FA/5420/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 5420 of 2007 With CIVIL APPLICATION No. 15465 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ========================================================= 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 ? 1 to 5 : NO ========================================================= NEW INDIA ASSURANCE CO. LTD. - Appellant(s) Versus GAUTAMBHAI CHANDUBHAI PATEL & 4 - Defendant(s) ========================================================= Appearance : MR SANDIP C SHAH for Appellant(s) : 1, MR MTM HAKIM for Defendant(s) : 1, None for Defendant(s) : 2 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 10/04/2008 ORAL JUDGMENT 1. The appellant has called into question the award dated 31.01.2007 of Motor Accident Claims Tribunal (Aux.), Junagadh, in Motor Accident Claim Petition No.124 of 1993 only for FA/5420/2007 2/5 JUDGMENT reducing the amount of compensation to the extent of Rs.1,50,000/-. Since learned counsel for the claimant has appeared, no other party is affected and learned counsel on both sides have requested to finally dispose the appeal, it is admitted and partly allowed in the following terms. 2. According to the submission of the appellant, the claim of monthly income of the claimant, who had admittedly suffered permanent partial disability to the extent of 40%, was highly exaggerated insofar as he had claimed to be earning Rs.15,000/- per month in his deposition (Ex.137) and filed income tax returns showing income of Rs.18,580/- in the year 1991- 92, Rs.87,990/- in the year 1992-93 and Rs.91,370/- in the year 1993-94 (Ex.50). It was further submitted by learned counsel Mr.Shah that, even as the accident and serious injuries to the claimant had occurred on 17.9.1992, subsequent rise in his income falsified the claim of loss of earning or loss of earning capacity, but that issue was not raised in view of the agreed physical disability to the extent of 40%. It was, however, submitted that the Tribunal had erred in assessing and assuming the income of the claimant to be Rs.5,000/- per month and adding thereto supervision charge of Rs.1,500/- per FA/5420/2007 3/5 JUDGMENT month for his agricultural lands, taking the multiplicand at Rs.6,500/- per month. He submitted that average income of the claimant ought to have been taken to be around Rs.3,000/- in view of the nature of business carried on by the claimant. 3. Learned counsel Mr.MTM Hakim, appearing for original claimant, vehemently argued that the Tribunal had, in the impugned award, already discarded the claim of higher income and, having regard to the established business and age of the claimant, rightly assumed his income to be not less than Rs.5,000/- per month. There also was documentary evidence of the claimant having agricultural lands which would necessarily require supervision by the claimant and would yield agricultural income which could not be reflected in income tax returns. He further submitted that, despite conclusive evidence of prolonged treatment and multiple injuries, the Tribunal had awarded only Rs.15,000/- for pain, shock and suffering which amount was required to be increased at least three-fold for the purpose of arriving at the just amount of compensation. 4. Having heard learned counsel on the above limited issue of assessment of income of the FA/5420/2007 4/5 JUDGMENT claimant and having gone through the relevant evidence produced by learned counsel, it clearly appears that income of the claimant had jumped five-fold in the year of the accident and continued at the higher level just for one year. Therefore, it is difficult to take the higher income as the basis for calculating the average monthly income of the claimant. Having regard to the previous lower level of income of Rs.18,580/- in the year 1991-92 and subsequent rise, it may be appropriate to assume yearly income of the claimant at the mean level of approximately Rs.50,000/- per year, particularly in absence of any specific evidence of income from agriculture. Considering the disability of 40% and applying multiplier of 12 in consonance with the Second Schedule prescribed under Section 163-A of the Motor Vehicles Act, 1988, final figure of Rs.2,40,000/- is required to be substituted for Rs.3,12,000/- awarded towards future loss of income. On the other hand, the sum of Rs.15,000/- awarded towards pain, shock and suffering is required to be increased to Rs.45,000/- in view of multiple fractures and injuries as also prolonged and painful treatment suffered by the claimant. Therefore, total sum of compensation of Rs.3,80,000/- awarded by the Tribunal in the impugned award shall stand reduced to Rs.3,38,000/-. The award shall stand modified FA/5420/2007 5/5 JUDGMENT accordingly with the clarification that other conditions and directions shall remain intact. Appeal is accordingly partly allowed with no order as to costs. The amount deposited by the appellant with this Court for the purpose of appeal and the sum of Rs.10,000/- deposited pursuant to the earlier order in Civil Application No.14889 of 2007 shall be transmitted to the Tribunal as part payment towards liability of the appellant. Civil Application would not survive and stands disposed as rejected. Sd/- ( D.H.Waghela, J.) (KMG Thilake)