BABULAL POPATBHAI BAGSARIYA vs MAMAD ABABHAI SUMRA

C/FA/4186/2009 (GJHC240398982009) JUDGMENT DATED: 24/08/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4186 of 2009

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

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Approved for Reporting Yes No
✔
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BABULAL POPATBHAI BAGSARIYA
Versus
MAMAD ABABHAI SUMRA & ORS.
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Appearance:
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

Date : 24/08/2026

ORAL JUDGMENT
1. The captioned appeal is preferred against the impugned
judgment and award dated 06.12.2007 passed by the learned
rd
Presiding Officer, 3 Fast Track Court, Gondal Camp at
Upleta in M.A.C.P. No. 548 of 1998, whereby the learned
Tribunal has partly allowed the claim petition and awarded a
sum of Rs.4,24,018/- (Rupees Four Lacs Twenty Four
Thousand Eighteen Only) along with interest at the rate of
10% per annum, from the date of filing of the claim petition
till realization.
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C/FA/4186/2009 (GJHC240398982009) JUDGMENT DATED: 24/08/2026
2. The succinct facts, which lead to the filing of the
captioned appeal are summarized as under :-
i. On 31.05.1998, Babulal Popatbhai Bagsaria was
proceeding towards Pujarivav along with his two
minor sons on a Bajaj Scooter bearing
Registration No. GJ-11P-2192, which belonged to
his relative. When they reached the place of the
accident, Opponent No. 1 came from the
opposite direction while driving Truck bearing
Registration No. GJ-9T-5842 in a rash and
negligent manner, at an excessive speed and on
the wrong side of the road, while overtaking
another vehicle, and dashed the said truck
against the scooter being ridden by Babulal
Popatbhai Bagsaria. As a result of the said
accident, Babulal Popatbhai Bagsaria and his
two minor sons sustained grievous injuries.

ii. The notices/summons of the Claim Petition were
duly served upon the opponents. The opponent
nos.1 & 2 have chosen not to appear before the
learned Tribunal, however, opponent no.3-
Insurance Company appeared and filed Written-
Statements at Exhs.14 & 19, thereby, denying
the averments made in the claim petition in toto.
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C/FA/4186/2009 (GJHC240398982009) JUDGMENT DATED: 24/08/2026
iii. Having considered the pleadings of the parties,
the learned Tribunal framed the following issues
at Exh.21, for determination.
i. Whether the applicant proved that the
accident dated 31.05.1998 occurred due
to rash and negligent driving of the
offending vehicle as alleged?
ii. Whether the applicant received injuries
as a result of rash and negligent act on
the part of the driver of the offending
vehicle as alleged?
iii.Whether the applicant is entitled to get
the compensation as claimed in
application?
iv. Who are the liable to pay compensation?
v. Whether the claimant proves that he
sustained damages motorcycle due to
rash and negligent driving of offending
vehicle by the driver?
vi. What order and award?
iv. Having considered the oral as well as
documentary evidence on record and having
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C/FA/4186/2009 (GJHC240398982009) JUDGMENT DATED: 24/08/2026
considered the submissions of the learned
counsels for the parties, the learned Tribunal
has partly allowed the claim petition and
awarded a sum of Rs.4,24,018/- (Rupees Four
Lacs Twenty Four Thousand Eighteen Only)
along with interest at the rate of 10% per
annum, from the date of filing of the claim
petition till realization.
v. Being aggrieved and dissatisfied by the
impugned judgment and award, the appellant-
Insurance Company preferred the present
appeal challenging impugned Judgment and
award.
