C/FA/3309/2023 JUDGMENT DATED: 30/01/2026 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 3309 of 2023 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR ========================================================== Approved for Reporting Yes No ========================================================== RAMESHBHAI NANABHAI VAGADIYA Versus BALVINDERSINH @ MANSINH HARIJAN & ORS. ========================================================== Appearance: MR VA MANSURI(2880) for the Appellant(s) No. 1 MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3 MR TANMAY B KARIA(6833) for the Defendant(s) No. 5 RULE UNSERVED for the Defendant(s) No. 1,2,4 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 30/01/2026 ORAL JUDGMENT 1. This appeal has been preferred by the appellant–claimant against the judgment and award dated 15.04.2022 passed by the Motor Accident Claims Tribunal (Main), Mahisagar at Lunawada in Motor Accident Claim Petition No.2818 of 2017. 2. Heard learned advocates for the respective parties. 3. The brief facts of the case are that on 13.11.2008, the claimant was travelling in S.T. Bus No. GJ-18-V-1028, driven by opponent No.4 at a moderate speed and with due care and caution on the correct side of the road. At about 08:00 hours, while the bus was passing near the outskirts of village Valan on National Highway-8, opponent No.1 drove Truck No. PB-10-BV- 4521 in a rash and negligent manner and at an excessive speed and violently dashed against the bus. As a result thereof, the p. 2 C/FA/3309/2023 JUDGMENT DATED: 30/01/2026 claimant sustained serious injuries on various parts of the body resulting in permanent disability and, therefore, filed the present claim petition seeking compensation of Rs.8,00,000/- against the opponents. 4. The learned advocate for the appellant submitted that the impugned judgment and award are contrary to the settled principles of law and the evidence on record and suffer from material irregularity resulting in miscarriage of justice. It was contended that the learned Tribunal erred in awarding only Rs.2,13,000/- against the claim of Rs.8,00,000/- and in assessing the income of the deceased at Rs.3,000/- per month, despite evidence showing that he was working as a supervisor with Sona Builders earning Rs.5,000/- per month. It was further urged that the learned Tribunal failed to award compensation towards future loss of income, future prospects and actual loss of income during the period of treatment. The learned advocate also submitted that inadequate amounts were awarded towards loss of marriage prospects, pain, shock and suffering, medical expenses, attendant charges, transportation and special diet, and that no interest was granted for the period between 19.07.2021 and 24.12.2021 and only 7.5% interest was awarded thereafter. It was therefore urged that the impugned award deserves to be modified and enhanced. 5. On the other hand, the learned advocate appearing for respondent No.3 strongly opposed the appeal and submitted that the learned Tribunal has rightly awarded just and proper compensation in view of the evidence available on record. It was p. 3 C/FA/3309/2023 JUDGMENT DATED: 30/01/2026 submitted that the claimant did not sustain any permanent disability and that the accident had occurred in the year 2008; in the absence of proof of disability, much less functional disability, the learned Tribunal committed no error in awarding the compensation. It was further submitted that the Tribunal had duly considered the actual loss of income suffered by the claimant during the period of treatment, as well as the amounts awarded towards pain, shock and suffering, loss of amenities and medical expenses, and that the claimant failed to establish any correlation between the accident and the alleged injuries. Therefore, it was urged that this Court may not interfere with the award passed by the learned Tribunal. It was further submitted that the impugned judgment and award was passed after considering the entire material on record and, hence, no interference is called for and the present appeal deserves to be dismissed. 6. Having heard the learned advocates for the respective parties and upon perusal of the record, it appears that the involvement of the vehicle and liability are not in dispute and that the appeal has been filed only on the ground of quantum; therefore, the appeal is required to be decided within a narrow compass. 7. The deposition of the claimant is at Exhibit 38, the deposition of the doctor is at Exhibit 61, the complaint is at Exhibit 41, the panchnama is at Exhibit 42, copies of the discharge summaries of K.P. Sanghvi Hospital are at Exhibits 46, 48 and 49, the disability certificate is at Exhibit 62 and the p. 4 C/FA/3309/2023 JUDGMENT DATED: 30/01/2026 medical bills are at Exhibits 65 to 68. 8. So far as the issue of quantum is concerned, according to the claimant, he was working as a Supervisor and was earning Rs.5,000/- per month by way of salary. However, no documentary evidence in support of such income has been produced. The alleged accident took place in the year 2008 and, considering the prevailing minimum wages, the learned Tribunal assessed his income at Rs.3,000/- per month in the absence of any cogent material. At the relevant time, the minimum wages were around Rs.2,800/- per month and, therefore, the Tribunal rightly assessed the income at Rs.3,000/- per month. 9. While dealing with the issue of functional disability, the learned Tribunal considered the case of the claimant that he had sustained a pelvic fracture in the alleged incident and thereafter suffered from erectile dysfunction and urinary leakage, due to which he remained under constant depression and was unable to work, thereby claiming permanent disability. It was noted that the claimant had undergone urethroplasty surgery at Surat in the year 2009, though the accident had occurred in 2008, and that after discharge he was again admitted for further treatment. From the medical papers, however, it appears that the subsequent admission was in connection with the earlier injury. 