ORIENTAL INSURANCE CO LTD vs ANILBHAI KANJIBHAI VASAVA (DECEASED)
- Court
- Gujarat High Court
C/FA/2068/2013 JUDGMENT DATED: 21/10/2026
(GJHC240395712013)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2068 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
Yes
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ORIENTAL INSURANCE CO LTD
Versus
ANILBHAI KANJIBHAI VASAVA (DECEASED) & ORS.
==========================================================
Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES for
the Defendant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 1.1,1.2,1.3
RULE SERVED for the Defendant(s) No. 2,3
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 21/10/2026
JUDGMENT
1. Being aggrieved and dissatisfied with judgment and award
dated 16.04.2013 passed in MACP No.519 of 2010 by learned
MACT, Bharuch, insurance company has preferred this appeal
under section 173 of the Motor Vehicle Act. By impugned
judgment and award, learned Tribunal in total assessed
compensation of Rs.24,18,850/- and after deducting
contributory negligence of claimant, awarded Rs.18,14,138/-
with interest at 9% p.a. from the date of filing claim petition till
realization.
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2. Facts of the case are as under :-
2.1. On 30.07.2010, clamant was serving as driver in GMDC
and after completing his duty, when he was returning back to
his home riding motor-cycle No.GJ-16-AM-6244, he was dashed
by driver of Santro Car No.GJ-16-AA-1848 who was riding his
car at excessive speed endangering human life. The claimant
sustained multiple injuries in the road accident. He was first
taken to Jayben Modi General Hospital in Ankleshwar for
primary treatment and was subsequently transferred to Narhari
Amin General Hospital in Vadodara, where he underwent
prolonged inpatient treatment. The severe injuries to his left leg
resulted in an above-the-knee amputation. According to the
claimant, he suffered a total (100%) functional disability, forcing
him to live with an amputated leg and rendering him unable to
perform the driving work he did prior to the accident. The
claimant states that, as a driver for GMDC working at Rajpardi
village, he was earning Rs. 26,000 per month at the time of the
accident.
3. Before learned Tribunal claimant has preferred a claim
petition under section 166 of Motor Vehicles Act, raising multiple
factors and grounds seeking compensations of Rs.15 lakhs with
interest at 12% p.a. with cost.
4. On being served, opponent no.1 and 2 came forward to
contest claim petition. Opponent no.3 – Insurance Company filed
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written statement vide Exh.21 and raised multiple defence
including defense that claimant himself was negligent in
causing road accident. And secondly, since claimant continued
his work post accident, he cannot claim compensation for loss of
future earning and loss of future prospects and ultimately
submitted to dismiss the claim petition.
5. Learned Tribunal fixed the issues at Exh.24 and after
appreciating the evidence, was pleased to believe that claimant
has successfully proved 80% functional disability. Further,
claimant proved his income at Rs.4,49,256 per year and having
considered the contributing negligence in the ratio of 25% to
75% between claimant and driver of Santro Car, applied the
multiplier of 5 as claimant continued his work and assessed the
total compensation as stated (supra) and after deducting
contributing negligence of the claimant, granted total sum of
Rs.18,14,138/- with 9% yearly interest from the date of claim
petition till realization.
6. Appellant - Oriental Insurance Company, being aggrieved
has filed this appeal essentially on the ground that learned
Tribunal committed serious error in assessing 75% negligence of
Santro Car driver as accident was head on collision and ought to
have considered 50% negligence each between claimant and
central car driver.
7. Heard learned advocate Mr.Dakeshsh Mehta for the
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appellant and learned advocate Mr.Nishit Bhalodi for the
claimants.
8. It is sought to be submitted by learned advocate Mr.Mehta
that on going through the cross-examination of the claimant at
Exh.25, it is evident that the claimant lost control over the
motorcycle while trying to avoid accident with cow suddenly
came on the cross road and went to dash with oncoming Santro
Car. This factual aspect discern that claimant was also equally
negligent in causing road accident. However, instead of
assessing contributory negligence in ratio of 50% each between
the claimant and the Santro car driver, the learned Tribunal
despite recording appropriate and proper reasons wrongly
assessed the claimant's contributory negligence at only 25% (on
the lower side). Therefore, learned advocate Mr. Mehta submitted
that the ratio of contributory negligence should be enhanced. He
also referred to the site panchnama and the facts emerging from
the claimant's cross-examination.
8.1. Mainly upon above submissions, it is submitted to allow
the first appeal.
9. Per contra, learned advocate Mr.Bhalodi for the claimants
submitted that learned Tribunal has rightly passed the order
and assessed contributing negligence of 25% to the claimant. He
would submit that the insurance company had not lead evidence
of car driver nor has given any reasons for withholding the best
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evidence, in view of said factual aspect learned Tribunal has
rightly drawn adverse inference against Santro car driver
computing ratio of contributing negligence.
9.1. Secondly, learned advocate Mr. Bhalodi relying on the
judgment of Hon’ble Supreme Court in the case of Surekha v/s.
