1. This appeal is filed challenging the impugned judgment and award dated 03.07.2002, rendered by learned Motor Accident Claims Tribunal (Auxi), Nadiad in Motor Accident Claim Petition No.112 of 1998, whereby, the Tribunal awarded Rs.7,13,300/-
as compensation with running interest at the rate of 9% p.a. from the date of claim petition till the realization to the original claimant- respondent No.1 herein and directed that the said amount shall be paid jointly and/ or severally by the GSRTC-original opponent No.2 as well as by respondent No.2-original opponent No.1. Under such circumstances, for the sake of convenience, parties shall be herein after referred to on the same line as they were referred to before the Tribunal in the claim petition.
2. According to the claimant, the vehicular accident occurred on 13.11.1997 at Borsad ST bus stand, when she was waiting for a bus. At that time, ST bus driven rashly and negligently by original opponent No.1 came in full speed and knocked down the claimant. She sustained serious injuries. According to the claimant she was aged about 68 years and she was earning Rs.3,000/- to Rs.4,000/- by way of household work and was cultivating and selling vegetables. It was her case that she was settled in America and she was doing baby-sitting work in America. It was her case that in the accident, her right leg below knee was required to be amputed and she incurred huge medical expenses and for whole remaining life, she is confined to wheel-chair.
3. Original opponent No.2 resisted the claim petition by filing written statement and inter- alia denied the material contentions raised by the claimant in her claim petition.
4. Before the Tribunal, both the sides adduced oral and documentary evidence. After considering the oral and documentary evidence and submissions advanced by both the sides, the Tribunal came to the conclusion that the vehicular accident occurred, due to rash and negligent driving of ST bus by original opponent No.1. The Tribunal further came to the conclusion that at the time of accident, the claimant-lady was aged about 68 years. The Tribunal took into consideration the evidence adduced by her, regarding her income and ultimately came to conclusion that her notional income as household work could be easily assessed at Rs.2,000/- p.m. Since she was aged about 68 years, the Tribunal did not considered any further prospective income. The Tribunal assessed Rs.2,000/- p.m. as her actual income and applied the multiplier of 5 years. The Tribunal further took into consideration that the disability sustained by the lady was 80% and accordingly, awarded Rs.96,000/- towards future loss of income. The Tribunal awarded Rs.75,000/- under the head of pain, shock and suffering, Rs.2,77,292/- towards actual medical expenses, which she incurred in Indian and Rs.1,50,000/- towards actual medical expenses which she incurred in America, Rs.1,00,000/- was awarded towards loss of amenities of life and Rs.15,000/- was awarded towards diet charges. Thus, the Tribunal came to the conclusion that claimant was entitled to recover Rs.7,13,300/- as compensation.
5. Ms.Ashlesha Patel, learned advocate for Ms.Vasavdatta Bhatt, learned advocate for the appellant-GSRTC submitted that the Tribunal committed serious error in attributing 100% negligence on the part of driver of the bus. She submitted that in the accident, the FIR was filed by the driver of the bus and according to the FIR and Panchanama of the scene of occurrence, it was the claimant-lady, who dashed with the front right side of the bus and accident occurred. It is, therefore, submitted that even the lady contributed to the accident and appropriate contributory negligence, qua claimant-lady may be apportioned.
6. Ms.Patel, learned advocate for the appellant further submitted that so far as the amount awarded by way of compensation being Rs.75,000/- under the head of pain, shock and suffering is concerned, it is on higher side and appropriate deduction may also be made in said amount by allowing this appeal.
7. Mr.Bhatt, learned advocate for respondent No.1- original claimant, fully supported the impugned judgment and award rendered by the Tribunal and submitted that considering the serious injuries which resulted in the amputation of both the legs, the pain, shock and suffering which the lady would suffer and the fact that she would not be able to walk and would be confined to the wheel-chair, in that context, the amount awarded by the Tribunal is on the lower side. It is submitted that the claimant lady was settled in America and was earning handsome amount by doing the work of baby-sitting and therefore, the amount of Rs.2,000/- per month, assessed by the Tribunal as notional income is on the lower side. It is, therefore, submitted that the appeal deserves to be dismissed by confirming the judgment and award of the Tribunal.
8. I have examined the record and proceedings in the context of the submissions advanced by both the sides. In the impugned judgment and award, the Tribunal came to the conclusion that the vehicular accident occurred due to rash and negligent driving of the ST bus driver-original opponent No.1. However, during the course of arguments, it was submitted by the appellant- GSRTC that it was the driver of the bus, who lodged the FIR and according to the FIR and the Panchanama of the scene of occurrence, it was the claimant-lady who dashed with the front right side of the bus. In this context, I have considered the evidence of claimant-Madhuben at Exh.30. In her evidence, she has stated that at the time of accident, she was standing near Borsad bus stand and was waiting for a Bus. At that time, the ST Bus came in full speed and knocked her down on account of which she sustained injuries. It is pertinent to note that considering her cross-examination as a whole, nothing was suggested that she attributed to the accident. The driver of the ST bus being original opponent No.1 did not step into the witness box and even considering his FIR nothing transpires that the claimant-lady was abruptly crossing the road and she dashed with the bus. The conclusion arrived at by the Tribunal that accident occurred because of sole negligence of the driver of the bus, cannot be said to be erroneous finding.
9. So far as the quantum aspect is concerned, the only submission made on behalf of the appellant- GSRTC is qua the amount of Rs.75,000/- awarded under the head of pain, shock and suffering by the Tribunal. In this connection, I have taken into consideration the observations made by the Tribunal in the impugned judgment and award, regarding serious injuries sustained by the claimant. It has been observed that her right leg below knee was amputed and even her left leg sustained serious injuries. According to the medical evidence produced by the claimant and according to her oral evidence at Exh.30, she had to remain as indoor patient from 13.11.1997 to 16.03.1998. Even after her discharge, because of amputation, she was not able to walk on her feet and she had to move on a wheel-chair. She had to incur huge medical expenses in India as well as in America and as stated above, the Tribunal awarded the amount of compensation under this head, on the basis of documentary evidence like bills and vouchers produced by the claimant. Under such circumstances, keeping in mind the seriousness of injuries sustained by the claimant at advanced stage of her life and medical expenses she had incurred and further the fact that because of the injuries, practically, she was unable to move on her feet and she was required to use wheel-chair, it cannot be said that Rs.75,000/- awarded by the Tribunal under the head of pain, shock and suffering and Rs.1,00,000/- awarded to her on account of loss of amenities of life can be said to be on higher side.
10. In above view of the matter, this Court is of the opinion that the amount of compensation awarded by the Tribunal to the claimant cannot be said to be on higher side and no interference is warranted in the impugned judgment and award, rendered by the Tribunal. The appeal, therefore, deserves dismissal.
11. For the forgoing reasons, the appeal stands dismissed. There shall be no orders as to costs.
..mitesh..
[J.C.UPADHYAYA, J.]