JUDGMENT :

R.M.CHHAYA, J.

1. Feeling aggrieved and dissatisfied by the judgment and award dated 17.10.2018 passed by the Motor Accident Claims Tribunal (Aux), Vadodara at Savli in MACP no.1934/15, the appellant-insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”).

2. Following facts emerge from the record of the appeal:-

2.1 That the accident took place on 7.4.2004. It is the case of the original claimant that on that day, the claimant along with one Ramuday Prabhuray Kurmi was returning to Sundar Metal Company from Manjusar after completing their work at English Medium School on motorcycle bearing registration no. GJ-6 AJ-7745, which was driven in a moderate speed and on correct side of the road. At that time, a tempo bearing registration no. GJ-6 Y-5467 came from opposite direction being driven in a rash and negligent manner and dashed with the motorcycle, as a result of which, the original claimant and his friend both fell down on the road and the original claimant sustained injuries and his friend – Ramuday Prabhuray Kurmi died during the treatment.

2.2 The original claimant was examined at Exh.15. The original claimant also relied upon the documentary evidences, such as, copy of complaint Exh.26, copy of Panchnama Exh.27, copy of driving license of the tempo Exh.28, copy of R.C. Book of tempo Exh.29, copy of original medical bills Exh.31, copy of consent purshis to treat disability @ 12% Exh.19 and the disability certificate Exh.19/A. It was the case of the original claimant that because of the injuries sustained in the accident, he had acquired 12% disability of the body as a whole that too, at the age of 31 years. It was further the case of the original claimant that he was running a Grocery shop and was also doing agriculture work and was earning Rs.10,000/- per month. The Tribunal considered the income of the original claimant at Rs.4,200/- per month and applied multiplier of 16 and awarded a sum of Rs.97,000/- towards future loss of income. The Tribunal also awarded Rs.8,400/- towards actual loss of income for two months, Rs.1,05,000/- towards medical expenses, Rs.10,000/- towards attendant, special diet and transportation expenses and Rs.15,000/- towards pain, shock and suffering including loss of amenities of life and thus, awarded total compensation of Rs.2,35,400/- along with 9% interest per annum with proportionate costs and interest from the date of filing of the claim petition till its realization. Being aggrieved by the same, the appellant-insurance Company has preferred this appeal.

3. Heard Dr. Rushang Mehta, learned advocate for the appellant – insurance Company and Mr. Mohsin Hakim, learned advocate for the original claimant. The liability is not denied by the insurance Company and more so, the appeal is on other issues and therefore, presence of other respondents is not necessary to decide the present appeal.

4. Dr. Rushang Mehta, learned advocate for the appellant – insurance Company contended that the driver of the goods carriage vehicle involved in the accident was holding a license to drive Light Motor Vehicle (Non-transport) and therefore, there is clear breach of the conditions of the contract and such fundamental breach would absolve the insurance Company from its liability. Dr. Mehta further contended that the Tribunal has, without there being any proof, come to the conclusion that the income of the original claimant was Rs.4,200/- per month. Dr. Mehta contended that even if the minimum wages standard is considered, the same would be hardly Rs.3,000/- per month. Dr. Mehta also made an attempt to contend that the compensation awarded under other heads are also excessive in nature and submitted that the appeal deserves to be allowed by modifying the impugned judgment and award.

5. Per contra, Mr. Hakim, learned advocate for the original claimant has opposed the appeal. According to Mr. Hakim, the Tribunal has correctly assessed