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2016 DIGILAW 557 (GUJ)

Dipakbhai Anantrai Mehta v. Merubhai Mandanbhai Godhaniya

2016-03-10

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. This is an appeal filed by the appellant-original claimant against the judgment and award rendered by the learned Motor Accident Claims Tribunal (Aux.), Porbandar, ('the Tribunal' for short) dated 23.03.2006 in MACP No. 79 of 2003, wherein the learned Tribunal has awarded compensation of Rs. 51,500/- with interest at the rate of 7.5% per annum. 2. The brief facts of the case are that on the date of the alleged incident, i.e. on 22.04.2003 the injured claimant Dipakbhai Mehta along with his wife and daughter were traveling on motorcycle and when they reached between village Pajod and Batwa, one luxury bus No. GJ-11-T-1729 driven by opponent No. 1 came with hectic speed from opposite direction and dashed with the motorcycle of the claimant. As a result of this collision, the appellant sustained grave bodily injuries. The original claimant Dipakbhai had filed the aforesaid claim petition, wherein, the learned Tribunal has been pleased to pass the impugned order. Hence, the present appeal. 3. Heard learned Advocate Ms. Sandhya Natani for the appellant- original claimant and learned Advocate Shri Palak Thakkar for the Respondent No. 3-Insurance company. Though served none has appeared for rest of the respondents. 4. This Court has perused the material available on record as well as the impugned judgment and award passed by the learned Tribunal. 5. The original claimant has preferred the present appeal, inter alia, contending that the learned Tribunal has not properly appreciated the evidence on the record. It is further contended that the learned Tribunal has awarded Rs. 15,000/- towards medical expenses, whereas he has produced the medical bills of amounting to Rs. 38,761/- before the learned Tribunal. It is further contended that the learned Tribunal failed to award loss of future income in proper manner as per settled legal position of law. It is further contended that the learned Tribunal has awarded compensation in lower side, which is required to be enhanced. 6. As the present appeal raises the dispute regarding quantum of compensation only, this Court has, therefore, concentrated on the said issue of quantum only. 7. Learned Advocate Ms. Sandhya Natani for the original claimant submitted that the learned Tribunal has failed to take into consideration the settle principles of law while awarding permanent disability caused to the appellant as per the criteria prescribed for considering the permanent disability by Dr. Hendry Kesler. 7. Learned Advocate Ms. Sandhya Natani for the original claimant submitted that the learned Tribunal has failed to take into consideration the settle principles of law while awarding permanent disability caused to the appellant as per the criteria prescribed for considering the permanent disability by Dr. Hendry Kesler. She has further contended that the learned Tribunal has not taken into consideration the actual permanent disability of the original claimant. She has therefore contended that present appeal may be allowed and amount of compensation awarded by the learned Tribunal may be enhanced. 8. On the other hand, learned Advocate Shri Palak Thakkar for Respondent No. 3-Insurance Company, strongly opposed the appeal and submitted that the learned Tribunal has passed the impugned judgment and award after taking into consideration the entire material on record, therefore no interference is called for at the hands of this Court and the present appeal be dismissed. 9. On the point of quantum, the claimant has pleaded in the petition that at the time of incident he was aged about 35 years and in order to prove his age, the claimant has not produced any documentary evidence on the record. Learned Advocate Shri Palak Thakkar for the insurance company has drawn the attention of this Court to the driving license of the injured claimant produced on record, wherein, his death of birth is mentioned as 29.05.1968. Thus, the claimant was aged about 35 years at the time of accident. In that view of the matter, the claimant falls within in the age group of 31 to 35 years. 