KASHINATH KERKAR Vs. MOHOMOD RAFIC ALIAS MOHAMMED RAFIQ

JUDGEMENT

(1.) THE Appeal was called out for final hearing on last Friday. THE submissions of the learned Counsel appearing for the Appellant were heard on last Friday. As none appeared for the Respondents, the judgment was not delivered. Today, when the Appeal was called out, none appears for the Respondents. Hence, I proceed to deliver the judgment. THE Appellant is the original claimant in a Claim Petition filed under Section 166 of the Motor Vehicles Act, 1988. THE claim for compensation has been made on account of injuries sustained by the Appellant in motor vehicular accident.

(2.) ACCORDING to the case of the Appellant, the accident occurred on 10th June, 1995 at about 4.15 p.m. at Mandopa, Navelim. The Appellant was riding a Rajdoot motorcycle and was proceeding from Mandopa to Navelim. There was a lady pillion rider on the motor cycle. As per the case of the Appellant, the first Respondent was driving the jeep and he was coming from opposite direction. The jeep gave dash to the motor cycle of the Appellant. As a result of the impact, the Appellant fell down and sustained injuries. Even pillion rider also sustained injuries. ACCORDINGly, the Appellant filed a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs. 1,70,000/- on account of injuries sustained by him. The First Respondent who is the driver of the offending vehicle and the second Respondent who is the owner of the offending vehicle did not contest the claim. The contest was only made by the third Respondent which is the insurer of the offending vehicle. It was contended in the written statement of the third Respondent that the first Respondent was driving the vehicle without holding a valid driving licence. It was contended that the Appellant himself was guilty of contributory negligence. The Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving on the part of the first Respondent. The Tribunal awarded the compensation of Rs.89,600/-. The compensation awarded by the Tribunal under various heads is as under :- <FRM>JUDGEMENT_658_TLMHH0_2010Html1.htm</FRM> The interest at the rate of 9% per annum was granted on the total compensation amount from the date of filing of the Claim Petition till payment.

(3.) THE disability as reflected from the said certificate is on account of residual restriction of right hip and knee motion which amounts to permanent disability of 25%. Dr. Carlos Barretto stated that the Appellant was admitted to G.M.C. Hospital on 10 th June, 1995. He stated that on 28th June, 1995 an open reduction and internal fixation of the fracture of the right femur was done. He stated that the Appellant was hospitalised on 10 th June, 1995 and was discharged on 29th July, 1995. He stated that the Appellant was required to undergo physiotherapy. He stated that on 13th November, 1995 the Appellant was again admitted to the hospital as in house patient and was discharged on 28 th November, 1995. THE third period of hospitalisation of the Appellant was between 7th February, 1996 to 2nd March, 1996. Lastly he stated that for removal of plate the Appellant was hospitalised on 22nd November, 1997 and was discharged on 26th November, 1997. In the evidence, Dr. Carlos Barretto further stated that as a motorcycle pilot the said disability will not come in the way of the Appellant of riding his motorcycle. However, he will have difficulty in prolonged walking and prolonged standing, in climbing steps. He stated that the Appellant will have difficulty in squatting or sitting on low chairs. In the cross examination, he denied the correctness of the suggestion that the Appellant did not have 25% disability.