Shamarao Pawar alias Sham Pawar vs Manjur alias Mansoore Jilansab Doni and Others

F.M. Reis, J.—Heard Shri S.S. Kakodkar, learned Counsel appearing for the appellant and Shri Afonso, learned Counsel appearing for the respondent No. 3. The above Appeal challenges the judgment and Award dated 15.7.2008, whereby a Claim petition filed by the appellant was partly allowed and the compensation was directed to be paid to be appellant to the tune of Rs. 26,000/- by the respondents herein.

Shri S.S. Kakodkar, learned Counsel appearing for the appellant, has assailed the impugned judgment on the ground that the appellant has suffered 5% permanent disability in a motor vehicular accident, which resulted in curtailing his movements to the right leg due to open fracture posterior condyle right tibia and right shaft tibia fracture without neurovascular deficit. The learned Counsel further pointed out that the appellant had to be subjected to an operation and a rod and screws had to be inserted on his right leg to cure the said fracture. The learned Counsel further pointed out that the appellant had to be in the hospital for a period of 28 days but recovery from such operation and thereafter the appellant had to report to the Goa Medical College from his residence at Sancordem from time to time for further recovery. Learned Counsel further pointed out that thereafter the appellant had to be subjected for another operation to remove the said rods and screws which were inserted in the right leg which also incurred expenditure. Learned Counsel further pointed out that the appellant was a heavy vehicle driver at the relevant time and on account of the accident which resulted in 5 percent permanent disablement, the appellant has lost his job and is unable to work as a motor vehicle driver. Learned Counsel further pointed out that presently the appellant is only in a position to do unskilled labour and, as such, the Tribunal was not justified to refuse any compensation on account of permanent disablement. Learned Counsel further submits that the appellant had to spend a sum of Rs. 10,000/- on account of medical expenses while the Tribunal has refused to give any amounts on that count as the medical bills were not produced. Learned Counsel further pointed out that considering the nature of the operation undergone by the appellant coupled with the certificates of the Doctors at exhibit 49-C, conclusively establish the gravity of the injuries suffered by the appellant on account of the motor vehicular accident. Learned Counsel further pointed out that considering the nature of the operation which the appellant had to undergo which deprived the appellant from doing any type of work for a considerable period of time, the compensation awarded to the appellant by the Tribunal of Rs. 15,000/- on account of pain and suffering is on the lower side. Learned Counsel further pointed out that taking into account that the appellant was only 27 years at the relevant time, the Tribunal was not justified to award such meagre compensation. Learned Counsel has further taken me through the impugned judgment as well as the evidence on record particularly the certificates of the Doctors and pointed out that there is no dispute raised by the respondents with regard to the fact that the appellant had suffered 5 percent permanent disablement on account of such accident. Learned Counsel as such submits that the impugned Award be modified and the amount of compensation be enhanced to a further sum of Rs. 50,000/-.

On the other hand, Shri E. Afonso, learned Counsel appearing for the respondent No. 3, has supported the impugned judgment. Learned Counsel has taken me through the impugned Award passed by the Tribunal and pointed out that the Tribunal has come to the conclusion that such permanent disablement has not resulted in any loss of earning capacity of the appellant. Learned Counsel further pointed out that it was incumbent upon the appellant to bring cogent evidence on record to show loss suffered on account of such permanent disablement, which he failed to adduce and, as such, the Tribunal was justified to refuse compensation on that count. Learned Counsel as such submits that there is no case made out for any interference in the impugned order.

I have considered the submissions of the learned Counsel. I have also gone through the records and with the assistance of the learned Counsel, I have also gone through the documents produced by the respective parties. On the basis of the submissions of the learned Counsel and the records referred to herein above, the following point for determination arises in the present Appeal:

POINT FOR DETERMINATION

Whether the Reference Court was justified to award a compensation of Rs. 25,000/- in aggregate to the appellant?

On going through the impugned Award, I find that the learned Tribunal has refused the amount claimed by the appellant towards the medical expenses merely on the ground that the medical bills were not produced. It is not in dispute that in fact medical bills to the tune of Rs. 4,150/- were produced by the appellant. Apart from that, the fact that the appellant had to undergo the operation as referred to in the certificate at exhibit-49 collectively has not been disputed. The fact that the appellant had to remain at the hospital for a continuous period of 28 days has also been established by the appellant. Considering the nature of the operation and the period the appellant had to stay at the hospital, I find that the appellant naturally had to spend some amounts towards medical expenses. Hence, the Tribunal was not justified to refuse to allow the medical expenses merely on the ground that the amount of Rs. 10,000/- spent by the appellant was not proved. Considering the nature of the operation undergone by the appellant, such medical expenses are assessed at Rs. 7,500/- inclusive of the said sum of Rs. 4,150/-. Hence, the compensation on account of medical bills is fixed at Rs. 7,500/-

With regard to the contention of Shri Kakodkar, learned Counsel appearing for the appellant, to the effect that the appellant had suffered a permanent disablement of 5 percent which resulted in curtailing his movements of his right leg, I find that the evidence on record in fact suggests that the appellant had suffered permanent disability to the extent of 5 percent. The appellant in his examination in chief at paras 9 and 10 has categorically stated that on account of the accident, he has lost his job and is unable to carry out such activities. He has also stated that on account of such accident, the movements of his right leg have curtailed and, as such, he is enable to work as a driver. These facts stated at paras 9 and 10 of his affidavit in-evidence have been disputed by the respondents by only putting a suggestion. The statement made therein stand corroborated by the medical certificate produced by the appellant at exhibit 49-C. The Medical Certificate further states that on account of such accident, the movements of the appellant have been curtailed in the right knee. Considering the said facts, I find that the Tribunal was not justified to refuse any compensation on account of 5 percent permanent disability suffered by the appellant. The Tribunal whilst assessing the compensation on account of pain and suffering, has awarded Rs. 15,000/- on that count. Having regard to the fact that the appellant had also suffered 5 percent permanent disablement, I find it appropriate that on such count, the appellant would be entitled for a further sum of Rs. 17,500/-. To that extent, the impugned Award passed by the Tribunal deserves to be modified. In view of the above, I find that the appellant is entitled for a further sum of Rs. 25,000/- besides the amount awarded by the Motor Accident Claims Tribunal in the impugned Award. For the reasons stated herein above, the said additional amount of Rs. 25,000/- will carry further interest of 6 percent per annum from the date of filing of the Claim petition until actual payment. The point for determination is answered accordingly. In view of the above, I pass the following :

ORDER

(I) The appeal is partly allowed.

(II) The appellant is entitled besides the amount awarded by the Motor Accident Claims Tribunal, a further sum of Rs. 25,000/- payable by the respondents jointly and severally together with interest thereon at the rate of 6 percent per annum from the date of filing of the Claim petition until actual payment.

(III) Appeal stands disposed of accordingly.