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2024 DIGILAW 1648 (GUJ)

Patel Kanubhai Madhabhai v. Thakore Ganaji Somaji

2024-08-01

BIREN VAISHNAV, NISHA M.THAKORE

body2024
JUDGMENT : Nisha M. Thakore, J. 1. The appellant is the original claimant has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the “Act”) being aggrieved by the judgment and award dated 22.2.2011 passed by the Motor Accident Claims Tribunal, (Auxi), Mehsana in MACP No.673 of 2008. By the said judgment and award, the learned Fast Track Court Judge has rejected the claim of the appellant preferred under Section 166 of the Act seeking compensation of an amount of Rs.25 lakhs towards the injuries sustained in the motor accident. 2. Before the Tribunal, the appellant- original claimant had though raised claim of Rs.25 lakhs with proportionate costs and interest against the present respondents – original opponents, however, in the present appeal the claim is restricted to an amount of Rs.5 lakhs and has accordingly raised grounds seeking enhancement. 3. It is the case of the original applicant before the Tribunal that; 3.1. On 28.04.2008 at about 9 a.m., the applicant had started from Kadi to attend marriage at his village Khanderavpura on his Eterno Scooter bearing registration no.GJ-2-AJ-4953. According to the applicant, he was driving the said Eterno Scooter with moderate speed and in the right direction i.e. on the left corner side of the road, while he had reached on Bavlu- Kadi Road, at that time one Tractor attached with the Trolley bearing registration no.GJ-2-AG-2125 came suddenly in excessive speed and dashed with the Eterno Scooter. The accident had taken place on the Bavlu- Kadi road near the farm of Patel Ranchodbhai Hargovanbhai at around 9.30 a.m. Because of impact of the Tractor, the applicant had fallen down on the road resulting into serious injuries on his left side of the lower limb as well as on his right side of the hand and right shoulder. The applicant had received crush injuries over his right leg with compound grade III B fracture of tibia fibula with neurovascular injury. The applicant was immediately shifted for primary treatment at Bhagyoday Hospital, Kadi and thereafter was provided further treatment at Sainath Hospital, Ahmedabad. Later on he was referred to and treated at Sterling Hospital at Ahmedabad whereby his left lower limb was amputated. 3.2. The applicant was immediately shifted for primary treatment at Bhagyoday Hospital, Kadi and thereafter was provided further treatment at Sainath Hospital, Ahmedabad. Later on he was referred to and treated at Sterling Hospital at Ahmedabad whereby his left lower limb was amputated. 3.2. By referring to the aforesaid occurrence of incident of the injuries sustained, the claimant had preferred claim petition under Section 166 of the Act inter alia seeking compensation of Rs.25 lakhs. The claimant had impleaded owner and driver of the Tractor as opponent nos.1 and 2 respectively. The Bank who had advanced the loan for purchase of Tractor was also joined as opponent no.3. The opponent no.4 being the owner of the Eterno Scooter was also joined in the claim petition. The United India Insurance Company of the Scooter was also joined as opponent no.5. The opponent nos. 1 to 4 were duly served with the summons, however they have chosen not to object to the claim petition by submitting any written statement. The opponent no.5 Insurance Company had objected to the claim petition by filing its written statement at Exh.71. The Tribunal upon appreciation of the pleadings had framed issued at Exh.26, which reads as under : “1. Whether it is proved that the claimant sustained injuries on account of rashness and negligent driving on the part of the driver/s of the vehicle/s involved in the accident? 2. What amount, if any, the claimant is / are entitled to by way of compensation and from which of the opponents ? 3. What order and award ? 3.3. Before the Tribunal, the original claimants had brought on record the various documentary evidences, which were produced on record with list at Exh.28. This mainly includes certified copy of the FIR at Exh.30, panchnama of the occurrence of the accident at Exh.31, panchnama of Eterno Scooter at Exh.32, panchnama of tractor with trolley at Exh.33. The statement of the witness recorded by the police from Exhs. 34 to 38. The certified copy of the charge sheet was produced at Exh.39. The legal notice of the acknowledgment slip addressed to the State Bank of India were produced at Exhs. 40 to 42. Other documents produced on record included RC book of the Tractor at Exh.43 and the driving license of the applicant at Exh.44. 