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2015 DIGILAW 1242 (GUJ)

Hamir Kaba Karangiya v. S. T. Corp

2015-12-03

M.R.SHAH

body2015
JUDGMENT : M.R. Shah, J. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Special) at Porbandar passed in MACP No. 133 of 1997, by which, the learned Tribunal has awarded a total sum of Rs.1,11,690/- to the appellant-original claimant towards compensation for the injuries sustained by him in a vehicular accident with 6% interest from the date of application till realization, the appellant herein - original claimant - injured claimant has preferred the present appeal to enhance the amount of compensation as well as on contributory negligence. 2. In a vehicular accident which took place/occurred on 10.04.1997 between the Truck No. GRW 1651 which at the relevant time was being driven by the appellant injured claimant and one ST Bus No.GJ-1-Z-4015, the appellant herein sustained serious injuries, due to which, there was amputation of leg from knee. Therefore, the injured claimant filed aforesaid claim petition before the learned Tribunal claiming total sum of Rs.4 lacs towards compensation. 2.1. It was the case on behalf of the original claimant that driver of the ST bus was rash and negligent, due to which, the accident took place and therefore, he was sole negligent for the accident. 2.2. It was the case on behalf of the original claimants that in same vehicular accident he sustained serious injuries and in fact his leg was required to be amputated below the hip. He remained as injured patient in three different hospitals approximately for 72 days. According to the claimant, he was serving as a driver and his monthly income was Rs.2500/- to 3000/- per month. 2.3. The claim petition was opposed by the Gujarat State Road Transport Corporation as well as insurer of the truck involved in the accident. It was the specific case on behalf of the GSRTC that in fact the claimant was sole negligent for the accident. In the alternative, there was a plea of contributory negligence. Both GSRTC as well as insurer denied that the income of the claimant was Rs.2500/- to 3000/- per month as alleged. 2.4. That on appreciation of evidence, more particular, considering the panchnama of the place of accident, the learned Tribunal held the appellant - original claimant contributory negligence to the extent of 70% of the and the driver of the ST Bus involved in the accident contributory negligence to the extent of 30%. 2.5. 2.4. That on appreciation of evidence, more particular, considering the panchnama of the place of accident, the learned Tribunal held the appellant - original claimant contributory negligence to the extent of 70% of the and the driver of the ST Bus involved in the accident contributory negligence to the extent of 30%. 2.5. That considering the certificate issued by the Doctor, learned Tribunal assessed the permanent partial disability at 85% and in absence of any other evidence to prove the income led by the claimant, learned Tribunal has assessed the income of the claimant notionally at Rs.1500/- per month. After considering the 85% partial disability, the learned Tribunal has assessed the loss of income at Rs.1275/- per month and thereafter applying the multiplier of 16 has awarded Rs.2,44,800/- towards future loss of income. That thereafter, the learned Tribunal has awarded the amount of compensation under the different heads as under: Head Amount (Rs) Future loss of income 2,44,800/- Pain, Shock and Suffering 20,000/- Medical Treatment Expenses 84,000/- Transportation and Special Diet. 10,000/- Actual loss of income 7500/- Total 3,72,300 – 2,60,610 = towards 70% negligence of the claimant = 1,11,690/- with 6% interest thereon. 2.6. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal, the original claimant has preferred present appeal to enhance the amount of compensation. 3. Shri Prachchhak, learned advocate for the appellant has vehemently submitted that the learned Tribunal has erred in holding the original claimant contributory negligent to the extent of 70%. 3.1. It is submitted that as the accident took place between the Truck and ST Bus i.e. both were the heavy vehicles, learned Tribunal ought to have held the driver of both the vehicles equal negligent. 3.2. It is further submitted that the learned Tribunal has materially erred in considering/assessing the income of the claimantRs.1500/- per month. It is submitted that while awarding future loss of income, the learned Tribunal has not considered the future rise in income. 3.3. It is further submitted by Shri Prachchhak, learned advocate for the appellant - original claimant that even the learned Tribunal has materially erred in awarding future loss of income considering the permanent partial disability of the body as a whole at 85%. 3.4. 3.3. It is further submitted by Shri Prachchhak, learned advocate for the appellant - original claimant that even the learned Tribunal has materially erred in awarding future loss of income considering the permanent partial disability of the body as a whole at 85%. 