Gujarat High Court
Prabodhakumar Behera S\O Rama Chandra … vs Vijaysing S\O Jaswantsinh Jat on 27 March, 2026
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
Reserved On : 17/12/2025
Pronounced On : 27/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 799 of 2010
With
R/FIRST APPEAL NO. 247 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
==========================================================
Approved for Reporting Yes No
==========================================================
PRABODHAKUMAR BEHERA S\O RAMA CHANDRA BEHERA
Versus
VIJAYSING S\O JASWANTSINH JAT & ORS.
==========================================================
Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
==========================================================
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
CAV JUDGMENT
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
The First Appeal No. 799 of 2010 is preferred by the original
claimant under Section 173 of the Motor Vehicles Act, 1988
Page 1 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
(hereinafter to be referred as ‘the Act of 1988’) whereas First Appeal
No. 247 of 2010 has been preferred by the New India Assurance
Company Limited-original opponent No. 3 (hereinafter to be referred
as “Insurance Company”), being aggrieved and dissatisfied with the
judgment and award dated 19.02.2009 (hereinafter to be referred as
“the impugned judgment and award”) passed by the learned Motor
Accident Claims Tribunal (Auxi.), Ahmedabad, in M.A.C.P. No. 1284 of
1997. By the said impugned judgment and award, the Tribunal has
partly allowed the claim petition preferred by the present appellant of
First Appeal No. 799 of 2010 under Section 166 of the Act of 1988. The
original claimant is thus held entitled to recover a sum of Rs.
8,69,941/- from the original opponents Nos. 1 to 3, jointly and
severally, with proportionate costs and interest at the rate of 8% from
the date of petition till its actual realization.
[2.] The original claimant is thus mainly aggrieved by the
amount of compensation being confined to Rs. 17,39,882/- as against
the claim of Rs. 15,00,000/-. In the process, the claimant has also
disputed the issue of contributory negligence to the extent of 50%
being attributed to the claimant as arbitrary and against the basic
principles of law, and are therefore, seeking enhancement of the
amount of compensation on the aforesaid ground as well as are also
raising the issue of permanent partial disability being not rightly
Page 2 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
considered while awarding the loss of future prospects. The other
heads of compensation have also been disputed. On the other hand,
the appellant-Insurance Company in the cognate appeal i.e. First
Appeal No. 247 of 2010, has raised the issue of liability as well as the
quantum of compensation being determined on the higher side.
[2.1] Noticing the fact that both the appeals challenge the
same impugned judgment and award, were directed to be notified
together and heard finally, and are decided by this common judgment.
[3.] This Court, vide order dated 15.03.2011, while hearing the
application for stay preferred in First Appeal No. 247 of 2010, on the
deposit of the entire award amount, had permitted the original
claimant to seek withdrawal of 20% of such deposited award amount,
and the remaining 80% of the amount deposited before the Tribunal,
was directed to be invested in a fixed deposit scheme in any
Nationalized Bank initially for a period of three years, which was
further directed to be renewed from time to time till disposal of the
captioned appeals, with further liberty to seek periodical withdrawal
or periodical interest by the claimant. This Court, with such conditions,
had confirmed ad-interim relief granted earlier, pending the appeal.
[4.] With consent of the learned advocates appearing for the
Page 3 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
respective parties, the matters were taken up for final hearing.
[5.] Learned advocate Mr. Mohsin M. Hakim has appeared on
behalf of the original claimant. Mr. Palak Thakkar, learned advocate,
has entered appearance on behalf of respondent No. 3-Insurance
Company, and has also appeared in the cognate appeal preferred by
the appellant-Insurance Company therein. Though, the rule of
admission of the appeals qua respondents Nos. 1 and 2 is reported to
have remained unserved; however, with the able assistance of the
learned advocates on record, the matters have peremptorily heard
finally.
[6.] The learned advocate for the original claimant has
vehemently assailed the impugned judgment and award passed by the
Tribunal, mainly on the issue of negligence and the quantum of
compensation. It is submitted that the Tribunal has mechanically
apportioned the negligence merely on the ground that the accident
had occurred because of a head-on collision between two vehicles
involved, without further appreciating the documentary and oral
evidence adduced by the claimant. The attention of this Court was
invited to the panchnama of the place of accident, which is marked
and admitted as evidence at Exh.47. Reference was also made to the
sketch of a map prepared by the investigating officer appended with
Page 4 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
such panchnama drawn during the course of investigation in reference
to the FIR registered against the driver of the offending truck.
[6.1] According to the learned advocate, the panchnama clearly
demonstrated the fact that the offending truck had encroached upon
the wrong side of the road and had violently dashed with the car of
the claimant. Upon close appreciation of the panchnama, the position
of the respective vehicles is evident. The post impact position clearly
demonstrates the sole negligence of the driver of the truck. The
learned advocate has further disputed the findings of head-on
collision highlighting the damages sustained by the respective
vehicles. He has further submitted that pursuant to the investigation
carried out, the charge-sheet was filed against the driver of the
offending truck; the copy of which has been produced on record at
Exh.48.
[6.2] Learned advocate has further invited our attention to the
fact that the driver and owner of the offending truck had chosen not
to contest the case of the claimant, despite service of summons
before the Tribunal. In such circumstances, the Insurance Company
had also moved an application under Section 170 of the Act of 1988,
seeking permission of the Tribunal to raise all the contentions
available in law to object to the claim petition. With such undisputed
Page 5 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
facts on record, the Tribunal ought to have drawn an adverse
inference to hold the driver of the offending truck solely negligent
towards the occurrence of the accident, more particularly, when the
panchnama of the place of accident demonstrates his negligence.
Learned advocate has further submitted that there is no straitjacket
formula to mechanically draw an inference of a head to head collision,
to be a case of contributory negligence. Reliance was placed on the
judgment of the Division Bench of this Court in the case of United
India Insurance Company Ltd. vs. Jentibhai Khimjibhai Parmar
reported in 2016 (0) AIJEL HC 236525. Our attention was invited to
the facts of the case, it was held that in absence of evidence
establishing negligence on the part of the claimant, apportionment of
negligence ought not to be done; on the contrary, an adverse
inference was required to be drawn against the driver of the truck.
