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FA/2571/2007 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2571 of 2007
With
CIVIL
APPLICATION No. 7422 of 2007
In
FIRST APPEAL No. 2571 of 2007
=========================================================
GSRTC
- Appellant(s)
Versus
DR.RAJESH
BHAGATRAM SAIGAL & 1 - Defendant(s)
=========================================================
Appearance :
MRS
FALGUNI D PATEL for Appellant(s) : 1,
None for
Defendant(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 11/07/2008
ORAL
ORDER
Heard
learned Advocate Ms. Falguni D. Patel for the appellant ? GSRTC.
Through
this appeal, the appellant Corporation has challenged the award made
by the Joint District Judge, FTC NO.1, Ahmedabad (Rural) at
Ahmedabad in MAC Petition NO. 1850 of 1990 dated 29th
November, 2003 wherein the MACP filed by the claimant is allowed and
amount of Rs.1,17,000.00 is granted to the claimant from the
appellant corporation with interest thereon at the rate of 9 per
cent per annum from the date of claim petition till realization with
proportionate costs to the claimant while clarifying that the amount
paid as interim compensation under section140 of the MV Act, 1988
to be adjusted.
Learned
Advocate Ms. Patel for the appellant Corporation has raised the
contention that there is no sufficient documentary evidence produced
by the claimant for his income before the Tribunal and yet, the
Tribunal has fixed the income of the claimant at Rs.5000.00 p.m. She
has also raised the contention that the 10 per cent disability for
the body as a whole decided by the Claims Tribunal is on higher
side. She has also submitted that looking to the age of the claimant
33 years, multiplier of 15 adopted by the claims tribunal is also on
higher side. She also raised contention that there is no evidence
produced by the claimant about the loss of earning or income. Except
that, no other contention was raised by the learned Advocate Ms.
Patel before this Court while challenging the award in question. No
decision was cited by her in support of the contentions as aforesaid
recorded by this Court.
I
have considered the contentions raised by the learned Advocate Ms.
Patel. I have also perused the award in question. So far as the
factum of accident in question is concerned, advocate Mr. Acharya
appearing for the Corporation before the Claims Tribunal has not
objected the same and on the contrary, he has admitted that accident
in question has taken place because of the rash and negligent
driving on the part of the driver of the ST Corporation.
The
Claims Tribunal has considered the quantum point on claimant side
that the claimant is a Doctor and earning Rs.5000.00 p.m. Injury
certificate is produced at Exh. 22 and disability certificate is
produced at Exh. 23. It was observed by the Claims Tribunal in para
6 of the award that both the contesting parties have consented to
accept permanent disability for the body as a whole at the rate of
10 per cent. While considering the income point, the tribunal has
considered the income of the claimant on the basis of his
profession of doctor and believed his statement on oath. No evidence
to the contrary was produced by the corporation on record before the
claims Tribunal in respect of the income. Monthly loss of income
comes on the basis of 10 per cent disability for the body as a
whole, for that, no proof is necessary to be produced by the
claimant but it should have to be worked out on the basis of 10 per
cent disability for the body as a whole. Therefore, accordingly, the
claims tribunal has considered the loss of income at Rs.500.00 and
annual loss of income would come to Rs.6000.00. As per my opinion,
multiplier of 15 is rightly applied by the claims tribunal looking
to the age of the claimant 33 years as the accident is of 10th
May, 1990. It is necessary to note that MACP No. 1850 of 1990 is
decided by the Claims Tribunal after thirteen years on 29th
November, 2003 and now law of the year 2008 has been cited by the
lawyer for the corporation. It is really embarrassing for the Court
to consider the impugned award passed by the Claims Tribunal on 29th
November, 2003 in respect of the accident dated 10th
May, 1990 on the basis of the law of the year 2008 decided by the
apex court on the ground that considering the age of claimant 33
years at the time of accident, multiplier of 15 is on higher side
though no such point was canvassed by the appellant before the
claims tribunal. Therefore, according to my opinion, the claims
tribunal is right in examining the matter and applying multiplier of
15 which was made available according to the law established in the
year 2003. Therefore, the Claims Tribunal has not committed any
error in applying the multiplier of 15 considering the age of the
claimant 33 years. Accordingly, the Tribunal was right in granting
Rs.7000.00 for the pain, shock and suffering of the claimant and
Rs.3000.00 for special diet, transportation and attendant charges
etc. and Rs.12000.00 towards medical expenses. Claimant was claiming
actual loss of income for two months but looking to the facts on
record, the claims tribunal held that the claimant will be entitled
to get Rs.5000.00 under the head of actual loss of income and, thus
claims tribunal held that the claimant will be entitled to get
Rs.1,17,000.00 as compensation. Learned Advocate Ms. Patel has not
challenged the rest of the amounts awarded by the claims tribunal.
