1 IN THE HIGH COURT OF BOMBAY AT GOA First Appeal No.298 of 2003 Kadamba Transport Corporation Ltd., a Company having their registered Office at KTCL Bus Stand, Panaji, Goa, represented herein by their Manging Director, Shri Arun L. Desai ... Appellant V e r s u s 1. Shri Santosh Anant Naik, major, son of late Anant Naik, r/o H.No.63, Ponxem, Tivim, Goa. 2. Mr. Menino Dias, major, s/o Mr. John Dias, r/o House No.32, Vadem, Vasco-da-Gama, Goa. ... Respondents Mr. A.R. Kantak, Advocate for the Appellant. Mr. P.S. Rao, Advocate for Respondent no.1 Respondent no.2 absent, though served. Coram: A. P. Lavande, J. Date: 12th October, 2010. ORAL JUDGMENT: By this appeal, the appellant takes 2 exception to the judgment and award dated 8/8/2003 passed by the Motor Accident Claims Tribunal, Mapusa in Claim Petition No.66/2001, partly allowing the application under Section 166 of the Motor Vehicles Act, 1988 (“The Act” for short). 2. The respondent no.1/claimant filed Claim Petition no.66/2001 before the Motor Accident Claims Tribunal at Mapusa, claiming compensation of Rs. 2,97,456/- against the respondents. It was the case of the claimant that he was traveling in Kadamba bus from Panaji to Vasco on 6/6/2001, which was driven by respondent no. 2 herein. On reaching near the convent at Sancoale respondent no.2 applied brakes, due to which the vehicle turned turtle. The claimant suffered injuries to his left hand which resulted in the amputation of his left thumb. The claimant was a mason, aged 55 years and according to him he was earing Rs.5000/- per month and used to take civil 3 construction work on contract basis. He claimed compensation of Rs.2,97,456/- under different heads. 3. The claim petition was contested by the appellant herein and respondent no.2. On the basis of the pleadings following issues were framed: i) Whether the applicant proves that he is entitled for compensation of Rs.2,97,456/-? ii) Whether applicant proves that respondent no.2 was rash and negligent in driving the bus GA-01- X-0242? iii)Whether respondent no.2 proves that accident took place due to factors beyond his control? 4. In the Claim petition, the claimant examined himself, Sonu Y. Polji, CW.2, Maria Pereira, CW.3 and Dr. Shivanand Bandekar, AW.4. No witness was examined on behalf of the respondents. The Tribunal upon appreciation 4 of the evidence held that the respondent no.2 drove the vehicle in a rash and negligent manner and assessed the compensation at Rs.1,66,500/-, the details of which are as under: • Rs.96,000/- towards 20% permanent disability. • Rs.60,000/- towards loss of income due to injury. • Rs.500/- towards traveling expenses. • Rs.5000/- towards loss of contract. • Rs.5000/- towards pain and suffering. Thus, the Tribunal awarded Rs.1,69,500/- with interest at the rate of 9% per annum from the date of filing of the petition. 5. Mr. Kantak, learned counsel appearing for the appellant submitted that there is absolutely no evidence that the claimant could not undertake any work as mason for a period of one year and therefore, the award of compensation at the rate of Rs.60,000/- for loss of income 5 due to injury is patently unsustainable in law. He further submitted that except for his bare statement, there is absolutely no evidence led by the claimant in support of his income and therefore the Tribunal has erred in relying upon the ipse dixit of the claimant that he was earning Rs. 5000/-. According to Mr. Kantak, the amount of Rs.500/- awarded towards transportation expenses is patently unsustainable, in asmuchas Rs.5000/- was actually paid by the appellant to the claimant towards medical expenses and according to the claimant he had spent amount of Rs. 3500/-. He further stated that there was no justification to award Rs.5000/- towards loss of earing on account of loss of contract. Mr. Kantak submitted that the Tribunal erred in assessing the loss of income on the basis of percentage of disability and having regard to the nature of injury suffered by the claimant, grant of 20% by applying the multiplier of 8 on the basis of yearly income of Rs. 60,000/- is patently unsustainable. Mr. Kantak urged that 6 the compensation granted in favour of the claimant is highly excessive and as such, the impugned award deserves to be quashed and set aside. 