Judgment : 1. Heard Mr. Afonso, learned Counsel appearing on behalf of the appellants. This appeal was admitted on 23rd July, 2010. Though the respondent was duly served, after admission, neither he nor his Counsel is present. 2. This appeal is directed against the judgment and award dated 10/11/2009 passed by the learned Presiding Officer, Motor Accident Claims Tribunal, Panaji ('Tribunal', for short) in Claim Petition No. 51/2006. 3. The respondent was the claimant whereas the appellants were the respondents no. 1 and 2 in the said Claim Petition. Parties shall, hereinafter, be referred to as per their status in the said Claim Petition. 4. The claimant had filed the said petition under Section 166 of the Motor Vehicles Act, 1988 ('M. V. Act', for short) for compensation of Rs. 2,50,000/-on account of injuries sustained by him in a motor vehicular accident. The claimant alleged as follows: He was 38 years old at the time of accident and was working in Goa Shipyard Limited and drawing salary of Rs. 12,600/-per month. On 05/02/2005, the claimant was riding his motorcycle bearing registration No. GA-02/D-8635 from Ponda towards Varkhande in order to go to his residence at Nagamasjid. On reaching near the chapel at about 13.15 hours, a Sumo Jeep bearing registration No. GA-01/W-4093 belonging to respondent no. 1 and driven by respondent no. 2 came from opposite direction at a fast speed in a rash and negligent manner, lost control and went to the right side of the road and dashed against the motorcycle of the claimant, as a result of which, the claimant was thrown on the road along with the motorcycle and he sustained fracture injuries to his left leg and other bodily grievous injuries. The said injuries resulted in permanent disability. 5. Respondents no. 1 and 2 had denied the case of the claimant as pleaded and had stated that the accident had occurred entirely due to rash and negligent driving of the motorcycle bearing No. GA-02/D-8635 by the claimant himself. It was alleged that the claimant took sharp turn in reckless manner and tried to overtake the vehicles ahead of him and in that process, the motorcycle skidded and the applicant along with the motorcycle fell on the road and came dragging on the road on the side of the vehicle of respondent no. 2 which was on left hand side of the road. 6. 2 which was on left hand side of the road. 6. Issues were framed by the learned Tribunal as per the rival contentions of the parties. The claimant examined himself as CW1 and produced the documents. The claimant also examined Shri Vijay Shankar Bhandari as CW2, Dr. Zelio D'Mello as CW3 and one Subhash Kandolkar as CW4. Respondents no. 1 and 2 examined respondent no. 2 as RW1 and Shri Sadanand Naik, the Head constable, who lodged complaint on behalf of the State, as RW2. 7. Upon consideration of the entire evidence on record, the learned Tribunal held that the accident took place on account of the fault of respondent no. 2, the Tata Sumo Driver with contribution of the claimant. Thus, it was held that there was contributory negligence on the part of the claimant. The learned Tribunal held that the evidence of CW3 Dr. D'Mello proved that the claimant had sustained permanent disability of 8% due to the mild stiffness of the left ankle joint and was under the treatment in the Hospital for about 9 days and would have difficulty in squatting on the ground but he could do other activities. The learned Tribunal found that the claimant was drawing net salary of Rs. 8910/-per month by working with Goa Shipyard Ltd as Crane Operator, an unskilled employee, Grade-I. The claimant was awarded a sum of Rs. 1,28,310/- towards permanent disability; a sum of Rs. 10,000/-towards his travelling expenses and expenses towards services of attendant; and a sum of Rs. 25,000/- towards pain and sufferings. The total actually comes to Rs. 1,63, 310/-but inadvertently has been added up to Rs. 1,53,310/-. Since there was contributory negligence at the instance of the claimant, the compensation was reduced to Rs. 1,30,313/-. Thus, the petition was partly allowed and respondents no. 1 and 2 (present appellants) were jointly and severally held liable to pay compensation in the sum of Rs. 1,30,313/- to the claimant along with interest at the rate of 9% p.a. from the date of application till the date of award and further interest at the same rate in case the said amount was not paid within a month and till payment. The amount, if any, paid to the claimant under Section 140 of the M. V. Act was ordered to be adjusted. Respondents no. 1 and 2 are aggrieved by the impugned judgment and award. 