1. This appeal has been preferred against the common judgment and award dated 18.10.1991 passed by the Motor Accident Claims Tribunal (Aux.), Vadodara in M.A.C.Ps. No.388/1987 & 389/1987. In this appeal, we are concerned only with the final award passed in M.A.C.P. No.388/1987 whereby, the said claim petition was partly allowed and respondent no.1, original claimant, was awarded total compensation of Rs.4,05,000/- along with interest at the rate of 12% per annum from the date of application till its realization and proportionate costs.
2. The facts in brief are that on 27.11.1985, in the morning hours, respondent no.1 herein and Phirozebhai Hormasji Surati (Original claimant of M.A.C.P. No.389/1987) proceeded towards Gandhinagar from Vadodara in his Car bearing registration No. GUF-225. Respondent no.1 was driving the said Car whereas, Phirozebhai Surati was sitting on the side seat. While they were on their way, they met with an accident with an ST bus bearing registration No. GRQ-8454 belonging to the appellant-Corporation. In the said accident, respondent no.1 and the co-passenger sustained severe bodily injuries. They filed claim petitions before the Tribunal claiming compensation of Rs.5,00,000/- and Rs.2,00,000/- respectively. Both the claim petitions were heard together by the Tribunal and came to be disposed of by way of the common impugned award.
3. The appellant-Corporation has preferred the present appeal against the judgment and award rendered in M.A.C.P. No.388/1987 whereby, respondent no.1, original claimant, has been awarded total compensation of Rs.4,05,000/- along with interest and costs.
4.0 Mr. Pranav G. Desai learned counsel for the appellant-Corporation contended that the Tribunal has failed to appreciate the evidence on record in its proper perspective. He submitted that the documentary evidence on record in the form of panchnama of the place of accident establishes that the driver of the Car was equally negligent for the accident. Therefore, the Tribunal ought to have apportioned a higher percentage of negligence on the driver of the Car, i.e. respondent no.1.
4.1 Mr. Desai learned counsel for the appellant contended that the Tribunal has also erred in computing future loss of income inasmuch as the claimant had not produced any cogent evidence on record to prove his income. He contended that the multiplier adopted by the Tribunal is also on the higher side considering his age at the time of accident.
4.2 Mr. Desai learned counsel for the appellant further contended that the formula adopted by the Tribunal for assessing income under the head of future loss is contrary to the principle laid down by the Apex Court in the case of Sarla Verma v. Delhi Transport Corporation and another, (2009) 6 S.C.C. 121.
4.3 Mr. Desai learned counsel for the appellant further contended that the Tribunal also erred in appreciating the medical evidence on record inasmuch as the disability of respondent no.1 ought not to have been assessed in excess of 20% under any event. He, therefore, submitted that the compensation awarded by the Tribunal deserves to be reduced appropriately.
5.0 Mr. R.K. Golani learned counsel for respondent no.1 supported the impugned award passed by the Tribunal and submitted that the accident occurred on account of the negligence of the driver of ST bus. He contended that the documentary evidence on record in the form of Income-tax Returns prove the income of respondent no.1. The medical evidence on record proves the permanent disability sustained by respondent no.1 as a result of the accident. Hence, the Tribunal was completely justified in awarding the compensation in question.
5.1 Mr. Golani learned counsel for respondent no.1 further contended that the disability assessed by the Tribunal is also appropriate since respondent no.1 had sustained disability of both his hands and legs. He submitted that the Doctor has assessed the disability of respondent no.1 on the basis of his physical condition and therefore, the same may not disturbed since it is an evidence rendered by an Expert of the field. In support of his submission, learned counsel relied upon a decision of the Andhra Pradesh High Court in the case of United India Insurance Company Ltd. v. Mohd. Khaj Rasool Sayyed and Mohd. Khajamain Shaikh, 2003 (5) ALD 162 : 2003 (2) Andh WR 281.
5.2 Mr. Golani learned counsel for the appellant, therefore, submitted that the appeal preferred by the appellant deserves to be dismissed.
6. Though served none appears on behalf of respondent no.2. Having heard learned counsel for both the sides, it appears that the contentious issues involved in this appeal are the aspect of negligence, the computation of future loss of income of respondent no.1 and the assessment of permanent disability of respondent no.1.
7.0 So far as the aspect of negligence is concerned, the Tribunal has apportioned the ratio of negligence at 75 : 25 between the ST bus and Car. It appears from the panchnama of the place of accident [Exh.47] that the accident took place on National Highway no.8 near Shakti Petrol Pump situated on the Ahmedabad – Vadodara Highway. National Highway no.8 operates as a One-way road and is having a divider between the roads. However, on the date on which the accident occurred, one side of the road was closed on account of some repair work and therefore, the traffic was passing through one side of the road only. In other words, the road was being used as a Two-way road on the date of accident. In the panchnama, specific mention has been made about the width of the road and also about the distance of both the vehicles involved in the accident from the edge of the road to the actual place where the vehicles are lying. The panchnama also states that the Car in question has been moved away from the spot of accident but, the markings of its wheels have been made on the road.
7.1 Having gone through the panchnama, it appears that respondent no.1 had been driving the Car not in the usual area of the road which was operating as a Two-way road at the relevant point of time but, he was driving the Car by jumping into that portion of the road, which was meant for the traffic coming from the opposite direction. The wheel marks of the Car establish the rash and negligent driving by the driver of the Car, i.e. respondent no.1. The ST bus, being a heavy vehicle, ought to have been driven in a careful manner and the driver of the ST bus ought to have taken extra care and caution when the road was operating as a Two-way road. Had the ST bus been driven in a moderate speed, the accident could have been averted.