[6.3] The learned advocate has further referred to the cross-
examination of the claimant, which is recorded at Exh. 32. It is
submitted that the Tribunal misinterpreted the cross-examination to
arrive at a conclusion of contributory negligence merely on the fact
that the claimant had admitted that he did not see the truck.
According to the learned advocate, in absence of any evidence with
regard to rash and negligent driving or violation of traffic rules by the
Page 6 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
claimant, such admission of the claimant cannot be a sole criteria to
draw an adverse inference of having equally contributed to the
occurrence of the accident. Our attention was invited to the material
time when the accident had taken place, to point out that there was
heavy traffic on the National Highway No.1 where the accident had
occurred, and it was the specific case of the claimant that he was
driving his Premier Padmini Fiat Car following traffic rules at slow
speed, and the truck had, in fact, abruptly encroached on the wrong
side of the road and had heavily dashed with the car, which was
otherwise on the driver side. He therefore, submitted that the
findings and reasons assigned by the Tribunal on the issue of
negligence, are perverse to the evidence on record and are merely
based on assumption and presumption, and therefore, the conclusion
drawn by the Tribunal, attributing 50% contributory negligence to the
claimant, is required to be quashed and set aside.
[6.4] On the issue of quantum of compensation, the learned
advocate has drawn our attention to the findings and reasons
assigned by the Tribunal, more particularly, the permanent disability
of the claimant being restricted to 30% of the body as a whole,
despite medical evidence in the nature of disability certificate
produced on record at Exh.37, wherein the medical expert has clearly
Page 7 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
opined 60% permanent partial disability being sustained by the
claimant. Referring to the relevant medical case papers, the learned
advocate has submitted that the claimant had sustained multiple
fractures including fracture of the right femur and lower limb, and
had undergone almost 11 surgeries including bone grafting, which has
substantially affected the mobility of the claimant, resulting into
prolonged immobilization. It is further submitted that the finding
arrived at by the Tribunal while considering the loss of income, is
perverse, inasmuch as, the claimant has proved that on account of
multiple injuries sustained, he had remained absent at his workplace
for almost 240 days, as against his future leave which he would have
earned during his employment. Referring to the evidence of the
claimant, it was submitted that there is no rebuttal of the aforesaid
part of the evidence at the instance of the Insurance Company. The
Tribunal failed to appreciate the fact that the claimant had remained
on medical leave for about 235-240 days, thereby exhausting his
earned and future leave entitlement. In such circumstances, the
Tribunal ought to have awarded actual loss of income to the tune of
Rs. 5,87,015/- instead of Rs. 2,61,288/-, which is contrary to the
documentary evidence on record. It was therefore submitted that the
Tribunal committed a serious error in not awarding a sum of Rs.
5,87,015/- under the head of actual loss of income.
Page 8 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined [6.5] The learned advocate has also assailed the quantum of
compensation under the head of pain, shock and suffering and loss of
amenities being determined on the lower side. According to the
learned advocate, considering the multiple injuries sustained and the
prolonged treatment, the Tribunal ought to have awarded a sum of
Rs. 3 Lakhs towards pain, shock and suffering. It was further submitted
that the Tribunal failed to consider awarding a sum of Rs. 2,40,000/-
towards the expenses incurred for the attendant, more particularly,
looking at the injuries and prolonged treatment. Enhancement of
compensation was also sought by seeking an amount of Rs. 2 Lakhs
towards the head of special diet and transportation expenses. In order
to substantiate the aforesaid claims, the learned advocate has placed
reliance upon the decision of the Hon’ble Supreme Court in the case of
Jakir Hussein vs Sabir & Ors reported in 2015 (7) SCC 252. Referring
to the observations made in paragraphs 11, 15, and 18, wherein the
Court held that while awarding compensation under the heads of pain,
shock and suffering and loss of amenities, the Tribunal was required
to consider the nature and gravity of injuries, the prolonged period of
hospitalization, the multiple surgeries undergone, and the permanent
disability suffered. It was submitted that the claimant was entitled to
enhancement of the amount of compensation.
Page 9 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined [6.6] Reliance was also placed on the relevant observations of
the aforesaid decision wherein, noticing the period of hospitalization
of 235 days and multiple orthopedic surgeries undergone and
permanent partial disability suffered, the Court noticed that the
mobility and the quality of life has been compromised forever. In such
circumstances, the amount of Rs. 50,000/- awarded by the Tribunal
under the head of pain and trauma was found grossly inadequate, and
therefore, the Supreme Court enhanced the aforesaid amount to the
tune of Rs.3 Lakhs. Reliance was also placed on the judgment of the
Supreme Court in the case of Dinesh Singh vs. Bajaj Allianz General
Insurance Company Limited reported in 2014 (0) AIJEL-SC 55244
wherein, the Court held that even if the injured claimant continues in
service or employment, that by itself does not disentitle him from
claiming compensation towards loss of future earning capacity, if the
evidence on record establishes that the permanent disability has
adversely affected his efficiency, functional capacity or future
prospects.
[6.7] Applying the aforesaid principles to the facts of the case
on hand, it was submitted that merely because the claimant has
continued in service, would not negate his loss of future prospects. On
the contrary, on close appreciation of the examination-in-chief of the
Page 10 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
claimant at Exh.32, it has transpired that post-accident, the claimant
was assigned administrative duties in the country of Nigeria- Lagos,
and the promotion granted was not effective in real terms. Referring
to the aforesaid evidence of the claimant, the learned advocate has
submitted that the Tribunal lost sight of loss of qualitative life he was
deprived of on account of permanent disability suffered by him.
[6.8] It was therefore prayed to allow the appeal on both the
issue of negligence as well as the quantum of compensation, and to
dismiss the cross-appeal preferred by the appellant Insurance
Company.
