1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.279 OF 2005 Shri Rajan Mirajkar, Son of Eknath Mirajkar, 45 years of age, married, Bank employee, C/o. Bank of India, Collem branch, Sanguem Goa and presently at Margao-Goa branch and residing at 1st floor, J.B. Apartments above Pastry Palace, near Pandava Chapel, Aquem, Margao-Goa. …. Appellant V/s 1. Raghunath Fatu Mardolkar, major, resident of Pimpalmol, Collem, Sanguem Goa (H.No.not known) Driver. 2. Shamba Kanta Gaonkar, major, resident of Ward 2, Valpoi, Sattari Goa (H.No. not known), Owner. 3. National Insurance Company Ltd., 1st floor, Gaunekar Building, Ponda-Goa, Insurer. …. Respondents Mr. S.S. Kakodkar, Advocate for the Appellant. Mr. E. Afonso, Advocate for Respondent No.3. CORAM : F.M. REIS, J. DATE : 29th APRIL, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 2 16/07/2005, passed by the learned Presiding Officer of the Motor Accidents Claims Tribunal, South Goa at Margao in Claim Petition No.128/2000. 2. The Claim Petition came to be filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of a sum of Rs.10 lacs from the respondents on account of the injury sustained by the appellant in the motor vehicle accident on 14/05/1998. It is the case of the appellant that on the said date the appellant along with others was returning from Collem to Mollem by a hired trax/jeep bearing no.GA-01/U-1483 which was owned by the respondent no.2 and driven by the respondent no.1 and on account of the rash and negligent driving by the respondent no.1, who lost control of the vehicle, they went off the road and dashed against a tree due to which all the occupants of the said vehicle including the appellant sustained serious injuries. On account of the serious injuries sustained by the appellant in the said accident, he lost his speaking power, his face was deformed and the lower jaw got dislocated. According to the appellant he was working as the Chief Cashier with the Bank of India at Collem drawing a monthly salary of Rs.11,104/- and was due for promotion which he failed to avail on account of the said accident. Accordingly, the Claim Petition 3 came to be filed to claim the compensation for the injuries sustained and the losses occasioned to the appellant on account of the said motor vehicle accident to the tune of Rs.10 lacs. 3. The respondents nos.2 & 3 filed their written statement and claimed that the accident occurred on account of the fault of respondent no.1, and disputed the averments put forward by the appellant in their Claim Petition. After issues were framed and recording of evidence, the Tribunal partly allowed the Claim Petition and directed the respondents to pay jointly and severally a sum of Rs.4,16,000/- as compensation together with interest at the rate of 9% per annum from the date of the filing of the Claim Petition up to actual payment. 4. Being aggrieved by the said judgment and award dated 16/07/2005, the appellant has preferred the present appeal. 5. Shri S.S. Kakodkar, the learned Counsel appearing for the appellant has assailed the impugned judgment and submitted that the amount awarded by the Tribunal was on the lower side, as according to him the appellant has sustained permanent disability which prevented him from performing his normal duties and even 4 lost his chance of promotion. The learned Counsel has further taken me through the impugned judgment and pointed out that the Tribunal had erroneously fixed the loss on account of future income only to the extent of Rs.1 lac when the loss sustained by the appellant on such count was much higher. The learned counsel has further submitted that the amount of Rs.75,000/- awarded on account of permanent disability of 75% is also much on the lower side and ought to have been much higher than the one awarded by the impugned judgment. The learned Counsel has further submitted that the Tribunal has erroneously awarded a sum of Rs.75,000/- towards pain and suffering when the sufferings and the pain sustained by the appellant was impossible to be assessed by any particular sum and, as such, the Tribunal ought to have awarded a just compensation. The learned Counsel has further submitted that the Tribunal had erroneously awarded only a sum of Rs.4,16,000/- when the appellant was entitled for a more reasonable compensation than the one awarded by the impugned judgment. The learned Counsel, as such, submitted that the impugned judgment deserves to be modified and the appeal be allowed. 5 6. On the other hand, Shri Afonso, the learned Counsel appearing for respondent no.3 has supported the impugned judgment. The learned Counsel has taken me through the impugned judgment as well as the evidence on record and pointed out that the amount awarded by the Tribunal was much higher than the one appellant would be otherwise entitled. The learned Counsel further submitted that the Tribunal has awarded a sum of Rs.1,40,000/- on account of the loss of amenities and enjoyment of life and diminution of full pleasure of life, besides the sum of Rs.1 lac on account of loss of income which amounts are overlapping and as such the appellant is not entitled for any higher amounts. The learned Counsel, as such, submitted that there is no infirmity committed by the Tribunal and, as such, the appeal deserves to be rejected. 