Santosh [2020 ACJ 2156] as well as judgment of Co-ordinate
Bench in case of GSRTC v/s. Jenil Shaileshkumar Vaghela
[First Appeal No.4098 of 1996] submit that the claimant can
seek enhancement of compensation without filing cross-
objection seeking enhancement of compensation. He would
further submit that it is the duty of the Court to grant just, fair
and equitable compensation which may not be a bonanza, but
should not be pittance. It is further submitted that it is duty of
learned Tribunal to place the victim of road accident as far as
possible to the stage prior to road accident by awarding just
compensation. He would further submit that in the present case,
claimant was serving as a driver in the GMDC, on account of
road accident has lost his left leg above knee. It is submitted
that said fact is unquestionable and because of amputation,
claimant could not do the work which he was doing prior to road
accident and thus, claimant sustained and suffered 100%
functional disability. It is also submitted that learned Tribunal
instead has taken 80% functional disability and thereby,
committed serious error.
9.2. It is further submitted by learned advocate Mr.Bhalodi that
learned Tribunal for no reasons applied multiplier of 5,
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application of such multiplier is in teeth of law laid down by
Hon’ble Supreme Court in the case of National Insurance
Company Ltd. v/s. Pranay Sethi [2017 (16) SCC 680]. He
would further submit that there is no reason to apply the split
multiplier on the ground that the claimant was government
employee and continued to work after road accident. It is
submitted that approach of learned Tribunal run counter to
principle of just, fair and equitable compensation. Thus, he
submits to apply appropriate multiplier considering the fact that
claimant proved to be aged between 40 to 45 years and lastly,
he submitted that there was no reason to deny loss of future
prospects as grant of future prospects is integral part of just
compensation. Learned advocate Mr. Bhalodi also seeks
enhancement of the compensation on conventional head as
claimant has suffered amputation on left leg above knee.
9.3. Mainly upon above submissions, learned advocate
Mr.Bhalodi submitted to dismiss appeal filed by the insurance
company and to enhance the amount of compensation by
invoking Order 41 Rule 22 read with Rule 33 of the Code of Civil
Procedure, 1908.
10. Regard being had to rival submissions of both sides and
considering the evidence on record, at the outset let go through
the findings of learned Tribunal recording contributing
negligence in the ratio of 25% and 75% between claimant and
driver of Santro car.
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11. Learned Tribunal at Exh.24 framed issues and out of
issues, issue no.1 is in regards to rash and negligent on the part
of driver of vehicles involved in the road accident reads as under
:-
“1. Whether it is proved that claimant sustained injuries
on account of rashness and negligence on the part of the
driver of the vehicle involved in the accident ?”
11.1. Finding of aforesaid issue is recorded in para 8 to 12, it
reads as under (it is in Gujarati language, for better
understanding, it is translated in English) : -
“8. To prove this issue, the Petitioner has produced
his deposition in the form of an affidavit vide Exhibit-25, and
in that deposition, he has given deposition corroborating
with his application, he has stated that on dated
30/07/2010, after finishing the day from his job, he was
heading towards his home on his motorcycle bearing
registration No. GJ-16-AM-6244. At that time, Respondent
No. 1 came driving his Santro car bearing registration No.
GJ-16-AA-1848 at full speed, negligently, and in a manner
that endangers human life, on the wrong side, and caused a
serious accident with the Petitioner's motorcycle, causing
serious injuries to the Petitioner's left leg as well as on the
waist portion. Hence, after giving primary treatment at
Jayaben Modi General Hospital located at Ankleshwar, he
was treated as an indoor patient for a very long period at
Narhari Amin General Hospital located at Vadodara, and
during that period, owing to very severe injuries sustained
on his left leg, his left leg was amputated and cut off from
above the knee, and treatment was also given for the
injuries caused to the waist.
In the cross-examination conducted for the
Respondent No. 3 in this regard, he has admitted that at the
time of the accident, he himself was riding the motorcycle.
He admits that his brother Babu was following him in his
Jeep. He states that at the time of the accident, he was
going from Jhagadia towards Rajpipla. He admits that when
he reached near the crossroad, the Santro car came from the
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opposite direction. He states in denial that it is not true that
he collided with the incoming car from the front as a cow
came onto the road.
Thus, upon reading the Petitioner’s deposition, it
becomes evident that at the time of the incident, while riding
the motorcycle on his own side towards Rajpardi, when he
reached near the crossroad, i.e., near Rajpardi village, the
Santro car came from the opposite direction and caused the
accident.
