Manilal Duljibhai vs Gujarat State Road Transport Corporation

D.A. Mehta, J.—This appeal has been preferred against judgment and award dated 15.7.1991 made by Motor Accident Claims Tribunal, No. 2 (Main), Ahmedabad in MACP No. 326 of 1989 by the original claimant seeking enhancement of the compensation awarded.

Learned Advocate for the appellant has submitted that though the original claim was for a sum of Rs. 3,00,000/- (Rupees Three lacs only) the claimant has restricted the same in this appeal at Rs. 1,50,000/- (Rupees One lac fifty thousand only) and thus seeks enhancement of the compensation awarded at a sum of Rs. 84,500/-. According to learned Advocate the claimant is not disputing either percentage of disability worked out by the Tribunal or any other factor except the income of the claimant. It was submitted that respondent Gujarat State Road Transport Corporation (S.T. Corporation), has not challenged the judgment and award and hence occurring of the accident, the negligence of the driver of the bus of S.T. Corporation is not under challenge and therefore to the said extent the impugned judgment has attained finality. The principal grievance of the claimant appellant is that though evidence was produced as to the nature of work undertaken by the claimant as a Mason the Tribunal has wrongly considered the claimant to be a labourer only resulting in an error in arriving at the correct level of earning. As a consequence, both the figures of future loss of income as well as the loss of income have wrongly been arrived at by the Tribunal. It was further submitted that the estimate of expenses incurred on medicines and treatment as well as towards pain, shock and suffering have been taken at a lesser figure without any evidence to restrict the same. Learned Advocate therefore submitted that the compensation may be reworked as per the following:

Compensation:

Awarded v. Claimed

Future loss of income 48,000 72,000

Medical Charges 3,500 9,500

Loss of Income 18,000 36,000

Pain/Shock/Sufferings 15,000 25,000

It was further submitted that the period for loss of income has been considered at one and half years only instead of period of two years claimed by the claimant appellant. In support of the submissions made, learned Advocate has invited attention to the evidence in the form of the deposition of the claimant himself (exhibit 44), deposition of one Shri Jitendrakumar Vadilal (exhibit 45) as well as deposition of Shri Naranbhai Dhulaji (exhibit 46) to submit that the claimant appellant was working as a Mason. Deposition of Dr. Shantilal Gordhanbhai was also gone through (exhibit 47) to support the submission for considering the period for loss of income at two years instead of one and half years taken by the Tribunal.

As against that learned Advocate for respondent S.T. Corporation submitted that the Tribunal has, after considering the entire evidence produced by the claimant passed a just and equitable order which does not require interference. It was submitted that in so far as the claim that the claimant was engaged in masonry work is concerned, the Tribunal has rightly found that there was no evidence to establish that the claimant was a skilled labourer and therefore even on this count the order of the Tribunal should not be disturbed.

There is no dispute between the parties that in the vehicular accident involving the bus of S.T. Corporation and the claimant, who was riding bicycle took place on 30.4.1999 at around 6.00 p.m. at the spot noted by the Tribunal in its judgment and order. There is also no dispute as to the multiple injuries, including compound fractures suffered by the claimant. Hence, it is not necessary to set out the details regarding the said facts. In so far as fixation of negligence is concerned, the appellant claimant has not disputed the findings recorded by the Tribunal and respondent S.T. Corporation has also not filed any cross appeal or cross objection. Therefore, the scope of the present appeal is limited as to whether in the first instance the Tribunal has rightly arrived at the figure of wages earned by the claimant so as to determine the loss of income as well as the future loss of income. This will have to be determined considering the principal dispute, viz. as to whether the claimant appellant was working as Mason or not.