34 to 38. The certified copy of the charge sheet was produced at Exh.39. The legal notice of the acknowledgment slip addressed to the State Bank of India were produced at Exhs. 40 to 42. Other documents produced on record included RC book of the Tractor at Exh.43 and the driving license of the applicant at Exh.44. The original injury certificate of the applicant issued by the Bhagyoday General Hospital at Exh.45, original certificate issued by Sainath Orthopedic Hospital at Exh.46, original certificate issued by Sterling Hospital at Exh.47, original disability certificate of the applicant issued by Dr. Mahesh Khandelval at Exh.48 were also produced. The school leaving certificate of the applicant was produced at Exh.49. The medical bills of the expenses incurred by the applicant were produced at Exhs. 21 to 58. The pedigree of the father of the applicant and applicant was produced at Exh.54. The original copies of village form no.6 along with 7/12 extract was produced at Exhs. 55 to 57. 3.4. Apart from the aforesaid documentary evidence, the original claimant has appeared in witness box before the Tribunal and his evidence is noted at Exh.29. The defence has examined the owner of the truck- Patel Hirenbai Arvindbhai at Exh.75. The original claimant has also examined witness Patel Jasvantbhai Dashrathbhai who is son in law of the claimant at Exh.77. The Tribunal upon appreciation of the aforesaid evidence brought on record has though answered issue no.1 partly in affirmative, however has arrived at a conclusion that the claimant has failed to establish the involvement of the tractor and its Trolley in the accident. The Tribunal has further held the applicant claimant himself negligent for accident and has therefore, answered issue no.2 against the claimant on the ground that the opponents cannot be held liable for any compensation for the fault of the claimant himself. The Tribunal has therefore, by impugned judgment and award dated 22.2.2011 has dismissed the claim petition. Hence, this appeal at the instance of the original claimant under Section 173 of the Motor Vehicles Act, 1988. 4. This Court by considering the grounds raised in the appeal, by order dated 6.9.2011 had admitted the appeal. Thereafter, by order dated 09.01.2015 had directed the Registry to call for the Record and Proceedings of the case and to notify the First Appeal for final hearing. 5. Mr. J.M. Barot, learned advocate has appeared for Mr. 4. This Court by considering the grounds raised in the appeal, by order dated 6.9.2011 had admitted the appeal. Thereafter, by order dated 09.01.2015 had directed the Registry to call for the Record and Proceedings of the case and to notify the First Appeal for final hearing. 5. Mr. J.M. Barot, learned advocate has appeared for Mr. Abhaykumar Shah, learned advocate for the appellant, Mr. Jigar Gadhvi, learned advocate has entered appearance on behalf of respondent nos. 1 and 2- driver and owner of the offending vehicle tractor and Mr. Rathin Raval, learned advocate for the respondent no.5- Insurance Company. Though, rule has been served upon the respondent nos. 3 and 4, no appearance has been entered on their behalf. Considering the fact that the contesting parties are represented and the appeal is pending for final adjudication since year 2011, the matter was taken up for final hearing. 6. Mr. J M Barot, learned advocate for the appellant at the outset, has invited our attention to the aforesaid findings of the Tribunal. The reliance was placed on the FIR lodged by the present appellant herein – original claimant which is produced at Exh.30. By referring to the contents of the aforesaid complaint, learned counsel submitted that specific averments have been made in the complaint as regards manner in which accident had taken place and the involvement of the tractor owned by the present respondent no.2. Mr. Barot had referred to the panchnama of the place of the accident at Exh.31. The reliance was placed on the panchnama of the vehicles involved produced at Exh.32 and 33. It was submitted that the appellant was holding driving license which is produced at Exh.43. It was fairly pointed out that the driving license was in force from 12.3.2003 to 11.3.2008 and was not in force on the date of accident, however, the Tribunal ought not to have taken into consideration the aforesaid factor against the claimant, by drawing inference of negligence of the claimant having contributed to the occurrence of accident. The reliance was placed on the deposition wherein in his cross examination at Exh.29 it was stated that he was having experience of driving the vehicle since last 25 years. It was therefore, submitted that merely driving license was not renewed on the date of accident, could not be a reason for attributing 100% negligency of the claimant. The reliance was placed on the deposition wherein in his cross examination at Exh.29 it was stated that he was having experience of driving the vehicle since last 25 years. It was therefore, submitted that merely driving license was not renewed on the date of accident, could not be a reason for attributing 