[7.] Per contra, learned advocate appearing for the Insurance
Company, while opposing the appeal preferred by the original
claimant, has raised the grounds raised in the appeal preferred by the
Insurance Company. Learned advocate for the respondent-Insurance
Company has disputed the issue of negligence by contending that the
wife of the claimant, who was the original complainant, though being
an eyewitness, has not chosen to enter the witness box. In absence of
her evidence, no error can be found with the approach of the Tribunal
in answering the issue of negligence. Indisputably, the accident was a
head-on collision, and therefore, in absence of any cogent and reliable
evidence being brought on record suggesting the sole negligence of
Page 11 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
the offending truck, the Tribunal has rightly considered the
contributory negligence of both the drivers of the vehicles involved to
the extent of 50%- 50%. In order to substantiate the aforesaid
contentions, the learned advocate has drawn our attention to the
decision of the Hon’ble Supreme Court in the case of Bijoy Kumar
Dugar vs. Bidyadhar Dutta reported in 2006 ACJ 365 (SC), wherein
the Supreme Court has held that in cases of head-on collision, both
the drivers of the vehicles involved can be held equally responsible.
[7.1] Learned advocate has further argued on the quantum of
compensation being determined on the higher side by submitting that
the claimant has received reimbursement of medical expenses under
Mediclaim policy, and therefore, the amount of medical expenses
awarded by the Tribunal would result in unjust enrichment by the
claimant. He has therefore, prayed to deduct the amount of Rs.
5,29,787/- being realized by the claimant under the mediclaim policy
from the amount of compensation awarded by the Tribunal. In support
of his aforesaid submissions, the learned advocate has placed heavy
reliance upon the judgment delivered by the learned Single Judge in
the case of Narbahadur Nandkishor Prasad vs. Jaheralia A. Shaikh &
Ors. rendered in First Appeal No. 2016 of 2012, as well as of the
Supreme Court in the case of New India Assurance Company Limited
Page 12 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
vs. Sukanta Kumar Bagheria reported in 2015 (0) AIJEL SC 56221.
[7.2] Learned advocate have also disputed the amount of
compensation awarded under the head of future loss of income.
Referring to the examination-in-chief of the claimant at Exh.32, it was
pointed out that the claimant has continued in service after the
accident, and in fact, he has been promoted and posted in the foreign
country at Nigeria-Lagos, and therefore, there was no actual loss of
income or future loss of income suffered by the claimant. Although,
according to the learned advocate, with such peculiar facts on record,
the Tribunal was not justified in adopting the multiplier on the higher
side, and in fact, the multiplier of 5 ought to have been adopted by
the Tribunal. Reliance was placed on the judgment of the division
bench of this court in the case of Rameshbhai Ramnikbhai Vyas
Ismail Ibrahim And Suleman Ibrahim & Others rendered in First
Appeal No. 705 of 2012, wherein, considering the similar
circumstances, the Division Bench of this Court has upheld the
Tribunal’s decision of adopting the multiplier of 5.
[7.3] The learned advocate has therefore, prayed for dismissal
of the First Appeal preferred by the original claimant and to modify
the amount of compensation appropriately by allowing the appeal
Page 13 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
preferred by the appellant Insurance Company.
[8.] In rejoinder, the learned advocate for the claimant has
submitted that the issue as to whether medical expenses reimbursed
under a mediclaim or insurance policy are to be deducted while
awarding compensation under the Motor Vehicles Act is no longer res
integra, in view of the decision of the Division Bench of this Court in
the case of New India Assurance Co. Ltd. vs. Nipeshbhai
Bhagwanjibhai Patel reported in 2022 (2) GLR 962. Our attention was
invited to the relevant observations as recorded in paragraphs 27 to
29. Learned advocate has submitted that, responding to the aforesaid
issue, the Court categorically held that medical expenses reimbursed
under a Mediclaim or insurance policy taken by the claimant are the
benefits accrued pursuant to the payment of premium, which
constitutes a separate class of collateral benefits. The Court therefore
held that denial or deduction of such medical expenses while
determining the claim petition under the Motor Vehicles Act would
amount to gross error of law. Learned advocate has disputed the
judgment relied upon by the learned advocate for the Insurance
Company in the case of Bijoy Kumar (supra) as being misplaced in the
facts of the case on hand. Referring to the aforesaid decision, learned
advocate for the claimant has submitted that the said judgment itself
Page 14 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
clarifies that equal apportionment applies only where evidence is
evenly balanced. In the present case, the documentary evidence
overwhelmingly points towards the sole negligence of the truck
driver. Underlying the heavy traffic conditions, learned advocate
submitted that the Tribunal failed to appreciate that on a national
highway require a higher degree of care from a heavy vehicle like a
truck. In such circumstances, the offending truck owes a great duty of
care, which has been clearly violated in the facts of the case, as
evident from the documentary evidence on record. Learned advocate
has vehemently objected to the appeal filed by the Insurance
Company.
[9.] We have heard the learned advocates appearing for the
respective parties and have closely perused the findings and reasons
assigned by the Tribunal on the issue of negligence and the quantum
of compensation. We have also re-appreciated the evidence on record,
in this regard, more particularly, the panchnama of the place of
accident and the medical case papers related to the treatment
extended to the claimant. Considering the submissions made by
learned advocates appearing for the respective parties, the question,
which falls for consideration of this Court in both the appeals is, as to
whether the Tribunal committed any error in deciding the issue of
Page 15 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
negligence and quantum of compensation, in the facts of the case and
the evidence on record while deciding the claim petition under Section
166 of the Act of 1988?
