1. The appellant herein has challenged the award dated 11.10.1995 passed by the Motor Accident Claims Tribunal (Main), Sabarkantha at Himmatnagar in Motor Accident Claims Petition No. 255 of 1992 so far as the Tribunal awarded only Rs. 1,99,000/- as compensation with interest and costs.
2. It is the case of the appellant that on 07.12.1991 while he was travelling in a mini truck driven by the original opponent no. 1 in a rash and negligent manner, the opponent no. 1 lost control of the truck as a result of which the truck dashed with a tree. The appellant sustained severe injuries in the said accident. The appellant therefore filed claim petition for compensation to the tune of Rs. 4,50,000/-. The Tribunal after hearing the parties passed the aforesaid award.
3. Ms. Varsha Brahmbhatt, learned advocate appearing for Ms. Kalpana Brahmbhatt for the appellant submitted that the Tribunal erred in assessing the loss of earning capacity of the appellant only up to the extent of 50%. She submitted that the Tribunal has erred in law in brushing aside the uncontroverted testimony of the doctor wherein he has clearly stated that the appellant had lost the earning capacity up to 100%.
3.1 Ms. Brahmbhatt further contended that the Tribunal has erred in awarding only Rs. 20000/- towards pain shock and suffering. She has placed reliance on a decision of the Division Bench of this court passed in First Appeal No. 2071 of 2005 on 23.12.2011 and submitted that the appellant herein also ought to have been awarded Rs. 4 lakhs towards pain shock and suffering.
3.2 Ms. Brahmbhatt submitted that the Tribunal has erred in law in not considering the future medical expenses which the appellant would require to incur on account of the permanent disability as the appellant is suffering from severe paraplegia.
4. Mr. Parikh, learned advocate appearing for the respondent – Insurance Company has supported the award passed by the Tribunal and submitted that the income assessed by the Tribunal is on higher side. He submitted that the amount awarded by the Tribunal under the head of pain, shock and suffering is just and proper on the facts and circumstances of the present case. He further submitted that the Tribunal has rightly not awarded any amount under the head of future medical expenses in view of the fact that no evidence was laid down with regard to the same.
5. Having heard learned advocates for the respective parties and having perused the papers on record, more particularly the impugned award, this Court is of the opinion that the Tribunal is justified in arriving at the conclusion that the original opponent no. 1 was negligent. As far as the quantum of compensation is concerned, the Tribunal has rightly assessed the income of the deceased at Rs. 1800/- per month and Rs. 21,600/- per annum. Nothing is pointed out to take a different figure in that regard.
6. In the present case the Tribunal has considered the loss of earning capacity at 50%. Considering the peculiar facts and circumstances of the case coupled with the evidence of the doctor, this Court is of the opinion that the Tribunal has assessed the disability on lower side. The Tribunal ought to have assessed the disability at 75% considering the fact that the appellant cannot stand on his own and that he cannot continue with his bakery business. The appellant sustained paralytic effect from shoulder to leg and therefore 75% loss of earning capacity is just and proper. Accordingly, the loss of earning capacity shall be Rs. 16,200/- per annum.
7. I am of the view that, looking to the age of the claimant, the multiplier of 14 awarded in the present case is on higher side. The just and proper multiplier would be 11. Therefore the future loss of income would come to Rs.1,78,200 (Rs.16200 x 11). As against this, the Tribunal has awarded Rs. 1,51,200/- and therefore the appellant shall be entitled to an additional amount of Rs. 27000/- under this head.
8. As regards the contention regarding pain shock and suffering, this Court is of the view that the Tribunal has awarded lesser amount under the said head. Learned advocate for the appellant has relied upon the division bench judgement. In the said case, the appellant was 18 years old whereas in the present case the appellant at the time of accident was around 47 years old. Considering the facts and circumstances of the case, this court is of the view that an amount of Rs. 1,10,000/- shall be just and proper. The Tribunal has already awarded Rs. 20000/- under the said head and therefore the appellant shall be entitled to an additional amount of Rs. 90000/- under the said head. The rest of the awards under various heads are just and proper and no interference is required.
9. Accordingly, appeal is partly allowed. The appellant shall be entitled to an additional amount of Rs. 1,17,000/- alongwith interest at 7.5% from the date of application till realisation. The award of the Tribunal is modified accordingly. No order as to costs.
(K.S. JHAVERI, J.) Divya//