FA/4703/1999 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4703 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KARSANBHAI MERABHAI AAYAR - Appellant(s) Versus VERSHI KHIMA HARIJAN & 2 - Defendant(s) ========================================================= Appearance : MR MEHUL S SHAH for Appellant(s) : 1,MR SURESH M SHAH for Appellant(s) : 1, DELETED for Defendant(s) : 1, NOTICE SERVED for Defendant(s) : 2 - 3. MR VASANT S SHAH for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/01/2008 ORAL JUDGMENT 1.0 This appeal is directed against the common judgment and award dated 06.05.1999 passed by the Motor FA/4703/1999 2/9 JUDGMENT Accident Claims Tribunal, Morvi [for short, “the Tribunal”] in Claim Petition Nos. 230/1989 and 5/1989 whereby, in the Claim Petition preferred by the appellant herein, i.e. Claim Petition No. 5 of 1989, the Tribunal has awarded an amount of Rs.3000/- along with proportionate costs and interest thereon @ 12% per annum from the date of the application. 2.0 The brief facts of the case are as under; 2.1 On 06.11.1988 while deceased – Bavla Juma Sodha was travelling in a Truck bearing Registration No. GTY – 4990 driven by Karsanbhai Merabhai Aayar, the appellant herein, it met with an accident with a Truck bearing Registration No. GQY – 4864 on the Morbi – Ahmedabad Highway. In the said accident, said Bavla Juma Sodha died on the spot and the driver – Karsanbhai Merabhai Aayar suffered severe bodily injuries. 2.2 The legal heirs of the deceased as also the driver of the Truck bearing Registration No. GTY – 4990, the appellant herein, filed claim petitions before the Tribunal. It FA/4703/1999 3/9 JUDGMENT was contented that the deceased was serving as a Cleaner in the said Truck and was earning Rs.1350/- per month towards salary and Rs.25/- per day towards allowance. So far as the petition filed by the appellant was concerned, it was contented that at the time of the accident, he was earning Rs.1500/- per month towards salary and that on account of the accident, which had been caused by the sole negligence of the driver of Truck No. GQY – 4864, he had sustained multiple injuries and had remained bed-ridden for a considerable long period of time. 2.3 After hearing learned counsel for both the sides, the Tribunal partly allowed the claim petitions whereby, an amount of Rs.2,31,000/- was awarded in Claim Petition No. 230/1989 with proportionate costs and interest and an amount of Rs.3,000/- was awarded in Claim Petition No. 5/1989 with proportionate costs and interest. The opponents in both the claim petitions were jointly and severally held liable to pay the said amount. 2.4 Being aggrieved by the said amount of FA/4703/1999 4/9 JUDGMENT compensation awarded by the Tribunal, the claimant in Claim Petition No. 5/1989 has approached this Court for enhancement of the amount of compensation as awarded by the Tribunal. 3.0 Heard learned counsel for the respective parties and perused the documents on record. The Tribunal has awarded a lump-sum amount of Rs. 3,000/- along with proportionate costs and interests as compensation to the appellant. It is required to be noted that the said amount has been awarded only towards the expenses incurred by the appellant for the treatment taken by him for the injuries sustained in the accident. 4.0 It is a matter of record that the appellant had sustained permanent functional disability on account of the said accident, which is evident from the document at Exhibit – 45. Before the Tribunal, the Opponents had admitted the said disability to the extent of 10 per cent also, which was agreed by the appellant. However, the same was not accepted by the Tribunal on the ground that though the FA/4703/1999 5/9 JUDGMENT appellant had taken initial treatment from Government Hospital, Morvi he had not produced a Certificate to that effect. 