[10.] At the outset, we would like to take note of the manner in
which the accident has taken place. Indisputably, the accident
occurred on 02.01.1997 at about 4:00 p.m. near Hanuman Temple,
Dudu District on the Ajmer Jaipur Highway. On the fateful day, the
claimant was travelling with his family members while driving his car
which was Premier Padmini Fiat Car bearing registration no.GJ-1-
6530-. It is the case of the claimant that he was driving the car on the
left side of the road at a moderate speed, strictly adhering to the
traffic rules. The truck bearing registration no.RJ-05-G-0656, which
was owned by respondent no.2 herein was driven by respondent no.1
from the opposite direction. It is contended that the truck was driven
at a high speed and in rash and negligent manner and dashed against
the car of the claimant, resulting in head on collision. Due to collision
between the two vehicles, the claimant had sustained serious multiple
fracture injuries particularly on the right femur and lower right leg
along with other bodily injuries.
[11.] The police complaint was lodged at Dodo Police Station
by Sarojini Behera, wife of the claimant, which was registered on same
Page 16 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
day against the driver of the offending truck for the offence
punishable under Sections 279 and 337 of the I.P.C. The investigation
had culminated into filing of the charge-sheet against the driver of the
offending truck for the offence alleged. The relevant case papers
including the panchnama, FIR, counter of charge-sheet and mechanical
inspection reports were produced before the Tribunal.
ISSUE OF NEGLIGENCE:
[12.] Having noted the background of the case, at the outset, it
would be appropriate to look into the issue of negligence. The
claimant has disputed the contributory negligence of 50% and the
consequential deduction of the amount of compensation. It is
submitted merely because the accident was a head on collision, the
Tribunal ought not to have considered contributory negligence by
apportioning it equally between the two vehicles involved in the
accident, in absence of cogent and reliable evidence establishing
negligence of the claimant as well. As against that the advocate for
the Insurance Company has argued that in absence of the original
complainant of the criminal complaint lodged, against the driver of
the truck, being examined as witness the Insurance Company having
no opportunity to cross-examine the said eye witness, has rightly
apportioned the negligence equally amongst the drivers of the
Page 17 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATIONC/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
respective vehicles.
[13.] We have carefully considered the aforesaid arguments of
learned advocates for the respective parties, in light of the
panchnama, the sketch of the accident produced on record, as against
the evidence of the claimant who himself is an injured eye witness to
the accident. Admittedly, for the reasons best known, the driver of the
truck has not entered appearance nor has he been examined as
witness by the Insurance Company. In such circumstances, considering
the principles laid down by the Supreme Court in the case of Bijoy
Kumar Dugar (supra), even where the vehicles involved in the
accident had an head on collision itself, cannot be the only criteria to
hold the drivers of the respective vehicles equally negligent towards
the occurrence of the accident. The said judgment on the contrary
further clarifies that equal apportionment applies only where
evidence is equally balanced. In the present case, the documentary
evidence, more particularly, the panchnama and the sketch prepared
by the Investigating Agency clearly demonstrates that the truck had
encroached on the wrong side of the road and had hit the rear right
side of the car. The impact was violent which had led to heavy damage
to the car which in turn had resultantly impacted on the right lower
body of the claimant, who was in the driving seat of the car. The
Page 18 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATIONC/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
panchnama and the sketch does not suggest brake marks and in fact,
the truck is found to be positioned at quite a distance from the spot of
the occurrence of accident. The aforesaid fact suggests that the truck
was driven at high speed. Thus, we have no hesitation in holding that
there is overwhelming evidence on record, which points towards the
sole negligence of the driver of the truck. Considering heavy traffic
conditions on national highway on the date of accident, the driver of
the truck in charge of the heavy vehicle was in fact expected to have a
higher degree of care. The driver of the offending truck being in
control of a commercial and heavy vehicle owed a greater duty of care
while driving the vehicle on a national highway. Considering the
manner in which the accident was reported and investigation
culminating into a chargesheet against the driver of the truck clearly
suggests that the driver of the truck was negligent. With such
evidence on record, we are of the view that the Tribunal committed
serious error in finding the claimant to have contributed equally
towards occurrence of accident, in the absence of any evidence in this
regard being noted by the Tribunal. Thus, aforesaid finding on the
issue of negligence of the Tribunal deserves to be quashed and is
hereby quashed by holding the original claimant entitled to
compensation towards 100% negligence of the offending truck driver.
Page 19 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined QUANTUM OF COMPENSATION: [14.] Having examined issue of negligence, addressing the
quantum of compensation requires a structured evidence based
analysis to award just and reasonable compensation. Before
determining pecuniary and non-pecuniary damages, the core issue
centers on establishing impact of injuries. It would be appropriate to
consider medical evidence on record. At the outset, it is required to be
noted that the claimant was immediately shifted to nearby primary
health centre and thereafter for further treatment was shifted to
S.M.S. Medical College & Hospital situated at Jaipur, wherein he
underwent emergency surgery. The claimant was discharged from the
hospital on 07.01.1997 and was referred to orthopedic surgeon at
Government Hospital and B.J. Medical College, Ahmedabad for further
treatment Subsequently, the claimant was brought to the
Ahmedabad, wherein he again underwent treatment. The claimant
had opted to undergo surgery at a private nursing home under the
observation of Dr. Hiren P. Maniyar. Later on, he was admitted to
Navnit Memorial Hospital on 11.01.1997 and wad discharged on
15.01.1997. He was operated for fracture of upper end and a
compound lower end right femur and was advised rest for six months.
(02.03.1997). The claimant had also undergone follow-up treatment
under observation of Dr. Bhavin R. Zumkhawala. The Medical Officer
Page 20 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
had physically examined him and had also investigated healing of the
injuries sustained, by referring to X-Ray report of fracture neck femur
and lower shaft of right femur. On close inspection of the reports, the
Medical Officer had noted that bone graft glitch seen at the lower end
small lucency is seen in the interior aspect of femur. Later on, the
osteoporoic changes were also noticed. Noticing the aforesaid
complications, Dr. Hiren P. Maniyar, who had in fact performed
multiple surgeries and had also treated the claimant after post
surgery. On clinical examination noted that though the bone
segmental defect was filled with corticocancellous chains of bone,
which was taken from both iliac bones and several corticocancellous
chips, it had resulted in shortening of above 1/2 inch. As a result, the
claimant had sustained stiffness of knee after the first operation. The
second operation was performed in May-1997 for removal of implants
and sequestrated bone grafts as he had persistently discharged sinus
on anterolateral aspect of knee sinus on anterolateral aspect of knee,
which had resulted into cavity anteriorly. The rest of the lower end
was found to have urifine volve. When the said doctor had examined
the claimant on 17.07.1997, the small discharge of sinus had still
continued and he complained of stiffness of knee. The medical officer
had noted shortening of about one and half right lower limb.