6. Per contra, Mr. Rao, learned counsel for the respondent no.1, claimant supported the impugned judgment and award and submitted that no interference is warranted since the amount of compensation awarded is just and proper. Learned counsel further submitted that the Tribunal has rightly considered the percentage of disability for the purpose of arriving at the loss of income. He placed reliance on the judgment of the Apex Court in the case of Oriental Insurance Company Ltd. Vs. Modh. Nasir and another (2009) 6 Supreme Court Cases 280. He further submitted that the Tribunal ought to have applied the multiplier of 11 and not 8 by placing reliance on the judgment of the Apex Court in the case of Sarla Verma (Smt) and others Vs. Delhi Transport Corporation 7 and another (2009) 6 Supreme Court Cases 121. 7. Mr. Rao submitted that the claimant suffered 30% permanent disability and therefore in terms of Schedule II to the Workmen's Compensation Act, 1923,the Tribunal ought to have awarded higher compensation towards loss of income. 8. Mr. Kantak, in re-joinder submitted that according to the claimant himself, he had already completed 55 years and even applying the ratio as in the case of Sarla Verma, (supra), at the most multiplier of 9 could be applied and not 11. 9. I have considered the rival submissions and perused the record and the judgments relied. 10. As stated above, the claimant has led evidence 8 of four witnesses. The claimant in his evidence deposed in consonance with the case set up in the claim petition and stated that on account of the accident he suffered injury to his thumb, which had to be amputated, since gangrene had set in. He categorically deposed that he had suffered 20% permanent disability due to amputation of his left thumb. He stated that he was not in a position to do any work relating to his profession. Due to the amputation of thumb, he could not do work as a mason. In cross- examination, he admitted that at that time he was undertaking masonary work but due to the accident he was unable to lift tiles and do heavy work on account of severance of his left thumb. He further stated that on account of severance of his left hand thumb he was facing difficulty to do the works as before. He also stated that he had helpers to assist him in masonary jobs undertaken by him and the helpers mainly did the work of dressing of the stones, mixing the cement and delivering to him while the actual construction work, 9 plastering etc. was done by him. He produced medical bills as well as the certificate issued by the doctor. 11. Sonu Yeshwant Polji,CW2 deposed that the claimant was a specialized mason and was taking contracts and was personally doing the construction activity with the help of helpers. He further stated that since the accident he had not taken any work. He also deposed that on number of occasions he had seen the claimant being asked by different people whether he would be interested in taking construction work, but he had refused saying that due to his broken hand he was not in the position to do any work. He also deposed that about a month back, he had asked the claimant to do the plastering of his house, which was partly incomplete, to which the claimant had shown his inability. He also stated that he was paying Rs. 200/- per day to the claimant during the construction of his house. 10 12. Maria Pereira, Cw3 was examined to establish that prior to the accident he had agreed to do some work in three rooms of the house of her husband for which the witness and her husband had agreed to give the contract for Rs.60,000/-, but the same could not materialize on account of the accident. 13. Dr. Shivanand Bandekar, Aw.4 deposed that he had examined the claimant on 4/3/2002 and he had partial permanent disability to the extent of 20% as per the Workmen's Compensation Act, Schedule-I Part-II. He identified the signature of Dr. Ian Antao Pereira on the certificate Exhibit 32 and he claimed that he was conversant with his signature. 14. There is no serious dispute that the claimant suffered injuries on account of the accident which was 11 caused by respondent no.2 who was driving the Kadamba bus belonging to the Respondent no.1. There is no serious dispute that the left hand thumb of the claimant had to be amputated. 