RATILAL PRAGJIBHAI KANANI vs BHAGIRATHSINH BALUBHA RANA & ORS.

This appeal is directed against the judgment and award dated 30.1.2017 passed by the MACT (Aux.), Jamnagar in MACP NO.260 of 2011 under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

Heard Mr. Sanjay Amin, learned advocate for Mr. Nitin Amin, learned advocate for the appellant and Mr. Yogi K. Gadhia, learned advocate for respondent no.2. Though served, no one appears for respondent nos.1 and 3 who are driver and owner of the vehicle respectively.

At the outset, Mr. Amin, learned advocate for the appellant submitted that the present appeal is filed only for the purpose of enhancement of quantum as there is no dispute as regards liability of the respondent no.2 - insurance Company, the appeal may be heard finally. Mr. Gadhia, learned advocate for the respondent no.2 has also reiterated the said contention. Mr. Amin has also produced copies of the documentary evidence such as FIR Exh.27, Panchnama Exh.28, disability certificate at Exh.34, MLC at Exh.36 for perusal of this Court.

From the record of this appeal as well as copies of the documentary evidence, following

noteworthy facts can be culled out from the record:-

That, the appellant herein was driving the motorcycle bearing registration no. GJ-10 - AL- 0661 on 11.5.2011. That, while the appellant was passing through Rajhans Factory, situated on highway, the vehicle (tanker) bearing registration no. GJ-12 - V-9271 came from wrong side in excessive speed in a rash and negligent manner and dashed with the motorcycle of the appellant. It is the case of the appellant that he received grave injuries on the left hand because of which, he had to undergo excessive medical treatment and thereafter, the appellant filed the present appeal for compensation under Section 166 of the Act and claimed Rs.4 lacs as compensation along with 12% interest. The Tribunal, by the impugned judgment and award, was pleased to partly allow the claim petition and was pleased to award a sum of Rs.2,63,185/- along with 9% interest from the date of registration till realization. Being aggrieved by the same, the present appeal is filed.

Mr. Amin, learned advocate for the appellant has raised the following contentions:-

5.1 That, the Tribunal has wrongly assessed the income and therefore, the Tribunal has committed an error in coming to the conclusion that the appellant would be entitled to only Rs.2,96,400/- under the head of future loss of income.

5.2 It is also contended that equally, the Tribunal has erred in awarding Rs.48,000/- under the head of actual loss of income.

5.3 It is also contended even though the evidence was led, the medical expense is granted by the Tribunal only to the tune of Rs.8,721/-.

5.4 Mr. Amin, relying upon the disability certificate at Exh.34, contended that because of the accident, the appellant sustained injuries which has resulted into permanent disability to the aforesaid level and had to remained under medical treatment for a period of about 4 months and therefore, the Tribunal has seriously erred in awarding a meager amount of Rs.15,000/- under the head of pain, shock and suffering. On the aforesaid, it is contended that the appeal be allowed as prayed for.

Per contra, Mr. Yogi Gadhia, learned advocate for the respondent no.2 has supported the impugned award. It is submitted that on the contrary, the Tribunal has considered only 30%

negligence, whereas considering the Panchnama at Exh.28, the manner in which the accident has occurred, the appellant should have been saddled with 50% negligency. It is contended that the appeal is meritless and the same deserves to be dismissed and no interference in exercise of appellate jurisdiction is warranted in the facts of the case.

Having heard the learned advocates appearing for the respective parties and on perusal of the impugned judgment and award as well as relevant documentary evidence and on reappreciation of the evidence on record, it transpires that there is no dispute as regards the liability of the insurance Company as well as the accident. As far as the contention raised by the learned advocate for the respondent no.2 is concerned on the aspect of negligence; firstly, the same is not challenged by the insurance Company and on perusal of the observations made by the Tribunal, it clearly appears that the accident took place between the tanker and the motorcycle and the Tribunal has thus committed no error in assessing negligence of the appellant only to the tune of 30%. Similarly, the Tribunal has rightly appreciated the evidence of the daughter at Exh.33 and has rightly considered the disability certificate at Exh.34. The appellant

has not been able to show by any piece of evidence that he had monthly income of Rs.10,000/- considering the date of accident and on right appreciation of the evidence on record, in opinion of this Court, the Tribunal has committed no error in assessing the income at Rs.4,000/- per month in absence of any cogent evidence on record and therefore, the contention raised by Mr. Amin to the effect that the Tribunal has committed error in awarding Rs.2,96,400/- and Rs.48,000/- under the head of future loss of income as well as actual loss of income deserves to be negatived. The Tribunal, having rightly came to the conclusion and assessing the income at Rs.4,000/- per month considering the evidence on record, the appellant was in hospital for 4 months, has rightly assessed the actual loss of income at Rs.48,000/-. Similarly, on reappreciation of the evidence on record, specially the medical papers, Exhs.38 to 55, the Tribunal has not committed any error in awarding Rs.8,721/- as medical expenses and Rs.10,000/- under the head of healthy diet, attendant and transportation charges.

On reappreciation of the evidence on record and considering the fact that the appellant had to undergo excessive treatment for almost 4 months which is duly considered while assessing the

compensation under the head of actual loss of income for 4 months, the Tribunal has awarded a meager amount under the head of pain, shock and suffering. Considering the degree of injuries which is received by the appellant and the agony which the appellant had to undergo for a long period, the Tribunal ought to have awarded at least Rs.50,000/- under the head of pain, shock and suffering. In light of the aforesaid conclusion arrived at by this Court, the appellant would be entitled to the total compensation as under:- Future loss of income Rs.2,96,400/-

Actual loss of income Rs.48,000/-

Pain, shock and suffering Rs.50,000/-

Medical expenses Rs.8,721/-

Healthy diet, attendant and transportation Rs.10,000/-

Gross Total Rs.4,13,121/-

Less (30% negligency) Rs.1,23,936/-

Total Rs.2,89,185/-

The Tribunal has awarded a sum of Rs.2,63,185/- and therefore, the appellant would be entitled to an additional amount of Rs.26,000/-.

Accordingly, the appeal is partly allowed to the aforesaid extent. The insurance Company is directed to deposit additional amount of Rs.26,000/- along with 9% proportionate costs and interest within a period of 8 weeks.

However, in the facts of the case, there shall be no order as to costs.

At the end, Mr. Amin has submitted that through oversight, 100% Court fee has been paid by the appellant, instead of 50%. Registry is directed to examine the same and if it is found that any excess Court fee is paid by the appellant, the same may be refunded in accordance with law.