MAJIDBHAI KASAMBHAI SUMRA vs HAMIDABEN GAFARBHAI DHADA
- Court
- Gujarat High Court
C/FA/3370/2024 JUDGMENT DATED: 06/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3370 of 2024
With
R/FIRST APPEAL NO. 1288 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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MAJIDBHAI KASAMBHAI SUMRA
Versus
HAMIDABEN GAFARBHAI DHADA & ANR.
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR DEVANSH N KAKKAD(12134) for the Defendant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 06/07/2026
JUDGMENT
1. Both the captioned appeals have been preferred against the
impugned judgment and award dated 30.01.2024 passed by the learned
th
Motor Accident Claims Tribunal (Auxiliary) and 7 Additional District
Judge, Gondal in MACP No.85/2012, whereby the learned Tribunal had
partly allowed the claim petition and awarded the compensation to the
tune of Rs.17,82,400/- along with interest at the rate of 9% per annum
from the date of filing of claim petition till its realization.
2. The succinct facts leading to file both the captioned appeals are
that on 06.01.2012, the claimant-Majidbhai Kasambhai Sumra was on
his duty as a driver and he was driving the truck bearing registration
no.GJ-3Y-9514. When he reached at the place of accident, due to
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sudden brake failure, the said truck turned turtle and met with an
accident. Due to the impact of the said accident, the claimant sustained
serious injuries, including fracture injuries.
3. On being served, the opponent no.1 before the learned Tribunal
filed the written statement at Exh.32 while the appellant/insurance
company filed its written statement at Exh.18, thereby denying all the
averments made in the claim petition and prayed for rejection of the
claim petition.
4. Having considered the pleadings, evidence led by the respective
parties and the submissions canvassed by the respective parties, the
learned Tribunal had partly allowed the claim petition and awarded the
compensation to the tune of Rs.17,82,400/- along with interest at the
rate of 9% per annum from the date of filing of claim petition till its
realization.
5. Being aggrieved and dissatisfied with the impugned judgment and
award, the First Appeal No.1288/2025 has been preferred by the
insurance company on the ground of its liability to satisfy the award
while the First Appeal No.3370/2024 has been preferred by the original
claimant for enhancement of compensation.
6. Heard learned counsels for the parties.
7. Ms. Kirti S. Pathak, learned counsel appearing on behalf of
appellant/insurance company in First Appeal No.1288/2025 vehemently
submitted that at the time of accident, the claimant was travelling in the
truck as a second driver. She submitted that the said fact has been
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admitted by the claimant in his statement made before the police. She
submitted that at the time of accident, one-Salimbhai Yusufbhai Morva
was driving the offending truck. The police had also recorded the
statement of said Salimbhai Yusufbhai Morva, in which he has admitted
that at the time of accident, he was driving the truck and the claimant
was travelling in the said truck as a second driver. She submitted that
the insurance company has proved on record the copy of policy of the
offending truck, wherein no additional premium has been charged to
cover the risk of second driver. Therefore, the risk of the claimant is not
covered under the policy. She submitted that the learned Tribunal ought
to have exonerated the insurance company from satisfying the award.
In support of her contention, learned counsel for the insurance company
has placed the reliance upon the judgment rendered by the Hon’ble
Apex Court in case of Manager, National Insurance Company Ltd. Vs.
Saju P. Paul & Anr., reported in (2013) 2 SCC 41 and judgment of the
Karnataka High Court rendered in case of M. E. Jayachandra Vs. M/s.
The Reliance General Insurance Company Limited, passed in M.F.A.
No.3737/2012 (MV). Having placed the reliance upon the aforesaid
judgments, learned counsel for the appellant/insurance company
submitted that the captioned appeal is liable to be allowed.
