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Judgment
,
The present appellant, who is the original claimant before the Tribunal, being aggrieved and dissatisfied with the judgment and award dated",
13.01.1999 passed in M. A. C. P. No. 239/1995 by the Motor Accident Claim Tribunal (Aux.I), Baroda (hereinafter referred to as “the Tribunalâ€)",
has preferred the present appeal under Section 183 of the Motor Accident Act 1988 (hereinafter referred to as “the Actâ€),
Short facts of the present case may be summarized as under:,
2.1 As per averments of original claimant, on 30.12.1994, when the petitioner-original claimant was coming from Jambusar on his Scooter bearing",
RTO registration No. GJ-6-5285, after finishing his consultancy work at Shriji Hospital of Dr. Rathod, he was thrown away from his scooter by a",
DCM Tempo, bearing RTO registration No. GJ-6-T-5070 driven by opponent no.1, who came from opposite direction ie., from Padra in an excessive",
speed. This accident occurred due to rash and negligent driving of DCM tempo which overtook number of other vehicles, near Vishrampura Bus",
Stand, Jambusar-Padra Road. The accident resulted into total damage of the scooter which was dashed behind by DCM Tempo. That, this accident",
was occurred only because of rash and negligent driving of the opponent no.1. That, a complaint was lodged before the Padra Police Station vide CR",
No. I-431 of 1994. As per further averments made in the petition preferred by the original claimant, on account of injuries sustained by him, he was",
taken to SSG Hospital, Baroda, and thereafter, he was taken to Paramount Scan Center for CT Scan of head, as there was a fracture of frontal bone",
with opening of durameter of brain, and thereafter, he was discharged from SSG Hospital, Baroda for further treatment on 30.12.1994. The petitioner",
then was shifted to Mahi Hospital of Dr. Manish Shah, Dr. Hiren Bhatt and Dr. Atul Shah. He had sustained grave injuries; as narrated by him in para",
11 of the petition. That, due to grievous injuries, his condition was monitored for four days and had consulted Neuro Surgeon for the brain injuries of",
left frontal bone. That, on 31.12.1994, operation for fracture of frontal bone was performed and durameter of brain was repaired with closure of CLW",
around left eye. That, on the very same day, Surgeons operated him for his fracture on right hand and reduction of right wrist dislocation with “Kâ€",
wiring of lower and of right radius bone with repair of extensor random of right index finger with closure of CLW. Thereafter, he was shifted to Mahi",
Hospital, and thereafter, he was shifted to Navrang Hospital for close orthopedic care and was operated for platting of left radius and ulna with bone",
grafting was done for fracture dislocation of left humerus reduction of fracture and tension band wiring was done. He was again operated on 7th,
January 1995. That, after taking treatment, he was in his own hospital as indoor patient. That, he spent Rs. 1 lac towards medicines and doctor",
charges. That, he was 32 years of age and was having degree of MS and joined with Muniseva Ashram, Vaghodia, Dist: Baroda and worked there",
upto April 1993, wherein, he was given Rs. 9000/- per month towards salary. Thereafter, he started his own hospital named Maitri Hospital at",
Sayajigunj Baroda and he was working as a visiting Doctor in different hospitals. That, in the year 1993-94, he had filed his income-tax return of Rs.",
1,90,187/- and from 1st April 1994 to the date of accident, his income was Rs. 30,000/- per month. That, he was in bedridden condition at the time of",
filing of the petition and was unable to stand on his left leg for longer period to perform operation and due to these sort of injuries, he had sustained",
disability of not less than 60% to 70%. That, he was young, dynamic and energetic surgeon and was capable enough to earn much more than what he",
was earning at the time of accident. That, his average future income should be considered at Rs. 50,000/- per month. That, he suffered great mental",
pain, shock and agony and losses of income. That, he had incurred huge amount towards medical treatment. That, his wife, who was Physiotherapist",
by profession and was his caretaker during entire span of treatment. She was earning Rs. 5000/- per month, and thus, she had also lost her income,",
and therefore, he filed a claim petition claiming Rs. 50,00,000/- as compensation on the ground of loss of his practice, future economic loss, transport,",
caretaker, medicines; including mental pain, shock and agony. 2.2 On receiving notice issued by the Tribunal, opponent no.2 filed his written statement",
vide Ex. 15 denying contentions raised by the petitioner in his claim petition, including negligency part of the driver of tempo ie., opponent no.1, injuries",
sustained by the petitioner, as stated in the claim petition, expenditure incurred by him of his medical treatment taken in different hospitals or operation",
performed on various part of his body, as stated in the claim petition. Contentions as regard pain, shock and suffering allegedly suffered by the",
