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Gujarat High Court · body

2013 DIGILAW 15 (GUJ)

GSRTC v. Nurmahmmadbhai Babubhai Shaikh

2013-01-11

BHASKAR BHATTACHARYA

body2013
Judgment Bhaskar Bhattacharya, CJ.—This appeal is at the instance of owner of the offending vehicle, namely the Gujarat State Road Transport Corporation and is directed against an award dated 5th May, 2001 passed by the Motor Accident Claim Tribunal (Aux.), Bhavnagar in Motor Accident Claim Petition No.126 of 1996, thereby, disposing of the said application by awarding a sum of Rs. 9,50,000/- as compensation. 2. The following facts are not in dispute. 2.1 The claimant is the driver of a Maruti Van which met with the accident with a bus owned by the appellant coming from opposite direction; as a result of head-on-collision, one of the passengers of the Maruti Van died and the claimant of this application sustained serious injury. 3. There is no dispute that the claimant was aged 36 years at the time of accident and it has been established from evidence on record that he had a driving license and was also the owner of a Motor Garage, where he used to repair motors, scooters, etc. The license of running such Motor Garage has been exhibited and at the same time, the rent receipt showing that the claimant took the garage on rental basis has also been proved. According to the claimant, he used to earn Rs. 3500/- to Rs. 4000/- from his business of such Motor Garage. 4. The Tribunal, on consideration of materials on record came to the conclusion that as it was established from the evidence on record that on the front side of the Maruti Van, three passengers occupied, it should be presumed that there was negligence on the part of the driver of the Maruti Van to the extent of 20%. 5. It may not be out of place to mention that the eye witnesses of the accident traveling in the Maruti Van specifically asserted that the bus owned by the appellant was coming from opposite direction and was trying to overtake a bullock cart, as a result, the accident occurred, whereas the driver of the offending bus claimed that it was the driver of the Maruti Van who was trying to overtake the bullock cart and the accident occurred. The learned Tribunal below, while arriving at the finding of negligence, however, did not take into consideration those evidence given by the witnesses. 6. The learned Tribunal below, while arriving at the finding of negligence, however, did not take into consideration those evidence given by the witnesses. 6. It appears from the medical evidence that the claimant was first admitted in Civil Hospital, Ahmedabad from 8th November, 1995 till 19th February, 1996 for a period of about three months. One of the injuries was of severe nature on the head, as a result, the claimant was unconscious for about 75 days. According to the evidence given on behalf of the claimant, there was a wound from the forehead penetrating the head and a fracture in the nose, and it was not possible for the claimant to breath easily through the nose and hence, a hole was made in his neck, through which a tube was inserted for the purpose of breathing. There was also total disfigurement of the face and even after being discharged from the hospital, he was completely bedridden for about two months and the doctor used to visit the house of the claimant for treatment. Subsequently, the claimant was again admitted in the hospital of Dr. Prashant Vora at Bhavnagar and thereafter, was taken to a Hospital of Dr. V.M. Shah at Jamnagar and was admitted as indoor patient from 6th July, 1996 to 2nd August, 1996. Dr. Shah had performed three surgical operations. At the time of deposition, the claimant was not even in a position to walk without any support and was unable to speak and also found it difficult to comprehend what is spoken to him. 7. The doctor further found that the joints in the hands were not placed properly and there was defect in the hand. The fingers of the left hand could not be folded properly, with the result, it was not possible for the claimant to catch anything. There was also defect in the sensitivity in the left hand and he was also facing difficulty to fold his right leg from the knee and the movement of the knee was only 30%. The doctor in his evidence certified that he had assessed partial orthopedic disability at 95%, but there was possibility of improvement with physiotherapy. There was also defect in the sensitivity in the left hand and he was also facing difficulty to fold his right leg from the knee and the movement of the knee was only 30%. The doctor in his evidence certified that he had assessed partial orthopedic disability at 95%, but there was possibility of improvement with physiotherapy. He has further stated that in the month of June 2000, he had examined the claimant and found that there was