IMPORTANT POINT
The main legal point established is the entitlement to compensation for future loss of income and future prospects in cases of permanent disablement caused by a motor accident, as interpreted in relevant case law.

JUDGMENT :

1. The challenge is to the judgment dated 28.6.2005 passed by MACT (Aux), Bhavnagar in MACP No.508/94. The injured claimant has prayed for enhancement of the compensation amount primarily on the ground that the Tribunal has not assessed the adverse effect to the potential earning capacity due to the physical injury sustained in the accident and has also failed to appreciate the income from the income tax returns and has erroneously relied upon the statement of income of the year 1998-99 of the accounting year ending on 31.3.1998.

2. Advocate Mr. Sandip Shah for the claimant submitted that the Doctor had certified 42% permanent disability of the right lower limb and the claimant as a victim of the accident is in the business and the disability would affect the earning capacity and thus, submitted that the prospective rise in income was required to be added so as to compensate the injured appropriately. Advocate Mr. Shah submitted that the comparative analysis of the income tax between the year 1993-94 to 1998-99 is on the wrong footing since the Tribunal has taken yearly income of Rs.72,000/- as received by way of remuneration from the firm, while the income noted of the year 1998-99 is the total income over and above the remuneration amount from the firm which includes income of the minor and income from other sources of dividend and interest.

3. Advocate Mr. Shah thus stated that had it been so, then the total income of the year 1994-95 would come to Rs.85,750/-.

4. Per contra, Advocate Mr. Nanavati submitted that the income of Rs.6,000/- has been assessed on the basis of the income tax returns and the comparative analysis of other returns shows that there has been no decrease in the income of the claimant and hence, submitted that no prospective rise in income can be granted. Advocate Mr. Nanavati further submitted that the Tribunal has considered 21% physical disability and now there would not be any scope to enhance the functional disability without any substantial evidence from the treating Doctor who has not been examined by the claimant and the assessment is in accordance to the evidence of Dr. Shah as noted in Exh.53 who had issued Exh.54 permanent disability certificate.

5. Facts of the case as were urged before the Tribunal state that on 29.6.1994, the applicant was going in Tata mobile bus bearing registration no. GJ-3 D-9996 from Bhavnagar to Ahmedabad and during night hours at about 12.30, Nr. Vadtej Village Khari cross lane, a bus bearing registration no. GJ-14 T-729 of the ownership of the opponent no.1 – Maya Travels came in a full speed in a rash and negligent manner and dashed the bus in which the applicant claimant was traveling and because of the heavy push due to dash, the bus ran down the road on the left side. The claimant suffered fracture injury in the right leg and initially he had taken treatment from Dr. Dholakiya at Bhavnagar and thereafter, for further treatment, he had gone to Orthopedic Surgeon, Dr. Bharat Patel, Ahmedabad, where he was operated and plates were inserted. He remained in bed ridden condition for about three months and with the help of walker, he was walking. It is stated that he is a partner in K.S. Engineering Works and because of the injury, it has affected his business and he is suffering from financial loss.

6. The Tribunal on assessment of the evidence by way of FIR and the Panchnama had observed that there was 75% negligence of the driver of the bus bearing registration no. GJ-14 T-729 and 25% negligence of the bus driver bearing registration no. GJ-3 D-9996. Both the buses are insured with the Oriental Insurance Company Limited.

7. The claimant has given his evidence at Exh.29 and he has reiterated the facts. He has also stated that he was also attended by Dr. Mukesh Patel, Neuro Surgeon and he was totally bedridden for three months and thereafter, could gradually recover and was walking with the help of walker.

8. The Tribunal has considered the income tax returns of th