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2012 DIGILAW 498 (GUJ)

SHAILESH KUMAR NATWARJI THAKOR v. RAWAL HITESH

2012-07-05

C.L.SONI, JAYANT M.PATEL

body2012
JUDGMENT : JAYANT PATEL, J. 1. Present appeal arises from the judgment and award passed by the Motor Accident Claims Tribunal dated 31st July, 2011 in MACP No. 381 of 2006 whereby the Tribunal has awarded the compensation of Rs. 10,86,660 with interest at the rate of 7.5%. Short facts are that Thakore Shailesh Natwarji, with Rameshji and another person Gautamji were going on 21st January, 2006 on motor cycle bearing No. GJ-2-AB-9825 and near Bhasaria Chokadi, at about 7 to 8 o'clock, when they were returning back from Baliasan, one truck bearing No. GJ-2-R-6607 dashed the motorcycle on one side and as a result thereof, driver of the motorcycle Shaileshkumar as well as Gautamkumar pillion rider had fallen down. Shaileshkumar sustained serious injuries on head and fractures on leg whereas Gautamkumar ultimately succumbed to the injuries. Such accident gave rise to two claim petitions, one was M ACP No. 381 / 2006 for compensation of Rs. 32,00,000 preferred by the injured Thakor Shailesh Natwarji and the another was MACP No. 382 of 2006 preferred by the parents of deceased Gautamji for compensation of Rs. 14,50,000. The Tribunal, at the conclusion of the proceedings, awarded the aforesaid amount in Claim Petition No. 381 of 2006 and also awarded the amount of Rs. 2,29,860 with interest at the rate of 7.5% per annum in MACP No. 382 of 2006. Out of the aforesaid two, the present appeal is restricted to the decision rendered by the Claims Tribunal in MACP No. 381 of 2006. However, the original claimant who is stated to be in coma on account of the injuries sustained by him has preferred appeal against the decision of the Tribunal in MACP No. 381 of 2006. 2. We have heard Mr. Thakore, learned Counsel for the appellant and Mr. Dakshesh Mehta for respondent No. 2 Insurance Company, main contesting party for final disposal of the matter since the urgency was pressed by the learned Counsel for the appellant, as the injured claimant is in coma. Earlier, he was being looked after by his father but pending the proceedings, his father also expired and, therefore, only his wife was left to take care of the injured claimant. 3. First contention raised by the learned Counsel for the appellant is that the assessment of economic loss considered by the Tribunal is erroneous. In his submission, the certificate of salary of Rs. 3. First contention raised by the learned Counsel for the appellant is that the assessment of economic loss considered by the Tribunal is erroneous. In his submission, the certificate of salary of Rs. 8,000 per month of the claimant with Khyati Resorts had come on record as Mark 16/6, in spite of the same, the Tribunal assessed the income at Rs. 3,000 per month. Not only that but no prospective income was considered and, therefore, learned Counsel submitted that the compensation awarded by the Tribunal for loss of income is on much lower side. He also submitted that the Tribunal has committed error in awarding compensation towards attendant charges as well as for future treatment and, therefore, this Court may consider in the appeal. 4. Mr. Mehta, learned Counsel for the respondent Insurance Company has, while supporting the impugned judgment-award, contended that the salary certificate was not exhibited nor any person was examined in support of such so called salary certificate, therefore, in his submission, the Tribunal has rightly assessed the income at Rs. 3,000 per month. However, he fairly conceded that the prospective income was not considered by the Tribunal but in his submission, since there was no positive proof of employment, prospective income has rightly not been considered by the Tribunal. He also submitted that for the purpose of attendance charges and future medical expenditure, the Tribunal has rightly awarded the amount. 5. It appears from the reasons recorded by the Tribunal that no evidence was led for showing that the income of the claimant was Rs. 8,000 per month. Income Tax Return or any other evidence of the employer was also not produced. It is also a fact that the salary certificate was not exhibited by the Tribunal. Under the circumstances, if the Tribunal has assessed the income not based on the so called salary certificate which was not proved but has assessed the income at Rs. 3,000 per month, in our view, cannot be considered to be erroneous. However, there is considerable force in the contention of the learned Counsel for the appellant that in any event, the Tribunal was required to consider the prospective income of the claimant. Even as per the judgment of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , the prospective income was required to be considered by the Tribunal. Even as per the judgment of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , the prospective income was required to be considered by the Tribunal. Evidence has come on record that he was serving and the Tribunal also proceeded on the basis that the monthly income of the salary and agriculture could be Rs. 3,000. Therefore, when a person was in employment, consideration of prospective income cannot be ruled out. On the contrary, it would be reasonable and proper to consider the prospective income of the claimant. If the prospective income is taken into consideration, for the purpose of economic loss, such amount would come to Rs. 4,500 and not Rs. 3,000 per month as considered by the Tribunal. It also appears that as per the decision of the Apex Court in case of Sarla Verma (supra), and more particularly observations made at para 42 of the said decision for the age group of person between 26 and 30 years, appropriate multiplier would be 17 whereas the Tribunal has applied the multiplier of 16 and, therefore, such can also be said to be an error committed by the Tribunal. 