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Judgment
G.D. Kamat, J.—These two appeals can be advantageously disposed of under one judgment as they arise not only out of one Award dated 1st December, 1988, but also in one claim petition bearing No. 75/86.
These two appeals are instituted first by the driver and second by the owner of a scooter bearing No. GDG-9323. Admittedly, respondent No. 1 in both the appeals is the original claimant. The story in the claim petition is that the claimant after closing down his grocery shop was proceeding from Mardol towards his residential house at Veling at about 9 p.m. and when he reached a culvert being on the right hand side of the road, scooter bearing No. GDG-9323 driven rashly and negligently by the first appellant in First Appeal No. 29/89 dashed against his left leg as a result of which he sustained compound fracture -of tibia and fibula. He was immediately rushed to the Goa Medical College Hospital where close reduction was performed on 24th February, 1986. Thereafter open reduction with internal fixation with plates and screws was done and the leg was cast in plaster of pans. According to the Doctor''s evidence, this was an emergency surgical intervention that had to be done on that day. Though he was discharged from the Hospital on 1st March, 1986, he was subsequently treated as an Out Door Patient at regular intervals. The plaster of pans was removed in the month of September, 1986 and since the fracture was clinically and radio logically united, full mobilisation was allowed. Upon viewing his condition on 20th June, 1987, the Doctor found that there was a residual stiffness of left ankle joint and based upon the ALIMCO scale it was held that the claimant suffered a permanent disability at 8%.
On behalf of the appellants in both the appeals neither the fact of the accident, nor the injury suffered by the original claimant are disputed. The grievance in relation to the findings by the Tribunal that the scooter was driven on the relevant day in a negligent manner is also now not disputed. The only grievance made by the Learned Counsel for the appellant is that the Tribunal was in error on two aspects; that for failure of the driver to produce his driving licence, it was urged, that the Tribunal could not have absolved the Insurer, New India Assurance Co., and the second is that there has been duplication in the matter of grant of compensation on different sub-heads insofar as General Damages are concerned as also larger compensation on the Sub-head of Special Damages qua the loss of grocery business of the original claimant, has been awarded.
The original claimant in his deposition stated that during the time the accident took place, which was at about 9 p.m. his driving licence issued to him by the concerned office of the Karnataka State was lost. He also made a statement that he could not get duplicate copy so as to produce before the Tribunal. Indeed the Tribunal felt that since the driving licence was not produced by the driver of the scooter, regard being had to the terms of the policy, Insurer was not liable to indemnify on the basis that driver was not armed with a driving licence.
We are unable to accept the findings of the Tribunal nor statement of liability. We will presently point out that the Supreme Court in the decision of Narchinva V. Kamat and Anr. v. Alfredo Antonio Doc Martins and Ors. reported in AIR 1985 SC 1291 :II (1985) ACC 34, clearly held that when the Insurer wants to get out of the payment of the liability upon a defence that a driver is not covered by a driving licence, it is for the Insurance Company to produce a certificate of the concerned Regional Transport Officer that the concerned driver was never issued a driving licence. The facts of the case were that Narchinva v. Kamat who drove the vehicle could not produce his driving licence; that his case was that he had been issued licence by the concerned officer in the State of Karnataka. The Insurance Company in that case had taken a similar defence as in the present case. On the basis of the law settled by the Supreme Court, the Apex Court reversed the judgment of the High Court and set aside the Award of the Tribunal partly and held that the Insurance Company is liable to pay the awarded compensation, for failure to prove that there was no licence.
Apart from this Mr. Afonso, Learned Counsel appearing for the Insurance Company, has made a statement that the driver in fact has produced a certificate that he had been issued a licence by the State of Karnataka, Regional Transport Officer and it appears that the case of the driver was genuine that he was holding a driving licence on the relevant day. It is therefore difficult to sustain the Tribunal''s finding that the Insurance Company is to be absolved from liability in the present case.
We now come to the next aspect of the matter regarding the grievance in relation to the compensation granted under various heads and that too in excess. The Tribunal awarded a sum of Rs. 10,000/- by way of Special Damages upon taking into consideration the evidence of the original claimant that he had to expend a sum of Rs. 2,000/- for medical expenses and Rs. 1,500/- towards conveyance. The Tribunal however did not accept Rs. 40,000/- claimed by the original claimant towards loss of business. It is common ground that the original claimant was in grocery business and he was running it after having taken the business from somebody else. He claimed that his daily average income was anywhere between Rs. 60/- to Rs. 70/-. The Tribunal was right in holding that the original claimant did not bring any cogent evidence so as to award him damages by way of loss of business at Rs. 40,000/-, as claimed by him. In our view, the Tribunal granted in all the sum of Rs. 10,000/- by way of Special Damages, which is inclusive of medical expenses and conveyance as the claimant had to come from Veling to Panjim for receiving necessary treatment from time-to-time. A sum of Rs. 6,500/- towards loss of business could be held to be a reasonable and just compensation on the sub-head of loss of business.
The Tribunal, therefore, for pain, shock and suffering awarded a sum of Rs. 20,000/- on a finding that the claimant was immobilized for a period of not less than six months. The Tribunal thereafter awarded another sum of Rs. 20,000/- on the ground that with the compound fracture the claimant was having a permanent disability at 8% which naturally, as mentioned, is including loss of amenities. The Tribunal thereafter awarded a further sum of Rs. 15,000/- by saying that the original claimant will have to bear throughout his life the disability of having to walk with a limp and that way his movement would be restricted.
Upon determination of the entire compensation which stood at Rs. 65,000/-, the Tribunal thereafter applied the deduction at 10% on the ground that the claimant is receiving the lump-sum award and adjudicated the compensation of Rs. 60,000/- to be paid by the driver and the owner.
There is justification for the appellant and the Insurer to dispute that a sum of Rs. 15,000/- awarded on the sub-head of original claimant requiring to bear disability and having to walk with a limp with restricted movement is sheer duplication of the compensation of Rs. 20,000/- earlier made on the ground that the original claimant suffered a permanent disability to the extent of 8%. There can be no difficulty, therefore, to hold that there is no justification whatsoever for the amount of additional compensation of Rs. 15,000/- and which requires to be set aside. In this vie w of the matter, both the appeals partly succeed. The original claimant is entitled to a compensation of Rs. 50,000/- (being Rs. 10,000/- towards Special Damages and Rs. 40,000/- by way of General Damages) together with interest at 12% per annum from the date of claim application until the amount is deposited or paid. The amount awarded shall be jointly and severally paid by the owner, driver and the Insurer. The costs of Rs. 2,500/- as awarded by the Tribunal are maintained. Parties are however to bear their costs in these appeals.