1 By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellant – insurance company has challenged the judgment and order dated 10th May 2002 passed by the learned Motor Accident Claims Tribunal (Main), Kachchh at Bhuj in MAC Petition No.418 of 2000 whereby the Tribunal has partly allowed the claim petition.
2 The short facts of the present appeal as per the claimants are that on the fateful day of the accident viz. on 24th April 2000 the injured Salimbhai Gabhbhai Jat was proceeding from village Vidi to Bhediya in truck bearing No.GJ.12.V 8416 as a Cleaner. Due to rash and negligent driving of the Driver, said Truck met with an accident in which the claimant sustained grievous injuries. The claimant therefore filed claim petition claiming compensation.
3. The Doctor assessed the permanent partial disability at 90%. Despite the same, the Tribunal has considered the disability at 100% and considering the income of the injured at Rs.3000 per month and Rs.36,000 per annum. The Tribunal has adopted the multiplier of 16 looking to the age of 30 years of the deceased as per Second Schedule and awarded Rs.6,48,000 under the of future economic loss. The Tribunal has also awarded Rs.5,000 towards pain shock and suffering, Rs.10,000 towards medical expenses and Rs.36,000 under the head of actual loss of income. Thus, in all, the Tribunal has awarded Rs.6,99,000 to the claimant along with interest at the rate of 12% per annum against which the present appeal is filed by the insurance company.
4. Heard learned counsel for the appellant and perused the record. Though served, none appeared for the claimants.
6. Learned counsel for the insurance company has, inter-alia, submitted that the Tribunal has committed an error in assessing the disability at 100% though the medical certificate shows the disability at 90%. She further submitted that the 100% earning capacity is to be assessed in a matter under the Workmen's Compensation Act and the said principle cannot be adopted in a proceeding under the Motor Vehicles Act.
7. I am in agreement with the contention raised by the learned counsel for the appellant. If the disability is considered at 90% then the future economic loss would come down to Rs.32,400 per annum. If the multiplier of 18 is adopted, then the amount payable under the head of future economic loss would come to Rs.5,83,200/-. As against that, the Tribunal has awarded Rs.6,48,000. Thus, there is an excess amount of Rs.64,800/- which is awarded under the head of future economic loss, which is required to be refunded to the insurance company along with interest . No interference is required to be made in the amounts awarded under other heads.
7. In view of the aforesaid discussion, the judgment and order of the Tribunal is modified to the aforesaid extent. The appeal is allowed to the aforesaid extent with no order as to costs.
(K.S.Jhaveri, J.) *mohd