1. This appeal under section 173 of the Motor Vehicles Act, 1988 (for short “the Act”) challenges the judgment and award dated 29.11.2000 passed by the learned M.A.C. Tribunal (Main), Bhavnagar in M.A.C.P. No.941 of 1998.
2. Short facts for which the claim petition was filed are as under:-
According to the appellant, on the day of accident, they were travelling in the ill-fated ST bus as passengers and were going to Ahmedabad. According to them, they boarded the said ST bus from Bhavnagar ST bus stand. When the said ST bus reached near village Chamardi on Ahmedabad Highway at about 10.30 a.m., Truck No.GJ 1 V 6189 came there which was driven by its driver in a rash and negligent manner, in excessive speed and endangering human lives and dashed his truck with the ST bus. As a result thereof, the appellant sustained serious injuries.
3. After considering the rival submissions and injury certificate revealing nature of injuries in paras 20, 21, 22 and 23, the Tribunal has held as under:-
“20. Petitioner Vashrambhai deposed at Exh.24 that at first, he was taken to Referal Hospital, Vallabhipur and primary treatment was given there. Then he was admitted in Shri Ram Policlinic Hospital, Ahmedabad where he was admitted as on indoor patient for 15 days. He sustained injuries on lip and teeth and also sustained fracture of right hand. Plaster was applied on right hand. He took rest for two months at home. He spent Rs.20,000/- for his treatment, and Rs.10,000/- for transportation and special diet. He was a Railway employee and due to the injuries, there is no decrease in his salary. He is doing table work. During treatment, he was attended by his wife and nephew. In his cross examination, he deposed that he is still serving in Railway Department and there is no change in his salary income.
21. Petitioner has produced Injury Certificate of Dr. Upadhyaya at Exh.26 which reveals that he sustained fracture of Colles (Rt) side and 4 teeth were loosened. Some other Certificates advising rest and fit certificate are also produced at Exh.27, 28 and 20. Treatment papers of Western Rly. Hospital are produced at Exh.30, some medical bills are produced at Exh.31, Pay Slip is produced at Exh.32, and X-ray plate is produced at Exh.33.
22. In Pay Slip of May, 1998 produced at Exh.32, gross salary of the injured is shown as Rs.9964/- per month i.e. say of Rs.10,000/- per month. I have no reason to disbelieve this documentary evidence and income shown therein. As discussed above, petitioner did sustain fracture of colliss and some teeth were loosened but the petitioner did not suffer any disability. The injury certificate produced by the petitioner reveals that the said fracture injury. Petitioner did produce a Disability Certificate at Mark 26/6 wherein his 13% disability is assessed by Dr. Upadhyaya but the same is not admitted, proved and exhibited. Moreover, the injured has admitted in his oral evidence at Exh.24 that he was working in Railway Department and still working there and there is no decrease in his salary after the accident. As such, the petitioner has not suffered any pecuniary loss. He has also deposed that he has to do table work.
23. Looking to the facts, evidence and circumstances of the case, as well as fracture injury of collis, his treatment etc, in absence of any proof of permanent disability, I am of the opinion that petitioner can be awarded a lump sum compensation of Rs.25,000/- under all concerned heads.”
4. Against the above findings, the learned counsel for the appellant has contended that if the salary of the appellant who was doing job in the Railway at relevant time and earning Rs.9,964/- is rounded off to Rs.10,000/- and admitted disability of the body as a whole is assessed by the Tribunal as 13% and by applying multiplier of 13, the claimant/ appellant, who was aged about 50 years, is entitled to receive approximately amount of Rs.2,02,800/-, but, at the same time, considering other attending circumstances and that the appellant was able to discharge his duties after undergoing medical treatment, the claim, which is restricted in this appeal under the head of pain, shock and suffering, was not considered by the Tribunal. In support of his argument, the learned counsel for the appellant has placed reliance on the decision of Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121 and subsequent decisions of the Apex Court and it is submitted that the award and judgment of the Tribunal deserves to be enhanced and modified accordingly.
5. The learned advocate for respondent No.6, however, would submit that the compensation awarded to the claimant is just and fair. After considering the relevant material on record , the award passed by the Tribunal needs no interference in absence of any error of law. Therefore, the appeal deserves to be rejected.
6. Considering the overall facts and circumstances, perusal of material on record and arguments of the learned counsel for the parties, I am of the opinion that the appellant, aged about 50 years, was discharging his duties in Railways on a salary of Rs.10,000/- per month, suffered following injuries:
– Fracture of right arm; injury to teeth and lips
– Disability of 26% for the particular limb- 13% body as a whole because of restriction of wrist movement, weakness of writ and persistent pain. Limitation in day-to-day routine activities.
– 15 days as indoor patient, 2 months and 3 days rest at home.
7. In the above factual aspects and considering Disability Certificates, the claim of the injured appellant herein, under the head of pain, shock, suffering and medical expenses, ought to have been considered by the Claims Tribunal. Having not done so, I am of the view that the claim amount of the appellant under the head of pain, shock and suffering, deserves to be determined and assessed at a lump sum amount of Rs.75,000/- as compensation to be awarded at the rate of 7% interest per annum from the date of filing of the claim petition i.e. 22.11.1998. It is held and declared that the appellant is entitled to receive Rs.75,000/- in addition to the amount of compensation awarded to the appellant by the Tribunal. The above amount of Rs.75,000/- at the rate of 7% interest per annum is to be apportioned as per the liability determined by the Tribunal in its original award, qua the respondent.
The appeal is partly allowed. The judgment and award of the Tribunal is modified to the aforesaid extent.
PIYUSH
(Anant S. Dave, J.)