Sunil P. Suryavanshi vs Herminia D''costa

B.P. Dharmadhikari, J.—This appeal u/s 173 of the Motor Vehicles Act is by the claimant who seeks enhancement. Total claim before Motor Accident Claims Tribunal (M.A.C.T) was about Rs.4.00 lakhs and by the impugned Judgment and Award dated 11/8/2008 delivered in Claim Petition No.87/2006, M.A.C.T has awarded compensation of Rs.62,455/- only in addition to amount already received by the appellant u/s 140 of M.V. Act.

The claimant has filed M.C.A. No.977 of 2009 stating thereon that certain documents already on record before M.A.C.T inadvertently remained to be exhibited. Those documents are also filed along with said application. This Court has vide its order dated 15/1/2010 directed that said application shall be considered at the time of final disposal of the appeal.

Advocate Rodrigues appearing for appellant submits that though in claim petition the amount of Rs.4.00 lakhs has been claimed under different heads, details thereof are given in Affidavit of examination -in -chief under various heads. He submits that illusory amount has been granted under the head pain and suffering while taxi bills have been disbelieved only on the ground that taxi driver has not been examined. He further contends that in summary jurisdiction it was not necessary for the appellant to examine the taxi driver as visits to hospital have been independently established on record. He further contents that on account of loss of future income amount of Rs.1.00 lakh was claimed in claim petition but said aspect also has not been appropriately dealt with by M.A.C.T. He points out that at the time of accident appellant/claimant was only 28 years old and an outstanding football player. In the unfortunate accident his leg has been shortened and there is a rod in it. Because of this shortening, he is no longer an outstanding sports person. He submits that his selection as a constable in police department is in sports category and being a graduate, the appellant could have applied for direct selection to higher post in police department. He contends that even for such higher post, there is reservation for sports category and because of his disability, even that chance is lost. He points out that documents already on record before M.A.C.T. and produced before this Court as part of M.C.A. no.977/2009 only establish the outstanding standard of appellant as football player.

He submits that though a claimant may plead and claim amount of compensation as per advise received by him, it is for the Court of law sitting in welfare jurisdiction to consider all relevant aspects to work out a just and proper figure thereof. He submits that as this exercise has not been undertaken by M.A.C.T., the impugned judgment and award cannot be sustained. He also wants to rely upon various judgments to show to this Court how in similar matters, the law Court have approached the situation.

Nobody appears for respondent no.1, owner of offending vehicle. Advocate Afonso appearing for respondent no.2/Insurance Company strongly opposes the contentions. He states that the appellant had already secured employment in sports category as an outstanding sportsman and hence subsequent disability of a foot does not in any way affect his employment or his salary. He further points out that future promotional chances are not reduced and as such there is no question of loss of any future prospects or avenues. He further contends that if documents were already on record and have not been pointed out to M.A.C.T., the lacuna cannot be allowed to be cured in appellate jurisdiction and recourse to Order 41 Rule 27 C.P.C for said purpose is not open.

He also argued that though taxi bills were produced on record, its authenticity has not been established by even attempting to summon the taxi driver and hence, M.A.C.T. is justified in ignoring it. He points out that though taxi bills work out to Rs.6000/- have been ignored considering the visits to the hospital, M.A.C.T. has awarded sum of Rs.2000/- to the appellant. He concludes by urging that a plausible view of the material on record has been reached by M.A.C.T. and hence this Court should not interfere in the matter.

The application registered as M.C.A. no.977/2009 needs to be considered first. It is not in dispute that documents attempted to be placed on record were already before M.A.C.T. and have not been exhibited. The appellant has, therefore, invoked provisions of Order 41 Rule 27 C.P.C.. The proceedings before M.A.C.T. were u/s 166 and in welfare jurisdiction. The appellant was being represented by a lawyer and he had handed over to his lawyer, all the relevant documents. The documents were also placed on record. It is the contention of learned counsel for the appellant that on the basis of these documents the appellant has been selected as constable. If this contention is correct, the documents might have been supplied to the employer long before. In this situation it is apparent that documents have not been prepared later on. The only purpose behind filing of such documents on record is to show the outstanding character of appellant as a sportsman. Submission is his outstanding position has got bearing on loss of future avenues and also on pain and suffering.

The perusal of the impugned judgment shows that M.A.C.T. has framed issue no.6 on the question whether claimant proves his entitlement to compensation of Rs.4.00 lakhs. This issue no.6 has been considered in paragraph 18 onwards. The loss of future potential or future income has been considered in paragraph 23. In the said paragraph, M.A.C.T. is influenced by the fact that the applicant had already joined the employment and accident did not have any impact on it. His earnings, therefore, were not reduced and his chances of promotion were also not adversely affected. It has therefore not granted any compensation under that head.

Learned counsel appearing for respondent no.2 has urged that attention of M.A.C.T. was not invited to the accelerated chances open to the appellant for bettering his prospects. He contends that thus the argument that said appellant would have applied for his direct selection to any superior post in police department or elsewhere was not advanced before M.A.C.T. and M.A.C.T. had no occasion to consider it. He further contended that scrutiny of relevant service rules may also be essential to find out whether claimant with his existing qualification is eligible to apply for such direct recruitment.

Prima facie it appears that chances of betterment available to the appellant were not pointed out to M.A.C.T. It may ultimately turn out that the appellant does not have any such prospects or does not possess those qualifications. However, that does not mean that the appellant should be denied opportunity to demonstrate this loss. Sitting in welfare jurisdiction and considering the accident, resulting disability and the fact that appellant was a recognized sports person, I am inclined to give such opportunity to appellant. Competent authority has issued a disability certificate on 27/02/2007 which shows that he has united fracture of femur right with implant in situ with residual shortening of the Right lower limb. The doctor has worked out percentage of disability resulting from this at about 10% of the lower limb as per the ALIMCO scale. Learned counsel for respondent no.2 has urged that this 10% disability of the lower limb does not mean 10% of the total physical disability. This question is kept open as we are concerned with the accident of a sports person whose right leg has been shortened.

It is not in disputed before this Court that no evidence was adduced to support the claim towards attendant''s charges. As such, rejection of that claim by M.A.C.T. cannot be said to be unjust.

In this situation, only to find out the correct entitlement of the appellant/claimant towards loss of future avenue and on account of pain and suffering due to 10% permanent disability suffered by him, the impugned judgment and award is set aside. Claim Petition no.87 of 2006 is restored back to the file of M.A.C.T., South Goa, Margao, to consider the entitlement of claimant to just compensation under the head pain and suffering, taxi charges and on account of loss of future avenues. Parties are directed to appear before M.A.C.T. on 27/10/2014 and M.A.C.T. shall thereafter proceed further in the matter in accordance with law. It shall attempt to take further decision in the matter as early as possible and in any case within a further period of one year.

Parties are at liberty to amend their pleadings and to produce additional documents in this respect.

First Appeal is partly allowed and disposed off. The Misc. Civil application is accordingly disposed off. No costs.