B.N. Karia, J. - The present appellant, who is the original claimant before the Tribunal, being aggrieved and dissatisfied with the judgment and award dated 13.01.1999 passed in M. A. C. P. No. 239/1995 by the Motor Accident Claim Tribunal (Aux.I), Baroda (hereinafter referred to as "the Tribunal") has preferred the present appeal under Section 183 of the Motor Accident Act 1988 (hereinafter referred to as " the")

2. Short facts of the present case may be summarized as under:

2.1 As per averments of original claimant, on 30.12.1994, when the petitioner-original claimant was coming from Jambusar on his Scooter bearing RTO registration No. GJ-6- 5285, after finishing his consultancy work at Shriji Hospital of Dr. Rathod, he was thrown away from his scooter by a DCM Tempo, bearing RTO registration No. GJ-6-T-5070 driven by opponent no.1, who came from opposite direction ie., from Padra in an excessive speed. This accident occurred due to rash and negligent driving of DCM tempo which overtook number of other vehicles, near Vishrampura Bus Stand, JambusarPadra Road. The accident resulted into total damage of the scooter which was dashed behind by DCM Tempo. That, this accident was occurred only because of rash and negligent driving of the opponent no.1. That, a complaint was lodged before the Padra Police Station vide CR No. I-431 of 1994. As per further averments made in the petition preferred by the original claimant, on account of injuries sustained by him, he was taken to SSG Hospital, Baroda, and thereafter, he was taken to Paramount Scan Center for CT Scan of head, as there was a fracture of frontal bone with opening of durameter of brain, and thereafter, he was discharged from SSG Hospital, Baroda for further treatment on 30.12.1994. The petitioner then was shifted to Mahi Hospital of Dr. Manish Shah, Dr. Hiren Bhatt and Dr. Atul Shah. He had sustained grave injuries; as narrated by him in para 11 of the petition. That, due to grievous injuries, his condition was monitored for four days and had consulted Neuro Surgeon for the brain injuries of left frontal bone. That, on 31.12.1994, operation for fracture of frontal bone was performed and durameter of brain was repaired with closure of CLW around left eye. That, on the very same day, Surgeons operated him for his fracture on right hand and reduction of right wrist dislocation with "K" wiring of lower and of right radius bone with repair of extensor random of right index finger with closure of CLW. Thereafter, he was shifted to Mahi Hospital, and thereafter, he was shifted to Navrang Hospital for close orthopedic care and was operated for platting of left radius and ulna with bone grafting was done for fracture dislocation of left humerus reduction of fracture and tension band wiring was done. He was again operated on 7th January 1995. That, after taking treatment, he was in his own hospital as indoor patient. That, he spent Rs. 1 lac towards medicines and doctor charges. That, he was 32 years of age and was having degree of MS and joined with Muniseva Ashram, Vaghodia, Dist: Baroda and worked there upto April 1993, wherein, he was given Rs. 9000/- per month towards salary. Thereafter, he started his own hospital named Maitri Hospital at Sayajigunj Baroda and he was working as a visiting Doctor in different hospitals. That, in the year 1993- 94, he had filed his income-tax return of Rs. 1, 90, 187/- and from 1st April 1994 to the date of accident, his income was Rs. 30, 000/- per month. That, he was in bedridden condition at the time of filing of the petition and was unable to stand on his left leg for longer period to perform operation and due to these sort of injuries, he had sustained disability of not less than 60% to 70%. That, he was young, dynamic and energetic surgeon and was capable enough to earn much more than what he was earning at the time of accident. That, his average future income should be considered at Rs. 50, 000/- per month. That, he suffered great mental pain, shock and agony and losses of income. That, he had incurred huge amount towards medical treatment. That, his wife, who was Physiotherapist by profession and was his caretaker during entire span of treatment. She was earning Rs. 5000/- per month, and thus, she had also lost her income, and therefore, he filed a claim petition claiming Rs. 50, 00, 000/- as compensation on the ground of loss of his practice, future economic loss, transport, caretaker, medicines; including mental pain, shock and agony.