100% negligency of the claimant. It was submitted that the Tribunal ignored the occurrence of accident which has otherwise been established by the claimant as evident from the panchnama produced on record at Exhs. 31 to 33. It was submitted that the original claimant had sustained serious injuries which had ultimately resulted into amputation of his left leg. In such circumstances, the Tribunal ought not to have taken into consideration the delay which had occurred in lodging the FIR against the claimant. According to the learned counsel, the very fact that the owner of the vehicle had approached the claimant and had paid him Rs.1 lakhs towards the injuries sustained by the claimant in the accident itself was sufficient to draw inference about the involvement of the vehicle. The reference was made to RC book of the Tractor which is produced on record at Exh.43 along with loan advance by the respondent no.3 bank to the Tractor at Exh.42, which clearly goes to indicate that the Tractor was owned by the present respondent no.2. According to him, it was the driver of the vehicle who was solely negligent and had contributed to the occurrence of accident. As regards computation of compensation is concerned, learned counsel has referred to and relied upon the deposition of the original claimant at Exh.29 and the evidence of his son in law at Exh.77. While referring to the document produced on record at Exh.54 to 57, which mainly includes the village form no.6, village form no.7/12, village form no.8 A and the agriculture produce bills, the learned counsel has submitted that the Tribunal ought to have accepted the case of the claimant of earning amount of Rs.20,000/- to Rs.25,000/- per month. It was therefore, urged that looking to the injuries sustained by him and the consequential physical disability to the extent of 60% as opined by the Dr. Mahesh Khandelvala in the disability certificate dated 29.09.2009 produced at Exh.48, the Tribunal ought to have determined loss of future earning capacity as Rs.23,04,000/- by adopting multiplier of 12. It was therefore, urged that looking to the injuries sustained by him and the consequential physical disability to the extent of 60% as opined by the Dr. Mahesh Khandelvala in the disability certificate dated 29.09.2009 produced at Exh.48, the Tribunal ought to have determined loss of future earning capacity as Rs.23,04,000/- by adopting multiplier of 12. Learned counsel has also pressed for actual loss of income for a period of one year and had therefore, urged to award an amount of Rs.2,40,000/- under the aforesaid head. Apart from the aforesaid compensation, the learned counsel has pressed for compensation under the head of medical expenses to the tune of Rs.1,10,219/-. The prayer was also made to award compensation of Rs.15,000/- under the head of transportation expenses Rs.15,000/-, for Special diet / food and expenses of attendants charges as Rs.15,000/-. By making aforesaid submissions, learned counsel has urged to award compensation of an amount of Rs.27,99,219/- and had prayed for interest at the rate of 9% pa from the date of filing of the claim petition till its actual realization, to be realized from the respondents jointly and severally. 7. Per contra, Mr. Jigar Gadhvi, learned advocate for the respondent nos. 1 and 2 had vehemently objected to the aforesaid submissions made by the learned counsel for the appellants – original claimants. Our attention was invited to the findings and the reasons assigned by the Tribunal while not entertaining the claim petition. At the outset, Mr. Gadhvi has submitted that no error can be found with the aforesaid findings recorded by the Tribunal. Looking to the panchnama of the place of accident at Exh.31 and the panchnama of the Tractor produced on record at Exh.32. It was submitted that not an iota of damage was reflected on the body of the tractor. Learned counsel has heavily emphasize on the fact that though accident has taken place on 13.05.2008, the FIR was belatedly lodged almost after 12 days. Even panchnama of place of accident which is placed on record at Exh.31 does not reflect the involvement of the vehicle Tractor. With such evidence on record, the Tribunal has rightly exonerated the driver and the owner of the tractor while concluding that it was the original claimant who can be faulted with the occurrence of the accident. Even panchnama of place of accident which is placed on record at Exh.31 does not reflect the involvement of the vehicle Tractor. With such evidence on record, the Tribunal has rightly exonerated the driver and the owner of the tractor while concluding that it was the original claimant who can be faulted with the occurrence of the accident. Learned counsel has submitted that merely because the charge sheet was filed subsequently against the driver of the vehicle of having attributed to the accident with the tractor owned by the present respondent no.2, cannot be the sufficient evidence to arrive at a conclusion of involvement of the said vehicle. As regard the payment of Rs.1 lakhs by the respondent no.2 to the original claimant is concerned, learned counsel was unable to dispute the aforesaid fact. Learned counsel has further submitted that if the Court is examining the issue of negligency in favour of the original claimant then the matter may be remanded back so as to consider the issue of contributory negligency as well as for determination of the compensation. 