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Judgment
Mr. A.S. Supehia, J.—Present appeal is directed against the judgment and award dated 31.03.2010 passed by Motor Accident Claim Tribunal (Aux.), Jamnagar, (''the Tribunal'' for short) in Motor Accident Claim Petition No. 232 of 2007 awarding compensation of Rs. 3,50,500/- to the appellant from the date of application i.e. 02.04.2007 with 9% interest p.a. till realisation of the compensation amount.
Short facts of the case appear to be that on 17.09.2006, in afternoon, the appellant was returning, after taking a bath, from River Lavni. When he was on his way, respondent No. 1 driver of the truck, bearing Reg. No. GJ-18-T-1472 while driving rashly and negligently at Rajkot Jamnagar Road, dashed with the appellant. The appellant received extensive injuries due to the said accident and during the treatment, his left leg was amputated and he suffered multiple fractures in his pelvic area. He filed MACP No. 232/07 before the Tribunal claiming compensation of Rs. 20,75,000/-.
The Tribunal, after examining the entire record and medical condition of the appellant, awarded compensation of Rs. 3,50,500/- with 9% interest as aforesaid. Different heads, under which the Tribunal awarded the amount are stated as below:
Heads
Amount (in Rs.)
Loss of Annual income
13,500=00
Pain, shock and sufferings
1,00,000=00
Special diet, medicines, attendant, etc.
7,500=00
Future loss of income
2,29,500=00
Total � � �
3,50,500=00
Learned advocate for the appellant original claimant has challenged the aforesaid award on the ground that the Tribunal has failed to consider the masonry income of Rs. 6,000/- of the appellant and has erred in concluding that the appellant was earning Rs. 2,250/- month. He has further contended that the Tribunal has erred in arriving at a conclusion that the appellant has suffered 50% of injury. He has relied upon the judgment rendered by the Apex Court in the case of Sarla Varma & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 S.C.C. 121.
Mr. Anal Shah, learned counsel appearing on behalf of respondent No.3 Insurance Company, has supported the award passed by the Tribunal.
We have perused the award passed by the Tribunal. We have also considered the medical evidence. At this stage it would be appropriate to refer to the deposition given by Medical practitioner, Khimjibhai Hirabhai Sojitra (Exh.29). In his deposition he has stated that the appellant had suffered grievous injuries on his left leg and at the pelvic area and due to the said injuries left leg of the appellant was amputated. A medical certificate with respect to 50% permanent disability was also issued. It was the case of the appellant original claimant before the Tribunal that one of his testicles was also removed due to the injuries in his pelvic area.
A comparison chart for quantum of compensation is produced by the learned counsel appearing on behalf of respondent No. 3 Insurance Company, which is reproduced as under:
Compensation
As per Award under Challenge
Relevant page of award
As per submission of Resp-Ins. Co.
Relevant page of cited judgment
(A)
Future Loss of Income
1.
Monthly Income
Rs. 2,250/- p.m
Para 13 Page 10
Rs. 3,000/- p.m.
2.
Prospective Income
-NIL-
Not considered
Rs. 900/- p.m
Judgment of Guj. HC (DB) in FA/648/09 (Para.7) In absence of evidence of income 30% prospective rise.
3.
Disability/Functional loss of body as a whole
50%
Para 15 Page 11
50.00%
(2011) 12 SCC 488 Kumaresh v. National Ins. (Para 10, 11)
4.
Annual loss of income
Rs. 1,125 (50% of 2250)x12= Rs.13,500
Para 14 Page 20
Rs.1,950 (50% of 3900) x 12 = Rs. 23,400/-
5.
Multiplier
17
Para 12 Page 18
17
Sarla Varma v. Delhi Transport (2009) 6 SCC 121
Total future Loss of income
Rs. 2,29,500/-
Para 22 Page 18
Rs. 3,97,800/-
(B)
Actual loss of income (6 months)
Rs. 13,500/-
Para 22 Page 18
Rs. 18000/-
(Rs. 3,000 x 6)
(C)
Pain, Shock & Suffering
Rs. 1,00,000/-
Para 19 Page 16
Rs. 1,00,000/-
(D)
Special Diet, medicines, attendant etc.
Rs. 7,500/-
Rs. 10,000/-
Total Compensation
Rs. 3,50,500/-
Rs. 5,25,800/-
(E)
Interest
9%
Para 25
9%
Para 2
As per the said chart, the total compensation can be enhanced from Rs. 3,50,500/- to Rs. 5,25,800/-.
Learned advocate appearing for the appellant original claimant has stated that while calculating the said compensation loss of enjoying the marital life is not considered. He has also relied upon judgment of the Apex Court rendered in the case of Kumaresh v. Divisional Manager, National Insurance Company Limited & Anr., (2011) 2 S.C.C. 488.
We may notice that the Tribunal in the award has recorded that the applicant had not produced any certificate from the Specialist certifying that the appellant is unable to enjoy his marital life due to the said injuries. Merely because a Specialist''s certificate is not produced by the appellant certifying about his inability in enjoying the married life, the appellant cannot be denied the compensation towards loss of marital life. In our view to the Tribunal has erred in not granting compensation to the appellant for his inability in enjoying marital life. The Apex Court in the case of Kumaresh (supra) in Paragraph No.12 has awarded compensation of Rs. 3,00,000/- towards loss of amenities and enjoyment of life, including loss of marital prospects. In that case, the appellant was 20 years of age and one of his legs was amputated below the knee and disability was determined as 50%. In the present case, one leg of the appellant was amputated and due to the injuries in the pelvic area one of the testicles was removed and other was shifted to right area.
In the present case the appellant is already married, hence, considering the injuries caused by the appellant and his marital status, we deem it fit that an additional amount of Rs. 60,000/- can be awarded to the appellant towards loss of marital life, as observed by the Apex Court in the case of Kumaresh (supra). Accordingly, we enhance the amount of compensation from Rs. 5,25,800/-, as per the chart produced on behalf of respondent No. 3 Insurance Company, which is reproduced herein above. Further, amount of Rs. 60,000/- is added towards loss of marital life of the appellant i.e. amount of Rs. 5,85,800/- will be awarded as total compensation to the appellant.
So far as the contention of the learned advocate appearing for the appellant original claimant about the enhancement of income Rs. 6,000/- month of the appellant is concerned, the Tribunal has rightly observed that the appellant has not produced any certificate stating that he was doing masonry work also. Father of the appellant was the tea vendor and the appellant was assisting his father in catering tea to the customers. The contention of the appellant that he was doing masonry work is rightly disbelieved by the Tribunal in absence of any evidence to that effect.
Appeal is allowed to the aforesaid extent. Compensation is enhanced accordingly (i.e. Rs. 5,25,800/- plus Rs. 60,000/- = Rs. 5,85,800/-) and interest shall be paid on the enhanced compensation @ 9% p.a. The same shall be paid to the appellant original claimant within a period of six weeks from the date of receipt of this order.
Registry is directed to forthwith return the record and proceedings, if available, to the Tribunal.