Bombay High Court

MARTAND SAKHARAM GHOLAPversusBHARU KHAN AND ANR.

Decided: 22 September 2026
Disposal: Allowed

Holding

In motor accident injury claims, compensation for loss of future earning must be computed by applying the multiplier method to the claimant's functional disability and future prospects, not merely the physical disability percentage, and reimbursement of medical expenses by the employer does not absolve the insurer of its statutory liability to reimburse the same.

Summary

The appellant, Martand Sakharam Gholap, was riding a motorcycle when a truck dashed him on 25.05.2002, causing compound fracture of right femur, right tibia dislocation, and amputation of right arm below elbow. The Motor Accident Claims Tribunal awarded Rs. 2,11,000 as compensation, which the appellant challenged in this First Appeal seeking enhancement. The court noted that the Tribunal had not applied the multiplier method and had not properly distinguished between physical and functional disability. Following Rajkumar v. Ajay Kumar, the court held that compensation for loss of future earning must be based on functional disability and multiplier method. The appellant, a postal clerk aged 45 earning Rs. 8,122 per month, was assessed to have 55% functional disability affecting his earning capacity. The court applied multiplier 14, added 30% future prospects, and enhanced various heads including medical expenses, attendant charges, conveyance, and loss of amenities. The appeal was partly allowed, enhancing total compensation to Rs. 11,92,851 with 6% interest from the date of petition.

Issues considered

Whether the Tribunal rightly applied the principles for ascertaining compensation in an injury claim?
Whether the percentage of disability, functional disability, income, and amount of compensation were rightly arrived at by the Tribunal?
Whether the multiplier method should be applied to compute loss of future earning in injury cases?
Whether a disability certificate issued by a doctor who is not the treating doctor can be relied upon?
Whether reimbursement of medical expenses by the employer absolves the insurer from its liability to pay medical expenses?
Whether compensation for loss of earning during the leave period can be granted when the claimant has resigned from service?

Subjects

motor accident
injury compensation
permanent disability
functional disability
multiplier method
future prospects
medical reimbursement
loss of amenities
quantum of compensation
pain and suffering

Judgment

FA 2211 of 2006.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 2211 OF 2006

Martand Sakharam Gholap ...Appellant

Vs.

1. Bharu Khan

2. United India Insurance Company Limited ...Respondents

*****
Mr. T. J. Mendon Advocate for the Appellant
Mrs. Varsha Chavan Advocate for the Respondent
No. 2

*****
CORAM : S. M. MODAK, J.

DATE : 22nd SEPTEMBER 2026

JUDGMENT :-

1. The issue involved in this appeal is “ whether the Tribunal has
Digitally
signed by
LATA SUNIL
LATA PANJWANI
SUNIL
PANJWANI Date:
2026.09.22
18:52:41
+0530 rightly applied the principles of ascertaining the compensation in case

of injury claim and whether the percentage of disability, the percentage

of functional disability, the income and the amount of compensation

was rightly arrived at by the Tribunal”.

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FA 2211 of 2006.doc

2. According to learned Advocate Shri Mendon for the Appellant,

the Tribunal has not applied the settled principles properly and

concluded about less amount of compensation and that is why, the

present appeal is preferred.

3. Whereas according to learned Advocate Ms. Chavan, the amount

quantified is proper and it does not require interference. There is no

dispute about the accident and involvement of two vehicles. The

Tribunal has given a finding about negligence of the offending vehicle.

These findings are not challenged by the Insurance Company, as there

is no appeal. There is no reason for this Court to check the correctness

of those findings. So the issue is limited to the quantum of

compensation.

4. On this background, I have heard learned Advocate Shri

Mendon for the Appellant and learned Advocate Ms. Chavan for the

Respondent No. 2-insurer.

5. Respondent No. 1 is insured and he is not contesting the appeal.

It will be material to consider the quantum of compensation granted by

the Tribunal. It is as follows:

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Sr.No. Particulars Amount
1. 60% disability Rs. 65,000/-
2. Conveyance Rs. 10,000/-
3. Pain and suffering Rs.50,000/-
4. Nourishing Diet Rs. 25,000/-
5. Future Surgery Rs.15,000/-
6. Future inconvenience Rs. 30,000/-
7. Hospital and medical expenses 15,795/-
TOTAL (rounded) 2,11,000/-

6. According to Mr. Mendon, this is too inadequate. According to

him, the compensation ought to have been awarded by the Tribunal is

as follows :