8. Mr. The amount, if any, paid to the claimant under Section 140 of the M. V. Act was ordered to be adjusted. Respondents no. 1 and 2 are aggrieved by the impugned judgment and award. 8. Mr. Afonso, learned Counsel appearing on behalf of respondents no. 1 and 2 invited my attention to the sketch which is part of Exhibit 24-colly and submitted that since respondent no. 2 was proceeding from Varkhande towards Ponda city and since the sumo jeep is shown on the sketch towards extreme left side of the road, it ought to have been inferred that respondent no. 2 was driving the Jeep on correct side of the road. He further submitted that the motorcycle is seen on the sketch on the wrong side and, therefore, inference should have been drawn that the claimant was at fault. He further submitted that the learned Tribunal held that there was contributory negligence on the part of the claimant, however, the evidence on record proves that the entire fault was of the claimant and that there was no fault on the part of respondent no. 2. He pointed out from the accident report forms which are Exhibit 25-colly that there were only scratches to the front bumper right corner and front right hand side mudguard of the Jeep which proved that the scooter had just touched the Sumo Jeep. He submitted that the defence as put up by respondents no. 1 and 2 was supported by the documents on record and therefore, the evidence of RW1 ought to have been relied upon. He further submitted that though there was disability of 8%, due to stiffness of ankle joint, however there was absolutely no functional disability. Therefore, according to learned Counsel, there was no loss of income. He relied upon the judgment of the Hon'ble Supreme Court in the case “Raj Kumar Vs. Ajay Kumar and another”, [ (2011)1 SCC 343 ]. He submitted that there was no evidence at all produced by the claimant regarding any travelling expenses or expenses incurred towards any attendant. He, therefore, urged that the impugned judgment and award is bound to be quashed and set aside. 9. I have minutely gone through the entire original record and proceedings and I have considered the submissions advanced by the learned Counsel for the respondents no.1 and 2. 10. He, therefore, urged that the impugned judgment and award is bound to be quashed and set aside. 9. I have minutely gone through the entire original record and proceedings and I have considered the submissions advanced by the learned Counsel for the respondents no.1 and 2. 10. The first question that arises for determination is as to on account of whose fault, whether of the respondent no. 2 or of the claimant himself, the accident took place and whether both had contributed for the same and if yes what is the proportion. 11. CW1, the claimant in his affidavit-in-evidence stated that on 05/02/2005, he was proceeding by his motorcycle bearing No. GA-02/D-8635 from Ponda to Varkhande to go to his flat at Nagamasjid, after having returned from his duties at about 13.15 hours and when he reached near the Chapel in front of Almeida High School, he was proceeding towards left side of the road at which time, one Sumo Jeep bearing registration no. GA-01/W-4093 driven by respondent no. 2 came from opposite direction at a fast speed in rash and negligent manner, due to which the driver of the Jeep lost control and came with the Jeep towards extreme right side i.e. wrong side and gave dash to the motorcycle, as a result of which he fell down on the road and sustained fracture to the left leg and other grievous injuries to the body. He stated that the Sumo Jeep dragged his motorcycle away for nearly 15 metres and the motorcycle was totally smashed. CW1 stated that he was taken to ID Hospital by the driver of the said Sumo Jeep before conducting panchanama of the scene of accident. 12. In the cross-examination of CW1, he denied the suggestion that he had gone with his motorcycle towards the right hand side i.e. towards the side of Sumo jeep and on seeing the jeep in front, he applied brakes and on his own fell down and the motorcycle just touched the bumper of the jeep. CW1 has denied the above suggestion. The fact that the respondent no. 2 had taken the injured claimant to ID Hospital by the same Sumo Jeep has not been denied. CW1 admitted that the police lodged complaint against him and also registered the crime against him under no. 30/05. CW1 has produced the complaint lodged by Head Constable, Sadanand Naik, as Exhibit 23. 13. The fact that the respondent no. 2 had taken the injured claimant to ID Hospital by the same Sumo Jeep has not been denied. CW1 admitted that the police lodged complaint against him and also registered the crime against him under no. 30/05. CW1 has produced the complaint lodged by Head Constable, Sadanand Naik, as Exhibit 23. 