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2024 DIGILAW 643 (GUJ)

Kaushikbhai Sambhuprasad Patel v. Maya Travels

2024-03-26

GITA GOPI

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JUDGMENT : 1. The challenge is to the judgment dated 28.6.2005 passed by MACT (Aux), Bhavnagar in MACP No.508/94. The injured claimant has prayed for enhancement of the compensation amount primarily on the ground that the Tribunal has not assessed the adverse effect to the potential earning capacity due to the physical injury sustained in the accident and has also failed to appreciate the income from the income tax returns and has erroneously relied upon the statement of income of the year 1998-99 of the accounting year ending on 31.3.1998. 2. Advocate Mr. Sandip Shah for the claimant submitted that the Doctor had certified 42% permanent disability of the right lower limb and the claimant as a victim of the accident is in the business and the disability would affect the earning capacity and thus, submitted that the prospective rise in income was required to be added so as to compensate the injured appropriately. Advocate Mr. Shah submitted that the comparative analysis of the income tax between the year 1993-94 to 1998-99 is on the wrong footing since the Tribunal has taken yearly income of Rs.72,000/- as received by way of remuneration from the firm, while the income noted of the year 1998-99 is the total income over and above the remuneration amount from the firm which includes income of the minor and income from other sources of dividend and interest. 3. Advocate Mr. Shah thus stated that had it been so, then the total income of the year 1994-95 would come to Rs.85,750/-. 4. Per contra, Advocate Mr. Nanavati submitted that the income of Rs.6,000/- has been assessed on the basis of the income tax returns and the comparative analysis of other returns shows that there has been no decrease in the income of the claimant and hence, submitted that no prospective rise in income can be granted. Advocate Mr. Nanavati further submitted that the Tribunal has considered 21% physical disability and now there would not be any scope to enhance the functional disability without any substantial evidence from the treating Doctor who has not been examined by the claimant and the assessment is in accordance to the evidence of Dr. Shah as noted in Exh.53 who had issued Exh.54 permanent disability certificate. 5. Facts of the case as were urged before the Tribunal state that on 29.6.1994, the applicant was going in Tata mobile bus bearing registration no. Shah as noted in Exh.53 who had issued Exh.54 permanent disability certificate. 5. Facts of the case as were urged before the Tribunal state that on 29.6.1994, the applicant was going in Tata mobile bus bearing registration no. GJ-3 D-9996 from Bhavnagar to Ahmedabad and during night hours at about 12.30, Nr. Vadtej Village Khari cross lane, a bus bearing registration no. GJ-14 T-729 of the ownership of the opponent no.1 – Maya Travels came in a full speed in a rash and negligent manner and dashed the bus in which the applicant claimant was traveling and because of the heavy push due to dash, the bus ran down the road on the left side. The claimant suffered fracture injury in the right leg and initially he had taken treatment from Dr. Dholakiya at Bhavnagar and thereafter, for further treatment, he had gone to Orthopedic Surgeon, Dr. Bharat Patel, Ahmedabad, where he was operated and plates were inserted. He remained in bed ridden condition for about three months and with the help of walker, he was walking. It is stated that he is a partner in K.S. Engineering Works and because of the injury, it has affected his business and he is suffering from financial loss. 6. The Tribunal on assessment of the evidence by way of FIR and the Panchnama had observed that there was 75% negligence of the driver of the bus bearing registration no. GJ-14 T-729 and 25% negligence of the bus driver bearing registration no. GJ-3 D-9996. Both the buses are insured with the Oriental Insurance Company Limited. 7. The claimant has given his evidence at Exh.29 and he has reiterated the facts. He has also stated that he was also attended by Dr. Mukesh Patel, Neuro Surgeon and he was totally bedridden for three months and thereafter, could gradually recover and was walking with the help of walker. 8. The Tribunal has considered the income tax returns of the year 1993-94 at Exh.39. The accident had taken place on 29.6.1994 and accordingly, yearly income shown to be receivable by the claimant is Rs.72,000/- and Rs.6,000/- per month income has been assessed. A perusal of the income tax returns of the year 1998-99 reflects that his remuneration has decreased to Rs.55,236/-. The accident had taken place on 29.6.1994 and accordingly, yearly income shown to be receivable by the claimant is Rs.72,000/- and Rs.6,000/- per month income has been assessed. A perusal of the income tax returns of the year 1998-99 reflects that his remuneration has decreased to Rs.55,236/-. The learned Tribunal has noted the income of Rs.1,35,000/- which is the amount including the other income while comparison ought to have been made on the remuneration received by the claimant from his firm K.S. Engineering Works. Placing reliance on the income tax returns being a statutory document of the year 1993-94, income of Rs.6,000/- per month is required to be assessed. As per the evidence of Dr. Mukesh Patel, 21% permanent disability would be considered and the Tribunal on appreciating the evidence on record has relied upon the evidence of the Doctor to assess the functional disability of 21%. 9. In the case of Mohd. Sabeer @ Shabir Hussain v. Regional Manager, U.P. State Road Transport Corporation, 2022 LiveLaw (SC) 1017, it has been held that even if the income of the claimant had increased after the accident, it would not be enough grounds to disable him from claiming compensation for future prospect as the rise in income may be attributed to multiple other factors and in cases of permanent disablement caused by a motor accident, the claimant is entitled to not just future loss of income, but also future prospects and “just compensation” must be interpreted in such a manner as to place the claimant in the same position as he was before the accident took place. 10. In the present case, the age of the claimant at the time of the accident was 34. Hence, considering the multiplier in accordance to the judgment in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 , addition towards future prospective income would be 40% and the multiplier that would be applicable is 16. On adding 40% rise to the monthly income of Rs.6,000/-, the claimant’s entitlement for the monthly income would come to Rs.8,400/- annually considering 21% disability with multiplier of 16, future loss of income would come to Rs.3,38,688/-. On adding 40% rise to the monthly income of Rs.6,000/-, the claimant’s entitlement for the monthly income would come to Rs.8,400/- annually considering 21% disability with multiplier of 16, future loss of income would come to Rs.3,38,688/-. The evidence has been noted to observe that the claimant had suffered and had been in a bedridden position and the Tribunal has considered the actual loss of income for a period of four months and hence, granted an amount of Rs.24,000/-, an amount of Rs.15,000/- has been granted towards pain, shock and suffering, an amount of Rs.19,000/- has been granted towards medical expenses and the amount of Rs.15,000/- towards special diet, attendant and transportation. Hence, the computation of the compensation would be as under:- Future loss of income Rs.3,38,688/- Actual loss of income Rs.24,000/- Pain, shock and suffering Rs.15,000/- Medical expenses Rs.19,000/- Special diet, attendant and transportation Rs.15,000/- Total compensation Rs.4,11,688/- 11. As the Tribunal has granted compensation of Rs.73,000/- with interest at the rate of 9% per annum, the claimant would be entitled to the enhanced amount of compensation of Rs.3,38,688/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. The enhanced amount is directed to be deposited within eight weeks from the date of receipt of writ of this Court. After depositing the amount, let the said amount be paid to the claimant on verification of the identity. 12. The impugned judgment and award be modified accordingly. The appeal is partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received.