JUDGMENT : (PER : HONOURABLE MR. JUSTICE MAULIK J.SHELAT) 1. The present appeal is filed by the appellant - Insurance Company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the M.V. Act"), against the judgment and award dated 18.09.2024 passed by the Motor Accident Claims Tribunal (Auxi.) & 6th Additional District Court, Rajkot at Dhoraji in Motor Accident Claim Petition No. 25 of 2020. For the sake of convenience, the parties are referred to as per their position before the Tribunal. Brief Facts of the Case 2. The brief facts of the case are as follows:- 2.1 That on 09.01.2019, the claimant was coming home on his motorcycle number GJ-02-CJ-2447. When he reached at Ranchhodpura Chowkdi On Vijapur-Himmatnagar road, about 2:00 PM, a truck, bearing registration number GJ-09-AV-9740, dashed with motorcycle of claimant, thereby, the claimant has sustained serious injuries resulted into permanent disablement. So, the claimant had preferred a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.1,60,00,000/- against the opponents i.e. Driver, owner and insurance company of the truck respectively. 2.2 The driver and owner of the truck have appeared through their lawyers and filed a joint written statement at Exhibit 12. Nonetheless, the driver and owner of the truck have not come forward for their oral evidence. 2.3 The insurance company of the truck has also filed its written statement at Exhibit 40. The opponents opposed the claim petition on all counts but chosen not to appear to lead any oral or documentary evidence to rebut the case of claimant. 2.4 The claimant has examined himself at Exhibit 16 and to prove his disability i.e., Neurological and physical disability, examined Dr. Dinesh Kanjibhai Gajera, a neurosurgeon at Exhibit 52 and Dr. Sagar Tulsidas Chudasama, Ortho Surgeon at Exhibit 53 respectively. The claimant has also submitted the FIR and panchnama to prove the involvement of truck and the negligence of driver. He has also submitted his treatment papers and income proof by producing the following documents:- -:Evidences of the Claimant:- -:ORAL EVIDENCE:- Sr.No. Exhibit Particulars of document 1. Exh.16 Evidence by the way of affidavit of claimant 2. Exh.52 Deposition of Dr. Dinesh Kanjibhai Gajera, Neurosurgeon 3. Exh.53 Deposition of Dr. Sagar Tulsidas Chudasama, Ortho. Surgeon DOCUMENTARY EVIDENCE Sr.No. Exhibit Particulars of document 1. Exh.19 Copy of the FIR 2. Exh.16 Evidence by the way of affidavit of claimant 2. Exh.52 Deposition of Dr. Dinesh Kanjibhai Gajera, Neurosurgeon 3. Exh.53 Deposition of Dr. Sagar Tulsidas Chudasama, Ortho. Surgeon DOCUMENTARY EVIDENCE Sr.No. Exhibit Particulars of document 1. Exh.19 Copy of the FIR 2. Exh.20 Copy of the panchnama of the spot 3. Exh.21 Copy of the driving license of the driver of the Truck 4. Exh.22 Copy of the RC Book of the Truck 5. Exh.23 Copy of the fitness certificate of the Truck 6. Exh.24 Copy of the insurance policy of the Truck 7. Exh.25 Copy of the treatment certificate of the claimant issued by Government Hospital, Vijapur 8. Exh.26 Discharge Summary- Hi Tech Multi Speciality Hospital 9. Exh.27 Discharge Summary- Apollo Hospital 10. Exh.28 Copy of the operation note of Apollo Hospital 11 Exh.29 Discharge Card- Hi Tech Hospital 12 Exh.30 Discharge Card- Hi Tech Hospital 13 Exh.31 CT Scan Reports- X-Ray- and case papers 14 Exh.32 Disability Certificate issued by Dr. Sagar T. Chudasama with X-rays 15 Exh.33 Disability Certificate issued by Dr. Dinesh Gajera 16 Exh.34 Medical Bills 17 Exh.35 Prescriptions and Lab. Reports 18 Exh.36 Copy of the Pancard of the claimant 19 Exh.37 Copy of the Ration Card of the claimant 20 Exh.38 to 40 Copy of the Income Tax Returns filed by the claimant from A.Y 2017-18 to A.Y.2019-20 21 Exh.41 Copy of the driving license of the claimant 22 Exh.42 Copy of the vehicle history report of the motor cycle no. GJ02-CJ-2447 2.5 Learned advocates for the respective parties submitted their written arguments at Exhibits 60 and 63, respectively. 2.6 After appreciating the facts on record, the Tribunal has found the driver of truck 80% negligent, whereas the injured claimant was found 20% negligent in causing the accident. The Tribunal, after examining the oral evidence of claimant and expert doctors as well as documentary evidence in relation to the disability and income of injured claimant, awarded Rs.72,30,327/- under the respective heads, as under:- Future loss of income Rs.62,80,922/- Pain, Shock and Sufferings Rs.50,000/- Loss of amenities. Rs.50,000/- Actual loss of income & Expenses on attendant Rs.64,000/- Medical Expenses Rs.7,70,405/- Special Diet, Transportation Rs.15,000/- Total Amount of Compensation Rs.72,30,327/- 2.7 Being aggrieved and dissatisfied with the judgment and award of Tribunal, the insurance company filed this appeal on the issues of negligence and quantum. 