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Bombay High Court

SHRI LALBAHADUR RAM SIROMAN SINGversusSHRI PANESAR M. SINGH AND ANR

Decided
Disposal
Disposed Off

Holding

The Tribunal did not follow the proper method for assessing disability and compensation, and the Court recalculated the award, partially allowing the appeal.

Summary

The appellant, an auto‑rickshaw driver, was injured on 1 April 1990 when a car owned by the insured collided with his vehicle. He suffered a 22% partial permanent disability and his pre‑accident earnings of Rs 6,000 per month fell to Rs 1,500 per month as a hawker. The Motor Accident Claims Tribunal awarded a lump‑sum compensation of Rs 34,000, but the High Court held that the Tribunal failed to apply the proper principles for ascertaining income, functional disability and future prospects under the Motor Vehicles Act. Relying on Supreme Court guidelines, the Court recalculated the compensation using a multiplier method, functional disability of 10% and a 40% future prospect, arriving at an enhanced amount of Rs 2,16,440. The appeal was partly allowed, directing the insurer and the driver of the car to pay the enhanced amount with interest, subject to court‑fee deposit.

Issues considered

  • Whether the Motor Accident Claims Tribunal correctly ascertained the claimant's income and applied the proper principles for disability compensation under the Motor Vehicles Act, 1988.
  • Whether the Tribunal’s method of calculating lump‑sum compensation without considering functional disability and future prospects was appropriate.
  • Whether interest should be awarded for the period between filing of the petition and payment.

Legislation cited

Subjects

  • motor accident
  • compensation
  • disability
  • income assessment
  • multiplier method
  • interest
  • Motor Vehicles Act
  • Workmen’s Compensation Act
  • insurance
  • tribunal

Judgment

                                                                                       FA-1262-2003.doc


                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIVIL APPELLATE JURISDICTION

                                                  FIRST APPEAL NO.1262 OF 2003
           Digitally signed
           by SATISH
           RAMCHANDRA
SATISH
RAMCHANDRA
SANGAR
           SANGAR
           Date:                     Shri Lalbahadur Ram Siroman Sing,             ]
           2026.10.08
           10:16:26
           +0530                     Hanuman Tekadi, Kalu Sheth Ki Shop,           ]
                                     Gate No.2, Santacruz (East),                  ]
                                     Mumbai – 400 055.                             ] ...Appellant
                                              Versus
                              1.     Shri Panesar M. Singh,                        ]
                                     24, Sangeet, N. S. Road No.6,                 ]
                                     Bombay – 400 056.                             ]
                              2.     The New India Assurance Co. Ltd.              ]
                                     87, M. G. Road, Fort, Bombay – 400 023.       ] ...Respondents
                              ====================================================

                              Ms.Ketki Gokhale i/b. Mr.Avinash Advocates for Appellant / Original
                              M. Gokhale:-                     Applicant.
                              Ms.Poonam Mittal:-                     Advocate for Respondent No.2 –
                                                                     New India Assurance Co. ltd.

                              ====================================================
                                                       CORAM       :     S. M. MODAK, J.
                                                       RESERVED ON : 29th SEPTEMBER 2026
                                                       PRONOUNCED ON : 7th OCTOBER 2026
                              JUDGMENT :-

                              1.     The issue involved in this Appeal is:-

                                     “Whether the Motor Accident Claims Tribunal – Mumbai
                                     (“Tribunal”) was proper in considering the income of the
                                     injured and was proper in applying the principles for
                                     adjudicating the compensation involving disability claim” .

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2.     It is very well true, now the law on this aspect is recently

crystallized. When a claim involving compensation arising out of an

injury claim is there, the Tribunal has to:-

(a)    ascertain the income of the injured;
(b)    consider the percentage of physical and functional disability;
(c)    then to consider loss, if any, and then arrive at income of the
       deceased considering the functional disability;
(d)    as per the judgment of the Hon’ble Supreme Court, the
       future prospect also needs to be considered.

3.     It is true, the Tribunal has not considered all these principles

either due to not placing those judgments before the Tribunal or those

judgments are of recent origin. Instead, the Tribunal ascertained

lumpsum compensation on all heads. Ms.Mittal justified this method

because disability is not proved. But, this Court cannot overlook those

principles.

4.     With this idea in mind, I have heard learned Advocate

Ms.Gokhale for the Appellant / Claimant and learned Advocate

Ms.Mittal for the Respondent No.2 – Insurance Company.