8. Per contra, Mr. Rathin P. Raval, learned counsel appearing on
behalf of original claimant/appellant in First Appeal No.3370/2024
vehemently submitted that the appellant/insurance company has neither
pleaded nor proved that at the time of accident, the claimant was
travelling as a second driver of the offending truck. He submitted that
the claimant has pleaded and proved on record that at the time of
accident, the offending truck was being driven by him. He further
submitted that the statement made before the police has not been
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proved by the insurance company by examining the alleged driver of the
truck namely, Salimbhai Yusufbhai Morva. He further submitted that the
insurance company has neither examined the owner of the truck nor the
investigating officer, who conducted the investigation and filed the
charge sheet. He submitted that the insurance company has neither
pleaded nor proved its defence, therefore, the learned Tribunal has
rightly rejected the contention raised by the insurance company
regarding the status of the claimant/appellant as a second driver. He
submitted that it is the case of the claimant/appellant that he was driving
the said offending truck at the time of accident. He further submitted
that the insurance company put the suggestion in the cross-examination
that at the time of accident, he was not driving the truck. The said
suggestion was denied by the claimant. He submitted that the version of
the claimant before the learned Tribunal was that at the time of
accident, he was driving the offending truck. He further submitted that
the version of the claimant which has been brought on record by leading
the oral evidence ought to have been given more weightage than the
police papers. In support of his contention, learned counsel for the
original claimant has placed the reliance upon the judgment rendered
by the Hon'ble Apex Court in case of National Insurance Company
Ltd. vs. Chamundeswari and Others, reported in (2021) 18 SCC 596.
9. Learned counsel for the claimant/appellant further submitted that
at the time of accident, the claimant was getting the salary of Rs.5,000/-
as a driver. He submitted that apart from the salary, he was also being
paid a sum of Rs.200/- per day as daily allowance; however, the
learned Tribunal has assessed the monthly income of the claimant as
Rs.5,000/-. He further submitted that the learned Tribunal ought to have
considered the daily allowance, which was being paid to the claimant at
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the time of accident. Therefore, he prayed that the amount of daily
allowance received by the claimant at the time of accident be taken into
consideration. He submitted that after considering the daily allowance,
the monthly income of the claimant ought to have been assessed at
Rs.11,000/-.
10. Learned counsel for the claimant/appellant further submitted that
the claimant has sustained multiple fractures on his spinal cord and
other parts of the body. Owing to the injuries sustained in the accident,
the claimant/appellant has become 100% disabled to carry on the work
as a driver, which has resulted in a 100% loss of income. He further
submitted that the claimant/appellant has also examined the doctor who
issued the disability certificate. The doctor has proved on record that the
claimant/appellant has become 100% disabled; however, the learned
Tribunal has considered the functional disability at 90%. He submitted
that the learned Tribunal ought to have considered the functional
disability of the claimant/appellant at 100%.
11. Learned counsel for the claimant/appellant further submitted that
the learned Tribunal has awarded meager amount of compensation
under the head of pain, shock and suffering. He submitted that the
accident in question took place on 06.01.2012 and the
claimant/appellant is still undergoing medical treatment. Learned
counsel for the claimant/appellant has drawn the attention of the Court
to the medical bills pertaining to the year 2015. He submitted that the
claimant/appellant is using catheter owing to the injuries sustained in
the accident as he has lost control over his bowel and bladder functions.
Therefore, he prayed for enhancement of compensation under the head
of pain, shock and suffering. In support of his contention, learned
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counsel for the claimant/appellant has placed the reliance upon the
judgment rendered by the Hon'ble Apex Court in case of Chaus
Taushif Alimiya Vs. Memon Mahmmad Umar Anwarbhai & Ors.,
reported in (2023) 17 SCC 771, Rahul Ganpatrao Sable Vs. Laxman
Maruti Jadhav (Dead) Through Lrs. and Ors., reported in (2023) 13
SCC 334 and Master Ayush Vs. Branch Manager, Reliance General
Insurance Company Ltd. & Anr., reported in (2022) 7 SCC 738.
