JUDGMENT H.K. RATHOD, J. Heard learned advocate Ms. Mayaben Desai for learned advocate Mr. M.D. Pandya appearing on behalf of appellant -Corporation and learned advocate Ms. Thula for learned senior advocate Mr. Y.N. Oza appearing on behalf of respondent- claimant. 2. The appellant corporation has challenged award passed by MACT, Baroda in MACP No.892 of 1983 decided on 13th November 1986. The claims tribunal has awarded total amount of compensation Rs.3,87,100/- with 12% interest in favour of respondent claimant. 3.Learned advocate Ms. Desai raised contention before this Court that decision of claims tribunal in respect of deciding negligence of ST driver 100% is erroneous finding contrary to record. She submitted that claims tribunal has not considered panchnama properly and decided sole negligence of ST driver. She submitted that 65% disability to earning capacity of claimant is not reduced because he remained in service received regular salary upto the retirement. Therefore, question of reducing earning capacity has been wrongly considered by claims tribunal. She submitted that there is no loss of earning capacity because physical disability having no adverse effect to the earning capacity of claimant. She also submitted that it is a case of contributory negligence even though negligence of claimant has been ignored by claims tribunal. Ex.27 evidence of claimant Thakorbhai Purshottamdas should not have to accept his testimony if it is closely scrutinized the evidence of claimant. The claims tribunal ought to have been held that the claimant has failed to prove that opponent No.1 drove ST Bus No.GRR-8327 belonging to second opponent to claim petition rashly and negligently and thereby caused injuries to claimant. The claimant was driving his scooter at an excessive speed and was in hasty and was dashed with on coming bus which was on its correct side. That fact has been ignored by claims tribunal while deciding sole negligence of ST bus driver. She submitted that it is a clear case of sole negligence of claimant. The accident had occurred at the junction of three roads; the front of the Rajmahel Tope, near Diamond Jubilee Building, Rajmahel Road, National Highway No.8. The claims tribunal has not considered the case of ST Corporation that scooterist was driving the scooter in middle of the road had taken sudden turn to his right side without any sign and signal and doing so has dashed his scooter with bus. The claims tribunal has not considered the case of ST Corporation that scooterist was driving the scooter in middle of the road had taken sudden turn to his right side without any sign and signal and doing so has dashed his scooter with bus. The documentary evidence on record panchnama Ex.42 and judgment of Criminal Court Ex.43 supports to the contentions of appellant. She submitted that it is an amply established that place of accident was the middle of road and panchnama shows that the edge of the road of west of the place of accident was eight steps (kadam), that is, about 16 feet and towards east edge of the road was at a distance of 18 feet and that the accident had taken place on Motibaug turning. She also submitted that amount of compensation which has been awarded by claims tribunal is on higher side and reason which has been assigned by claims Tribunal in paragraph 26 and 27 for not relying upon testimony of ST driver is erroneous finding which requires interference by this Court. She emphasis that claims tribunal has not closely scrutinized the evidence of Dr. Sukitu Trivedi recorded at Ex.38. She submitted that claims tribunal has committed error in not properly bearing in mind the aspect about disablement percentage when considering the disablement of limbs and total disablement of body taken as a whole from the medical point of view and the impact of such physical disablement upon the earnings and earning capacity keeping in view, inter alia, avocation of the victim present as well as future possibility. She further submitted that claims Tribunal has committed gross error in awarding Rs.40,000/- on the head of pain, shock and suffering, which is on higher side and Rs.20,000/- for future economic loss per year and accepting that loss would continue for further period of 12 years, erred in assessing in awarding Rs.2,40,000/-under the head of loss resulting from the loss of earning capacity. Therefore, amount of Rs.2,40,000/- has been wrongly awarded which is apparently also on higher side. 4. Learned advocate Ms. Thula for claimant raised contentions in support of cross objection that loss of income of wife about 11 months has been ignored because wife was working as an employee and her salary was not considered by claims tribunal. Therefore, amount of Rs.2,40,000/- has been wrongly awarded which is apparently also on higher side. 4. Learned advocate Ms. Thula for claimant raised contentions in support of cross objection that loss of income of wife about 11 months has been ignored because wife was working as an employee and her salary was not considered by claims tribunal. The amount of compensation which has been worked out by claims tribunal is on lower side and claimant is entitled more amounts in respect of diet, room charges, medical bills and actual loss of income 11 months and salary of wife is not taken into account, who attended the claimant. Therefore, present Cross-Objection has been filed by claimant. 