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2012 DIGILAW 578 (BOM)

Francis Cruzinho Pinto v. Mr. Mozes Anthony DSilva

2012-03-16

U.V.BAKRE

body2012
JUDGEMENT :- This Appeal is filed by the claimant, in Claim Petition no. 8 of 2004, against the judgment and award dated 31/07/2006, passed by the learned Presiding Officer of the Motor Accidents Claims Tribunal, North Goa (Tribunal), in the said case. 2. On 03/04/2002 at 11.40 p.m. at Bambolim near Military Camp, an accident had taken place. The case of the claimant was that he was proceeding from Siridao to Bambolim, as pillion rider, on a motor cycle bearing No. GA-01-Y-8619, which was driven by Savio Afonso. A Mahindra Jeep bearing no. MH-07-3557 driven by the respondent no. 2 came form opposite direction. According to the claimant, it came at a fast speed and entered "No Entry" lane and dashed against the motor cycle, due to which the rider of the motor cycle died on the spot whereas the claimant sustained grievous injuries resulting in permanent disablement. 3. There is no dispute about the fact that the said Mahindra Jeep belonging to the respondent no. 1, was driven by respondent no. 2 and was insured with the respondent no. 3 and the insurance policy was valid at the time of the accident. 4. The claimant had examined himself and four more witnesses, in support of his case. The respondents No.1 and 2 had not contested the case, which had proceeded ex-parte as against them. There is no dispute that the said Mahindra Jeep bearing No. MH-07-3557 was driven by the respondent No.2, in a rash and negligent manner and it is also not disputed that as a result of the accident which took place between the said jeep and the motor cycle bearing no. GA-OI-Y-8619, on which the claimant was a pillion rider, the claimant sustained grievous injuries. 5. The evidence of CW 5, Dr. Francis Akkara, read with the permanent disability certificate, which is at Exhibit 42 duly establishes that the claimant had paresthesia (numbness) of left lower orbital area and fourth tooth on the left upper side was missing. There was fracture to the upper second tooth. CW 5 had assessed the' permanent disablement at 22.5%. 6. All the above facts, which have been duly proved by the claimant, are not disputed by the respondents No. 1 and 2. 7. There was fracture to the upper second tooth. CW 5 had assessed the' permanent disablement at 22.5%. 6. All the above facts, which have been duly proved by the claimant, are not disputed by the respondents No. 1 and 2. 7. The only point for consideration is whether the quantum of compensation awarded by the learned Tribunal is unreasonable and inadequate and if so what should be the just and reasonable compensation. 8. 'The claimant had claimed the total compensation of Rs. 2,55,000/-. Vide the impugned judgment and award, the learned Tribunal has awarded total compensation of Rs. 52,000/- along with interest at the rate of 6% per annum from the date of filing of the petition til1 the entire amount is paid. The respondents jointly and severally have to pay the said amount. The amount of Rs. 25,000/- paid under "No fault liability" has been ordered to be adjusted. 9. Heard learned Advocate Shri V. D. Pangam on behalf of the claimant and learned Advocate Shri J. Godinho on behalf of the respondents No. 1 and 2. The counsel for the insurance company (respondent No.3) is absent, though duly served. 10. According to Shri Pangam what is awarded as compensation is only a token amount which is not at all just and reasonable, in the facts and circumstances of the case. He has relied upon "Fakkirappa v/s. Yallawwa and another" (2004 ACJ 1141), wherein the Division Bench of the Hon'ble Karnataka High Court has discussed the principles and norms governing the determination of compensation, in bodily injury cases. Their lordships of the Kamataka High Court have observed that in deciding the quantum of damages to be paid to a person for the persona] injury suffered by him, the Court is bound to ascertain all considerations which will make good, to the sufferer of the injuries, as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. It has been held that the damages must be full and adequate. "Phillips v. South Western Railway Company", (1871) 1 QBD 106, has been relied upon, wherein it has been held: "You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recol1ect that this is the only occasion on which compensation can be given. "Phillips v. South Western Railway Company", (1871) 1 QBD 106, has been relied upon, wherein it has been held: "You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recol1ect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation, once and for all. He has done no wrong; he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered." 11. As per the oral and documentary evidence on record, the learned Tribunal found that the claimant was earning a salary of Rs. 14,728/- per month, as on date of the accident, by working as Assistant Lecturer in the Government Technical High School Centre at Panaji. It was found that due to the injuries sustained in the accident, the claimant was on leave for 16 days. Accordingly, towards the actual loss of income, compensation to the extent ofRs.7855/- (rounded up to Rs. 8000/-) has been awarded. Secondly, towards the medical expenses incurred by the claimant, and proved by means of the medical bills and prescription, he has been awarded a sum of Rs.3200/-, and towards transport, in terms of taxi bills, an amount of Rs.3365/- has been awarded. The compensation, as awarded above, cannot be disputed as the same is based on oral and documentary evidence produced on record. A further amount of Rs. 2000/- has been awarded towards miscellaneous expenses. Towards pain and sufferings, the claimant has been awarded an amount of Rs. 10,000/-. This can also be taken as just and reasonable compensation since the claimant had sustained grievous injunes. 12. However, towards permanent disablement, the learned Tribunal has granted lump sum compensation of Rs. 25,000/- only and the only factor taken into consideration for granting this lump sum amount is that there is nothing on record to show that the promotional prospects of the claimants were affected on account of the injuries sustained by him, in the accident. It is true that the claimant continues to teach in the Technical High School Centre, Panaji. 25,000/- only and the only factor taken into consideration for granting this lump sum amount is that there is nothing on record to show that the promotional prospects of the claimants were affected on account of the injuries sustained by him, in the accident. It is true that the claimant continues to teach in the Technical High School Centre, Panaji. However, the facts that the claimant has permanently lost one tooth and will have permanent numbness of lower jaw and he will have to face the world at large with such physical defects, have not been considered by the learned Claims Tribunal. There is loss or diminution in full pleasures of living. CW-1, the claimant has stated that due to the stitches on his face, lot of scars are now seen and that his right eye has become smaller than the left eye. The above defects certainly make a person uncomfortable and the social1ife is restricted. Considering the status of the claimant who was working as Assistant Lecturer, I am of the view that, he should be appropriately compensated for permanent disablement which is nothing less than 22.5%. Since there is no absolute method of calculation of compensation for peimanent disablement on the grounds of defect difficulties as stated above, there is nothing wrong in granting lump sum compensation. However, the lump sum compensation of Rs.25,000/- granted by the learned Tribunal, in my view, is Jess. Tam of the considered view that the just and reasonable compensation on account of the said permanent disablement should be Rs. 50,000/-. 13. The impugned jugdment and award therefore needs to be modified in so far as the compensation towards the permanent disablement is concerned. The total compensation to which the claimant is entitled becomes Rs.77,000/-. 14. In the result, the appeal is partly allowed. The final order of the learned Tribunal stands modified and the claimant shall be entitled to receive total compensation of Rs.77,000/-. The respondents jointly and severally shall pay the said amount to the claimant along with interest at the rate of 6% per annum from the date of filing of the petition till the date of payment of entire amount. The amount of Rs. 25,000/- already paid under Section 140 of the Motor Vehicles Act, 1988, shall be adjusted. 15. Appeal stands disposed of accordingly. Appeal Partly allowed.