13. The said Head Constable, Sadanand Naik has been examined by the respondents as RW2. He received information from one Vijay Bhandari, one of the pancha witnesses to the panchanama of the Scene of accident. (Vijay Bhandari has been examined by the claimant as CW2). RW2 was informed that the accident had taken place and the injured motorcycle rider was shifted to Sukthankar Hospital, then to ID Hospital and thereafter to GMC Hospital, Bambolim by Sumo Jeep. Thus, the Sumo Jeep was removed by the respondent no. 2 from the spot after the accident to shift the injured to the Hospital and again brought to the scene of accident and kept there, in the manner as he wanted, for the purposes of the panchanama. The accident had taken place at about 13.15 hours. The panchanama of the scene of accident was drawn at between 15.30 hours to 16.15 hours on 05/02/2005. Since the injured-claimant was already shifted to the Hospital, he was not present at the spot at the time of panchanama. Admittedly, the spot of accident was shown to RW2 by the respondent no. 2. According to RW2, the motorcycle bearing No. GA-02/D-8635 was on the middle of the road proceeding towards Ponda direction and the Tata Sumo Jeep bearing No. GA-01/4093 was on the left side of the road facing Curti direction. RW2 then allegedly recorded the statements of the respondent no. 2 and of the injured and lodged the complaint, Exhibit 23, on behalf of the State against the injured-claimant. What is pertinent to note is that no Criminal case was filed against the claimant. But the case was closed as 'A' final on the advise of Assistant Public prosecutor. 14. RW2, the Head Constable was not an eye witness to the accident but his evidence reveals that the Sumo Jeep was removed by respondent no. 2 after the accident whereas the motorcycle of the deceased had remained at the spot where it had fallen after the accident. 14. RW2, the Head Constable was not an eye witness to the accident but his evidence reveals that the Sumo Jeep was removed by respondent no. 2 after the accident whereas the motorcycle of the deceased had remained at the spot where it had fallen after the accident. RW2, therefore, did not know as where exactly the Sumo Jeep had stopped after the accident. RW2 does not say that his investigation revealed that the claimant was rash and negligent. The statement of RW2 to the effect that he registered the offence against the claimant and that his investigation revealed that there was no rashness and negligence of the Tata Sumo driver is also not believable. Therefore the evidence of CW2, said Vijay Bhandari, who informed the police about the accident is more relevant. 15. CW2, Vijay stated in his affidavit-in-evidence that on 05/02/2005, he and one Sunil Naik were proceeding to residence from Ponda to Varkhande by his motorcycle and when they reached near Chapel in front of Almeida High School, at about 13.15 hours, they saw the sumo jeep bearing No. GA-01/W-4093 coming from opposite direction from Varkhande side to go to Ponda side, which was driven by respondent no. 2, in a fast speed, in rash and negligent manner, and respondent no. 2 lost control over the Jeep and the Jeep came extremely towards its wrong side and gave dash to the motorcyclist who was at a slow speed on the left side of the road, running from Ponda to Varkhande side. According to CW2, soon after the accident but before conducting the panchanama, respondent no. 2, Sunil and he put the claimant into the said Sumo Jeep and took him to the I.D. Hospital and after giving first aid treatment, doctor from I.D. Hospital shifted the claimant to GMC Hospital Bambolim, for treatment of fracture to left leg. CW2 further stated that after the claimant was shifted to GMC, the respondent no.2, Sunil and he were called to the spot of accident for conducting panchanama and Sumo Jeep was thereafter brought near the accident place and respondent no. 2 showed the place. CW2 further stated that after the claimant was shifted to GMC, the respondent no.2, Sunil and he were called to the spot of accident for conducting panchanama and Sumo Jeep was thereafter brought near the accident place and respondent no. 2 showed the place. CW2 stated that the impact shown in the sketch was not correct as the said jeep was to its extreme wrong side when the dash was given to the motorcycle and after taking the injured to the I.D. Hospital, the Jeep was brought back to the place of accident but the respondent no. 2 kept it in wrong position in order to safeguard his own interest. He stated that the panchanama was written as per the say of respondent no. 2 and they were made to sign the same. 16. According to the respondent no. 2 (RW1), on 05/02/2005 he was proceeding with Sumo Jeep No. GA-01/W-4093 from Varkhande to Ponda City and the motorcycle no. GA-02/D-8635 came from opposite direction in a rash and negligent manner, at high speed, skidded and fell on his side and came grazing over the road and dashed against his vehicle. He deposed that he immediately stopped the vehicle which was completely by the side of the road. In his cross-examination, he stated that people gathered after 5 minutes and the injured was standing on his legs and the panchanama was drawn and thereafter the injured was taken by the police to the Hospital. 