By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellant – original claimant has challenged the judgment and award dated 5th September 1995 passed by the learned MAC Tribunal at Bhavnagar in MAC Petition No.216 of 1992 vide which the Tribunal awarded Rs.1,61,000 to the claimants as against the claim of Rs.4.5 lakhs and prayed for enhancement of the awarded amount. 2 The facts leading to filing the present appeal are to the effect that on 7th December 1991 at about 6.30 PM the appellant was going to Palitana by driving Rajdoot Motorcycle bearing No.GJQ 6753 slowly and on the correct side of the road of Songadh-Palitana Road and when he reached near the agricultural field of Bhagubhai Nathabhai, the accident in question took place because of the rash and negligent driving of three wheeler Tempo bearing No.GTS 9446 in which the appellant sustained serious injuries. The claimant has sustained 80% permanent partial whole body disability. He therefore filed claim petition claiming total compensation of Rs.4,50,000 on various heads from the opponents.
3 The learned Tribunal vide impugned judgment and award dated 5th September 1995 awarded the following amounts:-
Future loss of income Rs.96,000 Pain, Shock and Suffering Rs.20,000 Medical Expenses Rs.70,000 Actual Loss of Income Rs.15,000 ========= Rs.2,01,000 As the injured was also negligent to the cause of the accident to the accident to the extent of 20%, an amount of Rs.40,000 was deducted therefrom towards his contributory negligence and a sum of Rs.1,61,000 was awarded by the Tribunal.. Feeling aggrieved by the same, the appellant – original claimant has filed this appeal seeking enhancement of the compensation.
4 I have heard Shri Vaishnav, learned counsel for the appellant and Mr Sunil Parikh, learned counsel for the insurance company and perused the entire record.
5 Learned counsel for the appellant though argued that the Tribunal has committed an error in holding the appellant to be negligent to the accident to the extent of 20% is not justified and warranted more particularly when the appellant being the rider of motorcycle. He further contended that the multiplier of 12 adopted by the Tribunal is on the lower side. In support of his contention, learned counsel for the appellant has relied upon the decision of the Apex Court in the case of Smt. Sarla Verma & Ors.
v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121.
6 Mr Sunil Parikh, learned counsel for the respondent has contended that income assessed at Rs.8,000 towards annual loss of income to the appellant is on higher side. He has also contended that the Tribunal has committed an error in determining the contributory negligence of the appellant at 20% only more particularly when the accident has taken place in the middle of the road. He further contended that the amount awarded towards medical expenses is also on higher side.
7. On the point of negligence there is no cross-examination and therefore the contention of the learned counsel for the insurance company is required to be rejected. The Tribunal has observed as under in paragraph 9 of the judgment and award:
“9. The petitioner has narrated the entire version of the incident in his oral evidence at Exh.56. According to him, the opponent No.1 was driving his three wheeler tempo in a rash and negligent manner and has caused this incident. He has also stated that he was driving his rajdoot motor cycle slowly and on correct side of the road. We have on record the panchnama of scene of offence at Exh.29 which reveals that the road was 20ft wide with 3 ft footpath on both the sides and both the vehicles were lying there in damaged condition.
Panchnama further reveals that there was blood mark near the centre of the road. The drivers of the vehicle like three wheeler tempo etc must drive their vehicle in such a fashion that he causes no harm or injury to the other users of the road – be they pedestrians, or scooterists, who have equal right to use the road. Similarly, a duty is also cast upon the drivers of smaller vehicles like scooter. They should also drive their vehicle in a prudent manner and taking care of the other traffic on the road. The fact that the blood mark near the centre of the road goes to show that the petitioner has also contributed to some extent to this incident. Looking to the FIR, panchnama and evidence I ma of the opinion that this incident is the outcome of contributory negligence of both the drivers and apportion the ratio at 80% and 20% i.e. Driver of the three wheeler tempo was contributory negligent at the ratio of 80% while the petitioner was contributory negligent at the ratio of 20%. Hence, I decide issues No.s1 and 2 in the affirmative accordingly.”
8. On the point of future loss of income, the contention raised by the respondent could have been accepted provided there is cross- examination. Since there is no cross-examination, the Tribunal has assessed the annual loss to the appellant due to disability at Rs.8,000/-. However, the Tribunal has wrongly applied the multiplier of 12 and it should be 18. Thus, the appellant would be entitled to Rs.1,44,000 under the head of future economic loss. Over and above the same, the appellant is entitled to Rs.20,000 under the head of Pain, Shock and Suffering, Rs.70,000 under the head of Medical Expenses and Rs.15,000 under the head of Actual Loss of Income. Thus, in all the appellant is entitled to get Rs.2,49,000, out of which 20% is required to be deducted towards his contributory negligence in which case the total amount of compensation would come to Rs.1,99,200 as against the amount of Rs.1,61,000 awarded by the Tribunal. Thus, the appellant would be entitled to get additional compensation Rs.38,200/- from the claimants.
9 In view of the aforesaid discussion, the judgment and order dated 5th September 1995 passed by the learned MAC Tribunal at Bhavnagar in MAC Petition No.216 of 1992 vide which the Tribunal awarded Rs.1,61,000 to the claimants is modified to the extent that the claimant is entitled to Rs.1,99,200/-. Thus, the claimants are entitled to get additional amount of Rs.38,200 along with interest at the rate of 7½ % per annum from the date of the petition till the date of realisation. Appeal is allowed to the aforesaid extent with no order as to costs.
(K.S.Jhaveri, J.) *mohd