IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 3132 of 2022 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR ==============================================

Approved for Reporting Yes No ==============================================

DIPAKKUMAR DILIPBHAI LOHANA Versus RANJITSINH DALUBHAI BARIYA (DELETED) & ORS.

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Appearance:

MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1 MR GC MAZMUDAR(1193) for the Defendant(s) No. 3 MR HG MAZMUDAR(1194) for the Defendant(s) No. 3 RULE SERVED for the Defendant(s) No. 2 ==============================================

CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 10/02/2026

ORAL JUDGMENT

1) Feeling aggrieved and dissatisfied with the judgment and award dated 02.05.2019 passed by learned Motor Accident Claims Tribunal (Auxi.), Dahod at Limkheda (which shall hereinafter be referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.54 of 2018 (Old MAC Petition No.800 of 2009), the appellant – original claimant has preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (which shall hereinafter be referred to as "the Act" for short).

2) Heard learned Advocate Mr. M M. Hakim, for the appellant – original Claimant and learned Advocate Mr. G. C. Mazmudar, for the respondent no.3 – Insurance Company. The respondent no.2 was duly served but did not appear before this Court. Perused the original record and proceedings.

3) It is the case of the appellant – original claimant that on 13.8.2009 the applicant was going with his motorcycle bearing Reg. No.GJ-17- P-9007, as a pillion rider and his friend Sureshkumar was riding the motorcycle. The opponent no.1 came with his truck bearing Reg. No.GJ-16-V-4391, in rash and negligent manner through Pipliod market and dashed the motorcycle on Randhikpur road. Due to which the applicant and his friend sustained grievous injuries. Therefore, the appellant had filed MAC Petition seeking compensation, wherein, the learned Tribunal after appreciating the evidence produced on record the learned Tribunal has partly allowed the claim petition.

4) Learned Advocate for the appellant has submitted that the learned Tribunal has committed error while assessing the income of the appellant as he was earning Rs.1,50,000/- per annum from business of Mobile repairing and STD PCO Shop, whereas, the Tribunal has only considered Rs.4,000/-. He has further submitted that the appellant suffered fracture which led to paraparesis and restricted movement and hence the Tribunal ought to have considered 100% functional disability of the appellant. He has further submitted that the Tribunal also erred in awarding meagre amount towards non pecuniary loss to the appellant. Hence, he has requested to allow the present appeal.

5) Learned Advocate for the respondent – Insurance Company has opposed the present appeal and submitted that the learned Tribunal has properly considered the income and 28% disability of the appellant on the basis of pursis passed by the parties and awarded just and proper compensation. Hence, he has requested to dismiss the present appeal.

6) Having heard the learned Advocates for the respective parties and going through the record it appears that the learned Tribunal has considered the evidence on record and relied on the judgment in the cases of Bimla Devi Vs. H.R.T.C, reported in AIR 2009 SC 2819, and Parmeshwari Devi Vs. Amir Chand, reported in 2011 (11) SCC 635, and appreciated the evidence. The claimant has tendered the affidavit wherein all the facts of the accident have been narrated in the chief-examination at Exhibit 19 and supported the claim petition and relied on the FIR, panchnama, Disability Certificate etc., exhibited vide 21 to 33 (Colly.). The driver of Truck has not stepped into the witness box and the evidence was appreciated based on preponderance of probabilities and held driver of the Truck solely negligent in occurrence of the accide