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Judgment
Honourable The Acting Chief Justice Mr. Bhaskar Bhattacharya
This appeal under the old Motor Vehicles Act of 1939 is at the instance of the insurance company and is directed against an award dated 26th April 1990 passed by the Motor Accident Claims Tribunal (Aux.), Junagadh in MAC Petition No.350 of 1985 thereby disposing of application u/s 110A of the Motor Vehicles Act, 1939 by awarding a compensation of Rs.97,000/-in favour of the applicant for the injury suffered by him in the accident.
Being dissatisfied, the insurance company has come up with the present appeal. At the same time, the claimant has also filed cross objection for enhancement of the said amount. Both the matters are taken up together.
Therefore, the only question that arises for determination in this appeal is whether in the facts of the present case, the Tribunal was justified in awarding a sum of Rs.97,000/- as compensation.
It appears from the record that on 3rd August 1984 the claimant was driving an ST bus as a driver when the same met with a "head-on-collision" with a truck coming from the opposite direction bearing No.GTW-3856. According to the claimant, due to rash and negligent driving on the part of the driver of the said truck, the accident occurred.
There is no dispute that the victim was in service of Gujarat State Road Transport Corporation and due to accident he was treated in different hospitals and according to the Doctor, his disability should be assessed at 50%. There is, however, no dispute that for the accident although the claimant could not attend the office for about one year, he did not lose his job and was still in service as a driver and has also admitted in his cross-examination that for that absence due to accident he did not suffer any financial loss towards salary. The appellant was aged 45 years at the time of accident.
The learned Tribunal below on consideration of the materials on record came to the conclusion that the monthly pay of the applicant at the time of accident was Rs.914.45ps. and thus it should be treated to be a round figure of Rs.900/-a month. According to the Tribunal, the applicant having sustained disability to the extent of 50%, the monthly loss of future income of the applicant should be Rs.450/-and yearly loss should be Rs.5400/-and as at the time of accident, the applicant was 45 years old so multiplier of 10 should be applied and by taking aid of multiplier of 10, the amount was assessed at Rs.54,000/- towards loss of future income. In addition to the aforesaid amount, the Tribunal below also added
(a)
Rs.10,800/
for actual loss of income at the rate of Rs.900/- a month for one year
(b)
Rs. 5,000/-
For medical treatment, nutritious food etc.
(c)
Rs. 4,000/-
For transportation charges
(d)
Rs. 5,000/-
For attendant charges
(e)
Rs.18,200/-
For mental pain and sufferings
Rs.97,000/-
Total
Ms Bhaya, learned counsel appearing on behalf of the insurance company has strenuously contended before me that the finding of the Tribunal that the income of the claimant was Rs.914.45ps. a month was based on total misreading of the exhibits on record. By referring to the salary certificate which is mark 17/12, she points out that actual gross salary was Rs.701/-. Ms Bhaya contends that, therefore, the aforesaid finding should be set aside for misreading of the materials on record.
Ms Bhaya next contends that the claimant in his cross-examination having admitted that for the accident there was no loss of salary, there was no justification of awarding amount of one year''s income as actual loss of income and that too at the rate of Rs.900/-a month. Ms Bhaya, therefore, prays for deletion of the said amount of Rs.10,800/-from the amount of compensation.
Apart from the aforesaid fact, Ms Bhaya further contends that assessment of Rs.54,000/-on the basis of monthly income of Rs.900/-on the basis of multiplier of 10 was uncalled for in view of the fact that the claimant did not suffer any financial loss from the only source of income of the claimant and, therefore, the said amount should also be deducted.
Ms Bhaya lastly made a desperate attempt to convince me that there was no negligence on the part of the driver of the truck and that it was due to contributory negligence on the part of the claimant that the accident occurred.
However, after going through the materials on record, I find that the Tribunal has taken note of the fact that the driver of the offending truck did not come forward to depose and to face cross-examination at the instance of the claimant. In the fact of the present case, whether the accident occurred due to the negligence of the driver of the truck can be best answered by the driver of the truck himself and he having avoided the witness-box, in my opinion, the Tribunal was quite justified in taking adverse presumption against such truck driver when the other driver, namely, the claimant has asserted that there was no contributory negligence on his part. I, therefore, find no substance in the contention of Ms Bhaya that there was any contributory negligence on the part of the claimant.
Mr Kakkad, learned advocate appearing on behalf of the claimant/respondent, on the other hand, has pressed before me Exh.41 a subsequent certificate dated 5th April 1990 issued by the employer indicating that at the relevant point of time of accident his salary was Rs.914/-
Mr Kakkad, therefore, contends that the finding of the Tribunal was quite justified as regards the amount of salary.
In my view, if the actual salary-sheet for the relevant period has been marked exhibited disclosing that the actual amount of salary payable to the claimant for the relevant period was Rs.701/-a month, subsequent certificate given by the employer showing additional income of Rs.200/-cannot be taken into consideration being in conflict with their own document which is also marked as exhibit.
Be that as it may, in my opinion, in the present case, the amount of salary at the relevant period has lost its significance once the claimant has admitted in his evidence that for the accident although he was treated for more than one year, he did not suffer any loss towards his salary from the employer.
Therefore, I find substance in the contention of Ms Bhaya that the Tribunal below had no justification of awarding compensation of Rs.10,800/-on the basis of one year''s salary when he was not deprived of any amount of salary for the accident. Similarly, award of Rs.54,000/-for future loss of income on the basis of monthly income by treating disability to the extent of 50% with application of multiplier 10 cannot be supported when actually there was no loss of future income and the appellant was all along in service without any reduction of salary.
I, therefore, find that in the facts of the present case, out of the total amount of Rs.97,000/-, amount of Rs.54,000/-and a further amount of Rs.10,800/-indicated above should be deducted. Thus, the compensation should be assessed at Rs.32,200/-.
As regards the cross objection filed by the claimant, in view of my finding recorded above, there is no scope of enhancement of any amount of compensation and, thus, I find no merit in the cross objection.
In the result, the appeal is allowed to the extent indicated above and the cross objection is dismissed.
The Tribunal below is directed to release a sum of Rs.32,200/-with interest at the rate of 12% per annum from the date of filing of the claim petition till 31st December 1999 and at the rate of 6% per annum from 1st January 2000 till the date of release of the aforesaid amount and the balance amount accumulated in the deposit amount by the insurance company should be refunded. If any amount has been withdrawn by the claimant by virtue of any interim order passed by this Court, the same should also be deducted.
Both the appeal and cross objection are thus disposed of. No order as to costs.