8. Mr. Rathin Raval, learned counsel appearing for the respondent no.5- Insurance Company has submitted that the Tribunal has rightly exonerated the Insurance Company from the liability on the ground that there was breach of terms and condition of the policy. Indisputably, the original claimant was not holding any effective driving license on the date of occurrence of the accident and having arrived at a conclusion that it was the claimant who was at fault and had attributed to the accident, the Insurance Company even otherwise could not have been held liable. He had relied upon maxim, Nullus Commodum Capere Potest De Injuria Sua Propria i.e. a person having done wrong cannot take advantage of his own wrong. Learned counsel has however assisted the Court on the issue of negligency. It was submitted that looking to the fact that the claimant had sustained serious injuries which had ultimately resulted into amputation of his left leg which the Tribunal was too harsh to hold that the complaint was filed belatedly. In fact, the aforesaid factor of lodging the complaint would not fall in the category of raising false case for the purpose of compensation as an afterthought but rather it was the claimant who was at sufferance as the vehicle involved had already plied from the scene of accident. In fact, the aforesaid factor of lodging the complaint would not fall in the category of raising false case for the purpose of compensation as an afterthought but rather it was the claimant who was at sufferance as the vehicle involved had already plied from the scene of accident. He has further submitted that the very fact that at the end of the investigation, charge-sheet has been filed against the driver of the tractor was a important evidence to arrive at a conclusion with regard to the involvement of the vehicle. It was further submitted that the standard of proof of evidence so far as the motor accident cases are concerned, are comparatively less as against the criminal cases where the culpability of the accused is at stake. While addressing us on the issue of contributory negligency, Mr. Raval has invited our attention to the panchnama of the place of accident at Exh.31. While referring to the relevant observations of the Tribunal, learned counsel has submitted that the very fact that the claimant was driving his scooter on his correct left side of the road and the tractor has emerged on the road from the left side, there were fair chances of tractor having directly hit the left body of the scooter drived by the claimant as well as left part of the body of the claimant himself. The learned counsel has further submitted that there were all fair chances of tractor having directly hit the claimant which had in fact resulted into the amputation of his left leg. The corroboration of the aforesaid fact can also be gathered from the manner in which the external body of the scooter was found to be damaged as evident from the panchnama of the said vehicle produced at Exh.33. He has therefore, submitted that in fact the Tribunal ought to have appreciated the aforesaid facts to hold the driver of the vehicle sole negligent in contributing toward occurrence of accident. However, he had left to us to pass appropriate orders. 9. He has therefore, submitted that in fact the Tribunal ought to have appreciated the aforesaid facts to hold the driver of the vehicle sole negligent in contributing toward occurrence of accident. However, he had left to us to pass appropriate orders. 9. Having heard the learned advocates for the respective parties and having perused the overall evidence produced before us in the form of paper book submitted by the Tribunal, the first issue that arises for determination of this Court is as to whether the accident which took place on 28.04.2008 injuring the claimant was caused due to the rash and negligent driving of the driver of the Tractor ? 9.1. The Tribunal while dismissing the claim petition has held original claimant solely negligent for the occurrence of the accident and simultaneously has exonerated the driver and owner of the Tractor by observing that no damage was found on the tractor in light of the panchnama of the tractor produced on record at Exh.32. 