1 The appellants, original claimants, have filed this appeal under Section 173 of the Motor Vehicles Act, 1988, for enhancement, against the judgment and award dated 27th April, 2001 passed by the Motor Accident Claims Tribunal, Ahmedabad City in M.A.C. Petition No.178 of 1996, whereby, the Tribunal awarded Rs.1,03,000/- with interest at the rate of 9% per annum from the date of the claim petition till realization against the opponents jointly and severally.
2 The accident occurred on 05.03.1995 at about 10.30 p.m on Kalol-Kadi main Road, near Bodasan village. The appellant was residing at Shahpur, Ahmedabad. She was travelling in S.T. Bus as a passenger. She was going to Kadi from Ahmedabad in the said S.T.bus, at that time, the accident occurred near Bodasan Village. Due to this accident, she sustained grievious injuries on her right hand and she lost her one tooth. There are also grievious injuries on her leg and head. She was admitted in Bhagyoday Hospital, Kadi and thereafter she was removed to the V.S.Hospital and was admitted there as an indoor patient. Thus, the appellants claimed Rs.3,00,000/- in all as compensation from the opponents.
3 After considering the objection of the insurance company and considering medical certificate issued by Medical Officer of V.S.Hospital and Dr. Dinubhai Patel, Orthopaedic Surgeon, the Tribunal held as under:
"Certified that Smt. Bilkishbanu Mohmadbhai was treated at this hospital in 1995 by myself and Dr. Bhargav [M.S.Ortho.] for non-reunion of right humerus, first by bone graft and external fixation and later by plating [twice] and bone grafting. Her fracture has healed.
Sd/- Dinubhai A. Patel"
Considering the above, against the assessment of 30-35% of permanent disability, the Tribunal found 12% of permanent disability of the body as a whole and in para 25 held as under:
"25. It is submitted by the learned advocate for the applicant Bilkishbanu that there is 30 to 35% permanent disability in the case of applicant Bilkishbanu. But I consider 12% permanent disability in this case. We can presume that applicant Bilkishbanu was earning Rs.1,500/- p.m. Hence there is loss of Rs.180 x 12 x 15 multiplier = Rs.32400/-. Hence, she is entitled to Rs.32400/- under the head of future loss of income. Looking to the injuries and medical treatment, she is entitled to Rs.10,000/- under the head of pain, shock and suffering. She is further entitled to Rs.5000/- for special diet and Rs.1500/- for transportation. I again say that some medical bills are vague or that some medical bills are not proved. Hence she is entitled only to Rs.54100/- for medical bills. Hence, she is awarded compensation under various heads as under:
Rs.32,400-00 For future loss of income 10,000-00 For Pain, shock and suffering 5,000-00 For Special diet 1,500-00 For Transportation charges 54,000-00 For medical bills
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1,03,000-00 TOTAL 25,000-00 Interim relief
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78,000-00 TOTAL COMPENSATION"
4. Learned advocate for the appellant would contend that the claimant injured had received serious injuries and medical bills were produced on record, but against the medical expenses of Rs.77,000/- only Rs.54,000/- is awarded and even amount under the head of pain, shock and suffering is less and instead of Rs.10,000/-Rs.15,000/- ought to have been awarded. Keeping in mind the law laid down by the Apex Court in the case of Santosh Devi v. National Insurance Company Ltd. reported in [2012(4) SCAL 559], 30% of prospective income ought to have been considered of the appellant, who was doing job of stitching quilts and mattresses and other miscellaneous work. Therefore, it is submitted that the award of the Tribunal needs to be modified accordingly.
In view of the above, it is submitted that the order of the Tribunal awarding compensation deserves to be enhanced and accordingly modified.
5. Learned advocate for the insurance company, however, would submit that prospective income @30% is to not be awarded in all cases, but facts and circumstances of each case is to be examined and disability of the injured-victim was correctly assessed on the basis of medical certificates produced on record by three different doctors viz. Medical Officer of V.S.Hospital, Dr. Dinubhai Patel and Dr. Maniyar, and therefore, final conclusion of the Tribunal of permanent partial disability of the claimant as 12% of the whole body cannot be said to be without any material on record. It is therefore submitted that as such no modification is necessary and the award of the Tribunal is just and proper.
6. Considering the overall facts and circumstances of the case and on perusal of the record, including the judgment and award impugned, there is some force in the submissions of the learned advocate for the claimant that the Tribunal has not awarded prospective income as held in the case of Santosh Devi [supra]. Further the amount of Rs.10,000/- awarded by the Tribunal towards pain, shock and suffering for a victim who remained bed ridden for about 12 months if seen in the context of nature of injuries, appears to be on lower side and the amount under the head pain, shock and suffering is enhanced to Rs.15,000/-.
7. Therefore, the appellant is entitled for the following additional amount:
Head Amount Amount to be Awarded Future Economic Loss Rs.32,400/-
[Rs.180x12x15] Rs.42,120/-
[Rs.234x12x15][Age of the claimant was 38 years at the time of accident and as per the decision in the case of Santosh Devi [supra], 30% increase in the present income is to be awarded. The Tribunal awarded income of the appellant at Rs.1500 at the time of accident and by applying 30% increase, the income of the appellant comes to Rs.1950 Pain, shock and suffering Rs.10,000 Rs.15,000 Medical Bills Rs.54,000 Rs.54,000 Attendance charges, Special diet and conveyance charges Rs.7,500 Rs.7,500 TOTAL Rs.1,03,000 Rs.1,18,620 DIFFERENCE AMOUNT Rs.15,620 The appellant is entitled to get additional amount of Rs.15,620/- along with interest at the rate of 7% per annum from the date of application till realization.
The deficit court fee is ordered to be paid by the the appellant-original claimant.
In the result, the appeal is partly allowed to the aforesaid extent. Judgment and award passed by the Tribunal is modified to the aforesaid extent only.
[Anant S. Dave, J.] *pvv Top