1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.188 OF 2006 AND MISCELLANEOUS CIVIL APPLICATION NO.791 OF 2010 Smt. Sunanda alias Urmila U. Kalangutkar, wife of Shri Umesh Kalangutkar, aged 48 years, r/o. House No.176, Gudi Wada, Neura, Tiswadi, Goa. …. Appellant/original claimant V/s 1. Shri Surendra Ramdas Naik Nachinolkar, r/o. Thorlem Bhat, Dongri Neura, Tiswadi, Goa. 2. Shri Jeevan Suryakant Kuttikar, r/o. Dhaktem Bhat, Dongri, Neura, Tiswadi, Goa. 3. United India Insurance Co. Ltd., Damodar Chambers, II floor, near Municipal Garden, Panaji, Goa. …. Respondents Mr. S.S. Kakodkar, Advocate for the Appellant. Mr. E. Afonso, Advocate for Respondent No.3. CORAM : F.M. REIS, J. DATE : 5th AUGUST, 2011 JUDGMENT : Heard Shri Kakodkar, the learned Counsel appearing for the appellant and Shri E. Afonso, the learned Counsel appearing for the 2 respondent no.3. The remaining respondents though served are absent. 2. The above appeal challenges the judgment and award passed by the learned Presiding Officer of the Motor Accident Claims Tribunal at Panaji in Claim Petition No.106/1997. By the impugned judgment, the learned Tribunal has awarded compensation of a sum of Rs.75,000/- besides interest at the rate of 6% per annum from the date of filing of the claim petition up to actual payment. Being aggrieved by the said judgment, the appellant who is the claimant filed the present appeal for enhancement of compensation awarded by the impugned judgment. 3. Shri S.S. Kakodkar, the learned Counsel appearing for the appellant has assailed the impugned judgment and pointed out that the compensation awarded by the Tribunal is totally inadequate considering the injuries sustained by the appellant. The learned Counsel further submitted that the appellant was a housewife and the amount claimed at the rate of Rs.3,000/- per month as her income cannot be said to be erroneous. The learned Counsel further submitted that the Tribunal has erroneously fixed the 3 monthly income at Rs.2,000/- per month, when considering the fact that the appellant was a housewife as well as carrying out business of tailoring she was earning much higher compensation which she has been deprived on account of the injuries sustained by the motor accident. The learned Counsel further submitted that the appellant has suffered permanent disability and, as such, the Tribunal has erroneously failed to assess any compensation on that count. According to the learned Counsel the percentage of permanent disability is 40%. The learned Counsel further submitted that he has produced a certificate from the Goa Medical College dated 3/10/2005 which according to him discloses that the appellant had sustained permanent disability to the extent of 40%. The learned Counsel further submitted that the appellant had suffered severe injuries and, as such, the amount of Rs.30,000/- awarded on account of pain and suffering is also inadequate and the same deserves to be enhanced considering the nature of injuries sustained by the appellant. The learned Counsel further took me through the impugned judgment as well as evidence on record and pointed out that the appellant is entitled for much higher compensation. The learned Counsel further submitted that the necessary leave be granted to the appellant to produce the said 4 certificate under Order 41 Rule 27 of the Civil Procedure Code. 4. On the other hand, Shri E. Afonso, the learned Counsel for the respondent no.3 has supported the impugned judgment. The learned Counsel has further taken me through the evidence of Dr. Ulhas Nachinolkar, who has deposed in Court that the appellant would not be hampered with her normal work which she was doing inspite of the injuries sustained after the accident. The learned Counsel further submitted that the certificate sought to be produced cannot be relied upon, as according to him the certificate itself discloses that the said document cannot be used for any judicial proceedings. The learned Counsel further submitted that there is nothing on record that the appellant was carrying out any work or that she has suffered any permanent disability. He further pointed out that the amount of Rs.30,000/- awarded on account of pain and suffering is just and appropriate in the facts and circumstances of the case. The learned Counsel further submitted that there is no question of interfering in the impugned judgment and, as such, the appeal deserves to be rejected. 5. Having heard the learned Counsel and on perusal of the 5 record, the following point for determination arises in the present appeal: POINT FOR DETERMINATION : (i) Whether the Tribunal was justified to award the compensation to the extent of Rs.75,000/- to the appellant. (ii) Whether the appellant was entitled to produce the said document dated 3/10/2005. 