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Judgment
Kaushal Jayendra Thaker, J.—By way of this appeal the appellant has challenged judgment and award dated 15.5.2009 passed by the Motor Accident Claims Tribunal, Kutch at Bhuj, in M.A.C.P. No. 597 of 1996 whereby the Tribunal has awarded Rs. 1,64,850 with interest at the rate 9% p.a. and proportionate costs to the applicant to be paid by Opponent Nos. 1 to 3. Brief facts of the case are as follows:
On 8.5.1996 the appellant Dhanjibhai Sendhabhi Vankar was walking on Kandla-Ahmedabad Road near Village Vongh. At about 4.30 a.m., Rameshbhai Lavjibhai Thakore, Opponent No. 1 was driving his tanker bearing No. GJ-8-U-1050 rashly and negligently and dashed with the appellant. Out of this accident, the appellant got multiple injuries and was being treated as indoor patient in different hospitals. The appellant was doing labour work but because of this accident he became unfit for doing such work. Hence, the appellant has preferred M.A.C.P. No. 597 of 1996 Motor Accident Claims Tribunal, Kutch at Bhuj for getting compensation of Rs. 5,00,000.
In order to prove the aforesaid charge, the Tribunal examined following documents:
The Tribunal vide its order dated 15.5.2009 has awarded Rs. 1,64,850 with interest at the rate 9% p.a. and proportionate costs to the applicant to be paid by Opponent Nos. 1 to 3. Being aggrieved by the said order present appeal has been preferred for enhancement of compensation.
The Tribunal had framed following issues vide Exh. 28:
Whether the applications prove that he/she sustained grievous injuries due to rash and or negligent driving of the driver of the vehicle involved in the accident?
As far as negligence is concerned neither the owner nor the Insurance Company has filed any appeal and therefore the said issue attains finality and is not discussed.
Whether the applicant is entitled to claim compensation if yes, what amount and from whom?
This issue can be divided into the following points on which this appeal is required to be decided.
What order?
The Tribunal, while deciding the case of the appellant has considered the following judgments:
In case of The Krishna Bus Service Ltd. Vs. Smt. Mangli and Others, .
In case of N.K.V. Brothers Pvt. Ltd. v. M. Karumai Ammal and Ors., reported in 1980 ACJ page No. 435 (Supreme Court).
In case of Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, .
In case of Nasimbanu Vs. Ramjibhai Bachubhai Ahir, .
In case of New India Assurance Co. Ltd. Vs. Babubhai Dipubhai Chauhan and Others, .
Shobhan Singh and Another Vs. New India Assurance Co. Ltd. and Another, .
Laxmi Devi and Others Vs. Mohammad Tabbar and Another, .
Mohanbhai Gemabhai Vs. Balubhai Savjibhai and Others, .
Mahendrakumar Manilal Patel and Another Vs. Ramjibhai Dalsibhai Chaudhari and Others, and Mahendrakumar Manilal Patel and Another Vs. Ramjibhai Dalsibhai Chaudhari and Others, .
Bharat Premjibhai Vs. Municipal Corporation, Ahmedabad and Another, .
Gujarat State Road Transport Corporation Vs. Suryakantaben D. Acharya and Others, .
Nesamony Transport Corporation Limited Vs. Chenthilathiapan and Another, .
Miss Ragani Vs. Shri Raju and Others, .
Gujarat State Road Transport Corporation Vs. Balusinh Nathusinh Parmar and Another, .
Ramanbhai Kalidas Darji v. Babusing Thakore, reported in 2000 (2) GLH (U.J.) 7.
Oriental Insurance Co. Ltd. v. Savthanji Khadaji Thakore and Ors., reported in I (2008) ACC 477 (Guj.).
Nagappa Vs. Gurudayal Singh and Others, .
Dr K.R. Tandon (Mrs) Vs. Om Prakash and Another,
1999 ACJ 1299 (Supreme Court) (para 3)
1994 ACJ 260 (Guj.) para 19
Hemant Krishnanath Wadke Vs. Patheja Forging and Auto Parts Manufacturing Co. Pvt. Ltd. and Others, : Hemant Krishnanath Wadke Vs. Patheja Forging and Auto Parts Manufacturing Co. Pvt. Ltd. and Others,
2004 (3) GLR 2688.
National Insurance Co. Ltd. Vs. Prembai Patel and Others, .
IV (2006) ACC 695 (SC) : VIII (2006) SLT 385 : 2006 ACJ 854.
Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, .
Counsel for the appellant submitted that at the time of accident the claimant-appellant was aged about 25 years. Counsel further submitted that the multiplier applied by the Labour Court is on the lower side and it can never be less than 20. The income of the appellant calculated by the Tribunal is Rs. 1,560 per month suggesting that the same would be Rs. 2,100 per month.