[15.] It further transpires on record that the claimant had
Page 21 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
undertaken further treatment at orthopedic hospital based at
Jamnagar under the observation of Dr. V.M. Shah, M.S. Ortho. The
claimant was admitted in the hospital on 19.07.1997 for the purpose
of exploration of excision of devitalized bone and soft tissues. The
bone grafting was performed and a 95 degree angled blade plate
treatment was undergone on 21.07.1997. The claimant was thereafter
discharged on 15.08.1997 with an advice of followup treatment of
daily dressing and to continue visit after eight weeks. Despite
aforesaid operation being performed, the said medical officer had
noted that he had still continued with infection of non-union fracture
of the lower femur with stiffness knee and shortening and was
therefore advised for medicines with rest for six months. On
23.12.1997, upon close examination of the claimant, the said medical
officer found him fit to resume his duties from 29.12.1997. The
claimant was again admitted in the orthopedic hospital of Dr. V.M.
Shah on 09.04.1998 for removal of implants, D.H.S. and blade plate.
Simultaneously, lengthening apparatus were also fixed. After the
performance of operation, the claimant was discharged on 12.05.1998
with advice of rest for six months and to visit after 50 days. On
25.12.1998, Dr. V.M. Shah had removed the fixation and found the
claimant fit to resume the duties from 30.12.1998. During the
aforesaid period, the gradual healing of non-union of the fracture of
Page 22 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
lower femur was examined through X-ray reports, which confirm that
the external fixation device was in position and compared to earlier
reports there was satisfactory new periosteal bone formation at the
site of the fracture and no erosion of bone was found. Since the
claimant was complaining of difficulty in walking and was found to be
limping coupled with weakness of hip abductors and knee moment. He
was advised physio therapy with medicines. Noticing the complaint of
stiffness of right and open fracture of femur bone, he was once again
admitted to the hospital under the observation of Dr.V.M. Shah on
15.05.1999, he was operated for separation of patella and
quadricepsplasty and arthrolysis was performed on 17.05.1999. He
was thereafter discharged on 14.07.1999 with advice to revisit after
six weeks and to continue with physiotherapy and relevant medicines.
Upon re-examination of the claimant on 14.07.1999 and 04.08.1999,
the claimant was found to be fit to resume his duties from
26.07.1999. Despite prolonged treatment being undergone, though
the fracture in the lower end of femur had healed; however,
osteoporosis was noticed around the knee, there was also lateral
bowing of the lower end of femur.
[16.] Apart from the aforesaid medical case papers, the
claimant has also produced on record the prescriptions of medicines
Page 23 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
and the expenses incurred for medical treatment. The bills indicating
the expenses incurred for medical treatment vide list of documents
are produced on record at Exh.31. The aforesaid documents have
been collectively marked and exhibited as Exh.-40. On appreciation of
the aforesaid documents, it has transpired on record that right from
February-1997 till October-1999, the claimant has incurred medical
expenses in total approximately Rs. 32,885/-, which also corroborates
the case of the claimant having undergone 11 multiple surgeries and
prolonged treatment for more than two years.
[17.] Having appreciated the aforesaid documentary evidence
on record, if the findings and reasons assigned by the Tribunal on the
issue of quantum of compensation are appreciated, the Tribunal has
considered the pay-slip of January 1997 of the claimant produced on
record suggesting the monthly income of the claimant as Rs. 13,752/-.
The claimant has proved his case of drawing a salary of Rs. 13,752/- as
on the date of accident. The aforesaid factum has not been disputed
by the Insurance Company in the present appeal. The component for
the assessment of loss of future earning capacity, which has been
mainly disputed by the claimant, is the percentage of disability of 30%
being considered instead of 60%.
[18.] We have carefully considered the arguments of respective
Page 24 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
advocates and on appreciation of the medical case papers, in our view,
the claimant has established on record that he had sustained multiple
fractures including fracture of the right femur and lower limb as well
as undergone has 11 surgeries, bone grafting, and has also faced the
trauma of prolonged immobilization. The disability certificate issued
by Dr. Maniar at Exh.42, though has been produced on record opining
60% of permanent disability being sustained. Dr. S. G. Patel has been
examined by the appellant in this regard, who in his cross-examination
has fairly accepted the suggestion that permanent partial disability
would be half, to be considered for the body as a whole; and the
Tribunal has, therefore, discarded the said disability certificate by
holding that the claimant has sustained 30% permanent partial
disability of the body as a whole for the purpose of awarding
compensation. In our view, the aforesaid approach of the Tribunal is
de hors the well-settled principles of law laid down by the Supreme
Court in the case of Raj Kumar vs Ajay Kumar & Anr reported in
(2011) 1 SCC 343, which was later on reproduced in the case of
Sidram vs The Divisional Manager United India & Ors. reported in
2023 (3) SCC 439. The Court has held that the effect of permanent
disability of the injured has to be assessed in order to quantify the loss
of earnings due to disability. The Court has in detail explained the
steps to be followed by the Tribunal to ascertain the effect of
Page 25 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
permanent disability on the actual earning capacity of the injured.
