IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
C.V. Bhadang, J.
Ana Paula Mendes – Appellant
Vs.
Vasant Shenvi Kukalekar – Respondent
First Appeal No. 87, 94 of 2018
Decided On : 05-10-2018
Accident - Accident Claims Tribunal - Policy of insurance - Claim of compensation - Permanent disablement - loss of prospects - Expenses on medical treatment - These appeals are taken up for final disposal by consent of parties - Both these appeals, involve claims for compensation, arising out of same vehicular accident - As such, they are being disposed of by this common judgment Mrs - Ana Mendes and her daughter Ms - Sonata Mendes, were proceeding from Taleigao to Miramar on a Hero Honda Activa scooter, Ana Mendes was riding scooter, while Sonata Mendes was pillion rider - When they reached near Vassant Vihar Building, they were hit by a Maruti Alto car bearing no which came from behind - Maruti car was driven by respondent no - 1 and it was covered by a policy of insurance, issued by respondent no. 3, which was valid on date of accident - Both, Ana Mendes and Sonata Mendes suffered injuries on account of accident and were required to be treated and have suffered permanent disablement on account of injuries suffered in accident –Held, Thus, appellant would be entitled to compensation as under: Expenses on medical treatment - Travelling expenses (taxi charges) - Towards attendant charges - Pain and Suffering Preventive treatment Injury could lead to epilepsy - Loss of amenities/marriage prospects 1- Total Compensation 7,14,843 - In result, following order is passed:- First Appeal is partly allowed, with proportionate costs throughout - Impugned judgment and award of Tribunal is modified - appellant shall be entitled to compensation of Rs - 6,86,766/-, jointly and severally against respondents, along with interest at rate of 9% per annum from date of petition, till realisation - Said compensation shall be inclusive of compensation granted under no fault liability - First Appeal No - 94/2018 is partly allowed, with proportionate costs throughout - Impugned judgment and award of Tribunal is modified - Appellant shall be entitled to compensation of Rs - 7,14,843/-, Jointly and severally against respondents, along with interest at rate of 9% per annum from date of petition, till realization - Said compensation shall be inclusive of compensation granted under no fault liability - Award be drawn accordingly – Ordered Accordingly.
C.V. Bhadang, J.
These appeals are taken up for final disposal by consent of parties. Both these appeals, involve claims for compensation, arising out of the same vehicular accident. As such, they are being disposed of by this common judgment.
2. On 04.09.2016, Mrs. Ana Mendes and her daughter Ms. Sonata Mendes, were proceeding from Taleigao to Miramar on a Hero Honda Activa scooter, bearing no. GA-07/V-2526. Ana Mendes was riding the scooter, while Sonata Mendes was the pillion rider. When they reached near Vassant Vihar Building at 19:45 hours, they were hit by a Maruti Alto car bearing no. GA-01/S-7157, which came from behind. The Maruti car was driven by the respondent no. 1 and it was covered by a policy of insurance, issued by the respondent no. 3, which was valid on the date of the accident. Both, Ana Mendes and Sonata Mendes suffered injuries on account of the accident and were required to be treated and have suffered permanent disablement on account of the injuries suffered in the accident.
3. Ana Mendes filed Claim Petition No. 114/2016, before the Motor Accident Claims Tribunal, North Goa, Panaji seeking a compensation of Rs. 25 lakhs against the respondents, while Sonata Mendes filed Claim Petition No. 113/2016, also seeking a compensation of Rs. 25 lakhs against the respondents.
4. The Tribunal by separate judgments and award dated 01.12.2017, has partly allowed the petitions. While Ana Mendes has been granted a compensation of Rs. 4,78,212/-, Ms. Sonata Mendes has been granted a compensation of Rs. 5,69,843/-. The Tribunal has also allowed interest at the rate of 9% per annum, on the amount of compensation, from the date of filing of the petition, till realisation. The compensation so granted is inclusive of the compensation under Section 140 of the Motor Vehicles Act, 1988 (Act, for short). Feeling aggrieved by the inadequate compensation granted, the original claimants have filed these appeals.
5. I have heard Shri Afonso, the learned Counsel for the appellant and Shri Kakodkar the learned Counsel appearing for the contesting respondent no. 3. With the assistance of the learned Counsel for the parties, I have perused the record.
6. First Appeal No. 87/2018
It is submitted by Shri Afonso, the learned Counsel for the appellant that the appellant has suffered permanent disablement to the extent of 5% on account of fracture to the left humerus (shoulder). It is submitted that the appellant is serving as a Senior Special Assistant, with the State Bank of India and was required to take leave from 04.09.2016 to 29.01.2017 and has suffered loss on account of the fact that she would now be unable to get leave encashment for the said period. It is submitted that the Tribunal has although considered this aspect, has restricted the compensation to the basic salary for the aforesaid period. The contention is that the Tribunal ought to have allowed the full salary for the said period, for the loss of paid leave, which comes to about Rs. 4,07,690/-. Secondly, it is contended that the compensation granted towards pain and suffering at Rs. 25,000/- is on the lower side. In the submission of the learned Counsel for the appellant, the Tribunal ought to have granted compensation of Rs. 1 lakh under this head. It is submitted that the Tribunal failed to grant any compensation on account of loss of future prospects. It is submitted that the Supreme Court has now laid down the principles of standardization of the heads under which the compensation needs to be granted, which is not followed by the Tribunal. The learned Counsel submitted that the compensation under Section 166 of the Act has to be granted on similar considerations, as that of Section 163-A of the Act. In the submission of the learned Counsel for the appellant, in order to decide the compensation towards loss of future earning capacity and future prospects, the i
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