5. I have considered submissions made by both learned advocates appearing on behalf of respective parties. I have also perused award passed by claims tribunal. The total claim was made by claimant for Rs.5 lakhs for the accidental injuries sustained by him during motor vehicular accident which was occured on 23rd May 1983. 6. According to claimant, the accident had occurred on 23rd May 1983 at 12 noon near Diamond Jubilee Cottage Industries within city of Baroda. According to him, there was 'Vastu Puja' ceremony of his new bungalow and that he had given to distribute invitation card and was returning back. It is his case that he had reached near the spot of occurrence at about 12 noon and was on his scooter, according to him, ST Bus No.GRR-8327 being driven by opponent came there and above said vehicle was being driven in rash and negligent manner and at an excessive speed. It is also the case of claimant that opponent No.1 had lost the control over his vehicle and violent dash was given to his vehicle and result of which, vehicle viz., scooter and himself were dragged along with ST bus for a distance of about 30 to 40 feet and he had received various injuries including the fractures on the head, the fore-arm and the leg and as a result of which, he was required to be removed to the SSG Hospital and was also requires to stay there as an indoor patient for a pretty long time. For claiming compensation, according to him, he had received various injuries and fractures on head, the fore-arm and the leg. For claiming compensation, according to him, he had received various injuries and fractures on head, the fore-arm and the leg. There is a fracture on the right fore-arm along with fracture of right patella and fracture of the index finger and also injuries to his face which was disfigured which he had required plastic surgery to be performed upon him. According to him, because of injuries received by him on the lower leg, it was later on thought it fit and proper to amputated his leg below the knee joined and operation was performed and he was suffered the amputation of the right leg from below the knee joint. The claimant was working at the time when accident was occurred as an Assistant Administrative Officer in United India Assurance Co. Ltd., and later on, he was promoted and his total salary was Rs.2,587/-. The estimate claim of claimant as narrated in paragraph 7 is as under : “7. Moreover it is the case of the applicant that looking to the injuries and the amputation of the right leg he is entitled to the future loss as enumerated as under: Rs.45,000/- - Future loss of non-promotion Rs.15,000/- - Expenses for removal of plate Rs.10,000/- - Expenses for plastic surgery Rs.10,000/- - Expenses for operation of removal of stiffness Rs.5,000/- - Operation of plastic surgery on left side of face near ear to remove scar which are spread on face Rs.30,000/- - Extra injections, fruits, extra food like Omlet to maintain the ragour Rs.3,600/- - Physio therapy treatment for four months Rs.5,000/- - Rickshaw expensed for 25 days in a months Rs.35,000/- - Pain and sufferings because of amputation of right leg Rs.35,000/- - Permanent disability of right hand and other leg Rs.50,000/- - 80 per cent disability because of amputation of right leg above knee portion.” The S.T. Corporation has filed reply Ex.16 and Ex.13 and raised contention against claim petition while denying averments made in claim petition. After considering pleadings of both parties, issues have been framed by claims tribunal by Ex.17. 90% disability has been denied by appellant Corporation. The claims tribunal after considering evidence on record which has been appreciated in paragraph 26 to 29 are under : “26. After considering pleadings of both parties, issues have been framed by claims tribunal by Ex.17. 90% disability has been denied by appellant Corporation. The claims tribunal after considering evidence on record which has been appreciated in paragraph 26 to 29 are under : “26. Thus, during the cross-examination also the opponent No.1 has tried to say that he was not at all guilty for the accident but it is unequivocally clear from his evidence that he had not seen the scooterist before the accident and was able to locate the scooter only after the accident had taken place. In view of this position, he cannot be believed when he says that the scooter had taken the right hand side turn without giving any sign or signal. When he had not seen the scooterist at all he can never testify regarding the action taken by the scooterist at the relevant time. Moreover, though he has denied allegation that the scooter was dragged alongwith his vehicle for about 30' he has admitted that he could stop his bus only after covering a distance of 8' ft. Moreover, his say regarding the speed of his vehicle also cannot be accepted. If his vehicle were to be running at the speed of about 25 KM he would have been able to stop his vehicle right on the spot of the occurrence. 