12. Learned counsel for the claimant/appellant further submitted that
owing to the injuries sustained by the claimant/appellant, he has to
receive the medical treatment throughout his life; however, the learned
Tribunal has not awarded any amount of compensation under the head
of future medical expenses. He submitted that the learned Tribunal
ought to have awarded the compensation under the head of future
medical expenses. In support of his contention, learned counsel for the
appellant has placed the reliance upon the judgment rendered by the
Hon'ble Apex Court in case of Rahul Ganpatrao Sable (supra) and
Master Ayush (supra). Learned counsel for the appellant further
submitted that owing to the injuries sustained in the accident, the
claimant/appellant has become 100% disabled and he requires one
attendant for 24 hours. He submitted that the claimant/appellant is using
catheter, therefore, he needs the help of one attendant; however, the
learned Tribunal has not awarded any separate compensation under
the head of attendant charges. In support of his contention, learned
counsel for the appellant has placed the reliance upon the judgment
rendered by the Hon'ble Apex Court in case of Rahul Ganpatrao Sable
(supra), Master Ayush (supra) and Cholamandalam Ms General
Insurance Co. Ltd. Vs. Ram Dhundiya Vanzara, reported in 2023
SCC OnLine Guj 3875. Having placed the reliance upon the aforesaid
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judgments, learned counsel for the appellant has prayed for
enhancement of compensation.
13. In rebuttal, Ms. Kirti S. Pathak, learned counsel appearing on
behalf of appellant/insurance company vehemently submitted that the
income has not been proved by leading the cogent evidence on record,
therefore, the learned Tribunal has rightly assessed the income of the
claimant/appellant as Rs.5,000/- per month. She further submitted that
the learned Tribunal has rightly assessed the functional disability at
90% as the claimant/appellant has not become 100% disabled. She
submitted that in the cross-examination, the claimant himself admitted
that he can perform the natural duties. She further submitted that the
claimant has not made out any case for attendant charges, therefore,
the learned Tribunal has rightly assessed the compensation under the
head of attendant charges.
14. Learned counsel for the appellant/insurance company further
submitted that the learned Tribunal has awarded just compensation
under the head of pain, shock and suffering. She further submitted that
so far as the future medical expenses is concerned, the
claimant/appellant has not made out any case to award the
compensation under the head of future medical expenses. Therefore,
she submitted that the learned Tribunal has awarded just compensation
under all the heads of compensation and hence, the captioned appeal is
liable to be dismissed.
15. Having considered the submissions of the learned counsels for
the parties and having gone through the record, it is to be noted that the
original claimant has challenged the impugned judgment and award on
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the ground of quantum, while the insurance company has challenged
the impugned judgment and award on the ground of its liability to satisfy
the award.
16. So far as the quantum is concerned, it is not in dispute that at the
time of accident, the claimant was working as a driver. It has been
pleaded that at the time of accident, the claimant was earning
Rs.5,000/- per month as a salary, and apart from the salary, he was
also getting Rs.200/- per day as daily allowance. The claimant has filed
his affidavit in examination-in-chief at Exh.38 along with the lines of
pleadings. The learned Tribunal, after considering the oral evidence on
record, assessed the income of the claimant as Rs.5,000/- per month.
In case of United India Insurance Company Limited vs. Indiro Devi &
Ors., reported in AIR 2018 SC 3107, wherein the Hon'ble Apex Court in
para 9, has observed as under:-
“9. We have given our anxious consideration to this contention. There is no
doubt that if the salary certificate is taken into account the salary of the
deceased should be taken as Rs. 1,06,176/-. since the gross salary was
Rs.8848 per month. That, however, in our view does not mean that the
income of the deceased as stated in the Income Tax return should be
totally ignored. It is not possible to agree with the observation of the
Tribunal that it was necessary for the claimants to “explain the said
contradiction” between two figures of income. The claimants had led
reliable evidence that the deceased had returned an income of Rs.
2,42,606/- for the assessment year 2004-05. This piece of evidence has
not been discredited. Indeed, it was possible that the deceased had
income from other sources also. There is nothing in the law which requires
the Tribunal to assess the income of the deceased only on the basis of a
salary certificate for arriving at a just and fair compensation to be paid to
the claimants for the loss of life.”
