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2013 DIGILAW 280 (GUJ)

Jashubhai Hothabhai Dantani v. G. S. R. T. C.

2013-05-09

S.H.VORA

body2013
JUDGMENT : S.H. VORA, J. 1. The appellant Jashubhai Hothabhai Dantani, has filed present appeal under Section 173 of the Motor Vehicles Act, inter alia challenging the award passed by the Motor Accident Claims Tribunal(Auxi.), Fast Track Court No. 2, Ahmedabad City, City Civil Court, Ahmedabad in Motor Accident Claims Petition No. 1329 of 2003 dated 31.12.2007, for enhancement of the claim amount awarded under various acts. 2. The main grievances of the appellant as such is that the learned Tribunal has not properly assessed the income; has not properly adopted multiplier and failed to appreciate the prolonged treatment undertaken by the appellant and therefore, insufficient amount came to be awarded under the pain, shock and sufferings. 3. In the petition filed by the appellant under Section 166 of the Motor Vehicles Act, the appellant prayed for award of compensation to the tune of Rs.10,00,000/- with interest at the rate of 15%. The claim was based on the following assertion made in the petition: (i) That appellant suffered grievous injuries on his left leg and, therefore, appellant's left leg was amputated. At the relevant time he was selling vegetables/fruits and was earning about Rs.2,000/- per month. (ii) That initially the appellant was treated in V.S. Hospital, Ahmedabad as an indoor patient during the period from 11.03.2003 to 01.07.2003. At V.S. Hospital, Ahmedabad, the operation of left leg was performed. (iii) That at the time of accident, the age of the appellant was about 20 years. (iv) That on account of amputation of left leg of the appellant, he is unable to do his routine work and also his business activities as he was doing prior to the accident. 4. After considering the pleadings of the parties and evidence produced by the parties before the Tribunal, the Tribunal held that accident was occurred due to rash and negligent driving of driver of the S.T. Corporation. However, the Tribunal did not accept the appellant's submission that he was earning Rs.3,000/- per month by selling vegetables/fruits by observing that the claimant has not produced any evidence to prove his income. In absence of any evidence with regard to the income, the monthly gross income of the appellant was believed at Rs.1,500/-. Though Dr. Nalinbhai Shah, issued a certificate at Exh. In absence of any evidence with regard to the income, the monthly gross income of the appellant was believed at Rs.1,500/-. Though Dr. Nalinbhai Shah, issued a certificate at Exh. 37 certifying/opining permanent disability of left lower limb to the extent of 85%, both the parties have agreed to treat the disability to the extent of 40% body as a whole. The Tribunal then applied the multiplier of 15 and held that appellant is entitled to Rs.1,08,000/- towards future loss of income. Over and above this, the Tribunal awarded following amount of compensation under various heads: Rs. 0,20,000/- towards pain, shock and suffering; Rs.0,20,000/- towards medical expenses Rs.0,06,000/- towards nursing and care Rs.0,10,000/- towards transportation and special diet charges Rs.0,09,000/- towards actual loss of income The Tribunal awarded with interest at the rate of 7.5% per annum on the total compensation of Rs.1,73,000/-. 5. Learned advocate appearing for the appellant assailed the award on various grounds and more particularly, it is alleged that in absence of any evidence with regard to the income, the Tribunal ought to have fixed the monthly income of the appellant to Rs.3,000/- per month. It is also urged that the appellant is required to spend certain amount for the medical expenses in future and on this count, the Tribunal has not awarded any amount and, therefore, award is required to be modified on this count also. Lastly, the Tribunal ought to have awarded to the appellant Rs.1,50,000/- towards pain, shock and sufferings and loss of amenities of the life. In support of his submission, learned advocate placed reliance on the decision rendered in the case of Govind Yadav v. New India Assurance Co. Ltd. Reported in 2012 ACJ 28 . 6. Per contra, learned advocate for the respondent Ms. Kiran D. Pandey, submitted that there is no error committed by the Tribunal as amount awarded by the Tribunal is just and legal looking to the nature of the evidence placed before Tribunal. She has also urged that there is no evidence that the appellant would require treatment in future and there is also no such opinion by the Doctor, who was examined before the Tribunal. 