3. Heard learned counsels for the parties.
4. Mr. Tushar Sheth, learned advocate appearing on behalf
of the original claimant-appellant herein vehemently
submitted that at the time of the accident, the claimant-
appellant was aged about 40 years and was employed as a
Teacher in a Government School, earning a monthly salary of
Rs.7,026/-. However, the learned Tribunal assessed the
monthly income of the claimant-appellant at Rs.6,646/-. It is
submitted that the claimant-appellant was also engaged in
supervising agricultural activities and was earning income
therefrom. However, the learned Tribunal failed to take into
consideration the agricultural income earned by the claimant-
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C/FA/4186/2009 (GJHC240398982009) JUDGMENT DATED: 24/08/2026
appellant. It is submitted that the learned Tribunal ought to
have considered the income derived by the claimant-appellant
from both sources at the time of the accident while assessing
his total income. It is submitted that as the claimant-appellant
was aged about 40 years at the time of the accident, the
learned Tribunal ought to have considered the 50% of the
monthly income on account of future prospects of the
claimant-appellant.
5. It is submitted that though the claimant-appellant was
aged about 40 years, however, the learned Tribunal has
applied the multiplier of 5 instead of 15. In support of his
contentions, he has placed reliance upon the judgments of
Hon ’ ble Apex Court rendered in the case of National
Insurance Company Ltd. Vs. Pranay Sethi reported in 2017
(16) SCC 680 and Preetha Krishnan & Ors. Versus United
India Insurance Co.Ltd. & Ors. Reported in 2025 SCC Online
SC 2365.
6. It is submitted that the learned Tribunal has awarded a
meager amount of compensation under the head of pain,
shock and suffering despite the fact that the claimant-
appellant remained bedridden for a period of more than eight
months on account of the injuries sustained in the accident. It
is submitted that as a consequence of the injuries sustained in
the said accident, the right leg of the claimant-appellant has
been shortened by one inch. However, the learned Tribunal
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C/FA/4186/2009 (GJHC240398982009) JUDGMENT DATED: 24/08/2026
has failed to award any amount of compensation under the
head of loss of amenities of life.
7. It is submitted that the claimant-appellant has produced
on record the medical bills to the tune of Rs.1,65,720/-,
however, the learned Tribunal had awarded a sum of
Rs.1,50,000/- under the said head.
8. It is submitted that the learned Tribunal had awarded a
meager amount of compensation under the head of special
diet, transportation and attendance charges. He, therefore,
prayed for enhancement of compensation.
9. It is submitted that the learned Tribunal has deducted
30% of the awarded amount towards the alleged contributory
negligence of the claimant-appellant. It is submitted that the
claimant-appellant was not negligent in any manner and that
the accident occurred solely on account of the rash and
negligent driving of the driver of the offending vehicle.
Therefore, the finding recorded by the learned Tribunal with
regard to contributory negligence on the part of the claimant-
appellant is erroneous and is not sustainable either on facts or
in law. He, therefore, prayed that the said finding be set aside
and the finding returned on the issue of negligence be suitably
modified.
10. Per contra, Mr. Sunil Parikh, learned advocate
appearing on behalf of respondent No. 3–Insurance Company
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C/FA/4186/2009 (GJHC240398982009) JUDGMENT DATED: 24/08/2026
vehemently submitted that, at the time of the accident, the
claimant-appellant was working as a School Teacher, and
therefore, the learned Tribunal, after considering the salary
slips and the evidence produced on record, had rightly
assessed the income of the claimant-appellant. It is submitted
that the learned Tribunal, upon duly considering the evidence
available on record, has awarded just compensation under all
the relevant heads. He, therefore, submitted that no
interference is warranted with the award passed by the
learned Tribunal.
11. It is submitted that so far as the issue of negligence is
concerned, the learned Tribunal has decided four claim
petitions arising out of the same accident. The finding with
regard to negligence has not been challenged in the other
claim petitions and, therefore, the said finding has attained
finality. It is, therefore, submitted that the principle of res
judicata would apply and the claimant-appellant cannot be
permitted to reagitate the issue of negligence in the present
appeal.
12. Having considered the submissions advanced by the
learned counsel for the parties and having gone through the
record, it is to be noted that the claimant-appellant has
challenged the impugned judgment and award on the ground
of quantum as well as negligence.
