1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.128 OF 2005 Smt. Sharad Guno Naik Aged 50 years, housewife cum Agriculturist, daughter of Purshottam Naik, wife of Guno Naik, Resident of house no.20, Kamtibhag, Mugali, Sanguem Goa. …. Appellant V/s 1. Shri Diwakar Narayan Gauns Dessai, resident of house No.414, 3m Voyamol, Xeldem, Quepem, Goa. (driver/owner) 2. The National Insurance Company Ltd., Confraria Building, 2nd floor, Jose Falcao Road, Panaji, Goa, 403 001. …. Respondents Mr. S.S. Kakodkar, Advocate for the Appellant. Mr. E. Afonso, Advocate for Respondent No.2. CORAM : N.A. BRITTO, J. DATE : 26th NOVEMBER, 2010 JUDGMENT : Dissatisfied with the award dated 5/06/2004 of the learned MACT, Margao, awarding compensation of `61,350/- with interest at the rate of 9%, the claimant has filed the present appeal. 2. Facts absolutely necessary to dispose of this appeal are that the claimant met with an accident on 21/01/2001 at about 18.15 hrs. involving the vehicle driven and owned by respondent no.1 and insured with respondent no.2. In the said accident, the 2 claimant suffered fractures of right fibula and left femur on account of which the claimant was admitted in Goa Medical College on 21/01/2001 and discharged on 28/02/2001 and again from 3/05/2001 to 13/05/2001 and in between the claimant attended OPD at Goa Medical College on about ten occasions and ultimately she was found to have suffered permanent disability of 15% of the left lower limb and 8% of the right lower limb. AW6/ Dr. Baretto who was examined by the claimant had opined that the overall treatment including physiotherapy would have taken up to one year or above (to recover completely). AW6/Dr. Baretto had further opined that the claimant could have done her normal duty after November, 2001 as the fractures had united. 3. The learned MACT awarded to the claimant compensation as follows:- 1 Towards loss of income `15,000/- 2 For her Permanent Disability `44,850/- 3 Medical Expenses `10,000/- 4 Pain and sufferings `10,000/- 5 Transport Expenses `06,500/- TOTAL `86,350/- 4. The claimant has been awarded by the learned MACT a sum of `10,000/- for pain and suffering. Considering that the claimant 3 was in the hospital for almost two months initially and then again for about 10 days on account of delayed union of the fracture and yet again for the removal of implants, in my view, a sum of `10,000/- towards pain and suffering would be on the lower side and, therefore, in my view, at least a sum of `15,000/- ought to have been awarded to the claimant on that count. 5. Learned Counsel Shri Kakodkar on behalf of the claimant next submits that the claimant was a housewife – a home maker, and, therefore, her annual income ought to have been considered by the learned MACT as `36,000/- per year. This submission is made based on the judgment of the Apex Court in the case of Arun Kumar Agrawal & Anr. V/s. National Insurance Co. Ltd. & Ors. (AIR 2010 SC 3426) wherein the Apex Court has, inter alia, observed that gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. Shri Afonso, learned Counsel on behalf of respondent no.2, on the other hand, has submitted that the judgment of the Apex Court would have been applicable in case a claim for compensation was made by the claimant's husband or any member of her family and since the claim of compensation is made by the claimant – 4 home maker herself, the said judgment is inapplicable. The learned MACT has considered the income of the claimant at `15,000/- per year on notional basis in terms of clause 6 of the schedule and has awarded loss of income for one year of `15,000/-. I am entirely in agreement with the submission made by the learned Advocate Shri Afonso. The Judgment of the Apex Court in Arun Kumar (Supra) would have been applicable in case the compensation was claimed either by the husband or by the children of the wife/mother and not otherwise. 6. Shri Kakodkar has then submitted that the claimant has not been awarded any compensation for loss of future prospects and in this context learned Counsel has placed reliance on the case of Sunil Kumar V/s. Ram Swingh Gaud & Ors. (2007 (14) SCC 61). This was a case of a driver who was having income of `4,000/- per month and had suffered a disability of 45% and the learned Apex Court proceeded to observe that his capacity to earn future income would be reduced by `1,800/- per month and after taking 1/3rd deduction towards miscellaneous expenses of `1,200/- and taking a multiplier of 18 assessed the total loss of income at `2,59,200/-. Counsel on behalf of the claimant submits that the claimant is unable to squat on the floor and limps, as stated by her. However, 5 her evidence on this aspect is not at all corroborated by Dr. Baretto who has clearly stated that the claimant could do all her normal duties after November, 2001 as the fracture had been united. Therefore, the claimant would not be entitled to any compensation towards loss of future prospects. 7. The learned MACT has not awarded any compensation towards attendant's charges inspite of the fact that the attendant herself was examined as AW3. The learned MACT has proceeded to disallow any compensation towards attendant's charges because in the opinion of the learned MACT the claimant had five children, the eldest being of 25 years of age and the others two or three years younger to her and, therefore, it could not be believed that when the claimant had grown up children including her daughter she would have kept an attendant to look after her. Admittedly, the claimant had suffered fractures of both the legs and certainly required an attendant to look after her and whether the attendance was done by a stranger or her own daughter, the claimant was certainly entitled to be compensated for expenses incurred by her on that count. AW3/Lalita, the said attendant had stated that she had attended to the claimant for about three months at Bambolim and she was paid `50/- per day and was also been provided with 6 meals and after the claimant went home, the claimant was again readmitted for about 15 days and she attended to the claimant and after her discharge she again attended to the claimant at her residence for about a month and, thereafter, she continued staying with the claimant at her house for a period of two years and three months. There is no doubt there is lot of element of exaggeration on this aspect in the evidence of the claimant, of her husband AW4/ Guno Naik as well as AW3/Lalita. It would be difficult to believe that if the patient could do her normal duties after about a year as opined by Dr. Baretto, there was no need of the claimant to have engaged an attendant to look after her for over two years. In my view, however, the claimant certainly could not be denied attendant's charges at least for about three months which would work out to `9,000/- (i.e. `100/- per day, including food). 8. The learned MACT has awarded a sum of `6,500/- by way of transport expenses on the assumption that claimant had done ten trips to OPD on ten occasions. Counsel on behalf of the claimant submits that the claimant had also gone for physiotherapy which has not been considered by the learned MACT. As regards this aspect, the claimant's evidence is deficient and her statement that every month she went for check up to GMC on the face of it cannot 7 be accepted. The claimant did not state that she had gone anywhere to do physiotherapy nor named any centre or place where such facility was available. The claimant is therefore not entitled for any travel expenses for undergoing physiotherapy. 9. In life, moderation is the keyword-avoiding extremes. So also in assessment of compensation which should be neither less nor more or as observed by the Apex Court in Divisional Controller, K.S.R.T.C. V/s. Mahadev Shetty (2003 AIR SCW 3797) the compensation ought not to be a bonanza or source of profit but at the same time it should not be a pittance. It should be just, fair and reasonable. 10. In the circumstances, therefore, I am inclined to allow this appeal partly and order that the claimant in addition to the sum of `86,350/- awarded by the learned MACT, be paid a further sum of `14,000/- which the respondents are hereby directed to pay to the claimant with pending and future interest at the rate of 6% from the date of the petition. N.A. BRITTO, J. NH/-