5.0 In my opinion, when a documentary evidence was produced on record vide Exhibit – 45 showing the extent of disability sustained by the appellant as a result of the accident in question, of which a certain part was admitted by the other side also, then the Tribunal ought not to have completely ignored the said fact merely on the ground of non-production of a Government Certificate. The Tribunal ought to have awarded compensation under the said head also, more particularly, when both the sides had agreed on a certain percentage of disability before it. 6.0 The appellant has claimed his monthly income to be Rs.1500/- at the time when the accident in question took place. However, as discussed herein above, the Tribunal has not taken into consideration this aspect as no compensation has been awarded under the head of future loss of income. In my opinion, when it has come on record that the FA/4703/1999 6/9 JUDGMENT appellant has suffered certain percentage of disability on account of the accident in question, the Tribunal ought to have awarded compensation under the head of future loss of income. After considering the entire evidence on record, the Tribunal has assessed the total monthly income of the deceased at Rs.1,500/-. Looking to the evidence available on record, I have no hesitation in coming to the conclusion that the appellant herein was also earning an amount of Rs.1,500/- per month at the time when the accident in question took place in view of the fact that the appellant was serving as a Driver. Accordingly, I assess the monthly income of the appellant to be Rs.1,500/- at the time of the incident in question. 7.0 For deciding the amount of compensation, it would be relevant to refer to a Full Bench decision of the Apex Court in the case of U.P. State Road Transport Corporation & ors. v. Trilok Chandra & ors. reported in 1996 (4) S.C.C. pg. 362 [1996(3) G.L.R. pg. 136]. In that decision the Court has reiterated the method of working out FA/4703/1999 7/9 JUDGMENT as to what would be a 'just' compensation. We shall follow the method laid down in the said decision to compute the future loss of income in this case. 8.0 In the case on hand, as discussed herein above, the monthly income of the appellant is Rs.1,500/-. As per the principle laid down in U.P. State Road Transport Corporation's case (supra), the average monthly income of the appellant shall be Rs.2,250/- ([Rs. 3000 + Rs. 1500 = Rs. 4500] & [Rs. 4500 / 2 = Rs. 2250]). Now, since the appellant has suffered 10 per cent disability, which, in my opinion is just and proper and has also been accepted by both the sides, the monthly loss of income would come to Rs.225/-, i.e. Rs. 2,700/- per year. The appellant was aged 30 years at the time of the incident and, therefore, a multiplier of 15 would be just and reasonable. Accordingly, the appellant shall be entitled for an amount of Rs. 40,500/- (Rs. 2700 X 15). Thus, the appellant shall be entitled for an amount of Rs.40,500/- under the head of future loss of income. FA/4703/1999 8/9 JUDGMENT 9.0 It is a matter of record that the appellant was hospitalized for a period of eight days. Therefore, in my opinion, if an amount of Rs.5,000/- is awarded under the head of pain, shock and suffering, the same shall be just and reasonable. An amount of Rs.7,000/- could be awarded for the medical expenses incurred by the appellant. Thus, the appellant shall be entitled for an additional amount of Rs.52,500/- [40,500 + 5000 + 7000]. 10.0 On the question of contributory negligence, I am in complete agreement with the findings arrived at by the Tribunal in Para – 7 of the impugned award. The Tribunal has rightly held the negligence of both the sides at 50 : 50 as it gets ample support from the 'panchnama' of the place of incident Hence, I find no reason to interfere with the same. Keeping in mind the 50% contributory negligence of the appellant, the appellant shall be entitled for an amount of Rs.26,225/-. However, since the claim is for Rs.25,000/- only, the appellant shall be entitled to get an additional FA/4703/1999 9/9 JUDGMENT amount of Rs.22,000/- as the Tribunal has awarded an amount of Rs.3,000/-. 11.0 In the premises aforesaid, the Appeal is partly allowed. The impugned award of the Tribunal is modified to the extent that the appellant shall be entitled for an additional amount of Rs. 22,000/- (Rupees Twenty two thousand only) along with interest @ 8 per cent per annum from the date of the application till its realization. With the above modification, the Appeal stands disposed of. No order as to costs. (K. S. JHAVERI, J.) Pravin/*