FA/3393/2013 of NEW INDIA ASSURANCE CO. LTD. Vs DIPTI GAGAN SHETHI on 30 September 2026

ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)

1. The occurrence of an accident between a truck and a car is not in dispute. As a result of this accident, two of the occupants in the car were grievously injured. The occupants, therefore, proceeded to file a claim petition.

2. The Tribunal, in consideration of the evidence adduced before it, came to the conclusion that both the driver of the truck as well as the driver of the car, were responsible and apportioned negligence to the ratio of 50:50. It, thereafter, came to the conclusion that the claimant Nafisa Rajubhai Barot had suffered a grievous injury and assessed the disability at 40%. It also assessed the monthly income at Rs.10,000/- per month and taking into consideration her age, ultimately awarded the following sums:- Rs.6,72,000/- For future loss of income. Rs.1,20,000/- For actual loss of income (12 months) Rs.0,50,000/- For pain, shock and suffering Rs.0,50,000/- For medical expenses (lumpsum) Rs.0,25,000/- For special diet, transportation and attendant charges. Rs.0,25,000/- For enjoyment of life and other amenities. Rs.9,42,000/- Total Awardable Amount

3. As far as the other occupant, i.e. the claimant Dipti Gagan Shethi is concerned, the Tribunal found that she has suffered, multiple fractures and assessed the disability at 35%. The Tribunal, thereafter, concluded that her income was Rs.8000/- per month and awarded the following sums:- Rs.4,70,400/- For future loss of income. Rs.0,96,000/- For actual loss of income (12 months) Rs.1,00,000/- For pain, shock and suffering

Rs.1,00,000/- For medical expenses (lumpsum) Rs.0,25,000/- For special diet, transportation and attendant charges. Rs.0,25,000/- For enjoyment of life and other amenities. Rs.8,41,400/- Total Awardable Amount

4. Being aggrieved by this award, the Insurer is in appeal both on quantum and on negligence. The claimant Nafisa Rajubhai Barot has filed a cross-objection to the appeal of the Insurer and seeking for enhancement of the compensation awarded.

5. As far as negligence is concerned, it is the case of the Insurer that there was clear evidence that the driver of the truck has come out on the wrong side of the road and had a collision with the car and it is, therefore, sought to the contended that the apportionment of negligence to the ratio of 50:50 was incorrect and the negligence ought to have been apportioned only on the driver of the truck.

6. At the outset, it is to be stated here that the Insurer of the truck has not preferred any appeal against the negligence imputed to the driver of the truck. It is only the Insurer of the car, who is contending that the negligence was solely on the part of the driver of the truck. The Insurer, for the reasons best known to it, has not produced the chargesheet nor has it alleged that the driver of the truck alone was chargesheeted. The Insurer basically seeks to place reliance on the evidence of the claimants, who have indicated that the truck had come on to the wrong side of the road. However, if the Panchnama were to be examined, it indicated that there was damage to the right side of the truck as well as to the right side of the car. If this is the resultant position, the argument that the truck had come on to the wrong side of the road, completely cannot be accepted. The damages indicated in the Panchanama would indicate that there was a collision on the right side of the respective vehicles and this would, therefore, justify the finding of the Tribunal that both the driver of the truck and the driver of the car were responsible in equal measure. Consequently, the finding regarding negligence, is affirmed.

7. As far as the quantum in relation to the compensation payable to Nafisa Rajubhai Barot is concerned, the Tribunal has assessed the disability at 40%.

8. The case of the claimant Nafisaben was that as a result of the accident, she had suffered paraplegia and her functional disability was 100%.

9. The Tribunal has refused to accept this version on the ground that the medical documents, which were produced, indicated that she also had earlier problems relating to her kidneys and ovarian cancer and, therefore, the assertion that she had suffered 100% disability cannot be accepted.