9.2. In our opinion, the Tribunal committed serious error as it completely ignored the fact that the FIR which was lodged by the original claimant had culminated into charge-sheet at the end of the investigation. During the course of investigation, the statement of witnesses have been recorded. The panchnama of scene of the accident has been drawn by the investigating agency which is produced on record at Exh.31. The copy of the original complaint is also produced at Exh.32, which is lodged by the claimant himself. In the said complaint, the claimant has categorically mentioned the manner in which the accident had taken place. 9.3. It is well settled that the standard of proof applicable to claim proceedings arising out of the motor vehicle accident is that of preponderance of probabilities and not that of proof beyond reasonable doubt. In case of Anita Sharma and others vs. The New India Assurance Co. Ltd reported in (2011) 1 SCC 171, the Hon’ble Supreme Court observed as under : 22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz, wherein this Court reiterated that: “7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt.” 9.4. It would also be relevant to revisit the principles of preponderance of probabilities as discern by the Constitutional Bench of the Hon’ble Supreme Court in the case of M. Siddiq (D) Thr Lrs vs. Mahant Suresh Das & Ors reported in (2020) 1 SCC 1 , wherein the Hon’ble Supreme Court held as under : "20. The court in a civil trial applies a standard of proof governed by a preponderance of probabilities. This standard is also described sometimes as a balance of probability or the preponderance of the evidence. 'Phipson on Evidence' formulates the standard succinctly: If therefore, the evidence is such that the court can say 'we think it more probable than not', the burden is discharged, but if the probabilities are equal, it is not." 9.5. Even this Court in the case of New India Assurance Company Limited vs. Dahyaben Jayantilal Panchal reported in 2000 ACJ 957 has taken view that charge-sheet filed against the person who was driving vehicle on the date of accident, can be considered a prima facie evidence on involvement of vehicle. 9.6. Even this Court in the case of New India Assurance Company Limited vs. Dahyaben Jayantilal Panchal reported in 2000 ACJ 957 has taken view that charge-sheet filed against the person who was driving vehicle on the date of accident, can be considered a prima facie evidence on involvement of vehicle. 9.6. Having held so, the Tribunal in our view has given undue weigthage to the delay caused in filing the FIR and had on such misconception discarded such evidence. In this regard, it would be appropriate to take into consideration the relevant observation of the Hon’ble Supreme Court in the case of Ravi vs. Badrinarayan & Ors. reported in 2011 ACJ 911 , wherein the Hon’ble Supreme Court has held delay of three months in lodging complaint after the accident, as not fatal the case of claimant. The relevant paras are reproduced hereunder : “20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground. 21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. 21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.” 9.7. Applying the aforesaid principle, the claimant has in fact fairly pointed out and explained about the delay caused in lodging the FIR by submitting that the compromise talks were in process with the owner of the tractor and since the claimant himself being hospitalized, having suffered serious injuries. He was treated as indoor patient from 28.04.2008 to 03.05.2008 and had undergone operation which had resulted into amputation of his left leg, he was totally bedridden. 9.8. Keeping in mind the approach of Court in appreciation of evidence on touchstone of preponderance of probabilities, it transpires that during the course of investigation, the investigating officer has approached the place of accident. The panchnama was drawn on 13.05.2008 in presence of two witnesses which is produced on record at Exh.31. The panchnama of the tractor was also drawn by the investigating officer at Exh.33 on the same day, which was seized by the police. The panchnama of the scooter of the claimant was also drawn which is produced on record at Exh.32. At the end of the investigation, the Investigating agency has filed chargesheet against the present respondent no.1 original driver involving the tractor of the respondent no.2 – the owner of the vehicle towards the occurrence of the accident. The panchnama of the scooter of the claimant was also drawn which is produced on record at Exh.32. At the end of the investigation, the Investigating agency has filed chargesheet against the present respondent no.1 original driver involving the tractor of the respondent no.2 – the owner of the vehicle towards the occurrence of the accident. In fact, the investigating agency has arrived at a conclusion at the end of the investigation that the driver of the tractor was negligent in driving the said vehicle