6. In view of the aforesaid observation and discussion, it appears that the Tribunal ought to have considered the amount of Rs. 9,18,000 (4500 x 12 x 17) (9,18,000-10% = 8,26,200) as against the amount of Rs. 5,18,400 as assessed by the Tribunal. 7. Tribunal has committed error in not properly considering the compensation claimed by the claimant at Rs. 1,25,000 towards future repercussion on account of the injuries sustained by the claimant. It has come on record that the Tribunal has also recorded in the judgment that after treatment, the claimant was completely bedridden and he was in coma and could open his eyes only but was unable to give any answer. He was unable to take food and there were very less chances of improvement in long term. We are informed that as on today also, the claimant is in coma and he has not recovered. If a person has sustained injury resulting to create a situation in that, he has not gained consciousness and is in coma, there will be constant requirement of attendant to look after injured claimant. We are informed that as on today also, the claimant is in coma and he has not recovered. If a person has sustained injury resulting to create a situation in that, he has not gained consciousness and is in coma, there will be constant requirement of attendant to look after injured claimant. In addition to the above, there would be requirement of special diet in addition to pain and suffering to be sustained by injured claimant. Therefore, we find that the Tribunal was not justified in reducing the amount than the amount claimed by the claimant of Rs. 1,25,000 as against Rs. 75,000 awarded by the Tribunal. Under the circumstances, we find that the claimant would be entitled to compensation of Rs. 1,25,000 under the head of pain, shock and sufferings, attendant charges and special diet for future period and not only Rs. 75,000 as awarded by the Tribunal. 8. It also appears that the Tribunal has committed error in awarding compensation at Rs. 30,000 only towards expenses for future treatment as against the amount of Rs. 50,000, as claimed by the claimant. We have already recorded earlier that on account of the injury sustained by the claimant, he has remained in coma and needs continuous treatment even for future. Since, the amount was claimed as of Rs. 50,000, we find that the Tribunal ought to have awarded the said amount keeping in view the peculiar circumstances for the requirement of treatment in future and awarding of Rs. 30,000 only could not be said as justified. 9. In view of the aforesaid observations and discussion, the claimant would be entitled to the following amount of compensation: “against the aforesaid amount, the Tribunal has considered Rs. 12,07,400. Out of the aforesaid total amount of Rs. 15,85,200, if 10% of the amount, being contributory negligence, i.e. Rs. 1,58,520, is deducted, remaining amount would come to Rs. 14,26,680, which the claimant would be entitled to get with interest at the rate of 7.5% per annum from the date of the petition till the amount is actually paid or realized and/or deposited with the Tribunal. But, the learned Counsel for the respondent did raise the contention that as there was delay in preferring the appeal by a period of about 400 days, interest for the delayed period be not awarded. But, the learned Counsel for the respondent did raise the contention that as there was delay in preferring the appeal by a period of about 400 days, interest for the delayed period be not awarded. We, therefore, hold that the claimant would not be entitled to interest at the rate of 7.5% per annum for a period of one year but for the remaining period from the date of the petition till the amount is actually paid and/or deposited with the Tribunal, interest shall be payable. In view of the aforesaid observations and discussion, it is observed and held that the claimant would be entitled to compensation of Rs. 14,26,680 with interest at the rate of 7.5% per annum from the date of the petition till the amount is paid to the claimant or deposited with the Tribunal, whichever is earlier, minus interest on the aforesaid amount of compensation for a period of one year. Remaining amount of compensation shall be deposited with the Tribunal by respondent No. 2 Insurance Company within a period of six weeks from today. It is further observed and directed that total amount available with the Tribunal shall be invested by the Tribunal in Fixed Deposit Receipt initially for a period of five years and the claimant or his guardian or his wife, as the case may be, would be entitled to periodical interest on such investment as and when it becomes due. It is further observed that the investment shall be renewed from time-to-time by the Tribunal for a period of five years every time or until further directions, but with clarification that in the event the claimant gets recovery and he gains consciousness for performing his normal life, he shall be at liberty to move this Court for appropriate direction. The appeal is allowed to the aforesaid extent with costs in proportion to enhanced amount of compensation.”