1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.183 OF 2008 United India Insurance Co. Ltd. ..Appellant M.R.O.Stadium House, Veer Nariman Road Churchgate, Mumbai – 400 020 V/s. 1.Miss Sheetal Pravin Mehta Age : 29 years, Occu : Service R/o.B-17, Park View Building, Mahendra Society, Kulupwadi, Borivali(E), Mumbai – 400 066 ..Respondents 2.Mr.Vinod M. Advani Flat No.302, Anju Apartment Co-operative Housing Society, Rajendra Nagar, Kulupwadi Road, Near National Park, Borivali(East), Mumbai – 400 066 Mr.A.B.Gatane, advocate, for appellant Mr.S.S.Deshmukh, advocate, for respondent No.1 CORAM : A.S.OKA, J. DATE : 22ND FEBRUARY,2008 ORAL JUDGMENT . On the last date the appeal was finally heard with the consent of the parties at the admission stage. The challenge in the appeal by the appellant Insurance Company is to the Judgment and Award dated 3rd March, 2007, passed by the 2 learned member of the Motor Accident Claim Tribunal. The appellant is the insurer of the vehicle involved in the accident. The first respondent in the appeal is the original claimant in a Claim Petition filed U/s.166 of the Motor Vehicle Act, 1988. 2. According to the case of the first respondent, on 24th October, 2001 she was crossing a road opposite Park View building near National Park, Borivali(E), Mumbai. 3. At that time a scooter owned by the second respondent came from the Eastern side in a fast speed and gave a dash to the first respondent. According to the case of the first respondent, she sustained serious injuries. She was admitted in a hospital for treatment. The scooter was insured with the appellant on the relevant date of the accident. The appellant contested the claim after obtaining a leave under Section 170 of the Motor Vehicles Act. The Tribunal granted a compensation of Rs.1,91,200/- together with interest thereon at 3 the rate of 7.5% per annum from the date of filing of the Claim Petition till the date of making actual payment. 4. The submission of the advocate for the appellant is that the first respondent herself was negligent while crossing the road. His submission is that the first respondent ought to have taken care before attempting to cross the road as she was crossing the road where Zebra crossing was not available. He submitted that the finding on the issue of negligence recorded by the Tribunal is erroneous. He submitted that the compensation awarded by the Tribunal is exhorbitant. He submitted that there was no reason to award any compensation on the ground that the first respondent will face the difficulties in prospects of marriage especially when the compensation was separately awarded under the heads of loss of amenities, pains and sufferings. He submitted that the compensation awarded on all grounds is exhorbitant. 4 5. The learned advocate appearing for the first respondent supported impugned Judgment and Award. He pointed out that considering the nature of injuries sustained by the first respondent, the compensation awarded is reasonable. He submitted that the appellant has not examined the person who was driving the scooter and therefore, the finding on the issue of negligence will have to be accepted as correct. 6. I have carefully considered the submissions. Evidence on record shows that there was no Zebra crossing available near the place where the first respondent was crossing the road. A suggestion was given to the first respondent in her cross examination that the accident occurred due to her negligence. She stated on oath that though she was looking for the vehicle on both sides of the road, she did not notice the scooter which gave a dash to her. As against this, no attempt was made by the appellant for examining of the second respondent or the person who was driving the scooter. That is the reason why the Tribunal has accepted the case made 5 out by the first respondent that the accident occurred due to the negligence on the part of the person who was driving the scooter. There is no reason to interfere with the said finding. 7. There is evidence on record to show that on 24th October, 2001 the first respondent was admitted in the Sumeet Nursing Home at Borivali(E). She was operated upon on 26th October, 2001 and she continued as an indoor patient till 1st November, 2001. The Discharge Card issued by the said Nursing Home has been produced on record. The Medical papers on record disclose that the first respondent sustained head injuries as well as well as fracture to the left Tibia Fibula. The papers on record show that suture was required on the injuries on the head and a surgery was required to be performed on 26th October, 2001. The first respondent produced various bills of the amounts spent on medical treatment. The total amount of the bills produced comes to Rs.31,286.05/-. She stated that she could not produce all the bills and the total expenditure incurred by her was Rs.35,000/-. She 6 stated that she was OPD patient for about three months. 8. The case made out by the first respondent was that her monthly income was Rs.5,000/- and over and above the said income, she was earning Rs.3,500/- by taking tution classes. The Tribunal has accepted the case made out by the first respondent as regards her income of Rs.5,000/- per month on the basis of the evidence of the witnesses examined by the first respondent. 9. As far as Medical evidence is concerned, the first respondent examined a Medical Practioner. Referring to the evidence of the Medical Practioner the Tribunal has observed thus :- “Regarding the future loss of income it appears that Dr.Shenevi P.W.2 Exhibit-17 has stated that on 24-10-2001 he treated the patient while she was taking treatment in Sumeet Nursing Home. He has further said that when he examined her on 27-6-2002 radiologically as well as clinically he noticed that she had mild posterior angulation (Curvature) of the left tibia and fracture site was tender and swollen. There was 2 cm. Shortening in the left leg due to the deformity leading to subsequent change in her gait and she has sustained 15% disability. The disability according to him 7 cannot be cured in future. However inspite of the said deformity she will be able to work as telephone operator but with some difficulty. Prior to the accident she was working as telephone operator. Therefore it does not appear to me that the leg injury sustained by the applicant has affected the earning capacity of the applicant. Therefore I am not inclined to award any compensation on account of loss of future income. However it cannot be ignored that because of the said deformity the applicant's original gait and the natural manner of walking is affected to certain extent and the applicants being a young girl aged about 24 years this deformity in her is likely to become a problem for her marriage.” 10. The compensation awarded by the Tribunal under various heads reads thus :- 1. Medical treatment Rs.35,000=00 2. Future medical Rs.25,000=00 treatment 3. Conveyance charges Rs.1,200=00 4. Special diet Rs.10,000=00 5. Loss of income Rs.20,000=00 during period of treatment 6. Difficulty in Rs.50,000=00 marriage prospects 7. Loss of amenities Rs.25,000=00 and for future discomfort 8. Pains and sufferings Rs.25,000=00 ------------ TOTAL Rs.1,91,200=00 8 Even taking the findings of the Tribunal as correct, a sum of Rs.25,000/- awarded on account of future medical treatment could not have been awarded by the Tribunal. There is no evidence on record to justify the grant of the said amount. The age of the first respondent at the time of the accident was only 24 years. The Medical evidence on record shows that there is a shortening of her left leg to the extent of 2 cm. The Medical Practioner opined that due to the said deformity the applicant's original gait and the natural manner of walking has been affected. Considering this evidence on record, there is every justification for grant of compensation of Rs.50,000/- as her prospects of marriage have been seriously affected. Considering the production of bills in the sum of Rs.31286.05/-, a sum of Rs.35,000/- granted on account of Medical treatment appears to be reasonable as it is not expected on the part of the first respondent to preserve each and every bill. The compensation awarded under every head except the amount of Rs.25,000/- is just 9 and proper. 11. Therefore, the appeal must succeed in part and I pass the following order. (i) The impugned Judgment and Award dated 3rd March, 2007 is modified by directing that the compensation payable to the first respondent will be Rs.1,66,200/- instead of Rs.1,91,200/-. Rest of the award as regards interest is maintained. (ii) The appeal is partly allowed in above terms with no order as to costs. (iii) A sum of Rs.25,000/- deposited by the appellant in this Court shall be returned to the appellant. (A.S.OKA, J.)