AI Structured Summary
Not yet generated for this judgment
Judgment
B.P. Dharmadhikari, J.—This Appeal u/s 173 of the Motor Vehicle Act is filed by an injured victim of the accident seeking enhancement.
Learned Counsel for the Appellant fairly stated that though before Motor Accident Claims Tribunal, total claim of Rs.8,00,000/- was made, this Court may after considering the facts, grant just compensation.
It is not in dispute that vide Judgment delivered on 29.09.2008, in Claim Petition no. 104 of 2007, Presiding Officer, Motor Accident Claims Tribunal - III, South Goa, Margao, has awarded compensation of Rs.86,721.46 only to present Appellant with nine percent interest. The Appellant has accordingly received that amount from Respondent no. 2-Insurance Company.
I have heard Advocate Shri S. S. Kakodkar for the Appellant and Advocate Shri Timble for the Respondent no. 2. Nobody has appeared for Respondent no. 1-owner/driver of offending vehicle.
The Motor Accident Claims Tribunal has framed following four issues and answered the same as recorded against it :
As present Appeal is only for enhancement, the findings recorded on issue nos. 1 and 2 as also issue no 3, are not required to be examined on merits.
Advocate Shri S. S. Kakodkar submits that though various heads under which the entitlement of Appellant has been worked out by Claims Tribunal while deciding issue no. 4, cannot be said to be incorrect, a partly amount of Rs.10,000/- is only awarded under the head pain and suffering. He contends that accident took place on 27.02.2007 and the Appellant was discharged from hospital on 14.03.2007. A certificate of permanent disability could be issued after it was assessed on 08.05.2008. The said certificate shows 15 percent disability. He also points out that the Appellant had suffered fracture injuries to middle one third right humerus with fracture to upper one third left humerus with fracture neck and midshaft of left femur. Thus, both his legs were fractured and he was required to be operated upon. He submits that he was assessed to permanent disability on 16.11.2007. In this situation, considering the pain and suffering and when on account of no fault liability, an amount of Rs.25,000/- was awarded, this grant is unjust.
He further submits that small amount of Rs.20,000/- has been awarded while considering loss of amenities of life and compensation as also for permanent disability. According to him, considering the fact that at the time of accident, Appellant was only 35 years of age, the compensation awarded on this count should have been much more. He has invited attention to evidence of Dr. Nadkarni (Pw.4), to urge that the restrictions on physical movement on Appellant are apparent therein. He further contends that the Motor Accident Claims Tribunal has erroneously not allowed any compensation under the head loss of expectations of life and discomfort and inconvenience of life.
Inviting attention to pecuniary damages, he states that travelling allowances of Rs.7,200/- were claimed. He submits that after his discharge, Appellant was required to attend hospital on six occasions and because of his injuries, he could not make use of any public transport system or any similar vehicle. He was therefore required to hire a taxi. He further states that there was no question of examining the taxi driver as with great difficulty the bills could be procured. He contends that when today passerby refuse to help victim of an accident, the refusal of a taxi driver to attend Court in such matters cannot be labelled as something extraordinary. He contends that bills ought to have been accepted and acted upon as the Motor Accident Claims Tribunal itself found that proceedings are summary in nature. He further states that amount of Rs.3,000/- granted against those taxi bills does not show any application of mind and is totally the guesswork.
Similarly, while assailing the grant of amount of Rs.36,000/- only under the head loss of salary/income and compensation for permanent disability, he states that period of absence of eleven months has been overlooked by the Motor Accident Claims Tribunal. The fact of absence of eleven months was specifically deposed to and there was no cross examination by Respondent no. 2. Thus, unrebutted deposition ought to have been accepted and salary for eleven months should have been allowed. He further contends that the loss of future prospects i.e. opportunity to join a service on high seas with better service conditions have also been lost sight of by the Motor Accident Claims Tribunal. He submits that in this situation, total amount of compensation as worked out is quite low.
In order to point out how the Court has to approach the question of computation in such matters, he draws support from the Judgment reported in K. Suresh Vs. New India Assurance Company Ltd. and Another, in the case of Subulaxmi Vs. M.D., Tamil Nadu State Transport Corporation and Another, in the case of Subulaxmi Vs. M.D., Tamil Nadu State Transport Corporation and Another, in the case of Raj Kumar vs. Ajay Kumar and anr.
Advocate Shri Timble, on the other hand, submits that though permanent disability of 15 percent is brought on record, it has got no bearing in so far as earning of Appellant is concerned. He invited attention to the deposition of Appellant to show that even on the date of deposition, Appellant was in service drawing very same salary. He contends that thus, there is no pecuniary disadvantage caused due to this disability. He further points out that Appellant is working as a supervisor in a development company and, as such, the permanent disability does not result in any functional disability. He is fit to perform his normal duty as before and this finding recorded by the Motor Accident Claims Tribunal, according to him, therefore is not perverse.