Relevant paras of the aforesaid judgment are as under:
“40. In the case of Raj Kumar (supra) this Court has explained in the
following terms the general principles relating to compensation in injury
cases and assessment of future loss of earnings due to permanent
disability:
“General principles relating to compensation in injury cases
5. The provision of the Motor Vehicles Act, 1988 (“the Act”, for short)
makes it clear that the award must be just, which means that
compensation should, to the extent possible, fully and adequately restore
the claimant to the position prior to the accident. The object of awarding
damages is to make good the loss suffered as a result of wrong done as
far as money can do so, in a fair, reasonable and equitable manner. The
court or the Tribunal shall have to assess the damages objectively and
exclude from consideration any speculation or fancy, though some
conjecture with reference to the nature of disability and its consequences,
is inevitable. A person is not only to be compensated for the physical
injury, but also for the loss which he suffered as a result of such injury.
This means that he is to be compensated for his inability to lead a full life,
his inability to enjoy those normal amenities which he would have enjoyed
but for the injuries, and his inability to earn as much as he used to earn or
could have earned. [See C.K. Subramania Iyer v. T. Kunhikuttan Nair
[(1969) 3 SCC 64 : AIR 1970 SC 376] , R.D. Hattangadi v. Pest Control (India)
(P) Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri) 250] and Baker v. Willoughby
[1970 AC 467 : (1970) 2 WLR 50 :
6. The heads under which compensation is awarded in personal injury
cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made
had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
Page 26 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the
injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under
heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is
specific medical evidence corroborating the evidence of the claimant, that
compensation will be granted under any of the heads (ii)(b), (iii), (v) and
(vi) relating to loss of future earnings on account of permanent disability,
future medical expenses, loss of amenities (and/or loss of prospects of
marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a)
do not pose much difficulty as they involve reimbursement of actuals and
are easily ascertainable from the evidence. Award under the head of
future medical expenses–Item (iii)–depends upon specific medical
evidence regarding need for further treatment and cost thereof.
Assessment of non-pecuniary damages–Items (iv),(v) and (vi)–involves
determination of lump sum amounts with reference to circumstances such
as age, nature of injury/deprivation/disability suffered by the claimant and
the effect thereof on the future life of the claimant. Decisions of this
Court and the High Courts contain necessary guidelines for award under
these heads, if necessary. What usually poses some difficulty is the
assessment of the loss of future earnings on account of permanent
disability–Item (ii)(a). We are concerned with that assessment in this
case.
Assessment of future loss of earnings due to permanent disability
8. Disability refers to any restriction or lack of ability to perform an
activity in the manner considered normal for a human being. Permanent
disability refers to the residuary incapacity or loss of use of some part of
the body, found existing at the end of the period of treatment and
recuperation, after achieving the maximum bodily improvement or
recovery which is likely to remain for the remainder life of the injured.
Temporary disability refers to the incapacity or loss of use of some part of
the body on account of the injury, which will cease to exist at the end of
the period of treatment and recuperation. Permanent disability can be
either partial or total. Partial permanent disability refers to a person’s
inability to perform all the duties and bodily functions that he could
Page 27 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
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 accident 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 (“the Disabilities
Act”, for short). But if any of the disabilities enumerated in Section 2(i) of
the Disabilities Act are the result of injuries sustained in a motor accident,
they can be permanent disabilities for the purpose of claiming
compensation.
9. The percentage of permanent disability is expressed by the doctors
with reference to the whole body, or more often than not, with reference
to a particular limb. When a disability certificate states that the injured
has suffered permanent disability to an extent of 45% of the left lower
limb, it is not the same as 45% permanent disability with reference to the
whole body. The extent of disability of a limb (or part of the body)
expressed in terms of a percentage of the total functions of that limb,
obviously cannot be assumed to be the extent of disability of the whole
body. If there is 60% permanent disability of the right hand and 80%
permanent disability of left leg, it does not mean that the extent of
permanent disability with reference to the whole body is 140% (that is
80% plus 60%). If different parts of the body have suffered different
percentages of disabilities, the sum total thereof expressed in terms of
the permanent disability with reference to the whole body cannot
obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of
injuries, the assessment of compensation under the head of loss of future
earnings would depend upon the effect and impact of such permanent
disability on his earning capacity. The Tribunal should not mechanically
apply the percentage of permanent disability as the percentage of
economic loss or loss of earning capacity. In most of the cases, the
percentage of economic loss, that is, the 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
Page 28 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the
permanent 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 terms 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
the 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 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and
Yadava Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC 341 :
(2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567] )
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:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is 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.
13. Ascertainment of the effect of the permanent disability on the actual
earning capacity involves three steps. The Tribunal has to first 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
(this is also relevant for awarding compensation under the head of loss of
Page 29 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
amenities of life). The second step is to ascertain his avocation, profession
and nature of work before the accident, as also his age. The third step is to
find out whether (i) the claimant is totally disabled from earning any kind
of livelihood, or (ii) whether in spite of the permanent disability, the
claimant could still effectively carry on the activities and functions, which
he was earlier carrying on, or (iii) whether he was prevented or restricted
from discharging his previous activities and functions, but could carry on
some other or lesser scale of activities and functions so that he continues
to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated, the
permanent physical or functional disablement may be assessed around
60%. If the claimant was a driver or a carpenter, the actual loss of earning
capacity may virtually be hundred per cent, if he is neither able to drive or
do carpentry. On the other hand, if the claimant was a clerk in government
service, the loss of his left hand may not result in loss of employment and
he may still be continued as a clerk as he could perform his clerical
functions; and in that event the loss of earning capacity will not be 100%
as in the case of a driver or carpenter, nor 60% which is the actual physical
disability, but far less. In fact, there may not be any need to award any
compensation under the head of “loss of future earnings”, if the claimant
continues in government service, though he may be awarded
compensation under the head of loss of amenities as a consequence of
losing his hand. Sometimes the injured claimant may be continued in
service, but may not be found suitable for discharging the duties attached
to the post or job which he was earlier holding, on account of his disability,
and may therefore be shifted to some other suitable but lesser post with
lesser emoluments, in which case there should be a limited award under
the head of loss of future earning capacity, taking note of the reduced
earning capacity.
