first appeal no.146 of 2006 1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 146 OF 2006 Shri Maleshi Esvarappa Kadroli aged 38 years, residing at H.No.323/3, V. P. Corlim(Mangoda), Tiswadi-Goa. ... Appellant versus 1. Shri Sitaram V. R. Naik Major, driver Residing at H. No.110, Carambolim, Tiswadi-Goa (since deceased) represented by his L.Rs. 1a. Uday Sitaram V. Naik R/o H. No. 110, Carambolim, Tiswadi-Goa. 1b. Umesh Sitaram Naik r/o H.No.858, Kalpana Wada, Carambolim, Tiswadi-Goa. 2. Kadamba Transport Corporation Ltd. P.O.Box No.31, East Wing, Kadamba Bus Terminus, Panaji-Goa. ... Respondents first appeal no.146 of 2006 2 Shri E. Afonso, Advocate for the Appellant. Shri A. R. Kantak, Advocate for Respondent No.2. CORAM : F. M. REIS, J. DATE : 8TH JULY, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 17-1-2006 passed by the learned Motor Accident Claims Tribunal, North Goa, Panaji in Claim Petition No.83 of 1996. 2. It is the case of the Appellant/Claimant that on 12-12-1995 at about 6.30 p.m. at Ponda-Panaji Highway near Ciba Factory Gate, Respondent No.1 drove the KTC bus belonging to Respondent No.2 in a rash and negligent manner and dashed against him while he was walking on the left side of the road along Corlim Old Goa Highway. It is further his case that as a result of the said accident he had sustained crushing injuries on the pelvic region and rupture of the urethra and that his marital life had ruined. He accordingly claimed a compensation of Rs.5,00,000/- towards medical treatment, travelling, loss of earnings, mental agony, shock, sufferings, pain, loss of pleasures, discomforts, first appeal no.146 of 2006 3 inconveniences and general damages. Respondent No.1 filed his written statement and denied that he has driven the vehicle in a rash and negligent manner. Respondent No.2 has also filed the written statement and disputed the claim of the Appellant. After framing the issues and recording of evidence, the learned Presiding Officer of the Motor Accident Claims Tribunal at Panaji partly allowed the Claim Petition and awarded a sum of Rs.1,05,000/- as compensation to the Appellant together with interest at the rate of 6% per annum from the date of the filing of the claim petition upto the entire payment. Being aggrieved by the said Judgment and Award, the Appellant has preferred the present appeal. 3. Shri E. Afonso, learned Counsel appearing for the Appellant has assailed the impugned Judgment and pointed out that the amount of compensation awarded by the Tribunal is grossly inadequate. Learned Counsel has pointed out that the Tribunal whilst assessing the compensation payable to the Appellant has awarded a sum of Rs.21,600/- towards loss of income for a period of one year when according to him the law is well settled by the Apex Court to the effect that even in cases where there is no evidence adduced by the Claimant to first appeal no.146 of 2006 4 establish the actual wages/salary at the relevant time the compensation is fixed on the basis that the monthly income of the Claimant is a minimum of Rs.3000/. Learned Counsel further submitted that as such, the said amount awarded by the Tribunal is grossly inadequate. Shri E. Afonso, learned Counsel further submitted that the Appellant was a mason by profession and on account of the injury sustained by him in the said accident his earning capacity has grossly diminished. Learned Counsel further submitted that the Tribunal has awarded only a sum of Rs.25,000/- towards his future loss of income when on the contrary considering the age of the Appellant at the relevant time, such amount of future loss is also inadequate. Learned Counsel has vehemently pointed out that considering the injuries sustained by the Appellant in the said accident, which forced the Appellant to undergo an operation not only at the Goa Medical College but also at Kasturba Hospital, only an amount of Rs.2,238.50 was awarded towards medical expenses. Learned Counsel has pointed out that the Appellant has produced the documents with regard to the expenses incurred by the Appellant at Kasturba Hospital at Manipal to the extent of Rs.56,000/- on account of the treatment he had to undergo at the said hospital including a surgery. Learned Counsel further submitted that the Appellant had to be admitted in the hospital for first appeal no.146 of 2006 5 a considerable period of time and as such, he had to incur substantial expenditure towards his medical expenses. Learned Counsel further submitted that a sum of Rs.10,000/- awarded by the Tribunal as medical expenses cannot be at all justified and the same is illusory considering the material on record. Learned Counsel further pointed out that for the purpose of travelling to Manipal he had to spend Rs.1,300/- which has been wrongly disputed. Learned Counsel further submitted that the Appellant had to proceed to Manipal on many occasions and Rs.5000/- awarded by the Tribunal towards transport expenses is also illusory. Learned Counsel further submitted that the Tribunal has awarded only a sum of Rs.20,000/- towards the loss of marital life and a further sum of Rs.15,000/- towards pain and sufferings which is also grossly inadequate. Learned Counsel has pointed out that on account of the said accident the Appellant's marital life has been grossly hampered and considering the injuries sustained by the Appellant and the permanent disability occasioned on account of the accident the amount of compensation towards pain and suffering as well as loss of marital life deserves to be enhanced. Learned Counsel has relied upon a Judgment of the Apex Court in the case of Laxmi Devi and others v. Mohammad Tabbar and another((2008) 12 SCC 165). Learned Counsel further first appeal no.146 of 2006 6 submitted that the amount awarded by the Tribunal as compensation deserves to be enhanced and additional amounts are to be paid to the Appellant on account of all the over said counts. Learned Counsel as such submitted that the appeal deserves to be allowed. 