10. We have perused the discharge summary issued by Bombay Hospital and Medical Research Centre in which Nafisaben was admitted between 13.03.1998 and 24.03.1998, i.e. about two months after the accident. The notes of this discharge summary indicate that Nafisaben had complained of an history of pain in the neck and dragging of left foot immediately after the accident. It is also noticed in the notes that for the past four or five days, she had difficulty in passing urine and radiating pain to left shoulder. This past history recorded and the notes would, therefore, indicate that she did suffer a serious injury, which had a debilitating effect on her movement. In fact, the final diagnosis indicates post disc herniation at C3,C4 to C7 and D1, canal with stenosis most at C5 and C6. This final diagnosis would, therefore, indicate that she did suffer a spinal injury and it is a well known fact that if there is a spinal injury, there is a resultant loss of movement and mobility. The finding of the Tribunal that she also had earlier medical issues and, therefore, the accident did not relate to her immobility cannot be accepted in the light of this final diagnosis. The earlier history of illness was in relation to her kidneys and due to her ovarian cancer. Obviously, these two medical issues will not result into loss of mobility to her.

11. We are, therefore, of the view that the disability assessed at 40% cannot be sustained and we accordingly hold that she will be disabled to the extent of 70%.

12. As far as the income in concerned, in the light of the evidence adduced, the Tribunal has concluded that she was earning a sum of Rs.10,000/- per month. In our view, this assessment of her monthly income cannot be found fault with and it is accordingly maintained. As Nafisaben was aged 47 years, a Multiplier of 13 will have to be applied and consequently towards Loss of Future Income, since she has suffered 70% Disability, Future Prospects of 25% will have to be added to the said income, which comes to Rs.12,500/-(Rs.10,000+25% Future Prospects). While calculating 70% of her Disability, the income comes to

Rs.8750 (12,500x0.70). Consequently, towards Loss of Future Income the claimant would be entitled to the sum of Rs. 13,65,000.

13. It is brought to our notice that though certain medical bills were produced, the Tribunal has awarded only a sum of Rs.50,000/- on the ground that the claimant had earlier had an history of ailments. We are satisfied that the bills that produced are pursuant to the accident that she suffered and the treatment that she secured after the accident, the sum total of the medical bills will be Rs.1,50,000/-.Therefore, in substitution of the sum of Rs. 50,000/-, a sum of Rs.1,50,000/- is awarded towards medical expenses. The claimant was hospitalized on more than one occasion. In all the claimant was hospitalized for about three months. In our view, she would, therefore, be entitled to a sum of Rs. 75,000/- towards Food, Nutrition and Attendant Charges.

14. Since the claimant has suffered a loss of mobility to the extent of 70%, it would be appropriate to award a sum of Rs.1,00,000/-towards Loss of Amenities.

15. In all, the claimant would be entitled to the following sums:

Sr. No. Particulars Amount of Compensation

Monthly income of the Claimant Rs.10,000+25% Future Prospects, comes to Rs.12,500/-. Calculating 70% disability, the income is determined at Rs.8750. Taking Multiplier at 13, the Future Loss of Income (8750x13x12) 13,65,000

Medical Bills 1,50,000

Pain, Shock and Suffering 50,000

Actual Loss of Income (12 months) 1,20,000

Food, Nutrition and Attendant charges 75,000

Loss of Amenities 1,00,000 Total Amount of compensation 18,60,000 Amount of compensation awarded by the Tribunal 9,42,000 Enhanced amount of Compensation 9,18,000

16. As far as the quantum of compensation in respect to the other land, i.e. the claimant Dipti Gagan Shethi is concerned, there is no appeal by the claimant and, therefore, the compensation awarded need not be gone into. The appeals of the Insurer are, therefore, dismissed and the cross-objection of the claimant Nafisa Rajubhai Barot is allowed in part.

17. The amounts and deposit as well as the enhanced compensation will be made over to the claimant Nafisa

Rajubhai Barot by way of NEFT/RTGS.

18. The Tribunal had awarded interest at the rate of 8% per annum. In our view, interest at the rate of 9% per annum would be just and proper.

19. Hence, the enhanced amount of compensation to claimant Nafisa Rajubhai Barot, i.e. Rs.9,18,000/- shall carry interest of 9% per annum from the date of the claim petition till the date of payment. Eight (08) weeks time is granted to the Insurance Company to deposit the said amount from the date of receipt of the copy of this order.

20. Consequently, the appeal is allowed in part.

21. R &P, if any, be sent back to the concerned Tribunal forthwith. (N.S.SANJAY GOWDA,J) (J. L. ODEDRA, J) SUDHIR

Original copy of this order has been signed by the Hon'ble Judges. Digitally signed by: SUDHIR ACHUTHAN EZHUTHASSAN(HC00192), GOV, at High Court of Gujarat on 05/10/2026 14:14:09