ORIENTAL INSURANCE COMPANY LIMITED Vs. AASHIF ISLAMUDDIN CHHIPA

JUDGEMENT

(1.) The present First Appeal is filed under Sec. 173 of the Motor Vehicles Act, being aggrieved by and dissatisfied with the judgment and award dtd. 29/6/2010 passed by the Motor Accident Claims Tribunal (Aux.), Surat, in Motor Accident Claim Petition No. 802 of 2005, by which, the claim petition of the claimant is partly allowed and thereby granted Rs.9,23,500.00 as compensation with 9% interest per annum, by holding opponents i.e. driver, owner and the insurance company liable jointly and severally.

(2.) Brief facts of the present case are that, on 22/8/2005, claimant - Asifbhai was going on the motorcycle bearing registration No.GJ-5-DQ-6237 as pillion rider with his cousin brother viz., Jamilbhai at night to his home - Harinagar - Udhna from Shyam Market, one Truck bearing registration No.GJ-10-U-4971 has come with rash and negligent manner and dashed with the motorcycle from the back side. Due to that, Asifbhai had falled down from the motorcycle and therefore, the truck has run over the left hand of Asifbhai. He got injuries and shifted to the hospital. Ultimately, Asifbhai has amputated his left hand below the shoulder. He filed a claim petition before the Tribunal claiming compensation of Rs.10.00lakhs. Notices were issued to the opponents - driver, owner and insurance company and the insurance company has filed its written statement before the Tribunal and denied the claim. The Tribunal has framed the issues. Oral as well as documentary evidence were led before the Tribunal. After considering the submissions made by the rival parties, the Tribunal has awarded compensation noted above. Hence, the present appeal is before this Court by the Insurance Company.

(3.) Learned advocate Ms. Karuna Rahevar for the appellant - insurance company has submitted that the Tribunal has awarded Rs.9,23,500.00 with 9% per annum interest which is on higher side as the victim was aged about only 14 years old and was non-earning member, therefore notional income should be considered by the Tribunal. She has submitted that the Tribunal has considered Rs.3,000.00 as income, which is on higher side. She has further submitted that under the head of future loss of income, the Tribunal has considered Rs.5,18,400.00 where the disability to the extent 90% is considered and if we consider the notional yearly income of Rs.15,000.00 of non-earning member, then the amount by applying multiplier of 16 would come to Rs.2,16,000.00. Therefore, she has submitted that the amount under the head of future loss of income which is awarded by the Tribunal is on higher side. She has submitted that the Tribunal has awarded Rs.25,000.00 under the head of pain, shock and suffering and also awarded Rs.2.00 lakhs under the head of amputation of left hand, which is wrongly awarded. She has also submitted that at the best, the claimant could get Rs.3,88,700.00 as compensation under all heads, against which, the Tribunal has awarded Rs.9,23,500.00 which is extremely on higher side. During the course of argument, it was pointed out that as per the decision of Hon'ble Apex Court in the case of Master Mallikarjun versus National Insurance Co. Ltd., reported in (2014) 14 SCC 396, more particularly Para : 12 of the said judgment, where injury above 90%, the total compensation including pain, shock and suffering, loss of amenities should be Rs.6.00 lakhs plus medical expenses only. Therefore, she has submitted that at the best, Rs.6,92,000.00 ought to have awarded by the Tribunal. Therefore, she has submitted that this appeal may be allowed on this count by reducing the amount of compensation.