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17. The learned Tribunal, while assessing the income of the
claimant, has taken into account the monthly salary, but the daily
allowance was not considered. The learned Tribunal has committed
grave error in not considering the daily allowance being paid to the
claimant at the time of accident. Thus, considering the daily allowance
of Rs.200/- per day, the monthly income of the claimant at the time of
accident would come to Rs.11,000/- i.e. (5,000+6,000). Therefore, the
income of the claimant/appellant at the time of accident is reassessed at
Rs.11,000/- per month. It is not in dispute that at the time of accident,
the claimant was aged about 34 years and 5 months. Thus, in view of
the ratio laid down by the Hon'ble Apex Court in case of National
Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16)
SCC 680 and Sidram Vs. The Divisional Manager, United India
Insurance Company Limited & Anr., reported in 2022 INSC 1202,
40% of the monthly income is to be added on account of future
prospects of the claimant. Thus, after adding 40% to the monthly
income, it would come to Rs.15,400/- i.e. (11,000+11,000X40%).
18. The learned Tribunal has assessed the functional disability at
90%. In order to prove the disability, the claimant has examined Dr.
Rajesh Jamnadas Gandhi as PW-2 at Exh.43. He deposed that the
claimant has sustained the burst fracture of spinal cord. He also
deposed that the claimant was surgically operated for the same and
screw was implanted. He also deposed that considering the nature of
injuries sustained by the claimant, he has sustained 100% functional
disability. He also proved the disability certificate at Exh.44. In the
disability certificate, he observed that from 08.01.2012 to 13.01.2012,
the claimant was surgically operated by laminectomy and transpedicular
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screw fixation and posterior fusion from D-12 to L-2 vertebrae (two pairs
of pedicular screws). He also observed that later on, after three years
from the surgery, due to failure of implant, kyphotic deformity and
bladder bowel involvement (as per treatment paper by Dr. Amish
Sanghvi), he was treated as an indoor patient at Sterling Hospital,
Rajkot from 31.07.2015 to 04-08-2015 and operated on 01-08-2015 by
L-1 posterior column resection D-10 to L-4 by pedicle screw fixation,
cage and bone grafting by Dr. Amish Sanghvi. He noted that, “O/E
stiffness of back muscles, resulting inability to bend forward, inability to
pass urine, with intermittent indwelling catheter due to retention with
overflow incontinence with infection, absent cremasteric reflex”. He
further observed that owing to the injuries sustained by the
claimant/appellant, he sustained 100% permanent physical disability of
body as a whole. It is not in dispute that at the time of accident, the
claimant was working as a driver. In view of the aforesaid disability, in
my considered view, he has become 100% disabled to drive the truck.
Thus, the avocation of the claimant has been totally affected. In case of
Raj Kumar Vs. Ajay Kumar & Anr., reported in 2011 (1) SCC 343,
wherein the Hon’ble Apex Court, in para 8, has observed as under:-
“8 Where the claimant suffers a permanent disability as a result of injuries,
the assessment of compensation under the head of loss of future earnings,
would depend upon the effect and impact of such permanent disability on
his earning capacity. The Tribunal should not mechanically apply the
percentage of permanent disability as the percentage of economic loss or
loss of earning capacity. In most of the cases, the percentage of economic
loss, that is, percentage of loss of earning capacity, arising from a
permanent disability will be different from the percentage of permanent
disability. Some Tribunals wrongly assume that in all cases, a particular
extent (percentage) of permanent disability would result in a corresponding
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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. What
requires to be assessed by the Tribunal is the effect of the permanently
disability on the earning capacity of the injured; and after assessing the
loss of earning capacity in terms of a percentage of the income, it has to
be quantified in terns of money, to arrive at the future loss of earnings (by
applying the standard multiplier method used to determine loss of
dependency). We may however note that in some cases, on appreciation
of evidence and assessment, the Tribunal may find that percentage of loss
of earning capacity as a result of the permanent disability, is approximately
the same as the percentage of permanent disability in which case, of
course, the Tribunal will adopt the said percentage for determination of
compensation (see for example, the decisions of this court in Arvind Kumar
Mishra v. New India Assurance Co.Ltd. – 2010(10) SCALE 298 and
Yadava Kumar v. D.M., National Insurance Co. Ltd. – 2010 (8) SCALE
567).”
