JAGDISHBHAI DEVABHAI TADVI THROUGH HIS WIFE KAPILABEN ALIAS KAPILBEN JAGDISHBHAI TADVI vs SANJAYBHAI RAMANBHAI TADVI
- Court
- Gujarat High Court
C/FA/845/2026 JUDGMENT DATED: 07/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 845 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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JAGDISHBHAI DEVABHAI TADVI THROUGH HIS WIFE KAPILABEN ALIAS
KAPILBEN JAGDISHBHAI TADVI
Versus
SANJAYBHAI RAMANBHAI TADVI & ANR.
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
MR YOGI K GADHIA(5913) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 07/07/2026
JUDGMENT
1. The captioned appeal is preferred against the impugned
judgment and award dated 03.08.2024 passed by the learned
MACT (Main), Narmada at Rajpipla in M.A.C.P. No. 55 of
2020, whereby the learned Tribunal has partly allowed the
claim petition and awarded a sum of Rs. 8,04,400/- (Rupees
Eight Lac Four Thousand Four Hundred Only) along with
interest at the rate of 9% per annum, from the date of filing of
the claim petition till realization.
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2. The succinct facts, which lead to the filing of the
captioned appeal are summarized as under :-
i. On 08.07.2020, at about 07.30 p.m., when
Jagdishbhai Devabhai Tadvi was standing along
with his Motorcycle bearing Registration No.GJ-
05-DB-7148 near Hotel Ceretribal, Akteshwar
Cross-Road, Opponent No. 1, while driving
Motorcycle bearing Registration No.GJ-22-L-
3090, came from back-side at an excessive speed
and in a rash and negligent manner and dashed
against the motorcycle of Jagdishbhai. Due to
the forceful impact of the collision, Jagdishbhai
Devabhai Tadvi sustained severe grievous
injuries.
ii. The notices/summons of the Claim Petition were
duly served upon the opponents. The opponent
no.1 appeared through his advocate, but did not
file any written-statement, however, the
opponent no.2-Insurance Company filed Written
Statement vide Exh.27, denying the contents of
the claim petition and prayed for dismissal of the
claim petition.
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iii. Having considered the pleadings of the parties,
the learned Tribunal framed the following issues
at Exh.15, for determination.
i. Whether it is proved that the claimant
sustained injuries due to the rash and
negligent driving of the drivers of the
vehicle involved in the accident as
alleged?
ii. What amount, if any the claimant is
entitled to by way of compensation and
from which opponents?
iii.What order and award?
iv. Having considered the oral as well as
documentary evidence on record, and having
considered the submissions of the learned
counsels for the parties, the learned Tribunal
awarded a sum of Rs. 8,04,400/- (Rupees Eight
Lac Four Thousand Four Hundred Only) along
with interest at the rate of 9% per annum, from
the date of filing of the claim petition till
realization.
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v. Being aggrieved and dissatisfied by the
impugned judgment and award, the claimant -
appellant herein preferred the present appeal.
3. Heard learned counsels for the parties.
4. Mr.Mohsin Hakim, learned advocate appearing for the
claimant - appellant herein vehemently submitted that at the
time of accident, the claimant - appellant herein was engaged
in centering work and was earning Rs.10,000/- per month. It
is submitted that the income could not be proved on record by
leading the cogent evidence. Therefore, the learned Tribunal
assessed the income of the claimant/appellant herein as
Rs.8,000/- per month. It is submitted that in absence of
cogent evidence of income, the learned Tribunal ought to have
considered the minimum wages prevalent at the time of
accident. It is submitted that the learned Tribunal has not
considered the prospective income of the claimant/appellant
herein. It is submitted that at the time of accident, the
claimant/appellant herein was aged about 47 years, therefore,
25% of the monthly notional income ought to have been added
on account of future prospects of the claimant/appellant
herein.
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5. It is submitted that the claimant–appellant has suffered
both physical and neurological disabilities as a result of the
injuries sustained in the vehicular accident. Owing to the said
injuries, the claimant–appellant herein has become bedridden
and is unable to move independently. He has lost effective
control over his bodily functions, thereby rendering him
incapable of carrying out his day-to-day activities without
assistance. It is submitted that in order to establish the extent
of disability, the claimant–appellant herein examined Dr.
Vinay Rohra at Exh.37/A, who duly proved the neurological
and mental disability suffered by the claimant–appellant
herein. It is submitted that considering the nature and
severity of the disabilities sustained, the learned Tribunal
ought to have assessed the functional disability of the
claimant–appellant at 100%. However, despite the
overwhelming evidence on record demonstrating that the
claimant–appellant is virtually incapacitated and incapable of
pursuing any gainful employment, the learned Tribunal
erroneously assessed his functional disability at only 55%,
resulting in an inadequate award of compensation.
