J.R. Vora, J.
1. This First Appeal is preferred by the original opponent No. 1 Gujarat State Road Transport Corporation and opponent No. 2 Valimahmad Umerkhan, Driver of original Opponent No. 1 under Section 173 of the Motor Vehicles Act, 1988, against the judgment and award delivered by Motor Accident Claims Tribunal(Auxilliary), Baroda, on 30th of August, 2006, in Motor Accident Claim Petition No. 2064 of 2007.
2. According to facts of the case, present opponent i.e. original claimant Madhusudhanbhai Pushkarrai Dave, preferred Motor Accident Claim Petition No. 2064 of 1997 on the facts that he had been to Ahmedabad from Baroda and for returning to Baroda, he reached near S.T. Bus stand at Gitamandir, Ahmedabad. Appellant No. 2 - Driver had parked the bus bearing No. GJ-18-V-733 in the ST Bus Stand. This was the bus from Radhanpur to Surat and was at Ahmedabad Bus Stand for taking passengers for onward journey till Surat. The original applicant - respondent herein attempted to board in the bus from the front door of the bus and at that time the Conductor gave a signal to start the bus and the Driver i.e. appellant No. 2 herein suddenly started the bus. On account of this, original applicant - Madhusudhanbhai Pushkarrai Dave, who was in process of boarding in the bus was thrown out of the bus and his legs came underneath the wheels and both the legs were seriously injured. He had to take very long painful treatment and he was an Automobile Engineer and was doing business in the name and style of 'Shyam Enterprises'. It is the case of the applicant that he was earning Rs. 1,50,000/- per year and, therefore, the claim petition was preferred for the compensation of Rs. 20 lacs.
3. Though, it was vehemently urged before the Tribunal that the applicant himself was contributory negligent in causing the accident, but the Tribunal came to the conclusion that the applicant was negligent to the extent of 10% in causing the accident while present appellant No. 2 Driver was responsible for causing accident to the extent of 90%.
4. So far as assessment of the damages is concerned, the applicant was examined and income tax returns certificate was produced on record vide Exhibit - 31 and accordingly monthly income of the applicant - injured was established to the extent of Rs. 5,000/- per month. For the permanent disability, Dr. Milanbhai Doshi has been examined vide Exhibit 158, who assessed the permanent disablement of the injured and produced on record the disablement certificate at Exhibits-159 and 162. Accordingly and in view of the evidence of Dr. Milanbhai Doshi, it is established that the injured claimant was treated by this Doctor and left leg of the claimant was amputated above the knee. This witness assessed disablement of this limb to the extent of 90% while there was a fracture on right leg and a bone was required to be removed and the permanent partial disablement on right leg was considered by this Doctor to the extent of 30% of this limb. However, the learned Tribunal considered the total permanent disablement of the claimant to the extent of 100% and after considering the income of the injured at Rs. 5,000/- per month and after applying 14 multiplier to the future economic loss, the Tribunal awarded Rs. 7,80,000/-. The Tribunal also awarded Rs. 1,25,000/- for pain, shock and suffering; Rs. 33,000/- towards medical expenses because the bills were produced on record vide Exhibits 39 to 142. The learned Tribunal also awarded Rs. 30,000/- towards special diet and attendant and transport charges and Rs. 50,000/- towards injury to the disability, totalling to Rs. 10,18,000/-. After deducting the amount to the extent of 10% - contributory negligence of the claimant, the Tribunal awarded in all an amount of Rs. 9,16,200/- to the claimant with running interest at the rate of 7.5% per annum, from the date of application till realization.
5. Learned Advocate Mrs. Vasavdatta Bhatt, for the appellant was heard in detail in this respect while Rule is served to the Opponent, but none appears.