19. Thus, in view of the ratio laid down by the Hon'ble Apex Court in
case of Raj Kumar Vs. Ajay Kumar (supra) and having regard to the
totality of facts and circumstances, I am of the considered view that the
learned Tribunal has committed the gross error in assessing the
functional disability of the claimant at 90%. Therefore, the functional
disability assessed by the learned Tribunal is modified and hence, I
accordingly hold that the claimant has sustained the functional disability
to the extent of 100%.
20. It is not in dispute that at the time of accident, the
claimant/appellant was aged about 34 years and 5 months. Therefore,
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considering the age of the claimant/appellant, the multiplier of 16 is to
be applied to compute the future loss of income. Accordingly, the future
loss of income would come to Rs.29,56,800/- i.e.
(15,400X100%X12X16).
21. The learned Tribunal has awarded the meager amount of
compensation under the head of pain, shock and suffering. It is evident
from the record that the claimant has sustained the injuries in the
vehicular accident dated 06-01-2012. Perusal of the medical papers
would show that the claimant/appellant had received the treatment from
Wockhardt Hospital, Rajkot and Sterling Hospital, Rajkot. The medical
report would further show that he was operated surgically, the screw
was implanted, but that implant had failed. Consequently, he was again
surgically operated in Sterling Hospital and he remained hospitalized as
an indoor patient from 12.08.2015 to 14.08.2015. The record would
further show that he was admitted as an indoor patient in Wockhardt
Hospital, Rajkot and Sterling Hospital, Rajkot time and again. Owing to
the injuries sustained in the accident, he has become 100% disabled.
Thus, considering the nature of injuries sustained by the
claimant/appellant and having regard to the period of hospitalization as
well as the period of treatment as an indoor patient, the compensation
awarded under the head of pain, shock and suffering is required to be
enhanced. In case of Chaus Taushif Alimiya (supra), the Hon'ble Apex
Court has awarded a sum of Rs.5,00,000/- under the head of pain,
shock and suffering. In case of Rahul Ganpatrao Sable (supra), the
Hon'ble Apex Court has awarded the compensation of Rs.3,00,000/-
under the head of pain, shock and suffering. In case of Master Ayush
(supra), the Hon'ble Apex Court has awarded the compensation of
Rs.10,00,000/- under the head of pain, shock and suffering.
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22. Having regard to the facts and circumstances of the present case,
the compensation awarded under the head of pain, shock and suffering
is enhanced from Rs.25,000/- to Rs.5,00,000/-.
23. The learned Tribunal had awarded a sum of Rs.4,57,800/- under
the head of medical expenses. It has been argued by the learned
counsel appearing on behalf of appellant that though the
claimant/appellant has to bear the medical expenses in future as he has
lost the control over bowel and bladder functions and he is using
catheter; however, the learned Tribunal has not awarded any
compensation under the head of future medical expenses. The reliance
has been placed upon the judgment rendered by the Hon'ble Apex
Court in case of Rahul Ganpatrao Sable (supra), wherein the Hon'ble
Apex Court has awarded the compensation to the tune of Rs.9,72,000/-
towards future medical expenses. In Master Ayush (supra), the Hon'ble
Apex Court has awarded the compensation to the tune of
Rs.10,00,000/- under the head of future medical expenses.
24. Having regard to the facts and circumstances of the present case
and considering the medical evidence on record, it would be just and
proper, if a sum of Rs.2,00,000/- is awarded under the head of future
medical expenses.
25. The learned Tribunal has awarded a sum of Rs.60,000/- under
the head of transportation, special diet and attendant charges. It has
been argued on behalf of learned counsel for the claimant/appellant that
the learned Tribunal has not awarded any separate amount under the
head of attendant charges. He submitted that owing to the injuries
sustained in the accident, he lost the control over the bowel and bladder
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functions and he is using catheter. Therefore, the learned Tribunal
ought to have awarded the compensation under the head of attendant
charges as he cannot move without an attendant.