5.     There is no dispute about question of negligence. When the

Claimant was driving his auto rickshaw on 1 st April 1990 from Milan

Hotel towards Vile Parle Station, one Maruti car owned by Respondent


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No.1 insured with Respondent No.2 came from wrong side and

without giving horn, dashed the auto rickshaw. The Claimant sustained

injuries. There is injury certificate at Exhibit–11 (obtained on 23 rd July

1998 after 7 years) which records the following injuries on the person

of the Claimant:-

(a)    Contused lacerated wound to right knee over skin deep
       coupled with fracture of TDR tibial medial angle (operated)
       and implant removed later on.
(b)    Severe pain swelling over right knee and foot.
(c)    Difficulty and pain during walking and other activities.
       Restriction on movements of right knee.
(d)    Malunion of the TDR fracture, therefore, minimal
       deformity of right knee.
(e)    Due to development of traumatic arthritis, he has pain and
       difficulty during the driving the auto rickshaw. (do not know
       the reason – whether it is due to accident or other ailment).
According to Dr.Ajgaonkar, the partial permanent disability is 22%.

6.     Prior to the accident, from his auto rickshaw business, he was

earning Rs.200/- per day. But, after the accident, he could not drive

the auto rickshaw and now, he is earning Rs.1,500/- per month being a

hawker. After the accident, he took treatment at Irla Nursing Home,

Vile Parle and then to Cooper Hospital. The information was also

given to Juhu Police Station. He has entered into the witness–box. The

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owner of Maruti Car has not filed reply before the Tribunal. It was

filed by the Insurance Company only.

7.     Learned Advocate Ms.Gokhale has invited my attention to the

said Written Statement. They have only disputed the existence of

policy and reserved their reply to other averments. Ms.Mittal has not

pointed out to me any other Written Statement. The Claimant has

given evidence but he was not cross–examined. His evidence goes

unchallenged. The Tribunal has given exhibit numbers to the

following documents:-

(a)    Copy of F.I.R. to Vile Parle Police Station lodged by the
       Claimant against the driver of Gipsy.
(b)    Copy of panchnama.
(c)    Case papers from the Corporation Hospital.
(d)    Injury   certificate   dated   23rd   July   1998   issued   by
       Dr.Ajgaonkar (Exhibit–11).
(e)    Hospital bills.
                                  Findings

8.     Ms.Gokhale has invited my attention to the findings by the

Tribunal. They are as follows:-

(a)    I feel that though the applicant suffered disability of partial
       permanent nature to the extent of 22% as stated by the
       Orthopedic Surgeon in Exh.11, I feel that a just and
       reasonable compensation for pain and suffering and
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          Disability would be Rs.30,000/- only as after the accident
          the applicant is not idle and doing the business of hawker
          and earning about Rs. about Rs.1500/- per month.
(b)       Thus, loss of Rs.500/- per month to the applicant and not
          more and hence the amount of Rs.30,000/- awarded to the
          applicant for disability and pain and suffering will be just and
          reasonable compensation.
(c)       The bills of medicines not produced. The bills of Orthopedic
          charges are produced. The Tribunal granted Rs.4,000/-
          towards the treatment, conveyance and special diet.

9.       According to Ms.Mittal, though the Tribunal has recorded that

after filing of the Written Statement on 5 th September 1991, the

Applicant has remained present on 22 nd January 1999 and thereafter,

has not remained present, still the interest at 9% is granted from the

date of Application till realization. According to Ms.Mittal, from 5 th

September 1991 till 22nd January 1999, an interest ought not to have

been granted.

10.      Learned Advocate Ms.Gokhale relied upon the observations in

case of Indra Bai V/s. Oriental Insurance Company Ltd. & Another 1.

11.      Whereas, learned Advocate Ms.Mittal relied upon the following
judgments:-
(a)      Raj Kumar V/s. Ajay Kumar and Another2

1     2023 INSC 624
2     (2011) 1 Supreme Court Cases 343

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(b)      Sudhir Bhuiya V/s. National Insurance Company Ltd.&Anr.3
(c)      Rajesh Kumar Kaushik V/s. Tej Narayan Singh & Others4

12.      All the judgments are on the issue of not examining the doctor

who has issued the disability certificate and on the point of how the

private documents without proving them can be appreciated in

evidence.

13.      If we consider the guidelines given by the Supreme Court, in

adjudicating the compensation, it can very well be said that the

Tribunal has not adopted proper method for arriving at just

compensation. My findings are as follows:-

(a)      Though the Tribunal accepted 22% partial permanent
         disability, still the Tribunal has arrived at compensation of
         Rs.34,000/- in lumpsum. First of all, the physical disability
         has to be ascertained and then functional disability.
(b)      In case of Indra Bai (cited supra), the Supreme Court was
         dealing with the matter under Workmen’s Compensation
         Act, 1923 (“WC Act, 1923”). It is true, as per Schedule–I to
         the WC Act, a list of injuries resulting in permanent total
         disability and permanent partial disability is given. So, the
         nature of injuries and percentage of loss of earning capacity
         are codified. If due to disabilities, if an injured is
         incapacitated for all work, the disability will be 100%.


