Gujarat High Court
Jenis Kalpesh Roy vs Sunil Rameshchandra Parmar on 16 September, 2025
NEUTRAL CITATION
C/FA/707/2016 JUDGMENT DATED: 16/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 707 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J. L. ODEDRA
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Approved for Reporting Yes No
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JENIS KALPESH ROY
Versus
SUNIL RAMESHCHANDRA PARMAR & ORS.
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA
Date : 16/09/2025
ORAL JUDGMENT
1. The present First Appeal is arising from the judgment and award dated 13.05.2014 rendered in M.A.C.P. No.1838 of 2005 by the Motor Accident Claim Tribunal (Auxiliary) at Vadodara. The appellant is the original claimant in the aforesaid proceedings.
2. Vide the said judgment and award, the learned Tribunal was pleased to partly allow the said claim petition and ordered in Page 1 of 14 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 23:33:10 IST 2025 NEUTRAL CITATION C/FA/707/2016 JUDGMENT DATED: 16/09/2025 undefined favor of the claimants, a compensation to the tune of Rs.8,70,860/- and further allowing the said claimants to recover the same from opponent Nos.1 to 3, jointly and severally with running interest at the rate of 9% per annum from the date of petition till realization.
3. It may be noted that on the fateful day of the accident i.e. on 22.10.2005, the appellant along with her husband had gone to see a movie at Chandan Talkies at certain village and as the claimant was waiting for her husband, respondent No.1 came riding on his motorcycle Bajaj Pulsar bearing Registration No.GJ-6-BJ-3378 in rash and negligent manner and at excessive speed and caused the accident with the claimant. In the process the right thigh of the claimant came to be injured and hence, the claim petition.
4. Aggrieved by the judgment and award, the appellant - original claimant has preferred this appeal challenging primarily that the compensation as granted by the learned Tribunal is on the lower side. It has been stated that though the learned Tribunal has considered the full income of the claimant (appellant), the learned Tribunal has failed to correctly assessed the functional disability of the claimant. It was submitted that Page 2 of 14 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 23:33:10 IST 2025 NEUTRAL CITATION C/FA/707/2016 JUDGMENT DATED: 16/09/2025 undefined the functional disability in the present case ought to be 100% because at the relevant point of time, the appellant was working as Event Manager with M/s. Face to Face from 01.05.2005 for which she was getting a stipend of Rs.8,500/- per month and after completion of probation, the claimant was confirmed with salary of Rs.9,750/- per month. It was thus submitted that looking to the nature of injuries, especially the fact that the appellant has suffered compound comminuted fracture M/3 + L/3 right side without NV deficit, she was treated for a period of four months and thereafter, she was advised to take bed rest for a period of six months. It was thus submitted that the permanent partial disability to the extent of 48% on right lower limb being equivalent to 24% disability for the body as a whole as opined by Dr.Mahesh Pandya at Exh.34, ought not to have been treated as functional disability. It was stated that owing to the injuries, the appellant could not continue her work with Event Management firm and that in that respect, the functional disability of the appellant should have been assessed at 100%. Relying on three decisions of the Hon'ble Supreme Court, the said submissions were sought to be substantiated. The same judgments being the judgments in the case of (a) Syed Sadiq and others vs. Divisional Manager, United India Insurance Company Page 3 of 14 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 23:33:10 IST 2025 NEUTRAL CITATION C/FA/707/2016 JUDGMENT DATED: 16/09/2025 undefined Limited - (2014) 2 SCC 735, (b) Mohan Soni vs. Ram Avtar Tomar and others - (2012) 2 SCC 267, which was referred to in the aforesaid judgment of Syed Sadiq (supra) and (c) Jakir Hussein vs. Sabir - 2015 (0) AIJEL-SC 56230. Relying on aforesaid judgments, it was submitted that if not 100% disability, the learned Tribunal could have at least allowed disability to the tune of 50%. In the present case, the fact that the appellant would not work in the said firm owing to the accident.
5. It was also submitted that the owing to the accident, the appellant has also suffered marital discord and that therefore, voluntary she has entered into an agreement with her husband stating that she is divorcing her husband. It was thus submitted that owing to the said accident, she has suffered loss of amenities of her life inasmuch as her marriage has also been disrupted and for this also, she may be adequately compensated under the head of loss of amenities. Furthermore, it was submitted that the Tribunal has ignored the fact of future rise in income. It was submitted that that should have been given to the tune of 50% of the income. It was submitted that the appellant was otherwise capable, in the sense that she possesses a degree Page 4 of 14 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 23:33:10 IST 2025 NEUTRAL CITATION C/FA/707/2016 JUDGMENT DATED: 16/09/2025 undefined of B.A. with English and that the profession of Event Management where presentation is required, is more suitable to the appellant and that therefore she would be handicapped in attending any other work where she may not thrive or flourish. It was thus submitted that the functional disability ought to be adjudicated only in respect of the work that the appellant was carrying on at the point of time of the accident. Insofar as the actual loss of income, it was submitted that even though the tribunal has concluded that the claimant was admitted indoors for a period of four months and thereafter, she was advised to take bed rest for a period of six months, aggregating to ten months, then too, the Tribunal, whimsically has only considered the loss of actual income in respect of six months instead of ten months. It was submitted that income can be considered for a period of ten months. In so far as pain, sock and suffering, the learned Tribunal has awarded Rs.50,000/- to the appellant. However, it was submitted that in the event of loss of amenities and the fact that the marriage of the appellant has already been broken, that is ground to enhance the compensation for pain, shock and suffering to Rs.1,00,000/-. It was submitted that in the deposition of the appellant (claimant) it indicates that she continued to have development of pus in her legs and even on Page 5 of 14 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 23:33:10 IST 2025 NEUTRAL CITATION C/FA/707/2016 JUDGMENT DATED: 16/09/2025 undefined date of the deposition of the appellant (claimant) (Exhibit 72), the claimant has submitted that she had maintained that she still continues to suffer with formation of pus and therefore, every two months she has to go to doctor and have the pus removed by way of an operation (a cut operation so as to suck out the pus).