9. Now, looking at the documentary evidence
produced on behalf of the Petitioner in this regard, a copy of
the F.I.R. registered at the Jhagadia Police Station regarding
the accident has been produced vide Exhibit-26. Looking at
it, the complaint has been lodged by Babu Mansang Vasava,
the son of the Petitioner's uncle. Upon reading the said
complaint, it appears that the complainant witnessed the
accident. In his deposition, he has stated that on dated
30/07/2010, at around 4:30 in the evening, he set out
towards Rajpardi for work in his Bolero Jeep, and as he had
some work near the Madhupura Railway Crossing, he was
standing there; at that time, his uncle's son Anil Kanji
Vasava, riding the motorcycle involved in the accident, met
him and stated that he was going as he had work in the
market, whereupon he (the complainant) also followed him
in his car. Around five o'clock in the evening, as they were
approaching the road leading to Rajpardi Alkapuri, the
driver of the Santro car which was involved in the accident
came from the opposite direction of Rajpardi crossroad
driving at full speed on the wrong side and collided with his
brother's motorcycle, due to which his brother was knocked
down onto the road, and the driver of the Santro car fled
away upon leaving the car right there; and he stopped his
car, went to his brother and saw that the bone of his
brother's left leg below the knee was broken and flesh had
protruded , the index finger of the left hand was separated /
detached, and he had sustained blunt trauma injuries on
the back side of the head and on the waist part, whereupon
an ambulance of Rajpardi G.M.D.C. was called and he was
taken to Jayaben Modi Hospital at Ankleshwar for
treatment, and from there he was taken to Vadodara and
admitted to Narhari Amin Hospital for further treatment;
where, after treating his brother, his left leg was cut off from
above the knee, and the doctor also informed that there was
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a fracture in the vertebrae in the waist region.
10. Now, the Panchnama of the scene of the offense
prepared by the investigating officer in the said criminal
case has been produced on behalf of the Petitioner vide
Exhibit-27. Looking at it, while going from East to West on
the Ankleshwar–Rajpipla route, the place of accident is
situated near the northern edge of the road, 10 meters on
the road leading towards Rajpardi Alkapuri Society on State
Highway No. 64. At the said place, the motorcycle involved
in the accident is lying facing South and its right side is
touching the ground/road. It appears that the leg guard,
gear, left–right side fairings/panels, and left side seat of the
said motorcycle have sustained damage. About three feet to
the East of the said motorcycle, the Santro car involved in
the accident is standing facing the North-West corner. On the
front portion of the said car, the sheet metal of the bonnet on
the left-side corner is crushed, the front left-side fiber
bumper is broken, the side signal light is broken and dried
stains resembling blood are seen beside the light, the front
large windshield glass is broken, and the glass of the front-
rear doors on both sides as well as the rear glass are
broken. Looking at the panchnama, it also appears that it
had rained at the said place. Looking at the boundaries of
the said Place of Offence, to the East of the Place of Offence
is Rajpardi Crossroad at approximately 150 meters, to the
West is open road, to the North is open fallow land beyond
open parking space, and to the South, beyond State
Highway No. 64 running East-West, is parking space, to the
East of which, at 10 meters, is the road leading into
Rajpardi Alkapuri Society.
11. Thus, looking at the complaint produced vide
Exhibit-26, the complainant's statement that around five
o'clock in the evening, near the road leading to Rajpardi
Alkapuri, the driver of the Santro car involved in the accident
came from the opposite direction of Rajpardi Crossroad
driving at high speed on the wrong side and collided with
his brother's motorcycle, is not supported by the panchnama
of the Place of Offence produced vide Exhibit-27. Looking at
the panchnama, it appears that the scene is situated near
the northern edge of the road, 10 meters on the road leading
towards Rajpardi Alkapuri Society on State Highway No. 64
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running East-West.
In this regard, the learned advocate for the
Petitioner has made submissions in his written argument
vide Exhibit-42 in accordance with his application and
complaint, whereas the learned advocate for Respondent No.
3 has argued in his written arguments vide Exhibit-43
stating that, looking to the panchnama, the motorcycle
collided with the bumper on the left side of the car. Looking
at it, it is clearly apparent that the motorcycle rider came
onto the wrong side of the car and collided head-on. Had the
car collided head-on with the motorcycle, the damage would
have occurred on the right side of the car, that is, on the
driver's side. Therefore, the motorcycle rider was driving
negligently; hence, 25% contributory negligence ought to be
attributed to the motorcycle rider.
Thus, it is my view that the discussion held
above regarding the panchnama vide Exhibit-27 supports
the submission made by the learned advocate for
Respondent No. 3. Because it is natural that when there is
an East-West road and a person comes on his motorcycle
from East to West, and if a vehicle coming from the West
comes on the wrong side and causes an accident, then his
motorcycle should have been lying on the South side, and
damage should have occurred on the driver's side of the
vehicle coming from the West. But in the present case,
looking at the panchnama produced, as discussed above, it
appears that the motorcycle was lying on the North side and
the Santro car sustained damage on the left side. Therefore,
the Petitioner's deposition on oath vide Exhibit-25 as
mentioned above is corroborated by the facts of the
complaint produced vide Exhibit-26, but the deposition of the
Petitioner and the facts of the complaint do not find support
from the panchnama of the Place of Offence produced vide
Exhibit-27, and the submission made on behalf of
Respondent No. 3 finds support. Therefore, regarding the
said incident, it is held that there was negligence and
carelessness on the part of the drivers of both vehicles.
