[1] By way of this appeal, the appellant has challenged the judgment and award dated 25.01.2001 passed by the Motor Accident Claims Tribunal (Aux.), Mahesana in Motor Accident Claims Petition No.1137/1995 whereby the Tribunal has allowed the claim petition in part and awarded compensation of Rs.4,67,000/- along with proportionate costs of the petition and interest at the rate of 12% p.a from the date of filing of the petition till realization.
[2] The facts of the present appeal are that on 26.06.1995, the original claimant was returning back at Mahesana in Jeep No.GJ-2-A- 1272 with her relatives. The driver was driving the said jeep rashly and negligently manner and the jeep had dashed with one truck and as a result, the claimant sustained serious injuries. Thereafter, she was admitted in Government Hospital, Bikaner. Therefore, she filed the aforesaid claim petition before the Tribunal for compensation of Rs.6,00,000/-.
[3] Heard learned advocates for the parties.
[4] Learned advocate for the appellant submitted that the accident took place in the year 1995. He submitted that the driver and owner engaged their advocate and contested the claim by filing written statement at Ex.15. He submitted that during the course of hearing it was evident that the claim was not properly contested on behalf of the driver and owner and it was felt that there was collusion between claimant and driver and owner of Jeep, hence on 03.01.2001 application at Ex.59 was filed seeking permission under section 170 to content the claim on merits, the otherside gave No objection endorsement on said application. He submitted that the said application was rejected by the Tribunal below on the ground that the same was given after recording evidence of claimant and after arguments. He submitted that the learned Tribunal has erred in rejecting application Ex.59 saying that the same was at belated stage and after evidence was recorded. It is submitted that only during cross of claimant, since advocate for driver and owner had not contested on merits on quantum, it was felt that there was collusion and hence application Ex.59 was given. He submitted that learned Tribunal has erred in rejecting application Ex.59 and ought to have permitted insurance company to contest on merits in addition to statutory defence. He submitted that the learned Tribunal has erred in deciding issue of negligence against the opponent No.1. Looking to evidence on record such as FIR Ex.27 produced by the claimant shows that accident was caused due to negligent driving of truck and not of the jeep and hence the learned Tribunal, in absence of truck driver, owner and its insurance company ought to have dismissed the claim petition. He submitted that the finding of learned Tribunal for quantum is also excessive, improper and illegal. The claimant was aged only 18 years and was studying at the time of accident. He submitted that the learned Tribunal has erred in taking Rs.2500/- p.m on presumptions only. In case of non-earning persons as per schedule added in 1994, notional income can be only Rs.15,000/- p.a i.e. Rs.1,250/- p.m. He submitted that the disability certificate at Ex.50 issued by Dr.Kamleshbhai shows that climant suffered disability of 75% of right upper limb. He submitted that Dr.Kamleshbhai in cross- examination has admitted that as per Kessler's Book the disability for particular limb is to be considered on half for body as a whole. The disability certificate shows that disability of 75% is assessed for right upper limb only and hence, ought to be considered at 37.5% for computing damages. He submitted that the learned Tribunal has erred in considering 75% loss of income considering Rs.2,500/- p.m and erred in awarding Rs.1,875/- x 12 x 17 = Rs.3,82,500/- for future economic loss. He submitted that the learned Tribunal has awarded Rs.50,000/- as pain shock and suffering is on higher side looking to the nature of injuries and duration of treatment. He, therefore, urged that the appeal is required to be allowed and the award of the learned Tribunal is required to be quashed and set aside.
[5] Learned advocate for the respondent submitted that the amount of compensation awarded by the learned Tribunal is just and proper. He submitted that the Tribunal has not committed an error in awarding compensation. He submitted that the amount of compensation awarded by the learned Tribunal is not on higher side. He submitted that the present appeal is required to be dismissed.
[6] Having considered the submissions advanced on behalf of both the parties and perused the evidence on record, I am of the view that the learned Tribunal has erred in considering the income of Rs.2,500/-
p.m of the claimant. In my view, the Tribunal should be considered the income of Rs.2,000/- p.m of the claimant. The Tribunal has assessed Rs.2,500/- towards monthly income and that amount capitalized by 75% disability, which is on higher side. Keeping in kind the endorsement made by the claimant before the Tribunal 50% is appeared to be considered. However, end of justice would be served if 40% disability will be assessed, the monthly loss of income would come to Rs.800/- p.m x 12, it comes to Rs.9,600/- yearly loss of income. The yearly loss of income of Rs.9,600/- multiplied by 18, it comes to Rs.1,72,800/- as future loss of income whereas the Tribunal has awarded compensation of Rs.3,82,500/-. Therefore, excess amount of Rs.2,09,000/- is required to be refunded to the appellant – Insurance Company and remaining interest will be paid to the claimant.
[7] For the foregoing reasons, the appeal is allowed in part to the aforesaid extent.
[8] In view of the order, passed in abovementioned First Appeal, learned advocate for the applicant – appellant seeks permission to withdraw the civil application. Permission as prayed for is granted. The civil application stands disposed of as withdrawn.
[ K. S. JHAVERI, J. ] vijay