Both the appeal and the cross-objections filed therein by the respondent were taken up together for hearing.
The appeal has been filed by the owner of the offending vehicle whereas the cross-objections has been filed by the victim.
The appeal is directed against an award dated March 1, 1993 passed by Motor Accident Claims Tribunal (Special) at Porbandor, in M.A.C. Petition No. 47 of 1992, thereby disposing of a claim- application under section 166 of the Motor Vehicles Act by awarding a sum of Rs.97,028-00 as compensation, with interest at the rate of 12% per annum from the date of filing of the claim-application till actual payment.
There is no dispute that the claimant before us was aged 30 years at the time of the accident and he used to do the business of selling coconut grown in the land where he was a co-sharer. While he was driving his scooter, he met with an accident with the offending bus owned by the appellant which was coming from the opposite direction.
The Tribunal below, on consideration of the material on record, came to the conclusion that the width of the road in which the accident had occurred was more than sufficient for two vehicles, and, therefore, there was no just reason for hitting the scooter. In spite of such findings recorded by the Tribunal, ultimately, it came to the conclusion that as the claimant was the driver of the motorcycle involved in the accident, it should be presumed that there was contributory negligence of the victim to the extent of 15% in the accident.
The Tribunal below further on taking into consideration the income of the victim and the age and also taking into consideration the two medical certificates issued by two different Doctors regarding the extent of disablement of the victim, was of the view that the claimant had suffered permanent disability to the extent of 60%.
Thus, by considering the monthly income of the victim to be Rs.800/-, the extent of disability to be 60% and by applying the multiplier of 15, the Tribunal awarded a sum of Rs.86, 400/- under the head of future loss of income. The Tribunal awarded a total amount of Rs.1,14,116-00 as under:
Rs.
86,400-00 Future loss of income Rs.
6,015-00 Medical expenses Rs.
6,931-00 Scooter repairing Rs.
10,000-00 Pain, shock and suffering Rs.
3,600-00 Actual loss of income Rs.
1,200-00 Attendant charges.
Rs.1,14,116-00 Gross compensation Rs.
17,221-00 LESS :
Deducted towards 15% negligence Rs.
97,028-00 TOTAL compensation awarded.
Mr.
Shah, learned advocate appearing on behalf of the appellant has, at the very outset, attacked the findings of the Tribunal below as regards the extent of disability of the victim. By referring to the two certificates given by the two different Doctors, Mr. Shah pointed out that both the Doctors have opined that the extent of disability of the claimant was 40% but the Tribunal below erroneously arrived at a figure of 60%. According to Mr. Shah, the said finding is, therefore, vitiated for the apparent misreading of the two certificates exhibited by the applicant.
Mr.
Shah further tried to convince me that the monthly income of the victim cannot be treated to be Rs.800/- in the facts of the case as it was based on no material and, therefore, the said findings should also be set aside. As regards the award of other amounts under different heads, Mr. Shah, however, did not make any submissions.
Mr.
Kakkad, learned advocate appearing on behalf of the claimant, on the other hand, opposed the aforesaid submissions of Mr. Shah and contended that one of the two Doctors restricted his scrutiny only to the injuries suffered by the victim on the shoulder, leg etc. dealing with orthopedic problem suffered by the victim while the other one considered only the effect of the injuries suffered on head and the consequent disability arising out of the head injury. According to Mr. Kakkad, the findings of the Tribunal below that the overall physical disability should be 60%, therefore, cannot be said to be unreasonable.
In support of the cross-objections filed by his client, Mr. Kakkad pointed out that in the absence of any findings recorded on the basis of evidence that his client had any contributory negligence, there was an apparent error on the part of the Tribunal in ultimately holding that the contributory negligence of the claimant should be 15%. Mr. Kakkad, therefore, prayed for setting aside the said findings and for assessment of the compensation on the basis of 100% negligence on the part of the driver of the offending bus.
Mr.
