claim Petition No.368/2014 is modi9ed to the aforesaid extent. [7.0] The Insurance Company is directed to deposit the enhanced amount i.e. Rs.3,33,000/- alongwith accrued interest at the rate of 9% per annum within a period of six weeks from the date of receipt of this order. [8.0] The Tribunal shall disburse the entire amount of compensation (lying in the FDR and/or with the Tribunal including the enhanced amount of compensation), with accrued interest thereon, if any, to the claimant, by account payee cheque / NEFT / RTGS, after proper veri9cation and after following due procedure. [9.0] 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. Sd/- (HASMUKH D. SUTHAR, J.) Ajay Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: AJAY CHANDRAN MENON(HC00939), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 08/12/2025 15:09:00