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FA/2039/2007 4/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2039 of 2007
=========================================================
SHARADCHANDRA
UMASHANKAR DAVE - Appellant(s)
Versus
GULABSINH
NATHUSINH BARIYA & 2 - Defendant(s)
=========================================================
Appearance
:
MR
KIRIT R PATEL for
Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 14/08/2008
ORAL
ORDER
Heard
learned advocate Mr. KR Patel on behalf of appellant.
The
appellant has filed this appeal for enhancement in passing the award
by Motor Accident Claims Tribunal, Baroda in MACP no. 1508/1991
dated 18/7/2006. The Tribunal has awarded compensation of Rs.
3,17,200/- with 7.5% interest.
Learned
advocate Mr. Patel raised contention that Tribunal has committed
gross error in not considering future prospect of income received by
claimant, at the time when accident occurred.
He
submitted that on the date of accident, income for the year
1990-1991 comes to Rs. 1,32,933/- and monthly salary was Rs. 3860/-.
Learned advocate Mr. Patel submitted that Tribunal has not assessed
future prospect of income and only considering Rs. 4000/- per month.
Therefore, it is clear case of reducing in calculating income of
claimants. Except that no other submission is made before this
Court by him.
I
have considered submissions made by learned advocate Mr. Patel. The
claim was made by claimant in MACP no. 1508/1991 for Rs. 4,50,000/-
his age was 36 years and Dr. Nirav Harsadray Joshi was examined vide
exh 30 he had explained injury caused to claimant. The claimant was
admitted in Hospital from 21/4/1991 to 30/5/1991 and 57% permanent
partial disability was certified by the Dr. Joshi vide exh 31.
The
Tribunal has considered existing salary of Rs. 3860/- of claimant on
the date on which accident occurred and round figure of Rs. 4000/-
has been taken into account. From the disability certificate body as
a whole, it has been reduced to 30%. Therefore, from salary of Rs.
4000/-, 30% comes to Rs. 1200/- which yearly comes to Rs. 14,400/-
has been awarded by Tribunal. Looking to the age of claimant, 13
multiplier has been applied, which comes to Rs. 1,87,200/- which is
considered to be loss of future income. The Tribunal has awarded
Rs. 25,000/- for medical expenses, Rs. 15,000/- Transportation
attendance, for neutral diet Rs. 5000/-, Rs. 25,0000/- for pain,
shock and suffering, Rs. 60,000/- for loss of income of six months
has been calculated by Tribunal, which comes to Rs. 3,17,200/-.
The
law on this subject is very clear that in injury case, when
compensation is awarded under the head of permanent disability, then
again, awarding compensation for loss of earning capacity would not
arise. In this case, it is not the case of claimant that because of
injury his salary has been reduced. The concept of future income
that it is not mean to work out by applying principles which has
been followed by High Court of Gujarat, but future income means
whatever disability has been received body as a whole by claimant,
it may extent adversely affect for performing duty and work, that
has been compensated by Tribunal. The 30% disability body as a
whole has been accepted and accordingly, Tribunal has made proper
calculation.
It
is necessary to note that claimant was working in Life Insurance
Corporation being corporate body/semi Government institution. In
case, when salary is not reduced because of injury then according to
law, which has been decided by the Division Bench of this Court,
Tribunal shall have to consider ¼th disability of
total as certified by Doctor. Earlier the decision of this Court
reported in 1993(2) GLR 1043, in such case of injury when there is
no loss to earning, 5 multiplier has been applied. That has been
subsequently altered to consider 1/4th disability when
employee of state government or any Corporation. For that
principles, naturally, this compensation bound to be reduced because
from 57% if it is reduce to 1/4th that it comes to 15%.
The
view taken by the Division Bench of this Court in case of the
New India Insurance Co. Vs. Ratilal Jivabhai Patel reported in 1996
(2) GLH 712. The relevant discussion in para 9 is quoted as
under:
?S9. The
Learned Tribunal had before it the evidence of disability of right
lower limb on account of said injury, i.e. permanent partial
disablement capacity determined at 72%. In relation to the entire
body, it is worked out to 1/4th, namely 18%. The learned
Judge unfortunately has taken 50% of disablement and has worked out
compensation on that basis.??
Therefore,
according to my opinion, considering overall compensation as awarded
by claims Tribunal, reasonable compensation has been awarded while
considering entire facts and circumstances of the case and this
Court has to only consider whether total compensation as awarded by
Tribunal is just, reasonable and proper or not.
In
light of the aforesaid back ground, according to my opinion,
Tribunal has rightly assessed income of future prospect and also
rightly calculated amount of compensation. For that, Tribunal has
not committed any error which would require interference by this
Court.
Hence,
there is no substance in the present appeal for enhancement and
appellant is not able to made out any case for enhancement.
Accordingly, present appeal is dismissed.
(H.K.RATHOD,
J)
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