15. It may be noted that when compensation is awarded by treating the
loss of future earning capacity as 100% (or even anything more than 50%),
the need to award compensation separately under the head of loss of
amenities or loss of expectation of life may disappear and as a result, only
a token or nominal amount may have to be awarded under the head of
loss of amenities or loss of expectation of life, as otherwise there may be
a duplication in the award of compensation. Be that as it may.
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. Sections 168 and 169 of the Act make it evident
that the Tribunal does not function as a neutral umpire as in a civil suit,
but as an active explorer and seeker of truth who is required to “hold an
Page 30 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
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, Manual for Evaluation of
Permanent Physical Impairment for Orthopaedic Surgeons, prepared by
American Academy of Orthopaedic Surgeons or its Indian equivalent or
other authorised 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 give 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 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 the
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.
Page 31 of 41 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026 NEUTRAL CITATION C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026 undefined
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result
in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole
body of a person, cannot be assumed to be the percentage of loss of
earning capacity. To put it differently, the percentage of loss of earning
capacity is not the same as the percentage of permanent disability (except
in a few cases, where the Tribunal on the basis of evidence, concludes that
the percentage of loss of earning capacity is the same as the percentage
of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him
subsequently to assess the extent of his permanent disability can give
evidence only in regard to the extent of permanent disability. The loss of
earning capacity is something that will have to be assessed by the Tribunal
with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of
loss of earning capacity in different persons, depending upon the nature
of profession, occupation or job, age, education and other factors.”
[19.] In view of the aforesaid guiding principles laid down by
the Supreme Court, when applied in the facts of the case on hand, the
Tribunal ought to have considered the vocation, profession, and
nature of work attended by the claimant prior to the date of accident
as also his age. The Tribunal ought to have ascertained as to 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. The Tribunals are also expected to verify as to whether the
claimant was prevented or restricted from discharging his previous
Page 32 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
activities and functions.
[20.] Following the aforesaid guiding principles, on re-
appreciation of the evidence on record, we could notice that the
claimant was aged 37 years at the time of accident and was working as
a Divisional Manager at Ahmedabad at the time of accident. It has also
further transpired on record that after the accident, the claimant has
been posted in Nigeria- Lagos, continued in service, and thereafter
was promoted. In his deposition, he has specifically contended that
the employees, who were similarly positioned while he entered into
the service have been selected and got promoted to jobs in NIA with
better prospects. In few of the cases, they have opted for private
insurance companies with better prospects and are earning handsome
salaries with perks; however, in his case, due to accidental injuries, he
was unable to secure employment with a private insurance company.
He has thus claimed that he has lost better job opportunities. As
against the aforesaid evidence of the claimant, it is submitted that the
Insurance Company has failed to bring on record any contradictions.
However, in our view, the onus is on the claimant to prove that due to
disability sustained, his earning capacity has been severally impacted.
[21.] Having noted so, as regards the nature of duties attached
Page 33 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
to the post of Divisional Manager of Insurance Company it does not
involve heavy physical work. As against the claim sought on basis of
injuries sustained by the claimant notably his mobility has been vitally
affected, however, in our view, there is no major impact on the future
earning capacity of the claimant due to accidental injuries. The fact
remains that the claimant has continued in service and, in his cross-
examination, he has fairly admitted the suggestion that he has neither
been removed from the service and, despite such disability, he can
efficiently discharge his duties however with great efforts. Thus, the
career progression has not been affected and appreciating his
efficiency, he has been promoted, in absence of any evidence
suggesting reduction in his income, we are not inclined to deviate
from the view taken by the Tribunal.
[22.] Having appreciated the evidence on record, in order to
evaluate the impact of the disability sustained by the claimant on the
working capacity of the claimant, we have considered the evidence of
the medical officer, Dr. S. G. Patel, who has been examined as a
witness. In our view, the disability of the claimant has rightly been
confined to 30% of the body as a whole for the purpose of assessment
of compensation. However, in view of the pronouncement of the
decision of the Supreme Court in the case of National Insurance
Page 34 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
Company Ltd. vs. Pranay Sethi and Others reported in (2017) 16 SCC
680., even in case of injury, for the purpose of determination of the
future loss of income, the component of prospective income cannot
be ignored. Considering the age of the claimant as 37 years as on the
date of accident, and the fact the claimant was a salaried person, the
claimant would be entitled to an addition of 50% of the actual salary.
The prospective income of the claimant is thus determined as Rs.
20,628/- ( Rs.13,752 +50% of Rs.13,752/-). The loss of income is
determined as Rs.6189/- (30% of Rs.20,628/-). This brings us to the
multiplier of 16 being applied, considering the age of the claimant as
37 years as on the date of the accident. In view of the Second
Schedule, as considered in the case of Sarla Verma & Ors vs Delhi
Transport Corp.& Anr reported in (2009) 2 ACJ 1298, no error can be
found with the approach of the Tribunal in applying the multiplier of
16 in the facts of the case. The future loss of income is thus
determined as Rs.11,88,288/- (Rs.6189x12x16).
[23.] As regards the arguments canvassed by the learned
advocate about higher multiplier being adopted by the Tribunal, and
to consider multiplier of 5, in view of the judgment of the Division
Bench of this Court in the case of Rameshbhai (supra) is concerned,
we are not much impressed by the said argument of the learned
Page 35 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
advocate for the Insurance Company. The facts of the case, as can be
distinguished, suggest that the claimant therein was discharging his
duty as a teacher and after the accident, despite having sustained 32%
disability of the body as a whole, had continued in service as a teacher.
The Division Bench has noted the injury suffered by the claimant and,
noticing the fact that since there is no reduction in his salary, had
upheld the decision of the Tribunal by applying the multiplier of 5
while considering the future loss of income. It is significant to note
that the Supreme Court, in the case of Hari Om Const. vs. National
Insurance Company Limited reported in 2023 (0) ACJ 595, had an
occasion to consider similar arguments being advanced on behalf of
the Insurance Company. The Supreme Court opined that though the
claimant continued to be in service, but his efficiency to discharge his
duty as a constable has been seriously compromised and has,
therefore, considering the age of the claimant, applied the multiplier
of 16 while determining the future loss of income. Thus, disagreeing
with the view of the High Court reducing compensation on ground of
no loss of employment.