No. Particulars Tribunal High Court
1. Loss of Income for 13 --- Rs. 1,05,586/-
months (8122X13)
2 Hospital and Medical Rs. 15,795/- Rs. 1,39,031/-
Expenses
3. Pain and Suffering Rs. 50,000/- Rs. 1,00,000/-
4. Attendance Charges Nil Rs. 50,000/-
5. Ambulance Charges Rs. 10,000/- Rs. 10,000/-
6. Loss of Expectation of Life Nil Rs. 1,00,000/-
7. Loss of Comfort and Nil Rs. 1,00,000/-
Amenities
8. Conveyance Charges Nil Rs. 50,000/-
9. Special diet Rs. 25,000/- Rs. 25,000/-
10. Future Medical Expenses Nil Rs. 1,00,000/-
11. Disability Rs. 8,86,922/-

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(8122X15X14X65%)
Future Prospect 30% Rs. 2,66,077/-
12. Future Surgery Rs. 15,000/- Rs. 15,000/-
13. Rs. 19,47,616/-
Less Tribunal Granted Rs. 02,11,000/-
14. Enhancement amount Rs. 17,36,616/-

7. Ms. Chavan relied upon the following judgments:-

a) Rajkumar Vs. Ajay Kumar1.

b) On the point of law of precedent, she relied upon the

observations in case of Municipal Corporation of Delhi Vs.

Gurnam Kaur 2

8. Whereas learned advocate Mr. Mendon relied upon the

following judgments:-

1) Mohit Garg v/s. Hari Ram (deceased) through

LRs and others.3

2) Kersasp Ardeshir Mehta v/s. Union of India4

3) Kirti and others v/s. Oriental Insurance Co.

Ltd.5

4) Mr. R.D. Hattangadi v/s. M/s. Pest Control
1 ACJ 2011 (1)
2 AIR 1989 SCC 38
3 2026 ACJ 361
4 1986 ACJ 1002
5 2021 ACJ 1

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FA 2211 of 2006.doc

(India) Pvt. Ltd. And others.6

5) P. Sathasivam and M.Y. Eqbal7

9. In case of injury claim, there are certain factors which are

required to be considered. They are as follows:-

a) The percentage of disability whether its partial or permanent.
b) The part of the body which is suffering from disability, and
use of that part of the body viz-a-viz the occupation of the
claimant.
c) The percentage of disability of that part of the body, as
against the percentage of the disability in respect of overall
body.
FACTS
10. Certain facts are required to be considered. There were two

claims filed before the Tribunal. One is by present Appellant-Martand

who was driving the motorcycle. Whereas one Subhash Shinde was the

pillion rider and he has filed a separate claim for claiming disability

compensation. Both were travelling on Pune Nashik Road on

25.05.2002. They were proceeding from Pune to Manchar at about

3.30 p.m., when they came near village Manchar, a truck MP-09/KA-

0011 belonging to the opponent No. 1 and insured with opponent No.

6 AIR 1995 SC 755
7 2013 AAC 2415

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FA 2211 of 2006.doc

2 came from opposite direction at high and excessive speed and dashed

the motorcycle. As a result, the Appellant and the pillion rider were

injured. The injuries sustained to the Appellant are as follows:-

a) there was compound fracture right shaft fumor.

b) Right tibia and dislocation of great toe.

c) amputation of right arm below elbow and other injuries.

11. Initially, the Appellant was treated at Siddhakala hospital and

then shifted to Sasoon hospital Pune. He was hospitalized from

25.05.2002 till 24.06.2002. He has also attended OPD for long

period. The insured has not contested the proceedings. It was contested

by the insurance Company only. All the averments in the Claim

petition were denied including the income and quantum of

compensation. During evidence, Martand entered into witness box. So

also examined Dr. Diggikar on the point of disability certificate. The

insurer has not given any evidence. As said above, the Tribunal has

concluded about the negligence of the Driver of the offending truck.

The details of the service of Appellant which has come in evidence are

as follows:-

a) At the time of accident, the Appellant was working with

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FA 2211 of 2006.doc

Post and Telegram Department as Clerk. His age was 45

years. He was drawing salary of Rs. 8,122/- per month.

b)He was hospitalized in Sancheti hospital from 25.05.2002

till 26.6.2002 and from 14.08.2002 till 16.08.2002, for the

purpose of removal of right external fixator.

c) There is certificate issued by the department of Post

dated 25.11.2005 mentioned in the leave enjoyed by the

Appellant from 25.05.2002 till 16.07.2003 at Exh. 27.

d) There is certificate dated 12.12.2005 issued by the

Senior Post Master, Pune City, at Exh. 28 certifying that an

amount of Rs. 12,24,236/- was the Medical claim and out of

that an amount of Rs. 1,13,127/- was sanctioned on

28.10.2002.

e) After the accident, he resumed his duties on

17.07.2003. He also resigned from the job. However,

admittedly, no document to show his resignation was placed

on record.