12. Now, looking into the injuries sustained by the
Petitioner in the said accident, the Petitioner has stated in
his deposition that he sustained the injuries as discussed
above. In this regard, upon conducting cross-examination by
the learned advocate for Respondent No. 3, the Petitioner
has admitted that due to the accident his leg had to be
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amputated and an artificial limb had to be fitted. In this
connection, looking at the information regarding the medico-
legal case given by Narhari Amin Hospital to the Vadodara
Police Station produced on behalf of the Petitioner vide
Exhibit-31, it appears that the Petitioner sustained the
injuries as stated by him in his deposition. Looking at the
discharge card of Narhari Amin Hospital produced by the
Petitioner in this case at Exhibit-35, 36, it appears that the
Petitioner's left leg was amputated from above the knee and
an injury was caused to the middle finger of the left hand.
Thus, as discussed above, it is proved that the
accident occurred due to 25% negligence and
carelessness of the motorcycle rider/Petitioner and
75% negligence and carelessness of Respondent No. 1 ,
the driver of the Santro car, and that the Petitioner sustained
injuries as discussed above. Therefore, Issue No. 1 is
answered accordingly in the "affirmative."
12. Upon perusal of aforesaid reasoning, it is noticeable that the
Santro car driver, for no reasons, did not appear in the witness
box and even chose not to contest the claim petition or to deny
allegations of negligence leveled against him. The claimant, who
is an eye-witness to the road accident, entered the witness box
at Exh.25. In his examination-in-chief, he leveled allegations
against the Santro car driver for causing the accident. During
cross-examination, he was asked whether the accident occurred
at a crossroads, to which he answered in the affirmative. He was
then asked whether a cow suddenly appeared on the crossroads
and collided with the car, which he denied. Besides this oral
evidence on record, the learned Tribunal considered the site
panchnama along with the claimant's oral testimony and drew
an adverse inference against the Santro car driver for failing to
enter the witness box and withholding the best evidence. The
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Tribunal assessed and computed the contributory negligence in
ratio of 25% and 75% between the claimant and the Santro car
driver. I see no reason to disturb such a finding, as it is well-
reasoned, deserves to be sustained, and is accordingly upheld.
13. Apt to note that claimant has accepted ratio of negligence.
He has not filed any appeal challenging findings in regards to
apportionment of contributory negligence.
14. Next question is whether claimant is entitled to seek
enhancement in compensation.
15. It is true that claimant has not filed any appeal seeking
enhancement in compensation, nevertheless, it is duty of the
Court dealing with the claim petition under section 166 or 163A
of the Motor Vehicles Act to compute just and fair compensation
as it is a statutory command flowing from section 168 of the
Motor Vehicle Act.
16. At this juncture, worthy reference is made to judgment In
the case of N.K.V.Bros.Private Limited Versus M.Karumai
Ammal [1980 (3) SCC 457] , whereby, the Hon'ble Apex Court in
para 3 has observed as under :-
"3. Road accidents are one of the top killers in our country,
specially when truck and bus drivers operate nocturnally.
This proverbial recklessness often persuades the Courts, as
has been observed by us earlier in other case, to draw an
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initial presumption in several cases based on the doctrine of
res ipsa loquitur. Accidents Tribunals must take special care
to see that innocent victims do not suffer and drivers and
owners do not escape liability merely because of some doubt
here or some obscurity there. Save in plain cases, culpability
must be inferred from the circumstances where it is fairly
reasonable. The Court should not succumb to niceties,
technicalities and mystic maybes. We are emphasising this
aspect because we are often distressed by transport
operators getting away with it thanks to judicial laxity,
despite the fact that they do not exercise sufficient
disciplinary control over the drivers in the matter of careful
driving. The heavy economic impact of culpable driving of
public transport must bring owner and driver to their
responsibility to their "neighbour". Indeed, the State must
seriously consider no-fault liability by legislation. A second
aspect which pains us is the inadequacy of the
compensation or undue parsimony practised by tribunals.
We must remember that judicial tribunals are State organs
and Art. 41 of the Constitution lays the jurisprudential
foundation for state relief against accidental disablement of
citizens. There is no justification for niggardliness in
compensation. A third factor which is harrowing is the
enormous delay in disposal of accident cases resulting in
compensation, even if awarded, being postponed by several
years. The States must appoint sufficient number of
tribunals and the High Court should insist upon quick
disposals so that the trauma and tragedy already sustained
may not be magnified by the injustice of delayed justice.
Many States are unjustly indifferent in this regard."
17. In the case of V. Pathmavathi and Ors. v/s. Bharthi Axa
General Insurance Co. Ltd. [2026 SCC OnLLine SC 158]
summarized the position of law and observed as under :-
“12. We ought to remind ourselves, at the outset, that when
an individual dies as a result of a fatal road accident and
his distressed dependents apply for compensation either
from the owner of the vehicle responsible for the death or the
insurance company with whom such vehicle is insured, no
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amount of money can truly compensate for the loss.
