GANGABEN NANJI JOSHI vs FAKIRMAMAD MAHEBUBSHA
- Court
- Gujarat High Court
C/FA/1147/2014 (GJHC240403582014) JUDGMENT DATED: 01/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1147 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd/-
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Approved for Reporting Yes No
No
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GANGABEN NANJI JOSHI
Versus
FAKIRMAMAD MAHEBUBSHA & ORS.
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Appearance:
MR. VISHAL MEHTA for MR MEHUL S SHAH(772) for
Appellant(s) No. 1
DELETED for the Defendant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3,5
RULE SERVED for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 01/09/2026
JUDGMENT
1. Heard learned advocates for the respective parties.
2. The claimant have appealed the judgment passed in
MACP No. 929 of 1997 dated 24.12.2013 passed by the Motor
Accident Claims Tribunal (Aux.), Bhuj, whereby the claimant
was compensated by granting a compensation of Rs.67,120/-
with 7.5% yearly interest from the date of the petition till
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realization, making the opponent Nos.1 to 3 jointly and severally
liable to pay the compensation, exonerating the opponent Nos. 4
and 5, the claimant has preferred this appeal for enhancement of
the compensation.
3. Claimant has filed the application under Section 166
of the Motor Vehicles Act, 1988 to get the compensation of Rs. 1
lakh at the interest of 18% from the date of petition till
realization, on the averment, that on 24.09.1997, claimant was
travelling in an auto rickshaw No.GJ-12-T-329 from Nakhatrana
to Devisar and when he reached Gayatrinagar, on Virani road,
the driver of the auto rickshaw, who was driving the auto
rickshaw at a high speed, dashed with the upcoming motorcycle
No.GJ-12-E-2708. The incident turned into the road accident
and resulted into fracture injuries to the claimant, who was then
shifted to G.K. General Hospital, Bhuj and after taking the
medical treatment, he was discharged.
4. The claimant preferred the claim petition against the
driver, owner and insurer of the auto rickshaw as well as against
the owner and insurer of the motorcycle. The learned Motor
Accident Claims Tribunal fixed the issues at Exhibit-16, which
reads as under:-
“(1.) Whether the pititioner proves that he/she sustained
injuries in a vehicular accident due to rash and/or
negligent driving of the driver of the vehicle involved in
the accident ?
(2) Whether the pititioner is entitled to compensation? If
yes, what amount and from whom ?
(3) What Award ?”
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5. Issues were answered in favour of the claimant to
grant the aforesaid compensation. For issue No.2, the learned
Claims Tribunal had taken the monthly income of the claimant
at Rs. 1800/- and thereafter, considered the disability certificate
issued by Dr. H.M. Hadiya notifying 62% disability, but
considering the facts and circumstances of the case, the
Tribunal assessed the functional disability at 20% and further
taken up the age of the claimant to 55 years and assessed the
compensation of Rs.47,520/- with the compensation under the
other non-pecuniary heads in total Rs.67,120/-.
6. Learned advocate Mr. Vishal Mehta submits that the
62% physical disability has been taken to a meagre 20%
functional disability without any justification or any reason.
7. Learned advocate Mr. Vishal Mehta, therefore,
submits that the amount of compensation requires to be
enhanced.
8. What appears from the record that the medical
certificate has been exhibited at Exhibit-41, it depicts the
following injury:-
“ 1. H/O Vehicular accident on 24/09/1997
2. Injuries and Fractures sustained
- Near 3rd past # dislocation Right Shoulder.
- Sup. Inf. Public Rami Right.”
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9. Dr H.M. Hadiya, who has issued the physical
disability certificate, has been examined at Exhibit-40.
10. Having gone through the medical evidence at
Exhibits-40 and 41, what appears that the Doctor, though
entered into the witness-box and deposed in regards to the
injury of dislocation or fracture of the right shoulder found to be
excessive and not in conformity with the standard.
11. The same way, the injury for the fracture of Public
Rami Right Shoulder is assessed at 31% is also on the higher
side.
12. In view of the judgment in case of Raj Kumar v. Ajay
Kumar & Anr. , reported in 2011 ACJ 1 , the Tribunal was
required to assess the functional disability. No evidence is
produced on record to show the exact functional disability
sustained by the claimant. The learned Tribunal taken up 20%,
according to me, taking of 20% as a functional disability is on a
conservative side looking to the nature of the injury and it
requires to be taken up on the higher side.
13. Claimant is 55 years old, though she claimed that
she was doing the local work of preparing pickles, papad ,
khakhara , etc., she did not produce any evidence to that extent,
except the oral evidence.
14. Considering these overall fact situation and concept
of just, fair and adequate compensation, this Court is of the
considered opinion that if the amount of compensation is
enhanced to Rs.1,00,000/- from Rs.67,120/-, it would mete the
ends of justice.
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15. Consequently, the appeal is allowed .
16. In total, Rs.1,00,000/- has been granted as a
compensation to the claimant with the interest at 7.5% from the
date of the petition till realization. The additional amount of
compensation i.e. Rs. 32,880 /- with accrued interest thereon, as
ordered by this Court hereinabove, shall be deposited by the
Insurance Company before the learned Claims Tribunal within
12 weeks from today.
17. Upon deposit of amount, the Tribunal concerned
shall disburse the entire awarded 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.
18. While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
19. Record and proceedings be sent back to the
concerned Tribunal, forthwith.
Sd/-
(J.C. DOSHI, J.)
Raj
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