improvement to the extent of 20% and at that time, the disability was 75% for the body as a whole and it was not possible for the claimant to do motor cycle repairing work or any work of the similar nature, and according to the doctor, the disability to the extent of 75% was permanent for life. 8. The learned Tribunal below, on consideration of the aforesaid materials on record, arrived at the following figure of compensation. Loss of future income Rs. 9,60,000/- Medical expenses Rs. 1,29,000/- Pain and suffering Rs. 50,000/- Loss of amenities Rs. 40,000/- Attendant charges Rs. 21,000/- Total Rs. 12,00,000/- 9. While arriving at the figure of future income of Rs. 9,60,000/-, the Tribunal was of the view that having regard to the future prospect in the business of the claimant, the same should be Rs. 5000/- per annum and the multiplier of 16 should be adopted. 10. Mrs. Bhatt, the learned counsel appearing on behalf of the appellant has first contended that the application of multiplier of 16 in the facts of the present case was improper having regard to the decision of the Supreme Court in the case of Smt. Sarla Verma and others vs. Delhi Transport Corporation and another reported in AIR 2009 SC 3104 . According to her, the appropriate multiplier should have been 15, as the claimant was 36 years of age. Even if I accept the contention of Mrs. Bhatt that appropriate multiplier should be 15, instead of Rs. 9,60,000/-, the said amount should be Rs. 9,00,000/- . However, I find that the Tribunal has given only Rs. 40,000/- towards loss of amenities and Rs. 50,000/- towards pain and suffering. On the above two headings, Rs. 30,000/- each should have been definitely added. Bhatt that appropriate multiplier should be 15, instead of Rs. 9,60,000/-, the said amount should be Rs. 9,00,000/- . However, I find that the Tribunal has given only Rs. 40,000/- towards loss of amenities and Rs. 50,000/- towards pain and suffering. On the above two headings, Rs. 30,000/- each should have been definitely added. Therefore, I do not find any reason to reduce the ultimate amount of compensation in view of the fact that less amount has been awarded towards pain and suffering and loss of amenities. I cannot lose sight of the fact that by virtue of the said accident, the claimant is unable to do any job throughout his life. 11. Mrs. Bhatt next contended that the claimant having claimed a sum of Rs. 9,50,000/-, the assessment of the Tribunal that the claimant should be entitled to Rs. 12,00,000/- was not proper. 12. I am unable to accept such contention for two fold reasons: first, it is now well settled that in a petition for claim of compensation under the Motor Vehicles Act, if the Court finds the amount of just compensation to be above the amount claimed, that cannot be a ground for reducing. (See Laxman @ Laxman Moriya vs. Divisional Manager, Orient Insurance Company Limited and others reported in (2011) 10 SCC 756 , where earlier decisions of the Supreme Court right from Nagappa vs. Gurdayal Singh reported in (2003) 2 SCC 274 have been relied on.) 13. Secondly, although the Tribunal arrived at the figure of Rs. 12,00,000/- and thereafter, deducted 20% as contributory negligence, what is necessary to be considered is the ultimate amount of compensation, which is actually ordered by the Tribunal. It appears that the Tribunal, after deducting 20% though arrived at a figure of Rs. 9,60,000/-, nevertheless, deducted a further sum of Rs. 10,000/- and then awarded Rs. 9,50,000/-, as the said amount was claimed in the claim application. I therefore, find no substance in the aforesaid contention of Mrs. Bhatt. 14. Mrs. Bhatt lastly contends that rate of interest at the rate of 12% per annum was excessive, as the award was passed on 5th May, 2001. 15. On this point, I find substance with the contention that the interest should not have been awarded at the rate of 12% at least for the period from 1st January, 2000. 16. 14. Mrs. Bhatt lastly contends that rate of interest at the rate of 12% per annum was excessive, as the award was passed on 5th May, 2001. 15. On this point, I find substance with the contention that the interest should not have been awarded at the rate of 12% at least for the period from 1st January, 2000. 16. I therefore, modify the award only to the extent that interest on the amount of Rs. 9,50,000/- should be payable at the rate of 12% per annum from the date of filing of the application till December 31, 1999, but from 1st January 2000, the same should be 8% per annum. 17. The appeal is thus, allowed only to the above extent. The Tribunal below is directed to recalculate the amount and return the balance amount to the appellant. In the facts and circumstances, there will be, however, no order as to costs. 18. Registry is directed to return Record and Proceedings to the Tribunal forthwith.