Gujarat High Court

Jenis Kalpesh Roy vs Sunil Rameshchandra Parmar on 16 September, 2025

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                             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
                       ==========================================================

                         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

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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

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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

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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

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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

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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

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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

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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

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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

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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/-.

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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

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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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=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

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