1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 107 OF 2002 Camilo D'Souza, s/o. Jose D'Souza, about 58 years of age, r/o. H.No.147, Tolem, Utsobhat, Macazana, Salcete, Goa. ........ Appellant. ` V/s. 1. Shri James D'Costa, major in age, r/o. H.No.not known, Guirdolim, Chandor, Salcete – Goa. 2. Shri Jose A. Dias, of major age, H.No.not known, Agricol, Curtorim, Salcete, Goa. 3. M/s. National Insurance Co. Ltd., 2nd Floor, Marchon Building, Near Lohia Maidan, Margao, Goa. 4. Shri Joaquim Barreto, major in age, r/o. H.No. Not known, Bhati, Curtorim, Salcete, Goa. ....... Respondents. Mr. V.G. Dukle, Advocate for the appellant. Mr. E. Afonso, Advocate for respondent No.3 – absent. 2 CORAM :- A.S. OKA, J. Date :- 2nd July, 2010. ORAL J U D G M E N T : Heard learned Counsel for the appellant. None appears for the respondents. The appellant is the claimant in the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter, referred to as “the said Act”). The challenge in the appeal is to the Judgment and Award dated 12th June, 2000 passed by the Presiding Officer of the Motor Accident Claims Tribunal, South Goa, at Margo. 2. The case of the appellant is that on 23rd January, 1993 at about 5.30 p.m., he was proceeding from Kirdolem, Curtorim to his residence as a pillion rider on a motorcycle driven by the fourth respondent. A scooter driven by the first respondent came from the opposite direction. According to the appellant, the scooter was being driven in a rash and negligent manner and it dashed against the motorcycle on which he was proceeding as a pillion rider. The appellant suffered injuries as a result of the accident, resulting in 3 permanent disability. 3. The only contest was by the third respondent which was the insurer of the scooter plied by the first respondent. The contention in the written statement is that the first respondent was not possessing a valid driving licence on the date of the accident. The Tribunal held that the accident occurred due to the rash and negligent driving of the scooter on the part of the first respondent. The Tribunal accepted the case of injuries sustained by the appellant in the accident and the disability suffered by the appellant. Out of the claim amount of Rs.1,98,918.35, a compensation of Rs.90,800/- was granted with interest. The Tribunal found that the third respondent has established the defence that the first respondent was not holding a valid driving licence on the date of the accident. Therefore, the learned Presiding Officer exonerated the insurer of the scooter. 4. The submission of the learned Counsel appearing for the appellant is that though a contention was raised in the written statement of the third respondent that the first respondent was not possessing a driving licence, no issue was framed on the said aspect, 4 and therefore, the appellant had no opportunity to lead evidence on the said aspect. He submitted that a prejudice has been caused to the appellant as the said contention of the third respondent has been considered without framing any issue. Inviting attention of the Court to the injury certificate and the evidence of the medical practitioner, he submitted that this was a case of loss of hundred percent disability considering the occupation of the appellant of picking up the pigs and carrying them and selling them in the market. He submitted that the evidence on record shows that the income of the appellant was Rs.100/- to Rs.200/- per day and, therefore, notional income of Rs.15,000/- taken by the learned Tribunal is on the lower side. He submitted that the loss of income of Rs.300/- per month is extremely on the lower side, inasmuch as considering the nature of the occupation of the appellant there was hundred percent loss of earning capacity. He, therefore, submitted that the appellant is entitled to enhancement in the compensation. 5. The first question is whether the third respondent established the fact that there was a breach of terms and conditions of the insurance policy by the insured inasmuch as the first respondent 5 was not possessing a valid driving licence on the date of the accident. It is true that there is no issue framed on this aspect. However, the third respondent adduced evidence by examining witnesses Mr. Santosh Gosavi and Joaquim Oliveira. Both the witnesses were examined on the issue as to whether the first respondent was possessing a valid driving licence. Both the witnesses have been cross examined by the Advocate for the appellant. Therefore, the appellant had a notice that the issue regarding absence of licence on the part of the first respondent was being considered by the Tribunal. The first witness examined by the third respondent is Mr. Santosh Gosavi who was the Asst. Administrative Officer of the third respondent. He stated