7. Upon hearing the learned Counsel, I have perused the evidence on record as well as the impugned judgment. To a pointed query to the learned Counsel appearing for the appellant Shri S.S. Kakodkar, as to whether the appellant has in fact not been promoted and/or lost his promotional avenues, he informed, upon instructions, that the appellant had already been promoted, though belatedly. 6 8. The Apex Court in the judgment reported in 2011 (1) ALL MR 402 (S.C.) in the case of Raj Kumar V/s Ajay Kumar and Anr. has held at para 13 thus: “13. We may now summarise the principles discussed above: (i) All injuries ( or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability ( except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured- claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors”. 9. Considering the said judgment of the Apex Court, I find that the amount awarded by the Tribunal on account of loss of future 7 income to the extent of Rs.1 lac can be said to be just and proper. Dealing with the contention of learned Counsel Shri Kakodkar that amount awarded on account of the permanent disability is on the lower side, I find that the Tribunal has apart from awarding a sum of Rs.75,000/- on account of the pain and suffering due to the grievous injury sustained in the accident, a further sum of Rs.1,40,000/- for loss of amenities and enjoyment of life and diminution of full pleasure of living. As the said sum of Rs.1,40,000/- has been awarded by the Tribunal on the said count, I find no reason to hold that such amount is not just and proper in the circumstances of the case. But however, the only amount to be considered is whether the sum of Rs.75,000/- awarded by the Tribunal towards pain and suffering is just and appropriate. 10. The evidence of Dr. Vikas Dhupar/AW6 discloses that the appellant has sustained 22.5% of permanent disability due to loss of sensation of right lower lip and loss of function of right lower lip so also difficulty in differentiation between hot and cold substance. Dr. Ponraj examined as AW7 has stated that the appellant had also suffered impediment of speech and inability to do simple calculations and count seriously which affected the functioning of the brain. The appellant was examined. He has stated that he has 8 suffered head injuries as a result he lost smelling sense and his speech is not audible and that he has suffered 75% permanent disability. The appellant was cross-examined on commission. Mr. Pradeep Naik/AW5 has stated that there was no negative effect to the injury to the left eye and that the patient was able to perform his job. Considering all the evidence on record produced by the appellant there is no doubt that the appellant has sustained serious injuries which had inflicted disability in the appellant in performing normal functions. The suffering which he had to bear on account of the injuries sustained in the accident included brain injury as well as the dislocation of the jaw and the other ailments as referred to by the Doctor examined by the appellant discloses that the appellant had to undergo severe pain as well as unbearable sufferings. For such injuries, there is no standard mode to assess the compensation, but however, considering the facts and circumstances of the case and taking into account the amount awarded by the learned Tribunal on account of different heads, I find that the amount of compensation awarded by the Tribunal of Rs.75,000/- on account of pain and suffering is to be enhanced to Rs.1 lac. To that extent, the impugned judgment deserves to be modified. 9 11. It is reported that the amount of compensation as awarded by the Tribunal has already been received by the appellant. As such, the respondents would be liable to pay jointly and severally an excess amount of Rs.25,000/- together with interest thereon at the rate of 9% per annum from the date of filing of the Claim Petition up to actual payment. 12. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award is modified only to the extent that the compensation payable on account of pain and suffering is enhanced from Rs.75,000/- to Rs.1 lac. Remaining part of the award is confirmed. (iii) The respondents are accordingly directed to pay jointly and severally the said excess amount of Rs.25,000/- together with interest thereon at the rate of 9% per annum from the date of filing of the Claim Petition up to actual payment. (iv) The appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-