2.2 On receiving notice issued by the Tribunal, opponent no.2 filed his written statement vide Ex. 15 denying contentions raised by the petitioner in his claim petition, including negligency part of the driver of tempo ie., opponent no.1, injuries sustained by the petitioner, as stated in the claim petition, expenditure incurred by him of his medical treatment taken in different hospitals or operation performed on various part of his body, as stated in the claim petition. Contentions as regard pain, shock and suffering allegedly suffered by the claimant, disability suffered by him, loss of income by himself or his wife as a care taker were also not admitted by the opponent no.2. Thus, the claim amount of Rs. 50, 00, 000/- made by the petitioner was exorbitant, as per the say of this opponent. Ultimately, it was requested by this opponent to dismiss the claim petition.

2.3 Opponent no.3 filed its written statement vide Ex. 23 denying contention of the claimant petition stating that the claim was highly exaggerated, too broad and too vague and cannot be allowed. This opponent denied its liability, as the company was not able to trace out and find out alleged vehicle, which was insured with the company. The averments made in para Nos. 5 and 6 of the claim petition were not admitted. The averments made in para 1 to 4, 7 to 9 and 12 to 16 were denied as not true in toto. It was denied that the opponent no.1 was driving his vehicle Metador Tempo rashly and negligently, at the time of the accident. That, petitioner himself was riding his Scooter, bearing registration No. GJ-6-B-5285 in a zig-zag manner speedily in the middle of the road, avoiding the traffic rules and regulations, and without seeing other vehicles, dashed with Metador Tempo, bearing registration No. GJ-6-T5070 driven by opponent no.1 at a very moderate speed. That, the petitioner himself was negligent in causing the accident. The contentions raised in para 11 of the petition were denied by this opponent. The contentions in respect of alleged economic loss caused to the petitioner, conveyance, special diets, medical expenses, medical treatment like permanent and partial disablement were not admitted. Ultimately, it was requested by opponent No.3 to dismiss the petition.

3. Heard learned advocate Mr. Yatin Soni for the appellant and learned advocate Mr. R.G. Dwivedi for the respondent no.3. No arguments were advanced for the respondent Nos. 1 and 2.

4. Learned advocate for the appellant has submitted that the award passed by the Tribunal in favour of the appellant/original claimant is clearly erroneous and against the material placed on record. That though, the income of the original petitioner was at Rs. 1, 81, 620/- per annum, the Tribunal has committed an error in considering his income as Rs. 1, 00, 000/- per annum. That, future prospective income of the appellant was to be considered by the Tribunal. That, disability of the appellant was erroneously considered @ 66% of the body as a whole. That, in fact, the appellant has suffered 77% disability, body as a whole, as he had sustained various fractures and several injuries. That, the Tribunal has committed an error in holding that the appellant is entitled for only 15 years multiplier because the age of the appellant was about 32 years at the time of accident, and therefore, the appellant would be entitled to get multiplier of 18. That, considering the loss of income for about one and half years only, the Tribunal has committed grave error. That, the appellant has suffered actual loss of income for about three and half years. That, total in all 28 operations were performed on the body of appellant, and therefore, he should be awarded at least Rs. 5 lacs on account of pain, shock and suffering. That, the Tribunal has not considered this material aspect and has committed a grave error in not considering certain medical expenses. That, expenditures towards conveyance, lodging, etc, incurred by the appellant during the medical treatment was not considered by the Tribunal and thereby has committed a grave error of law. That, the wife of appellant was a qualified Physiotherapist and attendance expenses and charges towards her performing duty as a caretaker were not considered by the Tribunal, and therefore, it was requested by learned advocate for the appellant to pass an award of additional Rs. 30 lacs in favour of the appellant along with interest by allowing this appeal.