claimant, disability suffered by him, loss of income by himself or his wife as a care taker were also not admitted by the opponent no.2. Thus, the claim",
amount of Rs. 50,00,000/-made by the petitioner was exorbitant, as per the say of this opponent. Ultimately, it was requested by this opponent to",
dismiss the claim petition.,
2.3 Opponent no.3 filed its written statement vide Ex. 23 denying contention of the claimant petition stating that the claim was highly exaggerated, too",
broad and too vague and cannot be allowed. This opponent denied its liability, as the company was not able to trace out and find out alleged vehicle,",
which was insured with the company. The averments made in para Nos. 5 and 6 of the claim petition were not admitted. The averments made in para,
1 to 4, 7 to 9 and 12 to 16 were denied as not true in toto. It was denied that the opponent no.1 was driving his vehicle Metador Tempo rashly and",
negligently, at the time of the accident. That, petitioner himself was riding his Scooter, bearing registration No. GJ-6-B-5285 in a zig-zag manner",
speedily in the middle of the road, avoiding the traffic rules and regulations, and without seeing other vehicles, dashed with Metador Tempo, bearing",
registration No. GJ-6-T-5070 driven by opponent no.1 at a very moderate speed. That, the petitioner himself was negligent in causing the accident.",
The contentions raised in para 11 of the petition were denied by this opponent. The contentions in respect of alleged economic loss caused to the,
petitioner, conveyance, special diets, medical expenses, medical treatment like permanent and partial disablement were not admitted. Ultimately, it was",
requested by opponent No.3 to dismiss the petition.,
Heard learned advocate Mr. Yatin Soni for the appellant and learned advocate Mr. R.G. Dwivedi for the respondent no.3. No arguments were,
advanced for the respondent Nos. 1 and 2.,
Learned advocate for the appellant has submitted that the award passed by the Tribunal in favour of the appellant/original claimant is clearly,
erroneous and against the material placed on record. That though, the income of the original petitioner was at Rs. 1,81,620/- per annum, the Tribunal",
has committed an error in considering his income as Rs. 1,00,000/- per annum. That, future prospective income of the appellant was to be considered",
by the Tribunal. That, disability of the appellant was erroneously considered @ 66% of the body as a whole. That, in fact, the appellant has suffered",
77% disability, body as a whole, as he had sustained various fractures and several injuries. That, the Tribunal has committed an error in holding that",
the appellant is entitled for only 15 years multiplier because the age of the appellant was about 32 years at the time of accident, and therefore, the",
appellant would be entitled to get multiplier of 18. That, considering the loss of income for about one and half years only, the Tribunal has committed",
grave error. That, the appellant has suffered actual loss of income for about three and half years. That, total in all 28 operations were performed on",
the body of appellant, and therefore, he should be awarded at least Rs. 5 lacs on account of pain, shock and suffering. That, the Tribunal has not",
considered this material aspect and has committed a grave error in not considering certain medical expenses. That, expenditures towards conveyance,",
lodging, etc, incurred by the appellant during the medical treatment was not considered by the Tribunal and thereby has committed a grave error of",
law. That, the wife of appellant was a qualified Physiotherapist and attendance expenses and charges towards her performing duty as a caretaker",
were not considered by the Tribunal, and therefore, it was requested by learned advocate for the appellant to pass an award of additional Rs. 30 lacs",
in favour of the appellant along with interest by allowing this appeal.,
From the otherside, learned advocate for the respondent no.3 supported the impugned judgment and award passed by the Tribunal and argued that",
the Tribunal has rightly considered income of the appellant, as he was a practicing doctor. That, evidence of witnesses were properly considered by",
the Tribunal. No error was committed by the Tribunal in passing award in favour of the appellant. That, disability at 66% (body as a whole) was",
rightly considered by the Tribunal. That, certificate of disability (Ex. 63), oral testimony of the witnesses and medical treatment papers were rightly",
considered by the Tribunal. That, actual loss of income of about one and half year was also considered by the Tribunal. Considering the age of",
Rs. 1,15,115/-",Income per annum
Rs. 88,630/-",77% disability body as a whole
X 16,Multiplier
=Rs. 14,18,224",Future Loss of income
+ Rs. 1,72,672/-",Actual loss of income
+ Rs. 3,00,000/-","Pain, shock and suffering
+ Rs. 25,000/-",Transportation
+ Rs. 25,000/-",Special Diet
+ Rs. 50,000/-",Attendant Charges
+ Rs. 2,41,324/-",Medical Expenses
= Rs. 22,32,220/-",Total Compensation
- Rs. 16,11,324/-",Compensation granted by Tribunal
=Rs. 6,20,896/-",Additional compensation granted by this Court