6. It is submitted that the learned Tribunal has awarded
the meager amount of compensation under the head of special
diet and transportation. It is submitted that the learned
Tribunal had not awarded the attendant charges though it has
been proved on record that the claimant – appellant herein
has become 100% disable and he lost the control over his
bodily functions and is unable to look after himself or perform
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routine day-to-day activities independently. Consequently, he
requires the assistance of an attendant on a regular basis for
his care and daily needs. It is submitted that the medical
evidence on record including the opinion of the treating
doctor supports the claimant–appellant's need for continuous
assistance and attendant care. In view of the nature and
extent of the disability suffered by the claimant–appellant
herein, the learned Tribunal ought to have awarded just and
reasonable compensation towards attendant charges by
considering his complete functional incapacity and lifelong
requirement of assistance. The failure to grant any amount
under the said head has resulted in the award of inadequate
compensation.
7. It is submitted that the learned Tribunal had awarded
the meager amount of compensation under the head of pain,
shock and suffering and loss of amenities. He, therefore,
prayed for enhancement of the compensation.
8. Per contra, Mr.Yogi Ghadia, learned advocate appearing
on behalf of respondent no.2-Insurance Company vehemently
submitted that the income of the claimant – appellant herein
has not been proved on record. Therefore, the learned
Tribunal has rightly assessed the income of the claimant –
appellant herein as Rs.8,000/- per month. It is submitted that
the doctor has rightly assessed the functional disability of the
claimant – appellant herein as Rs.55%. It is submitted that the
learned Tribunal had awarded just compensation under all the
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heads. Therefore, there is no infirmity in the impugned
judgment and award. Hence, the captioned appeal is liable to
be dismissed.
9. Having considered the submissions advanced by the
learned counsel for both the parties and having gone through
the record, it is to be noted that the claimant/appellant herein
has challenged the impugned judgment and order on the
ground of quantum.
10. So far as quantum is concerned, at the time of accident,
the claimant – appellant herein was aged about 47 years and
he was engaged in Centering Work. It emerges from the
record that the income of the claimant – appellant herein was
not proved on record by leading the cogent evidence.
Therefore, the learned Tribunal has assessed the income of
the deceased as Rs.8,000/- per month. In absence of cogent
evidence of income, the learned Tribunal ought to have
considered the minimum wages prevalent at the time of
accident. The accident took place on 08.07.2020. At the
relevant point of time, the minimum wages for a skilled
worker was Rs.9,000/- per month. Thus, considering the
nature of occupation of the claimant – appellant herein and
having regard to the rate of minimum wages prevalent at the
time of accident, as notified by the State Government, the
income of the claimant – appellant herein is reassessed at Rs.
9,000/- per month. It is not in dispute that at the time of
accident, the claimant – appellant herein was aged about 47
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years, therefore, 25% of the monthly notional income ought to
have been added on account of future prospects of the
claimant - appellant herein. In view of ratio laid-down by the
Hon’ble Apex Court in the 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. Thus, after adding 25% to the notional monthly income,
it would come to Rs.11,250/- (Rs.9,000/- + Rs.2,250/- (25% of
Rs.9,000/-).
11. So far as the disability is concerned, the claimant–
appellant herein has suffered both physical and neurological
disabilities as a consequence of the injuries sustained in the
accident. The medical evidence on record reveals that the
claimant–appellant sustained a head injury, bilateral frontal
and left temporal hemorrhagic contusions along with multiple
injuries on other parts of the body. The claimant–appellant has
also proved the Disability Certificates at Exhs.38 and 39. In
support thereof, he examined Dr. Vinay Rohra, who duly
proved the said certificates on record. The doctor deposed
that the claimant–appellant has lost effective control over his
bodily functions. He further certified that the claimant–
appellant has sustained 55% permanent neurological
disability in relation to the body as a whole. It also emerges
from the record that the Disability Certificate medial papers
proved at Exh.38 also shows that the patient suffers from poor
bladder reflex activity, intermittent dribbling and no voluntary
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control, has no reflex regular or voluntary control. At present,
the patient is conscious, confused and obeying command and
no weakness. Doctor further certified that he has poor control
over the bladder and bowel habits.
12. It is not in dispute that at the time of accident, the
claimant – appellant herein was engaged in Centering Work.
With this disability, the claimant – appellant herein cannot
continue the same avocation, which was being carried out
prior to the accident. The Hon’ble Apex Court in the case of
Raj Kumar v. Ajay Kumar reported in (2011) 1 SCC 343
observed as under:-
“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%.
This extract is taken from Raj Kumar v. Ajay Kumar,
(2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC
(Cri) 1161 : 2010 SCC OnLine SC 1166 at page 349
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
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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 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] )
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 amenities of life). The second
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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.
