-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 152 OF 2006 Shri Richard Diniz, S/o Patrick Diniz, aged about 29 years, service, resident of House No.887, Pontemol, Curchorem – Goa. …... Appellant V e r s u s 1. Shri Chandrakant Nitu Sawant Dessai, major of age, business, resident of House No.20, Sawantwada, Kakoda – Goa. 2. Shir Bhuno Deu Velip, son of Deu Velip, driver, resident of House No.57, Velipwada, Cotarli, Sanguem – Goa. 3. The Oriental Insurance Co. Ltd., Gaffur Building, 2nd Floor, Station Road, Curchorem – Goa. …... Respondents Mr. D. Pangam, Advocate for the Appellant. Mr. E. Afonso, Advocate for Respondents. Coram :- F. M. REIS, J Date : 18 th November, 2011. ORAL JUDGMENT The above Appeal challenges the Judgment and Award dated 15.04.2006, passed by the learned Presiding Officer in the Motor Accident Claims Tribunal, South Goa, Margao, in Claim Petition no. 17/2004, whereby the Claim -2- filed by the Appellant was partly allowed and the Respondents were directed to pay jointly and severally compensation to the tune of Rs.1,10,000/- alongwith interest at the rate of 7.5% per annum from the date of the filing of the Claim Petition upto actual payment. 2. Shri Pangam, learned Counsel appearing for the Appellant has assailed the impugned Judgment essentially on two counts. It is his contention that the compensation awarded by the Tribunal on account of pain and suffering is on the lower side as according to him, the claimant had suffered three fractures on account of the motor vehicle accident and, as such, considering that he was confined in the household for more than one year, the learned Judge ought to have ordered a higher compensation. Learned Counsel took me through the evidence of Aw.1 and pointed out that he has stated that he had suffered pain and suffering to undergo two operations and he would have to under go treatment for a period of one or two years which would entail substantial pain and suffering to the Appellant. Learned Counsel further pointed out that the accident has occurred on account of the rash and negligent driving of the truck by the Respondent no.2 and, as such, the Appellants were entitled for compensation claimed in the Claim Petition. The learned Counsel further points out that the learned Judge has erroneously awarded only a sum of Rs.15,000/- on account of loss of income when, on the contrary, it is the contention of the learned Counsel that the Appellant being a Chemist by profession, was earning a very substantial sum and that on account of the accident, he was unable to carry out any of his duties for a considerable time. Learned Counsel as such submitted that the impugned Judgment deserves to be modified and the Appellant be awarded further compensation on account of pain and -3- suffering as well as on account of loss of income. 3. Shri Afonso, learned Counsel appearing for the Respondent no.3, has disputed the contention of the learned Counsel appearing for the Appellant. It is the contention of the learned Counsel that the learned Judge has erroneously come to the conclusion that the accident occurred on account of the rash and negligent driving of the Respondent no.2. Learned Counsel took me through the evidence of Rw.1 and pointed out that as per the version given by the Respondent the accident occurred on account of the fact that the Appellant was driving his motorcycle in a rash and negligent manner and in a fast speed and, as such, came and collided with the truck on the rear side wheel of the said truck. Learned Counsel further pointed out that on account of the fact that there was a speed breaker at the site, the Appellant lost control of the motorcycle as he was coming in a high speed which resulted in the accident. Learned Counsel further pointed out that the learned Judge has rightly appreciated the evidence on record and has fixed the compensation awarded and, though, in the facts and circumstances of the case, the Appellant is not entitled for any compensation. Learned Counsel further pointed out that the Tribunal has rightly fixed the compensation on account of loss of income as Rs.15,000/-. Learned Counsel further submitted that no interference is called for in the impugned Judgment. 4. Having heard the learned Counsel and on perusal of the evidence on record, the following points for determination arise in the present Appeal for my consideration : -4- 1. Whether the Appellant is entitled for any enhancement of compensation on account of pain and suffering ? 2. Whether the Appellant is entitled for any enhancement of compensation on account of loss of income ? 5. With regard to the contention of Shri Afonso, learned Counsel appearing for the Respondent no.3 to the effect that rashness and negligence has not been established by the Appellant, I find on perusal of the impugned Judgment at para 28, the learned Judge after appreciating the evidence of Aw.1, Aw.4 and Rw.1 as well as the sketch as well as the evidence of pancha, has come to the conclusion that the accident had occurred on account of rashness and negligence on the part of the Respondent no.2. Apart from that, the contention of the Learned Counsel appearing for the Respondent no.3 about the existence of the speed breaker at the site and that the Appellant had lost his control on such count cannot be borne out from the records. On perusal of the examination in chief of Rw.1, he has stated that he had already crossed the speed breaker at the time when the accident had occurred, though in the cross examination he resciled and contended that he had not at all crossed the speed breaker. On the basis of the material on record, the Tribunal has rightly come to the conclusion that the accident had occurred on account of rashness and negligence of the Respondent no.2. The Respondents have also not filed any Cross Objections challenging the said findings. 6. With regard to the first point for determination that the Appellant is entitled for enhancement of compensation on account of pain and suffering, I find -5- that the records reveals that the Appellant had to undergo three operations on account of such accident. The Appellant also suffered a permanent disability of 20% and further he had suffered a fracture to his right leg. Considering that he had to undergo such operations and further that he had suffered permanent disability to the extent of 20%, I find that the amount of Rs.25,000/- awarded by the Tribunal is on the lower side and the same ought to have been Rs.50,000/- in the facts and circumstances of the case. The operations the Appellant had to undergo are quite painful and such process would cause a lot of suffering to the Appellant and the compensation in such cases is very difficult to assess definitely. Considering the overall evidence on record, I hold the Appellant is entitled to a further sum of Rs.25,000/- on account of pain and suffering. The first point of determination is answered accordingly. 7. With regard to the next point of determination, the Tribunal on the basis of the evidence on record, has discarded the evidence of the income produced by the Appellant by cogent reasons. Such reasons arrived at by the Tribunal cannot be said to be erroneous. Considering that there was no salary certificate produced by the Appellant, the Tribunal was justified to fix the amount of Rs.15,000/- on account of loss of income. No infirmities can be found on that count. Second point for determination is answered accordingly. 8. Both the learned Counsel do not dispute that the amount awarded has been paid by the Respondents to the Appellant. Considering the above, the Appellant would be entitled to an excess amount of Rs.25,000/- on account of pain and suffering. -6- 9. In view of the above, I pass the following : ORDER (i) The Appeal is partly allowed. (ii) The impugned Judgment and Award dated 15.04.2006 is modified and besides the compensation awarded by the Tribunal, the Appellant is entitled to an excess amount of Rs.25,000/- with interest at the rate of 6% per annum from the date of filing of the Claim Petition upto actual payment. (iii) Appeal stands disposed of accordingly with no orders as to costs. F .M. REIS, J. arp/*