1. By way of this appeal, the present appellants have challenged the judgment and award dated 09.05.2002, passed by the Motor Accident Claims Tribunal(Main), Kutch, in MACP No.468 of 1995, whereby the tribunal has awarded compensation in the sum of Rs.4,35,000/- to the claimant with interest at the rate of 12% per annum from the date of filing of the petition till realization.
2. The brief facts leading to filing of this appeal are that on 02.12.1994, the original applicant was going by driving the truck No.GJ-12-T-7803 and at that time, one truck No.GJ-12-T-6832, driven by original opponent No.1 came from opposite side in full speed and dashed with the truck of the deceased. As a result thereof, the deceased sustained grievous injuries. Therefore, the claimant filed claim petition being M.A.C.P. No. 468 of 1995, before the Tribunal for compensation.
3. The Tribunal after hearing learned advocates for both the parties and after perusing the record decided the claim petition and passed the award as stated hereinabove against which the present appeal is preferred.
4. Learned advocate for the appellant has contended that the Tribunal has erred in holding original opponent No.1 solely liable for the accident. He has further contended that the Tribunal has also erred in assessing monthly income of the deceased at Rs.3,000/-, in absence of any documentary evidence.
5. So far as the issue of negligence is concerned, the Tribunal, relying upon the Janvajog entry at Exh.43, charge-sheet at Exh.44 and oral evidence of the original applicant at Exh.42 rightly held the original opponent No.1 solely negligent for the accident.
6. I have heard learned advocate for the appellant and perused the materials produced on record. Learned advocate for the appellant has mainly contended the quantum of the award. The Tribunal has taken into consideration the monthly income of the deceased at Rs.3,000/-. In my view, in absence of any documentary evidence to prove the income and considering the fact that the original applicant was working as driver of the truck, monthly income can be assessed at Rs.2,000/-. Moreover, as the original applicant was aged about 50 years at the time of accident, 30% rise should be given, considering the ratio laid down by Apex Court in case of Sarla Verma and Others Vs. Delhi Transport Corporation and Another reported in 2009(6) SCC 121. Hence, monthly income can be assessed at Rs.2,600/-.
7. The Tribunal, after relying upon the documentary evidence rightly assessed 21% disability body as a whole. Therefore, monthly loss of income comes to Rs.546/-, rounded up to Rs.550/- and annual loss of income comes to Rs.6,600/-. Considering the fact that original applicant was aged about 50 years at the time of accident, the multiplier of 13 should be adopted. Hence, total amount under the head of future loss of income comes to Rs.85,800/-. The Tribunal has erred in awarding the actual loss for 7 years, since, the income of the original applicant was not established. The Tribunal was justified in awarding the compensation of Rs.6,000/- under the head of attendant charges, Rs.30,000/- under the head of pain, shock and suffering and Rs.15,000/- under the head of medical expenses.
8. In all, original applicant is entitled for Rs.1,36,800/-. As the Tribunal has already awarded Rs.4,35,000/-, the balance amount of Rs.2,98,200/- is required to be paid back to the appellant.
9. In view of the above, the appeal is party allowed. The excess amount of Rs.2,98,200/- shall be refunded to the appellant-Insurance Company along with interest and cost, if any. The decree be drawn accordingly.
..mitesh..
[K.S.JHAVERI, J.]