17. Respondent no. 2 cannot be relied upon because he openly told lies to the Court. According to RW2, the Head Constable, who got information about the accident, and came to the spot and drew the panchanama, the injured was already shifted to the Hospital by the Sumo Jeep. RW1 did not disclose that he along with Vijay (CW2) had shifted the injured to the Hospital by his Sumo Jeep and had returned back to the spot and had kept the Jeep at the spot. His statement that the injured was standing on his legs is unbelievable since the claimant had sustained fracture to his left leg. The statement of RW1 that the panchanama was drawn in the presence of the claimant is again false since he was already shifted to the Hospital and long after that the panchanama was drawn. His statement that the injured was standing on his legs is unbelievable since the claimant had sustained fracture to his left leg. The statement of RW1 that the panchanama was drawn in the presence of the claimant is again false since he was already shifted to the Hospital and long after that the panchanama was drawn. No skidding marks or grazing marks of the scooter were found at the place of accident. The accident Report Form in respect of the said Hero Honda Scooter, which is part of Exhibit 25-colly reveals that there were no damages to the scooter caused on account of skidding or grazing on the road. The damages to both the vehicles were to their front side. The conduct of the respondent no. 2 is such that his case cannot be at all believed. 18. Admittedly, as stated by the respondent no. 2 (RW1), himself, he was proceeding with the said sumo Jeep from Varkhande towards Ponda side. RW2 in his cross-examination deposed that his Jeep, after the dash, remained at the same place. In the sketch which is part of Exhibit 24colly, the point of impact has been shown in front of the Sumo Jeep towards Ponda side. It is nobody's case that the Sumo Jeep came behind after the impact. Hence, in no circumstances, the impact could have been at some distance from and in front of the Sumo Jeep. The sketch, therefore, insofar as the position of the Sumo Jeep and the point of impact, is concerned, cannot be relied upon. 19. However, the fact remains that the width of the road at the spot of accident was 4.50 metres, which means that it was not a narrow road, as such, for a Tata Sumo Jeep and a Hero Honda Scooter to safely cross each other. The sketch of the scene of accident shows that it was a straight road. It is nobody's case that any other vehicle or any obstruction had suddenly come on the road. The claimants have not filed any appeal challenging the finding of the Tribunal to the effect that the accident had occurred on account of the fault of the respondent no. 2 with contribution of the claimant. Insofar as the proportion of negligence is concerned, certainly the same was more (about 80%) on the part of the respondent no. The claimants have not filed any appeal challenging the finding of the Tribunal to the effect that the accident had occurred on account of the fault of the respondent no. 2 with contribution of the claimant. Insofar as the proportion of negligence is concerned, certainly the same was more (about 80%) on the part of the respondent no. 2 and less (about 20%) on the part of the claimant. 20. CW1, the claimant, deposed that he sustained fracture of the left leg and other grievous injuries to his body apart from the damages to the scooter. CW1 stated that from ID Hospital, he was taken to GMC Hospital Bambolim, where he remained for three weeks and was operated. According to him, considerable amount of money was spent by him on medical treatment and transport and that he was bedridden for almost eight months. The hurt certificate (Exhibit 26) establishes that the claimant had sustained closed comminuted fracture to lower 1/3rd tibia of left leg. The case summary and discharge record of GMC (Exhibit 29) shows that he was admitted to GMC Hospital on 05/02/2005 and discharged on 07/02/2005 and had attended OPD on 15/02/2005 and 03/03/2005. The medical certificates which are at Exhibit 30-colly reveal that the absence from duty of about 152 days as from 07/02/2005 in respect of the claimant was considered as absolutely necessary. The claimant was certified to be fit to resume light work only as from 07/07/2005. 