Gujarat High Court
Rajeshkumar Chhajuram Kundu vs Shantilal Nanji Meena on 2 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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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
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"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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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
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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
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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
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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
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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/-
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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
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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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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
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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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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