in full speed which had contributed to the occurrence of the accident and had therefore, had filed charge-sheet for the offences punishable under Sections 279, 337 and 338 of the IPC as well as Sections 177, 184 and 134 of the Motor Vehicles Act. 10. On overall appreciation of the aforesaid evidence brought on record, we are of the view that merely because no mark of damages were noticed on the external body of the tractor, was not relevant to be considered to exonerate the respondent nos.1 driver of the tractor and respondent no.2 from its liability. Upon close examination of the averments made by the claimant in the original complaint as against the evidence in the form of examination of chief of the claimant before the Tribunal at Exh.29, in light of the panchnama of the place of accident at Exh.31, what transpires is that the accident had taken place on Bavlu- Kadi Road near Laxmipura village. The original claimant was driving his Eterno Scooter and on the date of accident he had started at around 9 O' clock in the morning from Khed so as to reach Kadi. Thus, the claimant was driving on his correct side of the road, whereas, the tractor along with trolley filled up with sand had entered the cross road from the left side of the claimant. It further transpires from the evidence of the claimant and the averments made in the original complaint at Exh.30 that the tractor had approached on the left side of the road from the adjoining field owned by Ramjibhai Patel. Even panchnama of the place of accident produced at Exh.31 if closely examined gives, the correct picture of place of accident, whereby, the road is shown to be 14 ft wide and on both the sides of the road the cross roads are there. Even panchnama of the place of accident produced at Exh.31 if closely examined gives, the correct picture of place of accident, whereby, the road is shown to be 14 ft wide and on both the sides of the road the cross roads are there. Both the sides are covered by trees and the bushes. The place of the accident is shown at 7 ft from the tree standing on the eastern side of the field near the cross road. It is evident from the panchnama that the tractor had entered into the main approach road suddenly without taking care of the vehicles going on the main road. The driver of the tractor was expected to take utmost care of the said fact before entering into the main road. In absence of any mark noticed on the road, it appears that the claimant was taken by surprise by the sudden entry of the tractor on the main road and was unable to apply break. On the other hand, looking to the panchnama of the scooter of the claimant at Exh.33, it is evident that the tractor had hit on left body of the scooter as well as claimant on his left side. The impact was such high that ultimately the claimant has not only sustained fracture on leg but later on had resulted into amputation of his left leg below the knee. In our considered opinion, it was the driver of the tractor who had solely attracted to the occurrence of the accident. The statement of the witnesses which are forming part of the charge-sheet has been produced on record by the claimant at Exhs. 34 to 38 which also corroborate the fact of involvement of tractor owned by respondent no.2. The evidence of the son in law of the claimant produced at Exh.77 also corroborates the case of the claimant that the respondent no.2- original owner had paid an amount of Rs.1 lakhs to meet with the medical expenses of the claimant. Thus, for the foregoing reasons, we are of the view that the respondent nos. 1 was solely negligent to contribute to the accident and respondent no.2 being owner of the tractor is liable to compensate the damages sustained by the claimant because of such negligent act of the driver of his vehicle. 11. Loss of prospective income: 11.1. Thus, for the foregoing reasons, we are of the view that the respondent nos. 1 was solely negligent to contribute to the accident and respondent no.2 being owner of the tractor is liable to compensate the damages sustained by the claimant because of such negligent act of the driver of his vehicle. 11. Loss of prospective income: 11.1. This bring us to the issue of determination of the amount of compensation to be awarded to the original claimant. At the time of accident, the original claimant was aged around 55 years. The driving license of the original claimant has been brought on record at Exh.44 wherein the date of birth of the claimant is recorded as 31.5.1952 whereas the accident has taken place on 28.04.2008. The original claimant has also produced on record his school leaving certificate at Exh.49 wherein also his date of birth is reflected as 31.5.1952. Hence, at the time of accident, the original claimant had almost completed 56 years short by one month. It has also emerged on record that original claimant was an agriculturist and was holding