Ibrahimbhai Karimbhai Pathan vs Ramprasad Gangaram Jadav and Others

Bhaskar Bhattacharya, C.J.—This appeal under the Motor Vehicles Act is at the instance of a claimant in a proceedings u/s 166 of the Motor Vehicles Act and is directed against award dated 16th June, 2001 passed by the Motor Vehicles Claim Tribunal (Aux. 1), Ahmedabad Rural in MACP No. 1097 of 1995, thereby awarding a sum of Rs. 41,996 with interest at the rate of 9% per annum from the date of filing of the application till payment. It appears from the record that due to accident, the claimant suffered injury. According to the certificate given by doctor which has been proved in course of trial, the claimant had sustained 21.4% partial permanent functional loss. According to the claimant, he was the owner of a tea-stall and used to earn a sum of Rs. 1500 to Rs. 2000 a month. The claimant demanded a sum of Rs. 1,50,000 as compensation.

The learned Tribunal below, on consideration of the evidence on record came to the conclusion that due to negligence on the part of the driver of the offending scooter, the accident occurred. It further came to the conclusion that the offending vehicle was covered by a valid insurance and, thus, the Insurance Company was liable to pay the amount.

While calculating the amount of compensation, the Tribunal was of the view that having regard to the medical certificate issued by the doctor regarding 21.4% partial permanent functional loss, the same should be treated to be 11% permanent disability considering the body as a whole. According to the Tribunal, in the absence of any specific evidence as regards the income, the monthly income of the victim should be treated to be Rs. 1250. The age of the victim being 30 years, the Tribunal proceeded to apply multiplier of 16 and arrived at a figure of Rs. 26,496 as future economic loss. In addition to the said amount, the'' Tribunal fixed a further amount of Rs. 5000 for pain, shock and sufferings. The Tribunal further added a sum of Rs. 7000 for medicine and medical treatment and Rs. 1000 for special diet, conveyance and attendant charges. A further sum of Rs. 2500 was given for actual loss of income during the period of medical treatment and, thus, arrived at a figure of Rs. 41,996.

Ms. Mohini Bhavsar, the learned Advocate appearing on behalf of the appellant contended before me that the finding of the learned Tribunal that the income of the victim should be treated to be Rs. 1250 a month was a perverse finding of fact. Ms. Bhavsar contends that it was not possible to give a definite figure of income having regard to the nature of business her client used to do and once the income asserted by her client was quite reasonable, the Tribunal should have accepted the said amount.

Ms. Bhavsar further contends that although it would appear from medical bills, which are marked exhibit that total amount actually spent by her client was Rs. 9,351, the Tribunal below committed substantial error of law in awarding a fixed amount of Rs. 7,000. Ms. Bhavsar, therefore, prays for setting aside the award and for increasing the amount of compensation.

Ms. Karuna V. Rahevar, the learned Advocate appearing on behalf of the Insurance Company has, however, opposed the aforesaid contention of Ms. Bhavsar and has submitted that the finding recorded by the Tribunal as regards income from the tea stall should not be interfered in this first appeal, inasmuch as there is no other evidence except the statement of the victim himself regarding his actual income. Ms. Rahevar, however, fairly conceded that the medical bills exhibited on behalf of the claimant shows that he had actually incurred a sum of Rs. 9,351 towards medical treatment.

After hearing the learned Counsel for the parties and after taking into consideration the fact that the accident occurred after the incorporation of Section 163A of the Act, the learned Tribunal below should have taken into consideration the fact that even on the basis of notional income fixed under the said provision where a claimant is not required to prove even negligence of the driver, if I apply the Schedule to Section 163A of the Act and apply multiplier of 17, the amount would come to Rs. 28,050 after taking into consideration the permanent disability to the extent of 11%. Therefore, I find substance in the contention of learned Advocate Ms. Bhavsar that fixation of Rs. 26,496 as future loss of income was, on the face of it a perverse finding of fact. In the case before us, the negligence on the part of the driver of the offending vehicle having been established, in my opinion, the appellant should be entitled to Rs. 5,000 more than the amount, which is available u/s 163A of the Act.

Therefore, I propose to enhance the amount by Rs. 5,000 by making an around figure of Rs. 33,000.

In my opinion, a further sum of Rs. 2351 should also be added regarding actual expenditure incurred by the appellant, which has been proved by production of documentary evidence. Therefore, the total amount of compensation should be as follows--

I also find substance in the contention of Ms. Bhavsar that having regard to the fact that claim petition was filed in the year 1995, the rate of interest should be at the rate of 12% from the date of filing of application till 31st December, 1999 and, thereafter, at the rate of 9% per annum. I, accordingly, modify the rate of interest at the above rate. The appeal is, thus, allowed to the extent indicated above. The Insurance Company is directed to deposit the balance amount within two months from today before the Tribunal below. In the facts and circumstances, there will be, however, no order as to costs.