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FA/788/1999 1/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 788 of 1999
=========================================================
GSRTC
- Appellant(s)
Versus
PRASHANT
MURLIDHAR @ MANOJKUMAR SUKHADIA - Defendant(s)
=========================================================
Appearance
:
MRS
VASAVDATTA BHATT for
Appellant(s) : 1,
None for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 12/04/2010
ORAL
ORDER
Heard
Mrs. Vasavdatta Bhatt, learned advocate for the appellant.
Learned
counsel Mrs. Bhatt, at the outset, fairly submitted that in
connection with the same accident, another claim petition was filed
by one Ms. Alkaben Murlidhar @ Manojkumar Sukhadia and appeal being
First Appeal No.787/1999 was filed by the appellant-Gujarat State
Road Transport Corporation against the award passed in favour of the
said Ms. Alkaben Murlidhar @ Manojkumar Sukhadia. The claim petition
filed by the said Ms. Alkaben also was decided by the same common
award, which is impugned in present appeal by the other claimant viz.
Prashant Murlidhar. The said appeal being First Appeal No.787/1999
preferred by the Corporation against the award passed in favour of
Ms.Alkaben has been dismissed by this Court by order dated
05.03.2002.
So
far as present appeal is concerned, by common award dated 31.12.1998
passed in Motor Accident Claim Petition No.566/1997, the learned
Tribunal has awarded Rs.1,92,000/- (comprising Rs.1,44,000/- towards
future loss of income, Rs.15,000/- towards pain, shock and suffering,
Rs.15,000/- towards medical attendance, transportation, special food
etc. and Rs.18,000/- towards the actual loss of income).
Present
appeal has been pending in this Court since 1999 (the appeal appears
to have been filed on or around 19th
February, 1999). Since then, the appeal has remained pending, without
being prosecuted. Any process to the opponents has not been served
until now and the opponent has remained idle and has not passed the
appeal and had not prosecuted it. Now, after lapse of almost 10
years, from the date of award, the appeal is placed for admission
hearing along with an application for stay against the execution of
the award.
Any
order in respect of the said Civil Application also does not appear
to have been passed. The appeal has been restricted against the award
to the extent of Rs.96,000/- only.
It
comes out from the award that on 24th
December, 1995, the opponent herein, along with his sister, was
traveling in the S.T. Bus bearing
Registration No.G-J-1-Z-2643. While returning from Pawagadh, the said
bus met with an accident on account of rash and negligent driving by
the driver of the bus, who lost control of the same, as a result of
which the bus turned turlte and fell into a ditch. The opponent
herein and his sister suffered injuries and both were moved to
hospital for treatment.
It
is the claim of the opponent that at the time of accident, his age
was 22 years and was running a sweet and farsan shop from which he
was earning Rs.3,000/- to Rs.3,500/- per month. As a result of the
accident, he suffered injuries on his right hand, which was fractured
and he had to take treatment as an indoor patient in S.S.G.
Hospital, Vadodara. He also claimed that as a result of the accident,
he had incurred expenses to the tune of Rs.15,000/- towards treatment
and also suffered loss of actual income. The oppoent-original
claimant also asserted that due to the injury he suffered disablement
and it was difficult for him to walk normally, after the accident,
which has caused permanent partial disablement. He, therefore,
claimed Rs.2,25,000/- towards pain, shock and suffering.
After
considering the evidence on record, the learned Tribunal accepted the
claimant’s submission that he was earning Rs.3,000/- to Rs.3,500/-
from his shop. The learned Tribunal observed that in absence of
any contrary evidence there was no reason not to accept the
submission of the claimant, more particularly, when the
appellant-Corporation had failed to disprove the claimant’s assertion
with regard to his income. The learned Tribunal took into account the
Certificate of Dr. Yogesh Parikh at Exh:34 certifying that the
claimant suffered disablement to the extent of 48%. In light of the
Certificate of the doctor, the learned Tribunal assessed the loss of
earning capacity to the extent of Rs.25,000/- (i.e. ?) and by
applying a multiplier 16 (in view of the fact that the claimant was
23 years of age at the time of accident) and has determined the loss
of future income at Rs.1,44,000/-. The Tribunal has awarded
Rs.15,000/- towards pain, shock and suffering and further sum of
Rs.15,000/- towards medical attendance, transportation etc. Thus, the
learned Tribunal has awarded Rs.1,92,000/- in total by adding
Rs.18,000/- towards loss of actual income.
On
perusal of the record, it emerges that the appellant-Corporation did
not produce any evidence to substantiate its defence and/or to
dispute the assertions made by the claimant. The
appellant-Corporation could not disprove or controvert the
Certificate regarding disablement and any contrary evidence was not
produced on record or the said evidence of the claimant has not been
disproved. It is not in dispute that the claimant was running
business of selling sweet and farsan etc. In support of his claim,
the claimant had produced the copies of
registration certificate issued by the Sales Tax Department, on the
basis of which the learned Tribunal accepted the claimant’s
submission that he was running a shop and he derived income from said
business. In view of the limited evidence on record coupled with
absence of evidence from the side of appellant it cannot be said that
the learned Tribunal has committed error in accepting Rs.3,000/- as
the opponent’s income. Taking into account, the Certificate of 48%
disablement issued by the Doctor, the learned Tribunal assessed that
there would be 25% reduction in the earning capacity and hence, the
learned Tribunal took into account Rs.750/- per month as loss of
income and applied multiplier 16. On either of the counts, it is not
possible to find any fault with the conclusion of the learned
Tribunal. The learned Tribunal, in the facts and circumstances of the
case and in light of the evidence pertaining to the income, was just
in assessing loss of income due to permanent disablement to the
extent of 25%.
Mrs.
Vasavdatta Bhatt, learned advocate for the appellant, has submitted
that there was no documentary evidence with regard to the claimant’s
income. The learned Tribunal ought not to have accepted Rs.3,000/- as
claimant’s monthly income and instead, ought to have taken into
account only notional income i.e. Rs.15,000/- per month.
In
view of the observations made by the learned Tribunal, the said
finding is not acceptable and it is not possible to find any default
in the conclusion and decision of the learned Tribunal. It is not
excessive or extraordinary to assume that a person running a shop and
maintaining a family would be earning income of Rs.3,000/- per month.
Likewise, in view of the certificate, either assessment of 48%
permanent disability or the conclusion about loss of income @ 25% due
to permanent disability on account of the accident does not deserve
to be interfered with.
Mrs. Bhatt, learned advocate has not been able to raise any dispute
or contention with regard to the age of the opponent and/or
multiplier applied by the learned Tribunal. She has assailed the
award only so far as the claimant’s income is concerned. Having
regard to the facts of the case and evidence on record, it is not
possible to entertain the challenge. It is without merits and without
any support of evidence.
In
view of the foregoing discussion, the appellant has failed to make
out any grounds in support of the appeal. Appeal, therefore, fails
and deserves to be rejected accordingly.
(K.M.
Thaker,J.)
rakesh/
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