FA/539/1986 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 539 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA ====================================== 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 ? ====================================== JASHUBHAI BHIKHABHAI PRAJAPATI Versus R.LAL KRISHAN HAVANAPPA MADRASI, (DELETED) AND OTHERS ====================================== Appearance : MR KG SHETH for Appellant. DELETED for Respondent no.1. NOTICE SERVED for Respondent no.2. MR RR MARSHALL for Respondent no.3. MR GAUTAM S PATEL for Respondent no.3. ====================================== CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 21/02/2008 ORAL JUDGMENT 1. The appellant-original claimant has preferred the appeal under the erstwhile provisions of Section 110-D of Motor Vehicles Act, 1939 for enhancement of compensation awarded by award dated 16th FA/539/1986 2/3 JUDGMENT May 1985 of MACT, Nadiad in his Claim Petition No.90 of 1983. Learned counsel for the appellant urged that the tribunal had erred in reducing liability of the respondents to the extent of 50% by attributing negligence to the driver of the motor cycle on which the appellant was travelling, even as that driver was not even joined as a party. He further submitted that the tribunal ought to have awarded Rs.50,000/- towards shock and suffering and for assessing future loss of income multiplier of 20 ought to have been applied. 2. There was no dispute about the facts that on 31-10-1982, the appellant was travelling as a pillion rider and at a cross section of two roads, the motor cycle had dashed with jeep driven by respondent no.1 from behind. The appellant had suffered injuries resulting into his hospitalization for about a month and removal of one of his eyes, while he was serving as a teacher at monthly salary of Rs.946.20. After examining the evidence and elaborately discussing the circumstances and impact of the driver of the jeep pleading guilty in the criminal Court, the tribunal has come to the correct conclusion that drivers of both the vehicles were guilty of negligence. Therefore, no exception could be made to attributing the liability to both the drivers and apportioning only 50% of the liability to the respondents. As for the claims of compensation under various heads, the appellant had not even claimed Rs.50,000/- towards pain, shock and suffering. However, after an elaborate exercise of examining the claims in light of the facts of the case and relying upon judgment of this Court in Ahmedabad Municipal Corporation v. Niranjan Ambalal Patel (23 GLR 180), tribunal awarded Rs.30,000/- as compensation for non-pecuniary losses and under the head of special damages, transport charges as claimed, attendance charges for attendance by his wife and Rs.900/- for special food etc. are awarded. Rs.1,892/- is awarded towards loss of appellant's FA/539/1986 3/3 JUDGMENT own income during the period of treatment. As for the loss of future earning, there was positive evidence that the wages of the appellant had not been reduced but, in fact, increased after the date of accident and he was found to be unlikely to suffer any loss of future earning. However, in view of possibility of impairment of vision in the second surviving eye, the tribunal assessed Rs.150/- per month as loss of future earning and applying multiplier of 15, Rs.27,000/- was awarded towards loss of earning capacity. Thus, total sum of Rs.60,475/- was held to be the amount to which the appellant would have been entitled. However, in view of apportionment of liability for the accident, the respondents were directed to pay only Rs.30,237/- with interest and cost. 3. Since the assessment of compensation is based upon systematic and sound reasoning and is eminently just and reasonable, there is no justification for any upward revision of the amount of compensation. As for the liability attributed to the driver of the motor cycle, it was clear from the perusal of the record that respondent no.1 had pleaded guilty to the charge of negligence under duress and coercion and, hence, his conviction was rightly not relied upon by the tribunal. The appellant has to suffer the consequences of not joining the driver of the motor cycle as a party respondent and it could have reasonably led to the conclusion of collusion between the appellant and the driver of the motor cycle. 4. In the facts and for the reasons discussed hereinabove, the impugned judgment and award are found and held to be eminently just and reasonable and the appeal is, therefore, dismissed with no order as to costs. (D.H.Waghela, J.) /malek