that as per usual practice, a letter was sent to the owner of the vehicle asking him to produce the relevant documents including the driving licence. However, the concerned respondent did not produce the documents. In the cross examination, he denied the correctness of the suggestion that no letter was sent by the Insurance Company to the insured, calling upon him to produce the driving licence. In the cross examination, the witness stated thus : “ We are not sure whether the rider of the said vehicle was holding a valid licence or not at the 6 time of the accident.” Thus, the stand taken by the said witness is that the third respondent was not sure whether the rider of the vehicle was holding a valid licence or not. In any case, well settled law is that the burden to prove the breach of terms and conditions of the policy is on the third respondent. In this case, the witness examined by the third respondent stated that the third respondent was not sure whether the driver was possessing a valid driving licence or not. 6. The second witness examined by the third respondent is an Asst. Inspector of Police attached to the concerned police station in the year 1993. He stated that the drivers of both the vehicles involved in the accident were not possessing driving licences at the time of the accident and, therefore, chalans were issued. The two chalans were placed on record. However, in the cross examination, the witness admitted that the chalans were not bearing his signatures. He accepted that apart from the said two chalans, he did not have any other document to show that the two drivers did not hold driving licences. He denied the correctness of the suggestion that the original chalans 7 were not handed over to the respective drivers. He denied the correctness of the suggestion that the said chalans are not genuine. It is pertinent to note that the witness has neither signed the chalans nor has personally served the chalans to the drivers. He has not identified the alleged signature of the first respondent on the said chalans. Thus, the said chalans were not proved in accordance with law. The third respondent did not examine the person who had allegedly served the chalans to the first respondent and the other person involved in the accident. There is no attempt made to issue witness summons to the first respondent. The learned Presiding Officer of the Tribunal has not considered the important aspect that the copies of the chalans at Exhibits 52 and 53 were not proved by the third respondent. In this regard there was no cogent evidence of the fact that chalans were in fact served to the persons concerned. The finding of the learned Presiding Officer that the third respondent discharged the burden is completely erroneous and the same deserves to be quashed and set aside. 7. That takes me to the other challenge on the quantum of compensation. The case made out by the appellant in his examination- 8 in-chief is that he was unable to bend his legs. He stated that he was unable to sit for a long time. He was unable to climb the coconut trees and was unable to ride a cycle. He stated that he was a cultivator and used to sell sausages. He stated that he used to prepare sausages after buying pigs. He stated that he used to bring pigs by a bicycle. He stated that he was earning a sum of about Rs.3,000/- per month which was mainly from sausages. He stated that after the accident, he was not able to do the said work. For proving the said income, the appellant examined one Joaquim D'Costa, witness No.4. He made out a different case that the appellant was working with him in killing pigs. He stated that he was working in partnership with the appellant and he used to share the profits with the appellant. He stated that the daily profit was ranging between Rs.100/- to Rs.200/-. Thus, the theory of partnership and the daily income of Rs.100/- to Rs.200/- does not find place in the deposition of the appellant. In the circumstances, the Tribunal has rightly proceeded by taking notional income of the appellant at Rs.15,000/- per month. Even if the deposition of the appellant is accepted as it is, the case of hundred percent loss of earning capacity cannot be accepted. In the circumstances, loss of income to the extent of Rs.300/- per month taken by the Tribunal is correct and no 9 interference is called for. Therefore, so far as the quantum is concerned, there is no scope for interference. 8. Hence, I pass the following order : The impugned Judgment and Award is modified and it is directed that the first, third and fourth respondents to the claim petition are jointly and severally liable to pay the compensation amount awarded under the impugned award. Rest of the impugned award stands confirmed. There will be no order as to costs. A.S. OKA, J. ssm.