1 FA : 878/1999 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.878 OF 1999 Shri Shankar Dadu Gharage .... Appellant Vs. Baban Vasant Patil & Ors. .... Respondents Mr. S.M. Kamble, Advocate for appellants. Mr. Pratap Patil i/by Ashok Chaugule Advocate for respondent no. 2. Mr. S.M. Vidyarthi, Advocate for respondent no.3. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 21st March, 2011 P.C. 1. The short question that arises for consideration in this appeal is whether the application under Section 166, Motor Vehicles Act, 1988 for compensation on account of injury sustained in the accident could be dismissed for want of any total or partial permanent disability. 2. On 4th February 1991, the appellant, an agricultural labourer met with an accident while he was returning home from his work in the evening. The appellant was proceeding on foot. The motor-bike owned by respondent no.2 and driven by respondent no.1 came from opposite direction and knocked him down. With impact, he was dragged to some distance and became unconscious. He sustained injuries as follows : 2 FA : 878/1999 1. C.L.W. at left elbow size 3 cm. X 1 cm. red coloured blood clot skin deep. 2. Fracture at radius ulna of left hand 12 cm. about wrist cracking sensation on palpation. 3. C.L.W. at left calf region size 10 cm. x 1½ cm. fresh bleeding, crecentic shape 4. C.L.W. irregular shape 15 cm. x 3 cm. fresh bleeding. 5. Abrasion at Rt. knee joint 2 cm. to 1 cm. x 3cm. 6. Abrasion 3 in number 1 cm. x 1 cm. fresh bleeding. 3. The appellant was moved to Ichalkaranji Civil Hospital and it took him more than one month to recover. The appellant filed an application for compensation under Section 166 Motor Vehicles Act seeking compensation of Rs.25,000/- under various heads. : 1. For medicines treatment and X-ray expenditure : Rs.3,700.00 2. Loss of income (3 months rests) : Rs.1,800.00 3. Sundry expenditure : Rs.1,000.00 4. Mental shock, sufferings : Rs.7,000.00 5. Loss of income due to disablement which reduced the earning capacity : Rs.10,000.00 6. For the person who attended to the applicant during hospital including lodging, boarding and travelling etc. : Rs.1,000.00 3 FA : 878/1999 7. For nutritious food for a period of 3 months : Rs. 500.00 Total compensation : : Rs.25,000.00 4. The Tribunal rejected the application holding that since the vehicle was not ensured with the Insurance Company, there was no liability of respondent no.3 to indemnify the owner, respondent no.2. As regards the owner, it held that the application was not maintainable for want of permanent disability. 5. The learned counsel for the appellant submits that the Tribunal has completely misread the provision of Section 166 Motor Vehicles Act. He points out that while deciding the application under Section 166, Motor Vehicles Act, the court has quoted at paragraph 7 of the order, the provisions of Section 140 Motor Vehicles Act. Both the provisions are completely distinct, with their purposes different. Section 166 Motor Vehicles Act provides for compensation for death/or injury sustained to a motor vehicle accident caused on account of negligence by the driver. The section does not specify the nature of the injury suffered by the victim. Therefore, it makes no difference for maintenability of the application that the injury suffered has not resulted into any kind of permanent disability. There is also no ceiling on the amount of compensation that can be awarded under the provision. Whereas the application under Section 140 Motor Vehicles Act, is for grant of fixed compensation on the principle of “no fault” i.e. irrespective of the 4 FA : 878/1999 negligence on the part of the driver. Such compensation can be awarded only for death or permanent disablement of the accident victim. It appears that the learned Tribunal got confused with the two provisions and dismissed application holding that it is not maintenable. This finding cannot be sustained as it is contrary to law. 6. After reversing the finding of maintenability of the application, ordinarily the application would be remanded to the Tribunal for consideration on merit. Such a course of action however in the facts of the case would be unjust at it would result into further delay. Therefore, with the assistance of lawyers representing all the parties to the appeal, I have considered the evidence on record, for arriving at the just and reasonable compensation payable to the appellant. As regards occurrence of the accident, the Tribunal has already answered the issue in favour of the appellant. The different heads under which compensation is claimed by the appellant are noted at paragraph 3 above. The learned counsel for the appellant fairly concedes that there is no material before the court for grant of compensation under three of the heads mentioned i.e. sundry expenditure, loss of income due to disablement, which reduced the earning capacity, and of nutritious food for a period of three months. Therefore, claim of compensation under these heads need not be considered. As regards the first head of medical treatment and x-ray expenditure, admittedly the bills produced before the court were only in respect of expenses of Rs.500/-. Under the second 5 FA : 878/1999 head i.e. loss of income of three months, the evidence before the Court shows that his monthly earnings were Rs.300/- and therefore the loss of income for three months would be Rs.900/-. Considering the nature of injuries, the compensation of Rs.1,000/- for mental shock and suffering would be reasonable compensation. Also compensation of Rs.200/- for the expenses of the attendant while in the hospital would be just and proper. Thus, the total amount of compensation payable to the appellant would be Rs.2700/-. The learned counsel submits that the interest generally awarded by the Tribunals at the relevant time was of Rs.12% per annum. I am inclined to grant the same interest @12% per annum. Hence, the order. : O R D E R 1. Appeal is allowed. 2. The impugned judgment and order is set aside. 3. Motor Accident Claim Petition No.131 of 1991 is partly allowed. 4. Respondent no.2 is directed to pay compensation of Rs.2,700/- to the appellant with interest thereon @12% per annum from the date of petition till payment. ( Smt. R.P. SondurBaldota, J.)