3.4. It is submitted that as such the right leg above the knee was required to be amputated and that the claimant was serving as driver and after the accident due to the permanent partial disability and as leg was amputated, he is not in a position to do any work as a driver, learned Tribunal ought to have awarded future loss of income considering the functional disability to be 100%. 3.5. It is further submitted that even the learned Tribunal has materially erred in awardingRs.20,000/- under the head of pain, shock and suffering. It is submitted that considering the fact that the right leg above the knee of the claimant was required to be amputated and that he was also sustained other injuries and was required to be remained in the hospital as an indoor patient for 72 days and his prolong treatment and hospitalization, the learned Tribunal ought to have awarded at least Rs.50,000/- under the head of pain, shock and suffering. 3.6. It is further submitted that the learned Tribunal has even materially erred in awarding interest at the rate of 6% p.a. Relying upon the decisions of the Hon'ble Supreme Court in the case of Rajesh and Others v. Rajbir Singh and Another reported in (2003) 9 SCC 54, it is submitted that the learned Tribunal ought to have awarded interest at the rate of 9% p.a. Making above submissions and relying upon above decision, it is requested to allow the present appeal and modify the impugned judgment and award passed by the learned Tribual to the aforesaid extent. 4. Present appeal is opposed by Shri Nagesh Sood, learned advocate for the insurer of the truck involved in the accident and Ms. Khushbu Danecha, learned advocate for Ms. Vasavdatta Bhatt, learned advocate for the Gujarat State Road Transport Corporation. 4.1. 4. Present appeal is opposed by Shri Nagesh Sood, learned advocate for the insurer of the truck involved in the accident and Ms. Khushbu Danecha, learned advocate for Ms. Vasavdatta Bhatt, learned advocate for the Gujarat State Road Transport Corporation. 4.1. Shri Sood, learned advocate for the insurer of the truck involved in the accident has submitted that finding recorded by the learned Tribunal holding the claimant contributory negligence to the extent of 30% is on appreciation of evidence, more particularly, considering the panchnama of place of accident, therefore, the same is not required to be interfered with. 4.2. Ms. Danecha, learned advocate for the Gujarat State Road Transport Corporation has submitted that as such the learned Tribunal has erred in holding the driver of the ST bus contributory negligence to the extent of 30%. It is submitted that in any case, the finding recorded by the learned Tribunal on contributory negligence is on appreciation of evidence, same may not be interfered with by this Court. 4.3. Learned advocates for the insurer of the truck involved in the accident as well as Gujarat State Road Transport Corporation have submitted that in the facts and circumstances of the case and in absence of any cogent evidence led by the claimant to prove the income, learned Tribunal has not committed nay error in assessing the income of the claimant at Rs.1500/- per month. However, they are not disputing and/or they are not in a position to dispute that the learned Tribunal has not considered any future rise in income. 4.4. Learned advocates for the respective respondents are also not in a position to dispute that after the accident and due to amputation of the right leg above the knee, the claimant would not be in a position to drive the vehicle, more particularly, do the work as a driver. They are also not disputing that the claimant had sustained fractures and even his right leg above knee was required to be amputated. They are also not disputing that the claimant was required to remain in hospital as a indoor patient for about 72 days in three different three hospitals. 4.4. They are also not disputing that the claimant had sustained fractures and even his right leg above knee was required to be amputated. They are also not disputing that the claimant was required to remain in hospital as a indoor patient for about 72 days in three different three hospitals. 4.4. Learned advocates for the respective respondents have submitted that in the facts and circumstances of the case, no error has been committed by the learned Tribunal in awarding interest at the rate of 6% p.a. Making above submissions, it is requested to dismiss the present Appeal. 5. Heard the learned advocates for the respective parties at length. Perused the impugned judgment and award and evidence on record. 