4. On the other hand, Shri A. R. Kantak, learned Counsel appearing for Respondent No.2 has supported the impugned Judgment. Learned Counsel pointed out that as far as the claim is concerned towards medical expenses no evidence on record has been adduced by the Appellant to substantiate the said claim. Learned Counsel has further submitted that the invoice produced by the Appellant from Kasturba Hospital cannot be read in evidence as according to him there is no proof of any such amount being paid by the Appellant. Learned Counsel has further submitted that though it is sought to be claimed by the Appellant that the employer had paid the bills no evidence has been adduced to substantiate that any amount was received from his employer for affecting such payments. Learned Counsel further submitted that there is no evidence on record to substantiate his contention that he has been totally deprived of doing any work on account of the accident. Learned Counsel pointed out that on account of pain and suffering as well as loss first appeal no.146 of 2006 7 of marital life the amount is on the higher side as according to him the Tribunal has rightly awarded the amount considering the facts and circumstances of the case. Learned Counsel submitted that as the Appellant has failed to produce any evidence for transportation, the question of awarding any compensation on that count would not arise. Learned Counsel has further submitted that though the bills produced by the Appellant disclose that the expenses incurred was a sum of Rs.1000/-, Rs.5000/- has been awarded on such count. Learned Counsel as such pointed out that no interference is called for in the impugned Judgment and as such the appeal deserves to be rejected. 5. Having heard the learned Counsel and on perusal of the record, the following point for determination arises:- Whether the learned Tribunal was justified to fix the compensation payable to the Appellant at a sum of Rs.1,05,000/-? 6. On perusal of the impugned Judgment and Award passed by the learned Presiding Officer, I find that the Tribunal whilst assessing the first appeal no.146 of 2006 8 compensation towards the loss of income for a period of one year has awarded a sum of Rs.21,600/-. The said amount has been awarded on the basis that the Appellant himself was claiming that his monthly income was Rs.1,800/-. Shri Afonso, learned Counsel appearing for the Appellant submitted that the income of a person is to be fixed at Rs.3000/- per month. I find that on perusal of the Claim Petition filed by the Appellant the Appellant has himself stated that his monthly income is Rs.1,800/-. When such admission is available on record, the question of fixing any higher amount for the purpose of fixing the loss during the period when the Appellant was unable to do any work would not arise. Hence, I find no infirmity in fixing the amount of loss of income for a period of one year as Rs.21,600/-. 8. With regard to the compensation fixed by the Tribunal of Rs.25,000/- towards the loss of future income, considering that the case of the Appellant was that he was earning a sum of Rs.1,800/- per month, and, there is no evidence on record to establish as to whether he had any issues from the marriage, I find that no interference is called for in fixing the said amount by the Tribunal in the impugned Judgment. first appeal no.146 of 2006 9 9. The next claim put forward by the Appellant is with regard to the medical expenses. On perusal of the evidence on record especially the documents at Exh.21 colly, I find that amongst the bills produced by the Appellant, there were three advance advices from Kasturba Hospital at Manipal produced by the Appellant. The first advice is dated 5th February, 1996 for a sum of Rs.6,132.36. The next is dated 12th February, 1996 for a sum of Rs.23,035.62 and the third is dated 26th February, 1996 for a sum of Rs.28,499.16. 10. Shri Kantak, learned Counsel for Respondent No.2 pointed out that the said documents cannot be read in evidence as according to him, as the author of the said documents has not been examined whilst marking them as exhibits. On going through the evidence of AW1 on record I find that the said documents have been produced without raising any objection on the part of the Respondent herein and marked as exhibits. Once, the documents have been exhibited without any objection on the part of the Respondent, the question of now claiming that the said documents cannot be taken on record cannot be accepted. The said documents have been duly exhibited and as such, it is open to the Court to consider the documents for deciding the matter in first appeal no.146 of 2006 10 controversy. The next contention is that the Appellant has failed to prove that actually the amounts have been paid. I find that in the cross- examination of AW1 the authencity or veracity of the documents has not been challenged. There is no suggestion in the cross-examination that the Appellant has not paid the amounts to the Manipal Hospital. The documents are copies of the advice from the Kasturba Hospital and as such considering the facts and circumstances of the case, I find that there is no reason to disbelieve the said documents. Apart from that the doctor examined has clearly stated that the Appellant was advised to proceed to Manipal for further treatment. There is no dispute raised by the Respondent to the effect that the Appellant had to go to Manipal. Considering the said aspect, I