26. Having regard to the totality of the facts and circumstances, a
sum of Rs.1,00,000/- is awarded under the head of attendant charges.
27. So far as the compensation awarded under the head of actual
loss of income, medical expenses and special diet and transportation is
concerned, the same requires no interference and accordingly, the
compensation awarded under these heads is maintained.
28. In view of the above discussion, the appellant/claimant shall be
entitled for the following amount of compensation under the following
heads:-
Sr. No. Particular Amount
1. Future loss of income 29,56,800/-
2. Actual loss of income 30,000/-
3. Medical expenses 4,57,800/-
4 Future medical expenses 2,00,000/-
5. Pain, shock and suffering 5,00,000/-
6. Special diet and transportation 60,000/-
7. Attendant charges 1,00,000/-
Total 43,04,600/-
29. It has been argued on behalf of learned counsel for the insurance
company that the risk of the claimant/appellant was not covered as at
the time of accident, he was not driving the truck and he was travelling
as a second driver in the truck. To appreciate this argument, I have
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considered the pleadings of the insurance company. The insurance
company has not taken any specific plea with respect to the status of
the claimant/appellant as the second driver of the offending truck. Nor
the insurance company has led any evidence to prove its defense. Even
the insurance company has not examined the owner of the truck, who
could have proved the status of the claimant at the time of accident as
to whether he was second driver of the offending truck. The insurance
company has merely relied upon the police papers i.e. the statement of
the Salimbhai Yusufbhai Morva made before the investigating officer.
The insurance company neither examined the said Salimbhai Yusufbhai
Morva nor the investigating officer in order to establish its defense. The
insurance company has also not examined the officials of the insurance
company to prove the terms and conditions of the policy. On the
contrary, it is the case of the claimant/appellant that at the time of
accident he was driving the truck. The claimant/appellant has deposed
the same before the learned Tribunal along with the lines of pleadings.
He was also cross-examined by the insurance company where he
denied the suggestion of the insurance company that at the time of
accident he was not driving the said truck. It is settled proposition of law
that the insurance company has to prove its defense. The defense of
second driver was neither taken in the written statement nor proved by
leading the oral evidence on record. Learned counsel for the insurance
company has merely placed the reliance upon the police papers. It is
settled proposition of law that the learned Tribunal and the Court have
to give more weightage to the oral evidence of the claimant rather than
the police papers, as held by the Hon'ble Apex Court in case of
Chamundeswari and Others (Supra). Thus, the contention raised by the
learned counsel for the insurance company for want of pleadings and
evidence is not sustainable.
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30. The learned Tribunal has already awarded the compensation to
the tune of Rs.17,82,400/-, therefore, the appellant/claimant shall be
entitled for additional compensation of Rs.25,22,200/- i.e. (43,04,600-
17,82,400). The learned Tribunal has awarded the interest at the rate of
9% per annum, therefore, the original claimant/appellant shall be
entitled for the same rate of interest on additional amount of
compensation from the date of filing of claim petition till its realization.
31. In view of the above discussion, the appeal filed by the insurance
company stands dismissed and the appeal preferred by the original
claimant stands allowed partly. The impugned judgment and award is to
be modified to the aforesaid extent. The respondent no.2/insurance
company shall deposit the additional amount of compensation along
with interest within a period of 6 weeks from the date of receipt of copy
of this order.
32. Upon depositing of the said amount of compensation, the learned
Tribunal shall disburse the entire amount of compensation along with
interest to the original claimant after deducting deficit of Court fee, if
any, after due verification. The amount, if any, lying deposited with the
registry of this Court, the same shall be transmitted to the learned
Tribunal concerned. No order as to costs.
33. Record & Proceedings, if any, be sent back to the learned
Tribunal concerned.
(MOOL CHAND TYAGI, J)
HARSHIT
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