: 1 : IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 12 OF 2002 Kashinath Kerkar, son of Mahadev alias Pandu Kerkar, major in age, widower, businessman, formerly residing at House No.33, Mandopa, Navelim, Salcete, Goa. Presently residing at C/o Shri Jayraj Kerkar, Flat No.639, Ground Floor, 'G' Block, Housing Board, Near Maruti Mandir, Davorlim, Salcete Goa. … Appellant V e r s u s 1. Mohomod Rafic alias Mohammed Rafiq, son of Isub Sayed alias Yusuf Sayed, driver of vehicle bearing registration No.M.P.09/S-111, formerly residing at House No.225, Colmorod, Navelim, Salcete Goa, Presently residing at House No.822, Mandopa, Navelim, Salcete Goa. 2. M/s. Midland Movers Pvt. Ltd., owner of vehicle bearing registration No.M.P.09/S-111, formerly with address at 119, Transport Nagar, Indore, M.P., Presently with address at 408 Perse Polis Premises Society, Plot No.74, Sector No.17, Vashi, New Bombay – 400 705 and : 2 : 3. National Insurance Company Ltd., insurer of vehicle bearing registration No.M.P. 09/S-111, Div. VII, Bharat House, Bombay Samachar Marg. Fort, Bombay 400 023. … Respondents Mr. S. S. Kakodkar, Advocate for the Appellant. CORAM:- A. S. OKA, J Dated:- 9 th July, 2010. ORAL JUDGMENT The Appeal was called out for final hearing on last Friday. The submissions of the learned Counsel appearing for the Appellant were heard on last Friday. As none appeared for the Respondents, the judgment was not delivered. Today, when the Appeal was called out, none appears for the Respondents. Hence, I proceed to deliver the judgment. The Appellant is the original claimant in a Claim Petition filed under Section 166 of the Motor Vehicles Act, 1988. The claim for compensation has been made on account of injuries sustained by the Appellant in motor vehicular accident. : 3 : 2. According to the case of the Appellant, the accident occurred on 10th June, 1995 at about 4.15 p.m. at Mandopa, Navelim. The Appellant was riding a Rajdoot motorcycle and was proceeding from Mandopa to Navelim. There was a lady pillion rider on the motor cycle. As per the case of the Appellant, the first Respondent was driving the jeep and he was coming from opposite direction. The jeep gave dash to the motor cycle of the Appellant. As a result of the impact, the Appellant fell down and sustained injuries. Even pillion rider also sustained injuries. Accordingly, the Appellant filed a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs. 1,70,000/- on account of injuries sustained by him. The First Respondent who is the driver of the offending vehicle and the second Respondent who is the owner of the offending vehicle did not contest the claim. The contest was only made by the third Respondent which is the insurer of the offending vehicle. It was contended in the written statement of the third Respondent that the first Respondent was driving the vehicle without holding a valid driving licence. It was contended that the Appellant himself was guilty of contributory negligence. The Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving on the part of the first : 4 : Respondent. The Tribunal awarded the compensation of Rs.89,600/-. The compensation awarded by the Tribunal under various heads is as under :- For medicines and Medical treatment. Rs. 4,000/- For transportation Rs. 1,100/- For attendant's charges Rs. 4,000/- For loss of wages for about 6 months at the rate of Rs.3,000/- per month Rs.18,000/- For permanent disability Rs.37,500/- For pain and suffering Rs.25,000/- Total Rs.89,600/- The interest at the rate of 9% per annum was granted on the total compensation amount from the date of filing of the Claim Petition till payment. 3. The learned Counsel appearing for the Appellant has taken me through the notes of evidence and other documents on record. He pointed out that the Appellant was hospitalised from time to time and has undergone surgeries. He invited my attention to the certificate of disability at Exhibit 38(a). He submitted that : 5 : the occupation of the Appellant was of a motor cycle pilot and considering the nature of injuries sustained by him, there was a complete loss of earning capacity. He pointed out that the compensation granted by the Tribunal under all heads is totally inadequate considering the evidence on record. 4. There is no Appeal or the cross objection filed by the Respondents. Therefore, the only issue which is required to be determined is as regards the quantum of compensation. The witness No.5 examined by the Appellant Dr. Carlos Barretto has proved the disability certificate at Exhibit 38(a). The material part of the disability certificate reads thus :- “This is to certify that Mr. Kashinata Kerkar, 40 years old male, GMC Hospital No. 167520 was examined in this Department for evaluation of permanent disability consequent upon fracture right femur allegedly sustained in a vehicular accident on 10.6.95 and treated at Goa Medical College. He now has residual restriction of right hip and knee motion which according to the ALIMCO ( Artificial Limb Manufacturing Corporation of India ) scales amounts to a permanent disability of 25% (Twenty five percent ).” 