JUDGEMENT
-
(1.)The present First Appeal, under Sec. 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company, being
aggrieved and dissatisfied with the judgment and award dtd.
31/8/2012 passed by the Motor Accident Claims Tribunal (Aux.), Nadiad in Motor Accident Claim Petition No. 256 of 2003, by which
the Tribunal has awarded compensation of Rs.1,65,600.00 with 7.5%
per annum interest to the claimants, holding Opponents i.e. driver,
owner and insurance company liable, jointly and severally.
(2.)Brief facts of the case are as under:
2.1 On 9/8/2002, when the claimant was travelling in Rickshaw bearing registration No.GJ-7-W-645 and going from Nadiad to Moti Silod, at that time, opponent No.1 - driver of Tempo bearing registration No.GJ-7-U-5451 came in full speed with rash and negligent driving and dashed with the Rickshaw. Due to that, the claimant received serious injuries i.e. fracture on right leg fibia and other injuries on the body. Therefore, the claim petition is filed to get the compensation of Rs.3.00 lakhs with interest.
2.2 Notices were served to the opponents i.e. driver, owner and insurance company. Opponent Nos.1 and 2 have filed their written statement at Exh.13 and denied all the contentions raised by the claimant. Opponent No.3 - insurance company has filed its written statement at Exh. 28 by disputing all the averments made by the claimant in the claim petition and also disputed the liability.
2.3 The Tribunal has framed the issues. The oral as well as documentary evidence were led by the rival parties before the Tribunal. After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.
2.4 Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present appeal is preferred by insurance company.
(3.)Learned advocate Mr. Paresh M. Darji for the appellant - claimant has submitted that the Tribunal has awarded compensation
of Rs.1,65,600.00 with 7% per annum interest by partly allowing the
claim petition which is highly insufficient. He has pointed out from
the impugned judgment that the Tribunal has considered the income
of Rs.2,000.00 p.m. and 30% disability is considered and applied
multiplier of 18 and therefore, under the head of future loss of
income, the Tribunal has calculated Rs.1,29,600.00. He has further
submitted that the injured is aged about 19 years and he was doing
brick and agriculture labour work. His income as per the deposition
of the claimant himself is Rs.3,600.00 p.m. as the claimant has stated
that he is earning Rs.120.00 per day and the work of brick and
agriculture is such that the work is remained for 30 days in a month.
He has further submitted that by adding 40% prospective income, in
that Rs.3,600.00 p.m., the income should be considered on higher side.
He has further submitted that the disability certificate exhibited at
Exh.43 also indicates 63% permanent partial disability and it is also
coming out from the deposition of the claimant as well as Doctor that
right leg of the claimant was shortened by half inch and accordingly,
applying multiplier of 18 looking to the age, the income could be
Rs.6,85,843.00 under the head of future loss of income. He has further
pointed out that the actual loss of income is considered for four
months by considering Rs.2,000.00 per month income which should be
as per the evidence available on record and looking to the period of
seven months hospitalisation as well as bed rest, after considering
the income of Rs.3,600.00 p.m. for seven months, it comes to
Rs.25,200.00. He has also indicated from the impugned judgment that
towards pain, shock and suffering, the Tribunal has awarded
Rs.20,000.00 which should be at least Rs.50,000.00 as the claimant was
hospitalised for 31 days. The injury over leg and due to that, the
shortening of the leg and disability is also assessed to the extent 63%
and therefore, he has submitted that the amount of at least
Rs.50,000.00 should be awarded under the head of pain, shock and
suffering. Under the head of attendant charges, transportation and
special diet, Rs.3,000.00 is awarded by the Tribunal, which should be
Rs.15,000.00 considering the injuries and period of hospitalisation. The
medical bills are produced which is considered by the Tribunal is
Rs.5,000.00, which should be Rs.20,000.00 looking to the prolonged
treatment and hospital charges and therefore, he has submitted that
substantial rise can be given to the claimant as compensation in view
of the decisions of Hon'ble Apex Court in the case of :- (i) National
Insurance Company Limited versus Pranay Shethi reported in
(2017) 16 SCC 680 and (ii) Syed Sadiq versus United India
Insurance Co. Ltd. reported in 2014(2) SCC 735. Therefore, he
prays that the appeal is required to be allowed by enhancing at least
about Rs.6,30,083.00 as submitted above.