Compensation is nothing but a rough estimate, being a token
attempt to ease the financial burden on the dependents.
Take consortium, for example. It is impossible to put a price
on the loss of a loved one's companionship. Spousal, filial or
parental compensation are all about acknowledging the
emotional void but the payout can never be more than a
rough approximation. It is like trying to measure the
immeasurable. Considering the income of the deceased, the
needs of his dependents and the emotional toll of the loss,
the best that can be ensured is that the compensation is fair
and reasonable, without being either arbitrary or niggardly.
This would be in accord with the foundational principle
governing the determination of “just compensation” under
Section 168 of the Act.
13. In Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65], a
three-Judge Bench of this Court held that the purpose of
award of compensation under section 166 read with section
168 of the Act is to place the distressed dependents of the
victim of a fatal road accident, if the victim had been the sole
bread earner, in almost the same position financially if he
lived his natural span of life. It is obviously not intended to
put such distressed dependents in a better financial position
in which they would otherwise have been if the accident had
not occurred. At the same time, the determination of
compensation is not an exact science and the exercise
involves an assessment based on estimation and
conjectures, here and there, as many imponderable factors
and unpredictable contingences have to be taken into
consideration. Obviously, award of damages in 5Nature of
business would also include businesses and professions
where negative income in the initial years is common and
does not reflect the true financial standing of the individual.
6(2018) 3 SCC 686 72026 SCC OnLine SC 158 3 each case
would depend on the particular facts and circumstances of
the case but the element of fairness in the amount of
compensation so determined is the ultimate guiding factor.”
18. After considering settled objective behind claim proceeding
in Motor Vehicles Act, let me also refer the judgment of the Apex
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Court in case of Surekha (supra) to sustain the finding that the
claimant even in absence of filing cross appeal or objection
under Order 41 Rule 22 read with Rule 33 can seek
enhancement of the compensation in an appeal filed by the
insurance company. Hon’ble Supreme Court in the case of
Surekha (supra) disapproved the finding of High Court to
decline to grant enhanced compensation merely on the ground
that claimants failed to file cross appeal. Finding and
observation of Hon’ble Apex Court in Para 2 and 3 of said
judgment reads as under :-
“2. This appeal takes exception to the judgment and order
dated 04.01.2019 passed by the High Court of judicature at
Bombay, Bench at Aurangabad in First Appeal No. 2564 of
2016, whereby the High Court, even though agreed with the
stand of the appellants that just compensation amount ought
to be Rs. 49,85,376/- (Forty-Nine Lakh Eighty-Five
Thousand Three Hundred Seventy-Six Only), however,
declined to grant enhancement merely on the ground that
the appellants had failed to file cross-appeal.
3. By now, it is well-settled that in the matter of insurance
claim compensation in reference to the motor accident, the
court should not take hyper technical approach and ensure
that just compensation is awarded to the affected person or
the claimants.”
19. Co-ordinate Bench of this Court in the case of GSRTC
(supra) also held that cases relating to claim for compensation
under Motor Vehicle Act, the Tribunal is required to award just
compensation and appeal is continuation of original proceeding
and thus it is the duty of the appellate Court to award just
compensation. Para 12 and 13 of the said judgment reads as
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under :-
“12. It may be noted that the present appeal has been
preferred by the Corporation, whereas the claimant has not
preferred any appeal, nor has he filed any cross objection. In
this regard, reference may be made to the provisions of rule
33 of Order XLI of the Code of Civil Procedure, 1908, which
lays down that the appellate court shall have power to pass
any decree and make any order which ought to have been
passed or made and to pass or make such further or other
decree or order as the case may require, and this power
may be exercised by the court notwithstanding that the
appeal is as to part only of the decree and may be exercised
in favour of all or any of the respondents or parties, although
such respondents or parties may not have filed any appeal
or objection and may, where there have been decrees in
cross-suits or where two or more decrees are passed in one
suit, be exercised in respect of all or any of the decrees,
although an appeal may not have been filed against such
decrees. Thus, when circumstances exist which necessitates
the exercise of discretion conferred by rule 33 of Order XLI of
the Code, it is always permissible for the court to exercise its
powers thereunder. In this connection, reference may be
made to the decision of a Division Bench of this court in the
case of Oriental Fire and General Insurance Co. Ltd. v.
Amarsingh Pratapsingh Siklikar and another, (1993) 1 GLH
354, wherein the court while dismissing the appeal of the
insurance company, in the absence of cross-objection
enhanced the rate of interest by resorting to the provisions of
rule 33 of Order XLI of the Code.
13. Besides, it is by now well settled that in cases relating to
claims for compensation under the Act, the Tribunal is
required to award just compensation. The appeal is a
continuation of the original proceedings, and it is the duty of
the appellate court to ensure that just compensation is
awarded to the claimants. When it has come to the notice of
the court that the award is not in consonance with the law
laid down by the Supreme Court in this regard, it is the duty
of the court to ensure that just compensation is awarded to
the claimant despite the fact that he has not preferred any
appeal or filed any cross-objection challenging the impugned
judgement and award. In this connection, reference may be
made to the decision of this court in the case of
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Shaileshkumar Shantilal Gandhi and another v. Sunil
Babulal Dixit and others, 2013 (3) GLR 1841.”