2.8 Mr. Rs.50,000/- Actual loss of income & Expenses on attendant Rs.64,000/- Medical Expenses Rs.7,70,405/- Special Diet, Transportation Rs.15,000/- Total Amount of Compensation Rs.72,30,327/- 2.7 Being aggrieved and dissatisfied with the judgment and award of Tribunal, the insurance company filed this appeal on the issues of negligence and quantum. 2.8 Mr. Vibhuti Nanavati, Learned advocate for the appellant – insurance company, initially heard for admission of appeal and on request being made by this Court, he has supplied the paper book containing the documentary and oral evidence submitted by the claimant before the Tribunal. After perusing such evidence on record and hearing the learned advocate for the appellant at length, this Court is not inclined to admit the appeal for the reasons set out hereinafter. Submission of the Appellant (Insurance Company-Opponent No.3) 3. Mr. Vibhuti Nanavati, learned advocate for the appellant, submitted that the Tribunal has committed a serious error while deciding the issue of negligence and wrongly held the driver of truck 80% negligent in causing the accident. He submitted that the injured claimant was riding the motorcycle in a negligent manner, having entered on main highway without noticing the truck passing through it, which caused the collision. He further submitted that if the claimant had exercised greater caution while turning onto the main highway from a crossroad, the accident could have been avoided. 3.1 According to the learned advocate for the appellant, it is a case of higher negligence of motorcyclist for causing accident whereas Tribunal has found driver of truck negligent more for causing accident. He would fairly submit that FIR was registered against driver of truck, who was not present for his oral evidence. But, according to him, considering the crossexamination of the injured claimant, the Tribunal could have held both drivers equally negligent for causing the accident. 3.2 Learned advocate for the appellant would further submit that the doctors, who have been examined by the claimant before the Tribunal, gave an exaggerated version of injuries sustained by the claimant, thereby assessing a much higher permanent physical disability to the claimant than actually received by him. He would further submit that both doctors are not competent to issue disability certificates and that their evidence may be discarded for assessing permanent disability. He would further submit that both doctors are not competent to issue disability certificates and that their evidence may be discarded for assessing permanent disability. 3.3 Learned advocate for the appellant would lastly submit that the income, which was considered by the Tribunal is much higher, and the Tribunal erred in considering the second last ITR of the injured claimant without properly considering the income shown in the income tax returns of the injured claimant for the assessment years 2017-18 and 2018-19. He has drawn our attention to ground ‘G’ of the memo of appeal and requested this Court to consider annual average income of injured claimant i.e., Rs.2,91,990/- (Rs.24,332/- per month) instead of Rs.38,470/ per month considered by the Tribunal. So According to learned advocate for the appellant – Insurance Company, the Tribunal has committed serious error of facts and law while deciding issue of negligence as well as quantum, thereby committed an error in granting more than just compensation to the injured claimant. 4. No other further submissions are being made. As stated herein above, we have gone through the oral and documentary evidence submitted by claimant before tribunal. So, this Court has not thought it fit to call for records and proceedings as the relevant evidence is already supplied by the appellant. Points of determination 5. The point of determination are as follows. (i) Whether, in the facts and circumstances of the case, any error committed by the Tribunal while adjudicating the claim petition and deciding the issue of negligence and quantum? Appreciation and evaluation of Submissions – Findings 6. We have minutely gone through the impugned judgment and award passed by the Tribunal, as well as the oral and documentary evidence produced on record by the claimant, which has been supplied by the learned advocate for the appellant for our perusal. It is true that the driver and owner of the truck had filed their written statement and also crossexamined the claimant, but they have chosen not to appear for their oral evidence in support of their pleadings. According to this Court, in the absence of oral evidence from opponent No.1 and 2, their written statement has no evidentiary value. Even the insurance company has not taken any steps to examine the driver of truck to rebut the allegation of his sole negligence made in the claim petition. According to this Court, in the absence of oral evidence from opponent No.1 and 2, their written statement has no evidentiary value. Even the insurance company has not taken any steps to examine the driver of truck to rebut the allegation of his sole negligence made in the claim petition. The injured claimant, happens to be an eyewitness to the accident, narrated entire set of incident in his examination-in-chief by way of his affidavit blaming driver of truck solely responsible for causing the accident. 