JUDGMENTS

12. It will be material to consider the observations in judgments

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cited by both the sides.

13. In case of Municipal Corporation of Delhi (supra), the Supreme

Court has laid down certain principles about the law of precedent.

They are as follows:

a) When there is order made by consent of the parties, the

Court does not adjudicate upon the rights of the parties

nor lay down any principle.

b) Quotability as ‘law’ applies to the principle of a case, its

ratio decidendi. The only thing in a Judge’s decision

binding as an authority upon subsequent Judge is the

principle upon which the case was decided. Statements

which are not part of a ratio decidendi are distinguished

as obiter dicta and are not authoritative.

c) The task of finding the principle is fraught with difficulty

because without an investigation into the facts, it is not

possible.

d) Pronouncement of law, which are not part of ratio

decidendi are classed as obiter dicta and are not

authoritative.

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FA 2211 of 2006.doc

14. According to Ms. Chavan, these principles are required to be

considered because according to her, Mr. Mendon has cited so many

judgments, but they are not the authoritative pronouncement, but they

are on the basis of the facts of that case. According to her, the law

which is laid down in case of Rajkumar (supra) is perfectly applicable

and this Court is required to appreciate the evidence on the basis of

principles laid down in that judgment, how to appreciate the evidence

in case of injury claim.

15. Whereas according to Mr. Mendon, after the decision in

Rajkumar in the year 2011, there are so many orders which are passed

by the Supreme Court consisting of three Judges and they are required

to be considered.

16. In Rajkumar (supra), the Supreme Court laid down the heads

under which compensation can be claimed. Broadly, it is pecuniary and

non- pecuniary damages. So certain heads of damages are towards

actual amount spent. Whereas certain heads are towards items which

cannot be ascertained. Generally, Tribunals do not find difficulty in

quantifying pecuniary damages. One of them is loss of future earnings.

For deciding this amount, Tribunal has to consider the percentage of

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FA 2211 of 2006.doc

physical disability and percentage of functional disability. Depending

upon this disability, the quantum of loss of future earning has to be

ascertained.

17. In Raj Kumar (supra), the Supreme Court observed the Tribunal

should not consider percentage of physical disability equivalent to loss

of earning. It is explained by way of illustration. If a Carpenter or

driver will loose his hand due to amputation, the percentage of physical

disability will be restricted to hand, but there may be 100 % functional

disability as he is unable to drive or to do carpentry work. However, if

Clerk will loose his hand by amputation his physical disability will not

result into 100% functional disability because he can do other work.

18. In some of the judgments cited by Mr. Mendon, the observations

in Rajkumar are considered. It is true the bench which delivered the

judgment of Rajkumar (supra) was consisting of two Judges. Whereas

in some of the judgments cited by Mr. Mendon, the bench consists of

three Judges. Even the application of multiplier method was upheld

(para no. 7 of the Erudhaya Priya’s Judgment). It is very well true that

the Tribunal has not applied the multiplier method while deciding the

compensation towards disability.

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FA 2211 of 2006.doc

19. I am not referring to each and every judgment relied upon by

Mr. Mendon except the principles which are laid down in Rajkumar

(supra). One cannot dispute that the Supreme Court has discussed the

principle in an injury claim petition in Rajkumar case. In all the

subsequent orders, the quantum is fixed on the basis of facts of the

individual case involving occupation of Claimant, part of the body

affected, whether it was permanent/partial and how such disability has

affected his earning capacity.

20. In Rajkumar (supra), the meaning of permanent disability is

explained as “the residuary incapacity or loss of use of some part of the

body, found existing at the end of the period of treatment and

recuperation, after achieving the maximum bodily improvement or

recovery which is likely to remain for the remainder life of the injured ”.

And the meaning of Temporary disability is explained as “ incapacity or

loss of use of some part of the body on account of the injury, which will

cease to exist at the end of the period of treatment and recuperation ”.

21. In Rajkumar (supra) there are also guidelines how to appreciate

the evidence adduced about medical certificate. The tribunals should

ascertain whether the treating doctor has issued the certificate, whether

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FA 2211 of 2006.doc

such doctor is examined as a witness, satisfaction of the tribunal about

the certificate and whether there is need to constitute medical board

(para no. 12).

22. It is true the Supreme Court in case of Rajkumar (supra) has

issued directions threadbare. Such directions do not find place in other

judgments cited by Mr. Mendon.