5. The disability as reflected from the said certificate is on account of residual restriction of right hip and knee motion which : 6 : amounts to permanent disability of 25%. Dr. Carlos Barretto stated that the Appellant was admitted to G.M.C. Hospital on 10th June, 1995. He stated that on 28th June, 1995 an open reduction and internal fixation of the fracture of the right femur was done. He stated that the Appellant was hospitalised on 10th June, 1995 and was discharged on 29th July, 1995. He stated that the Appellant was required to undergo physiotherapy. He stated that on 13th November, 1995 the Appellant was again admitted to the hospital as in house patient and was discharged on 28th November, 1995. The third period of hospitalisation of the Appellant was between 7th February, 1996 to 2nd March, 1996. Lastly he stated that for removal of plate the Appellant was hospitalised on 22nd November, 1997 and was discharged on 26th November, 1997. In the evidence, Dr. Carlos Barretto further stated that as a motorcycle pilot the said disability will not come in the way of the Appellant of riding his motorcycle. However, he will have difficulty in prolonged walking and prolonged standing, in climbing steps. He stated that the Appellant will have difficulty in squatting or sitting on low chairs. In the cross examination, he denied the correctness of the suggestion that the Appellant did not have 25% disability. : 7 : 6. Discharge record of G.M.C. Hospital produced on record at Exhibit 24 proves the first hospitalisation on 10th June, 1995 onwards till 29th July, 1995. Discharge record at Exhibit 25 proves the hospitalisation for further period from 13th November, 1995 to 28th November, 1995. The discharge record at Exhibit 26 proves the hospitalisation from 7th February, 1996 to 2nd March, 1996 and lastly the discharge record at Exhibit 27 proves the last period of hospitalisation from 22nd November, 1997 to 26th November, 1997. These documents prove that from 10th June, 1995 till 26th November, 1997 the Appellant continued to be under treatment. 7. As far as aspect of the treatment is concerned, Dr. Carlos Barretto has stated that the Appellant had to undergo physiotherapy. The Appellant has deposed about the treatment taken in G.M.C. Hospital. He produced the bills of expenditure worth Rs.3,936/-. He stated that he has spent Rs.4000/- on the attendant. He disclosed his age as 35 years on the date of the accident. In view of the evidence of Dr. Carlos Barretto, the case of 100% loss of earnings cannot be considered as Dr. Carlos Barretto stated that the disability will not come in the way of the Appellant riding a motorcycle. However, the evidence on record : 8 : shows that the Appellant was under treatment from 10th June, 1995 to 26th November, 1997. The last hospitalisation was for removal of the plate inserted at the time of earlier surgery. The Claim Petition appears to have been filed in November, 1996 and it was numbered subsequently. After filing of the Claim Petition, there was hospitalisation of the Appellant in November, 1997. The claim made in the Claim Petition is for Rs.10,000/- on account of medicines, nourishment, attendant and transport. Future expenses for routine medical check-up and medical treatment have been claimed as Rs.5,000/-. On account of permanent disability and loss of earnings, the claim of Rs.1,50,000/- was made and on account of mental pain and suffering, the claim of Rs.5000/- was made. Considering the occupation of the Appellant of a motorcycle pilot, the income of the Appellant has been taken reasonably by the Tribunal at the rate of Rs.3000/- per month. However, the loss of income only for a period of six months has been granted. Looking to the duration of the treatment undergone by the Appellant, the loss of income for a period of one year ought to have been considered. Thus, in addition to the compensation of Rs.18,000/- on account of loss of income, further amount of Rs.18,000/- will have to be granted to the Appellant. Considering : 9 : the prolonged hospitalisation and prolonged treatment of the Appellant, the total amount of Rs.9,100/- granted on account of medical expenses, transportation charges and attending charges is on the lower side. The said amount will have to be enhanced to Rs.15,000/-. Thus, on the said count the enhancement of Rs.5900/- will have to be granted. 8. The learned Counsel appearing for the Appellant has made a grievance about the amount of Rs.37,500/- granted on account of disability. To some extent, the said grievance is justified. The total amount of Rs.45,000/- deserves to be granted on the said count and hence under the said heading the enhancement of Rs.7500/- will have to be granted. Hence, the Appellant will be entitled to enhancement of Rs.31,400/- which can be rounded off to Rs.31,500/-. 9. As stated earlier, the Claim Petition is of the year 1996. During last few years, the rates of interest of the Nationalised banks have been considerably reduced. Therefore, on the enhanced amount, the interest will have to be granted at the rate of 7.5% per annum. Hence, the Appeal must succeed in part and I : 10 : pass the following order :- O R D E R In addition to the compensation awarded under the impugned award with interest, the Appellant shall be entitled to sum of Rs.31,500/- with interest thereon at the rate of 7.5% per annum from the date of filing of the Claim Petition till realisation or deposit of the amount. It is made clear that the interest granted under the original award is not disturbed and the rate of interest of 7.5% per annum will be on the enhanced amount. The Appellant will be entitled to the proportionate costs of the Appeal from the Respondents. The Respondents are directed to deposit the enhanced amount of compensation in the Tribunal within a period of two months from today. A.S. OKA, J at*