19. We may now summarise the principles discussed
above:
(i) xxxx
(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) xxxx
(iv) xxxxxx “
13. Thus, considering the nature and extent of the injuries
sustained by the claimant–appellant coupled with the nature
of the avocation pursued by him at the time of the accident,
this Court is of the considered view that the claimant–
appellant has suffered 100% functional disability. Therefore,
the learned Tribunal has committed a gross error in
appreciating the medial evidence and more particularly, the
Disability Certificate and the deposition of the doctor in this
regard. Hence, I reassessed the functional disability at 100%.
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Therefore, considering the age of the claimant–appellant
herein and applying the multiplier of 13, the future loss of
income is required to be computed by taking the functional
disability at 100%. Thus, the compensation under the head of
future loss of income would come to Rs.17,55,000/-
(Rs.11,250x100%x12x13).
14. The learned Tribunal has awarded a sum of Rs.20,000/-
under the head of special diet, transportation. The same is not
under challenge. Therefore, the compensation awarded under
this head is maintained. The learned Tribunal has not awarded
separate compensation under the head of attendant charges.
As observed hereinabove, the claimant–appellant has suffered
100% functional disability and has lost effective control over
his bodily movements. He is unable to perform his routine
day-to-day activities independently and is entirely dependent
upon his family members for his personal care and daily
needs. In view of the nature and extent of the disability
suffered by the claimant–appellant, it is evident that he
requires the assistance of an attendant on a continuous basis
for his care, supervision, and day-to-day functioning.
However, despite the overwhelming evidence on record
demonstrating his dependence on others, the learned Tribunal
has failed to award just and adequate compensation under the
head of attendant charges. Thus, considering the age of the
claimant – appellant herein and taking into consideration the
minimum wages for a skilled worker prevalent at the time of
accident, a sum of Rs. 14,04,000/- (Rs.9,000/-x12x13) is
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awarded under the head of attendant charges.
15. The learned Tribunal has awarded only a meagre amount
of compensation under the heads of pain, shock and suffering,
as well as loss of amenities. The evidence on record clearly
establishes that the claimant–appellant herein sustained
grievous and serious injuries in the vehicular accident
including a head injury resulting in bilateral frontal and left
temporal hemorrhagic contusions along with multiple other
injuries on different parts of the body. It emerges from the
record that immediately after the accident, the claimant–
appellant was admitted to Garudeshwar Government Hospital
and was thereafter referred to Rajpipla Civil Hospital.
Subsequently, he was admitted to Parul Hospital, Vaghodia,
and was later shifted to Civil Hospital, Ahmedabad for further
treatment. The claimant–appellant herein remained admitted
in the I.C.U. as an indoor patient from 09.07.2020 to
22.07.2020. Thereafter, he continued to undergo prolonged
medical treatment as both an indoor and outdoor patient. His
functional disability has been reassessed at 100%. He has
been deprived of leading a normal life. He has become bad
ridden. Thus, considering all the attendant circumstances, the
compensation awarded under this head is enhanced from
Rs.50,000/- to Rs.5,00,000/-.
16. The learned Tribunal had awarded actual loss of income
for six months. Now this Court has treated the case of 100%
functional disability, therefore, no separate amount is
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required to be awarded under the head of actual loss of
income.
17. Therefore, in view of the above discussion, the claimant
– appellant herein shall be entitled for the following
compensation:-
Sr. No. Heads Amount Awarded in
rupees.
1 Future loss of income 17,55,000/-
2 Special diet, Transportation (+) 20,000/-
3 Attendant Charges (+) 14,04,000/-
4 Pain, Shock and Suffering (+) 5,00,000/-
TOTAL COMPENSATION Rs. 36,79,000/-
(Minus) Compensation
awarded by impugned
(-) Rs.8,04,400/-
Judgment and Award
Enhanced amount of
Rs.28,74,600/-
compensation
18. Thus, in view of the above discussions, the claimants -
appellants herein shall be entitled for an additional
compensation of Rs. 28,74,600/- (Rs.36,79,000/- -
Rs.8,04,400/-). The learned Tribunal has awarded the interest
at the rate of 9% per annum from the date of the claim
petition till its realization. Therefore, the claimants shall also
be entitled for the same rate of interest on the additional
amount of compensation from the date of filing of the claim
petition till its realization.
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19. In view of the above discussion, the captioned appeal
stands allowed partly and judgment and award is modified to
that extent. The Insurance Company is directed to deposit the
additional compensation amount along with interest, with the
concerned learned Tribunal within a period of six weeks from
today. Upon depositing the said amount of compensation,
learned Tribunal shall disburse the entire awarded amount of
compensation along with interest to the claimant – appellant
herein after deducting deficit Court fee and due verification.
20. If any amount is lying deposited in the captioned appeal
with the Registry of this court, the same may be transmitted
to the concerned learned Tribunal. Records & Proceedings, if
any, be sent back to the concerned learned Tribunal. No
order as to costs.
21. Pending application, if any stands disposed of.
(MOOL CHAND TYAGI, J)
GIRISH
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