IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1077 of 2022 FOR APPROVAL AND SIGNATURE:

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

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

KALUBHAI DULABHAI PRAJAPATI Versus HEIRS OF ILYASBHAI GULAMNABI VHORA & ORS.

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Appearance:

MR R G DWIVEDI(6601) for the Appellant(s) No. 1 MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 2 MR TANMAY B KARIA(6833) for the Defendant(s) No. 4 RULE SERVED for the Defendant(s) No. 1.1,1.2,1.3,3 ============================================

CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 03/03/2026

ORAL JUDGMENT

1) Feeling aggrieved and dissatisfied with the judgment and award dated 06.01.2020 passed by learned Motor Accident Claims Tribunal (Auxi.), Kheda at Nadiad (which shall hereinafter be referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.847 of 2012, 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. R. G. Dwivedi, for the appellant –

original Claimant, learned Advocate Mr. C. A. Mehta, for the respondent no.2 – Insurance Company and learned Advocate Mr. T. B. Karia, for the respondent no.4 – Insurance Company. The respondent nos.1.1, 1.2, 1.3 and 3 are duly served but remained absent. Perused the original record and proceedings.

3) It is the case of the appellant that on 12.06.2012, the appellant was travelling in goods carrying tempo bearing Reg. No.GJ-23- W-788, along with his goods and when he reached place of accident the driver of Maruti Eeco bearing Reg. No.GJ-17-N- 7288, came by driving his vehicle in rash and negligent manner and dashed with the rickshaw in which the appellant was travelling and accident was occurred. Due to which the appellant sustained grievous injuries which resulted into permanent partial disability. Therefore, the appellant had filed MAC Petition seeking compensation, wherein, the learned Tribunal after appreciating the evidence produced on record has held contributory negligence to the extent of 80% of driver of Eeco car and 20%

of driver of loading Tempo and partly allowed the claim petition.

4) Learned Advocate Mr. R. G. Dwivedi, for the appellant – original claimant has submitted that the learned Tribunal has failed to award just and proper compensation and considered the income of the claimant as Rs.3,000/- per month ignoring the fact that he is working as skilled labourer in diamond industry. He has further submitted that the Tribunal has committed error in assessing disability of the appellant to the extent of 22% body as a whole despite the fact that he suffered 44% disability which have been proved by adducing the evidence at Exhibits 67 and 69. He has further submitted that the Tribunal also erred in awarding meagre amount towards non pecuniary losses. Hence, he has prayed to allow the present appeal.

5) On the contrary, the learned Advocate Mr. C. A. Mehta, for the respondent no.2 – Insurance Company has opposed the present appeal and submitted that the Tribunal has rightly assessed the disability of the appellant and as the Doctor has given evasive reply who has not treated the appellant hence question does not arise to reassess the disability. Even in the first certificate nowhere it is stated that the appellant suffered shoulder injury. Hence, he has submitted that question does not arise to interfere with the reasons assigned by the Tribunal qua functional disability considering the avocation of the appellant as he is doing sedentary work. Hence, he has requested to dismiss the present appeal.

6) Similarly, the learned Advocate Mr. T. B. Karia, for the respondent no.4 – Insurance Company has opposed the present appeal by adopting the arguments made by the learned Advocate for the respondent no.2 and fur