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FA/411219/1996 1/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4112 of 1996
For Approval
and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
:
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
NARAYANDAS
CHHAGANLAL JOSHI - Appellant(s)
Versus
ARVINDBHAI
CHANDUBHAI PATEL & 1 - Defendant(s)
=========================================================
Appearance
:
MR
MTM HAKIM for
Appellant(s) : 1,
NOTICE SERVED for Defendant(s) : 1,
MR GC
MAZMUDAR for Defendant(s) : 2,
MR HG MAZMUDAR for Defendant(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 06/08/2008
ORAL
JUDGMENT
1. This
appeal is directed against the judgment and award dated 12.04.1996
passed by the Motor Accident Claims Tribunal (Aux.), Vadodara in
M.A.C.T. No. 1906 of 1993 whereby, the claim petition was partly
allowed and the opponents, respondents herein, were jointly and
severally held liable to pay an amount of Rs.35,100/- to the
applicant, appellant, with interest @ 12% p.a. from the date of the
application till its realization.
2. The
facts in brief are that on 02.10.1993 while the appellant was going
to Harni from Fatehpura in his Moped bearing registration No.
GAF-293, a motor-cycle, driven by respondent no. 1 and insured with
respondent no. 2, dashed the Moped of the appellant near Swaminarayan
Temple. As a result thereof, the appellant sustained severe bodily
injuries and was shifted to a nearby Hospital for necessary
treatment.
2.1 Therefore,
the appellant filed a claim petition before the Tribunal claiming
compensation of Rs.1,00,000/-. The Tribunal, after appreciating the
evidence on record, partly allowed the claim petition by issuing
directions as narrated in the earlier part of this judgment. Being
aggrieved by the said award, the appellant has approached this Court
by way of this appeal.
3. Learned
Advocate for the appellant has assailed the impugned award only qua
the assessment made by the Tribunal while calculating income under
the head of future loss of income. He has contented that in spite of
the evidence on record, the Tribunal has taken the monthly salary of
the appellant at Rs.1200/- only and has proceeded on mere
presumptions.
3.1 Learned
Advocate has further contented that if the monthly salary of the
appellant is taken to be Rs.3750/- and if 10% of the said amount is
deducted towards disability, then the loss of income per year would
come to Rs.4500/- and to Rs.67,500/, if the multiplier adopted by the
Tribunal is confirmed. He has, therefore, submitted that the Tribunal
has committed serious error while computing compensation under the
head of future loss of income and the same deserves to be enhanced.
4. Learned
Advocate for the respondent Insurance Company submitted that the
appellant has admitted in his cross-examination that he had no
evidence to show that his monthly salary was Rs.3700/- and therefore,
the Tribunal was completely justified in assessing the monthly salary
at Rs.1200/-. He has further contented that the multiplier of 15
adopted by the Tribunal is on the higher side inasmuch as, at the
time of the incident, the appellant was aged 43 years. He has,
therefore, submitted that the multiplier adopted by the Tribunal also
deserves to be reduced.
5. As
stated herein above, learned Advocate for the appellant does not have
any grievance against the award of the Tribunal so far as it relates
to the findings recorded by it qua the issues regarding negligence
and disability, as recorded by the Tribunal. Hence, so far as the
said aspects are concerned, I am not assigning any reasons and
accordingly, confirm the impugned award of the Tribunal qua the said
aspects.
6. Admittedly,
no documentary evidence was produced on record by the appellant to
show that he was earning monthly salary of Rs.3750/-. Be it may, the
assessment made by the Tribunal that the appellant was earning a
monthly salary of Rs.1200/- is also without any basis and the
Tribunal has arrived at the said amount on mere presumption. In such
circumstance and since in the cross-examination before the Tribunal
the appellant has admitted that his monthly salary was Rs.2470/-, as
against Rs.3750/- claimed by him in the petition, I am of the opinion
that the same could be relied upon for computing income under the
head of future loss.
7. Now,
since the appellant had sustained 10% disability and I have assessed
the monthly salary at Rs.2470/-, the loss of income per month would
be Rs.247/- [rounded of to Rs.250/-] and Rs.3000/- per year. As the
appellant was aged 43 years at the time of the incident, a multiplier
of 13, in my opinion, would be just and reasonable.
8. Consequently,
the appellant shall be entitled for Rs.39,000/- [i.e. 3000 X 13]
towards future loss of income. However, since the Tribunal has
already awarded an amount of Rs.21,600/- under the said head, the
appellant shall be entitled for additional amount of Rs.17,400/-. The
appellant will also be entitled for Rs.19,575/- towards interest @
7.5% p.a. from 22.12.1993 to 22.12.2008 if the payment is made before
that date. Thus, the appellant will be entitled for a total sum of
Rs.36,975/- [17,400 + 19,575] if the payment is made before
22.12.2008. Orders accordingly. The appeal stands disposed of
accordingly. No order as to costs.
[K.
S. JHAVERI, J.]
Pravin/*
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