IMPORTANT POINT
The main legal point established in the judgment is the assessment of contributory negligence and permanent disability, along with the application of legal principles for future loss of income and compensation amounts.

JUDGMENT :

1. The appeal has been raised by the Insurance Company challenging the judgment dated 17.04.2014 in MACP No.151 of 2012 decided by the Motor Accident Claims Tribunal (Auxi.) Narmada at Rajpipla.

2. The Insurance Company has raised the grounds inter alia to challenge the impugned judgment stating that the issue of contributory negligence has not been considered, though, it was pleaded that the claimant himself was driving his motorcycle in rash and negligent manner and the claimant was plying the motorcycle carrying goods in excessive speed, talking on the mobile phone, and the accident had occurred in the middle of State Highway. The oral evidence was recorded of the driver of the Tanker, who has given the evidence that the claimant was plying the motorcycle in excessive speed on the middle of the road talking mobile phone and that the Tribunal failed to consider so. Another ground of challenge is that the Tribunal was required to assess the permanent partial disability for the body as a whole as 20%, and fell in error assessing it as 40%. The amount under the head of special diet, attendance and transportation is on higher side, and further no amount ought to have been granted under the head of loss of marriage prospect.

3. Mr. Vibhuti Nanavati, learned advocate for the Insurance Company submitted that the evidence of the claimant does not actually prove that he has lost any income because of the accident, and therefore, stated that the amount under the head of future loss of income ought not to have been granted, and further the amount under special diet, attendance and transportation is not in accordance to evidence on record.

3.1 Advocate Mr. Nanavati submitted that Rs.1,00,000/- granted under the head of loss of prospect of marriage, is on erroneous footing, since no such evidence was raised. Placing emphasis on the negligence aspect, Mr. Nanavati stated that the evidence on record of the witness driver was required to be considered, where he, at Exh.30 had given the evidence that it was the claimant who was rash and negligent in his driving.

4. Countering the argument, Advocate Mr. D.N. Pandya for the respondent no.2 submitted that the learned Tribunal after having dealt with the evidence on record had examined the issue and on appreciation of evidence has considered sole negligence of opponent no.1.

4.1 Advocate Mr. Pandya stated that the applicant was on contractual work and in his evidence, he has deposed that the contract was cancelled owing to his inability, and, thus, he was in complete loss of income. Mr. Pandya stated that the evidence on record proves that the functional disability should have been considered as 50%, rather the learned Tribunal has erred in assessing only 40% as functional disability, and, further stated that detail documents are produced on record, and even Doctor Rajendra Lalitchandra Rana was examined at Exh.21 to prove the injuries, which were serious in nature, and father of the injured had given his deposition at Exh.23 to prove the hospitalization and operation, and, further the fact of the claimant, attained by family members as well as one more attendant to take care the claimant.

5. The accident, as was pleaded before the Tribunal suggests that on 21.05.2012, the claimant was going towards his job at C.H.C. hospital, Dabhoi on his motorcycle bearing Registration No.GJ-B-5381, and was passing the village Dajipura Bus Stand, at that time, one Eicher Tanker bearing Registration No.GJ-6-ZZ- 3750, is stated to have come in rash and negligent manner and on the wrong side dashed the motorcycle. It was alleged that driver of the Eicher Tanker was in full speed and had come in rash and negligent manner on the wrong side. The claimant got injuries on loin, pelvis, throat, right tibia-fibula and other parts of the body. He took primary treatment at Pramukh Swami Hospital, Dabhoi, and for further treatment, he was admitted at Ashirvad Hospital, Vadodara, as indoor patient from 25.01.2021 to 30