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FA/239/2010 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 239 of 2010
=========================================================
KANUBHAI
RATILAL SHETH - Appellant(s)
Versus
MAFAJIBHAI
AJUJIBHAI THAKORE & 2 - Defendant(s)
=========================================================
Appearance
:
MR
VILAV K BHATIA for
Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 20/04/2010
ORAL ORDER
The
present appeal arises from the award dated 12th November
2008 passed by the M.A.C. Tribunal (Aux.), Ahmedabad in M.A.C.P. No.
324 of 2005 whereby the learned Tribunal has awarded a sum of Rs.
4,54,800/- in favour of the claimant-appellant and has also awarded
interest @ 7.5% per annum on Rs. 4,39,800/-. Aggrieved by the award
the claimant-appellant has preferred this appeal seeking enhancement
in the compensation amount.
The
claimant-appellant had filed M.A.C.P. No. 324 of 2005 under Section
166 of the Motor Vehicles Act claiming Rs. 5,00,000/- towards
compensation in view of the injury suffered by him on account of the
accident. The said claim amount was subsequently enhanced to Rs.
10,00,000/-. In support of the claim petition the claimant-appellant
urged that on 6th February 2005 at about 8.45 hours in the
night when the claimant was returning in his Car bearing registration
No. GJ-1-AP-7675 from Dhragandhra to Ahmedabad one tanker bearing
registration No. GJ-2T-8498 coming from the opposite direction dashed
with his car and on account of the said accident he suffered several
serious injuries and had to be admitted in Sterling Hospital,
Ahmedabad as an indoor patient. It was claimed by the appellant that
he has suffered permanent disability. The claim petition was
instituted and the opponent No. 3 opposed the claim petition. The
learned Tribunal after taking into account the material on record
assessed the future economic loss at Rs. 1,80,000/-, and also awarded
Rs. 25,000/- towards pain, shock and suffering and Rs. 90,000/-
towards actual loss of income. The learned Tribunal also awarded Rs.
1,14,800/- towards medical expenses and Rs. 30,000/- towards special
diet, transportation and attendant charges. The learned Tribunal has
also awarded Rs. 15,000/- towards the damage caused to the car of the
Car. The award came to be passed by taking into account the
claimant’s income at Rs. 30,000/- per month, at the time of accident.
Mr.
V.K. Bhatia learned advocate for the appellant has appeared and
raised two contentions namely (a) the learned Tribunal erred in not
relying on the copy of the income tax return tendered by the
claimant-appellant reflecting that his income was Rs. 14 lacs and;
(b) the learned Commissioner has not given due weightage to the
certificate issued by the Neuro Surgeon while assessing the extent of
liability.
So
far as the contention with regard to the income tax return is
concerned, it deserves to be noted that the learned Tribunal has
taken into account the income tax return (Exhibit 61) tendered on
record by the claimant and upon scrutiny of the said document learned
Tribunal found that the said income tax return was filed on or after
29th October 2005 i.e. much after the date of accident
(i.e. 6th February 2005). In view of the judgment in case
of V. Subbulakshim Vs. S. Lakshmi and another (2008 ACJ 936)
the learned Tribunal came to the conclusion that the income
tax return which was filed after the date of accident cannot be
relied upon and that therefore the said income tax return has not
been relied upon. However, considering the fact that the applicant
was holding Permanent Account Number and was filing income tax return
and in absence of any other cogent evidence the learned Tribunal
assessed the appellant’s income at Rs. 30,000/- per month. It is
pertinent that so far as the said decision of and the assessment by
the learned Tribunal is concerned, the insurance company has not
challenged it. In view of the facts of the case it is not possible to
find any fault with the conclusion of the learned Tribunal in not
relying upon the income tax return which was filed after the date of
accident. Not lot of imagination is required to appreciate the
possibilities behind the process of preparation and behind the filing
of I.T. Return after the occurrence of accident and before the filing
of claim petition or at the time of/during pendency of claim
petition. The view taken by the learned Tribunal is in consonance
with the settled legal position.
So
far as the extent of disability is concerned, the learned Tribunal
has taken into account that by virtue of certificate (Exhibit-63) the
extent of permanent disability was certified at 15% for the whole
body. However, the learned advocates appearing for the contesting
parties had tendered the pursis (Exhibit 62) before the Tribunal
stipulating that the Tribunal may consider the extent of disability
as 10% for the whole body. In view of the stipulation made by the
learned advocate representing the appellant (which is recorded by the
Tribunal) and in light of the fact that the certificate issued by the
Neuro Surgeon was not duly exhibited – as recorded by the Tribunal –
there does not appear to be any error in the finding -conclusion of
the learned Tribunal. When the disability is considered by taking
into account the certificate, certifying the extent of disability of
body as a whole, even otherwise there is no justification to
separately consider one of the certificates issued by the Neuro
Surgeon in respect of the brain functioning i.e. a part of the body
as a whole .
On
overall consideration of the award no case for enhancement has been
made. The appellant has failed to make out any case to demonstrate
and establish any error in the award to warrant interference and/or
grant any enhancement in the compensation awarded by the Tribunal.
Hence,
the appeal fails and the same is rejected.
(K.M.THAKER,J.)
Suresh*
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