find that there is no justification for not considering the said documents for the purpose of fixing the medical expenses incurred by the Appellant. On perusal of the said documents, I find that the final amount payable by the Appellant is a sum of Rs.28,495/-. I have no reason to disbelieve the correctness of the amount and as such the Tribunal is not justified to refuse the amount of Rs.28,000/- and odd to the Appellant. While assessing the compensation payable to the Appellant, the Tribunal has fixed a sum of Rs.10,000/- towards medical expenses. The Tribunal also found that the Appellant first appeal no.146 of 2006 11 had produced bills only of Rs.2000/- towards medical expenses and the amount was fixed at Rs.10,000/-. Considering that besides the said sum of Rs.2000/- a further sum of Rs.28,000/- was spent by the Appellant towards medical expenses. For the reasons stated above, I find that the Appellant is entitled for a total sum of Rs.30,000/- towards medical expenses. As such, the Tribunal was not justified to fix only the amount of Rs.10,000/- and an additional sum of Rs.20,000/- is payable towards such medical expenses. 11. The next aspects to be considered on the basis of the submission of the learned Counsel are with regard to the claim of compensation towards transportation expenses and pain and suffering. The Appellant has deposed in his evidence that he had spent a sum of Rs.3,100/- for proceeding to Manipal by a jeep. The said fact has not been disputed in the cross-examination. As such, the Tribunal was not justified to refuse the sum of Rs.3,100/- spent by the Appellant. On that count considering the nature of the injuries sustained, the sum of Rs.3000/- towards transportation cannot be said to be exorbitant. As such besides, the sum of Rs.5000/-, the Appellant would be entitled for a further sum of Rs.3000/- towards such transportation expenses. first appeal no.146 of 2006 12 12. The next amount is with regard to the compensation awarded towards loss of marital life and a further sum of Rs.15,000/- is towards pain and suffering. A total amount awarded by the Tribunal is Rs.35,000/-. On perusal of the evidence of Dr. Vasco Silva he has stated that the Appellant has suffered a fracture of pelvis and rupture of urethra. He has further stated that he has undergone an operation under general anesthesia and he had developed stricture of the urethra and he was discharged from the Goa Medical College on 29-1-1996 and was advised to proceed to Manipal. He further stated that he had undergone treatment at Kasturba Hospital at Manipal. Considering the nature of the injuries sustained which also resulted in permanent disability to the Appellant, it cannot be disputed that the Appellant had sustained serious injuries which has resulted in deformity for his remaining span of life. The Appellant had to undergo an operation at Kasturba Hospital, which would result in substantial pain and suffering to the Appellant. There is no dispute that on account of the injuries sustained by the Appellant his marital status would be affected. The Apex Court in the said Judgment whilst assessing compensation in similar circumstances has awarded a sum of Rs.1,00,000/-. But, however on perusal of the said Judgment of the Apex Court, I find that the Apex Court had fixed the said amount as first appeal no.146 of 2006 13 the victim had to undergo dialysis for his remaining life span. In the present case, the question of subjecting the Appellant for such dialysis does not arise as there is no evidence to that effect on record. Considering the injuries sustained by the Appellant in the said accident. I find that the amount of Rs.35,000/- on such count is inadmissible. There is no doubt that in such matters there is no standard fixed and it is open to the Court to fix a reasonable compensation in the facts and circumstances of the case. In the present case, the facts disclose that the Appellant had to undergo an agony on account of injuries sustained by him in the accident. In the overall view of the matter, I find that the amount towards pain and suffering and loss of marital life awarded by the Tribunal of Rs.35,000/- is to be enhanced to Rs.60,000/-. As such a further amount of Rs.25,000/- is to be paid by the Respondents to the Appellant. 13. Considering the facts and circumstances of the case, the excess amount payable to the Appellant over the sum of Rs.1,05,000/- by the Respondents jointly and severally is a further sum of Rs.48,000/-. first appeal no.146 of 2006 14 14. Shri Afonso, learned Counsel for the Appellant has pointed out that the Appellant would be entitled for interest @ 9% on the said amount instead of 6% as awarded by the Tribunal. Considering the facts and circumstances of the case, the interest payable by the Respondents to the Appellant in respect of the said excess sum of Rs.48,000/- is fixed at 7.5% till actual payment. It is submitted by both the learned Counsel that the amount awarded by the Tribunal has been duly paid by the Respondents to the Appellant. As such, the Respondents would be jointly and severally liable to pay a further sum of Rs.48,000/- with interest @ 7.5% per annum from the date of filing of the petition upto actual payment. The point for determination is answered accordingly. 13. In view of the above, I pass the following Order:- ORDER 1. The appeal is partly allowed. 2. The impugned Judgment and Award dated 17-1-2006 is modified and the Respondents are directed to pay jointly and severally a further sum of Rs.48,000/- together with interest thereon at 7.5% per annum from the date of the filing of the petition upto actual payment. first appeal no.146 of 2006 15 3. The appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J. RD