He further points out that there was hospitalization only for sixteen days and then six visits to OPD. The Doctor has deposed that Appellant was advised rest only for six months and in this situation his absence for eleven months needed to be established by bringing on record the cogent evidence. The Appellant did not produce any evidence to show his absence of eleven months and though he examined an employer, no records were shown to Court to show that absence. He therefore submits that in this situation, the Motor Accident Claims Tribunal has rightly accepted the period of six months and awarded salary for said period to him. He has also invited attention to bills presented on record issued by the taxi driver with contention that documents were prepared in one go and are not authentic. The Motor Accident Claims Tribunal therefore has not acted upon those bills.
In so far as loss of future potential is concerned, learned Advocate Shri Timble argues that no specific details of any future job or better job are placed on record by the Appellant and in absence thereof, the claim that he was to join a better employment in near future, cannot be accepted.
He also draws support from the Judgment of the Hon''ble Apex Court in the case of Raj Kumar vs. Ajay Kumar and anr.(supra). According to him, the Motor Accident Claims Tribunal has correctly applied its mind in this background and, as such, the Appeal filed is liable to be dismissed.
In the light of rival contentions, the following point arises for consideration of this Court :
(i) Whether the Court below has awarded just compensation while answering issue no. 4 ?
The answer is answered below :
Paragraph 15 of the Judgment delivered by Motor Accident Claims Tribunal shows that Motor Accident Claims Tribunal has divided the claim for compensation into non-pecuniary damages and, thereafter, pecuniary damages. In so far as non pecuniary damages are concerned, it has formulated four heads i.e. (i) Pain and Suffering, (ii) loss of Amenities of life, (iii) loss of expectation of life and (iv) discomfort and inconvenience of life. As far as pecuniary damages are concerned, in the present facts, it framed three heads i.e. (i) medical expenses, (ii) travelling expenses and (iii) loss of salary/income. In the facts of present matter, the heads of damages as worked out by Motor Accident Claims Tribunal cannot be said to be incorrect.
In so far as pain and suffering is concerned, the Motor Accident Claims Tribunal has looked into the hospitalization for a period of sixteen days, the nature of injuries and then the date on which permanent disability was assessed and the date on which it was finalised, it has then noted that he suffered pain on account of injuries and it was for period of about one year. It also noted that he was required to undergo skin grafting. Considering the nature of injuries and the nature of operations, it has awarded him an amount of Rs.10,000/-.
The injuries were to both the legs and in so far as left leg is concerned, humerus bone as also the neck and mid shaft of left femur were fractured. This shows that the Appellant was, therefore, immobilized for quite sometime. In this situation, the compensation under this head pain and suffering cannot be worked out with mathematical precision and the Appellant also could not have, except for pointing out the period of hospitalization and suffering, stated anything more about it. The Respondent no. 2-Insurance Company, also could not have brought anything on record unless and until something was added in examination in chief. However, one cannot ignore the fact that an amount of Rs.25,000/- was paid to present Appellant on account of no fault liability. In this situation, considering the period of one year of sufferance arrived at by the Motor Accident Claims Tribunal, that grant of amount of Rs.10,000/- is unjust. The same is modified and hiked to Rs.25,000/-.
While considering the head of loss of amenities of life, the Motor Accident Claims Tribunal has also added the head of compensation of permanent disablement. The fact that permanent disability is worked out on 15 percent is not in dispute. This 15 percent disability worked out is on account of the Doctor''s certificate which shows that Appellant cannot sit with his legs crossed or cannot sit low. Thus, this is not a disability specific to particular organ or appendage of body but entire body itself. This disability however, has got nothing to do with the earnings of Appellant. The Appellant is working as a Supervisor with a development concern and, therefore, is required to supervise the work of labourer. While supervising such work, it is apparent that he may be required to climb at different heights in different situations or may be required to bend low also. This aspect has not been considered by the Motor Accident Claims Tribunal. His difficulty or inability may not have resulted in reducing his salary or work potentiality but definitely it causes him inconvenience. The Motor Accident Claims Tribunal has awarded him an amount of Rs.20,000/- only on account of loss of amenities of life and compensation for permanent disability. I find that because of the constant handicap experienced by the Appellant while working as Supervisor and looking to his age, an amount of Rs.30,000/- needs to be added to what is already granted by the Motor Accident Claims Tribunal. Thus, under the said head, the Appellant is held entitled to an amount of Rs.30,000/- more i.e. total amount of Rs.50,000/-.
The contention that compensation should have been separately awarded on account of permanent disability, cannot be accepted as the said factor is covered under the head loss of amenities of life and discussion undertaken above.