23. When Ms. Chavan commented on the evidence of Mr. Diggikar,

Medical Officer, Mr. Mendon relied upon observations in case of

Manoj Rahore Vs. Anil Raha8, wherein the Tribunal and High Court

has not accepted the evidence of medical officer (para nos. 6 and 7)

because he has not examined the patient scientifically. In an appeal, the

Supreme Court considered lack of challenge that the certificate was

fake or assessment was not correct (para no. 10).

About disability

24. On this background, if the evidence of Dr. Diggikar from Sasoon

Hospital is perused, we may find he has issued two certificates. They

are :-

a) Exh. 33

8 2012 ACJ 1459

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FA 2211 of 2006.doc

dated 13.06.2005 issued on the basis of examination on
13.06.2005 certifying permanent disability for 65%.
b) Exh. 34
dated 14.10.2002 opining 100% temporary disability.
Admittedly, Appellant has not taken treatment in Sasoon
Hospital.
25. Whereas the Appellant in his examination-in-chief has said

about disability to the extent of 65%. When the cross-examination is

perused, it does not reveal that this part is seriously challenged. What

was asked is when the Appellant resumed the duties on 17.07.2003, he

had furnished a fitness certificate issued by the Doctor to his superior,

this fitness certificate was issued by Sancheti hospital. It is very well

true that Dr. Diggikar is not the Doctor who has treated the Appellant,

but he is a Doctor who has examined him and issued the disability

certificate. The issue is “whether such certificate can be considered”.

26. If we go by the test laid down in the Rajkumar (supra), it can

certainly be said that the certificate issued by Dr. Diggikar is not the

certificate by treating doctor. At the same time, it is very well true, the

testimony of the Appellant on the point of percentage of disability is

not challenged during cross-examination. There is some inconsistency

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FA 2211 of 2006.doc

in between the examination-in-chief and cross-examination of Dr.

Diggikar. The certificate at Exh.33 which he has produced during his

chief-examination certifies the percentage of disability as 65%.

Whereas the certificate at Exh. 34 issued immediately opines that there

was temporary disability at 100%. It is pertinent to note that Exhibit

33 was issued on 13.06.2005, whereas Exhibit 34 was issued on

14.10.2002 i.e. within six months from the date of accident. The

Exhibit 33 was issued after almost three years. When Exhibit 34 was

issued, accident has occurred recently whereas when Exhibit 33 was

issued, Doctor was in a better situation to access percentage of

disability. That is why, due weightage has to be given to Exhibit 33,

wherein it is mentioned that the permanent disability is 65%. Now the

question arises what can be the functional disability and to what extent

this disability has hampered his earning capacity.

27. As held in Rajkumar (supra), a Clerk who is loosing hand may

not lose his job entirely, but he may continue the job but with a lesser

post. In that case, he need not be awarded the compensation towards

loss of future earning but can be awarded compensation under the

head loss of amenities as a consequence of loosing his hand. But if he

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FA 2211 of 2006.doc

continues the job on a lower post, then if he is awarded loss of future

earning capacity, then the compensation towards loss of amenities of

life should be only token, otherwise it may amount to duplication. Para

no. 10.

28. The Tribunal has granted Rs. 30,000/- towards future

inconvenience in the enjoyment of life. Whereas the Appellant is

claiming Rs. 1,00,000/- towards loss of expectation of life and Rs.

1,00,000/- towards loss of comfort and amenities. It is very well true, if

the person has lost his hand, there are bound to be certain restrictions

in his movement, it is going to affect his day to day functioning. He

will not be as comfortable as he was earlier to amputation.

Furthermore, there will be limitation on his day-to-day activities. He is

unable to perform certain functions in his normal life. Hence, I am

inclined to grant Rs. 1,00,000/- towards both the heads. Already the

Tribunal has granted Rs. 30,000/-, I am enhancing it to Rs. 1,00,000/-.

29. Even though the percentage of physical disability is 65%, Dr.

Diggikar has not explained this percentage of disability is over arm or

over entire part of the body. How it affects the earning capacity cannot

be opined by the Doctor, but it is a question depending upon facts and

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FA 2211 of 2006.doc

circumstances. In this case, the Appellant was working as Clerk and it

cannot be said that due to the amputation of the arm, he was not in a

position to work in a postal department. It has come on record that he

has resigned though the documents are not annexed.

30. Considering all the factors, I conclude that there will be 55%

adverse effect on his earning capacity. The multiplier has to be applied

and the loss of future earning has to be calculated. It is as follows :-

i) Rs.8122 X 12X14 yearly income comes to
Rs. 13,64,496/-
ii) 55% Rs.7,50,472.80/-.
iii) the future prospects Rs. 2,25,141.84/-
will be 30%

Leave salary

31. The accident took place on 25.05.2002 and he joined the duty

on 17.07.2003. During this period, he was on various kinds of leave.