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C/FA/4186/2009 (GJHC240398982009) JUDGMENT DATED: 24/08/2026
13. So far as the issue of negligence is concerned, the
learned Tribunal, after considering the evidence available on
record, assessed the negligence of the claimant-appellant at
30%. It further emerges from the record that vide impugned
judgment and award dated 06.12.2007, the learned Tribunal
had decided all the motor accident claim petitions arising out
of the said accident. The finding with regard to negligence
was not challenged in the other three matters i.e. M.A.C.P.
No. 527 of 1998, M.A.C.P. No. 550 of 1998 and M.A.C.P. No.
551 of 1998. Consequently, the finding recorded by the
learned Tribunal on the issue of negligence has attained final-
ity in the aforesaid claim petitions. In view of the aforesaid
circumstances, the claimant-appellant cannot be permitted to
reagitate the issue of negligence in the present appeal, as the
principle of res judicata would apply to the said finding, which
has already attained finality. Therefore, the contention raised
by the learned advocate for the claimant-appellant with re-
gard to negligence is not sustainable and is, accordingly, re-
jected.
14. So far as the quantum of compensation is concerned, it
is the case of the claimant-appellant that, at the time of the
accident, he was working as a School Teacher and was earn-
ing a monthly salary of Rs.7,026/-. Apart from his salaried em-
ployment, the claimant-appellant was also engaged in super-
vising his agricultural activities and was deriving income
therefrom. However, the learned Tribunal has not taken into
consideration the income derived from the other source viz.
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C/FA/4186/2009 (GJHC240398982009) JUDGMENT DATED: 24/08/2026
agricultural income. It is a settled proposition of law that,
where a claimant has more than one source of income, the in-
come derived from all such sources is required to be taken
into consideration while assessing the loss of income. There-
fore, considering the evidence available on record and the
year in which the accident occurred, I assess the monthly in-
come of the claimant-appellant at Rs.7,000/- towards salary
and Rs.1,500/- towards agricultural income and loss of super-
visory income. Thus, the total monthly income of the claimant-
appellant from both sources is assessed at Rs.8,500/-. It is not
in dispute that at the time of accident, the claimant – appel-
lant was aged about 40 years, therefore, 40% of the notional
income is to be added on account of future prospects of the
claimant/appellant. Thus, after adding 40% of the monthly no-
tional income, the monthly income of the claimant/appellant
would come to Rs.11,900/- (Rs.8,500/- + Rs./-3,400 (40% of
Rs.8,500/-). The learned Tribunal has assessed the functional
disability of the claimant/appellant herein at 46%, which is
not under dispute. Thus, considering the functional disability
at 46% and applying the multiplier of 15 as per the age of the
claimant/appellant, the future loss of income would come to
Rs.9,85,320/- (Rs.11,900x46%x12x15).
15. The learned Tribunal has awarded a sum of Rs.75,000/-
under the head of pain, shock and suffering. It emerges from
the record that the claimant-appellant underwent five surgical
interventions for the injuries sustained in the accident. The
claimant-appellant remained hospitalized on several occasions
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C/FA/4186/2009 (GJHC240398982009) JUDGMENT DATED: 24/08/2026
i.e. from 31.05.1998 to 06.06.1998 at the hospital of Dr. V. R.
Vaghasiya at Junagadh; from 06.06.1998 to 11.07.1998 at the
hospital of Dr. Gondaliya at Rajkot; from 18.08.1998 to
27.08.1998 at the hospital of Dr. Gondaliya at Rajkot; from
14.09.1998 to 22.09.1998 at the hospital of Dr. Gondaliya at
Rajkot; and from 07.11.1998 to 04.12.1998 at the hospital of
Dr. Gondaliya at Rajkot. Thus, considering the prolonged pe-
riod of hospitalization, the nature and extent of injuries sus-
tained and the fact that the claimant-appellant underwent five
surgical interventions, this Court is of the view that the
amount awarded under the head of pain, shock and suffering
requires enhancement. Accordingly, the compensation under
the said head is enhanced from Rs.75,000/- to Rs.1,00,000/-.
