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Judgment
82 paragraphs · 1,369 wordsThe appellant  claimant has preferred this appeal under section 173 of the Motor Vehicles Act, 1988 (“the Act†for short) challenging the
judgment and award dated 7.1.2019 rendered in MACP No.34/2010 passed by M.A.C. Tribunal (Aux), Bhuj at Kachchh (“the Tribunal†for
short) whereby the Tribunal awarded Rs.1,99,000/Â towards compensation.
Brief facts of the case are that on 16.4.2009, the appellant claimant was travelling in Alto car bearing registration no.GJ.12.J.4782 being driven by
respondent no.4 herein on the correct side of the road carefully along with some other relatives. When the car reached opposite to Hotel Bhagyoday
on Sanand ÂViramgam highway road, driver of truck bearing registration no.GJ.1.BV.2711 came from opposite side on the wrong side of the road in
rash and negligent manner and dashed and collided with the car and caused the accident. The appellantÂclaimant and others travelling in the car
received serious injuries. The appellantÂclaimant has therefore, filed the claim petition being MACP No.34/2010.
On service of summons, respondent no.3 Âinsurance company of the offending truck appeared and filed its written statement at Exh.13 denying the
negligence on part of the driver, involvement of the vehicle, injuries to the appellantÂclaimant. It was contended that it is a case of composite
negligence and therefore, negligence on part of the other vehicle also should be considered. It was contended that there was breach of conditions of
insurance policy.
Respondent No.6Âthe insurance company of the Alto car has appeared and contended that there was no negligence on part of the driver of the car
and sole negligence is on part of the driver of the offending truck. It was contended that insurance company of Alto car has been joined at the
instance of respondent no.3 and appellantÂclaimant has not claimed anything against the said insurance company.
The Tribunal framed issues to the effect that whether the appellant proves that he sustained grievous injuries due to rash and negligent act of the
driver of the offending vehicle involved in the accident and whether the appellant is entitled to compensation from the opponents or any of them, if yes,
what amount and from whom.
The Tribunal after taking into consideration the documentary and oral evidence, more particularly, FIR at Exh.51, panchnama of place of accident
at Exh.52 etc. found that the driver of truck dashed with the car by going on wrong side as he was overtaking another vehicle and accordingly held
driver of the truck solely negligent in causing the accident in absence of any rebuttal evidence led by respondents no. 1 and 2.
With regard to the compensation to be awarded to the claimant, the Tribunal assessed the monthly income of the appellant at Rs. 3000/Â. The
Tribunal considered disability certificate at Exh.55 showing physical disability of 58% and the endorsement below the disability certificate wherein it is
recorded that since the doctor who issued the certificate has expired, it held that it would be just and proper if the disability of body as a whole is
reduced to half but on opposition of advocate of the respondent, assessed the permanent total disability at 25% of the body as a whole and worked out
monthly income at Rs. 750/Â (25% of Rs.3000) and yearly income at Rs.9000/Â (Rs.750x12). The Tribunal considering the age of the appellant to be
53 years, adopted multiplier of 11 relying upon the judgment in case of Sarla Verma(Smt.) and others v. Delhi Transport Corporation and another
reported in (2009) 6 Supreme Court Cases 121 and awarded Rs.99,000/Â (Rs.9000x11) towards future loss of income. The Tribunal considering the
fact that the appellant had sustained fracture over right hand and for that she was required to be operated, awarded Rs. 15,000/Â for pain, shock and
suffering, Rs.7000/Â towards attendant charges, transportation and rich diet. The Tribunal awarded Rs. 69,000/Â towards medical expenses on the
basis of actual bills produced on record. The Tribunal further awarded Rs.9,000/Â (Rs.3000x3) toward actual loss of income of Rs. 3000/Â for three
months. The Tribunal thus awarded total compensation to the appellantÂclaimant under various heads as under :
Heads of compensation
ÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂ
Future loss of income
Pain shock and suffering
Amount
ÂÂÂÂÂÂÂÂÂÂÂÂÂÂ
Rs.99,000/Â
Rs.15,000/Â
Attendant charges, transportation rich diet, etc.
Medical bills
Actual loss of income
ÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂ
Total compensation
ÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂ
Rs.7,000/Â
Rs.69,000/Â
Rs.9,000/Â
ÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂ
Rs.1,99,000/Â
ÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂ
Heard learned advocate Mr. Kirtidev R. Dave for the appellant.
Learned advocate for the appellant challenged the impugned judgment and award on the ground of quantum. Learned advocate for the appellant
submitted that though sufficient material has been produced on record, the Tribunal has granted less compensation. He submitted that the appellant
was doing agricultural work. Therefore, Tribunal ought to have assessed the monthly income on higher side. He also disputed the assessment of
disability at 25% being on lower side. He also disputed granting of lesser amount under the heads of medical expenses, pain shock and suffering,
attendant, transportation and diet. He also disputed the rate of interest awarded by the Tribunal.
Having considered the submissions made by the learned advocate for the appellant as well as oral and documentary evidence on record submitted
by separate paper book by the learned advocate, with regard to the award of the compensation, the Tribunal has awarded just and fair compensation
considering the prevalent settled legal proposition of law for awarding compensation. The Tribunal took into account affidavit for evidence filed by the
appellantÂclaimant at Exh.50 wherein it is stated that after the accident appellant was brought to Sanjivani hospital at Ahmedabad along with others
and admitted for 10 days. There is a permanent disability over right hand of the appellant. She is not able to do any heavy work or agricultural work as
she was doing previously. In the cross examination, the appellant admitted receipt of crop from the agricultural land but failed to produce any
documentary or oral evidence to prove the income. The Tribunal thereafter, relying on the judgment in case of Shri Ram Education Trust, Trustees of
Trust and others v. Mitaaben Anilbahi Patel reported in 2011(1) GLR 742 (DB) assessed the monthly income of the appellant at Rs. 3000/Â which is
just and proper. The Tribunal took note of disability certificate at Exh.55 wherein it is recorded that the appellant had sustained fracture of right
humerus bone for which open reduction and platting was done. The appellant was admitted for the period between 10.4.2009 to 23.04.2009 and the
doctor has assessed the disability at 58%. The Tribunal took note of the endorsement below the disability certificate wherein it is recorded that since
the doctor who issued the certificate has expired, it would be just and proper if the disabilities of body as a whole is reduced to half. The Tribunal on
objection raised by the respondents, assessed the permanent total disability at 25% of the body as a whole and worked out yearly income at
Rs.9000/Â, which is just and proper. The Tribunal correctly considering the age of the appellant to be 53 years, adopted multiplier of 11 relying upon
the judgment in case of Sarla Verma(Smt.) and others (supra) and awarded Rs.99,000/Â towards future loss of income. The Tribunal considering the
fact that the appellant had sustained fracture over right hand and for that she was required to be operated, awarded Rs. 15,000/Â for pain, shock and
suffering, Rs.7000/Â towards attendant charges, transportation and rich diet which is in line with judgment in case of National Insurance Company
Limited. v/s. Pranay Sethi and ors reported in 2017(3) GLH 536 and therefore, requires no interference. The Tribunal correctly awarded Rs.
69,000/Â towards medical expenses on the basis of actual bills produced on record. The Tribunal correctly awarded Rs.9,000/Â towards actual loss of
income for three months.
In view of foregoing reasons, there is no merit in the appeal filed by the appellant in view of the finding of facts arrived at by the Tribunal on the
basis of oral and documentary evidence on record. Therefore, no interference is called for in the impugned judgment and award passed by the
Tribunal.
The appeal is therefore, devoid of any merit and same is accordingly dismissed with no order as to costs.