7. Considering the rival submissions, it appears that the Tribunal has committed an error in assessing the income of the appellant at Rs.1,500/- per month. She has also urged that there is no evidence that the appellant would require treatment in future and there is also no such opinion by the Doctor, who was examined before the Tribunal. 7. Considering the rival submissions, it appears that the Tribunal has committed an error in assessing the income of the appellant at Rs.1,500/- per month. It is case of the appellant that at the time of the accident, he was doing/selling vegetables/fruits and as such he was earing Rs.3,000/- per month. In the petition and more particularly in Para-11 of the petition, the appellant has asserted that he was earning Rs.2,000/- per month at the time of accident. Thus there is conflicting evidence as to the income. However, the notional income suggested/assessed by the Tribunal requires to be modified and it requires to be enhanced to Rs.2,000/- per month. This income is asserted by the appellant's in the petition itself and therefore it would meet the ends of the justice if the income of the appellant is assessed to be Rs.2,000/- per month. 8. The Tribunal has awarded Rs.20,000/- towards pain, shock and suffering looking to the nature of treatment taken by the appellant at V.S. Hospital, Ahmedabad for the injuries sustained on his left leg and further he has to remain in Hospital as an indoor patient during the period of 11.03.2003 to 1.07.2003, the left leg was required to be amputated and the amount awarded under the head of the pain, shock and suffering appears to be meagre. As such there is nothing on record whether artificial leg was suggested by the Doctor or not. But even if the victim gets artificial limb, he will suffer different kinds of handicap and social stigma of his life and therefore, in such cases, the Court is required to undertake some guesswork for assessing or fixing the amount of compensation. Admittedly, at the time of accident, the appellant was aged about 20 years. Due to accident, in remaining life, he will suffer trauma and not able to do the routine work normally. Therefore, the Court thinks that ends of justice will meet if amount of Rs.75,000/- is awarded towards pain, shock and sufferings, instead of Rs.20,000/- as awarded by the Tribunal. 9. It also appears that the Tribunal has committed an error in applying the multiplier of 15 years. Therefore, the Court thinks that ends of justice will meet if amount of Rs.75,000/- is awarded towards pain, shock and sufferings, instead of Rs.20,000/- as awarded by the Tribunal. 9. It also appears that the Tribunal has committed an error in applying the multiplier of 15 years. At the time of accident the appellant was aged about 20 years and therefore, it would meet the ends of justice if 18 multiplier is adopted and applied so as to calculate future economic loss suffered by the appellant. 10. As such, there is no evidence adduced by the appellant as regards future medical expenses for medical treatment. However considering the fact that the appellant's left leg was amputated and is unable to do the routine work, it would meet the ends of justice if amount of Rs.15,000/- is awarded towards future medical expenses. 11. The learned Tribunal has awarded Rs.9,000/- as future loss of income as the appellant was hospitalized for 6 months. Since the monthly income is assessed by the Court at Rs.2,000/-, the actual loss of income would come to Rs.12,000/-. 12. Except on these counts, there is no other grounds on which the awarded amount requires to be interfered or requires to be enhanced and further, there is no challenge on the part of the appellant. 13. Accordingly, the appellant becomes entitled to Rs.1,72,800/- [2,000x40%x12x18] towards future economic loss, Rs.75,000/- towards pain, shock and sufferings, Rs.20,000/- towards medical expenses(as awarded by Tribunal), Rs.6,000/- towards nursing and care (as awarded by Tribunal), Rs.10,000/- towards transportation and special diet charges(as awarded by Tribunal), 12,000/- towards actual loss of income, and Rs.15,000/- towards future medical expenses. Accordingly, the judgment and award dated 31.12.2007, passed in Motor Accident Claims Petition No. 1329 of 2003, is modified and enhanced to the total amount of Rs.3,10,800/-(Three Lac Ten Thousand Eight Hundred only) with interest at the rate of 7.5% per annum as awarded by the Tribunal. Awarded be drawn up accordingly. Awarded amount be disbursed/deposited in terms of the award of Tribunal. 14. This appeal stands disposed of accordingly with no order as to costs. Appeal disposed off.