-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 286 OF 2006 Shri Babal Pandurang Naik, 31 years old, resident of house No. 609, Shivnagar, Xeldem, Quepem, Goa. …... Appellant V e r s u s 1. Shri Mangaldas Vithal Naik, resident of house no. 685, Dhadem, Sanvordem, Goa. (Owner of truck No. GA-02-T-6789) 2. Shaik Shabir, son of Shaik Umar, resident of house no. 1083, Guddemol, Sanvordem, Goa. (Driver of truck No. GA-02-T-6789) 3. The New India Assurance Co. Ltd., Jagannath Building, Near Railway Gate, Margao, (Insurer of truck No. GA-02-T-6789) …... Respondents Mr. S. S. Kakodkar, Advocate for the Appellant. Mr. P. K. Gude, Advocate for the Respondent no.3. Coram :- F. M. REIS, J Date : 29 th November, 2011. ORAL JUDGMENT Heard Shri S. S. kakodkar, learned Counsel appearing for the Appellant and Shri P. K. Gude, learned Counsel appearing for the Respondent no.3. None for the remaining Respondents, though served. -2- 2. The above appeal challenges the Judgment and Award passed by the learned Presiding Officer, Motor Accident Claims Tribunal, South Goa, Margao, dated 27.06.2006, passed in Claim Petition no. 10/2002, whereby the Claim Petition filed by the Appellant was partly allowed and the Respondents were directed to pay compensation of Rs. 2,50,000/- alongwith interest thereof from the date of filing of the Claim Petition upto actual payment. 3. Shri S. S. Kakodkar, the learned Counsel appearing for the Appellant has assailed the impugned Judgment on two counts. It is his contention that the learned Tribunal has failed to consider that besides the permanent disability suffered by the Appellant to his right lower limb, the Appellant had also suffered a permanent disability to his elbow to the extent of 17 percent which was established on the basis of the evidence of Aw.7. The learned Counsel has further pointed out that the Tribunal has failed to grant any compensation to the Appellant on account of the permanent disability to the elbow and restricted the payment of compensation only with regard to the permanent disability to the right lower limb and, as such, the Appellant is entitled for an excess compensation on that count. Learned Counsel further pointed out that on account of such permanent disability, the Appellant has been prevented from carrying out his activities which he was indulging prior to the motor vehicle accident suffered by the Appellant. The next contention of the learned Counsel appearing for the Appellant is that the learned Judge whilst passing the impugned Judgment, has come to the conclusion that there was contributory negligence on the part of the Appellant which resulted in the accident. The learned Counsel further pointed out that the Appellant was riding a motorcycle while the Respondent no.1 was driving a mining truck and, considering -3- the sketch which is at exhibit 37, it is manifestly clear that the accident has occurred solely on account of rashness and negligence on the part of the Respondent no.1. Learned Counsel has taken me through exhibit 37, showing the sketch of the scene of the accident which establishes that the truck was crossing the part of the motorcycle and, as such, it was incumbent upon the Respondent no.1 to allow the Appellant to proceed before taking the right turn. Learned Counsel further pointed out that the motorcycle driven by the Appellant was on the correct side of the road and the brake marks disclose that the Appellant had applied the brakes at a distance of nearly 1.5 metres before to the point of impact. Learned Counsel as such submits that the findings of the Tribunal to the effect that there was contributory negligence on the part of the Appellant which resulted in the accident, deserves to be quashed and set aside. 4. On the other hand, Shri P. K. Gude, the learned Counsel appearing for the Respondent no.3, has supported the impugned Judgment. The learned Counsel has pointed out that it is well settled that the Appellant is not entitled for separate compensation on account of each disability suffered by him at the time of the accident. Learned Counsel further pointed out that the amount awarded by the Tribunal is just and appropriate taking the overall disability suffered by the Appellant on account of the accident and, as such, no interference is called for in the quantum of the compensation awarded in the Petition. With regard to the contention of the learned Counsel appearing for the Appellant that there is no contributory negligence on the part of the Appellant, Shri Gude has pointed out that the motorcycle driven by the Appellant was at a fast speed whereas the truck driven by the Respondent no.1 was being driven at a normal speed and, as such, the -4- question of claiming that there was no contributory negligence on the part of the Appellant would not arise at all. Learned Counsel further pointed out that the Appellant has failed to prove the sketch and, as such, the question of relying upon such a sketch to dispute the correctness of the findings of the Tribunal to the effect that there was no contributory negligence on the part of the Appellant does not arise at all. Learned Counsel after taking me through the impugned Judgment, has pointed out that no interference is called for in the impugned Judgment. 