1 FA 550/1997 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 550 OF 1997 Adinath Anna Farate & Ors. .. Appellants V/s Bhupal Baburao Malwade .. Respondent Mr. D.R. Mahadik i/b Mr. S.R. Singh for the appellants. Mr. T.S. Ingale for the respondent. CORAM : D.G. KARNIK, J. DATE : 20TH JANUARY 2011 ORAL JUDGMENT: 1. Heard both sides. 2. This appeal by the owner of a motor vehicle is directed against the judgment and order dated 7th December 1993 passed by the Motor Accident Claims Tribunal, Sangli (for short “the Tribunal”) awarding compensation of Rs.1,67,000/- to the respondent. 3. On 9th February 1988, the respondent was travelling on a bicycle on a Miraj-Sangli Road. At that time, a tractor belonging to the appellant no.1 and being driven by the appellant no.3 2 FA 550/1997 bearing registration no. MTK-9151 along with two trolleys attached bearing registration nos. MTL-4377 and MTL-4378 came from behind. The tractor overtook the bicycle of the respondent but the trolleys collided with the bicycle. According to the respondent, the tractor was being driven negligently and at an excessive speed. The appellant no.3 did not blow a horn nor gave any signal while he was trying to overtake the respondent and carried no warning that two trolleys were attached to the tractor. Because of the negligent driving of the tractor with the attached trolleys, the respondent was hit by the trolleys. Right leg bone of the appellant was crushed under the trolleys. The respondent was removed to the Mission Hospital at Miraj for treatment. Several surgical operations were performed on him and he was required to spend more than Rs. 15,000/- for the treatment. He was also required to spend on a special diet prescribed for recuperation. He was required to keep an attendant and to pay to the attendant. Because of the operations and shortening of the right leg, the respondent has suffered permanent disability. He was a tailor and he could not carry out his vocation of tailoring for several months. He therefore claimed the compensation of Rs.2,00,000/- from the appellants. After taking into consideration the oral and documentary evidence, the Tribunal awarded the compensation 3 FA 550/1997 of Rs.1,67,000/- together with interest at the rate of 12% per annum from the date of the claim application till payment. Aggrieved by the decision, the appellants are in appeal. 4. Record and proceedings of the Tribunal were called for. However, only a copy of the judgment and award is received. The Assistant Superintendent of the District Court has reported that Files B, C and D have been destroyed. Thus, except for the decision of the Tribunal, no other record is available. Counsel for the parties also do not have any other record. 5. In the absence of any record, it is impossible to find or hold that the facts recorded by the Tribunal are contrary to the record and must be presumed to be as per the record. The Tribunal has noted that the respondent was travelling on a Miraj-Sangli Road from Miraj to Sangli. The tractor with trolleys was also going in the same direction. The tractor came from behind. The tractor was attached with two trolleys. Ordinarily, the trolleys are wider than the width of the tractor. Thus, it would be possible that while overtaking, the tractor overtook the respondent but the trolleys being wider gave a dash to the respondent who was travelling on a bicycle. It was the duty of the driver to keep safe distance from the bicycle 4 FA 550/1997 while overtaking the bicycle. The finding recorded by the Tribunal that appellant no.3 (the driver of the tractor) was negligent in driving the tractor is a possible finding of fact which cannot be interfered with in the absence of anything to the contrary available in the records. 6. As regards the quantum of damages, Rs.30,000/- have been awarded to the respondent as damages towards medical treatment, expenses for engaging an attendant and travelling expenses for going to the hospital on several occasions. The respondent has stated that he was an indoor patient for 8-9 months and his relatives were required to attend to him and Rs.2,500/- were spent on their travelling. Rs.5,000/- were spent on a paid attendant and Rs.15,000/- for the medical treatment. These amounts have been accepted by the Tribunal. The amounts are not so high as to require any interference in appeal. Treating doctors, namely Dr. Phansopkar, Dr. Kulkarni and Dr. Chimurkar, were examined as witnesses by the respondent. The Tribunal has noted that the doctors have unanimously opined that the respondent has suffered permanent disability to his right leg and according to them, the disability is 45%. The Tribunal has, therefore, held that loss of earning capacity to be 50%. Learned counsel for the respondent has submitted that 5 FA 550/1997 the Tribunal ought to have held that the loss of earning capacity was to the extent of 100% because the respondent was a tailor and since he is not able to use his right leg, he would not be able to operate the sewing machine and would not be able to carry on the vocation of tailoring at all. In any event, he submitted that no interference is called for as the Tribunal has awarded the compensation only on the basis of loss of earning capacity to the extent of 50%. The Tribunal has taken the income of the respondent as Rs.9,600/- per year and has held that the loss of income was Rs.4,800/- on the basis of 50% of loss of earning capacity. The respondent was 25 years of age when the accident took place and he could have easily carried on the profession at least till the age of 50 years and, therefore, the Tribunal has awarded the compensation of Rs.1,44,000/- on that basis. No error can be found in the approach of the Tribunal. Consequently, there is no merit in the appeal which is hereby dismissed. (D.G. KARNIK, J.)