Gujarat High Court
Rajeshkumar Chhajuram Kundu vs Shantilal Nanji Meena on 2 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/23/2010 JUDGMENT DATED: 02/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 23 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
No
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RAJESHKUMAR CHHAJURAM KUNDU
Versus
SHANTILAL NANJI MEENA & ORS.
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Appearance:
MR MIHIR H PATHAK(5261) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 02/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal, Vadodara (hereinafter referred to as Page 1 of 12 Uploaded by RINKU MALI(HC01574) on Wed Jan 08 2025 Downloaded on : Wed Jan 08 21:21:26 IST 2025 NEUTRAL CITATION C/FA/23/2010 JUDGMENT DATED: 02/01/2025 undefined "Tribunal") in Motor Accident Claim Petition No.1331/2002 by which the learned Tribunal has partly allowed the said claim petition and has awarded a total sum of Rs.6,73,000/- towards compensation for the injury of the appellant-Rajeshkumar Chhajuram Kundu i.e. original applicant-claimant, the original applicant-claimant has preferred the present appeal to enhance the amount of compensation.
2. We have heard Mr. Mihir H. Pathak, learned advocate appearing on behalf of the appellant-original claimant and Mr. Palak H. Thakkar, learned advocate appearing on behalf of the respondent No.3-Insurance Company. We have considered and perused the impugned judgment and award passed by the learned Tribunal. We have re-appreciated the entire evidence on record. Respondent Nos.1 and 2 have remained unserved.
3. The brief facts of the case are as under:
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NEUTRAL CITATION C/FA/23/2010 JUDGMENT DATED: 02/01/2025 undefined 3.1 The appellant-original claimant was driver in R.C. Transport company and on 20/05/2001, he was plying Truck bearing Registration No.GJ-1-5665 from Bombay to Ahmedabad. At around 9.30 p.m., claimant went to use washroom by parking his truck on left side of the road. Claimant while was standing on the edge of the road, a truck having registration No.GJ-01-6184 came from opposite side i.e. from Vadodara side in full speed and in rash and negligent manner and dashed with the claimant. The claimant suffered serious injuries on his right leg, head and stomach as well as on the shoulders resulting into amputation of his right leg and some of the muscle of his stomach.
3.2. The claimant filed an application before the learned Motor Accident Claim Tribunal (Auxi), Vadodara claiming compensation of Rs.15,00,000/- being M.A.C.P. No.1331 of 2002. The learned tribunal partly allowed the application and awarded am amount of Rs.6,73,000/- with running interest of Page 3 of 12 Uploaded by RINKU MALI(HC01574) on Wed Jan 08 2025 Downloaded on : Wed Jan 08 21:21:26 IST 2025 NEUTRAL CITATION C/FA/23/2010 JUDGMENT DATED: 02/01/2025 undefined 7.5% from the date of filing of petition till the realization of award.
3.3. Being aggrieved and dissatisfied with lesser amount of compensation awarded by judgment and award dated 03/10/2007, the appellant-original claimant is before this Court for enhancement. The Appeal is restricted to point of further prospective income and assessing less percentage of disability.
4. At the outset it is required to be noted that the injured Rajeshkumar Chhajuram Kundu at the time of accident was aged 21 years and injured in a vehicular accident. That the original claimant claimed a total sum of Rs.15 lakh towards compensation under different heads. That the learned Tribunal awarded future loss of income / loss of dependency by assessing the income of the injured at Rs.3000/- per month. The learned Tribunal applying the multiplier of 15, awarded Rs.4,05,000/-
towards future loss of income. The learned Tribunal also Page 4 of 12 Uploaded by RINKU MALI(HC01574) on Wed Jan 08 2025 Downloaded on : Wed Jan 08 21:21:26 IST 2025 NEUTRAL CITATION C/FA/23/2010 JUDGMENT DATED: 02/01/2025 undefined awarded Rs.50,000/- towards pain, shock and suffering, Rs.1,50,000/- towards future medical expenses, Rs.10,000/- towards transportation and Rs.15,000/- towards special diet, Rs.25,000/- towards attendant charges and Rs.18,000 as loss of income of six months. Thus, the learned Tribunal awarded a sum of Rs.6,73,000/- with 7.5% interest thereon from the date of claim petition till realization.