agriculture land. According to the claimant, he was earning income of Rs.22,000/- to Rs.25,000/- per month. The original claimant in support of his case has placed on record 7/12 extracts as well as agriculture produce bills. The bare perusal of the 7/12 extracts does suggest holding of agriculture land in the name of the father of the original claimant. However, as regards the agriculture produce bills produced on record which relates to the month of November,2004 to April 2008 are issued in the name of original claimant. Hence, the inference can be drawn about the claimant being engaged in the agricultural activities. For the purpose of determination of income, however few agriculture bills are led on record but the same cannot be the absolute proof of income in absence of any independent witness being examined. In absence of any evidence of actual proof of income, we have considered Rs.36,000/- pa as income of the claimant for the purpose of determination of the loss of his prospective income based on the Minimum Wages notified by Government of Gujarat as prevailing in year 2011. The schedule suggest Rs.100/- per day for scheduled employment of agriculture. 11.2. Looking to the medical case papers, more particularly, the medical bills produced on record at Exhs. The schedule suggest Rs.100/- per day for scheduled employment of agriculture. 11.2. Looking to the medical case papers, more particularly, the medical bills produced on record at Exhs. 50,51,52,53, 60, 61, 62, 63, 64, 65 and 66, it can be inferred that the original claimant had undergone prolonged medical treatment. Looking to the nature of injury sustained, the discharge summary report indicates that the claimant was discharged from hospital in the month of May 2008. However, he had been operated at Sterling Hospital, Ahmedabad, which had resulted into amputation of his left leg and had remained bedridden. Looking to the injuries sustained, though, physical disability certificate has been brought on record at Exh.48 issued by Dr.Mahesh Khandelval on 29.09.2009, the aspect of functional disability requires to be considered. The doctor has opined by applying the principle of kessler and assessed his permanent disability of left lower limb due to amputation as 60%. Having noticed the aforesaid opinion of the Doctor, we have closely examined the injury certificate issued by the sterling hospital which is produced at Exh.47, the same read as under : “Alleged H/o vehicular accident of activa and tractor at nr. Laxmanpura Kadi taluka at 11.00 AM Pt had lt lower leg crush injury. Pt taken to Bhagyoday Hospital, Kadi in 108 Ambulance and then shifted to DR. Binoy Palkhiwala’s hospital & shifted here for further investigation. On admission Pt is conscious, oriented. Pt having open wound over M lt. Tibia extending upto ankle joint Exposed & crushed muscles. Bony fregment seen with segment of fibula outside. No distal pulsation. No sensation over distal foot Pt investigated and referred to Dr. Shailendra Singh (Plastic Surgeon), not possible to revive the limb. So decided to do B K Amputation Lt Pt referred to Dr. Sudhendu Patel (physician. Pt operated on 28.4.2008 by Dr. Binoy Palkhiwala- Left BK Amputation and ligation of popliteal artery in poplital fossa. Pt treated with N antibiotics, H Tefglob, Iv pluids, PCV, analgesics and supportive treatment. Pt discharged with stable thermodynamics condition on 3.5.2008 with follow up as advised.” 11.3 The bare reading of the aforesaid certificate clearly indicates that claimant has suffered amputation of left lower limb. Though, he was discharged on 3.5.2008, looking to the injuries sustained, he has been advised to follow up. Pt discharged with stable thermodynamics condition on 3.5.2008 with follow up as advised.” 11.3 The bare reading of the aforesaid certificate clearly indicates that claimant has suffered amputation of left lower limb. Though, he was discharged on 3.5.2008, looking to the injuries sustained, he has been advised to follow up. The aforesaid peculiar facts of the case remind us of the legal principle laid down by the Hon’ble Supreme Court in the landmark decision in the case of Rajkumar vs. Ajaykumar reported in (2011) 1 SCC 343 . The relevant observations read as under : “10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 11. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. - 2010 (10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567 ). 13. 10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. 14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.” 11.4. In view of the aforesaid legal principles, the Court owes duty to take into consideration not only the physical disability of the claimant but his functional disability. The nature of injuries, the profession with which the claimant is associated. We are of the view that claimant has sustained 100% functional disability. 