Kanubhai Gokalbhai Bariya vs Jaydipsinh Gopalsinh Parekhiya

Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2025 (@ Special Leave Petition (C) No. of 2025) (@Diary No. 20941 OF 2023)

KANUBHAI GOKALBHAI BARIYA …APPELLANT

VERSUS

JAYDIPSINH GOPALSINH PAREKHIYA & ORS. …RESPONDENTS

J U D G M E NT

K. VINOD CHANDRAN, J.

1. Leave granted.

2. The appellant while travelling pillion in a bike met

with an accident when a bus rammed into the bike, killing

the driver of the bike and seriously injuring the

appellant. The right leg of the appellant was amputated,

below the knee and the right hand was also deformed

from the injuries sustained. The appellant before the

Signature Not Verified Tribunal sought a total compensation of Rs.35,00,000/-, Digitally signed by Nirmala Negi

asserting a salary of Rs. 12,000/- per month as a Date: 2025.05.07 19:32:06 IST Reason:

Page 1 of 6

CA @ SLP(C) Diary No. 20941 of 2023 watchman, which employment he was not able to

continue after the accident, due to the amputation.

3. The Tribunal found contributory negligence on the

bike driver which was apportioned @ 20% while the bus

driver was found to be more negligent @ 80%. The

Tribunal found that the income of the injured as per the

documents produced clearly indicated Rs.9,918/- which

was adopted for the purpose of deciding the loss of

income which also was of a permanent nature due to the

permanent physical disability suffered. The Tribunal

relied on Raj Kumar v. Ajay Kumar1, to find 55%

functional disability, for payment of Rs. 50,000/- and the

income loss for 2 months was assessed at Rs. 20,000/. The

medical bills coming to a total of Rs. 5,17,850/- was

allowed with an additional amount of Rs. 10,000/- for

special diet. The total compensation awarded by the

Tribunal came to Rs.16,34,650/- with interest @ 9% per

annum. The Tribunal directed the insurer of the bike and

1 (2011) 1 SCC 343

Page 2 of 6 CA @ SLP(C) Diary No. 20941 of 2023 bus to compensate the petitioner respectively in a ratio

of 20:80.

4. The High Court in the appeal granted 40% increase

in the income as has been held in Pranay Sethi2. Actual

loss of income was calculated for 6 months with the future

prospects included. According to us, that may not be

correct since 40% increase is to take in the future

prospects of the injured and as on the date of accident

when the income is proved, the loss of income should be

based on the income proved before the Tribunal. We are

conscious of the fact that the Insurance Company is not

before us but since just compensation is to be paid, we

reduce the same to Rs. 60,000/- for 6 months.

5. As far as the loss of future income is concerned, the

Tribunal and the High Court adopted 55% as the

disability. The learned Counsel appearing for the

appellant would contend that he was working as a

watchman and considering the amputation, his disability

2 (2017) 16 SCC 680

Page 3 of 6 CA @ SLP(C) Diary No. 20941 of 2023 would be 100%. The appellant’s counsel would also seek

for increase in the other heads including that for pain and

suffering.

6. Raj Kumar1 found that the disability assessed for

determining compensation should be the functional

disability. In the present case the physical disability of

the appellant was proved by the evidence of a doctor

who examined him and assessed his physical disability.

The certificate proved by the doctor clearly indicated

80% disability with respect to his amputated leg and 10%

disability insofar as the deformed right hand. The doctor

had clearly deposed that the stump of the right leg was

also deformed and there was no possibility of using an

artificial limb. In such circumstances, we are of the

opinion that the disability of the appellant would be 80%

only considering the fact that the appellant could still

move on crutches. The appellant had been in hospital for

one and a half months and due to the amputation, would

have definitely suffered bed rest for some time in the

Page 4 of 6 CA @ SLP(C) Diary No. 20941 of 2023 context of which the High Court has granted 6 months

loss of income though the loss of income has been

reduced by us. We are of the opinion that the pain and

suffering of the appellant has to be increased along with

an increase for special diet and attendant charges. The

compensation for pain and suffering would be Rs.

1,00,000/- and the attendant charges including special

diet for the period when the appellant was hospitalized;

which the High Court determined as 6 months, would be

@ Rs. 15,000/- per month, thus totalling to Rs. 1,90,000/-.

Hence the total compensation is as computed below:

S. No. Heads of claim Amount 1. Loss of income

Rs. 9,818/- x 140% x 12 x 16 Rs. 21,11,262.72/- x 80%.

2. Attendant charges and special diet for 6 months @ Rs. 90,000/- Rs. 15,000/-.

3. Medical Bills. Rs. 5,17,850/-

4. Pain and suffering. Rs. 1,00,000/-

5. Loss of income due to bed- Rs. 60,000 rest for 6 months.

Total compensation Rs. 28,79,112.72/-

Page 5 of 6 CA @ SLP(C) Diary No. 20941 of 2023

7. The above amount shall be apportioned in the ratio

of 20:80 as against the insurer of the bike and the bus. The

awarded amounts shall be paid within a period of two

months from today with interest @ 9% per annum as

ordered by the Tribunal and whatever amounts have

already been paid shall be deducted. The appellant shall

provide the bank account details to the Insurance

Companies who shall transfer the amount online within

the period specified hereinabove.

8. The Appeal stands allowed with the above

directions.

9. Pending application(s), if any, shall stand disposed

of.

……………..……………, J.

[SUDHANSHU DHULIA]

……………..……………, J.

[K. VINOD CHANDRAN] NEW DELHI;

MAY 07, 2025.

Page 6 of 6 CA @ SLP(C) Diary No. 20941 of 2023