10. It further appears that though the claim petition was filed in the year 2008, the claimant tendered his evidence before the learned Tribunal only on 27.12.2021 and, till then, no disability certificate or expert medical opinion had been produced on p. 5 C/FA/3309/2023 JUDGMENT DATED: 30/01/2026 record. This fact was admitted by the claimant in his deposition, wherein he stated that he had not produced any medical certificate, treatment bills or disability certificate, nor had he examined any expert to prove disability. 11. Subsequently, in the year 2022, the claimant examined Dr. Nagesh Kamat at Exhibit 61 to prove disability. On perusal of his evidence, it emerges that the disability certificate was issued on 30.12.2021 in relation to the accident of the year 2008. The said doctor had not treated the claimant and, after a lapse of about thirteen years, issued the certificate on the basis of a clinical examination alone. The claimant had narrated a history of erectile dysfunction and, on the basis of such history, the doctor issued the certificate at Exhibit 62 assessing disability at 30%. He further opined that the claimant would face psychological problems and depression and that such condition could affect his prospects of marriage. 12. In cross-examination, however, the said witness admitted that erectile dysfunction may also occur due to high blood pressure, diabetes, epilepsy or other ailments and that he had not referred the claimant to any physician. He further admitted that leukemia or diabetes may have adverse effects and that no pathological tests were conducted. He also stated that he could not say whether the claimant had suffered any injury to the private parts due to some other cause, nor could he explain how such an injury could have occurred. He further admitted that in rare cases erectile dysfunction may be congenital or may arise due to pesticide exposure and that he had not mentioned the p. 6 C/FA/3309/2023 JUDGMENT DATED: 30/01/2026 size of the testicles in the certificate. He also admitted that no fracture was detected and that the deformity mentioned in the certificate was not correlated with functional disability. 13. In view of the aforesaid evidence, the learned Tribunal concluded that the claimant had failed to prove any functional disability and, therefore, did not award any amount towards future loss of income. It is needless to state that physical disability and functional disability are distinct concepts. 14. 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 from the judgment of the Hon’ble Supreme Court in case of Raj Kumar Vs. Ajay Kumar and Anr,reported in (2011) 1 SCC 343, in paragraphs 8, 10 and 11 reads as under: “8. Disability refers to any restriction or lack of ability toperform 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 p. 7 C/FA/3309/2023 JUDGMENT DATED: 30/01/2026 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. 9. XXXXXXXXXXXXXXXXXXX. 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 thepercentage 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 p. 8 C/FA/3309/2023 JUDGMENT DATED: 30/01/2026 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).” 15. Thus while assessing permanent disablement of the claimant the learned Tribunal ought to have considered on the actual 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 hat 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.” 16. 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, read as under :- “16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Page 8 of 11 C/FA/3309/2023 JUDGMENT DATED: 30/01/2026 Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as n a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. 17. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and, if so, the percentage. 18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the p. 10 C/FA/3309/2023 JUDGMENT DATED: 30/01/2026 permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.” 17. As there was no correlation established between the injury and any disability adversely affecting the income and earning capacity of the claimant, the learned Tribunal rightly held that the claimant was not entitled to any compensation towards future loss of income and accordingly awarded only actual loss of income for six months, amounting to Rs.18,000/-. 18. So far as the grievance regarding urinary leakage is concerned, upon perusal of the record it appears that the said problem had subsided after the second operation. However, considering the pain, shock and suffering in relation to erectile dysfunction, the Tribunal awarded a lump sum compensation of Rs.50,000/-. Having regard to the age of the claimant at the time of the accident, an amount of Rs.1,00,000/- is required to be awarded; accordingly, the claimant is entitled to Rs.1,00,000/- towards pain, shock and suffering. Further, considering the same injury, an amount of Rs.1,00,000/- is required to be awarded towards loss of marriage prospects; accordingly, the claimant is entitled to Rs.1,00,000/- under the said head. 19. For the reasons recorded above, the present appeal is partly p. 11 C/FA/3309/2023 JUDGMENT DATED: 30/01/2026 allowed. The impugned judgment and award passed by the learned Tribunal is modified and the claimant is entitle to get additional amount of Rs.1,50,000/- towards pain, shock, suffering and towards loss of marriage prospects. The original opponent No.1 to 3 jointly and severally shall deposit the additional amount of Rs.1,50,000/-along with interest at the rate of 7% per annum before the Tribunal within a period of four weeks from the date of receipt of this order. The record and proceedings shall be remitted to the concerned Tribunal forthwith. 20. The learned Tribunal is directed to recover or deduct the deficit court fees on enhanced amount and thereafter disburse the amount accordingly. 21. Award to be drawn accordingly. (HASMUKH D. SUTHAR,J) ALI