Having gone through the impugned judgment of the Tribunal and after considering the Record & Proceedings and after considering the submissions made by the learned Advocates, it becomes clear that the claimant appellant has consistently stated that the claimant was working as a Mason on the day when vehicular accident took place. Record & Proceedings reveal that at the earliest point of time viz., when the claim petition was preferred the claimant had categorically stated that he was working as a Mason and earning Rs. 50/- per day. The same statement has been made in paragraph No. 10 of the petition relatable to the amount of compensation and the basis thereof. Thus, exhibit 1 clearly brings out the case of the claimant. The Tribunal has wrongly stated that exhibit 1, viz. the claim petition, does not indicate the nature of work carried on by the claimant.

Similarly when one goes to the deposition of the claimant himself (exhibit 44), deposition of Shri Jitendrakumar Vadilal (exhibit 45), and deposition of Shri Naranbhai Dhulaji (exhibit 46), it becomes abundantly clear that the claimant has through these three depositions brought on record the evidence to suggest that the claimant was employed as a Mason during the relevant period. All the three have duly been cross examined on behalf of respondent S.T. Corporation but nothing has come on record to dislodge the principal averment that the claimant was working as a Mason. Evidence in the form of oral deposition also indicates that a Mason was normally earning Rs. 50/- per day at the relevant point of time. In absence of any evidence to the contrary the Tribunal could not have taken a view that there was no documentary evidence to establish that claimant was working as a Mason. The vocation of a Mason is such that there would be no direct evidence in the form of any documentary evidence, more so when such a person is employed on daily wages. It may be true that there could be no documentary evidence to show that a Mason is a skilled worker but none the less once it has come on record that the claimant was working as a Mason the said evidence could not have been ignored by the Tribunal.

The Tribunal could not have proceeded on surmises and conjectures. Thus the Tribunal has erred in discarding cogent evidence which has come on record without there being any evidence to the contrary. Hence the income of the claimant will have to be considered @ Rs. 50/- per day instead of Rs. 40/- per day taken by the Tribunal, which can be rounded off at Rs. 1500/- p.m. In so far as the period for loss of income is concerned, though the applicant-appellant has claimed such loss for over a period of two years, in absence of any evidence in support of such claim the period has to be restricted to one and half years as the Tribunal has done. The evidence which has come on record has duly been considered by the Tribunal to fix the period for loss of income at 18 months and no interference in this regard is called for. In the circumstances, both for the loss of income during the period of hospitalization and post operative recuperation period as well as future loss of income the period adopted by the Tribunal does not call for any interference.

In so far as the medical expenses and the compensation towards pain, shock and suffering are concerned, no interference is called for in absence of any evidence to suggest actual incurring of any expenses over and above those considered by the Tribunal. Similarly so far as pain, shock and suffering head is concerned, the Tribunal has rightly awarded lump-sum amount of Rs. 15,000/- and nothing has been shown as to how the same is incorrect, considering the period of hospitalization as well as permanent disability suffered by the claimant-appellant.

The net result is that under the head loss of income and future loss of income the actual monthly income will have to be taken at a sum of Rs. 1500/-, applying multiplier of 20 considering the period of 18 months the loss of income will be worked out at a sum of Rs. 27,000/- in place of Rs. 18,000/- awarded. Thus there will be enhancement to the extent of Rs. 9,000/- under the said head.

Similarly in so far as future loss of income is concerned, taking the monthly income at Rs. 1500/-, applying multiplier of 20 the total future loss would be Rs. 3,60,000/- and considering the 20% disability thereof the total loss would be Rs. 72,000/- as against Rs. 48,000/- awarded. Thus there would be enhancement of Rs. 24,000/- under this head.

As a consequence there would be total enhancement to the tune of Rs. 33,000/- over and above the awarded amount of Rs. 84,500/-.

The respondent S.T. Corporation is directed to deposit the said amount with the Tribunal within a period of three months with interest at the rate specified by the Tribunal and it will be open to the appellant claimant to withdraw the said sum in the ratio fixed by the Tribunal while passing the award.

The appeal is accordingly partly allowed in the aforesaid terms with no order as to costs.