27. Moreover his version that he was driving his bus slowly on the correct side of the road also cannot be accepted. It requires to be appreciated that there is a road divider and the scooter was on the correct side but the bus had entered on the side where the scooter was passing and a dash was given to the scooter. It is also the case of the applicant that the scooter was dragged for a pretty long distance. The abovesaid case is indeed denied by the opponent No.1 but his evidence would go to show definitely that he could stop his vehicle only after covering a distance of about 8' the cumulative effect of the abovesaid evidence would lead this Tribunal to hold that the accident was the result of rash and negligent driving on the part of the opponent No.1 who was driving his vehicle at the relevant time. 28. This view of the Tribunal gets the further support from the Panchnama at Ex.42. 28. This view of the Tribunal gets the further support from the Panchnama at Ex.42. The bare look to this panchnama at Ex.42 would reveal that the bus had covered a distance of 45' ft. after dashing with the scooter. The scooter was lying beneath the rear wheel of the ST bus. It means that the scooter was dragged alongwith the ST bus for a distance of about 45'. At the time of the Panchnama also the scooter was found to be lying beneath the wheel of the ST bus. Moreover, looking to the position of the vehicles it further becomes clear that the ST bus had entered into the incorrect side of the road. The dash was given to the scooter on its front part because the front part was found to have been broken and damaged. It therefore, becomes clear that the bus had entered into the incorrect side of the road and a dash was given to the scooter and later on the scooter was dragged alongwith the bus for a distance of 45'. The scooterist/ was also dragged alongwith the abovesaid scooter. 29. It therefore conclusively follows as noticed by this Tribunal that the accident was the result of rash and negligent action on the part of the opponent No.1 who was driving the ST bus at the relevant time. This issue therefore, requires to be decided in the affirmative and the same hereby accordingly decided. The aforesaid observations made by claims tribunal while appreciating oral evidence as well as documentary evidence and relied upon panchnama Ex.42 even bare look to this panchnama, it would reveal that bus had covered a distance of 45 feet after dashing with scooter. The scooter was found to be lying beneath the wheel of ST bus. Moreover, looking to position of vehicles, it further becomes clear that ST bus had entered into incorrect side of the road. The dash was given to scooter on its front part because the front part was found to have been broken and damaged. Therefore, it becomes clear that bus had entered into the incorrect side of the road and a dash was given to scooter and later on, the scooter was dragged along with bus for a distance of 45 feet. The dash was given to scooter on its front part because the front part was found to have been broken and damaged. Therefore, it becomes clear that bus had entered into the incorrect side of the road and a dash was given to scooter and later on, the scooter was dragged along with bus for a distance of 45 feet. Therefore, Issue No.1 which has been decided by claims tribunal affirmative holding that accident is occurred due to sole negligence of ST bus driver. 8. The question of quantum has been examined by claims tribunal after considering evidence of claimant and Dr. Suketu Trivedi Ex.38 and evidence of Dr. Trivedi has proved the certificate which is at Ex.39. The relevant discussion of evidence of Dr. Trivedi is made in paragraph 32 to 34 are quoted as under : “32. The applicant has examined Dr. Suketu Trivedi at Ex.38. He has stated that Thakorbhai Purshottambhai was admitted as Indoor patient in the SSG Hospital, Baroda on 23-5-83 and wad discharged on 13-8-83. Dr. Trivedi has further testified that the applicant had multiple fractures of the right lower limb, the fracture shaft right humerus and fracture middle phalanx left index with multiple CLWs. He has further stated that the patient had the injury on the artery and nailing of the fractures and the exploration of the injured artery was done on 23-5-83. “33. Dr. Trivedi has further testified that later on the right lower limb was affected by gangrene and therefore the right leg was amputated from above the knee joint on 27-5- 1983. he has further stated that he patient was operated on 19-7-83 for the fracture humerus and the plating and the bone grafting was done. He has further stated that the injured applicant wad discharged on 13-8-83. Dr. Trivedi has proved the certificate which is at Ex.39. 