Lakhu Madeva Aayar vs Balvindersingh Gajjansinh & 4 Other(S)

Dr. Ashokkumar C. Joshi, J

This First Appeal is filed by the appellant – original claimants under Section 173(1) of the Motor Vehicles Act, 1988, (for short ‘M V Act’) against the judgment and award dated 29.04.2017 passed in Motor Accident Claim Petition No. 912 of 1999 by the Motor Accident Claims Tribunal, Bhuj - Kachchh, which was preferred under Section 166 of the MV Act, whereby, against a claim valued at Rs.2,00,000/-for the injuries sustained in an accident that had occurred on 16.07.1999, the Tribunal has awarded a sum of Rs.1,03,800/- with interest at the rate of 7.5% per annum from the date of claim petition till realization, holding liable the opponents therein to pay the compensation to the appellant – original claimant. Hence, grieved claimant has filed this appeal on the point of quantum.

It was the case of the appellant – complainant that on 16.07.1999, the applicant was coming from Ahmedabad to Bhuj in Truck No. GJ-12-U-8628 as a driver and driving the said Truck on the left hand side of the road with moderate speed. That, at around 13:30 hrs, the said truck had reached near the place of accident, at that time, opponent No.1 while in employment of opponent No. 2 had came from opposite side along with Truck No. GJ-01-X-7189, driving rashly, recklessly, negligently, at an excessive speed, without observing traffic rules and dashed with the truck driven by the claimant. As a result, the claimant sustained injuries and partially disabled in the said accident. Accordingly, the appellant – complainant has filed this appeal for enhancement of compensation.

Rule is unserved upon the respondent Nos. 1 and 2. Though served, none appears for the respondent No.4. Heard, learned advocate Mr. Hemal Shah for the appellant and learned advocate Mrs. Vasavdatta Bhatt for the respondent No.3 and learned advocate Mr. Tanmay B. Karia for the respondent No. 5 – insurance company at length.

The learned advocate Mr. Hemal Shah for the appellant has heavily placed reliance upon the judgment of the co -ordinate Bench of this Court passed judgment dated 20.10.2021 in First Appeal No. 4649 of 2019 in case of Bhanuben Lalji Gorasiya W/o Late Lalji Nanji Gorasiya vs. Sabir Bhachu Hajam, wherein, the identical issue was dealt with, the claimant was doing mason work and estate broker and his income was considered as Rs.5,000/- per month without any certificate of income and it is also not proved. He also submitted that in this case, the claimant was driver and claimed Rs.5500/- as per month income but the learned Tribunal has considered only Rs.1500/-. He further submitted that the learned Tribunal ought to have assessed income of the claimant of Rs.3000/-per month on the basis of the skilled worker.

As against this, the learned advocate Mrs. Vasavdatta Bhatt for the respondent No. 3 heavily objected and submitted that since certificate of income is not proved upon such premises, the learned Tribunal has rightly calculated the income as Rs.1500/- per month and while heavily opposing this appeal and supporting the impugned judgment and award, submitted that the impugned judgment and award being just and proper and therefore, no interference is required at the hands of this Court and this appeal deserves to be dismissed. Learned advocate Mr. Tanmay Karia for the respondent No. 5 – insurance company also joined with these arguments.

Regard being had to the submissions canvassed and perusal of the record reveals that in the present case the learned Tribunal has assessed income of the driver of Rs.1500/- per month and the document for income was not exhibited, since, owner of the vehicle in which the claimant was working as driver was not examined. Further, the learned advocate for the appellant has heavily place reliance in the case of Bhanuben Lalji Gorasiya W/o Late Lalji Nanji Gorasiya vs. Sabir Bhachu Hajam (Supra), wherein, the certificate of per month income of the deceased – claimant from mason work and working as an estate broker was not proved but considering the facts and circumstances of the case, the income of Rs.5,000/- per month has been assessed instead of Rs.3,000/- per month. Therefore, in the present case also, in the considered opinion of this Court, the learned Tribunal has assessed per month income of Rs.1500/- which is not just and proper. Hence, in view of the judgment in the case of Bhanuben Lalji Gorasiya W/o Late Lalji Nanji Gorasiya vs. Sabir Bhachu Hajam (Supra), per month income of Rs.3000/- would be just and proper.

In the aforesaid backdrop, this appeal succeeds and is allowed accordingly. The impugned judgment and award is modified to the aforesaid extent and it is held that the appellant – claimant shall be entitled for the following towards compensation:

Head

Award of Tribunal (Rs.)

Modified Amt. (Rs.)

Pain, Shock & Suffering

5,000/-

15,000/-

Actual loss of income

(1500 p.m. x 4) 6,000/-

(3000 p.m. x4) 12,000/-

Future loss of income

64,800/-

1,29,600/-

Special Diet, attendant and transportation

5,000/-

15,000/-

Medical Expenses

23,000/-

23,000/-

Total

1,03,800/-

1,94,600 –

(1,03,800/-)

Different Amt.

90,800/-

7.1 The difference amount shall be deposited within a period of 08 (eight) weeks.

7.2 The appellant – claimant shall be entitled to interest at the rate of 6% per annum on such enhanced amount of compensation, from the date of the claim petition till realization.

7.3 The rest of the impugned judgment and award is not disturbed.

7.4 R&P, if received, be sent back forthwith.