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Rajasthan High Court · body

2010 DIGILAW 1222 (RAJ)

Ahir Gagu Randhir v. Ahir Maja Vala

2010-07-14

RAVI R.TRIPATHI

body2010
Hon'ble TRIPATHI, J.—Ahir Gagu Randhir- original claimant is before this Court being aggrieved by judgment and award dated 18th August 1982 passed by the Motor Accident Claims Tribunal (Main), Kachchh at Bhuj ('the Tribunal' for brevity) in Motor Accident Claim Petition No.75 of 1981. The Tribunal was pleased to award an amount of Rs.35,000/- with proportionate cost and interest at the rate of 6% per annum from the date of application till realisation from the opponents, who were jointly and severally held liable, against the claimed amount of Rs.1 lac. The learned advocate for the appellant submitted that the Tribunal has erred on more than one points while considering the amount to be awarded by way of compensation. To start with he submitted that the Tribunal has awarded an amount of Rs.1,000/- towards 'loss of actual income'. He submitted that this amount is awarded despite the fact being on record that initially claimant was applied plaster for a period of 21 days and after the same was removed he was again applied plaster which had lasted for two months. The learned advocate for the appellant submitted that for a period of three months the awarded amount of Rs.1,000/- as actual loss of income is too meagre an amount and a reasonable amount ought to have been awarded 2. Taking into consideration the income aspect of the claimant, wherein it is recorded by the Tribunal that, "The claimant has stated that before the accident had happened and even prior to that he was serving as a truck driver and was getting Rs.800 to Rs.900 per month, but the employer has not been examined and this income is very exaggerated one as no truck owner would pay such a huge amount to the driver. Therefore, the claimant has stated giving exaggerated figures from the beginning . He has purchased the lands and the copies from the Record of Rights have been produced at Exs.47, 48 and 49. It is true that he is holding the lands and cultivating the same. The claimant has stated that his net income from the agricultural land is of Rs.12,000/- per year. In the claim petition his income has been shown as Rs.1,000/- per month. Therefore, it can be inferred that he was not doing any other business other than cultivating the lands. The claimant has stated that his net income from the agricultural land is of Rs.12,000/- per year. In the claim petition his income has been shown as Rs.1,000/- per month. Therefore, it can be inferred that he was not doing any other business other than cultivating the lands. However, an attempt has been made to show that he was working as Commission Agent in the trucks and through him every 7 to 8 transactions used to be settled. According to him he was getting Rs.500/- from the purchaser of the truck and the same amount from the seller of the truck. As per his say he was getting Rs.7,000 to Rs.8,000 per year from this transaction. To prove this, the claimant has examined Babulal Bhimabhai, Tejabhai Ramabhai and Ramjibhai Tejabhai. The oral evidence of these three witnesses shall have to be discarded in light of the fact that there is no mention in the claim petition that the claimant was working a Commission Agent in trucks. There is no mention in the petition that he was getting Rs.500/- from each party towards the transaction. Therefore, this evidence has been got up by the claimant and it has come from the ingenous brain of Mr.Suchdey. As it is apparent from the claim petition that his income was Rs.1,000/- per month and if this evidence is taken into consideration, then his income would be Rs.7,000 to Rs.8,000 more per year, which cannot be accepted as it has been put forth by the claimant to get more money from the opponents and to knock down more compensation from the insurance company. .. .." On one hand the Tribunal has believed the income of the claimant to be of Rs.1,000/- per month. It is on record that the plaster was applied to the claimant in two spells; one for 21 days and and the other for two months. The Tribunal ought to have awarded nothing less than Rs.3,000/- for 'actual loss of income'. The amount is accordingly enhanced to Rs.3,000/-. 3. So far as award under the head of 'pain, shock and suffering' is concerned the Tribunal has awarded an amount of Rs.10,000/-. It is on record that the appellant suffered two fractures. In this regard deposition of Dr.Doshi, who was working as an Honorary Surgeon in Divine Life Hospital, Adipur is required to be considered. 3. So far as award under the head of 'pain, shock and suffering' is concerned the Tribunal has awarded an amount of Rs.10,000/-. It is on record that the appellant suffered two fractures. In this regard deposition of Dr.Doshi, who was working as an Honorary Surgeon in Divine Life Hospital, Adipur is required to be considered. The Tribunal has considered the deposition of said doctor in para 8. In the deposition, Dr.Doshi has specifically stated that, " .. there were number of abrasions on the left shoulder, (2) there were abrasions on the left and right knee joint of the legs, and (iii) there was a fracture of femur bone of right leg and this bone was also fractured at the thigh region, there was contusion on the left leg and the pelvis bone was also fracture. .. .." 