6. Dealing with the first point for determination, the evidence discloses that the appellant has not established by any cogent evidence that she was having any fixed income nor that she has produced any document to suggest the actual amount received by her is on account of her tailoring business. It is admitted fact that the appellant was uneducated and was only earning daily wages. Considering the said aspect, the Tribunal was justified to assess the income of the appellant at Rs.2,000/- per month, in the facts and circumstances of the case. As the appellant has failed to adduce any cogent evidence to establish her actual income, the Tribunal has rightly fixed the income of the appellant at Rs.2,000/- per month, as she was earning on daily wages. 6 7. Dealing with the next contention of Shri S.S. Kakodkar to the effect that the amount of compensation awarded on account of pain and suffering is not adequate. I find that the statement of Dr. Nachinolkar, to the effect that the appellant would be able to carry out her daily work after recovery, I find that the amount of Rs.30,000/- is justified and no interference is called for on that count. The Tribunal has also awarded a sum of Rs.24,000/- on account of loss of income for one year considering the fact that the appellant was confined to the household work during the said period and hence no interference is called for on that count. Considering the facts and circumstances and on the basis of material on record I find that there is no justification for any interference in the amount of compensation on different heads as assessed by the Tribunal in the impugned judgment, but however, the only aspect to be considered is whether any compensation on account of permanent disability is to be awarded as sought to be contended. 8. The Tribunal while passing the impugned judgment has come to the conclusion that the appellant has not adduced any evidence that she has suffered any permanent disability. The 7 learned Counsel however has submitted that she has suffered permanent disability on account of the accident. But however, considering the said document produced by the appellant which is from Goa Medical College, I find that the appellant should be given an opportunity to establish her claim which is disputed by the respondents. No doubt the respondents would be entitled to lead rebuttal evidence if advised. The Tribunal can also consider as to whether the appellant should be referred to the medical board for the purpose of assessing the permanent disability, if any, sustained by the appellant on account of the accident. 9. At this stage, the learned Counsel Shri Afonso stated that instead of producing the said document which he is strongly opposing he has no objection in case the appellant is referred to the medical board of the Goa Medical College for the purpose of assessing the permanent disability, if any, sustained by the appellant on account of the accident. Considering the fairness of the submissions of the learned Counsel for the respondent no.3, I find it appropriate that instead of the appellant being permitted to produce the said document, the Tribunal is directed to refer the appellant to the medical board so as to assess the permanent 8 disability, if any, on account of the injuries sustained on account of the said accident, in accordance with law. The appellant will be at liberty to produce any document before the concerned medical board to establish her claim. After such consideration, the medical board shall produce the report before the Tribunal. The appellant will be at liberty to lead further evidence, if they so desire, to support her contention. The respondent also shall be entitled to lead any evidence in rebuttal on this aspect, if they do desire. Considering the facts and circumstances of the case, I find it appropriate that the matter be remanded to the Tribunal to decide the following additional point for determination: POINT FOR DETERMINATION: (i) Whether the appellant has proved that she suffered any permanent disability on account of the injury sustained by her in the said accident; and (ii) Whether the appellant is entitled for any compensation on account of such permanent disability. The said points for determination shall be decided by the Tribunal in the light of the observations made herein above. The compensation awarded by the Tribunal by the impugned judgment 9 cannot be faulted. The only aspect to be decided is whether the appellant is entitled for any further compensation on account of permanent disability. 10. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The compensation awarded by the Tribunal is confirmed, but however, the matter is remanded to the Tribunal to decide the said point for determination referred to at para 7 above, in the light of the observations made herein above in accordance with law. (iii) The appeal and miscellaneous civil application stands disposed of accordingly, with no orders as to costs. (iv) The parties to appear before the Tribunal on 12/09/2011 at 10.00 a.m. F.M. REIS, J. NH/-