Gujarat High Court Case Information System Print FA/1806/2012 4/ 4 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1806 of 2012 [PRECEDENT] Appearance : Mr. [ENTITY] for MR [ENTITY] for Appellant MR [ENTITY] for respondent No.3 CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 26/06/2012 ORAL ORDER
1 This appeal under [SECTION] of the [ACT], arises out of the judgment and award dated 13.7.2007 passed by the Motor Accident Claims Tribunal (Aux.), Fast Track Court No.11, Vadodara, in [CASE NUMBER].
2 The short facts on the basis of which the claim petition and the appeal are filed, are as under:
3 On 29.2.1996, the truck No. GTT 7980 owned by respondent No.2 met with an accident near Dhumali village, Bodali Chotta Udepur. It is the case of the claimant that the truck was driven by respondent No.1 rashly and negligently and it was the sole cause of the accident. The appellant-claimant, who was working as cleaner with the truck, received various injuries, but the major one was on right hand of fracture of radius bone and was operated at the S.S.G. Hospital, Vadodara. Initially, movement was restricted to 10 to 20 degree and, as per the medical certificate, partial disability of right hand was assessed as 40% body as a whole and the Orthopaedic Surgeon, who was examined, had confirmed that the said certificate was issued by him, but denied having given any medical treatment to the injured. It was found that functionally he has become disabled and was, therefore, not fit to discharge duties or to perform the work as cleaner or any such hard work. Thus, the Tribunal assessed permanent disability to the tune of 40% and, in absence of any dispute about the monthly income, which was Rs.1650/-, considering the disability of 40%, applying multiplier 17 to the claimant aged 20 years, the Tribunal assessed [Rs.660x12 = Rs.7920 x 17] Rs.1,34,645/- towards future loss of income. Upon consideration of nature of injury and other aspects, the Tribunal awarded Rs.20,000/- under the head of pain, shock and suffering; Rs.5000/- towards medical expenses; Rs.5000/-
towards special diet and transportation; and Rs.6600/- towards actual loss of income.
4 In this appeal, the above award is under challenge mainly on the ground that the Tribunal has erred in not appreciating the evidence on record. It is submitted that the appellant-claimant had suffered 100% functional disability looking to the nature of injuries sustained by him and, being unskilled labour, he was unable to pursue strenuous work requiring full body integrity. It is also submitted that the appellant had undergone seven operations during the course of medical treatment and, considering the restricted movement of right hand wrist by 10% to 20% and the fracture of radius bone, which was not joined properly, the appellant is entitled to receive more amount under the head of future loss of income. Reliance is placed on the decision of the Apex Court in the case of [PRECEDENT]. In support the contention that the Tribunal has failed to award a just compensation, the learned counsel for the appellant has placed reliance on the decision of the Apex Court in the case of [PRECEDENT] and submitted that, in the above case, the physical disability resulting from an accident was to the tune of 90% and the amount of award was enhanced after considering the facts and circumstances of the case. Lastly, it is submitted that even applicability of multiplier of 17 was contrary to the decision of the Apex Court in the case of [PRECEDENT], and the Tribunal ought to have applied multiplier of 18 and, therefore, the award impugned deserves to be modified and the amount may be enhanced as prayed for.
5 Learned counsel for the Insurance Company would submit that the permanent partial disability was assessed to the tune of 40% as per the medical certificate. That, the Orthopaedic Surgeon, who has deposed, was not the surgeon who had given any treatment to the claimant. That, applicability of 17 multiplier is in consonance with the decision of the Apex Court prevailing in the year 2007 and a just compensation is awarded with interest at the rate of 9% and no interference is called for in this appeal.
6 Upon consideration of overall facts and circumstances of the case, submission of the learned counsel appearing for the parties and on perusal of the record, it is not in dispute that the evidence is, rightly, appreciated by the Tribunal about employment of the claimant as a cleaner with the truck owner insured with the Insurance Company, respondent No.3 herein and no evidence, contrary thereto, was brought on record by the Insurance Company. At the same time, the medical certificate reveals the disability of the claimant to the extent of 40% qua the right hand injured, operated and not properly joined, but, nothing was brought on record to show 100% disability of the total body. It is true that the claimant was aged about 20 years and multiplier could be applied of 18 instead of 17 and, to the above extent, the future loss of income is required to be assessed and enhanced. Monthly income of the appellant was Rs.1650/-, with 40% disability, it would come to Rs.660/- and, multiplied by 12, annual income would come to Rs.7920/- and, applying 18 multiplier, the future loss of income is assessed at Rs.1,42,560/-. The Tribunal has already awarded Rs.1,34,645/- under the head of future loss of income. Hence, additional compensation of Rs.7915/- under the head of future loss of income is awarded with 9% interest and proportionate cost to the claimants.
The appeal is partly allowed. The judgment and award dated 13.7.2007 passed by the Motor Accident Claims Tribunal (Aux.), Fast Track Court No.11, Vadodara, in [CASE NUMBER] is modified to the aforesaid extent.
([ENTITY], J.) (swamy)