5. Learned advocate for the appellant-claimant has submitted that learned tribunal has not taken into consideration the prospective income while assessing the income of the claimant. It is further submitted that learned tribunal has also not given due weightage to the fact that the claimant was a driver by profession and because of the rash and negligent driving of the offending vehicle, sustained serious injuries and because of such injuries, the claimant had to undergo various serious operations and has also lost his right leg. It is further submitted that from the medical evidence produced by the claimant, it is established Page 5 of 12 Uploaded by RINKU MALI(HC01574) on Wed Jan 08 2025 Downloaded on : Wed Jan 08 21:21:26 IST 2025 NEUTRAL CITATION C/FA/23/2010 JUDGMENT DATED: 02/01/2025 undefined that claimant had to undergo an operation of Urethrostomy as well as Colostomy. The claimant has also lost both his natural outlets and artificial outlets have been created by surgical process in the body of the claimant. It is further submitted that because of such disability, the claimant now would be required to keep plastic bags with him for his daily natural activities. The claimant has also sustained various fractures on his body . It is further submitted that at the time of the accident, claimant was aged about 21 years of age and the learned tribunal has committed an error by applying 15 as multiplier. Claimant has also produced certificate of Dr. Uday Purandare, for permanent disability, the said doctor is having a degree of M.D. and is also a Medico Legal Consultant and Ex-professor and Head of Forensic Medicine in Faculty of Medicine in M.S. University, Vadodara. The claimant has also examined and produced a certificate issued by Dr. Shrenik Vaidya at Exhibit-34. The said doctor has assessed the disability of the claimant-appellant at 80% permanent partial disability. Without any contrary Page 6 of 12 Uploaded by RINKU MALI(HC01574) on Wed Jan 08 2025 Downloaded on : Wed Jan 08 21:21:26 IST 2025 NEUTRAL CITATION C/FA/23/2010 JUDGMENT DATED: 02/01/2025 undefined evidence, the learned tribunal has considered 70% disability. It is further submitted that the average income of the appellant should have been considered at Rs.4,500/- per month (Rs.3,000/- + 6,000/- = Rs.9,000/-, Rs.9,000/ 2 = Rs.4,500/-). It is further submitted that considering the income of appellant at Rs.4,500/- per month, the learned tribunal ought to have calculated the compensation by applying Rs.4,500 X 12 X 17 = Rs.9,18,000/-. The learned tribunal has awarded Rs.4,05,000/- on this count. Thus, the difference of amount comes to Rs.5,13,000/- (Rs.9,18,000 - Rs.4,05,000,= Rs.5,13,000). 5.1. It is further contented by learned advocate for the appellant that claimant has lost his right leg, resultantly, he had to expend for the artificial limb. No such compensation has been awarded under such head. It is further submitted that claimant is entitled to Rs.1,50,000/- for pain, shock and suffering, Rs.1,50,000/- for loss of amenities, Rs.2,00,000/- for prosthetic limb, Rs.36,000/- under actual loss of income, Rs.1,50,000/- Page 7 of 12 Uploaded by RINKU MALI(HC01574) on Wed Jan 08 2025 Downloaded on : Wed Jan 08 21:21:26 IST 2025
NEUTRAL CITATION C/FA/23/2010 JUDGMENT DATED: 02/01/2025 undefined medical expenses, Rs.15,000/- special diet, Rs.25,000/- attendant charges and Rs.10,000/- transportation charges. 5.2. It is submitted that the present appeal is restricted for the point of future prospective income and the difference of amount of compensation. No other submissions are made by learned advocate for claimant-appellant.
6. Learned advocate for respondent No.3-Insurance Company submitted that the compensation which has been granted by the learned tribunal is just and reasonable. The income which has been assessed by the learned tribunal is as per the evidence produced by the claimant, the disability which has been arrived at by the learned tribunal is after considering the oral as well as documentary evidence adduced by the parties and there is no justifiable reason for disturbing the disability that has been assessed by the tribunal while awarding compensation.