7. We have gone through the cross-examination of claimant, wherein nothing adverse have been found, which can be helpful to the appellant to prove higher contributory negligence on the part of claimant for causing accident. We have observed that in cross-examination, the claimant refuted all suggestions put by opponents in connection with his alleged negligence including not wearing a helmet at the time of accident. No adverse evidence brought by the opponent on record to remotely prove their case put in their defence in their pleading. 8. The Tribunal has examined the evidence led by the claimant threadbare and also considered that in a claim petition filed under section 166 of the Motor Vehicles Act (M.V.Act), the standard of proof is based on the principle of preponderance of probability and not to be judged on the principle of strict proof of evidence by placing reliance upon decision of Honourable Supreme Court of India in a case of Sunita and others versus Rajasthan State Road Transport Corporation reported in 2020 (13) SCC 486 . It has been so observed that the FIR was filed against the driver of truck, who remained absent before the Tribunal to rebut the allegation of his sole negligence then as per settled legal position of law, an adverse inference requires to be drawn against him. There is nothing on record to prove the fact that claimant had not taken care while entering on the main road from cross-road rather in absence of oral evidence of driver of truck, merely on ipse dixit of insurance company, no presumption could have been drawn against rider of motorcycle not taking due care. 9. It is also observed that the insurance company failed to prove that the claimant was not wearing a helmet at the time of the accident, as nothing was brought to that effect. 10. 9. It is also observed that the insurance company failed to prove that the claimant was not wearing a helmet at the time of the accident, as nothing was brought to that effect. 10. According to this Court, the driver of truck was a key witness who could have been examined by the opponent - insurance company to prove actual or higher contributory negligence on the part of the claimant i.e. motorcycle rider. However, in the absence of oral evidence of the driver of truck, the Tribunal and so this Court have no choice but to rely on the FIR, Panchnama and the oral evidence of the claimant, to determine the issue of negligence. 11. The Tribunal, after examining and appreciating the evidence, concluded that if some care had been taken by both set of drivers then the accident could have been avoided. So, after considering all these aspects and the evidence on record, the Tribunal found the driver of truck 80% negligent and the motorcycle rider - claimant 20% negligent in causing the accident. 12. According to this Court, after going through the evidence on record and its appreciation and keeping in mind the principle laid down by the Honorable Supreme Court of India including in the case of Sunita (supra), the standard of proof before the Tribunal is based on the principle of preponderance of probability then we are in complete agreement with the reasons assigned by the Tribunal while deciding the issue of negligence inter se between the claimant and opponents which requires no interference by this Court. 13. So far as granting compensation in favour of claimant is concerned, he was aged 27 years old at the time of the accident, having sustained serious injuries on his head and upper and lower limbs of his body. He has undergone rigorous medical treatment and operations. The disability sustained by claimant seriously affected his routine as well activity which he was undertook for his livelihood prior to accident. 14. To prove the disability, as noticed herein above, claimants have examined two doctors who were thoroughly cross-examined by the learned advocate of insurance company, but nothing adverse emerged from their cross-examination; rather, it reinforced and proved the disability observed by them in their respective disability certificate. 