5. From the otherside, learned advocate for the respondent no.3 supported the impugned judgment and award passed by the Tribunal and argued that the Tribunal has rightly considered income of the appellant, as he was a practicing doctor. That, evidence of witnesses were properly considered by the Tribunal. No error was committed by the Tribunal in passing award in favour of the appellant. That, disability at 66% (body as a whole) was rightly considered by the Tribunal. That, certificate of disability (Ex. 63), oral testimony of the witnesses and medical treatment papers were rightly considered by the Tribunal. That, actual loss of income of about one and half year was also considered by the Tribunal. Considering the age of appellant, multiplier of 15 years was rightly adopted. That, medical expenses were also properly considered by the Tribunal on going through the documents Ex. 58, 64, 68, 69 and 61. That, no documentary evidence was produced for conveyance or transporting by the appellant before the Tribunal. However, reasonable compensation on account of transportation, special diet were granted to the appellant. Salary of the appellant in the year 1993 was Rs. 8333/- per month and accident was occurred on 30.12.1994 and during that period, no promotion was secured by the appellant. That, considering the treatment period, the Tribunal has rightly considered actual loss for one and half years to the tune of Rs. 1, 50, 000/-. That, no error was committed in awarding compensation of Rs. 15, 91, 224/-. Hence, it was requested by learned advocate to dismiss the present appeal with costs.

6. Having perused original record of the Tribunal and on hearing learned advocates for the respective parties, we have given our anxious consideration to the matter at issue. Undisputedly, an accident was occurred on 30th December 1994 and before the accident, the appellant was earning Rs. 8, 333/- per month towards his salary in the year 1993. Thereafter, as per evidence, he started his private practice in Baroda at Sayajinagar namely Maitri Hospital. He was also attached with Dr. Shailesh Shah of Vaghodiya for one day in a week and in emergency calls. He was also with Shriji Hospital of Dr. Rathod at Jambusar for one day in a week and in emergency as well as was attending Gorwa Hospital everyday. As per his deposition, he was drawing Rs. 15, 000/- per month plus free accommodation at the time of accident. He has further stated that from the private practice, he earned Rs. 1, 07, 000/- in the year 1993-94, and Rs. 2, 37, 000/- in the last nine months from April to December 1994 (ie., till 30.12.1994(9 months of accident)). In support of his contentions, he has also examined witness namely Shirishchandra Ratilal Desai, Chartered Accountant vide Ex. 46. This witness has issued certificate Exh. 47 and 49, after verifying accounts of the appellant for the years 1993-94 as well as 1994-95. Assessment order was produced vide Ex. 49 and the income tax return was produced vide Ex. 50. Accounts of appellant were verified by this witness for the same year, which was produced vide Ex. 51. In the cross-examination, it appears that the appellant was not his client, but his name was referred by Shri D. K. Thakkar. He had only verified income of the appellant by referring to the accounts of the year 1993-95. Thereafter, no accounts or statement of income of the appellant were referred by this witness. Except verifying the accounts, as stated above, no other related work was done by this witness. If we examine certificates issued by this witness, the total revenue income for the year 1993-94 was assessed at Rs. 1, 90, 305/- and while deducting total revenue expenditure of Rs, 95, 796/-, his net revenue income was assessed at Rs. 94, 509/-. Thereafter, for the next year ie., 1994-95, as per the books, his gross revenue income was assessed at Rs. 2, 38, 005/- and while deducting total revenue expenditure of Rs. 1, 35, 720/-, the net revenue income was assessed at Rs. 1, 02, 285/-. Income of appellant for the year 1994-95 was limited for the period upto December (ie., up to the date of accident). Thus, there is some increase in the income of appellant comparing the previous year. If we consider income of these two years, then it would come to Rs. 2, 30, 229/-. Except this document produced by the appellant through his witness-Chartered Accountant, no other documents were produced showing his income. If this income is divided by two, the average income would come to Rs. 1, 15, 115/- per annum. Thus, we may consider income of the appellant at Rs. 1, 15, 115/- per annum instead of Rs. 1, 00, 000/- as assessed by the Tribunal.

7. Moreover, the Tribunal has considered 66% disability as a whole and calculated the loss of income. Here, this Court would like to refer deposition of Dr. Mahesh B. Patel, wherein, injuries caused to the appellant are described by this witness in his deposition Exh. 62. He has further stated about treatment given to the appellant and disability suffered by the appellant. He has also issued certificate in favour of the appellant. The disability certificate Ex. 63 was also issued by this witness to the appellant assessing 77% disability (body as a whole), though the Tribunal assessed disability of the appellant as 66% instead of 77% body as a whole, which is prima facie against the evidence on record.

