Shri Anthony Vaz vs Shri John A. Lopies and Others

A.S. Oka, J.—The submissions made by the learned Counsel appearing for the parties were heard on last Friday.

The Appellant is the claimant in a Claim Petition u/s 166 of the Motor Vehicle Act, 1988. The Challenge is to the Judgment and Award dated 7th July, 2001 by which the learned Presiding Officer of the Motor Accidents Claims Tribunal, South Goa, Margao, partly allowed the Claim Petition filed by the Appellant. Out of the claim of Rs. 1,00,000/-, compensation of Rs. 64,000/- was awarded with interest thereon at the rate of 9% per annum from the date of filing of Claim Petition.

According to the case of the Appellant, he was travelling as a passenger in a bus. The 5th Respondent is the owner of the bus and the 6th Respondent is the insurer of the bus. The bus was proceeding from Panaji to Margao. When the bus reached at Nuvem, near the cemetery, a truck owned by the 2nd Respondent came from opposite direction. The truck gave a dash to the bus. The truck was insured with the third Respondent on the relevant day. As a result of the accident, the Appellant sustained compound fracture of the right elbow. The allegation is that the Appellant suffered from permanent disability. The claim was contested by the 3rd and 4th Respondents. The Tribunal found that the accident occurred due to the composite negligence on the part of the drivers of the bus and the truck. The Tribunal recorded a finding that the Appellant suffered permanent disability to the extent of 16%. By this Appeal, the Appellant is seeking enhancement in compensation by a sum of Rs. 36,000/- in the compensation awarded by the Tribunal. It must be noted here that none of the Respondents have challenged the impugned judgment and award and, therefore, it is not necessary to deal with the issue of negligence.

The learned Counsel appearing for the Appellant submitted that the compensation of only a sum of Rs. 25,000/- has been granted on account of permanent disability which is extremely on the lower side. He submitted that the permanent disability has been accepted at 16% and looking to the nature of the permanent disability, Rs. 25,000/- is on the lower side. The learned Counsel appearing for the 6th Respondent submitted that in the impugned judgment and award, the compensation has been already granted on account of loss of earnings. He submitted that the compensation granted under all headings is reasonable and no interference is called for.

The Appellant has examined himself. He stated that he suffered a fracture due to the accident and he remained admitted in the hospital for about 23 days. He stated that he finds it difficult to extend his hand due to the injury sustained and he cannot lift the heavy object in the said hand even today. He stated that he was employed as a cook in a hotel at Calangute and he was paid salary of Rs. 3000/- per month. He stated that he remained in the house for a period of 2 years due to the injury sustained in the accident. It must be noted that there is no serious dispute about the injuries sustained by the Appellant. The other dispute raised was as regards the income of the Appellant. The Tribunal has taken the income as Rs. 1500/- per month. Reliance was placed only on a certificate allegedly issued by the employer of the Appellant. In absence of evidence, the learned Presiding Officer has rightly taken the income as Rs. 1500/- per month.

As far as disability is concerned, a certificate of disability has been issued by Dr. Sham Talwadkar, Senior Orthopaedic Surgeon stating that the Appellant suffered from compound fracture dislocation of right elbow. The permanent disability has been assessed in the certificate at 16%. The said Orthopaedic Surgeon was examined as a witness. He stated that the Appellant was suffering from stiffness of the right elbow and he was suffering from pain. He stated that the claimant is working as a cook and he will have difficulty in doing his work as movement of the elbow will be restricted. He stated that stirring will be restricted.

Going by the finding recorded by the Tribunal, the yearly income of the Appellant will be Rs. 18,000/-. The age of the Appellant was 28 years at the time of the accident. If multiplier of 16 as applied, the total amount will be Rs. 2,88,000/- and 16% of the said amount will be Rs. 46,000/-. In my view, considering the nature and extent of disability, the amount of Rs. 25,000/- awarded on account of permanent disability is on the lower side and in fact the total amount of Rs. 45,000/- ought to have been granted under the said heading. The amount fixed under the other headings appear to be reasonable and proper. Hence, the Appeal deserves to be partly allowed and we pass the following order:

ORDER

(a) The impugned judgment and award is modified. The total amount of compensation will be Rs. 84,000/- instead of Rs. 64,000/-.

(b) The rest of the impugned award is maintained. There shall be no order as to costs.