IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 243/2004. Shri Irshad Ali Rafai, son of Salwat Rafai, Aged 69 years, married, Resident of house no.94, Bansai, Cacora Goa. ... Appellant Versus 1 Shaikh Imtiaz, son of Shaikh Mohidin, major in age, driver of truck bearing registration number GDU-4624, resident of house no.23, Muslim Mohalla, Sanguem Goa. 2 Robert Francis Deniz, major in age, owner of truck bearing registration no. GDU-4624, resident of house No.436, Carmodda, Cacora, Goa. 3 The Oriental Insurance Company Ltd insurer of truck bearing registration number GDU-4624, Gafoor Building, 2nd Floor, Station road, Sanvordem, Curchorem. ... Respondents Mr. S. S. Kakodkar, Advocate for the Appellant. Mr. E. Afonso, Advocate for the Respondent no.3. CORAM : F. M. REIS , J. DATE : 19 th November, 2010 . ORAL JUDGMENT The above appeal challenges the judgment and award dated 17.8.2004 passed by the learned Motor Accident Claims Tribunal, South Goa Margao in Claim Petition No. 35/2000, whereby the claim petition was partly allowed and the petition against Respondent no. 3 came to be dismissed. 2. A claim petition was filed by the Appellant on the ground that on 2.6.1999 a truck was hired by the claimant bearing registration no.GDU-4624 for the purpose of loading sand from Sadashivgad, Karwar. After loading the said truck with the help of local coolies at about 1.00 p.m at the place known as Dapot, Maxem, the said truck which was driven by the Respondent no.1 in a rash and negligent manner went off the road and turtled and caused injuries to the Appellant, on account of the said accident. Accordingly the Appellant filed a claim petition and claimed compensation to the tune of Rs.1,00,000/-. The Respondent no. 3 filed their written statement denying the case of the Appellant. It is their case that the claimant was travelling in the said truck in violation of the conditions of the permit and in breach of the terms and conditions of the Insurance policy and as such they were not liable to pay any amount. 3. The learned Tribunal after recording the evidence and hearing the parties came to the conclusion that the accident took place on account of rash and negligent driving of the truck by the Respondent no.1. The learned Tribunal also came to the conclusion that on account of the said accident the Appellant had suffered a fracture on the left 2nd and 6th rib. With regards to the claim of the claimant the learned Tribunal awarded total compensation of Rs.7,431 to the Appellant and rejected the petition against the Respondent no. 3. 4. Being aggrieved by the said judgment and award, the Appellant has preferred the present appeal. 5. Mr. S. Kakodkar, learned Counsel for the Appellant has assailed the impugned judgment and submitted that the learned Tribunal has totally misdirected itself in awarding illusory compensation to the Appellant. Learned Counsel further submitted that despite of the receipts produced by the Appellant which demonstrate the amount spent on account of purchase of medication the learned Tribunal has erroneously refused to award the said amount to the Appellant. Learned Counsel further submitted that the said bills were produced without any objections and the amount disclosed therein deserves to be awarded to the Appellant. Learned Counsel further submitted the Appellant was admitted in the hospital at Margao from 2.6.2000 to 11.6.2000 and as such he is entitled for all the expenses incurred by him including expenses for engaging a person to look after him during the said period. Learned Counsel further took me through the evidence on record and submitted that the Appellant is entitled for much higher compensation then the one awarded by the learned Tribunal. The learned Counsel further submitted that there is no breach of policy as the goods of the truck belonged to the Appellant and as such the Respondent no. 3 is also liable to pay the compensation to the Appellant. 6. Shri Afonso, learned Counsel appearing for Respondent no.3 has supported the impugned judgment. He pointed out that there is no infirmity committed by the learned Tribunal whilst passing the impugned judgment and as such no justification of interference in the said impugned Judgment and award. 7. Having heard the learned Counsel, I find that Shri Kakodkar, learned Advocate for the Appellant has raised the grievance with regard to the quantum of compensation awarded on two counts. The first one is with regards to the amount refused by the learned Tribunal, of Rs.1,412/- on account of medical expenses. The said amount was not awarded on the ground that the actual medicines which have been purchased have not been established to be on account of ailment suffered by the Appellant in the said accident but however on perusal of the record, I find that the said documents came to be exhibited without any objection from the Respondent nos.1 and 2. Apart from that in the cross examination of the Appellant, there is no suggestion disputing the correctness of the documents produced by the Appellant. As such the learned Tribunal was not justified in refusing the said amount spent by the Appellant on account of medication purchased by him to cure his ailment. As such the Appellant would be entitled to the sum of Rs.1,412/- on account of such medical expenses. 