1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1139 OF 1997 Abdulsultan Abdulali Virani Appellant versus Suresh Gopinath Thote and another Respondents WITH FIRST APPEAL NO.449 OF 1998 Mrs.Farida Abdulsultan Virani Appellant versus Suresh Gopinath Thote and another Respondents Mr.Prabhakar Jadhav i/by M/s.Bhaskar & Co. for appellants. Mr.M.G.Barve for responent Nos.1 and 2. CORAM : A.S.OKA, J. DATE : 24th November 2009 JUDGEMENT :- 1. These two appeals can be disposed of by common judgement as the challenge in these appeals is to a common judgement and award passed by the learned Member of the Motor Accidents Claim Tribunal (hereinafter referred to as "the Tribunal") in two claim petitions. The claim petitions were filed by the husband and wife who were injured in the same accident. 2 2. The accident occurred on 20th July 1986 at about 10.30 a.m. at Vadgaon on Mumbai-Pune National Highway. The claimants were travelling by their own Maruti car towards Pune. The husband was at the driver's seat and the wife was sitting on the rear seat alongwith a child. The case made out by the claimants is that when the husband was driving the car by left side of the road, he saw one truck coming from the opposite direction. When he saw the truck, he took his vehicle towards left side of the road. A Matador was behind the truck who attempted to overtake the truck. The Matador could not control the speed while overtaking and gave a dash to the vehicle of the claimants though it was extremely on the left hand side. A claim petition was filed against the owner and the insurer of the matador. The Tribunal held that the accident occurred due to rash and negligent driving by the driver of the matador and as a result of the accident the claimants suffered injuries. By the impugned judgement and award, the Tribunal awarded a sum of Rs50,260/- to the husband which included the amount payable on account of No Fault Liability. The Tribunal directed that the husband will be entitled to interest on the sum of Rs.20,260/- @ 12% per annum from the date of filing the claim petition till payment. The Tribunal granted compensation of Rs.22,700/- to the wife. The Tribunal directed that the wife will be entitled to interest on Rs.7,700/- @ 12% p.a. from the date of application till the date of payment. 3. First Appeal No.1139 of 1997 has been filed by the husband claiming enhancement of Rs.1,49,740/-. First Appeal No.449 of 1998 has 3 been preferred by the wife claiming enhancement of Rs.77,300/-. 4. The learned counsel appearing for the appellant in support of the First Appeal No.1139 of 1997 submitted that the doctor had assessed the permanent disability of the appellant at 30 per cent. He submitted that the said appellant was hospitalized for 25 days and was under treatment for a period of six months. He submitted that a sum of Rs.30,000/- awarded by the Tribunal on account of pain and suffering together with loss of amenities and discomforts in life was on the lower side considering the nature of injuries sustained by the appellant. He submitted that even the amount awarded @ Rs.1,500/- per month on account of loss of income is on the lower side. He submitted that the loss of earning capacity of the appellant has not been considered. 5. In support of First Appeal No.449 of 1998, he submitted that a sum of Rs.15,000/- awarded by the Tribunal on account of pain and suffering is on the lower side. He submitted that the appellant in the said appeal underwent treatment in the hospital for three days and therefore she had to undergo treatment for a considerably long time. He submitted that the permanent disability quantified at 25 per cent includes disability to the extent of 2.5 per cent on account of facial disfigurement. He submitted that only a sum of Rs.15,000/- granted by the Tribunal on account of pain and suffering is inconsistent with the disability and especially the disability on account of facial disfigurement. He submitted that the loss of earning capacity has not at all been considered by the Tribunal. 4 6. The learned counsel appearing for the respondents in both the appeals supported the impugned judgements and awards and submitted that the compensation awarded is reasonable and no interference is called for. 7. I have carefully considered the submissions. In First Appeal No. 1139 of 1997, the claim made by the claimant is in the sum of Rs.2.00 lakh. A perusal of the judgement shows that the Tribunal has considered the evidence on record. The appellant-claimant was admitted in Bombay Hospital on 22nd July 1986. He was operated upon in the said hospital on 31st July 1986 and was discharged on 12th August 1986. Dr.S.K.Lohakare examined by the appellant deposed in his evidence to the injuries sustained by the appellant-claimant in First Appeal No.1139 of 1997. The said injuries read thus :- "1) CLW - On head 2" x 1/2" 2) CLW - right leg - middle one third, 2cmx1cmx1/2cm. 3) Depressed fracture right tibia condyle with fracture fibula. 