19.1. If the aforesaid dictum is considered, it is applicable to the
facts of the case, as it is evident that the learned Tribunal has
committed a serious and manifest error in taking the functional
disability as 80% instead of 100% in a case of amputation of the
claimant’s left leg above the knee. The claimant, admittedly prior
to the road accident, was serving as a driver in GMDC. There is
no logic in applying multiplier of 5 on the ground that the
claimant continued in job other than the job which he was doing
prior to the road accident, and the Tribunal ignored to grant of
loss of future prospects for computing just, fair, and equitable
compensation. Furthermore, it appears that the Tribunal,
instead of adopting Section 168 of the Motor Vehicles Act, stuck
to technicalities and stinted in granting compensation, which is
tightfisted and pain-pinched.
20. In the case of M.Paramesh v/s. VRL Logistics Ltd. [2026
Live Law (SC) 641] , Hon’ble Supreme Court, in a case of loss of
right leg above knee, assessed 100% functional disability, in that
case claimant was working as mason. Para 20 to 26 of the said
judgment reads as under :-
“20. The disability certificate issued by the competent
authority assessed the permanent disability suffered by the
appellant at 70%. The Tribunal as well as the High Court
proceeded on the basis of the said physical disability and
accordingly assessed the loss of earning capacity at 70%.
However, in our considered view, both the Courts below
failed to examine the aspect of functional disability suffered
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by the appellant in the peculiar facts of the present case.
21. In Raj Kumar vs. Ajay Kumar and Another6 , this Court
has elaborately explained the distinction between physical
disability and functional disability and has held that for the
purposes of determining compensation, the effect of the
permanent disability on the earning capacity of the injured
is the relevant consideration. The relevant observations are
reproduced hereinbelow:
“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 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
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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
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
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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) 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.” (emphasis supplied)
22. From the above observations in Raj Kumar (supra), it
becomes crystal clear that though the physical disability
may be assessed at a particular percentage, the functional
disability affecting earning capacity may, depending upon
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the nature of avocation carried on by the injured, be
assessed at a higher percentage including 100%. The
assessment of compensation in cases of permanent
disability cannot be undertaken by mechanically applying
the percentage of physical disability as the percentage of
economic loss.
23. There is no dispute with regard to the fact that the
appellant was working as a mason at the time of the
accident. The work of a mason is essentially a physical and
manual avocation requiring continuous use and support of
both legs. The material on record further reveals that on
account of the injuries suffered in the accident, the appellant
underwent amputation of his right leg above the knee.
24. By virtue of the aforesaid amputation, the appellant has
effectively lost his capacity to continue the work of a mason
which was admittedly the sole avocation being pursued by
him for earning his livelihood. It is not even the case of the
respondents that the appellant was engaged in any other
sedentary occupation or that despite the amputation
suffered by him, his earning capacity remained unaffected.
25. The amputation of the right leg above the knee has not
merely caused physical disability to the appellant but has
rendered him incapable of effectively carrying on the manual
and physical work which constituted his only source of
livelihood. In such circumstances, restricting the loss of
earning capacity to 70% merely on the basis of physical
disability would not be justified.
26. Having regard to the nature of avocation carried on by
the appellant, the extent of injuries suffered by him and the
principles laid down by this Court in Raj Kumar (supra), we
are of the considered opinion that the functional disability
suffered by the appellant is required to be assessed at 100%
and not at 70% as assessed by the Tribunal and affirmed by
the High Court. Consequently, the loss of earning capacity
suffered by the appellant deserves to be computed by
treating the functional disability at 100%. Taking the
monthly income of the appellant at Rs. 12,000/- with
addition of 40% towards future prospects and applying the
multiplier of ‘17’ as adopted by the Courts below, the
compensation payable towards loss of earning capacity is
recalculated accordingly.”
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21. Recently, Hon’ble Apex Court in the case of Sunil Kumar
(Totally Disable Rep. By wife) v/s Iffco Tokio General
Insurance Company Ltd. [2026 INSC 1145] held that if person
requires attendant throughout his life post accident, his
functional disability deserves to be taken at 100%. Finding of
Hon’ble Apex Court in para 5.1.3 to 5.1.8 reads as under :-
“5.1.3 Therefore, even though the Medical Board certified the
medical disability to be 75.5%, the functional effect can be
said to be debilitating for the appellant to the extent of
100%. One who remains dependent on another and requires
an attendant throughout his life can be said to be suffering
from 100% functional disability. The appellant would not be
able to do his own work, much less engage in earning
activity for himself and his family, leading to total loss of
working capacity.
5.1.4 In Shankar Dutt vs. United India Insurance Co. Ltd.
and Others [2026 SCC Online SC 1193] , this Court
elaborated the concept of permanent disability, highlighting
the components thereof, the prime of which is loss of earning
capacity. The claimant, who becomes partially or completely
disabled and lose forever the capacity to earn, is a
permanently disabled person, and the amount of
compensation on the said count has to be determined in
such context.