8. The next grievance is with regards to the amount compensated on account of travelling expenses. Learned Counsel for the Appellant has submitted that the Appellant was admitted in Hospicio hospital at Margao for a period of 10 days and he was a resident of Sanguem. He had an attendant who was looking after him during the said period. Learned Tribunal while assessing the evidence has awarded a sum of Rs. 500/-. Considering the facts and circumstances of the case in view of the facts that the Appellant was hospitalised for a period of 10 days the minimum expenses per day would be Rs. 100/- on account of the expenses of such attendant. As such the Appellant would be entitled for a further amount of Rs. 500/- on such count. Towards pain and suffering the Tribunal has awarded Rs. 2,000/-. As the Appellant was 66 years old, I find that on such count Rs. 3,000/- would be just and appropriate. The Appellant would as such be entitled to a further sum of Rs. 1,000/- on such count. The impugned Judgment and award deserves to be modified to that extent. 9. With regard to next contention of the learned Counsel appearing for the Appellant to the effect that the Respondent no. 3 are also liable to effect payment claimed by the Appellant, Shri Kakodkar, has relied upon the judgment report in 2001 (6) SCC 713 in the case of Ramesh Kumar V/s. National Insurance Co. Ltd. Para 9 thereof reads: 9. Learned counsel appearing for the Insurance Company has submitted that even though the Insurance Company is liable to pay to the legal representatives of the owner or authorised representative, the question is whether those travelling were truly owners of the goods or not. This in our considered opinion is a question of fact which we need not advert to. Only in cases it is recorded by the Tribunal that they were not the owners then only the Insurance Company could succeed that they are not liable to pay. In any case if the Insurance Company has not raised any such issue they cannot be permitted to raise it now. Unless such an issue was raised, foundation laid in the pleading and if not adjudicated by the Tribunal thereafter if a ground is raised before the High Court yet not decided, there could be possibility of remanding the case otherwise it cannot be permitted to be raised. We have not been shown in any of these cases to qualify for the above. Accordingly we dispose of these cases falling under the third category, by declaring that the Insurance Company is liable to pay the compensation for the deceased or injured persons travelling in a goods carriage, who were either the owner or his representative. These appeals are disposed of accordingly. The learned Counsel has also relied upon the Judgment reported in 2004(2) SCC 1, in the case of National Insurance Co. Ltd. V/s. Baljit Kaur & Others. On perusal of the said judgment, it has been held that in view of the amended provision 147 of the Motor vehicle Act, the person who are covered include the owner of the goods and his authorised driver. In the present case, the point to be considered is to ascertain as to whether the goods which were in the vehicles were belonging to the Appellant. In the present case, learned Tribunal based on the evidence on record came to the conclusion that the Appellant failed to establish that he was travelling in the vehicle to purchase the sand at Sadashiv Gad. After minute perusal of the evidence on record, I find that the Appellant adduced no evidence to show that the sand which was loaded in the truck belonged to the Appellant. In fact no receipt has been produced regarding the purchase of the said sand. No witness has been examined to establish that the Appellant has purchased the said sand at Sadashiv Gad. Even the driver of the truck has not been examined for the purpose of establishing that the vehicle was hired by the Appellant to purchase the sand at Sadashiv Gad. Considering that the Respondent no. 3 dispute the claim of the Appellant on the ground that the owner was in the vehicle in view of the fact that he had gone to purchase the sand at Sadashiv Gad, it was incumbent upon the Appellant to adduce cogent evidence on record to establish that the sand/goods belonging to the Appellant. There is nothing on record to suggest that the goods/sand which was in the truck belonged to the Appellant. Once the Appellant has failed to establish that he was the owner of the sand which was in the said vehicle, the question of saddling the Respondent no.3 to pay the compensation does not arise. As such the contention of Shri Kakodkar, learned Counsel for the Appellant to the effect that the Respondent no. 3 is also liable to pay the amount jointly and severally to the Appellant cannot be accepted. 10. In view of the above, I pass the following order: i. The appeal is partly allowed. ii. The impugned judgment and award is modified to the extent that the Respondent nos.1 and 2 shall be jointly and severally liable to pay the amount as awarded by the learned Tribunal and further a sum of Rs.500/- on account of said travelling expenses, Rs. 1,412/- towards the medical expenses, and a sum of Rs. 1000/- on account of pain and suffering together with interest thereon at the rate as awarded by the Tribunal in the impugned judgment. iii. Subject to the above modifications, the impugned Judgment passed by the learned Tribunal is confirmed. iv. Appeal against Respondent no. 3 stands rejected. v. Appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J. VN/-