15. Dr. 14. To prove the disability, as noticed herein above, claimants have examined two doctors who were thoroughly cross-examined by the learned advocate of insurance company, but nothing adverse emerged from their cross-examination; rather, it reinforced and proved the disability observed by them in their respective disability certificate. 15. Dr. Dinesh Gajera, a neurosurgeon, who was examined at Exhibit 52, clearly proved that the claimant had difficulty in his speaking, occasional giddiness, and hearing impairment in his left ear. The doctor assessed 21% disability to the body as a whole. It is required to be observed that in his examination-in-chief, Dr. Gajera clearly deposed that the claimant requires Rs.1500-2000 monthly expense for medicine etc i.e. future medical expenses. This part of his oral evidence remained uncontroverted in his cross-examination. It may be noted here that Tribunal has not awarded any amount towards future medical expenses. 16. Dr. Sagar Chudasama, an orthopedic surgeon, who was examined at Exhibit 53, deposed that the claimant had a fractured of femur in his right leg and underwent an operations in both hands & legs, whereby plate has been fitted. He has further deposed that claimant has fractured in both the hands and legs. 17. According to the doctor, due to injuries and operations, which was carried out in both hands and legs, the claimant would have constant pain in his hands and he cannot walk briskly and also unable to run. The patient can not sit on floor with cross legs and can not walk on elevated road. 18. He has other physical disability to perform the daily routine and so, he become disabled to the extent of 96% for the body as a whole. Dr. Chudasama was thoroughly crossexamined by learned advocate of insurance company wherein he has denied all suggestion put by opponent suggesting lesser disability than assessed by him. Even, the doctor has confirmed that before issuing disability certificate, fresh X-ray was obtained and on physical examination of patient, issued disability certificate. Further, it has been come out from its cross examination that there is no chance of recovery in future. 19. So, both these doctors have categorically refuted suggestion put by learned advocate for insurance company that they are not competent to issue disability certificate. Further, it has been come out from its cross examination that there is no chance of recovery in future. 19. So, both these doctors have categorically refuted suggestion put by learned advocate for insurance company that they are not competent to issue disability certificate. Nothing adverse has been brought on record by insurance company to substantiate its say about incompetence of doctors concerned in relation to issuance of respective disability certificate issued by them as well assessment of permanent disability by them. 20. At this stage it is apposite to refer and rely upon decision of Honourable Supreme Court of India in a case of Aabid Khan V/s Dinesh & Others reported in 2024 (6) SCC 149 reads as under, “[9] Further, in the matter of Sidram v. Divisional Manager, United India Insurance Co. Ltd. and Another, (2023) 3 SCC 439 it was observed by this Court: "113. Before we close this matter, it needs to be underlined, as observed in Pappu Deo Yadav (supra) that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim's having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge's mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life Under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances there is resultant affront to the injured victim. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances there is resultant affront to the injured victim. [See: Pappu Deo Yadav (supra)]" [10] In the light of the afore-stated position of law explained when the medical evidence tendered by the claimant is perused, we are of the considered view that tribunal and the High Court committed a serious error in not accepting the said medical evidence and in the absence of any contra evidence available on record, neither the tribunal nor the High Court could have substituted the disability to 10% as against the opinion of the doctor (PW-5) certified at 17%. In that view of the matter the compensation awarded under the head 'loss of income' towards permanent disability deserves to be enhanced by construing the whole body disability at 17%.” 21. We have gone through reasoning of Tribunal while arriving at 69% permanent functional disability of claimant body as a whole and so also minutely examined the evidence of both these doctors and perused disability certificate issued by the respective doctors. We are of the view that there is no error much less any apparent error committed by Tribunal while assessing 69% permanent functional disability body as a whole of the claimant. According to us, the claimant has successfully proved his permanent disability due to the accidental injuries received by him which has crippled him then considering aforesaid ratio of decision of Apex Court in a case of Aabid Khan (supra), this Court would not like to interfere with assessment of disability adjudicated by Tribunal. 