6. At the outset, it is required to be noted that on appreciation of evidence, learned Tribunal has held the original claimant who was driving the truck contributory negligent to the extent of 70% and driver of the ST bus involved in the accident contributory negligent to the extent of 30%. The aforesaid finding recorded by the learned Tribunal is on appreciation of evidence, more particularly, the panchnama of place of accident from which it can be said that the claimant was more negligent than the driver of the ST bus. It is not the case of head on collision. Merely because, the vehicles involved in the accident are two heavy vehicles, both of them ipso facto cannot be held contributory negligent equally. It depends upon the facts and circumstances of each case. Considering the evidence on record, it cannot be said that the learned Tribunal has committed any error in holding the claimant contributory negligent to the extent of 70%. Under the circumstances, the findings recorded by the learned Tribunal on contributory negligence of both the vehicles is hereby confirmed. 7. Now, so far as the quantum of the amount of compensation awarded by the learned Tribunal is concerned, it is required to be noted that the learned Tribunal has awarded future loss of income considering the permanent partial disability of the body as a whole at 85%. However, it is required to be noted and it is not in dispute that the claimant at the relevant time was a driver and his right leg above knee has been amputated. However, it is required to be noted and it is not in dispute that the claimant at the relevant time was a driver and his right leg above knee has been amputated. Under the circumstances, he would not be in a position to do work of driver, which he was doing at the time of accident. Under the circumstances, learned Tribunal ought to have awarded future loss of income considering the disability/functional disability as a whole at 100%. 8. In absence of any other cogent evidence led by the claimant, learned Tribunal has assessed the income of the claimant notionally at Rs.1500/- per month. However, while considering the future loss of income, the learned Tribunal has not considered the future rise in income at all. In the facts and circumstances of the case and considering the fact that accident took place in the year 1997, prospective income of the claimant for the purpose of future loss of income ought to have considered at Rs.2500/- per month. Even the learned Tribunal has erred in applying multiplier of 16. Looking to the age of the claimant, the multiplier of 17 was required to be applied. Under the circumstances, the claimant shall be entitled toRs.5,10,000/- under the head of future loss of income. 9. The learned Tribunal has erred in awardingRs.20,000/- only towards pain, shock and suffering. It is not in dispute that in the accident claimant sustained two fractures. It is also not in dispute that his right leg above knee was required to be amputated. He remained in hospital as indoor patient for 72 days in three different hospitals. Considering the above, the amount awarded by the learned Tribunal under the head of pain, shock and suffering can be said to be on lower side. In the facts and circumstances of the case, the claimant shall be entitled to at least Rs.50,000/- under the head of pain, shock and suffering. 10. Even learned Tribunal has erred in awarding interest at the rate of 6% p.a. Considering the decision of the Hon'ble Supreme Court in the case of Rajesh and others (supra), learned Tribunal was required to award interest at the rate of 9% p.a. 11. To the aforesaid extent, present appeal is required to be partly allowed and the impugned judgment and award passed by the learned Tribunal is required to be modified to the aforesaid extent. 12. To the aforesaid extent, present appeal is required to be partly allowed and the impugned judgment and award passed by the learned Tribunal is required to be modified to the aforesaid extent. 12. In view of the above and for the reasons stated above, present appeal succeeds in part. The impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Special) at Porbandar passed in MACP No. 133 of 1997 is hereby modified to the extent and it is held that the appellant - claimant shall be entitled to total sum of Rs.6,67,500/- with 9% interest thereon from the date of application till realization. Present appeal is partly allowed to the aforesaid extent. No costs. The balance enhanced amount of compensation to be deposited by the concerned respective respondents to the extent of their liability with the learned Tribunal within a period of 8 weeks from today and on such deposit, the same be paid to the original claimant by account payee cheque on proper verification and identification. 13. As it is reported that original claim before the learned Tribunal was of Rs.4 lacs and it is held that the claimant shall be entitled to the aforesaid amount of compensation, which can be said to be just compensation, the appellant is permitted to amend the amount of claim considering the decision of the Hon'ble Supreme Court in the case of Ibrahim v. Raju and others reported in (2011) 10 SCC 634 on payment of additional Court Fees ofRs.6,75,000/- which shall be paid/deposited with the Registry of this Court within a period of two weeks from today. Appeal partly allowed.