-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.293 OF 1998 APPEAL NO.293 OF 1998 APPEAL NO.293 OF 1998 Popat Adinath Tikate ...Appellant vs. Sudam Vithoba Sardoe Tukaram Laxman Mate The United Insurance Co.Ltd. Ishwar Parmeshwar Borade Bansilal Ramsaran Ahuja ...Respondents Mr.Machhindra A. Patil for the Appellant Mr.S.R.Singh for Respondent Nos.3 and 6 Mr.V.N.Sagare with Mr.S.P.Thorat for Respondent No.5 CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JANUARY 21, 2008. : JANUARY 21, 2008. : JANUARY 21, 2008. ORAL JUDGEMNT: ORAL JUDGEMNT: ORAL JUDGEMNT: 1. Heard learned Advocates for the parties. The Appellant who is the original claimant in the claim petition under section 166 of the Motor Vehicles Act,1988 has taken an exception to the Judgment and Award dated 5th December 1996. 2. The accident occurred on 11th April 1989 at about 3.15 a.m.at village Saradwadi on Pune-Ahmednagar road. A tempo and a truck were involved in the accident. The Appellant was travelling by the tempo. According to the Appellant, he sustained several injuries in the accident including loss of second,third and fourth toe and fracture of left shaft femur. After the contest, the tribunal held that the driver of the truck was negligent and therefore, the owner and the insurer of the truck have been held jointly and severally liable to pay compensation. The tribunal has fixed the compensation of -2- Rs.43,200/- with interest at the rate of 12% p.a. 3. The submission of the learned Advocate for the Appellant is that the tribunal has committed an error by taking the monthly income only at Rs.2000/- though the evidence on record shows that the income was Rs.5000/- p.m. He submitted that looking to the serious injuries and permanent disability to the extent of 48%, the compensation of Rs.15,000/- awarded on account of pain and suffering is extremely on the lower side. He submitted that the evidence on record shows that the poultry business of the Appellant was closed for two years but the tribunal has taken the said period as only six months. He invited my attention to the oral and documentary evidence on record. He, therefore, submitted that the Appellant is entitled to substantial enhancement. The learned counsel for the third Respondent-insurer of the truck supported the impugned Judgment and Award. 4. I have given careful consideration to the submissions. The only dispute in the Appeal is as regards the quantum of compensation. In so far as the injuries sustained by the Appellant are concerned, the evidence of Dr.Shivram K. Lokhande (Exh.55) is relevant. According to him, the Appellant had lost the 2nd,3rd and 4th toes of the left leg and there was a fracture to the shaft femur (left). The injuries resulted in the loss of the 2nd,3rd and 4th toes of the left leg. The permanent disability of the Appellant has -3- been quantified at 48%. 5. The tribunal has granted a sum of Rs.13,500/- on account of medical expenses considering the total bills produced by the Appellant amounting to Rs.13,238/-. The Tribunal granted a sum of Rs.1700/- on account of charges of attendant at the rate of Rs.25/- per day for the period of 68 days. The conveyance charges of Rs.1000/- has been granted by the tribunal. There is hardly any challenge to the compensation awarded under the said heads. 6. In so far as income of the Appellant is concerned, he has deposed that he was earning Rs.4000/- p.m. by running a poultry business. He stated in examination-in-chief that after the accident, his business was completely closed for two years. In the cross examination he has stated that he was maintaining a register of birds purchased by him and he was maintaining accounts of his business. He further stated that he was ready to produce the accounts. Perusal of the Record and proceedings shows that the account books and the register of the birds was not produced by the Appellant to prove the claim. Notwithstanding the failure of the Appellant to produce the books of accounts, the tribunal has taken the monthly income of the Appellant at Rs.2000/- p.m. by taking a very broad view of the matter. 7. The Appellant could have proved his income by producing -4- the account books. He could have proved the fact that his business was closed for two years. However, he has not produced the account books. Dr.Shivram Lokhande in his cross examination admitted that the Appellant did not have any difficulty in doing his poultry business. Though there was no specific evidence on record to show the period for which the poultry business was closed, the tribunal has taken the said period as six months. By taking the monthly income at the rate of Rs.2000/- the compensation of 12,000/- has been awarded on account of loss of earnings. In so far as pain and suffering is concerned, a sum of Rs.15,000/- has been awarded considering the aforesaid injuries. It must be noted that in this Appeal we are dealing with the accident of the year 1989 and therefore, the said amount is reasonable. 8. The learned member of the Tribunal has awarded interest at the rate of 12% p.a. The claim application is of the 1989 which was decided in the year 1996. Though the Appellant could not strictly prove his income from the poultry business, the tribunal has taken a broad view of the matter notwithstanding the fact that the Appellant has failed to produce his account books of the business and the register which was admittedly in his possession. The compensation awarded is reasonable and no interference is called for. 9. Appeal is accordingly dismissed with no order as to costs. -5- JUDGE JUDGE JUDGE