7. Having considered the submissions of the learned Page 8 of 12 Uploaded by RINKU MALI(HC01574) on Wed Jan 08 2025 Downloaded on : Wed Jan 08 21:21:26 IST 2025 NEUTRAL CITATION C/FA/23/2010 JUDGMENT DATED: 02/01/2025 undefined advocates for the parties as well as the record and proceedings, at the outset, it is required to be noted that the claimant was aged about 21 years at the time of accident which had occurred on 20.05.2001 at 09:30 p.m. on Valsad Check Post near National Highway No.8. The claimant is a driver by profession and he was driving Truck No.GJ-1-5665 from Mumbai to Ahmedabad and when the claimant got off the truck for a natural call, the offending Truck bearing GJ-1-V-6184 dashed with the claimant which resulted into serious bodily injuries as observed hereinabove. The record more particularly, the medical evidences reveals that due to the vehicular accident the claimant has sustained injuries such as:-
"1. Crush & Degloving injury of Right foot and Leg for which later on right above knee amputation was done as he developed septicemia following Traumatic Gangrene.
2. Fracture pelvis (Pelvis Diastasis)
3. Long Right sided pereneal wound causing Transection of Ano-Rectal junction for which temporary divergent colostomy done in Right Hypochondrium.
4. Rupture of Urethra with open ends in pereneal wound for which supra pubic cystostomy was done.
5. Big raw area over back (Friction Burns).
6. Patient was in state of shock for which he was managed in ICCU (Hypovolemic and Septicemic shock)."
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NEUTRAL CITATION C/FA/23/2010 JUDGMENT DATED: 02/01/2025 undefined Undisputedly, the right leg above knee was amputated because of rash and negligent driving of the offending vehicle.
8. As per the certificate of Dr. Shrenik Vaidya at Exhibit-34, the claimant has been assessed 80% permanent partial disability of right lower limb. In our considered opinion, the disability of the right lower limb is to be assessed at 80%, in absence of any contrary evidence. The learned tribunal has committed an error by assessing 70% permanent partial disability of right lower limb. Looking to the nature of work, 100% loss of earning capacity of the claimant should have been assessed. In view of the age of the claimant at the time of the accident, multiplier of 18 should have been considered. In the monthly income of the claimant, 40% is required to be added towards future prospects. Taking into consideration the decision in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680 and also the nature of injuries sustained to the claimant, we are of the view that the Page 10 of 12 Uploaded by RINKU MALI(HC01574) on Wed Jan 08 2025 Downloaded on : Wed Jan 08 21:21:26 IST 2025 NEUTRAL CITATION C/FA/23/2010 JUDGMENT DATED: 02/01/2025 undefined compensation which has been awarded by the learned tribunal is not adequate and hence, it would be in the fitness of things and also it would be a just and reasonable compensation, if the claimant is awarded compensation as under:-
Particulars Amount in Rupees
Income at the time of accident 3000/-
Addition in income for future prospects 1200/-
(40%)
Total monthly income 4200/-
Total Monthly Income × 12 × 18 4200×12×18
Multiplier
Future loss of income 9,07,200/-
Pain, shock and suffering 1,50,000/-
Loss of Amenities 1,50,000/-
Artificial Limb 2,00,000/-
Actual loss of income 36,000/-
Medical expenses 1,50,000/-
Special diet 15,000/-
Attendant charges 25,000/-
Transportation 10,000/-
Total 16,43,200/-
Awarded compensation (Less) 6,73,000/-
Additional compensation with 7.5 interest 9,70,200/-
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NEUTRAL CITATION
C/FA/23/2010 JUDGMENT DATED: 02/01/2025
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9. Thus, the claimant is entitled to enhanced compensation of Rs.9,70,200/- with interest @ 7.5% per annum from the date of claim petition till realization over and above the awarded amount of Rs.6,73,000/- by the learned tribunal. Resultantly, the present First Appeal is partly allowed.
10. The enhanced amount of compensation shall be deposited by the Insurance Company within a period of six weeks from today with the learned Tribunal. Record and proceedings to be sent back to the concerned tribunal.
(BIREN VAISHNAV, J) (D. M. DESAI,J) RINKU MALI Page 12 of 12 Uploaded by RINKU MALI(HC01574) on Wed Jan 08 2025 Downloaded on : Wed Jan 08 21:21:26 IST 2025