1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 181 OF 2002 John Fernandes, Resident of H.No.3051, Near Post Office, Navelim, Salcete, Goa. ......... Appellant. V/s. 1. Sanjeev Loliencar, House No. (not known), Loliem, Canacona, Goa. 2. Bassir s/o Dasapa Ahmad, C/o. Arun Amibi, Maxem, Canacona, Goa. (H.No. Not known), 3. National Insurance Company Ltd., Marchon Bldg. Near Lohia Maidan, Margao, Goa. .......... Respondents. Mr. C. A. Coutinho, Advocate for the appellant. None present for the respondents. Coram : A.S. Oka, J. Date : 13th August, 2010. ORAL JUDGMENT : 1. Heard learned Counsel appearing for the appellant. By this 2 appeal, the challenge is to the Judgment and Award dated 5th November, 2001 passed by the learned Presiding Officer, Motor Accident Claims Tribunal, Margao in a claim under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the said Act") filed by the appellant. A claim of Rs.5,00,000/- was made by the appellant towards the compensation on account of injuries sustained by him in a motor accident. The Tribunal partly allowed the claim petition and granted a compensation of Rs.3,45,023/- with interest at the rate of 9 % per annum from the date of claim petition until payment. The Tribunal did not grant interest on the amount of Rs.1,15,500/- representing the future loss of income. 2. The case made out by the appellant in the claim petition is that on 21st March, 1995 at about 7 p.m., he was riding a scooter. The accident occurred when the appellant was travelling towards Margao. At that time, a tipper owned by the first respondent, which was insured with the third respondent, came from opposite side and gave a dash to the scooter. As a result of the impact, the appellant fell down. The allegation is that the accident occurred due to rash and negligent driving on the part of the driver of the tipper. The appellant suffered 3 head injury, fracture of 5 ribs and fracture of both the bones of the right forearm. As a result of the injuries sustained, the appellant developed gangrene of the right forearm, which necessitated amputation of his right upper limb, above the elbow. 3. The claim petition was contested by the third respondent (insurer of the tipper). The Tribunal recorded a finding that the accident occurred due to rash and negligent driving of the tipper by the driver. The Tribunal accepted the case made out by the appellant that as a result of the accident he sustained fracture of 5 ribs, a head injury, fracture in right forearm and ultimately his forearm was required to be amputed above the elbow. A contention was raised by the third respondent that there was negligence on the part of the person plying the scooter at the relevant time. The Tribunal negatived the said contention. 4. While arriving at the compensation, the Tribunal awarded a sum of Rs.20,523/- on account of expenses on medical treatment. The Tribunal awarded a sum of Rs.50,000/- on account of pain and suffering. A sum of Rs.8,500/- was awarded on account of charges 4 paid to the attendant. A sum of Rs.2,000/- was awarded by way of travelling expenses. The learned Presiding Officer of the Tribunal held that the appellant could not establish his income, though a case was made out that the appellant was employed in Dubai. Therefore, a notional income of the appellant was taken by the learned Presiding Officer at Rs.15,000/- per year. A multiplier of 18 was applied. As the permanent disability was certified to be 70 %, loss of income was worked out of Rs.1,89,000/- equivalent to 70% of the total loss. That is how the total compensation of Rs.3,45,023/- was fixed by the learned Presiding Officer. 5. The learned Counsel appearing for the appellant has taken me through the notes of evidence and other material on record. He pointed out the endorsements made on the passport of the appellant to show that the appellant was employed in Dubai from 1991 to 1994. He invited my attention to the entry permit issued in favour of the appellant showing that he was to leave for Dubai shortly as he had secured another employment. He invited my attention to the relevant part of the deposition of the appellant. He submitted that it was brought on record in the cross examination of the appellant that he was 5 working for R. Nabola Company in Dubai. But he was unable to produce any document to show that he was working with the said company from the year 1991 till June, 1994. The learned Counsel appearing for the appellant pointed out that on 1st November, 2001, a Certificate issued by Al Naboodah Contracting (L.L.) Company was produced to show that the appellant was employed as a clerk from 1st June, 1991 to 10th April, 1994. He submitted that the said document could not have been discarded by the learned Presiding Officer, as the Tribunal is not bound by the strict rules of evidence. He submitted that the Tribunal committed serious error by taking yearly income of the appellant at the notional amount of Rs.15,000/-. He submitted that the income ought to have been taken at the maximum rate of Rs.4,000/- per month. He invited attention of the Court to the endorsements on the passport of the appellant. He submitted that the compensation awarded is on the lower side. 6. I have given careful consideration to the submissions. There is neither an appeal nor a cross objection filed by any of the respondents. Therefore, the only question which is to be considered is as regards the quantum of compensation awarded by the Tribunal. The 6 learned Counsel appearing for the appellant has claimed enhancement only on one ground that while calculating loss, an income from the salary amount ought to have been taken at least at Rs.4,000/- per month. 