MATHURBHAI SHANKARBHAI DAMOR vs SHAUKAT AHMAD BHATUK

C/FA/2422/2016 JUDGMENT DATED: 16/10/2026
(GJHC240434282016)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2422 of 2016
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MATHURBHAI SHANKARBHAI DAMOR
Versus
SHAUKAT AHMAD BHATUK & ORS.
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Appearance:
MR ADNAN KHAN for MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 6
MR HG MAZMUDAR(1194) for the Defendant(s) No. 6
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2,4,5
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 16/10/2026

JUDGMENT
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant/s being
aggrieved and dissatisfied with the judgment and award dated
31.12.2015 passed by the Motor Accident Claims Tribunal,
Dahod in Motor Accident Claim Petition No.9 of 2012,
whereby the learned Tribunal granted compensation of
Rs.4,77,800/- with 9% interest p.a. from the date of petition
till realization marking liability of opponent Nos.1 to 3 jointly
and severally to pay 75% of the total awarded amount of
compensation and opponent Nos.4 to 6 jointly and severally
to pay 25% of the total awarded amount of compensation.
2. Brief facts of the case are as under:-
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2.1 That on the date of the incident, i.e., 13.4.2008, the
Claimant was travelling and working as a cleaner / second
driver in Truck bearing Registration No. GQG-6444. While en
route, a collision occurred between Truck No. GQG-6444 and
another offending vehicle, resulting in a severe motor road
accident. As a direct consequence of the accident, the
Claimant sustained critical crush injuries to his body,
particularly to his left lower limb. He was rushed to the
hospital where he underwent prolonged inpatient treatment.
Ultimately, due to the severe nature of the trauma and
medical complications, his left leg was amputated below the
knee.
2.2 The Claimant thereafter filed a claim petition before the
learned Tribunal seeking compensation to the tune of Rs.15
lakh.
2.3 The opponent Nos.3 & 6 on being served appeared
through learned advocate and filed written statement at
Exhs.18 and 17 respectively denying the averments and
allegations made in the claim petition.
2.4 The learned Tribunal after hearing both the parties and
considering the evidence on record, was pleased to pass the
impugned judgment and award.
2.5 Hence, present First Appeal.
3. Heard learned advocates for the respective parties.
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4. Learned advocate Mr. Adnan Khan for learned advocate
Mr. Mohsin Hakim for the appellant – claimant would submit
that the Claimant was employed as a cleaner and second
driver. Driving and heavy physical labor require the active use
of both lower limb and A-17 cm below-knee amputation
renders the Claimant completely unfit to perform his duties as
a driver or cleaner forever. He would further submit that the
functional disability ought to have been treated as 100% loss
of earning capacity, rather than a mere 75%. He would
further submit that the learned Tribunal erred in taking a
meager monthly income of ₹2,025/-. Furthermore, the
Tribunal added 50% towards future prospects instead of the
mandated 40% applicable for a self-employed/salaried person
aged 35 years as per judgment of the Hon’ble Apex Court in
case of National Insurance Company Ltd. Vs. Pranay
Shethi reported in (2017) 16 SCC 680 . He would further
submit that the learned Tribunal awarded nominal sums
under non-pecuniary heads. The Claimant is entitled to
reasonable enhancement for Pain, Shock & Suffering, Loss of
Amenities, Special Diet, Transportation, Attendant Charges,
and the cost of an Artificial / Prosthetic Leg. He would further
submit that the learned Tribunal erred in restricting the
Claimant’s right to recover compensation jointly and severally
from any of the tortfeasor. In a case of composite negligence,
the Claimant is at liberty to recover the entire compensation
from any or all joint tortfeasor. Hence, he prays to allow the
First Appeal and to modify the judgment and award suitably.
5. Learned advocates Mr. HG Mazmudar and Mr.Vibhuti
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Nanavati support the impugned judgment and award, and
submit that the learned tribunal has rightly assessed the
evidence on record, and therefore no interference is required.
6. To substantiate the claim, the Claimant stepped into the
witness box at Exhibit 36. The medical evidence on record,
including the Disability Certificate (Exhibit 37) issued by Dr.
K. A. Gundarwala, confirms that the Claimant underwent
below-knee amputation of the left lower limb (17 cm below the
knee). Dr. Gundarwala examined the Claimant and testified
regarding the permanent physical impairment. Further, Dr.