11.5 Having held so, the future loss of income is calculated by taking into consideration 15% rise in the actual income by applying the principle laid down by the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC 680 . Applying the aforesaid principle in the facts of the case and taking into consideration the age of the claimant as 55 years, we considered 15% rise in the income of the original claimant. Hence, future loss of prospective income is determined as Rs.3,450/- x 12= Rs.41,400/- p.a. In view of the age of the claimant, the multiplier of 11 is adopted. Thus, the loss of future prospective income is determined as Rs.41,400/- x 11 = Rs.4,55,000/- 12. Medical expenses: 12.1. The original claimant has produced on record the medical bills which has been admitted as evidence by the Tribunal. The medical bills are produced at Exhs. 50,51,52,53, 60, 61, 62, 63, 64, 65 and 66. In light of the aforesaid documentary evidence brought on record, we are inclined to accept the claim raised by the appellant and the grant of compensation towards medical expenses as Rs.1,10,219/-. 12.2. The medical bills are produced at Exhs. 50,51,52,53, 60, 61, 62, 63, 64, 65 and 66. In light of the aforesaid documentary evidence brought on record, we are inclined to accept the claim raised by the appellant and the grant of compensation towards medical expenses as Rs.1,10,219/-. 12.2. It would be relevant to note at this stage that looking to the nature of injuries sustained, more particularly, amputation of the lower limb of the claimant, we cannot ignore the grant of compensation under the head of future medical expenses. The grant of compensation under the head of future medical expenses in such kind of cases has been recognized in light of the judgment of the Hon’ble Supreme Court in the case of Mr. R.D. Hattangadi vs. M/S Pest Control (India) Pvt. Ltd. & Ors. reported in (1995) 1 SCC 551 and in the recent decision of the Hon’ble Supreme Court in the case of Siddhram vs. Divisional Manager, United India Insurance Company Limited reported in (2023) 3 SCC 439 . The Hon’ble Supreme Court in the case of Siddhram (supra) has awarded an amount of Rs.2,50,000/- towards the expenses to be incurred by the claimant for artificial limb which otherwise requires replacement every four years. Hence, considering the peculiar facts of the case, the amount of compensation under the head of future medical expenses is considered to the tune of Rs.2,50,000/-. 13. Pain, Shock and Suffering: Looking to the nature of injuries sustained and the medical treatment undergone by the claimant, the appellant-original claimant is held entitled to the compensation to the tune of Rs.1,00,000/- under the aforesaid head. 14. Transportation, Special diet and attendance charges: 14.1. For the foregoing reasons, we are also inclined to accept the case of the appellant – original claimant for grant of compensation under the aforesaid heads for Rs.15,000/- each. 15. For the foregoing reasons, the appeal preferred by the appellant- claimant is hereby partly allowed in the aforesaid terms. Thus, the appellant – original claimant is held entitled to total amount of compensation as determined under different heads as under : Particulars Amount (Rs.) Future Loss of Income 4,55,400/- Future Medical Expenses 2,50,000/- Pain, shock and suffering 1,00,000/- Transportation charges 15,000/- Attendance charges 15,000/- Special diet 15,000/- Medical expenses 1,10,219/- Total Compensation 9,60,619/- 16. Thus, the appellant – original claimant is held entitled to total amount of compensation as determined under different heads as under : Particulars Amount (Rs.) Future Loss of Income 4,55,400/- Future Medical Expenses 2,50,000/- Pain, shock and suffering 1,00,000/- Transportation charges 15,000/- Attendance charges 15,000/- Special diet 15,000/- Medical expenses 1,10,219/- Total Compensation 9,60,619/- 16. The respondent no.1 is found sole negligent for causing accident as driver of the offending vehicle tractor involved in the accident and respondent no.2 is also held liable towards negligency of the respondent no.1 driver. The respondent nos. 3 to 5 are exonerated. The original claimant – appellant herein is therefore, entitled to compensation of Rs.39,60,619/- with interest at the rate of 7.5.% from the date of filing of claim petition till its actual realization from the respondent nos. 1 and 2 herein jointly and severally. The respondent nos. 1 and 2 are directed to deposit the aforesaid award amount within a period of four weeks from the date of receipt of the present order. On deposit of the said amount, the Tribunal is directed to disburse the award amount in favour of the claimant upon due verification by strictly adhering to the guidelines issued by the Hon’ble Supreme Court in this regard. Registry is directed to send back the record and proceedings of the case to the concerned trial Court forthwith.