He further submitted that the Tribunal has not considered prospective income. He requested to grant prospective income of Rs. 3,200 p.m., Rs. 1,50,000 towards medical expenses and Rs. 10,000 towards transportation charges. Learned Counsel for the appellant had requested to grant, total amount of compensation of Rs. 95,000 with interest at the rate of 12% p.a. from the date of application till realization.
Heard learned Counsel for the parties. Points on which this appeal is required to be decided:
(1) Whether the multiplier is on the lower side?
(2) Whether the disability considered by the Tribunal is on the lower side?
(3) Whether the Tribunal has fallen in error in not considering the functional disability of the appellant?
(4) Whether the prospective income has to be considered in light of the latest decisions reported in case of Sanjay Verma Vs. Haryana Roadways, ; in case of N. Manjegowda Vs. The Manager, the United India Insurance Co. Ltd., ; in case of Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, .
It is submitted by learned Advocate for the appellant that though the appellant was hospitalized for one month in hospital, the Tribunal has awarded only Rs. 20,000 under the head of shock and suffering when there is 45% of disability. As against this, going through the facts, it is clear that the Tribunal has fallen in error in holding that there is an amputation. Fortunately the amputation is not there but there is compound fracture of left hand resulting into severely restricted movements. The accident had occurred in the year 1996. At that time the appellant was doing labour work. According to this Court income of the appellant has been rightly considered to be Rs. 1,560. Hence, no interference is called for. The Tribunal then adopted multiplier of 15 and granted Rs. 1,22,850 under the head of future economic loss. As the appellant was aged 25 years on the date of the accident, multiplier of 15 is on the lower side. In view of the decision of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , multiplier of 18 for the person in the age group of 21 to 25 is proper. Hence, additional multiplier of 3 under the head of future loss of income will have to be granted. Hence, monthly loss of Rs. 682.50 x 12 x 3 : 24,570 under this head is awarded.
The other aspect namely disability decided by the Tribunal is on the lower side. The disability has been considered by the Tribunal on evidence produced an devaluated. It has been rightly submitted by Ms. Rahevar that the certificate, on which the Tribunal has passed its award is of the year 2008. Therefore, as per the principles enunciated in those days once the Doctor gives permanent disability it is halved for particular part and that has been done by the Tribunal and therefore that issue is answered.
The main count on which he would be entitled to additional amount is his functional disability. He has been functionally rendered invalid as far as his left hand is concerned and for the labourer that is the maximum and therefore the said is allowed further under the head of being asked as far as also he would be entitled to a sum of Rs. 40,000 more looking to his young age looking to the trauma under which he has undergone. He had to go from one hospital to other for treatment. Therefore in the final analysis the appellant would be entitled in additional amount of Rs. 72,900.
This takes this Court to the third aspect namely functional disability of applicant. The issue of functional disability is answered in favour of applicant and therefore in answer to point No. 4 his prospective income has to be considered.
Therefore, additional amount of Rs. 25,000 for medical expenses would be just and proper in view of the decision of the Apex Court in case of Syed Sadiq Etc. v. Divisional Manager, United India Ins. Co (supra).
Details of Treatment:
He was initially treated at Govt. Hospital, Bhachau.
Thereafter he was treated at G.K. General Hospital, Bhuj then he was treated in various Hospital at Ahmedabad.
Analgesic/Anti inflammatory drugs were given.
I.V. Fluids were given.
BB + CA debridment at wound done.
Fixation done with K wire.
Followed by post splant and K wire.
He was treated as an indoor patient from 8.5.1996 to 9.6.1996 in GK General Hospital, Bhuj.
Thereafter he was treated at Civil Hospital, Ahmedabad as an indoor patient.
Then later on he was treated by Dr. P.P. Thacker (who has initially treated Iiim in G.K.G.H. Bhuj) at Deesa, G.K. General Hospital, Bhuj.
Sterling Hospital, Ahmedabad, Dr. Kirit Patel, Mahesana, Dr. Kirit Gurjar, Mahesana, Dr. Dhaval Bhatiya, Viramgam, Dr. Pragnesh Patel, Patan.
He was also treated by Dr. H.M. Hadiya on O.P.D. basis.
The decision of the Apex Court in case of Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, , would ensure for the benefit of the present appellant, and an addition of 50% in increase of his amount will have to be granted. Therefore as per round figure of [1500 x 50% : 750 x 45% : 3375 x 12 : 4050 x 18 : 72,900] Rs. 72,900 would be an additional amount to be given to the appellant. This takes this Court to the amount of pain, shock and suffering. According to this Court, in the year 1996 the said figure was just and proper and does not call for any interference.
Thus, as discussed above the applicant is entitled to get the following compensation:
It goes without saying that rate of interest would be 7.5% on additional amount from date of filing of main claim petition. In the result, this appeal is partly allowed. The applicant entitled to Rs. 1,63,000 with interest at the rate of 7.5% on additional amount from date of filing of main claim petition. R & P to be transmitted forthwith. The amount to be paid within four weeks from the copy of receipt of this order.