7.2 However, considering the width of the road, the wheel marks of the Car and the distance of ST bus and Car from the respective edges of the road, I am of the opinion that the negligence of respondent no.1, driver of the Car, was more than what has been assessed by the Tribunal. In my opinion, it would be appropriate to apportion the ratio of negligence between the driver of ST bus and the Car at 60 : 40 as against 75 : 25 assessed by the Tribunal.
8.0 Before the Tribunal, respondent no.1-original claimant had produced his Income-tax Returns for the Assessment Years 1982-1983, 1983-1984, 1984-1985, 1985-1986 and 1986-1987. Except the above documentary evidence, no other evidence was produced to prove his income. The accident in question took place on 27.11.1985 and therefore, we are concerned with the Returns of the Assessment Years prior to the date of accident only, viz. 1983-1984 & 1984-1985 and not of the Years subsequent thereto.
8.1 As per the Returns of the said two Assessment Years, the gross income of respondent no.1 was Rs.63,242/- and 81,476/- respectively. In the absence of evidence on record to prove the income of respondent no.1, it would be appropriate to take the average of the incomes mentioned in the Returns for the purpose of assessing the annual income of respondent no.1. Hence, the annual income would come to Rs.72,359/-. In the case of Sarla Varma (supra), the Apex Court has held that where the claimant is aged between 40 years – 50 years at the time of accident, an increase of 30% in income has to be taken for arriving at the future income of the claimant. By adopting the said principle, the annual income of respondent no.1 would come to Rs.94,067/-. However, the Tribunal has assessed the annual income at Rs.95,268/- on the basis of the income for the Assessment Year 1985-1986, which is erroneous. Hence, the annual income of respondent no.1 could be assessed at Rs.94,067/-.
9.0 The Tribunal assessed the disability of respondent no.1 at 53% for the body as a whole. However, it is pertinent to note that the Doctor [Exh.35], who has led evidence before the Tribunal, had never given any treatment to respondent no.1 in respect of the injuries sustained in the accident. Further, the said Doctor had examined respondent no.1 after a period of more than Five (05) years from the date of accident.
9.1 It would be pertinent to note that in his evidence, the Doctor has stated that the total disability in respect of both the legs of respondent no.1 could be assessed at 18% for the body as a whole and in respect of both the hands, it could be assessed at 15% for the body as a whole. The said Doctor further goes to say that there is a possibility that respondent no.1 may suffer Osteoarthritis, for which he has assessed the potential disability at 10%. The Doctor also assesses another 10% disability on account of loss of working capacity of respondent no.1 as a Transport Contractor. Thus, the Doctor has assessed the total disability at 53% for the body as a whole.
9.2 From the above assessment made by the Doctor, it is clear that the Doctor has assessed disability, which was not in existence at the relevant time and which may occur in future. He has also made assessment of additional 10% disability for actual loss of working capacity though he had made separate assessments for disabilities of both the legs and both the hands. Thus, the assessment of permanent disability made by the Doctor [Exh.35] cannot be considered as proper assessment of permanent disability. There is no other medical evidence on record from which the permanent disability of respondent no.1 could be assessed. Since the Doctor concerned had never given any treatment to respondent no.1 in respect of the accidental injuries and had examined respondent no.1 only after a period of more than five years, his assessment of 53% permanent disability for the body as a whole cannot be considered as reliable.
9.3 Even if we take the average of the percentage of disabilities of both the legs (18%) and of both the hands (15%) of respondent no.1, it would come to 16.50%. However, looking to the overall injuries sustained by respondent no.1, the disability percentage for the body as a whole, under no circumstances, could be assessed at 53% for the body as a whole. Hence, the assessment made by the Tribunal is improper and erroneous.
9.4 Considering the entire medical evidence on record and the fact that the Doctor [Exh.35] had never treated respondent no.1 for the injuries sustained in the accident in question and that the Doctor had examined respondent no.1 only after a period of more than five years from the date of accident, it would be just, legal and appropriate to assess the permanent disability at 30% for the body as a whole.
10. If we assess permanent disability for the body as a whole at 30%, the annual loss of income would come to Rs.28,220/-. Respondent no.1 was aged about 43 years at the time of accident but in spite of that the Tribunal adopted the multiplier of 16, which is contrary to the principle rendered in Sarla Verma's case (supra) wherein, the multiplier prescribed is 11. Thus, by adopting the multiplier of 11, the total amount under the head of future loss would come to Rs.3,10,420/-. Therefore, respondent no.1 shall be entitled for total amount of Rs.3,70,420/- [i.e. Rs.3,10,420 towards future loss + Rs.20,000 towards pain, shock and suffering + Rs.20,000 towards medical expenses + Rs.20,000 towards loss during the period of hospitalization]. Since respondent no.1 has been held negligent for the accident to the extent of 40%, an amount of Rs.1,48,168/- is required to be deducted from the total amount of compensation and hence, respondent no.1 shall be entitled for Rs.2,22,252/- as against the total compensation of Rs.4,05,000/-.
11. For the foregoing reasons, the appeal is partly allowed. The impugned judgment and award is modified to the extent that the original claimant, respondent no.1 herein, of M.A.C.P. No.388/1987 shall be entitled for total compensation of Rs.2,22,252/- along with interest at the rate of 12% per annum from the date of application till its realization and proportionate costs, as awarded by the Tribunal. The excess amount lying with the Tribunal shall be refunded to the appellant- Corporation. The impugned award stands modified to the above extent. The appeal stands disposed of accordingly. No order as to costs.
[K. S. JHAVERI, J.] Pravin/*