6. None is present for opponent Nos.1 and 2.
7. So far as opponent No.3 is concerned, it was submitted by learned advocate that the assessment of compensation made by learned Tribunal is proper. It was submitted that insofar as the age of the appellant being 27, the appellant can always remarry and that therefore, the corresponding loss of amenities would not survive. It was submitted that the real reason for discord may be different than the accident and that merely filing of affidavit would not mean that the real reason for divorce is accident. It was submitted that if indeed divorce was to be taken, it would be in terms of applicable personal law of appellant who is of Christian faith. It is submitted that under the Christian faith, the appellant could not have been divorce under an agreement, simplicitor. It was also submitted that therefore the contention that the appellant has indeed been divorced ought not to be believed. It was also submitted that all other amounts Page 6 of 14 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 23:33:10 IST 2025 NEUTRAL CITATION C/FA/707/2016 JUDGMENT DATED: 16/09/2025 undefined as has been awarded under various heads are just and that they may kindly be sustained.
8. Having heard learned advocates for the respective parties, this Court proceeds to decide the lis in terms appearing hereinafter.
9. The points of determination that arise in the present appeal are as follows:
"(a) Whether the functional disability of the claimant was assessed correctly?
(b) And, whether the compensation awarded was just and proper? If not, what compensation is liable to be awarded in the present set of facts?"
10. It is trite that the injury to effect that the claimant has suffered compounded comminuted fracture N/3 + L/3, right side without NV deficit has not been disputed by the other side. Nor is it a matter of dispute that for the right lower limb, permanent partial disability has been assessed at 48% and that the same, has been assessed as 24% to the body as a whole as per the opinion of Dr.Mahesh Pandya. Said injury has been believed by the learned Tribunal. What has been disputed is that the Page 7 of 14 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 23:33:10 IST 2025 NEUTRAL CITATION C/FA/707/2016 JUDGMENT DATED: 16/09/2025 undefined functional disability could not have been at 24% in as much as the appellant has lost her job for the reason of the accident. Even the director of the firm where the claimant was working, namely Shri Ravishankar Harishankar Tripathi, had been examined, whose deposition indicated that the present appellant (claimant) could not render services as are required under the said Event Management firm and therefore, she had lost the job. Thus, the claim is of 100% functional disability.
11. The judgments relied upon by the learned advocate for the appellants had to be examined. In Mohan Soni (supra), the claimant's age was 55 and at that age, there was an amputation of his left leg and therefore the Honourable Supreme Court was pleased to hold that at that age, it was impossible for the victim to find any other job. Hence, the ratio is that if a patient cannot find any other job, then the assessment of earning capacity is to be adjusted to 100%. Insofar as the judgment in case of Syed Sadik (supra) is concerned, there again the Honourable Supreme Court had assessed the liability of the victim at 100%. In that case, the age of the victim of the vehicular accident was 22 years and there, the claimant has suffered fracture on middle one- third of the right humerus and comminuted fracture at the Page 8 of 14 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 23:33:10 IST 2025 NEUTRAL CITATION C/FA/707/2016 JUDGMENT DATED: 16/09/2025 undefined junction of upper one-third and middle one-third of the right tibia. The doctor's evidence indicated that the claimant was suffering from 22% permanent disability to the upper limb and 29% to the lower limb. It appears that Hon'ble Supreme Court in view of the fact that said individual was doing manual labour and the fact that in view said fractures, he could not be able to bend or rotate his right hand, held the claimant's functional disability to the tune of 85%. In case of Jakir Hussein (supra), it has been stated that at the time of the accident, the victim was a man of 33 years of age. The very same paragraph indicates he was doing work of driving. In that case, the doctor's certificate indicated that permanent disability suffered by the claimant was to the tune of 55%. However, looking to the fact that he could not possibly do the job of driver, the Hon'ble Supreme Court decided to hold the said permanent disability to the tune of 100%.
