1. By way of these appeals, the appellants have challenged the judgement and award dated 17.04.1993 passed by the Motor Accident Claims Tribunal Ahmedabad in M.A.C.P Nos. 873 & 323 of 1989 whereby the Tribunal directed the original opponents to jointly pay compensation of Rs. 3,46,500/- & Rs. 77,500/- respectively with interest and proportionate costs after assessing the contributory negligence on the part of the original opponent no. 1 at 75% and the deceased scooterist at 25%.
2. The original appellants had filed claim petitions seeking compensation in respect of the death of one Shri Rajendrakumar Desai and injuries sustained to the claimant of Motor Accident Claims Petition No. 323 of 1989 in a vehicular accident which occurred on 03.05.1988 when they were travelling in a scooter driven by said Rajendrakumar. At that time an S.T bus driven by the original opponent no. 1 rashly and negligently dashed with the scooter. The Tribunal after hearing the parties passed the aforesaid award.
3. Mr. Hemant Shah, learned advocate appearing for the appellants submitted that the contributory negligence of 75% attributed on the appellant is also on higher side. He submitted that the Tribunal ought to have considered the evidence on record to its fullest and ought to have assessed the contributory negligence at the most at 50% considering that the scooterist was driving on the wrong side after returning from the petrol pump.
3.1 Mr. Shah submitted that as far as Motor Accident Claims Petition No. 873 of 1988 is concerned, the Tribunal has seriously erred in assessing the income of the deceased.
He submitted that as far as Motor Accident Claims Petition No. 323 of 1989 is concerned, the Tribunal has wrongly assessed the income and multiplier of the claimant. He submitted that the amount awarded under the head of pain, shock and suffering is on higher side. He submitted that the amount awarded under the head of economic loss is also on higher side.
4. Mr. B.T. Rao, learned advocate appearing for the respondent supported the award passed by the Tribunal and submitted that no interference is called for as the same is passed after taking into consideration the evidence of both sides. He submitted that having considering the panchnama and other evidence on record, the Tribunal has assessed the contributory negligence on the part of the original opponent no. 1 to the extent of 75%. He submitted that infact the scooterist was dragged from the center of the road to around 34 feets.
4.1 Mr. Rao further submitted that the income assessed is correct as per the evidence in Motor Accident Claims Petition No. 873 of 1988. He submitted that in fact the multiplier adopted is on lower side and thereby the Tribunal has awarded lesser amount. He submitted that as far as Motor Accident Claims Petition No. 323 of 1989 is concerned, the award is just and proper and does not call for any interference by this Court.
5. As a result of hearing and perusal of records, this court is of the view that considering the evidence on record and the facts and circumstances of the case, the Tribunal came to the conclusion that the death of Shri Rajendrakumar and the claimant of First Appeal No. 495 of 1994 sustained injuries as a result of the rash and negligent driving of the original opponent no. 1 and the deceased himself. The Tribunal has rightly assessed contributory negligence of 75%-25% on the part of the two drivers. Considering the panchnama of the scene of offence and the sketch of the scene of offence, it is borne out that the scooterist might have tried to overtake some vehicle and in the process collided with the bus which was coming from the opposite direction in an excessive speed. This court is in complete agreement as far as the contributory negligence aspect is concerned.
6. However, as far as the quantum of compensation in Motor Accident Claims Petition No. 873 of 1988 is concerned, the Tribunal has rightly assessed the income of the deceased . Nothing is pointed out to take a different figure in that regard. In fact the Tribunal has considered multiplier of 15 which is on lower side. The just and proper multiplier ought to have been 17. This Court however in absence of any cross appeal does not intend to interfere. No interference is therefore called for as far as Motor Accident Claims Petition No. 873 of 1988 (First Appeal No. 494 of 1994) is concerned.
6.1 As far as Motor Accident Claims Petition No. 323 of 1989 is concerned, the Tribunal has rightly assessed the disability and the income of the claimant. However, the amount awarded under the head of pain shock and suffering is on higher side. The claimant shall be entitled to only Rs. 15000/- under the said head as against which the Tribunal has awarded Rs. 25000/- and therefore Rs. 10000/- is awarded in excess under the said head.
7. Even in the case of past economic loss, the Tribunal has erred in awarding Rs. 12000/- for 12 months. In view of this court, considering hospitalization of around 2 months and 2 months for treatment post discharge, the claimant ought to have been awarded Rs. 4000/- under the head of past economic loss as against which the Tribunal has awarded Rs. 12000/- and therefore Rs. 8000/- is in excess under the said head. Therefore in total the claimants shall be entitled to 75% of Rs. 67000/- (Rs. 15000/- for pain shock and suffering, Rs. 4000/- for past economic loss, Rs. 36000/- for future economic loss, Rs. 12000/- for medicine and conveyance) which comes to Rs. 50250/-. The Tribunal has awarded Rs. 77500/- and therefore an amount of Rs. 27,250/- is required to be refunded to the appellant.
8. In the premises aforesaid, First Appeal No. 494 of 1994 is dismissed. First Appeal No. 495 of 1994 is partly allowed. An amount of Rs. 27,250/- shall be refunded to the appellant by the claimant of Motor Accident Claims Petition No. 323 of 1989 with proportionate interest and costs as awarded by the Tribunal. The award of the Tribunal is modified accordingly.
(K.S. JHAVERI, J.) Divya//