6. Learned Advocate for the appellant vehemently urged that at least the claimant could have been held negligent to the extent of 50% instead of 10% as he tried to climb the bus from front door which is not admissible and Driver i.e. appellant No. 2 has been examined by the appellant at Exhibit - 167 and accordingly, in fact, claimant was moving with the bus by holding the rod at the front door of the bus and with the moment of the bus and also on account of crowd, the applicant lost the grip on the rod and on account of that, the accident occurred. In fact, according to the deposition of the appellant No. 2, the accident took place when the bus was standing and not when the bus was in the motion. In fact, appellant No. 2 - Valimahmad Umerkhan deposed that when bus halted near Gitamandir Bus stand, passengers rushed to board the bus and in attempt to grip the rod near the front door of the bus, the claimant was thrown down and rear wheel of the bus was ran over the legs of the claimant. It is submitted that the theory which was advanced by the applicant in claim petition has been deviated by him in the cross-examination in his deposition. It is further submitted that the assessment of damages by the Tribunal also, the Tribunal has not followed the principle of Dr.Koslar that disablement of a limb would be half for the whole body, and at the most, disablement would come to 60% according to principle of Dr. Keslar instead of 100% as has been considered by the Tribunal. Therefore, it is submitted that the claimant is required to be held responsible to the extent of 50% in causing the accident and that assessment of damages by the Tribunal is erroneous and on these both counts, the compensation is required to be reduced.
7. We have gone through the record and proceedings extensively and we have taken into consideration the contentions raised on behalf of the appellants. We find that the factum of the accident has not been in dispute. Though Driver of the bus is appellant herein has been examined as a witness before the Tribunal and accordingly the case of the present appellants is that in mobile bus, claimant attempted to climb up and was thrown out and his legs were crushed in the rear wheel of the bus. The Conductor of the bus, has been examined as a witness, has no personal knowledge of the accident as he was inside the bus and was busy in the booking. From the First Information Report and from the panchnama of scene produced at Exhibits 22 and 23, as held by the Tribunal, it clearly appears that there were brake marks on the road, which suggests that the brakes were applied only after the claimant had thrown out of the bus. In any case, it is the established fact that the claimant attempted to board the ST bus from front door and at that juncture of time it was the duty of the Driver to notice that and not to start the bus when the claimant was in climbing process and, therefore, we do not incline to interfere in the conclusion of the Tribunal to hold Driver of the ST bus was responsible for the accident to the extent of 90% and the claimant to the extent of 10%.
8. So far as compensation is concerned, true it is that, the rule of Dr. Kelsar that disability of limb is half disability for the whole body and accordingly there is no reasons advanced by the Tribunal for assigning 100% disablement of the claimant. At the same time, the fact remain that one leg of the claimant was amputated and one leg also suffered disability to the extent of 30% of this limb. Along with this fact, it is required to be considered that though no evidence in regard to the income and the payment has been produced, but in deposition, the claimant stated that he was a Diploma in Automobile Engineering by education and was doing business in the name and style of 'Shyam Enterprises' and was also working as part time Lecturer for 20 days in a month and was earning Rs. 2,500/- per month. It is also true that the claimant is not absolutely stationary today but from Income Tax Returns produced at Exhibit - 31 the income of the claimant has been assessed by the Tribunal at Rs. 5,000/- per month. It is clearly noticeable that as per the settled principle, the Tribunal did not consider the prospective income of the claimant. Keeping this in mind, keeping in mind that the claimant was qualified to earn and prosper in future and also keeping in mind one more fact that the claimant was aged 29 years at the time of the accident and only 13 multipliers are applied in an injury case like this, we do not propose to interfere in overall amount of compensation awarded by the Tribunal. It may be that the Tribunal might have not followed the rule of Dr. Kelsar about the permanent disability. At the same time, the Tribunal was conservative in assessing the income of the claimant as well as applying multiplier which would be little higher than 13 in the facts and circumstances of the case. We, therefore, do not accept the arguments advanced by the learned Advocate for the appellants in this regard as well.
9. In view of above, this Appeal stands dismissed. Ad interim relief granted earlier shall stand vacated.