7. Perusal of the evidence of the appellant shows that in the examination-in-chief, it is merely stated that he was working in Dubai and had returned to Goa in 1994. However, he produced his passport on record. He also produced the entry permit which he had received from the Ministry of Interior, United Arab Emirates, which is marked Exhibit 18/X. He pointed out that he was to return to Gulf two days after the date of the accident. He merely stated that while he was working in Dubai he was earning Rs.8,000/- per month and was working for a construction company. He stated that he was unemployed. In the cross examination, he named the employer and stated that he was working from the year 1991 till June, 1994 and was drawing a salary of Rs.8,000/- per month. 8. As regards the Certificate dated 13th April, 1994 of the alleged employer of the appellant produced on record, the learned 7 Presiding Officer of the Tribunal has noted that the same was tendered after dictation of the Judgment. It was tendered at a stage when no opportunity was available to the respondents to deal with the said document. Therefore, no fault can be found with the learned Presiding Officer for discarding the said document. 9. However, the original passport of the appellant is placed on record. True translation of the entries made in Arabic language of the said passport has been placed on record. One entry shows that the appellant was granted employment visa on 7th July, 1991 and he arrived at the Dubai airport on 19th July, 1991. Thereafter, it appears that on 30th October, 1994 he was granted visiting visa. Thus the endorsement shows that at least on 7th July, 1991 he was granted employment visa which shows that at least in July, 1991 the appellant had secured employment at Dubai. There is an entry that on 15th August, 1991 the appellant was granted residence permit and the name of the sponsor is Al Naboodah Construction Company which is the employer of the appellant. Therefore, it can be safely stated that the appellant was employed in U.A.E. between the year 1991 and 1994. The document at Exhibit 18/X shows that the entry permit was again granted to the 8 appellant on 12th March, 1995 by United Arab Emirates for the purposes of employment. It appears that the name of one construction company has been shown therein as a sponsor. The name and profession of the appellant is shown as Administration Clerk/General. There is one more relevant aspect. Perusal of the passport of the appellant at Exhibit 17 shows that on 12th January, 1990, the profession of the appellant was changed as “private service”. 10. It is true that the appellant has not adduced evidence to show his income in U.A.E.. The learned Presiding Officer adopted the notional income prescribed by the structured formula under Section 163A of the said Act. The structured formula was brought under the statute book in the year 1994. The structured formula provides for taking notional income of non-earning persons at Rs.15,000/- per year. In the present case, there is material on record to show that the appellant was employed in Dubai, at least from the year 1991 onwards till the year 1994. He had secured entry permit in March, 1995 for the purposes of employment in the said country. Therefore, the learned Presiding Officer has committed an error by taking the notional income of the appellant at Rs.15,000/- per year which could 9 have been taken only in case of a non-earning person. Estimation of compensation in such cases always involves guesswork to some extent. Considering the fact that the appellant was employed in U.A.E., reasonable income of Rs.2,000/- per month can be taken. As the age of the appellant at the time of the accident was 28 years, as per the decision of the Apex Court in the case of Sarla Verma(Smt.) ors. vs. Delhi Transport Corporation and another, (Civil Appeal No.3483/2008) multiplier of 17 will have to be adopted. After adopting the multiplier of 17, the total amount comes to Rs.4,08,000/-. Seventy percent of the said amount comes to Rs.2,85,600/-. Under the other headings, a sum of Rs.1,56,023/- has been already awarded by the learned Presiding Officer. To that, a sum of Rs.2,85,600/- will have to be added. Thus, the total compensation comes to Rs.4,41,623/-. 11. The learned Presiding Officer of the Tribunal has not granted interest on the sum of Rs.1,15,500/- which represented the future loss of income, from the date of the award. The calculation of the said amount on the basis of the income of Rs.2,000/- per month, comes to Rs.1,74,000/-. As done by the learned Presiding Officer, 10 interest on the said amount cannot be granted. 12. As far as enhanced amount payable under the modified award is concerned, it must be noted that during the last few years rates of interest of nationalised Banks have been reduced considerably. Therefore, on the enhanced amount, interest will have to be awarded at the rate of 7.5 % per annum from the date of filing of the claim petition till the deposit of the amount. Hence the appeal will have to be allowed partly and I pass the following Order : (I) The impugned Judgment and Award is modified. The total compensation payable to the appellant will be Rs.4,41,623/-. (II) On the enhanced amount of compensation, the appellant shall be entitled to interest at the rate of 7.5% per annum, from the date of filing of the claim petition till the date of deposit of the enhanced amount with the Tribunal. (III) No interest shall be payable on the sum of Rs.1,74,000/- which represents the future loss of income from the date of the award of the Tribunal. (IV) Rest of the Award made by the Tribunal stands confirmed. (V) Time of 8 weeks is granted to the third respondent to 11 comply with the modified award by depositing the requisite amount with the Tribunal. (VI) The appeal is partly allowed in above terms, with no order as to costs. A.S. OKA, J. ssm.