32. Dr. Trivedi has further testified as under : “On my last examination I found that the fracture of shaft humerus right was well united. There was terminal restriction of abduction and roration of right shoulder. He had above knee amputation on right side stump length being 14.1/2” from greater trauchanter. Disablement is assessed at 60 per cent for the loss of lower limb and 5 per cent for the loss of movement at right shoulder. Total disablement is assessed at 65 per cent.” 33. There was terminal restriction of abduction and roration of right shoulder. He had above knee amputation on right side stump length being 14.1/2” from greater trauchanter. Disablement is assessed at 60 per cent for the loss of lower limb and 5 per cent for the loss of movement at right shoulder. Total disablement is assessed at 65 per cent.” 33. Therefore from the abovesaid evidence of Dr.Trivedi it would further become clear that later on the fracture of the shaft humerus was found to be well-united but the applicant has suffered the right knee amputation and the length of the same is 14-14.1/2” from greater trauchanter. It is also clear that the permanent disability incurred by the applicant would come to 65 per cent. 34. Moreover, Dr. Trivedi has stated that the patient may have to undergo operation for the removal of the nail on the right humerus and would be required to stay in the hospital for a period of five days. He has further stated that he would not be able to drive a scooter in future and that now no plastic surgery is required to be performed upon him.” 9. In view of aforesaid evidence which has been discussed by Dr. Trivedi and also injury received by claimant has been discussed and described which resulted the permanent disability incurred to claimant would come to 65%. On that basis, claims tribunal has examined matter while keeping in mind total emoluments received by claimant Rs.3,910/- as per pay-slip Ex.35 as discussed in paragraph 42 and 43 which are quoted as under : “42. It is evident from the pay slip at Ex.35 that applicant earns that the total emoluments of Rs.3910/- PM on the date of the trial. He has incurred the permanent partial disability of 65 per cent as testified by Dr. Suketu Trivedi at Ex.38. The monthly loss at the rate of 6 per cent would come to Rs.2600/-. The yearly loss would come to Rs.29,200/-. Accepting that this loss would continue for a further period of 12 years the figure would come to Rs.3,38,400/-. 43. It requires to be appreciated that the applicant is still in the service and as a matter of fact he has not incurred any loss in his present income. It is indeed true that there is the loss in the earning capacity. 43. It requires to be appreciated that the applicant is still in the service and as a matter of fact he has not incurred any loss in his present income. It is indeed true that there is the loss in the earning capacity. In view of this position, this Tribunal is of the opinion that the economic loss resulting from the loss in the earning capacity should be computed at the rate of Rs.20,000/- per year. Accepting that this loss would continue for a further period of 12 years, the applicant should get an amount of Rs.2,40,000/-on the head of the loss resulting from the loss of earning capacity. The total figure, therefore, would come to Rs.3,87,100/- which the applicant should get from the opponent together with costs and interest.” 10. In view of aforesaid discussion made in paragraph 42 and 43, claims tribunal has rightly come to conclusion that monthly loss at the rate of 65% would come to Rs.2,600/-and yearly, it comes to Rs.29,200/- and looking to age of claimant, 12 multiplier has been rightly applied and on that basis, amount of compensation has been worked out, which has been rightly worked out by claims tribunal. For that, contentions raised by learned advocate Ms. Desai cannot be accepted because detailed reasons have been given by claims tribunal while appreciating entire evidence on record. For that, according to my opinion, claims tribunal has not committed any error which requires interference by this Court. The contentions raised by claimant in support of Cross-objection cannot be accepted, because, claims tribunal has awarded reasonable just and proper compensation to claimant in respect of each head and not awarded any compensation on lower side as contended by learned advocate of claimant. Therefore, there is no substance in Cross-objection filed by claimant. 11. Therefore, according to my opinion, claims tribunal has perfectly justified in passing award of compensation in favour of claimant while deciding sole negligence of driver of ST bus and looking to injury about 65% permanent disability with an amputation of right leg below knee and considering period of indoor patient and pain, shock and suffering, a reasonable amount has been awarded which cannot consider to be on higher side. 12. Therefore, there is no substance in present First Appeal. Accordingly, present First Appeal filed by appellant Corporation as well as Cross-objection field by claimant are dismissed. No order as to costs. 12. Therefore, there is no substance in present First Appeal. Accordingly, present First Appeal filed by appellant Corporation as well as Cross-objection field by claimant are dismissed. No order as to costs. 13. The amount, if any, deposited by appellant Corporation before registry of this Court, be transmitted to claims tribunal concerned, immediately. 14. It is directed to claims tribunal concerned to pay whatever amount of compensation accruing with interest lying with it to Thakorbhai Purshottamdas Parikh by account payee cheque, after proper verification, immediately. 15. R. & P., if available, be sent back to claims tribunal concerned, forthwith. (SBS) Appeal and cross-objection dismissed.