Point of Law: The insurance company is directed to deposit the said additional amount with interest and proportionate cost with the tribunal within a period of 8 weeks from the receipt of writ of this order.

ORDER :

R.M.Chhaya, J.

1. Feeling aggrieved and dissatisfied by the judgment and award dated 29.5.2019 passed by the Motor Accident Claims Tribunal, Bhavnagar @ Mahuva in M.A.C.P. No.73 of 2016, the original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “Act” for the sake of gravity).

2. The following facts emerge from the record of the appeal:

2.1. That on 24.8.2016 at about 6.30 am, when the appellant as Cleaner was travelling in his own truck being DCM Eicher Truck bearing registration No.GJ-4X-7250 which was being driven as per the traffic rules, a truck came from the other side being driven in a rash and negligent manner and the said truck dashed with the DCM truck of the appellant from the front side because of which the DCM Eicher turned turtled and went into the culvert.

2.2. It is the case of the appellant that because of the said accident, he received serious injuries. An FIR was lodged with the jurisdiction police station and the appellant preferred the claim petition under Section 166 of the Act before the Tribunal which was registered as Motor Accidents Claim Petition No.73 of 2016 and claimed compensation of Rs.25,00,000/-.

2.3. It was the case of the appellant that as an owner of the DCM Eicher Truck, he used to earn Rs.40,000/- to Rs.45,000/- per month. It was the case of the appellant that he was 40 years old on the date of the accident and because of the accident, he had to undergo extensive treatment three times before two different hospitals and had to undergo pain, shock and suffering to a very grave extent. It was originally the case of the appellants that he has sustained permanent disability to the body as a whole to the extent of 60.1%. However, by a Purshis vide Exh.21, the appellant declared before the Tribunal to consider 30% disability of the body as a whole which has been accepted by the tribunal.

2.4. It was the case of the appellant that he was admitted as indoor patient for many days and relied upon documentary evidence Exh.30 (Medical Bills). The tribunal after appreciating the evidence on record determined the income of the appellant @ Rs.5,000/- and upon appreciating the evidence of medical bills on record, while partly allowing the claim petition awarded Rs.2,70,000/- under the head of future loss of income, Rs.10,000/- as actual loss of income, Rs.5,50,000/- as medical expenses, Rs.5,000/- as special diet, transportation and attendant charges and Rs.15,000/- as pain shock and suffering and tribunal, thus passed an award of Rs.8,50,000/- together with 9% interest from the date of the petition till its realization with proportionate costs. Being aggrieved by the same, the appellants – original claimants have preferred this appeal.

3. Heard Mr. Hiren Modi, learned advocate for the appellant – original claimant and Mr. Dakshesh Mehta, learned advocate for respondent No.3. Though served, no-one appears for respondent No.2. As the liability is not denied by the insurance company, presence of respondent No.1 is not essential for deciding the present appeal.

4. With the consent of the learned advocates appearing for the respective parties, the appeal was taken up for its final disposal forthwith.

5. Mr. Modi, learned advocate for the appellant has produced for perusal of this Court the certified copies of the relevant evidence which were produced before the tribunal which have been appreciated by the Court. Mr. Modi has contended as under :

5.1. That the tribunal has committed an error in determining the income of the appellant @ Rs.5,000/- per month. He has relied on the following documentary evidence.