TULSHIBHAI MANJIBHAI BAROT Vs. AHIR SAMANT KARSAN

JUDGEMENT

(1.) The present First Appeal, under Sec. 173 of Motor Vehicles Act, 1988, is preferred by the appellant - claimant, being aggrieved and dissatisfied with the common judgment and award dtd. 25/8/2005 passed by the Motor Accident Claims Tribunal (Auxi.), Fast Tract Court No.4, Morvi in Motor Accident Claim Petition No.74 of 1992, by which the Tribunal has awarded compensation of Rs.33,500.00 with 9% per annum interest till December, 2000 and thereafter, 6% to the claimant, holding Opponents liable, jointly and severally.

(2.) Brief facts of the case are as under:

(3.) Learned advocate for the appellant - claimant has submitted that the Tribunal has committed an error in not properly calculating the amount of compensation. He has submitted that amount awarded is on lower side as the Tribunal has not properly considered the various aspects; like income of the injured, injuries, disability and negligence, etc. He has submitted that the injured was working in salt factory as salt worker and was earning Rs.2,000.00 p.m. as at the time of accident, the injured of aged about 18 years old, but as per the various judgments of the Hon'ble Apex Court, in absence of any documentary evidence, notional income of Rs.1,500.00 per month may be considered. Therefore, the Tribunal ought to have considered Rs.1,500.00 per month income of the injured. He has submitted that the Tribunal has committed an error by not considering the compensation properly under the head of pain, shock and suffering, looking to the injuries sustained by the claimant and considering the decisions of the Hon'ble Apex Court in the case of : (i) National Insurance Company Limited versus Pranay Shethi reported in (2017) 16 SCC 680 :and (ii) Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130. He has submitted that the Tribunal has committed gross error by not considering the disability to the claimant properly. He has submitted that the Tribunal has not properly considered the disability certificates issued by Dr. D.P. Dholakiya, Civil Hospital, Morvi, at Exh.63. They have clearly stated that the claimant has permanent disability to the extent 28% due to fracture of tibia and fibula . Therefore, the disability which should be considered by the Tribunal is to the extent 28% overall and the Tribunal ought to have granted compensation accordingly. He has submitted that the Tribunal has not properly awarded under the head of actual loss of income, which should be Rs.6,000.00 for four, instated of Rs.2,000.00. Under the head of pain, shock and suffering, Rs.25,000.00 should be awarded, instead of Rs.10,000.00, under the head of special diet, transportation and attendant charges, Rs.5,000.00 should be awarded, instead of Rs.3,500.00 which is awarded by the Tribunal. He has submitted that the Tribunal has not awarded any amount towards loss of amenities, which should be Rs.10,000.00 as per various judgment of the Hon'ble Apex Court. He has fairly submitted that the Tribunal has rightly awarded Rs.5,000.00 towards medical expenses, which is just and proper. In view of the above, he has submitted that the appropriate enhancement be made by modifying the award impugned. He has submitted that the appeal may be allowed.