Jayesh Patel issued certificate at Exh.29 which decipher that
left leg of the claimant below knee has been amputated.
Although the defense cross-examined the witness to suggest
that an amputation does not completely extinguish the
Claimant's ability to engage in alternative light work, this
Court cannot turn a blind eye to the reality of manual
vocations. A heavy vehicle cleaner or second driver cannot
perform his primary vocation without a functional leg.
7. It is a settled position of law that "functional disability"
must be evaluated with reference to the specific nature of the
work performed by the victim prior to the accident. Where an
injury renders a workman completely incapable of performing
the sole work he was trained for, the loss of earning capacity
must be treated as 100%, even if the physical impairment
value in the medical schedule is lower. Considering that the
Claimant was working as a cleaner / second driver, the loss of
his left lower limb below the knee permanently debars him
from driving heavy goods vehicles or assisting in heavy
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manual loading/unloading tasks. Following established
precedents, this Court holds that the functional disability for
calculating loss of future earning capacity must be assessed at
100%.
8. This Court in case of Mahadevbhai Samtabhai
Prajapati Vs. Ayeshaben Ibrahimbhai Manasiya and
others, rendered in First Appeal No.503 of 2016 came
across with identical issue, wherein this Court assessed 100%
disability of the claimant where his right leg was amputated.
The relevant observation in para 6.1 and 6.2 reads as under:-
“6.1 I have considered the submissions made
by the rival parties. I have perused the record and
proceedings of the Tribunal. I have gone through
the impugned judgment and award passed by the
learned Tribunal. From the record, it transpires
that the claimant was working as labourer and
amputation of his left leg reduced his capacity of
working completely. The work of a labourer 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. Therefore, it is a case of 100%
injury.
6.2 The Hon’ble Apex Court in recent judgment in
case of M.Paramesh Versus Vrl Logistics Ltd.,
2026 INSC 655 , held that issue of granting loss of
future prospect is also integral part of granting just
and fair compensation. Para 21 is relevant, which
reads as under:-
“21. In Raj Kumar vs. Ajay Kumar and
Another, (2011) 1 SCC 343 this Court has
elaborately explained the distinction between
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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
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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 ]
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
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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 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
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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.
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(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) “
9. Simultaneously, if we go through the impugned
judgment and award, the learned Tribunal granted
compensation for actual loss of income which cannot be
granted in case of 100% disability or a person rendered
deadwood on account of accidental injury.
10. What further appears that the claimant has lost his left
leg and therefore, he is required to have prosthetic leg and
therefore, amount of compensation is also required to be
granted for prosthetic leg. Attendant charges and other
charges are also required to be enhanced simultaneously. In
line of the aforesaid, the entire amount of compensation is
required to be re-worked out.
11. Therefore, total compensation would be as under, which
the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future loss of income (100% disability) 8,06,400/-
Pain, shock and suffering 2,50,000/-
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Medical expenses 20,000/-
Special diet, attendant charges,
3,00,000/-
transportation & prosthetic leg
Loss of amenities 1,00,000/-
Total… 14,76,400/-
Less : Amount which is already awarded 4,77,800/-
Additional amount which is awarded 9,98,600/-
12. Therefore, I hold that the claimant are entitled to
get the enhanced compensation of Rs.9,98,600/- 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.
13. For the reasons recorded above, the following
order is passed.
13.1 The present appeal is partly allowed .
13.2 The Insurance Company is directed to deposit the
enhanced amount Rs.9,98,600/- with 9% p.a. interest from the
date of claim petition till its realization before the concerned
Tribunal, within a period of 09 weeks from the date of receipt
of this order.
13.3 The Respondents / Insurance Companies are held
jointly and severally liable to pay the entire awarded amount
to the Claimant.
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13.4 It is clarified that amount of compensation of Rs.3
lakh granted under the head of special diet, attendant
charges, transportation & prosthetic leg does not carry any
interest.
13.5 Rest of the direction issued by the learned Tribunal
remained unchanged.
13.6 The Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal, with
accrued interest thereon, if any, to the claimant, by account
payee cheque / NEFT / RTGS, after proper verification and
after following due procedure.
13.7 While making the payment, the Tribunal shall
deduct the courts fees, if not paid, in accordance with
rules/law.
13.8 It is clarified that the insurance company, if paid an
amount in excess of its share of liability would be entitled to
recover the excess amount from the other opponent/s.
14. Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
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