The next head to be looked into is loss of expectation of life and discomfort and inconvenience of life. No specific evidence to claim any damage under this head is produced on record by the claimant. In the present facts, the said heads are covered by the earlier head namely loss of amenities of life and compensation for permanent disability. In this situation, the refusal of Motor Accident Claims Tribunal to grant any separate compensation under this sub-head cannot be said to be erroneous.
While considering the aspect of pecuniary damages, medical expenses have been allowed on the basis of medical bills produced at exhibit 20 collectively. Rightly, therefore, no enhancement on that account is sought before this Court.
In so far as travelling expenses are concerned, the Appellant has produced taxi bills and claimed transportation charges of Rs.7,200/-. The Motor Accident Claims Tribunal has after rejecting that claim, allowed Rs.3000/- after noticing that he was required to visit the OPD on six occasions. Thus, roughly an amount of Rs.500/- per trip has been allowed as transportation charges. The perusal of the bills produced on record for claiming compensation under this head show that all the six bills have been obtained on two pages. The bills are in fact print outs in which date has been filled in handwriting while taxi number and other details are printed. It is signed by a person in his capacity as driver/owner of said taxi. Three such print outs are on each page. The pages show that six bills are dated 07.08.2007, 10.11.2007, 03.04.2007, 24.04.2007, 22.05.2007 and 26.06.2007.
The dates or sequence of dates noted supra show that dates also have not been put chronologically. Not only this, but while undertaking first journey on 03.04.2007, the Appellant would not have been aware normally that on next date, he would again get very same taxi or driver. Thus, bills show that the same have been prepared after last journey and all together and then signature of same driver/owner have been obtained upon all those bills at one time.
The contention of Shri Kakodkar, learned Advocate, that taxi drivers normally do not issue such bills or are reluctant or refuse to avoid Courts to depose, need not be appreciated here in this background. The said contention may have been examined, had Appellant obtained the bills regularly i.e. after each visit. As this is not the position, application of mind of Motor Accident Claims Tribunal to this aspect does not appear to be perverse. Hence, its refusal to reimburse amount of Rs.7,200/- on account of taxi bills or grant of Rs.3,000/- only against it, cannot be said to be unjust or improper.
The last head i.e. loss of salary or income and also compensation on account of permanent disability, now needs to be considered. As already held above, for permanent disability suffered physically, compensation is already awarded. In so far as financial implications from such permanent disability is concerned, no such evidence is adduced on record and there is no loss of future salary or future prospects in the present matter. As such, the only question is whether the Motor Accident Claims Tribunal was justified in restricting the claim of Appellant to only salary of six months? The Appellant had claimed salary of eleven months while Motor Accident Claims Tribunal has because of Doctor''s certificate which advised him rest for six months, awarded him salary of six months.
The claim for eleven months is specifically made in affidavit of examination in chief and there is no cross examination in that respect by the Respondent no. -2-Insurance Company. The Appellant also examined his employer to bring on record his monthly salary. The Respondent no. 2-Insurance Company did not put any questions to said employer to bring on record the fact that Appellant was absent only for six months and has earned his salary for remaining five months. In other words, in absence of denial of claim as made was to be demonstrated as false, the burden was upon Respondent no. 2 to atleast cross examine the Appellant. As the assertion of the Appellant on oath in examination in chief went untraversed, it was not necessary for the Appellant to examine any other witness to show that he was actually away from his duties for eleven months.
The Court has to take note of the fact that Motor Accident Claims Tribunal has also not held that Appellant was away from his work for only six months. It has awarded salary of six months only because of Doctor''s certificate. It was not found that claim of salary for eleven months was incorrect or false. While answering issue no. 3, in paragraph 16, Motor Accident Claims Tribunal has found that pain and suffering of Appellant has continued for a period of more than one year. In view of these findings, denial by Motor Accident Claims Tribunal to award salary for entire period of eleven months, is unjustified. I, therefore, hold that the Appellant is entitled to salary of remaining five months i.e. salary of Rs.30,000/-.
In view of this discussion and as the guidelines laid down by the Hon''ble Apex Court are already looked into by Motor Accident Claims Tribunal while working out the compensation, it is not necessary for this Court to delve into various rulings cited by both the learned Counsel. The point framed supra is answered accordingly. The Appellant is held entitled to Rs.75,000/- more and the Judgment and Award dated 29.09.2008 delivered in Claim Petition no. 104/2007 is modified to that extent. Thus, the Appellant is entitled to additional compensation of Rs.75,000/- and Respondents are jointly and severally liable to pay the same to him with interest at the rate of 9 percent per annum on said amount from the date of filing of the Claim Petition u/s 166 of the Motor Vehicle Act, till actual payment.
Accordingly, the Appeal is partly allowed and disposed of.