12. The present case ought to be decided, keeping the ratio in view of the aforesaid cases. It is clear that in the present case, the age of the appellant at the time of accident was 27 years. The fact that the applicant continues to suffer from formation of pus in her legs and that she has permanent disability as per the Page 9 of 14 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 23:33:10 IST 2025 NEUTRAL CITATION C/FA/707/2016 JUDGMENT DATED: 16/09/2025 undefined opinion of the doctor to the tune of 24% to the body as a whole, she cannot possibly continue to work in the Event Management firm. However, it may also be noted that the tribunal had reasoned at paragraph 21.4 of the judgment that there is no evidence to show that the appellant despite attempting to find a job at another place, would not be allowed to do any job on account of the injuries suffered by her. This Court finds it plausible that she being literate, having a degree of BA in English, may be able to get another job. However, the job may not fetch the kind of money that she would have earned with her job in Event Management industry. Moreover, she would also be handicapped in doing her household work like cooking, sweeping, cleaning etc. In the overall set of circumstances, this Court is inclined to consider her functional disability at the enhanced rate of 70% for the reason that she would be terribly handicapped in continuing with Event Management industry. Although her degree with BA in English, she may be able to find some other job and hence 30% disability ought to be deducted on that count. In the circumstances, the future loss of income ought to be adjudged by calculating as follows.
13. The undisputed income of the appellant was Rs.9,750/-. Page 10 of 14 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 23:33:10 IST 2025
NEUTRAL CITATION C/FA/707/2016 JUDGMENT DATED: 16/09/2025 undefined Adding thereto the rise towards factoring future prospects, to the tune of 50% of the amount, as adjudged in Pranay Sethi (supra), the monthly income would come to Rs.14,625/-[Rs.9750/- + Rs.4,875/- (50% rise)]. Therefore, the yearly income would be Rs.14,625/- x 12 = Rs.1,75,500/-. Looking to the age of the claimant being 26 years, a multiplier of 17 can be applied. Therefore, the said amount would come to Rs.1,75,500/- x 17 = Rs.29,83,500 and then calculating 70% of the same, 70% being the functional disability, the amount would come at Rs.20,88,450/-, which is the total amount of loss of future income.
14. Insofar, as divorce of the appellant is concerned, this Court is not in agreement with the fact that divorce has indeed been carried out. The agreement of divorce as has come on Exhibit 72/A of the record is not a legal document in as much as it does not have any legal sanctity. The fact remains that even in cross- examination the appellant has not accepted that she had approached the concerned Catholic Church for initiation of divorce proceedings. Therefore, this Court is not of the view that divorce has indeed materialized between the appellant and her husband. However, the fact remains that she may have suffered Page 11 of 14 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 23:33:10 IST 2025 NEUTRAL CITATION C/FA/707/2016 JUDGMENT DATED: 16/09/2025 undefined immense hardship in view of carrying out her marital duties as also for the fact that the pain, suffering and trauma caused to her an amount of Rs.1,00,000/- ought to be awarded as has been so done in the Judgment of Jakir Hussein (supra). (In that judgment, the sum of Rs.1,50,000/- has been awarded by the Hon'ble Supreme Court, however, in view of facts and circumstances of the present case, this Court deems it appropriate to award Rs.1,00,000/-). Future medical expenses appears not to have been granted in the earlier proceedings which may be added to the award to the tune of Rs.20,000/-.
15. Insofar, as the actual loss of income, as the record indicates that she was hospitalized for about four months, and with a further advice of rest for six months, which aggregate to ten months. Hence, the actual loss would be (9,750 X 10) Rs.97,500/-.
16. Therefore, total compensation would be as under, which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future loss of income 20,88,450/-
=Rs.9750/- + Rs.4,875/- (50% rise)
=Rs.14,625/- x 12 months x 17 multiplier
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NEUTRAL CITATION
C/FA/707/2016 JUDGMENT DATED: 16/09/2025
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=Rs.29,83,500/- x 70% functional disability Pain, shock and suffering 1,00,000/-
Actual loss of income 97,500/-
Medical expenses 2,50,000/-
Future medical expenses 20,000/-
Special diet, attendant charges, 40,000/-
transportation
Total... 25,95,950/-
Less : Amount which is already awarded 8,70,860/-
Additional amount which is awarded 17,25,090/-
17. Therefore, this Court holds that the appellant is entitled to get the enhanced compensation of Rs.17,25,090/- with 9% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Tribunal remain same.
18. For the reasons recorded above, the following order is passed.
18.1 The present appeal is partly allowed. 18.2 The Insurance Company is directed to deposit the enhanced amount Rs.17,25,090/- with 9% p.a. interest from the date of claim petition till its realization before the concerned Page 13 of 14 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 23:33:10 IST 2025 NEUTRAL CITATION C/FA/707/2016 JUDGMENT DATED: 16/09/2025 undefined Tribunal, within a period of eight weeks from the date of receipt of this order.
18.3 The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimant, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
18.4 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law. 18.5 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. L. ODEDRA, J) GAURAV J THAKER/JIGAR J RABARI Page 14 of 14 Uploaded by MR.JIGAR JIVANBHAI RABARI(HCD0067) on Tue Sep 16 2025 Downloaded on : Wed Sep 17 23:33:10 IST 2025