4) Multiple abrasions on the face." He assessed the permanent disability at 30%. The Tribunal granted the claim on account of medical treatment at Rs.8,500/- as per the bills which were produced by the appellant-claimant. On account of conveyance, a sum of Rs.1,500/- was granted. As far as loss of income is concerned, 5 the Tribunal considered the case of the appellant that at the time of accident he was dealing in business footwear rubber sheets and leather and his father was a partner along with him. The case of the appellant was that the income of the partnership firm was Rs.10,000/- to Rs. 15,000/- per month and as a result of the accident, he was unable to move out for six months and he was unable to visit Nashik, Ahmadnagar, Pune etc. for the purposes of sale. The learned Member of the Tribunal rightly held that as the father of the appellant-claimant was a partner, the income of the business must have been hardly affected. Still, the learned Member granted compensation of Rs.1,500/- per month for a period of six months on account of loss of income. Thus, compensation of Rs.9,000/- was granted on account of loss of income. There was a claim made on account of loss of earning capacity. The appellant has produced typed copies of the income tax returns. The said typed copies are not the true copies and the same are not certified either by the chartered accountant of the appellant or by an officer of the Income Tax Department. The appellant produced challans evidencing payments of advance tax. In the cross examination the appellant admitted that he closed down the earlier business of dealing in footwear rubber in the year 1995 and started catering business from which he was earning about Rs.15,000/- per month. The accident occurred in 1986 and on his own showing the earlier business continued for a period of nine years thereafter. There is no proper documentary evidence produced by the appellant showing the income of the business prior to the accident and the income of the business up to the year 1995. Admittedly, from 1995 onwards, the 6 appellant-claimant is earning Rs.15,000/- per month. Therefore, no compensation has been rightly awarded by the Tribunal on account of loss of earning capacity. The Tribunal granted compensation of R.30,000/- on account of pain and suffering as well as loss of amenities in the life. From the evidence of Dr.S.Lohakare, it appears that there was one depressed fracture suffered by the appellant. Therefore, compensation of Rs. 30,000/- on account of pain and sufferings and loss of amenities in life is just and proper. The towing charges incurred by the appellant for towing his car from the spot of accident to Talegaon and from Talegaon to Mumbai have been granted at Rs.1,260/-. Thus, the total compensation granted in the sum of Rs.50,260/- is reasonable considering the fact that a sum of Rs.62,000/- was granted to the appellant by the insurer of his car on account of damage to the car. Therefore, as far as First Appeal No. 1149 of 1997 is concerned, no interference can be made. 8. As far as First Appeal No.449 of 1998 is concerned, Dr.S.Lohakare described the injuries sustained by the appellant-claimant. The said injuries are as under :- "1) Head injury with fracture, frontal bone, 2) Fracture nevicular bone - right, 3) Fracture calcanium - right, 4) CLW on forehead 8cmx4cm 1/2" Dr.Lohakare stated that there was a deformity of the foot to the extent of 7 2.5%. There was facial disfigurement to the extent of 2.5%. The disability on account of limitation on movement of ankle was quantified by him at 20%. 9. As far as expenses incurred by the appellant in the said appeal are concerned, she stated that she was admitted to Prince Aagakhan Hospital for a period of three days. Her left leg was put under plaster. She claimed that she had incurred expenses of more than Rs.2,000/- on medical treatment. She produced bills to the extent of Rs.2,119/-. On account of medical expenses the Tribunal rightly granted a sum of Rs. 2,200/-. In the deposition the appellant-claimant came out with the case that till the date of accident, she was supplying tiffins to 15 persons and was getting income of Rs.2,500/- per month. It must be noted here that no such case was made out in the claim petition. Some receipts were produced to show that the appellant in the said appeal was paying income tax. Though there was no pleading, the learned Member of the Tribunal held that for a period of five months, a sum of Rs.500/- can be awarded on account of loss of income. Thus, a sum of Rs.2,500/- has been awarded under the said heading. 10. As far as pain and suffering and loss of amenities of life is concerned, the compensation of R.15,000/- has been awarded. As stated earlier, the accident had taken place in the year 1986. Considering this fact, the compensation of Rs.15,000/- awarded under the said heading is just and proper and no interference is called for. The total compensation 8 of Rs.22,700/- awarded by the Tribunal to the appellant in the said appeal is certainly reasonable and no interference is called for. 11. Hence, I pass following order :- (A) Both the appeals viz. First Appeal No.1139 of 1997 and First Appeal No.449 of 1998 are dismissed; (B) No orders as to costs. (A.S.OKA, J.)