5.1.5 The Court drew the distinction between medical
disability and functional disability,
‘A conceptual distinction has to be drawn between the
medically certified disability resulting out of physical injury
or impairment on one hand, and the long-term repercussions
on the injured, on his or her life and activities on the other
hand. The functional disability is one which is suffered and
felt by the injured in his day-to-day life or in his avocation,
occupation, business or profession.’ (Para 5.6.1)
5.1.5 (a) It was further observed,
‘The medical opinion may have suggested that physical
impairment on account of the injury is to a particular extent,
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however its functional effect may be greater. In fact, it could
be reasonable to state that the functional incapacity
resulting out of a particular bodily injury, which may be
impairment or amputation, would be higher and greater than
what may be medically perceived.’ (Para 5.6.2)
5.1.5 (b) The Court next explained,
‘When it comes to assessing the compensation in the context
of the injury suffered, what matters is the extent by which
the functions of an injured person suffers, and not what the
doctor may have judged in terms of medical standards. The
functional aspect of the disability arising out of injury has
correlation with the age of the injured, his occupation,
engagement in work or avocation, the adversarial effect on
the earning capacity of the injured, which would again
depend upon the nature of work or earning activity with
which and in which the injured is engaged and such other
relevant considerations.’ (Para 5.6.3)
5.1.6 In Jithendran vs. New India Assurance Co. Ltd. and
Another [(2022) 15 SCC 620] , this Court emphasised for
taking realistic approach while assessing the permanent
disability, ‘The courts should strive to provide a realistic
recompense having regard to the realities of life, both in
terms of assessment of the extent of disabilities and its
impact including the income generating capacity of the
claimant. In cases of similar nature, wherein the claimant is
suffering severe cognitive dysfunction and restricted
mobility, the courts should be mindful of the fact that even
though the physical disability is assessed at 69%, the
functional disability is 100% insofar as the claimant's loss of
earning capacity is concerned.’ (Para 14)
5.1.7 In Reliance General Insurance Co. Ltd. vs. Priyanka
Das and Others [2026 SCC Online SC 1760] , the Court again
highlighted the concept of functional disability as under,
‘The calculation of functional disability depends on
assessing the victim's earning capacity in the open,
competitive market, rather than on retention in a specific,
highly accommodated role. Evidence before the High Court,
specifically the Career Growth Letter dated 06.02.2018 from
her employer, confirmed that the Claimant lost out on her
normal career growth and promotional progression,
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including advancement to the positions…’ (Para 19)
5.1.8 Therefore, because of the injuries, the appellant
became permanently disabled and effectively stood deprived
of his earning capacity in open competitive market. The
distinction between medical disability and functional
disability, as highlighted from the decision in Shankar Dutt
(supra), applies for arriving at the functional disability in the
present case also. In Jithendran (supra), this Court
underlined the need to adopt a realistic approach for arriving
at the figure of permanent disability, which principle would
also equally apply.”
22. In the case on hand, admittedly, the claimant, who was
serving as a driver in a GMDC prior to the road accident, lost his
left leg above the knee as it was amputated on account of the
road accident, as can be seen from the discharge cards at
Exh.34 and Exh.36, and as much from the disability certificate
at Exh.47. It is evident that said injury may not have any future
physical aftermath effect, but it has incapacitated the claimant
from doing his job as a driver which he was doing prior to the
road accident. The learned Tribunal relied upon the pursis filed
by the learned advocates appearing for both sides to adopt 80%
functional disability instead of assessing the functional disability
on the basis of evidence, more particularly when the claimant
was a driver and lost his employment on account of the
accidental injury. It is reasonable to take functional disability at
100%, as the claimant has been deprived of his avocation which
he was carrying on prior to the road accident. I am at a loss as to
under which pretext and under what consideration the learned
Tribunal adopted multiplier of 5; it would be totally unjustified to
adopt multiplier of 5 on the ground that the claimant continued
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his job subsequent to the road accident. The learned Tribunal
lost sight of the factum that the claimant, who was working as a
driver prior to the accident, lost his job, and for survival he had
to do some other work and continued earning capacity, and
therefore, he has not suffered a loss of income. Such an
approach by the learned Tribunal completely runs counter to the
very principle of granting just, fair, and equitable compensation.
The claimant was aged between 40 and 45 years at the time of
the road accident, and it attracts a multiplier of 14 as per the
judgment in the case of Pranay Sethi (supra) .
23. In the case of V.Pathmavathi (supra) , Hon’ble Supreme
Court held that concept of future prospects is integral
component of just compensation and is not confined only to
those in permanent government employment. Para 17 of the said
judgment reads as under :-
“17. Equally significant is the High Court’s omission to
consider grant of any amount towards future prospects.