Therefore, relevant discussion made by the Claims Tribunal in para 6
of the impugned award is reproduced as under:
?S6. So
far the quantum point is concerned, it is the case of the claimant
side that the claimant is a doctor and earning Rs.5000=00 per month.
Injury Certificate is produced at Exh.22 and disability certificate
is produced at Exh. 23. Both the contesting parties have contested
to accept permanent disability body as a whole at the rate of 10%.
So far the income point is concerned, the claimant is a doctor and
so naturally he must be earning Rs.5000=00 per month. So the monthly
loss of incom e would come to Rs.500=00 and yearly loss of income
would come to Rs.6000.00. So far point of granting multiplier is
concerned, the claimant has asked for grant of 15 multiplier and
that point is not objected by other side. Furthermore, the age of
the claimant was 33 years at the time of occurrence. So grant of 15
multiplier is just and reasonable in this regard. So if Rs.6000.00
is multiplied by 15, then, it will reach to Rs.90000.00. The
claimant will be entitled for the amount of Rs.90,000.00 under the
head of future loss of income. So far the point of pain, shock and
suffering is concerned, the claimant has asked for granting
Rs.10,000.00 under this head. But it is some what exaggerated
amount. I am of the opinion that Rs.7,000.00 will be just and
reasonable under this head. The claimant has prayed the amount of
Rs.5,000.00 under the head of special diet, transportation,
attendant charges etc. But if we go through the record, he has been
treated as indoor patient for 12 days only. So the amount of
Rs.3000.00 will be just and reasonable under these heads. The amount
of Rs.12,000.00 will be just and reasonable towards medical
expenses and the medical bills are also produced on record of nearly
Rs.12,000.00. The claimant has claimed the actual loss of income for
two months but looking to the facts of the record, I am of the
opinion that the claimant will be entitled for one month’s actual
loss of income. Hence, the claimant will be entitled to get
Rs.5,000.00 under the head of actual loss of income. Thus, the
claimant will be entitled to get Rs.1,17,000.00 as compensation.??
I
have considered the reasoning given by the Claims Tribunal as well
as the consent given by the advocate for the corporation before the
Claims Tribunal on both the occasion, one accepting the negligence
on the part of the driver of the bus of the ST Corporation in
driving the vehicle in question and also accepting the 10 per cent
disability for the body as a whole. Therefore, naturally, as a
doctor, a reasonable amount is rightly fixed by the claims tribunal
and for that, it cannot be considered to be on higher side and the
loss of income is the natural consequence to be determined on the
basis of the disability decided by the Claims Tribunal and,
therefore, according to my opinion, the compensation awarded by the
Claims Tribunal cannot be considered tobe on higher side but it is
just and reasonable compensation awarded by the claims tribunal.
Tribunal has applied mind and considered the record and consent
given by the advocate for the corporation and rightly awarded just
compensation. In doing so, the claims tribunal has not committed any
error which would require interference of this court and, therefore,
there is no substance in this appeal and same is required to be
dismissed.
Accordingly,
for the reasons recorded here in above, this appeal is dismissed.
Amount deposited by the appellant Corporation in the Registry of
this Court be transmitted to the Claims Tribunal immediately.
As
the first appeal has been dismissed by this court, no orders are
required to be made on the aforesaid civil application. Therefore,
Civil Application No. 7422 of 2007 for stay is also disposed of.
(H.K.
Rathod,J.)
Vyas
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