1. This appeal under section 173 of the Motor Vehicles Act ["the Act" for short] is at the instance of a claimant and is directed against an award dated 21st March 2005 passed by the MACT[Aux.] & Fast Track Court No. 3, Jamnagar in M.A.C.P. No. 21 of 1999, thereby partly allowing the claim petition by awarding a sum of Rs. 61,600/- as compensation for the injuries suffered by the claimant with interest at the rate of 9% p.a from the date of filing of the claim petition till December 2000 and thereafter at the rate of 6% p.a. till the date of payment.

2. Being dissatisfied, the claimant has come up with this appeal.

3. The insurance company is contesting the appeal but in this appeal, it has not filed any cross-objection. So far, the factum of the accident, involvement of the offending car and the fact that the said car was insured with the insurance company are not in dispute.

4. The only question that falls for determination in this appeal is as regards the quantum of compensation. It appears from the record that on 14th October 1988, at about 4.30 hrs when the victim was travelling on his Bullet motorcycle No. GAF 6869 on a public road, a maruti car No. GJ-3-D-9135 came from the opposite direction and collided with the motorcycle of the claimant, as a result, the appellant sustained fracture injury on his right leg from knee to toe and also injuries on the other parts of the body. He was admitted in the hospital at Jamnagar in Orthopedic ward as an indoor patient. According to the claimant, thereafter, he had to remain in bed for ten months. The claimant alleged that he was an agriculturist by profession and was in possession of 145 vighas of agricultural fields and was doing agriculture and consequently, was earning an income of Rs. 15.00 lakh p.a. He, therefore, prayed for compensation of Rs. 15.00 lakh for the injuries suffered by him.

5. In spite of service, the owner or the driver of the maruti car did not contest the proceeding. However, the insurer of the maruti car contested the proceeding by taking leave under section 170 of the Act but did not adduce any evidence.

6. The learned Tribunal below, on consideration of the materials on record, came to a conclusion that the victim had 20% contributory negligence in the accident. The Tribunal below also found that the victim had permanent disability to the extent of 15% on the entire body. The Tribunal, however, did not believe the assertion of the claimant that his yearly income was Rs. 15.00 lakh but decided to treat his monthly income to be Rs. 2,000/- only and on that basis arrived at a figure of future loss by applying multiplier of 15 to arrive at a figure of Rs. 54,000/- as future loss. To that amount, the learned Tribunal added a sum of Rs. 6000/- as actual loss for three months at the rate of Rs. 2000/-, Rs. 4000/- for medical treatment, Rs. 2000/- for special diet, Rs. 2000/- for transportation charges and Rs. 1500/- for attendance with further addition of Rs. 7500/- for pain, shock and suffering to arrive at a figure of Rs. 77000/-. From the said amount of Rs. 15,400/- was deducted as 20% contributory liability and total amount was Rs. 61,600/-.

7. Mr. Mehta, the learned advocate, appearing on behalf of the appellant, first contended that from the evidence on record, there was no justification of holding his client guilty of 20% contributory negligence. Mr. Mehta points out that it will appear from the panchnama that the Bullet motorcycle driven by his client was bound to be on the correct side of the road and on the extreme left of the road and, thus, there was no justification of holding that the victim had 20% contributory negligence.

8. Secondly, Mr. Mehta contends that monthly income of the victim assessed by the Tribunal below is based on no evidence. According to him, there was no justification of curtailing it to a paltry sum of Rs. 2000/-. Thirdly, Mr. Mehta contends that once it is established from the medical evidence on record that due to the injuries, one leg of the victim had become shorter by one inch, award of Rs. 7500/- towards mental pain, shock and suffering and loss of amenity cannot be supported. Lastly, Mr. Mehta prays for enhancement of the rate of interest fixed by the Tribunal below.

9. Mr. Mazmudar, the learned advocate, appearing on behalf of the insurance company has, on the other hand, opposed the aforesaid contentions of Mr. Mehta and has contended that the accident being a head-on collision, the learned Tribunal below was quite justified in assessing 20% contributory negligence of the claimant. Mr. Mazmudar further contends that the victim was hospitalized as indoor patient for just three days and had a simple fracture and, therefore, there was no justification of giving any amount more than the one awarded by the Tribunal below. Mr Mazmudar, therefore, prays for dismissal of the appeal.

10. After hearing the learned counsel for the parties and after going through the materials on record, I find that there is no dispute that the victim is the eldest brother of the family of agriculturists. There is also no dispute that the family of victim is quite well-off having agricultural income and apart from the claimant, he has other brothers and the entire lands owned by the family are in the joint name of the all the brothers.

11. Be that as it may, I find substance in the contention of Mr. Mehta from the above fact that there was no justification of holding that the victim had monthly income only of Rs. 2000/- when it appears that the victim was the owner of a Bullet motorcycle. In such circumstances, in the absence of any documentary evidence, I propose to fix the monthly income of the victim to be Rs. 4,000/-. If I apply the principle laid down by the Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation & Another, reported in [2009] 6 SCC 121 , 30 [LQ/SC/2009/869] % should be added to the said amount and the total prospective future income would come to Rs. 5200/-. It appears from the record that the claimant has suffered 15% permanent disability on his entire body. Therefore, 15% of that amount comes to Rs. 780/-. Since the victim was aged 44 years at the time of the accident, appropriate multiplier should be 14. By converting Rs. 780/- into annual income by multiplying it by 12 and thereafter, by applying multiplier of 14 to the said amount, the amount will come to Rs. 1,31,040/-. In addition to the said amount, after taking into consideration the fact that the victim was otherwise hale and hearty and that due to the accident, his one leg has become one inch shorter, in my view, a sum of Rs. 25,000/- should be awarded for pain, shock, and suffering and loss of amenity in life. Similarly, the actual loss of income for three months should also be treated to be Rs. 12,000/- instead of Rs. 6,000/- awarded by the learned Tribunal below.

12. After going through the entire evidence on record, I am unable to accept the finding of the learned Tribunal below that there was 20% contributory negligence on the part of the claimant. It appears that his motorcycle was lying on the extreme left side of the road and thus, the finding of the Tribunal below that the claimant ought to have applied break cannot be supported. If inspite of remaining on the extreme left side of the road, the accident has occurred and at the same time, the driver of the maruti car has not come forward to depose explaining the accident, it is a fit case that the driver of the motor car should be held to be 100% negligent for that accident. I, therefore, set aside the finding of the Tribunal on the question of negligence. Thus, the total amount comes to Rs. 1,31,040/- + Rs. 25,000/- towards pain, shock, suffering and amenities in life + Rs. 12,000/- towards actual loss of income + Rs. 4,000/- towards medical expenses + Rs. 2,000/- towards special diet + Rs. 2,000/- towards transport charges + Rs. 1500 towards attendance, which will make it a total of Rs. 1,77,540/-.

13. The claimant, in my view, is entitled to get interest at the rate of 12% per annum from the date of filing of the application till 31st December 1999 and from 1st January 2000, he should be entitled to get interest at the rate of 9% p.a till realization. Since the awarded sum has already been deposited by the insurance company, the interest will stop running on the deposited amount from the date of its deposit. Regarding the enhanced amount, the insurance company will pay interest at the rate indicated above till the said amount is deposited. The insurance company is directed to deposit the enhanced amount before the Tribunal below within two months from today. On the deposit of the enhanced amount before the Tribunal within the aforesaid period, the Tribunal will disburse the same in favour of the claimant on proper verification.

14. The appeal is, thus, allowed. The award impugned is modified to the extent indicated above.