There is certificate issued by the department of Post at Exh. 27. The

Appellant has claimed compensation for loss of earning during this

period. This is disputed by Ms. Chavan.

32. Mr. Mendon relied upon the observations in case of Kersasp

Mehta Vs. UOI 9. In that case the High Court has granted the damages

9 1986, ACJ 1002

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FA 2211 of 2006.doc

towards the loss of earning during the leave period. The reason given is

in future the employee may fall sick and if such an employee has

exhausted all the sick leave, including sick leave taken during the

period of hospitalization due to the accident, he cannot get a sick leave

for future period and that is how the High Court has allowed the

compensation towards loss of earning during that period. However, in

this case, it has come on record that the Petitioner has resigned from

the job. Though the date of resignation has not come on record, it is

fact that he has resigned. So it is difficult to apply the analogy given in

above said judgment. If he has resigned, there is no question of asking

for further sick leave period and the possibility of the employer being

denying the sick leave, because it is already exhausted on account of

accident. So I am not inclined to grant the compensation for loss of

earning during this period.

Medical Bills

33. When mediclaim was sanctioned by his employer, the

question is whether he is entitled to claim that amount from the

insurer. According to Mr. Mendon, the amount sanctioned by the

employer was a part of the service condition and it does not relieve

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FA 2211 of 2006.doc

the insurer from reimbursing the medical bills. Because the contract

of the employment is different and contract of insurance is different

and insurer is under statutory obligation to repay the medical bills.

34. Even though it is true that postal department has sanctioned

Rs.1,13,127/- towards reimbursement of medical bills, out of the claim

made by the Appellant before postal department for Rs.1,23,236/- and

hence the Tribunal has awarded an amount of Rs.15,795/-. It is true

this reimbursement is due to the condition of the service. It is true the

contract of insurance stands on a different footing and as such the

insurer is liable to reimburse an amount of Rs.1,23,236/-. Even

though the Appellant has received certain sum by way of

reimbursement from postal department.

Other Benefits

35. I am granting the compensation towards the attendant charges

for 50,000/- because he was admitted in Sancheti Hospital on two

occasions firstly after the accident and secondly in the month of

August.

36. At the same time it is necessary to award the compensation

towards the conveyance charges which I have quantified to

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Rs.50,000/-. Tribunal has not granted any compensation towards

future medical and hospital expenses. The Appellant has claimed

Rs.1,00,000/-. Towards hospital and medical expenses, Tribunal has

granted Rs.15,795/- towards expenses already incurred. So, future

expenses cannot be more. At the most, I grant Rs.15,000/-. I do not

find any enhancement is required in an amount of Rs.50,000/- granted

by the Tribunal for pain and suffering. As such the Appellant is

entitled to get an amount of Rs.11,92,851/-.

No. Particulars Amount granted by Amount granted by
the Tribunal this Court
1. 55% disability Rs.65,000/- 7,50,472.80
2. Future prospects 30% Nil 2,25,141.84
3. Loss of future expectation Rs.30,000/- 1,00,000/-
and comfort and amenities
4. Attendant charges Nil 50,000/-
5. Conveyance Charges Rs.10,000/- Rs. 50,000/-
6. Pain and Suffering Rs.50,000/- Rs.50,000/-
6. Future surgery Rs. 15,000/- Rs.15,000/-
7. Future Medical expenses Nil Rs.15,000/-
7. Nourishing diet Rs.25,000/- Rs.25,000/-
8. Hospital and medical Rs.15,795/- Rs.1,23,236/-
expenses
Total Rs.2,10,795/- Rs.14,03,851/-
Rounded- Less 2,11,000/-
2,11,000/-
Enhanced Amount 11,92,851/-

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37. In view of that the following order is passed:-

ORDER

1) The Appeal is partly allowed.

2) The Appellant is entitled to get an amount of Rs.11,92,851/-

(Eleven Lakhs Ninety Two Thousand Eight Hundred and Fifty

One Rupees only) and the Respondents are directed jointly and

severally to pay that amount to the Appellant within a period of

8 weeks from the date of uploading of this order.

3) The Respondents are directed to pay this amount at the rate of

6% per annum from the date of filing of the petition till the

time the amount is paid.

4) The Appellant is entitled to enhanced compensation subject

deposit of deficit Court fees.

38. In view of that the Appeal stands disposed of.

[S. M. MODAK, J.]

Seema/Panjwani 20/20

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