IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL (ST) NO.20877 OF 2006. APPEAL (ST) NO.20877 OF 2006. APPEAL (ST) NO.20877 OF 2006. New India Assurance Co. Ltd. ...Appellant. Versus. Ms Vimal Dattaram Govekar & Anr. ...Respondents. Ms Poonam Mital for the Appellant. Shri M.B.Kotak for the Respondent No.1. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 01st February, 2008. : 01st February, 2008. : 01st February, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard advocates appearing for the parties. The appeal is by the insurer of the vehicle involved in the accident. 2. The accident is of 04th May, 1998. The first respondent is the victim of the accident. An auto-rickshaw gave a dash to the first respondent. As a result of the accident the first respondent suffered bodily injuries. According to the first respondent her permanent partial disability is assessed at 15%. 3. The claim was contested by the appellant only on one ground. The said ground is that the vehicle was not insured at relevant time with the appellant and the insurance policy was valid from 18th December, 1997 to 17th January, 1998. 4. The learned Member of the Tribunal relied upon : 2 : 2 : 2 : the evidence of a senior clerk in Regional Transport Office which shows that the vehicle in question was insured with the appellant at the relevant time. 5. The learned Member of the Tribunal awarded compensation of Rs.53,500/- with the interest thereon at the rate of 6% per annum. 6. The submission of the learned advocate for the appellant is that there was no valid policy of insurance on the date of the accident. She submitted that income of the first respondent has been arbitrarily taken at Rs.2,000/- when there was no evidence to show that she was employed. It is submitted that the amount granted on account of permanent partial disability and pain and suffering is on the higher side. The learned counsel appearing for the first respondent supported the impugned judgment and decree. 7. I have carefully considered the submissions. Though the appellant appeared before the Tribunal and raised a contention that the vehicle was not insured on the relevant date, the appellant did not contest the claim as the advocate appearing for the appellant was absent at the time of recording of evidence. The claim is of the year 1998. In absence of the contest by the appellant, the learned Member of the Tribunal has relied : 3 : 3 : 3 : upon evidence of one Anant Khamkar who was working as a senior clerk in auto-rickshaw and taxi department of the Regional Transport Office. His evidence and the certificate issued by the Regional Transport Office discloses that the offending vehicle was insured with the appellant from the period 18th December, 1997 to 17th November, 1998. The accident occurred on 04th May, 1998. Relying upon the said evidence and the record of the R.T.O, the trial Court accepted that the vehicle was insured on the relevant date. As pointed out earlier, the appellant has chosen not to appear before the trial Court. Now after lapse of 10 years, in this appeal, a contention is sought to be raised that the policy was in force infact only for a period of one month. After having failed to appear before the Tribunal though the claim petition remained pending for several years, at this stage, the appellant cannot be allowed to agitate the said contention especially when the record of the R.T,O is to the contrary. 8. The first respondent has examined Dr.Kuldip Singh Sandhu who proved the disability certificate which shows that the first respondent sustained permanent partial disability of 15%. The first respondent suffered an injury to right foot, an injury to right hand and an injury under lumbar region. Apart from the said injury, she is unable to walk properly. : 4 : 4 : 4 : Considering the said evidence, the compensation awarded by the Tribunal under all grounds except loss of income appears to be reasonable. In so far as loss of income is concerned, it appears that there is no satisfactory evidence on record regarding the employment of the first respondent and actual income earned by her. Therefore, the income ought to have been taken at the minimum amount of Rs.01,500/- per month and therefore, compensation on account of loss of income ought to have been awarded in the sum of Rs.9,000/-. To that extent award needs modification. Interest awarded is only at the rate of 6% per annum which does not call for any interference. 9. Hence, I pass the following order: (i) The impugned judgment and award is modified by directing that the amount of compensation payable will be Rs.50,500/-. Rest of the award shall be maintained as it is. (ii) There will be no orders as to costs. (iii) The appellant is permitted to withdraw sum of Rs.25,000/- deposited in this Court. Judge. Judge. Judge.