4. The doctor has also stated that the claimant was admitted in his hospital on the same day and was kept as an in-door patient. He has also stated that he had applied pin and given weight to the leg so as to get movement. It is also stated that, " .. .. The pin was removed after 21 days and the plaster was applied from the fingers of the right leg upto the chest region. The bandage was applied on the left leg. The patient was discharged and he was asked to come after 1 ½ months. .. .." This shows that the claimant had suffered as many as three fractures as stated hereinabove. There was plaster for almost three months. That being so, award of an amount of Rs.10,000/- under the head of - 'pain, shock and suffering' is also found to be conservative one and on a lower side. Therefore, this Court deems it fit and proper to award Rs.15,000/- for the same. 5. So far as medical expenses part is concerned, this Court deems fit and proper not to interfere with it because normally on the basis of documentary evidence produced before the Tribunal it is awarded. 6. Coming to the amount awarded under the head, 'future loss of income', the Tribunal has awarded Rs.15,000/-. In the opinion of this Court this amount is also not only meager but inappropriate and hence not just. It is without taking into consideration the facts of the case in right perspective. 6. Coming to the amount awarded under the head, 'future loss of income', the Tribunal has awarded Rs.15,000/-. In the opinion of this Court this amount is also not only meager but inappropriate and hence not just. It is without taking into consideration the facts of the case in right perspective. In this regard it will be appropriate to refer to the deposition of the doctor, whose statement is recorded by the Tribunal as under: " .. .. He had seen the patient on the day on which his evidence was recorded and he found that the claimant is not in a position to walk without the help of crutches and the movement of the right knee joint is upto 20 degrees. The leg of the claimant has been shortened by 1". the claimant is not in a position to drive the scooter or any vehicle nor he is able to do heavy work as there is limping of his leg. There is permanent disability of his right leg. .. .." This being so, to award an amount of Rs.15,000/- as 'future loss of income' is not doing justice to the claimant. Assuming for the sake of argument that the claimant was engaged only in the agricultural operations as is believed by the Tribunal and was getting income of Rs.12,000/- from the agricultural lands, then also with the aforesaid disabilities he will require assistance of a person to carry on his agricultural operations. Any person to render assistance in agricultural operations cannot be hired for less than Rs.300/- per month, which will bring loss of income to Rs.3600/- per annum and taking into consideration the age of the claimant being 40 years, if the amount is multiplied by 10, it will come to Rs.36,000/-, which will be a reasonable amount towards 'future loss of income'. This will bring an additional amount of Rs.21,000/-. 7. So far as the amount awarded of Rs.5,000/- towards 'loss of comfort of life' also requires to be considered in light of the fact that the claimant has stated that after the accident, there is an adverse effect on this matrimonial life, he had physical discomfort. The Tribunal has awarded an amount of Rs.5,000/- under this head. 7. So far as the amount awarded of Rs.5,000/- towards 'loss of comfort of life' also requires to be considered in light of the fact that the claimant has stated that after the accident, there is an adverse effect on this matrimonial life, he had physical discomfort. The Tribunal has awarded an amount of Rs.5,000/- under this head. The Tribunal has tried to justify this amount and has stated that, 'there is no medical evidence to show that he has become impotent', but has taken note of the fact that, 'for number of months he was not able to enjoy matrimonial relations and there was physical discomfort'. In the aforesaid set of facts wherein a person is not able to walk without help of crutches, his leg is shortened by one inch and that for the entire life he will be dependent upon crutches and he will not be able to do heavy work, this Court deems it fit to ward a sum of Rs.10,000/- under this head. The amount awarded under different heads is as under : Amount awarded under the head By the Tribunal Rs. By the High Court vide this judgment Rs. Amount enhanced Rs. Actual loss of income 1,000/- 3,000/- 2,000/- Pain, shock and suffering 10,000/- 15,000/- 5,000/- Future loss of income. 15,000/- 36,000/- 21,000/- Loss of comfort of life. 5,000/- 10,000/- 5,000/- TOTAL 31,000/- 64,000/- 33,000/- 8. As against that Mr.G.C. Mazmudar, learned advocate for respondent No.3-Insurance Company submitted that the award made by the Tribunal cannot be said to be such which warrants interference at the hands of this Court. He submitted that taking into consideration the fact that the claimant was an agriculturist and the claim petition is of the year 1981, the amount awarded was just and proper. In view of the aforesaid discussions these submissions cannot be accepted. 9. In the result, the First Appeal is partly allowed and the amount awarded is enhanced to Rs.68,000/- with proportionate cost together with interest at the rate of 8% per annum (on the additional amount only) from the date of application till realisation. 10. The Insurance Company is directed to deposit this amount within 10 (ten) weeks from the date of receipt of this judgment and order.