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2017 DIGILAW 590 (GUJ)

National Insurance Company Limited v. Chintu Chunilal Prajapati

2017-03-15

ABDULLAH GULAMAHMED URAIZEE

body2017
JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. The appellant-Insurance Company is in appeal under Section 173 of the Motor Vehicles Act, 1988 ("M.V. Act" for short) to question the quantum of compensation awarded by the tribunal by judgment and award dated 29.12.2010 passed by the Motor Accident Claim Tribunal (Aux.), Evening Court, Ahmedabad City in Motor Accident Claim Petition No. 875 of 2004. 2. The brief facts giving rise to this appeal are that on 04.04.2004, the applicant herein was traveling as a passenger in an auto rickshaw bearing registration No. GJ-1-XX-4524 which was owned by the opponent No. 4 and insured with appellant Insurance Company herein and was going towards Gota Cross Roads from Adalaj. It is averred by the applicant that at that time when the driver of the rickshaw was driving on the highway and was proceeding towards Gota Cross Roads, at that time the driver of the Matadar bearing registration No. GJ-8-U-4033 owned by the opponent No1, at about 2.30 p.m., came there driving the Matadar at a great speed in a rash and negligent manner and dashed with the auto rickshaw from behind and caused serious injuries to the applicant herein. He, therefore, preferred Motor Accident Claim Petition No. 875 of 2004 in the Motor Accident Claim Tribunal (Aux.), Evening Court, Ahmedabad City to recover compensation of Rs. 6,00,000/- with interest at the rate of 15%. 3. The tribunal by the impugned judgment and award partly allowed the claim petition and directed the appellant and respondents No. 1 and 2 to pay a sum of Rs. 4,45,000/- with 9% interest jointly and severally and the insurance company being aggrieved by the quantum of compensation is in the appeal. 4. I have heard Mr. Maulik J. Shelat, learned advocate for the appellant and Mr. Vilav K. Bhatia, learned advocate for the respondent No. 3 - Original claimant. There is no representation on behalf of the respondents No. 1 and 2 despite service of notice of the appeal. 5. Mr. Shelat, learned advocate for the appellant would submit that the Tribunal has assessed the monthly income of deceased at Rs. 3,000/- without there being any evidence. It is his further submission that the compensation under the head of disfigurement and loss of amenities is dehors any evidence. He, therefore, urges that the appeal may be allowed and the impugned judgment and award may be modified accordingly. 6. 3,000/- without there being any evidence. It is his further submission that the compensation under the head of disfigurement and loss of amenities is dehors any evidence. He, therefore, urges that the appeal may be allowed and the impugned judgment and award may be modified accordingly. 6. Mr. Bhatia, learned advocate for the respondent No. 3 - original claimants has supported the impugned judgment and award. He submits that the respondent No. 4 was aged 20 years at the time of the accident. It is his further submission that even by taking the minimum wage prevalent at the time of the accident, it can be assumed that the claimant would have been earning at least Rs. 3000/- per month. It is his further submission that in catena of decisions of Supreme Court is held that in case of house wife minimum income of Rs. 3,000/- should be assessed. He therefore, submits that the tribunal has not committed any error in assessing the monthly income i.e. Rs. 3,000/-. 7. It is his further submission that photographs available on the record clearly indicate that there is a big scar on left foot of the claimant and that tribunal has recorded a finding that he was finding difficulty in walking. Therefore, tribunal has rightly awarded Rs. 1,00,000/- for loss of amenities of life and disfigurement. He urges that the impugned judgment and award does not warrant any interference in this appeal. 8. The undisputed fact is that, at the time of the accident, according to the claimant he was working in Cloths Market and was earning Rs. 3,000/- per month. He has not specified the nature of the work he was doing nor has disclosed the name of the shop or firm in which he was working. In the backdrop of these facts that the claimant could have easily examined the employer to conclusively prove his monthly income. It is true that the Supreme Court in catena of decisions has held the in case of a house wife (non working lady) cannot be equated with an earning person, minimum Rs. 3,000/- has to be assessed as monthly income. When the claimant comes to a tribunal with a specific case that he was an employed at a particular place and getting certain sum as wages, it becomes incumbent upon him to produce cogent and reliable evidence on record to conclusively establish his income. 3,000/- has to be assessed as monthly income. When the claimant comes to a tribunal with a specific case that he was an employed at a particular place and getting certain sum as wages, it becomes incumbent upon him to produce cogent and reliable evidence on record to conclusively establish his income. Under the circumstances, the monthly income assessed by the tribunal cannot be sustained in the facts of the case. I am of the view that ends of justice would be met if the monthly income at Rs. 3,000/- per month including prospective income is assessed. 9. For awarding the compensation under the head of loss of amenity of life and disfigurement, the tribunal has recorded a contradictory findings. In paragraph number 17 of the impugned judgment and award, the tribunal recorded a finding that though the loss of disfigurement could be accepted to sum extent, the applicant has failed to prove any loss of amenity of life. I am therefore, of the opinion that the compensation of Rs. 1,00,000/- as awarded by the tribunal cannot be sustained and is required to be slashed-down to Rs. 50,000/-. 10. So far as the multiplier of 16 adopted by the tribunal is concerned, the Supreme Court in the case of Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and another, (2009) 6 SCC 121 has held that in case of victims in the age group of 21 to 25 years. 18 multiplier is required to be adopted. Therefore, claimant/victim being below age of 25 years multiplier of 18 is required to be adopted in place of 16 adopted by the tribunal. 11. The claimant is therefore entitled to the following compensation. Head Amount awarded by Tribunal Amount awarded by this judgment Difference Future loss of income Rs.1,90,000/- Rs. 1,42,500/- Rs.47,500/- 10 months actual loss of income Rs.30,000/- Rs.30,000/- - Pain, Shock and Suffering Rs.50,000/- Rs.50,000/- - Medical Expenses Rs.50,000/- Rs.50,000/- - Attendance, Special Diet and Transportation Rs.25,000/- Rs.25,000/- - Loss of disfigurement Rs.1,00,000/- Rs.50,000/- Rs.50,000/- Total Rs.4,45,000/- Rs.3,47,500/- Rs.97,500/- 12. The tribunal has awarded Rs. 4,45,000/- as compensation which is therefore, required to reduce by Rs. 97,500/-. 13. For the foregoing reasons, the appeal succeeds in part. Impugned judgment and award of the tribunal is modified and the respondent No. 3 - original claimant is held entitled to total compensation of Rs. 3,47,500/- in place of Rs. The tribunal has awarded Rs. 4,45,000/- as compensation which is therefore, required to reduce by Rs. 97,500/-. 13. For the foregoing reasons, the appeal succeeds in part. Impugned judgment and award of the tribunal is modified and the respondent No. 3 - original claimant is held entitled to total compensation of Rs. 3,47,500/- in place of Rs. 4,45,000/- as awarded by the tribunal. Excess amount of compensation if lying in the FDR is ordered to be released in favour of the appellant along with accrued interest, if any. 14. R & P is ordered to be remitted to the trial Court to the forthwith. In the facts of the case, parties are left to bear their own costs.