Nareshkumar Laxmanbhai Panchal vs Jaykishan Chandubhai Chauhan & Anr

Hasmukh D. Suthar, J

1) Feeling aggrieved and dissatisfied with the judgment and award dated 25.07.2022 passed by learned Motor Accident Claims Tribunal (Auxi.), Panchmahals at Halol (which shall hereinafter be referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.2928 of 2017 (Old MAC Petition No.971 of 2016), the appellant – original claimant has preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (which shall hereinafter be referred to as "the Act" for short).

2) Heard learned Advocate Mr. K. K. Thakkar, for the appellant – original Claimant and Mr. C. A. Mehta, learned Advocate for the respondent no.2 – Insurance Company. The respondent no.1 is duly served but did not appear before this Court. Perused the original record and proceedings.

3) It is the case of the appellant – original claimant that 08.09.2016, the appellant being a pillion rider of Honda Dream motorcycle bearing Reg. No.GJ-17-AR-5109, which was being ridden by its rider rashly and negligently and while turning it towards Hotel Sarvottam on Halol – Vadodara road, he lost control over it consequently, the applicant thrown out on road simultaneously, the applicant’s right hand pressed under the wheel of an Eicher truck coming from Vadodara side and the applicant sustained grievous injuries with multiple fractures. Therefore, the appellant had filed MAC Petition seeking compensation, wherein, the learned Tribunal after appreciating the evidence produced on record the learned Tribunal has partly allowed the claim petition.

4) Learned Advocate for the appellant has submitted that the learned Tribunal has committed error in assessing the income of the appellant only at Rs.5,000/- per month, whereas, he was earning Rs.7,000/- per month by doing a private job in GIDC, Halol. He has further submitted that the Tribunal also erred in not considering addition towards future prospectus on the income of the appellant. He has further submitted that the Tribunal has wrongly reduced the disability of the appellant from 45% to 30% despite medical certificate and deposition of the Doctor are produced on record. He has further submitted that the learned Tribunal has awarded a pittance towards non pecuniary loss. Hence, he has requested to allow the present appeal.

5) Learned Advocate for the respondent – Insurance Company has opposed the present appeal and submitted that the learned Tribunal has properly considered the income of the appellant and 30% disability of the claimant and awarded just and proper compensation. Hence, he has requested to dismiss the present appeal.

6) Having heard the learned Advocates for the respective parties and going through the record it appears that the issue of negligence, involvement of the vehicles and liability are not in dispute in the present appeal. The appeal is filed on limited ground qua enhancement of quantum hence the appeal is required to be decided in narrow compass. As per the law laid down by the Hon’ble Supreme Court in the case of Govind Yadav Vs. National Insurance Co. Ltd., reported in 2012(1) TAC 1 (SC), that if no proof of income is produced on the record then Tribunal has to consider prevailing rate of minimum wages in absence of evidence of monthly income of the claimant. In the present case the accident occurred on 08.09.2016 and during that time the appellant – injured was doing private job in GIDC, Halol and was earning Rs.7,000/- per month, whereas, the learned Tribunal has assessed Rs.5,000/-, however, as per the minimum wages of the prevalent time the income of the appellant is required to be enhanced and the same is reassessed at Rs.7,700/- per month. It appears that the learned Tribunal has observed the age of claimant as 21 years at the time of accident and the learned Tribunal has committed error in not considering future prospect, however, this Court is of the view that 40% addition towards future prospectus is required to be awarded as per the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 ACJ 2700.

7) It is undisputed fact that to prove his disablement, the claimant has examined Dr. D. H. Solanki, at Exhibit 23, wherein, he has assessed permanent partial disability of 82% and produced certificate at Mark 19/13. In his cross-examination he has conceded that it is true that the certificate does not show that the joints movements are restricted. He has further admitted that he has not used Goniometer to measure joint range of motion. He has further admitted that he has used Kessler’s A plus B formula to assess the disability. Therefore, the Tribunal has evaluated the oral evidence of Doctor and considered disability guidelines for persons with disability and rightly held 30% functional disability of the appellant. Hence, no interference of this Court is required so far the functional disability to the extent of 30% of the appellant is concerned.

8) Further, considering the age of claimant as 21 years at the time of accident the Tribunal has considered multiplier of 18 which as per the judgment of the Apex Court in the case of Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121] is just and proper and no interference of this Court is required. Further, considering the nature of injury, period of hospitalization and disability the Tribunal has awarded Rs.30,000/- towards pain, shock and suffering, Rs.1,775/-towards Medical Expense and Rs.6,000/- towards Transportation, special diet and attendant charges which are also just and proper.

9) Therefore, recalculating the income of the claimant as Rs.7,700/- and future prospect of 40% = Rs.3,080/- which comes to Rs.10,780/-. Now total income under the head of future loss of income is required to be considered as Rs.10,780/-x 12 x 18 x 30% / 100 = Rs.6,98,544/-. Therefore, the appellant is entitled to get additional amount of Rs.3,74,544/- towards future loss of income. Similarly, as this Court has reassessed the income of the appellant the actual loss of income of Rs.1,250/- is enhanced to Rs.15,400/- i.e. for two months (additional amount of Rs.14,150/-) towards actual loss of income.

10) In view of the above, the appellant – injured – original claimant is entitled to get compensation computed as under:

Heads

Awarded by Tribunal

Reassessed by this Court

Future loss of income

Rs.3,24,000/-

Rs.6,98,544/-

including additional amount of Rs.3,74,544/-

Medical expenses

Rs.1,775/-

Rs.1,775/-

Pain, shock and suffering

Rs.30,000/-

Rs.30,000/-

Actual loss of income

Rs.1,250/-

Rs.15,400/-

including additional amount of Rs.14,150/-

Transportation, special diet and attendant charges

Rs.6,000/-

Rs.6,000/-

Total compensation

Rs.3,63,025/-

Rs.7,51,719/-

including total additional amount of Rs.3,88,694/-

11) In view of above, the Tribunal has awarded total compensation of Rs.3,63,025/-, however, as discussed above the appellant is entitled to get additional amount of Rs.3,88,694/- (Rs.7,51,719/- - Rs.3,63,025/-) with proportionate costs and interest as awarded by the learned Tribunal.

12) Hence, present appeal is partly allowed. The judgment and award dated 25.07.2022 passed by learned Motor Accident Claims Tribunal (Aux.), Panchmahals at Halol, in MAC Petition No.2928 of 2017 (Old MAC Petition No.971 of 2016) stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered. The respondent no.2 – Insurance Company shall deposit the said additional amount of Rs.3,88,694/- along with interest as awarded by the Tribunal, before the Tribunal within a period of four weeks from the date of receipt of this order. Record and proceedings be remitted back to the concerned Tribunal forthwith.

13) The learned Tribunal is directed to recover or deduct the deficit court fees on enhanced amount and thereafter disburse the amount accordingly.

14) Interim application, if any, also stands disposed of.

15) Award to be drawn accordingly.