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2016 DIGILAW 1850 (GUJ)

Bhavanishankar Dharmshankar Joshi v. Natubhai Bijalbhai Thakor

2016-09-01

R.P.DHOLARIA

body2016
JUDGMENT : R.P DHOLARIA, J. This appeal has been preferred by the appellant-claimant against the judgment and award dated 20.6.2013 passed by the Motor Accident Claim Tribunal (Aux), Palanpur in Motor Accident Claim Petition No. 613 of 1992, wherein the learned Tribunal has awarded compensation of Rs.41,170/-. 2. The original claimant has preferred present appeal inter-alia contending that the amount of compensation awarded by the learned Tribunal is on lower side. It is further contended that the judgment and award passed by the learned Tribunal is contrary to law and against the provisions of the statute and against the principles of natural justice. It is also contended that the claimant sustained permanent disability and undergone prolonged treatment, however, no award was made towards the head of future loss of income. It is further contended that the learned Tribunal has taken very conservative view in awarding compensation and there is scope of enhance compensation. It is further contended that the learned Tribunal has committed error while awarding interest at the rate of 7.5% per annum in place of 9% per annum. Lastly, it is prayed to enhance the compensation. 3. The brief facts of the case are that on 14.9.1992, the appellant was going for work by driving the moped and when he reached near the place of accident at that time, respondent No. 1 came by driving his tempo bearing registration No. GJ-3-T-2733 in rash and negligent manner and in excessive speed and dashed with the vehicle of the appellant. Due to accident, the appellant sustained multiple bodily injures and further sustained 40% deafness in right ear and 70% deafness in left ear. 4. Heard Mr. Hiren Modi, learned advocate for the appellant and Mr. V.C Thomas, learned advocate for the respondent No. 3. 5. Mr. Hiren Modi, learned advocate for the appellant reiterated his ground mentioned in the memo of appeal for seeking enhancement of the compensation and he has urged that the amount of compensation is required to be enhanced as such. 6. On the other hand, Mr. V.C Thomas, learned advocate for the respondent Nos. 3 strongly opposed the appeal and submitted that the learned Tribunal has rightly awarded just and proper compensation in view of the evidence available on the record. Therefore, this Court should not interfere with the award passed by the learned Tribunal. 6. On the other hand, Mr. V.C Thomas, learned advocate for the respondent Nos. 3 strongly opposed the appeal and submitted that the learned Tribunal has rightly awarded just and proper compensation in view of the evidence available on the record. Therefore, this Court should not interfere with the award passed by the learned Tribunal. He further submitted that the learned Tribunal has passed the impugned judgment and award after taking into consideration, the entire material on record and hence, no interfere nice is called for at the hands of this Court and the present appeal be dismissed. 7. Having heard learned counsel for the respective parties and having gone through the impugned judgment as well as record and proceedings of le arned Tribunal, in para 31 of the impugned judgment and award, the learned Tribunal has particularized following amount of compensation: Rs.21,600/- towards future loss of income. Rs.570/- towards medical expenses. Rs.10,000/- towards pain, shock and suffering. Rs.9,000/- towards special diet, transportation and attendance charges. Rs.41,170/- Total. 8. It is established that ears of the claimant was crushed and he had undergone operation for his ears and he has also undergone prolonged indoor treatment. Therefore, he sustained disability to the extent of 15% of the body as a whole. On going through the amount of compensation awarded, it appears that the learned Tribunal has awarded appropriate compensation. However, the learned Tribunal failed to award any amount under the head of loss of amenities of life. 9. In view of the aforesaid factual position and taking into consideration that the amount particularized by the learned Tribunal does not disclose any compensation towards the head of loss of amenities of life. In that view of the matter, this Court deems it fit and appropriate to enhance the award of compensation to the extent of Rs.15,000/- towards the loss of amenities, enjoyment of life. Thus, the amount of compensation awarded is as under: Rs.15,000/- towards loss of amenities, enjoyment of life. Rs.21,600/- towards future loss of income. Rs.570/- towards medical expenses. Rs.10,000/- towards pain, shock and suffering. Rs.9,000/- towards special diet, transportation and attendance charges. Rs.56,170/- Total. 10. The learned Tribunal has awarded interest at the rate of 7.5% per annum. However, looking to the present trend of awarding interest, it is appropriate to award interest at the rate of 9% per annum. 11. Rs.570/- towards medical expenses. Rs.10,000/- towards pain, shock and suffering. Rs.9,000/- towards special diet, transportation and attendance charges. Rs.56,170/- Total. 10. The learned Tribunal has awarded interest at the rate of 7.5% per annum. However, looking to the present trend of awarding interest, it is appropriate to award interest at the rate of 9% per annum. 11. For the reasons recorded above, the present appeal succeeds in part. The amount of compensation of Rs.41,170/- awarded by the learned Tribunal is enhanced to Rs. 56,170/- with interest at the rate of 9% p.a thereon from the date of claim petition till realization. The balance enhanced amount of compensation with interest from the date of application till realization to be deposited by the respondent with the learned Tribunal within a period of two months from today and on such deposit, the same shall be paid to the original claimant by account payee cheque on proper identification and verification. Present appeal is allowed to the aforesaid extent. No order as to costs. The Registry is directed to return the R & P, if any, forthwith to the learned Tribunal.