[24.] On the issue of enhancement of compensation awarded
under the head of pain, shock and suffering and the loss of amenities,
considering the judgment of the Supreme Court in the case of Jakir
Page 36 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
Hussein (supra), the Supreme Court, in the case of a driver aged 33
years with right hand completely crushed, had considered the case of
100% personal functional disability rendering the claimant incapable
of earning livelihood, and has broadly considered the damages both
under the pecuniary heads as well as non-pecuniary heads. The Court
expressed that, though it is not possible for the courts to make a
precise assessment of the pain and trauma suffered by a person who
has sustained permanent disability due to accident and will have to
struggle and face different challenges; however, in the facts of the
case, the court should make a broad estimate for the purpose of
determining the amount of “just and reasonable” compensation under
pecuniary loss. Considering the fact that the claimant was a young
man and will suffer trauma for not leading a normal life, thought it fit
to award sum of Rs.1,50,000/- towards the pain, suffering, and trauma
caused to him, and had also awarded further amount of Rs. 1,50,000/-
for the loss of amenities and enjoyment of life.
[25.] Considering the aforesaid decision in the facts of the case
and noticing the fact that the claimant had undergone 11 multiple
surgeries and had also faced prolonged medical treatment and
hospitalization, due to which the claimant had not only undergone
physical trauma but also mental agony, we are of the view that the
Page 37 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
claimant is also entitled for amount of compensation under the head
of loss of amenities of life as a distinct head of compensation.
[26.] Considering the fact that the claimant has been deprived
of leading a normal life and his mobility has been seriously prejudiced
on account of permanent disablement, the amount of compensation
of Rs. 50,000/- awarded under the head of pain, shock and suffering is
grossly inadequate and contrary to the principles laid down by the
Supreme Court. Thus, we are inclined to enhance the aforesaid
amount of compensation under the head of pain, shock and suffering
and loss of amenities of life to the extent of Rs. 3 Lakhs.
[27.] As regards the amount awarded under the actual loss of
income is concerned, the Tribunal failed to appreciate the voluminous
medical case papers produced on record which clearly support the
case of the claimant having remained on medical leave for a period of
almost 235 to 240 days, which certainly would have bearing on his
entitlement of earned and future leave. Though the Tribunal has
awarded a meager sum of Rs. 2,61,288/-; however, in our view, if the
documentary evidence are considered, it suggests actual loss of
income to the tune of Rs. 5,87,015/-. Thus, the argument advanced by
the learned advocate for the claimant seeking enhancement under the
head of actual loss of income deserves consideration and the same is
Page 38 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
hereby modified from Rs. 2,61,288/- to Rs. 5,87,015/-. Similarly, as far
as the amount of compensation awarded towards the expenses of
attendance charges are concerned, the same is enhanced to Rs.
2,40,000/-. The amount of compensation awarded under the head of
special diet and transportation expenses also requires
reconsideration, noticing the prolonged medical treatment undergone
by the claimant, and the same is revised to Rs. 2,00,000/-.
[28.] For the foregoing reasons, the total amount of
compensation is hereby enhanced to the tune of Rs.22,21,960/- as
against the awarded amount of Rs.8,69,941/-. The revised calculation
of the enhanced amount of compensation is reproduced in tabular
form hereunder:
Compensation of Compensation of
Under the Head of Rs. (Awarded by Rs. (Awarded by
the Tribunal) this Court)
Future loss of income
7,92,000/- 11,88,288/-
Actual Loss of Income 2,61,288/- 5,87,015/-
Medical Expenses 5,76,598/- 5,76,598/-
Pain, shock and suffering 50,000/- 3,00,000/-
Special diet,
50,000/- 2,00,000/-
transportation charges
Attendant charges 10,000/- 2,40,000/-
Total 30,91,901/-
Page 39 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
Less awarded amount of
8,69,941/-
compensation by Tribunal
Enhanced amount
(Rs.30,91,901-Rs. 22,21,960/-
8,69,941)
Interest @8%
[29.] With the above, the First Appeal No.799 of 2010
preferred by the original claimant is partly allowed. The impugned
judgment and award dated 19.02.2009 passed by the learned Motor
Accident Claims Tribunal (Auxi.), Ahmedabad, in M.A.C.P. No. 1284 of
1997, is hereby modified by enhancing the amount of Rs.22,21,960/-
towards total compensation to the original claimant-appellant herein
with proportionate costs and interest at the rate of 8% per annum
from the date of filing of claim petition till its actual realization.
[30.] The First Appeal No. 247 of 2010 preferred by the
Insurance Company- original opponent No. 3 is hereby dismissed.
[31.] The respondent no.3-Insurance Company is directed to
deposit the enhanced amount of compensation with proportionate
cost and interest within a period of eight weeks from the date of
receipt of the copy of this order. On deposit of the aforesaid
enhanced amount by the respondent-Insurance Company, the Tribunal
is directed to release and disburse the aforesaid amount in favour of
Page 40 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
NEUTRAL CITATION
C/FA/799/2010 CAV JUDGMENT DATED: 27/03/2026
undefined
the original claimant, subject to due verification, strictly in accordance
with the guidelines issued by the Hon’ble Supreme Court in this
regard. While making the payment, the learned Tribunal/Court shall
deduct the Court Fees, if not paid, in accordance with prevailing Rule.
Let the aforesaid exercise be undertaken by the Tribunal within a
period of two weeks from the date of deposit of the award amount.
[32.] With these observations, present First Appeals stand
disposed of in aforesaid terms.
[33.] Registry is directed to send back the Record &
proceedings (R & P) to the concerned Tribunal forthwith along with
the Writ of this judgment.
(SANGEETA K. VISHEN,J)
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
Page 41 of 41
Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:40:08 IST 2026