Shah, in reply to the aforesaid cross-objection submitted that the driver of the appellant has sufficiently explained the negligence of the victim, and therefore, I should not, in this cross-objection, interfere with the aforesaid findings on the question of contributory negligence.
Therefore, the first question that arises for determination in this appeal is whether the Tribunal below was justified in holding that the victim had suffered 60% permanent disability on the basis of the material on record.
I have gone through both the certificates of disability exhibited on behalf of the claimant. It appears that two Doctors gave opinion on two different dates, i.e. on 27th July 1993 and 28th July 1993. After going through the certificates, it appears that both of them took into consideration the entire injuries suffered by the claimant not only with regard to shoulder and legs but also with regard to the injuries on the head, and both of them were of the view that taking into consideration the entire injuries, the victim had suffered disability to the extent of 40%.
I am, therefore, unable to accept the contention of Mr. Kakkad that the author of one certificate has restricted his scrutiny only to the injuries on the leg and shoulder excluding the injuries on the head and the other one has only considered the injuries on the head, and clubbing both the injuries together, disability should be assessed at 60%.
On a plain reading of the aforesaid two certificates issued by the two different Doctors, it is apparent that both of them took into consideration the entire injuries suffered by the claimant and on that basis, both of them have opined that the victim had suffered permanent disability to the extent of 40%. I, therefore, find that the Tribunal below has erred in law in arriving at the findings that permanent disability should be assessed at 60% by totally misreading the exhibited documents on record.
Regarding the cross-objections filed by the claimant, I find substance in the contention of Mr. Kakkad that the Tribunal below itself while deciding the issue No.1 came to the conclusion that the accident took place due to rash and negligent driving of the driver of the bus involved in the accident and there is no findings recorded that the claimant was also negligent in driving his scooter. However, subsequently, simply by recording that as the claimant was the driver of the motorcycle at the time of accident, the Tribunal below held that the contributory negligence of the victim should be assessed at 15% and as such, the said findings cannot be said to be a reasonable findings and must be held to be a perverse findings of fact.
In this case, it appears that the driver of the offending bus was made a party to the proceedings, but he has not filed any written statement denying the allegation of negligence made by the claimant but in spite of such fact, the Tribunal below permitted him to give evidence in support of his innocence by appearing as a witness on behalf of the owner of the vehicle.
If the said driver himself was a party and if he has not availed of the opportunity of filing written statement by denying the allegations specifically made against him, he should not have been permitted to appear as a witness in support of his own innocence. He, however, can appear as witness of the owner to give evidence on other points not concerning his own defence that he was not negligent in driving.
Therefore, in this case, it is well established that the accident had taken place due to sole negligence of the driver of the bus and the Tribunal was not justified in holding that there was contributory negligence to the extent of 15% on the part of the victim.
On consideration of the entire materials on record, I hold that it is a fit case where amount of compensation should be calculated considering the monthly income of the victim to be Rs.800/-, disability at 40% and multiplier of 15. Thus, under the head of future loss of income, the claimant would be entitled to an award of Rs.57,600/-. As Mr. Shah has not made any submissions with regard to the award of other amounts under different heads, those are not disturbed. Thus, the award is modified as under:
Rs.
57,600-00 Future loss of income Rs.
6,015-00 Medical expenses Rs.
6,931-00 scooter repairing Rs.
10,000-00 Pain, shock and suffering Rs.
3,600-00 Loss of income Rs.
1,200-00 Attendant charges Rs.
85,346-00 Total compensation.
I am told that the appellant has deposited an amount of Rs.97,028-00 with proportionate costs and interest. In view of the aforesaid judgment, the Tribunal is directed to refund the excess amount of Rs.11,679/- to the appellant with proportionate interest accrued thereon and release the remaining amount, if any, to the claimant, on proper verification, within two months from today.
The appeal and cross-objections are disposed of accordingly. No costs.
Registry is directed to forthwith return the Record and Proceedings to the Tribunal.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew Top