(Per : MR.JUSTICE J.M.PANCHAL) By filing this appeal under Sec.173 of the Motor Vehicles Act, 1988, the appellant has challenged judgment and award dated March 29, 2000 rendered by the learned Motor Accident Claims Tribunal (Auxi.II), Ahmedabad (Rural), Mirzapur in Motor Accident Claim Petition No. 1780 of 1990 by which it is held that the respondent no.1 is entitled to get compensation of Rs.3,10,400/- from the appellant as well as respondent no.2 jointly and severally along with interest at the rate of 12% p.a. from the date of petition filed in forma pauperis till realization.
2.On December 6, 1989 at about 9-50 a.m., the respondent No.1 and one Ghanshyam Govindbhai were going on scooter bearing registration No. GUH 5456 from Viramgam to Ahmedabad. At that time, one S.T. Bus bearing registration No. GRU 8058 of the ownership of the appellant being driven by the respondent No.2 in rash and negligent manner came on wrong side, as a result of which, the bus collided with scooter and the respondent no.1 sustained serious injuries. The respondent no.1 was admitted in V.S.Hospital as Indoor Patient and had suffered monetary loss. The respondent no.1, therefore, instituted Motor Accident Claim Petition No. 1780 of 1990 before the Motor Accident Claims Tribunal (Aux.II) Ahmedabad (Rural), Mirzapur, Ahmedabad and claimed compensation of Rs. 7 Lacs in all from the appellant as well as respondent no.2.
3.The appellant filed its written statement at Ex.12 contending, inter alia, that the claim petition was not maintainable and was bad for non-joinder as well as mis-joinder of necessary parties. What was stated in the reply was that the driver of the bus was neither rash nor negligent and the accident had taken place because of the negligence of the scooter driver. It may be stated that the respondent no.1 had not filed any written statement.
4.In view of the pleadings of the parties, necessary issues for determination were framed by the Tribunal at Ex.17. Respondent No.1 examined himself at Ex.29 and produced disability certificate issued by Dr. Aditya J. Upadhyaya at Ex.31, certified copy of complaint filed by the respondent no.2 on December 6, 1989 at Ex.33, certified copy of panchnama dated December 6, 1989 at Ex.34, injury certificate issued by V.S. Hospital, Ahmedabad on January 17, 1990 at Ex.35, Follow-up Card issued by V.S.Hospital at Ex.36, Physiotherapy Card at Ex.37, his Passport at Ex.38, as well as Medical Bills at Ex.39 in support of case pleaded by him in the claim petition.
5.On appreciation of evidence led by the parties, the Tribunal held that it was proved by the respondent no.1 that he received injuries as a result of rash and negligent driving of S.T. Bus bearing registration No. GRU 8058 by the respondent no.1, but his negligence had also contributed to the accident, and therefore, the driver of the S.T.Bus was negligent to the extent of 80%. The Tribunal took into consideration the evidence adduced by the respondent No.1 and held that his monthly income was Rs.3,000/- and that he had suffered permanent disability to the extent of 50%. The respondent No.1 was aged 27 years at the time of accident, and therefore, the Tribunal was of the opinion that multiplier of 16 was required to be applied to the facts of the present case. Thus the Tribunal has awarded Rs.2,88,000/- to the respondent no.1 as future loss of income. The Tribunal took into consideration the injury certificate and has held that the respondent no. 1 is entitled to a sum of Rs. 50,000/- for pain, shock and suffering and Rs.7,000/- for special diet, transportation, attendance charges etc. The Tribunal considered physiotherapy cards and has held that the respondent no.1 is entitled to get Rs.36,000/- for actual loss of income.
6.In view of the above referred to conclusions, the Tribunal, by award dated March 29, 2000, has awarded Rs.3,10,400/- as compensation to the respondent No.1 with interest at the rate of 12% p.a. from the date of petition filed in forma pauperis till realisation, giving rise to the present appeal.
7.Mr. A.H.Shah, the learned Counsel for the appellant submitted that contents of panchnama indicate that the scooter driver i.e. respondent no.1 himself was negligent, and therefore, the award deserves to be set aside. In the alternative, what was contended by the learned Counsel for the appellant was that no reliable evidence is adduced by the respondent no.1 to establish that his income was Rs.3,000/- per month, and therefore, appeal should be entertained. Mr. B.G.Jani, the learned Counsel for the respondent no.1 who appears on Caveat pleaded that the finding recorded by the Tribunal that the driver of the S.T.Bus was negligent to the extent of 80% is born out from the evidence on record, and therefore, the same should not be interfered with by this Court. It was claimed that the evidence adduced by the respondent No.1 establishes that income of the respondent No.1 at the relevant time was more than Rs.3,000/- per month, and therefore, the finding recorded by the Tribunal regarding income of the respondent No.1 should be upheld by this Court.
8.We have heard the learned Counsel for the parties and took into consideration the documents which were produced by the learned Counsel for the parties for our perusal. It is relevant to notice that respondent No.1 in his deposition at Ex.29 has clearly stated that his scooter was at a slow speed and that the scooter was on correct side of the road but the driver of the bus had come from opposite direction in full speed, as a result of which the scooter was knocked down. Considering the contents of panchnama Ex.34 as well as deposition of the respondent No.1 recorded at Ex.29, we are of the opinion that the Tribunal was justified in holding that the accident occurred due to more negligence on the part of the driver of the offending S.T.Bus but some negligence on the part of the respondent no.1 had also contributed to the accident. Therefore, the finding recorded by the Tribunal that the driver of the bus was negligent to the extent of 80% is just and proper. However the case of the appellant that the driver of the scooter was solely negligent, and therefore, claim petition should have been rejected, cannot be accepted. It is relevant to notice that the accident had taken place at the turning point near Pir Dargah on Ahmedabad-Viramgam Road and if the driver of the bus had been vigilant, the accident could have been avoided. In the panchnama, extent of damage caused to the scooter is also mentioned. The extent of damage caused to the scooter and the injuries sustained by the respondent no.1 would show that the bus was at great speed, as a result of which the scooter was extensively damaged and the respondent no.1 sustained serious injuries. On over all view of the matter, we are satisfied that finding recorded by the Tribunal that the driver of the bus was negligent to the extent of 80% is just and proper and the same is hereby upheld.
9.So far as income of the respondent no.1 is concerned, we find that the respondent no.1 had produced Sales Tax Assessment Order which indicated that for the Assessment Year 1988-89, the total turn over of his business was Rs. 1,18,145/- and that he had accordingly paid the Sales Tax. It is true that no books of account were produced by the respondent No.1 in support of his claim that his earning was Rs.6,000/- to Rs.6,500/- per month, but merely because books of accounts are not produced, it cannot be said that the Tribunal was not justified in coming to the conclusion that the income of the respondent No.1 was Rs.3,000/- per month. The Tribunal has given cogent reasons in Para 14 of the impugned award for coming to the conclusion that income of the respondent No.1 should be held to be Rs.3,000/- per month and we are in complete agreement with the same.
10.On over all view of the matter, we are satisfied that a just compensation has been awarded to the respondent No.1 and no ground is made out by the learned Counsel for the appellant to interfere with the impugned award. The net result of the above discussion is that we do not find any substance in the appeal and the same deserves to be dismissed.
11.For the foregoing reasons, the appeal fails and is herby dismissed. As the appeal is dismissed, Civil Application No. 7706 of 2001 for interim relief does not survive. Hence it is also rejected.
Date: 27-07-2001.(J.M.PANCHAL,J.) ccshah (H.H.MEHTA,J.)