10. So far as the income of the deceased is concerned, the claimant has narrated in the petition that he was working as salesman with Bansi Electronics and used to earn Rs. 3,000/- per month. In order to prove his income, the claimant has produced income certificate issued by Bansi Electronics stating that he was drawing salary of Rs. 3,000/- in the month of March, 2003. Thus, the monthly income of the claimant is proved to be Rs. 3,000/- as he was working as salesman. Thus, considering the year of accident occurred in the year 2003 and documents available on the record, the Tribunal has considered the income of the injured claimant at Rs. 3,000/- per month. 11. Further, this Court has perused the disability certificate issued by Dr. Rajendra Godhaniya at Exh. 3,000/- as he was working as salesman. Thus, considering the year of accident occurred in the year 2003 and documents available on the record, the Tribunal has considered the income of the injured claimant at Rs. 3,000/- per month. 11. Further, this Court has perused the disability certificate issued by Dr. Rajendra Godhaniya at Exh. 34, wherein he has certified that the injured victim has suffered injuries of fracture on radial part of his right head as well as shaft femur. In the result, the aforesaid injuries over his body definitely decreased his functional capacity. Therefore, future loss of income is required to be awarded to the claimant. In view of the decision of the Apex Court in "SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANR." reported in (2009) 6 SCC 121 , the prospective income of the claimant is required to be considered and therefore, 50% is required to be raised. Accordingly, it comes to Rs. 4,500/- per month (Rs. 3,000 + 50% rise). Further, as the claimant has derived disability to the extent of 15%, which can be counted to the extent of 50% body as a whole. Thus, the claimant is entitled to receive compensation to the extent of 7.5% which is rounded of to 5% for the body as a whole. 12. As there is loss of 5% in his earning capacity and therefore, the loss of income would come to (4500 X 5%=) Rs. 225/-. Therefore, the annual loss of income would come to (Rs. 225 x 12)= Rs. 2,700/-. Since, the age of the claimant is falling in the age group of 31 to 35 years, the proper multiplier would be 16. Thus, on applying the multiplier of 16, the loss of total income to the claimant would come to Rs. 43,200 (2,700 X 16). 13. Further, the claimant has produced bills of medical expenses of Rs. 38,761/- and the learned Tribunal has rightly awarded Rs. 38,761/- towards medical expenses. Actually this Court is of the view that it should be rounded of to Rs. 39,000/-. Further, the Tribunal has rightly awarded Rs. 15,000/- towards pain, shock and suffering, Rs. 9,000/- towards actual loss of income and Rs. 5,000/- towards attendant charges and special diet. 38,761/- and the learned Tribunal has rightly awarded Rs. 38,761/- towards medical expenses. Actually this Court is of the view that it should be rounded of to Rs. 39,000/-. Further, the Tribunal has rightly awarded Rs. 15,000/- towards pain, shock and suffering, Rs. 9,000/- towards actual loss of income and Rs. 5,000/- towards attendant charges and special diet. It is required to be mentioned that the Tribunal has awarded interest at the rate of 7.5%, which is on the lower side and thus, the claimant is entitled to receive interest at the rate of 9% per annum on the compensation awarded by the learned Tribunal taking into consideration the facts and circumstances of the case. 14. In view of the above, in short, the appellant-original claimant shall be entitled to the following amounts towards compensation: Rs. 43,200 Loss of dependency or future income Rs. 39,000 Towards medical expenses Rs. 9,000 Towards actual loss of income Rs. 15,000 Towards pain, shock and suffering Rs. 5,000 Towards attendant charges and special diet Rs. 1,11,200 Total 15. The Tribunal has awarded an amount Rs. 51,500/- to the original claimant, and therefore, the original claimant shall be entitled to an additional amount of Rs. [(1,11,200 - 51,500 (i.e. the amount awarded by the Tribunal)]= Rs. 59,700/-. 16. In the result, this first appeal succeeds. The amount of compensation awarded by the learned Tribunal of Rs. 51,500/- is enhanced to Rs. 1,11,200/- along with 9% interest per annum from the date of the filing of the claim petition, till its realization. The impugned judgment and award of the learned Tribunal dated 22.04.2003 stands modified to the aforesaid extent. The enhanced amount shall be deposited with the learned Tribunal within a period of TWO MONTHS from today. On being deposited, the learned Tribunal is directed to pay total amount of compensation to the original claimant after making proper verification by way of account payee cheque. R&P be sent back to the concerned Tribunal, forthwith. No order as to costs.