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2014 DIGILAW 2500 (BOM)

Mrinal M. Lolieyekar v. Rajesh J. Devidas

2014-12-18

U.V.BAKRE

body2014
JUDGMENT : U.V. Bakre, J. 1. Heard Mr. Coutinho, learned Counsel for the appellant and Mr. Kakodkar, learned Counsel for respondent no. 2. 2. In the present appeal, notice was issued to the respondents by making it clear that the appeal shall be disposed of at the stage of admission itself. Respondent no. 1, though duly served is absent. 3. This appeal is directed against the judgment and award dated 09/07/2013 passed by the learned Presiding Officer, Motor Accident Claims Tribunal at Margao (M.A.C.T., for short) in Claim Petition No. 176 of 2011. The appellant was the claimant whereas the respondents were the respondents in the Claim Petition also. Parties shall, hereinafter, be referred to as per their status in the Claim Petition. 4. The claimant had filed the said petition for grant of total compensation of Rs. 3,00,000/- on account of injuries sustained by her, which resulted in permanent disability, in a motor vehicular accident. 5. Case of the claimant, in short, was as follows: On 18/09/2009, she was riding the Scooty bearing registration no. GA-08/H-9023 from Chowgule College at Margao to her residence at Murida, Fatorda and on reaching near Vishwas Apartment at Murida, Fatorda at 16.30 hours, the respondent no. 1 rode the motorcycle bearing registration no. GA-09-C/8052 from opposite direction at a fast speed and in a rash and negligent manner and gave dash to the Scooty of the claimant, as a result of which, she fell down and sustained grievous injuries resulting into permanent disability. The claimant was a 21 years old student at the relevant time, pursuing her degree in Science. She had lost one academic Semester from June-October 2009. The respondent no. 1 was the rider as well as owner of the said offending vehicle, whereas the respondent no. 2 was the insurer of the said vehicle. 6. Only the respondent no. 2 filed written statement denying the case of the claimant alleging that the respondent no. 1 had violated the terms of the insurance policy, since he did not have valid driving licence at the time of accident. The respondent no. 2 also denied the age, occupation as also the manner in which the accident took place as described by the claimant. 7. Issues were framed by the learned M.A.C.T. as per the rival claims of the parties. The claimant examined herself as AW1, Dr. The respondent no. 2 also denied the age, occupation as also the manner in which the accident took place as described by the claimant. 7. Issues were framed by the learned M.A.C.T. as per the rival claims of the parties. The claimant examined herself as AW1, Dr. V. Faldessai as AW2, one Mohini, the Assistant Manager Inpatient Billing, Apollo Victor Hospital, Margao as AW3 and Dr. S. Vaigankar as AW4. The respondents did not examine any witness. 8. Upon consideration of the entire evidence on record, the learned M.A.C.T. partly allowed the Claim Petition thereby holding that the respondents jointly and severally are liable to pay to the claimant the compensation in the sum of Rs. 2,07,893/- along with interest at the rate of 9% per annum from the date of application till the date of the award and if the amount is not paid, within a month from the date of the award, the said amount would carry further interest at the same rate, till the date of payment. The amount, if any, awarded under Section 140 of the M. V. Act was ordered to be adjusted. Aggrieved by the above judgment and award, the claimant has filed the present appeal, for enhancement of compensation amount. 9. Mr. Coutinho, learned Counsel for the claimant submitted that the claimant had lost one year of her academic career of Bachelor of Science. He pointed out that the accident had taken place on 18/09/2009, due to which, she lost her 5th semester which otherwise she would have cleared in October, 2009. He submitted that the claimant had to clear 6th Semester in April, 2010 and, therefore, the 5th Semester which was remaining, was cleared by her in October, 2010. Mr. Coutinho further submitted that the claimant had done her B.Ed., then, during the year 2011-2012. He submitted that convocation of granting of degree takes place only once in a year. Learned Counsel, thus , urged that the claimant lost 1 year if the claimant had taken teaching job, she would have earned at least Rs. 50,000/- during the said period of one year which she lost. According to the learned Counsel for the claimant, the learned M.A.C.T. has not considered this point and has not awarded any compensation towards the said loss of income. 10. On the other hand, Mr. Kakodkar, learned Counsel for respondent no. 50,000/- during the said period of one year which she lost. According to the learned Counsel for the claimant, the learned M.A.C.T. has not considered this point and has not awarded any compensation towards the said loss of income. 10. On the other hand, Mr. Kakodkar, learned Counsel for respondent no. 2 submitted that there is no evidence on record to establish that the applicant was to take teaching job and that she had lost the income of one year of teaching because of the accident. He submitted that the learned M.A.C.T. has considered this point and no interference is called for with the impugned Judgment and ward. 11. I have gone through the material produced before me during the arguments, and have considered the submissions advanced by the learned Counsel for the parties. 12. There is no dispute that the accident had occurred due to rash and negligent driving of the respondent no. 1 and that the claimant had sustained grievous injuries which resulted in permanent disability assessed by Dr. Faldessai (AW2) at 20% as per the ALIMCO scale. Considering the outpatient bill of Apollo Victor Hospitals, Margao proved by AW3, the learned M.A.C.T. awarded an amount of Rs. 16,422/-. Considering further the bill of Lilavati Hospital, Mumbai, where the claimant was hospitalised, the learned M.A.C.T. awarded the said amount of bill which was Rs. 76,471/-. Towards travelling expenses, the learned M.A.C.T. awarded an amount of Rs. 10,000/-and towards pain and sufferings, an amount of Rs. 25,000/-was awarded. Considering that the permanent disability was assessed at 20%, the learned M.A.C.T. awarded an amount of Rs. 80,000/-. The total compensation, thus, awarded was Rs. 2,07,893/-. 13. Learned M.A.C.T. has observed that because of grievous injuries sustained by claimant, she lost one Semester as she could not appear for the examinations. Learned M.A.C.T. has also observed that she had subsequently cleared the Semester and was a teacher by occupation. However, according to the learned M.A.C.T., there was no material to substantiate as to how earnings were affected on account of permanent disability and hence no amount was awarded towards the loss of income. In my considered view, this is not proper since the learned M.A.C.T. itself has admitted that the claimant had lost one Semester on account of the accident. In my considered view, this is not proper since the learned M.A.C.T. itself has admitted that the claimant had lost one Semester on account of the accident. If the claimant had taken up job of a teacher one year prior to her joining the school, she would have certainly earned certain amount. Mr. Coutinho has pointed out that 5th Semester could not be completed in October, 2009 on account of the accident and due to practicals, which have to be attended, the claimant could clear the 6th Semester in April, 2010 and could complete the remaining 5th Semester only in October, 2010. 14. Considering all the aspects and in the attendant circumstances, the claimant is awarded an additional sum of Rs. 45,000/-, towards loss of income. In the peculiar circumstances of the case the said amount shall not carry any interest. However, it is made clear that the said amount of Rs. 45,000/-shall be paid to the claimant by the respondent no. 2 within a period of three months from today, failing which, the said amount shall carry interest at the rate of 9% p.a. from the date of expiry of said period of three months till the date of payment. 15. In the result, the appeal is, therefore, partly allowed. The impugned judgment and award stands modified to the extent as observed above in paragraph 14 . No order as to costs. 16. The appeal stands disposed of accordingly.