16. It emerges from the record that owing to the injuries
sustained in the accident, the right leg of the claimant-
appellant is shortened by 1 Inch. Therefore, he has been
deprived of leading the normal life. He started walking with
limping owing to the injuries sustained in the accident.
However, the learned Tribunal has not awarded any loss of
amenities and enjoyment of life. Therefore, a sum of
Rs.75,000/- is awarded under the head of loss of amenities of
life.
17. The learned Tribunal had awarded a sum of
Rs.1,50,000/- under the head of medical expenses though it
emerges from the record that the claimant-appellant has
proved the medical bills for a sum of Rs.1,65,720/-. Therefore,
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C/FA/4186/2009 (GJHC240398982009) JUDGMENT DATED: 24/08/2026
the compensation awarded under the head of medical
expenses is enhanced from Rs.1,50,000/- to Rs.1,65,720/-.
18. The learned Tribunal had awarded a sum of Rs.25,000/-
under the head of special diet, attendant charges and
transportation. It emerges from the record that the claimant-
appellant remained hospitalized for a considerable period and
underwent five surgical interventions. However, the learned
Tribunal has not awarded any separate amount towards
attendant charges. In view of the prolonged hospitalization
and the nature of the injuries sustained by the claimant-
appellant, the compensation awarded under the heads of
special diet and transportation is maintained. However, a
further sum of Rs.50,000/- is awarded towards attendant
charges.
19. The learned Tribunal had awarded a sum of Rs.79,740/-
under the head of actual loss of income. Since the income of
the claimant-appellant has now been reassessed, the
compensation under the said head is also required to be
reassessed. Accordingly, the claimant-appellant shall be
entitled to a sum of Rs.1,02,000/- (Rs.11,900/- × 12) under the
head of actual loss of income.
20. Therefore, in view of the above discussion, the
claimant/appellant herein shall be entitled for the following
compensation:-
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C/FA/4186/2009 (GJHC240398982009) JUDGMENT DATED: 24/08/2026
Sr. No. Heads Amount Awarded in
rupees.
1 Future loss of income 9,85,320/-
2 Actual loss of income (+) 1,02,000/-
3. Medical Expenses (+) 1,65,720/-
4. Pain, Shock and Suffering (+) 1,00,000/-
5
Special diet &
transportation
(+) 25,000/-
6 Attendant Charges (+) 50,000/-
7 Loss of Amenities (+) 75,000/-
15,03,040/-
Negligence on the part of
(-) 4,50,912/-
claimant-appellant (30%)
TOTAL COMPENSATION 10,52,128/-
Compensation awarded by
(-) 4,24,018/-
impugned Judgment and
Award
Enhanced amount of
(=) 6,28,110/-
compensation
21. Thus, in view of the above discussions, the
claimant/appellant herein shall be entitled for an additional
compensation of Rs.6,28,110/- (Rs.10,52,128/- –
Rs.4,24,018/-). The learned Tribunal has awarded the interest
at the rate of 10% per annum from the date of the claim
petition till its realization. Therefore, the claimant/appellant
herein 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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C/FA/4186/2009 (GJHC240398982009) JUDGMENT DATED: 24/08/2026
22. In view of the above discussions, 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
the date of receipt of copy of this order. Upon depositing the
said amount of compensation, learned Tribunal shall disburse
the entire awarded amount of compensation along with
interest to the original claimant/s after due verification.
23. If any amount of compensation, or any statutory amount,
lying deposited with the Registry of this Court shall be
transmitted to the learned Tribunal concerned, in accordance
with the applicable Rules. Records & Proceedings, if any be
sent to the learned Tribunal concerned. No order as to costs.
24. Pending application, if any, stands disposed of,
accordingly.
(MOOL CHAND TYAGI, J)
GIRISH
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