1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.235 OF 2005 Augustinho Alfonso, 37 years, son of late Pedro Alfonso, r/o. H.No.137, Verna, Nagoa, Mount Mary, Salcete – Goa. …. Appellant V/s 1. Praveen R. Chintakal, … appeal stands dismissed r/o. H.No. Not known, Zuari, Near Shivanand Mandir, Zuari Nagar, Goa. 2. Chandrika Prasad, s/o. Ramautar Vishwakarma Prasad, r/o. Zorint, Near Hanuman Temple, H.No. Not known, C/o. Annapurna Hotel, Vasco-da-Gama, Goa 3. The New India Assurance Co. Ltd., Above New Bank of India, Vasco-da-Gama, Goa. …. Respondents Mr. V. Parsekar, Advocate for the Appellant. Mr. E. Afonso, Advocate for Respondent No.3. CORAM : F.M. REIS, J. DATE : 11th APRIL, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 11/07/2005 passed by the learned Presiding Officer of the Motor Accident Claims Tribunal at Margao in Claim Petition No.191/1999. 2 2. The Claim Petition came to be filed by the appellant in view of the injuries suffered by the appellant in an accident which occurred on 14/05/1999 at about 10.30 a.m. near the IInd gate at Zuarinagar, where the appellant was a pillion on the scooter ridden by one Cruz Alex Pereira, while they were proceeding from Verna to Vasco via Zuarinagar. It is further their case that on reaching Zuarinagar IInd gate, the vehicle Tata Mobile, which was parked on the left side of the road on the katcha portion of the said road facing towards Vasco was suddenly brought on the main road without taking precaution of flow of vehicles and dashed against the scooter on which the appellant was a pillion. Accordingly, the appellant sought compensation to the tune of Rs.4 lacs in view of the injuries sustained by him due to the said accident. 3. The respondent no.3 contested the petition and claimed that the accident was solely on account of the rashness and negligence on the part of the rider of the scooter. 4. The Tribunal by the impugned judgment and award dated 11/07/2005 partly allowed the claim petition and directed the payment of compensation to the tune of Rs.86,890/- together with 3 interest at the rate of 9% per annum from the date of the claim petition till the passing of the award and at the rate of 6% per annum from the date of award till the entire amount is paid. Being aggrieved by the said judgment, the appellant has preferred the present appeal. 5. Shri Parsekar, the learned Counsel appearing for the appellant has assailed the impugned judgment and pointed out that the accident had occurred solely on account of the rashness and negligence on the part of the respondent no.1. The learned Counsel further submitted that the amount awarded by the Tribunal is on the lower side as according to him the amount assessed on account of loss of income as well as due to the permanent disability ought to have been much higher than the one awarded by the Tribunal. Learned Counsel, in support of his claim, further pointed out that the appellant was earning a sum of Rs.35,000/- per month, and had produced Tax Deduction Certificate which establishes that substantial amount of tax was deducted from the income paid to the appellant. The learned Counsel further submitted that the amount awarded on account of pain and suffering to the tune of Rs.5,000/- is illusory. Learned Counsel further took me through the evidence on record and pointed out that the Tribunal ought to have awarded 4 much higher compensation than the one awarded by the impugned judgment and, as such, the impugned judgment deserves to be modified and the higher compensation be paid to the appellant. In support of his submission, he has relied upon the judgment of the Apex Court reported in 2010 (10) SCC 341 in the case of Yadava Kumar V/s. Divisional Manager, National Insurance Company Limited & Anr. 6. On the other hand, Shri Afonso, the learned Counsel appearing for the respondent no.3 has supported the impugned judgment. Learned Counsel submitted that the amount awarded by the Tribunal is just and appropriate in the facts and circumstances of the case. Learned Counsel has taken me through the certificate issued by the Doctor at Exhibit 17 which establishes that the appellant had full mobility though he has only some restrictions in the mobility of his left knee. The learned Counsel has taken me through the evidence on record and pointed out that nothing has been stated therein to establish that the appellant was totally disabled from performing his duties or carrying on the work which he was doing prior to the accident. Learned Counsel, as such, pointed out that there is no infirmity committed by the Tribunal and, as such, the appeal deserves to be rejected. 5 7. Having heard the learned Counsel and on perusal of the record, the findings of the Tribunal to the effect that the accident occurred on account of rashness and negligence on the part of respondent no.1 cannot be challenged in the present appeal. The said findings stand confirmed. 8. Dealing with the compensation awarded by the Tribunal, while assessing the compensation on account of medical expenses, the Tribunal has awarded an amount of Rs.4,889.74. Considering the actual expenditure incurred on the basis of the medical bills produced, the said amount is just and proper. With regard to payment of compensation on account of permanent disability, the Tribunal has awarded a sum of Rs.25,000/- on such count. On perusal of the certificate at Exhibit 17, it is evident that the appellant was not totally disabled on account of the injuries sustained due to the said accident. The Doctor has certified that the appellant attained full mobility after 6 months period. The appellant has full functional recovery of the left lower limb except for terminal limitations of the left knee joint flexion. The percentage of such permanent disability has been assessed. Considering the said facts and on the basis of the said certificate 6 which establishes that the appellant was able to attain full functional recovery of the left lower limb, I find that the amount awarded by the Tribunal on that count cannot be said to be unjust on the basis of the material on record. Apart from that the Tribunal has also awarded sum of Rs.50,000/- on account of loss of income. The Tax Deduction Certificate produced by the appellant does not by itself establish the actual income which the appellant would earn during the said period. The appellant has failed to produce the copy of the income tax returns nor the copy of an assessment order for the purpose of assessing the income generated by the appellant prior to the said accident. As such, the said sum of Rs.50,000/- awarded cannot be said to be unjust. The transportation charges awarded by the Tribunal of Rs.2,000/- cannot be faulted. 9. With regard to the amount of compensation awarded on account of pains and sufferings, the Tribunal has fixed such compensation at Rs.5,000/-. No doubt, the evidence on record shows that the appellant had suffered fractures and was immobilised and such situation can cause an enormous pain and there is no standard method of assessing such compensation. Considering the facts and circumstances of the case and the fact that the appellant had to install plates for the purpose of his 7 recovery from the injury sustained on account of the said accident, I find that the amount of Rs.5,000/- awarded by the Tribunal is on the lower side. Considering the injuries sustained and period which forced the appellant to remain without any work, I find that the amount of compensation on account of pain and suffering is to be enhanced to Rs.20,000/-. To that extent the impugned judgment deserves to be modified. 10. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award is modified and besides the amount of compensation as awarded by the learned Tribunal, the respondents are directed to pay jointly and severally a further excess sum of Rs.15,000/- to the appellant along with interest thereon at the rate of 6% from the date of filing of the Claim Petition up to actual payment. (iii) The appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-