3     2005 (1) TN MAC 414 (Cal.)
4     2007 SCC OnLine Chh 203

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(c)    Whereas, the observations in case of Raj Kumar (cited supra)
       involves an interpretation of the provisions of Motor Vehicles
       Act, 1988 Act (“MV Act, 1988”). In paragraph No.14, by way
       of illustration, it is explained how the percentage of disability
       affects his earning capacity. In nutshell, it depends upon the
       part of the body which is affected and the nature of
       occupation and the use of that part of body in doing that
       occupation. This ratio will be more relevant. The Supreme
       Court emphasized on examining the doctor issuing the
       disability certificate. Admittedly, in this case, the doctor is not
       examined.

14.    It is true, the Claimant in his chief-examination has mentioned

about his disability though not stated about percentage of disability. He

has also stated that due to the injuries, he was not in a position to ply

the auto rickshaw. It is also true, the Insurance Company has neither

cross-examined the witnesses nor adduced any evidence on any aspect.

Even though, if we believe that the Claimant is not in a position to

drive the auto rickshaw which does not mean that he cannot do any

other work. There was only contused lacerated wound to the TDR.

Even the implant was removed subsequently.

15.    There is no satisfactory evidence that considering the injuries,

the Claimant is totally handicapped in plying the auto rickshaw. In any

extent, it cannot be said to be 100% functional disability as submitted

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by Ms.Gokhale. Earlier, the Claimant was earning Rs.200/- per day i.e.

Rs.6,000/- per month and now, he is earning Rs.1,500/- per month by

working as a hawker. I consider 10% functional disability because it is

not the case of amputation but only wound and fracture. It is curable.

16.    I consider the income of the Claimant as Rs.6,000/- per month.

It is but natural that in the year 1991, he was earning Rs.200/- per

month by plying the auto rickshaw. There is no need to consider the

income which he gets after the accident. Because, we are applying the

principle of multiplier. At the same time, he needs to be paid certain

amount towards pain and suffering, special diet and conveyance. As

held in Raj Kumar’s case, if there is no 100% ‘loss of future earning

capacity’, there can be a compensation granted under the head ‘loss of

amenities’ or ‘loss of expectation of life’ (paragraph No.15).

17.    In view of that, the compensation has to be redetermined. It is as
follows:-
 No.            Particulars     Amount granted Amount granted by
                                by the Tribunal   this Court
  1. Rs.6,000X12X18=Rs.12,96,000/-
  2.         22% disability/       Rs.34,000/-      Rs.12,96,000X10%=
             10% disability        (lumpsum)            Rs.1,29,600/-
  3.   Future prospect (40%)       Rs.34,000/-     Rs.1,29,600/-X40%=
                                   (lumpsum)            Rs.51,840/-
  4.        Medical treatment      Rs.4,000/-            Rs.4,000/-


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  5.      Pain and suffering        Rs.34,000/-        Rs.25,000/-
                                    (lumpsum)
  6.       Loss of amenities        Rs.34,000/-        Rs.25,000/-
                                    (lumpsum)
  7.            Special diet        Rs.34,000/-         Rs.5,000/-
                                    (lumpsum)
  8.            Conveyance          Rs.34,000/-        Rs.10,000/-
                                    (lumpsum)
                   Total            Rs.34,000/-       Rs.2,50,440/-
                                    (lumpsum)
          Enhanced amount                             Rs.2,16,440/-

18.    While quantifying the amount, I have also considered the

submission of Ms.Mittal about not prosecuting the Petition vigilantly

and non-entitlement to interest for that period. Instead of specifically

denying the interest for that period, I have reduced the quantum on all

heads.

19.    Considering the above calculation, following order is passed:-

                               -: O R D E R :-

(a)    The Appeal is partly allowed.
(b)    It is held and declared that the Appellant/Original Applicant
       is entitled to get an amount of Rs.2,16,440/- and the
       Respondent Nos.1(Insured) and Respondent No.2(Insurer)
       are jointly and severally directed to pay that enhanced
       amount of Rs.2,16,440/- to the Appellant/Original Applicant
       within a period of 8 weeks from the date of uploading of this
       order.




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(c)    The Respondents are directed to pay this amount at the rate
       of 6% per annum from the date of the Petition till the time,
       the amount is paid.
(d)    The Appellant/Original Applicant is entitled to the
       enhanced amount of compensation subject to deposit of
       deficit Court Fees.

20.    In the light of the above observations, the Appeal is disposed of.

21.    Pending Applications, if any, also stand disposed of.



                                     [S. M. MODAK, J.]




Satish Sangar                                                             10/10


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