FA/235/1998 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 235 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= MANHERBHAI G PADWANI - Appellant(s) Versus REHMUDDIN DESAMIYA SAIYAD & 2 - Defendant(s) ========================================================= Appearance : MR NIRAL MEHTA for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1 - 2. MS MEGHA JANI for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 29/08/2006 ORAL JUDGMENT 1. By way of this appeal, the appellant has challenged the judgement and award dated 21.08.97 passed by the Motor Accident Claims Tribunal Aux(III) at Nadiad in MACP No. 607/89 to the extent that the Tribunal awarded a sum of Rs. 41,500/- by way of compensation payable to the original claimant by the original opponents. 2. The original claimant- appellant herein had filed claim petition claiming compensation to the FA/235/1998 2/7 JUDGMENT tune of Rs. 1,00,000/- in respect of the injuries received on account of a vehicular accident which took place on 06.12.88 while the appellant was returning after watching a cinema from Nadiad to Petlad on his scooter bearing no. GBR 5223. At that time, a truck bearing no. GTJ 5424 driven by opponent no.1 in a rash and negligent manner dashed with the scooter driven by the appellant thereby causing serious injuries to him. The claim petition came to be filed under the said circumstance. The Tribunal after hearing the parties passed the aforesaid award. 3. Mr Niral Mehta, learned counsel for the appellant has contended that the Tribunal has materially erred in holding the appellant in respect of contributory negligence to the extent of 30% in absence of any evidence on behalf of the driver. He has further contended that the Tribunal has erred in awarding the future economic loss by considering the income at Rs. 1000/- per month and instead ought to have considered the same at Rs. 1500/- per month. He has also contended that the principle laid down by the Apex Court in the case of “U.P. State Road Transport Corporation and Ors. Vs. Trilok Chandra & Ors.” reported in 1996(3)GLR 136 for calculating the future loss of FA/235/1998 3/7 JUDGMENT income is required to be considered. 3.1 Mr Mehta has further contended that looking to the age of the appellant the multiplier of 15 is on the lower side and the same is required to be corrected and that the Tribunal has materially erred in awarding Rs. 15000/- only towards pain, shock and suffering. Mr Mehta has placed reliance on a decision of this Court in the case of National Insurance Co. v. Sumitraben Kanubhai Chauhan reported in 2006(11) GHJ 552 wherein para 8 reads as under: “We have perused impugned award. We have considered submissions made by Mr. Mehta before us. As regards submission of contributory negligence, claims tribunal has rightly relied upon the evidence of claimant and documentary evidence on record, in absence of the oral evidence of the driver of offending vehicle. Tribunal has rightly considered that the driver of offending vehicle was not examined by the insurance company to controvert the version of the claimants. In view of these observations made by the claims tribunal in para 8 of the award, according to our opinion, there is no question of deciding contributory negligence of deceased for want of evidence on record about contributory negligence of deceased scooterist, for want of examination of driver of offending vehicle. Thus, as there was no material on record which would require examination of the question of contributory negligence of deceased, therefore, tribunal has rightly decided issue no.1 in favour of claimants and in doing so, no error was committed by tribunal.” FA/235/1998 4/7 JUDGMENT 4. Learned counsel for the respondent has supported the award of the Tribunal and has submitted that the Tribunal has gone through the evidence in detail and has passed the award in accordance with law. 5. Heard learned counsel for the parties and gone through the materials placed on record. The Tribunal while discussing the aspect of contributory negligence in para 5 has gone through the panchnama at Ex. 16 and the FIR at Ex. 15 and has observed that the road on which the accident occurred was approx 12 to 14 ft. wide which is sufficient for two vehicles meaning thereby that if either of the driver was careful there was no scope for the accident. The panchnama clearly shows that the accident occurred on the road which is contrary to the say of the appellant. I am in complete agreement with the reasonings adopted and findings arrived at by the Tribunal qua contributory negligence and do not see any reason for interference. 5.1 As far as the case of National Insurance Co. (supra) is concerned, I am of the view that on the facts and circumstances of the present case even if the driver of the offending vehicle was examined he FA/235/1998 5/7 JUDGMENT would have thrown more light on the aspect of the negligence of the claimant as the claimant in the present case was a scooterist who could have given way to the heavy vehicle. But the accident occurred on the road and the fact that the scooter was dragged for approximately 10 ft. on the road clearly points out the negligence on the part of the claimant as well. In view of the above, the aforesaid decision cannot be applied in the present case. Moreover, learned counsel for the appellant is not able to produce any evidence to take a view contrary to the one taken by the Tribunal. 5.2 However, as far as the future economic loss is concerned, I am of the view that the monthly future loss of the appellant is required to be considered in view of the decision of the Apex Court in the case of “U.P. State Road Transport Corporation (supra). The Tribunal has considered the oral and documentary evidence in detail and has assessed the monthly income of the appellant at Rs. 1000/-. Even if the same is considered, the future loss of income in view of the 14% permanent partial disability and the decision of the Apex Court in the case of “U.P. State Road Transport Corporation (supra), as per which the future loss is to be calculated FA/235/1998 6/7 JUDGMENT on the basis of average of double the income, comes to Rs. 1500/- in the present case. Looking to the permanent partial disability of 14%, the per month loss shall come to Rs. 210/- which in turn is Rs. 2,520/- per annum. 5.3 The Tribunal has in the present case applied the multiplier of 15 years which in my opinion is slightly on the lower side looking to the age of the appellant. Hence, the future loss of income shall come to Rs. 42,840/- (Rs. 2520/- x 17). Since the Tribunal has already awarded Rs. 25,200/- and in view of the 30% contributory negligence, an additional amount of Rs.12,348/- (17,640/- * 70%) shall be awarded to the appellant under the head of future loss of income. 5.4 As regards the contention of pain, shock and suffering is concerned, in my opinion looking to the days of hospitalisation, the percentage of disability and the decision of this court, Rs. 15,000/- is just and proper. In that view of the matter, the appellant shall not be entitled for any additional amount under the head of pain, shock and suffering. 6. In the premises aforesaid, appeal is partly allowed. The appellant shall be entitled to an additional amount FA/235/1998 7/7 JUDGMENT of Rs. 12,348/- with running interest at the rate of 6% from the date of application till realisation. The award of the Tribunal is modified accordingly. No order as to costs. (K.S. JHAVERI, J.) Divya//