21. The evidence of Dr. Zelio D'Mello (CW3) established that the claimant had sustained permanent disability of 8% due to mild stiffness of the the left ankle joint. According to CW3, the patient was diagnosed as a case of closed fracture of tibia left side and was treated by open reduction and internal fixation with plate and screws and he attended OPD for regular follow up and was ambulatory without support from September, 2005. The certificate issued by CW3 is at Exhibit 45. CW3 deposed that he patient was under treatment for a total period of nine months. In his cross-examination, CW3 deposed that the patient will only have difficulty in squatting on the ground but rest of the daily activities can be performed by him. 22. The certificate issued by CW3 is at Exhibit 45. CW3 deposed that he patient was under treatment for a total period of nine months. In his cross-examination, CW3 deposed that the patient will only have difficulty in squatting on the ground but rest of the daily activities can be performed by him. 22. The evidence of CW4, Junior officer (Personal) of Goa Shipyard, reveals that the claimant was working in the power house EOT Crane section as crane operator, an unskilled employee, Grade I and was drawing a monthly net salary of Rs. 8910/- . CW4 has confirmed that the claimant was absent from duty from 07/02/2005 to 09/07/2005. He has confirmed the salary certificate (Pay Slip) which is at Exhibit 31. 23. In the case of “Raj Kumar”(supra), the Hon'ble Supreme Court has laid down detailed principles for determination of compensation on account of permanent disability. CW1 deposed that upon joining his duties he was given light duty work only and he has lost his future better prospects. He deposed that he was drawing a salary of Rs. 12,600/- per month and would have got promotion in which case he would have earned more than Rs. 16,000/- per month, if he had not met with accident. But this fact is not confirmed by CW4 who says that the claimant is presently working on a promotional post. Thus, it cannot be believed that there was future loss of earnings in respect of the claimant. However, on account of mild stiffness of the left ankle joint, the claimant will have difficulty in squatting on the ground, through out his rest of the life. There is thus functional disability of the body to the extent of 8%. Considering the age of the claimant to be 38 years as on the date of the accident, and his monthly net income to be Rs. 8910/- and permanent partial disability of 8%, sustained by him, which would never allow him to squat on the ground, the corresponding compensation awarded by the Tribunal of Rs. 1,28,310/- is just and reasonable and cannot be termed as exorbitant. The claimant is from Nagamasjid, Curti-Ponda and had to attend GMC Hospital at Bambolim, for follow up treatment as confirmed by CW3, Dr. D'Mello. The claimant was ambulatory without support only from September 2005. He was confined to the Hospital for three days from 05/02/2005 to 07/02/2005. 1,28,310/- is just and reasonable and cannot be termed as exorbitant. The claimant is from Nagamasjid, Curti-Ponda and had to attend GMC Hospital at Bambolim, for follow up treatment as confirmed by CW3, Dr. D'Mello. The claimant was ambulatory without support only from September 2005. He was confined to the Hospital for three days from 05/02/2005 to 07/02/2005. According to the claimant, he was bedridden for almost 8 months. In the circumstances above, the amount of Rs. 10,000/- awarded by the Tribunal towards transport and for attendant cannot be termed as unreasonable or excessive. Towards damages for pain, sufferings and trauma as a consequence of the grievous injuries, only an amount of Rs. 25,000/- has been awarded to the claimant, which also is not excessive. The total compensation towards the above heads comes to Rs. 1,63,310/-, inadvertently calculated by the Tribunal as Rs. 1,53,310/-. Considering that there was contributory negligence on the part of the claimant, the said compensation has been reduced to Rs. 1,30,313/-. The damages have been objectively assessed by the learned Tribunal with an object to fully and adequately restore the claimant to the position prior to the accident. No interference with the impugned Judgment and award is called for. 24. Hence, the appeal is dismissed, with no order as to costs.