Assessment of income and the grant of future prospects are
not matters of judicial discretion in the abstract but are now
firmly structured by authoritative precedents. Having regard
to the decision in Pranay Sethi (supra), the law on this
aspect is no longer res integra. The Constitution Bench
clarified therein that the concept of future prospects is an
integral component of “just compensation” and is not
confined only to those in permanent government
employment. While this Court in Sarla Verma v. DTC15
adopted a structured approach, Santosh Devi v. National
Insurance Co. Ltd16 marked a jurisprudential shift by
recognising the economic realities faced by self-employed
persons and those on fixed salaries. Although Santosh Devi
(supra) was later held not to be a binding precedent on
account of judicial discipline, the Constitution Bench in
Pranay Sethi (supra) itself incorporated, refined and
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standardised the principle of future prospects for such
categories by holding as follows:
59.1. The two-Judge Bench in Santosh Devi [Santosh Devi v.
National Insurance Co. Ltd., (2012) 6 SCC 421] should have
been well advised to refer the matter to a larger Bench as it
was taking a different view than what has been stated in
Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121], a
judgment by a coordinate Bench. It is because a coordinate
Bench of the same strength cannot (2009) 6 SCC 121 (2012)
2 SCC 421 take a contrary view than what has been held by
another coordinate Bench.
59.2. As Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54]
has not taken note of the decision in Reshma Kumari
[Reshma Kumari v. Madan Mohan , (2013) 9 SCC 65], which
was delivered at earlier point of time, the decision in Rajesh
[Rajesh v. Rajbir Singh, (2013) 9 SCC 54] is not a binding
precedent.
59.3. While determining the income, an addition of 50% of
actual salary to the income of the deceased towards future
prospects, where the deceased had a permanent job and
was below the age of 40 years, should be made. The
addition should be 30%, if the age of the deceased was
between 40 to 50 years. In case the deceased was between
the age of 50 to 60 years, the addition should be 15%.
Actual salary should be read as actual salary less tax.
59.4. In case the deceased was self-employed or on a fixed
salary, an addition of 40% of the established income should
be the warrant where the deceased was below the age of 40
years. An addition of 25% where the deceased was between
the age of 40 to 50 years and 10% where the deceased was
between the age of 50 to 60 years should be regarded as
the necessary method of computation. The established
income means the income minus the tax component.
59.5. For determination of the multiplicand, the deduction for
personal and living expenses, the tribunals and the courts
shall be guided by paras 30 to 32 of Sarla Verma [Sarla
Verma v. DTC, (2009) 6 SCC 121] which we have
reproduced hereinbefore.
59.6. The selection of multiplier shall be as indicated in the
Table in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC
121] read with para 42 of that judgment.
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59.7. The age of the deceased should be the basis for
applying the multiplier.
59.8. Reasonable figures on conventional heads, namely,
loss of estate, loss of consortium and funeral expenses
should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively.
The aforesaid amounts should be enhanced at the rate of
10% in every three years.”
24. In the present case, claimant who is in government
employee is entitled to 30% towards loss of future prospects.
25. Apart from the above findings, what further is required is to
rationalize the compensation under the conventional heads. The
learned Tribunal did not consider that the claimant has lost his
left leg on account of the road accident, and an amputation
causes unbearable pain for long time and subjecting the person
to everlasting suffering. The expenses for an artificial limb has to
be imagined and is required to be compensated in terms of
money.
26. Under the aforesaid circumstances, re-computation of just
and fair compensation would be as under, which the claimant/s
is/are entitled to get : -
Particulars Amount (Rs.)
Future loss of income
81,76,462/-
Rs.4,49,256/- per year + 30% future
prospects = Rs.5,84,033/- and considering
100% disability and 14 multiplier, total
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amount would be Rs.81,76,462/-
Pain, shock and suffering 2,00,000/-
Actual loss of income ----
Medical expenses 4,55,000/-
Special diet, Attendant charges, and
50,000/-
transportation.
Artificial limb 2,00,000/-
Loss of amenities 1,50,000/-
Total… 92,31,462/-
Less : 25% Negligence of claimant 23,07,865/-
Less : Amount which is already awarded by
18,14,138/-
Tribunal
Additional amount which is awarded 51,09,459/-
27. Therefore, I hold that the claimant/s is entitled to get
enhanced amount of compensation of Rs.51,09,459/- with 9%
p.a. interest from the date of filing the claim petition till its
realisation, which would meet the ends of justice. Rest of the
direction(s) of the Tribunal remain same.
28. For the reasons recorded above, the following order is
passed.
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28.1 The appeal filed by insurance company is dismissed.
28.2 The Insurance Company is directed to deposit the
enhanced amount of compensation as stated herein above before
the concerned Tribunal, within a period of nine weeks from the
date of receipt of this order.
28.3 The Tribunal shall disburse the entire awarded
amount including amount lying in the FDR and/or with the
Tribunal, with accrued interest thereon, if any, to the
claimant/s, by account payee cheque / NEFT / RTGS, after
proper verification and after following due procedure.
28.4 While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
28.5 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(J. C. DOSHI,J)
SATISH
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