1. By way of this appeal the appellant has challenged judgement and award dated 10.09.2004 passed by the Motor Accident Claims Tribunal (Auxi) Surendranagar in M.A.C.P No. 558 of 1995 whereby the tribunal has partly allowed the petition and awarded compensation in the sum of Rs. 5,40,000/- along with proportionate costs and interest thereon at the rate of 9% per annum from the date of filing of the petition till realisation from opponent Nos. 2 and 3 jointly and severally.
2. Brief facts of the case are that:
2.1 On 12.12.1994, one Galabhai Amrabhai Vaghela, a cobbler by profession, was proceeding for the purpose of his business towards village Sara on his Luna Moped bearing No. GAY 2567. When he reached 1 k.m. away from his village towards Sara at about 8.00 a.m. one ambassador car bearing No. GAN 9714 came with an excessive speed and in a negligent manner from the opposite direction and dashed with his moped. Resultantly, he sustained grievous injuries and multiple fractures. Therefore, he has preferred M.A.C.P No. 558 of 1995 before the Motor Accident Claims Tribunal (Auxi) Surendranagar for getting compensation of Rs. 6,50,000/-.
2.2 The tribunal vide judgement and award dated 10.09.2004 has partly allowed the petition and awarded compensation of Rs. 5,40,000/- along with proportionate costs and interest thereon at the rate of 9% per annum from the date of filing of the petition till realisation from opponent Nos. 2 and 3 jointly and severally.
2.3 Being aggrieved by the said judgement and award, the appellant approached this Court by way of this appeal for quashing and setting aside the aforesaid judgement and award.
3. The tribunal awarded a sum of Rs. 3,84,000/- towards future loss of income. The tribunal awarded further sum of Rs. 50,000/- towards pain, shock and suffering. The tribunal awarded sum of Rs. 50,000/- for medical expenses, Rs. 50,000/- for future expenses, Rs. 36,000/- and Rs. 10,000/- towards special diet. In all, the tribunal awarded a sum of Rs. 5,40,000/- to the claimant, which in the tabular format is as under :
4. The learned advocate for the appellant submitted that the Tribunal has erred in coming to the conclusion that the respondent-original claimant was negligent to the extent of 10%. According to him, the negligence should have been 25%. He has further submitted that the income taken at Rs. 3,000/- is on higher side inasmuch as there is not evidence on record to support the same. He further submitted that the Tribunal ought to have taken multiplier of 16. He also challenged the amount awarded under the head of medical expenses.
5. Heard the learned advocate for the respective parties. As regards the negligence is concerned, the Tribunal has dealt with the same in para 8 of the judgement. The Tribunal has considered the FIR produced at Exh. 30 and also the Panchnama produced at Exh. 32. After a detailed consideration, the Tribunal held as under:-
“However, for the satisfaction of learned advocate, Mr. M.A.Shah for the insurer, I have to see panchnama of scene of occurrence, wherein both the vehicles shown to be lying on kachcha road nearby the place of occurrence, therefore, prevailing situation of both the vehicles cannot become fruitful to find out negligence on the part of either side. However, it is to be noted that in the panchnama wheelmark of the offending ambassador car is shown to the there over the accidental road. Relying upon this situation of wheel mark, learned advocate, Mr. M.A.Shah has voiced his grievance to the effect that the driver of the ambassador car took effective step to avert the accident by applying brake otherwise there would have been no wheel mark of the ambassador car over the accidental road and this act on the part of the ambassador car driver points a finger towards negligence of the injured-applicant. Hence, according to his submission, 50% negligence should be held even against the injured-applicant. But, I do not put the seal of approval to the grievance voiced by him because merely be raising such conjecture and surmise without any substantive evidence, such presumption for negligence cannot be drawn. If the driver of the ambassador car was not negligent at all or if he wanted to involve the present claimant as a contributory negligent, he would have entered witness box to assert at least this contention raised by him in his written statement. Insurance company ought to have secured presence of driver or at least made efforts to examine its insured to rebut the evidence of the injured-claimant. Therefore, I have no option but to hold the driver of the offending ambassador car negligent but considering the width of the accidental road, I reluctantly hold the present injured-applicant negligent only to the extent of 10%. Hence, I decide this point of negligence accordingly.”
6. Thus, from the evidence on record, the negligence on the part of the injured applicant is only to the extent of 10%. The learned counsel for the appellant is not in a position to point out any thing from the record to show that the said finding is erroneous.
7. As regards the income is concerned, the Tribunal has taken Rs. 3,000/- per month. Looking to the nature of his profession, I am of the view that the said income is just and proper. However, the Tribunal has committed an error in taking the prospective income at Rs. 4,500/- per month. The calculation should have been made by taking the income and multiplying it with the factor 0.46. In that event, the amount would come to Rs. 1,380/-. The Tribunal has taken multiplier of 16 which cannot be said to be on higher side. In view of the decision in case of Sarla Verma Vs. Delhi Transport Corporation and anr. reported in 2009 (6) SCC 121, therefore, the future loss of income would be 1380x12x16= Rs. 2,64,960/-.
5. The Tribunal has awarded an amount of Rs. 50,000/- under the head of medical expenses. From the record, it is found that the medical bills were to the extent of only Rs. 11,470/-. I am therefore, of the view that a sum of Rs. 25,000/- will be just and proper under this head.
6. As regards other heads are concerned, those amounts are just and proper. Therefore, the total amount would come to Rs. 4,55,000/- out of this amount 10% contributory negligence is required to be deducted. Therefore, the claimant will be entitled to Rs. 4,09,500/-. However, the appeal is restricted only to sum of Rs. 2,00,000/-. In that view of the matter, the applicant will be entitled to Rs. 4,40,000/-. The excess amount of Rs. 1,33,500/- will be refunded to the insurance company with interest and cost. The appeal is allowed to the aforesaid extent with no order as to costs.
JYOTI
[K.S.JHAVERI, J.]