8. Therefore, this Court would like to consider 77% disability (body as a whole) instead of 66%. Thus, considering income of the appellant at Rs. 1, 15, 115/- and 77% disability (body as a whole), loss of future income would come to Rs. 88, 639/- per annum and while applying multiplier 16, as per the age of the appellant and applying ratio laid down in case of Sarla Verma and others vs. Delhi Transport Corporation and Anr., (2009) 6 SCC 121 , [LQ/SC/2009/869] the amount would come to Rs. 14, 18, 224/-. Thus, the appellant is entitled to compensation of Rs. 14, 18, 224/- towards his future loss of income.

9. Considering the actual loss, the Tribunal has awarded Rs. 1, 50, 000/- to the appellant for a period of one and half year. This Court, after verifying record of the Tribunal and the period spent towards medical treatment by the appellant, his income as per our opinion would increase to Rs. 1, 72, 672/-of the same period as actual loss. As the appellant has sustained multiple injuries and 23 times different operations on his different parts of body were performed, the appellant must have suffered great pain and shock as well as loss of amenities, and therefore, on this count, this Court would like to award Rs. 3, 00, 000/-on count of pain, shock and suffering as well as amenities. Though, no bills or vouchers were produced by the appellant regarding his transportation in visiting hospitals and other places as well as special diet, this Court would like to award Rs. 25, 000/- each on account of transportation and special diet, and that would come to Rs. 50, 000/-.

10. It appears from the judgment delivered by the Tribunal that no attendant charges were considered by the Tribunal and no amount has been awarded on this count, as claimed by the appellant. Wife of the appellant Dr. Pritiben was examined vide Ex. 40. She is also a practicing doctor in Maitri Hospital and was then earning Rs. 7, 000/- per month, as per her evidence. At the time of accident of her husband, she stopped her practice and engaged herself as an attendant during the course of medical treatment of her husband. She has further stated that in routine work, she was helping her husband as a Physiotherapist. Charges received by her have been stated in her examination-in-chief. She has further stated that one attendant was engaged by her and he was paid Rs. 1800/- per month. Pay book of the staff was produced vide Exh. 39. Though, Tribunal has discussed this aspect in the judgment, however, no amount has been awarded on this count. This Court, considering the fact and evidence on record, is of the view that Rs. 50, 000/- is required to be awarded on the count of "Attendant charges" in addition to the medical expenses incurred by the appellant to the tune of Rs. 2, 41, 324/- and thus, the total net amount would come to Rs. 22, 32, 220/-.

11. The details thereof are as under:

Rs. 1, 15, 115/-

Income per annum

Rs. 88, 630/-

77% disability body as a whole

X 16

Multiplier

=Rs. 14, 18, 224

Future Loss of income

+ Rs. 1, 72, 672/-

Actual loss of income

+ Rs. 3, 00, 000/-

Pain, shock and suffering

+ Rs. 25, 000/-

Transportation

+ Rs. 25, 000/-

Special Diet

+ Rs. 50, 000/-

Attendant Charges

+ Rs. 2, 41, 324/-

Medical Expenses

= Rs. 22, 32, 220/-

Total Compensation

- Rs. 16, 11, 324/-

Compensation granted by Tribunal

=Rs. 6, 20, 896/-

Additional compensation granted by this Court

12. From the record, it appears that Tribunal has awarded Rs. 16, 11, 324/- and thus, while deducting this amount, the appellant shall be entitled to further compensation of Rs. 6, 20, 896/-. The respondent no.3 shall deposit such additional amount of Rs. 6, 20, 896/- before the Tribunal within four months from the date of receipt of the order.

13. Accordingly, this Appeal is hereby partly allowed. Additional amount of Rs. 6, 20, 896/- shall be paid to the appellant by the respondent No.3 alongwith interest @ 12% per annum. However, there shall be no order as to costs.

Registry is directed to send back record and proceedings to the Tribunal.