22. This leads us to the next limb of argument of Mr Vibhuti Nanavati, learned advocate appearing for the appellant that Tribunal has committed error in assessing the income of claimant. To appreciate the argument of learned advocate of insurance company in relation to the assessment of income, we requires to examine income tax returns, statement of income, profit and loss account balance-sheet etc. submitted by claimant before Tribunal. These documentary evidence are not disputed by insurance company produced at Exhibit 38, 39 and 40 i.e. ITRs for the assessment year 2017-18, 2018-19 and 2019-20 respectively. 23. submitted by claimant before Tribunal. These documentary evidence are not disputed by insurance company produced at Exhibit 38, 39 and 40 i.e. ITRs for the assessment year 2017-18, 2018-19 and 2019-20 respectively. 23. It appears that last ITR for assessment year 2019-20 was filed on 21.06.2019 i.e. subsequent to date of accident as accident took place on 09.01.2019. Learned Tribunal has not taken such ITR of claimant for computing income of the claimant. It is true that Tribunal has considered ITR of claimant for assessment year 2018-19 produced at exhibit 39 thereby, considered his annual income Rs.3,82,470/- and accordingly awarded future loss of income. 24. We have gone through the copies of the 3 ITR submitted on record, wherein we have observed the income received by claiming from his business profession as under:- Sr.No. Exhibit Assessment year Gross Total Income Income Tax Paid Net Income 1 38 2017-18 3,26,077/ 0 3,26,077/- 2 39 2018-19 3,82,470 0 3,82,470 3 40 2019-20 4,25,650/ - 0 4,25,650/- 25. Mr Vibhuti Nanavati, Learned advocate appearing for the appellant - insurance company has vehemently submitted that Tribunal has committed error in computing income of deceased by placing reliance upon income shown in ITR for assessment year 2018-19 and would submit that income ought to have been considered Rs.2,91,990/- as submitted in ground ‘G’ of memo of appeal. 26. When we have gone through ITR for assessment year 2018-19 and also computation of total income, it appears to us and so drawn the attention of Mr. Nanavati, learned advocate for the appellant that investments, which were made in PPF and LIC policy etc. by claimant to save the tax, is deducted by him while computing income of claimant shown in ground ‘G’ of memo of appeal, which is not correct as those investments are his savings and not an expense which can be deducted from his income while computing compensation. Mr Nanavati learned advocate for the appellant insurance company is unable to controvert the aforesaid aspects of the fact. 27. It is also required to be considered that accident had taken place on 09.01.2019 then naturally income tax return for assessment year 2019-20 could not have been filed by claimant prior to accident but having not taken into account by the Tribunal, then we would not like to state anything more on it. 28. 27. It is also required to be considered that accident had taken place on 09.01.2019 then naturally income tax return for assessment year 2019-20 could not have been filed by claimant prior to accident but having not taken into account by the Tribunal, then we would not like to state anything more on it. 28. Be that as it may, it can be so observed from aforesaid income shown in respective ITRs that year on year, income of claimant was increasing gradually. According to this Court, considering aforesaid aspect of the case and evidence on record in the form of last few years ITRs of the claimant, there is no error committed by Tribunal while computing income of claimant. 29. We have also taken note of the fact that prima facie, under non-pecuniary heads, compensation granted is not commiserate with disability sustained by Claimant who was very young hardly 27 years at the time of accident then keeping all these factors into our mind, we are of the view that there is no error committed by Tribunal in granting compensation then no interference required by this Court in the appeal filed by insurance company. Conclusion 30. Thus, upshot of the aforesaid discussion and reasons, we found no merit in the appeal and the same is required to be dismissed at threshold, hence, DISMISSED with no order as to costs. The Civil Application is also disposed of accordingly. 30.1 As the appeal is dismissed, if awarded amount is deposited by the insurance company then it may be disbursed and invested in favour of the Claimant as per direction issued by the Tribunal.