5. Having heard the learned Counsel and on perusal of the record, the following points for determination arises in the present Appeal : POINTS FOR DETERMINATION 1. Whether the Appellant is entitled for any further compensation on account of the permanent disability to the elbow ? 2. Whether the Tribunal was justified to come to the conclusion that there was contributory negligence on the part of the Appellant which resulted in the motor vehicular accident. 6. Dealing with the first point for determination, the Tribunal after appreciating the evidence on record has, in Para 26 of the impugned Judgment, taken note of the fact that disability certificate of the Appellant at exhibit 32 clearly reveals that he had suffered fracture injuries of the right femur and fracture dislocation of the left elbow for which he was treated at the same hospital. until he -5- was discharged on 03.05.2001. The Tribunal has also taken note of the fact that he was thereafter re-admitted in the hospital on subsequent days. The Tribunal has further at para 27 of the impugned Judgment has awarded compenstion of a sum of Rs.1,08,000/- on account of permanent disability suffered by him on account of the said accident. Besides the said amount, the Appellant has also been awarded compensation for the loss of income in a sum of Rs.1,00,000/-besides Rs.50,000/- on account of pain and suffering apart form compensation towards the medical expenses and additional financial expenses, of Rs.50,000/-. 7. Considering the impugned Judgment and the material noted by the Tribunal whist assessing the compensation on account of the permanent disability, I find that the contention of Shri Kakodkar, learned Counsel appearing for the Appellant to the effect that the Tribunal has not considered the fact that the Appellant had suffered a fracture to the elbow cannot be accepted. At Para 26 of the Judgment the Tribunal has in fact taken note of the fact that the Appellant had suffered fracture to the elbow and after considering the material on record has fixed the compensation on account of permanent disability to the extent of Rs.1,08,000/-. It is well settled that the Appellant is not entitled for separate compensation on account of each permanent disability. Hence, considering the material on record and taking note of the findings of the Tribunal, I find that the amount awarded by the Tribunal in a sum of Rs.1,08,000/- on account of permanent disability would also include compensation for permanent disability on account of the other injury. Hence, I find that no interference is called for in the impugned Judgment on that count. The first point for determination is answered accordingly. -6- 8. Dealing with the second point for determination, on perusal of the sketch at exhibit 37, I find that the truck driven by the Respondent no.1 was in the process of crossing the path of the motorcycle driven by the Appellant. The place where the accident occurred is substantially wide. Apart from that, the motorcycle was coming in the opposite direction while the truck was turning to the right crossing the path of the motorcycle which was going in the straight direction. The motorcycle is also found to be on the correct side of the road towards the extreme left side. Apart from that, the brake marks as shown in the sketch disclose that the Appellant had applied brakes at a distance of more that 1.5 metres from the point of impact. Considering the said aspect and taking note of the evidence of Aw.3 and Aw.6, I find that on the basis of such material on record, it cannot be said that there was any lack of caution on the part of the Appellant which resulted in the said motor accident. The material discloses that the accident occurred solely on account of rashness and negligence on the part of the Respondent no.1. As the truck driven by Respondent no.1 was crossing the path of the Appellant to go to an internal road, the Respondent no.1 should have given preference to the Appellant to proceed straight on the main road before negotiating the turn. Hence, the findings of the Tribunal to the effect that there was contributory negligence on the part of the Appellant cannot be sustained and deserves to be quashed and set aside. The Tribunal whilst assessing the total compensation payable to the Appellant, has come to the conclusion that the compensation is to be fixed at Rs.3,08,000/-. After deduction on account of contributory negligence on the part of the Appellant, the Tribunal has fixed the amount at Rs.2,50,000/-. Considering the findings arrived at herein above, the question of deducting any amount on account of contributory negligence would not arise at all. The second point for determination is answered -7- accordingly. 9. In view of the above, I pass the following : ORDER (i) The Appeal is partly allowed. (ii) The impugned Judgment and Award dated 27.06.2006 is modified and the Appellant is held to be entitled to the total sum of Rs.3,08,900/- alongwith interest at the rate of 7.5 percent from the date of filing of the Claim Petition upto actual payment, payable by the Respondents jointly and severally. (iii) The Appeal stands disposed of with no orders as to costs. F .M. REIS, J. arp/*