JAGDISHBHAI PARBATBHAI SUTHAR v. SHAILESHBHAI NATWARLAL THAKKAR
2019-03-13
BHARGAV D KARIA
body2019
DigiLaw.ai
JUDGMENT BHARGAV D. KARIA, J. 1. This appeal was heard and finally disposed of by an order dated 19.10.2015 (Coram : Hon'ble Mr. Justice Akil Kureshi,). Thereafter, Misc. Civil Application No.281/2016 (renumbered as Misc. Civil Application No.1/2016) was filed by the original respondent no.2 - Oriental Insurance Company for correction of certain arithmetical errors which had crept in the order dated 19.10.2015. Such application was disposed of by order dated 22.4.2016 as under : "1. Through this misc. civil application, the insurance company has prayed for correction of certain arithmetical errors which have crept in the order dated 19.10.2015 passed in First Appeal No. 4510 of 2007. 2. Having heard learned counsel for the parties and having perused the order in question, I do agree that there have been some arithmetical errors. However, it would not be possible to correct the errors in isolation. It would be desirable that the first appeal itself be heard and disposed of again. For such purpose, order dated 19.10.2015 is recalled. First Appeal No. 4510 of 2007 is restored to file and may be disposed of after hearing the parties. Misc. civil application is disposed of accordingly." 2. In view of the aforesaid order passed by the Court, First Appeal No.4510/2007 has been restored to file and kept for final hearing. 3. Heard Mr. S.B. Tolia for Mr. H.S. Tolia, learned advocates for the appellant and Mr. Rushang D. Mehta for Mr. Dakshesh Mehta, learned advocates for respondent no.2 insurance company. 4. This appeal is filed by the original claimant seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal (Main) Banaskantha District at Palanpur ("the Tribunal" for short) in MACP No.22/2001 vide order dated 16.7.2005. 5. The appellant claimant preferred the claim petition being MACP No.22/2001 under section 163A of the Motor Vehicles Act, 1988 ("the Act" for short) on the principle of "No Fault Liability" i.e. compensation on structured formula basis. 6. The claimant was aged about 16 years at the time of the accident. Due to the accident, his left leg had to be amputed at knee joint. Compensation of Rs.10,47,000/- under section 163A of the Act is claimed. Case of the claimant is that he was doing carpentry work and earning Rs.150/- per day.
6. The claimant was aged about 16 years at the time of the accident. Due to the accident, his left leg had to be amputed at knee joint. Compensation of Rs.10,47,000/- under section 163A of the Act is claimed. Case of the claimant is that he was doing carpentry work and earning Rs.150/- per day. To support such claim, the claimant himself had filed an affidavit which is produced at mark 25/8 as well as affidavit of his father at exh.4. 7. The Tribunal refused to believe such income on the ground that it was not supported by any other documentary evidence or voucher. The Tribunal therefore, adopted notional income at Rs. 15,000/- as per the Second Schedule to the Motor Vehicles Act and adopting disability of 60% as per the Workmen's Compensation Act, awarded a sum of Rs. 1,69,000/- by way of compensation. 8. Learned counsel for the appellant raised two fold contentions. He submitted that at-least income of the claimant should have been believed at Rs.3000/- per month on notional basis since there was evidence suggesting that he was gainfully employed. He further submitted that though the physical disability was 60% as per Schedule-I prescribed under the Workmen's Compensation Act to be adopted under Schedule-II of the Motor Vehicles Act, being a carpenter, there was total loss of earning capacity of the claimant and therefore, 100% functional disability ought to have been adopted. 9. Learned counsel for the Insurance company opposed the appeal and submitted that the award passed by the Claims Tribunal is just and proper and requires no interference by the Court and accordingly, the First Appeal may be dismissed. 10. With regard to the submissions advanced by the learned counsel for the appellant regarding 100% functional disability to be adopted, the same cannot be accepted as the claimant has filed claim petition under section 163A of the Act and he has prayed to be governed by structured formula basis as prescribed under Schedule-II of the Act. Therefore, there was no scope of any variation in physical disability and the functional disability. However with regard to contention of income assessment, I find that the Tribunal has committed an error and the computation requires modification. 11. Learned counsel for the appellant submitted that in case of a carpenter, it would be impossible to produce documentary evidence or voucher of the income.
However with regard to contention of income assessment, I find that the Tribunal has committed an error and the computation requires modification. 11. Learned counsel for the appellant submitted that in case of a carpenter, it would be impossible to produce documentary evidence or voucher of the income. Therefore, what was brought on record in support of his claim was the affidavit of the claimant as well as of his father. It was therefore, for the Insurance Company to rebut such evidence. 12. I am of the opinion that considering the skill work that the claimant was engaged in at the time of the accident, income of Rs.100/- per day should be adopted, that would bring the income of the claimant to Rs. 3000/- per month. Schedule-I of the Workmen's Compensation Act recognises 60% disability for amputation of leg and applying such disability to the Second Schedule of the Motor Vehicles Act, compensation is to be worked out. The amount of compensation to be paid to the claimant is worked out as under : (i) Income at the time of the accident is to be taken as Rs. 3000/- per month or Rs.36,000/- per annum. (ii) As this is a case of injury, 60% towards loss of earning capacity due to disability would work out to Rs.21,600/- per annum (60% of Rs.36,000). (iii) As the claimant was aged about 16 years at the time of accident, multiplier of 16 has to be adopted, as the age of the claimant would fall between 15 to 20 years as prescribed in the said Schedule of the Act. Adopting multiplier of 16, compensation to be paid would work out to be Rs.3,45,600/-(Rs.21,600x16). (iv) Further sum of Rs. 5000/- is to be paid towards pain, shock and suffering and is required to be added as per the Second Schedule to the Act. Therefore, total amount of Rs. 3,50,600/- (Rs.3,45,600+Rs5000) would have to be awarded by way of compensation to the claimant. (v) Sum of Rs. 1,69,100/- has already been awarded to the claimant by the Claims Tribunal. Therefore, enhanced compensation of Rs. 1,81,500/-(Rs.3,50,600-Rs1,69,100) is awarded to the claimants. Same shall have to be recovered at the same rate of interest as awarded by the Claims Tribunal from the date of claim petition till actual payment.
(v) Sum of Rs. 1,69,100/- has already been awarded to the claimant by the Claims Tribunal. Therefore, enhanced compensation of Rs. 1,81,500/-(Rs.3,50,600-Rs1,69,100) is awarded to the claimants. Same shall have to be recovered at the same rate of interest as awarded by the Claims Tribunal from the date of claim petition till actual payment. Such amount shall be deposited before the Claims Tribunal by respondent no.2 within eight weeks form the date of receipt of a copy of this order. 13. First Appeal is therefore, partly allowed. No order as to costs. R&P may be transmitted back to the concerned Tribunal.