15. I shall now consider whether the compensation granted to the claimant under different heads by the Tribunal is justified or not. The Tribunal on the basis of the statement made by the claimant came to the conclusion that the was earing monthly income of Rs.5000/- per month. This was based on the statement of the claimant that at the relevant time he was getting about Rs.225/- per day. Although he claimed that he was working for all seven days a week, it is difficult to believe such statement. It is matter of common knowledge that a mason may not get work on all days and more particularly during monsoon season it is difficult to get work in Goa. Therefore, even accepting the statement of the claimant 12 that he was getting Rs.225/- per day, the monthly average monthly income on the basis of yearly income can be reasonably assessed at Rs.4500/- (Rupees four thousand five hundred only) per month. Mr. Rao is right in placing reliance upon the judgment of Sarla Verma, (supra), by virtue of which the appropriate multiplier in respect of the claimant who suffered injuries, would be 9 since the claimant had already completed 55 years of age. However, I am unable to accept that the appropriate multiplier should be 11, as contented by Mr. Rao. In so far as the argument that the claimant had suffered 30% disability is concerned, I do not find any merit in in as much as the claimant on the basis of certificate issued by Dr. Bandekar, AW.4 had deposed that the had suffered 20% disability. Dr. Bandekar, CW.4 who examined the claimant himself deposed that the claimant had suffered 20% disability. No doubt, the Workmen's Compensation Act, Schedule-I Part-II, provides that in 13 case of loss of thumb, the percentage of loss of earning capacity would be 30 percent, but it is difficult to accept the argument of Mr. Rao in as much as Dr. Bandekar, CW. 4 who had examined the claimant had himself issued the certificate that the claimant had suffered 20% disability. It may be because the claimant might have lost terminal phalanx of thumb and in terms of item 10 the percentage of earning capacity would be 20%. Since Dr. Bandekar, CW.4 had examined the claimant he was in the best position to depose as to what was the loss of earing capacity and therefore the argument of Mr. Rao that percentage of loss of earning should be taken as 30% cannot be accepted. Therefore, applying the multiplier of 9 and taking the monthly income as Rs.4500/- and percentage of loss of earning at 20%, the loss of income would come to Rs.97,200/-. 16. In so far as the award of Rs.5000/- for pain 14 and suffering and Rs.500/- towards traveling expenses,I am of the considered opinion that the same do not deserve any interference. Similarly, in view of the evidence of Maria Pereira, CW.3 regarding the contract supposed to be entered into between she, her husband and the claimant in relation to the construction work in their house, in my considered opinion, the amount of Rs.5000/- awarded towards loss of construction work does not deserve any interference. 17. The next question which arises for consideration is whether the Tribunal was justified in awarding Rs.60,000/- towards loss of income by placing reliance upon the Schedule II to the Workmen's Compensation Act. No doubt, clause 5 of the schedule provides that in case of non-fatal accidents compensation can be granted for loss of income for actual period of disability not exceeding fifty two weeks. The claimant in 15 his examination- in- chief deposed that after the accident he was not in a position to do any work, but in cross- examination he stated that he was doing some work , although he was handicapped in doing masonry work. Therefore, in my opinion, the Tribunal was not justified in holding that the claimant was not able to do any work for a period of 12 months and awarding compensation of Rs. 60,000/-. However, on account of amputation of his left thumb, the claimant must have not been able to do any work for some time. In claim petition some amount of guess work is permissible and therefore, considering the nature of the injury suffered by the claimant, I am of the considered opinion that it would be just and proper to award compensation under this head for a period of 3 months. Accordingly, the claimant is held entitled to compensation of Rs.13,500/- under this head. Thus, the total compensation to which the respondent no.1 is entitled to works out to Rs.1,21,200/- (Rupees One lakh 16 twenty one thousand two hundred only). The claimant is entitled to interest at the rate of 9% per annum from the date of petition till payment. Needless to mention that the amount if any paid under Section 140 of the Act shall be adjusted against the total compensation awarded. 18. In view of the above discussion, the appeal is partly allowed to the extent indicated above. A. P. Lavande, J. Ap/-