IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1482 of 2002 For Approval and Signature:
HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= ASHISHKUMAR GAJANANDBHAI JOSHI - Appellant(s) Versus MAHAMADSAFI USMANBHAI MEMON & 2 - Defendant(s) ========================================================= Appearance :
MS ROOPAL R PATEL for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1 - 2. MR SUNIL B PARIKH for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 30/08/2012 CAV JUDGMENT
1. The challenge in this appeal is to the common judgment and award rendered by learned M.A.C.T. (Aux.), District Sabarkantha at Himmatnagar on 26.2.2002 in MACP No.535 of 1993 and other allied matters. The appellant herein was original claimant in MACP No.535 of 1993. He filed the aforementioned claim petition to recover Rs.2 Lacs by way of compensation from the respondents herein, who were original opponents No.1 to 3 in his claim petition. The Tribunal vide common judgment and award impugned in the appeal awarded by way of compensation Rs.64094/- with running interest interest @ 9% p.a. from the date of said claim petition till the realisation of the amount and the respondents No.1 to 3 (original opponents No.1 to 3) were directed to pay said amount to the appellant – claimant jointly and/or severally. The appellant – original claimant felt that the amount awarded by the Tribunal is on very lower side and, therefore, preferred this appeal for enhancement of the amount of compensation, but restricted the appeal for enhancement to the tune of Rs.71812/-.
2. As per the case of the appellant – claimant, on 29.1.1993, at about 4 p.m. in the evening, he along with two other persons, namely, Dalpatsingh Amarsing Chavada (claimant in MACP No.283 of 1993) and Manilal Chenava (claimant in MACP No.539 of 1993) were proceeding on a motorbike bearing registration No.GBN-8743 and they were going from Radhiwad to Khedbrahma. The appellant – claimant was riding motorcycle and Dalpatsingh and Manilal were pillion riders. When they reached near Netral Patiya, at that time, jeep driven by respondent – opponent No.1 and owned by respondent – opponent No.2 and insured with respondent – original opponent No.3 – National Insurance Co. came from the opposite direction and the jeep driver was driving his jeep rashly and and negligently and with excessive speed and the jeep came on the wrong side of the road and dashed with the motorbike and in the result, appellant, claimant Dalpatsingh and claimant Manilal sustained bodily injuries. It is the case of the appellant – claimant that initially he was admitted in Cottage Hospital, Khedbrahma and from there he was transferred to Civil Hospital, Himmatnagar and from there for further treatment, he was shifted to Civil Hospital, Ahmedabad as he had sustained injuries resulting into three fractures in his right leg, right wrist. It is the case of the appellant – claimant that at the time of the accident, he was serving as Field Supervisor in an Institution called National Association for the Blind and he was getting Rs.2000/- p.m. as salary. He had to remain indoor patient for considerable long time and he could not attend the job for the period of 21 months. That his injuries resulted into permanent functional disability, which reduced his earning capacity. The appellant – claimant, therefore, filed MACP No.535 of 1993. As state above, he had claimed Rs.2 Lac by way of compensation, but the Tribunal awarded Rs.64094/- by way of compensation and, therefore, he preferred this appeal for enhancement.
3. There is no dispute that in the accident, two other claimants, namely, claimant Dalpatsingh in MACP No.283 of 1993 and claimant Manilal in MACP No.539 of 1993 sustained bodily injuries and both filed the above-referred two claim petitions against not only the driver, owner and insurance co. of the jeep, but also against the appellant – claimant being rider of the motorbike, owner of the bike as well as the insurance co. of the motorbike. Since all these three claim petitions had arisen out of the common vehicular accident, the Tribunal consolidated three claim petitions and recorded the common evidence in MACP No.535 of 1993. As stated above, at the end of the trial, the Tribunal directed the respondents herein, who were opponents No.1 to 3 to pay jointly and severally Rs.64094/- by way of compensation to the appellant – claimant. However, so far far as other two claim petitions mentioned above were concerned, wherein as submitted above, driver,owner and insurance co. of the jeep as well as the rider (the appellant herein), owner and insurance co. of the motorbike were joined, by impugned common judgment and award, the Tribunal directed all the six opponents (including the appellant herein) to pay jointly and/or severally Rs.20200/- by way of compensation to claimant Manilal in connection with his MACP No.539 of 1993 and all the six opponents (including the appellant herein) to pay Rs.21340/- by way of compensation jointly and/or severally to claimant Dalpatsingh in connection with his MACP No.283 of 1993. Before the Claim Tribunal, the deposition of all the three claimants, including the appellant were recorded and required documentary evidence was adduced. On behalf of the respondents, namely, the driver, owner and insurance co. of the jeep, no oral evidence was adduced. The Tribunal in the common impugned judgment and award while replying issue No.1 regarding negligence, came to the conclusion that both, the driver of the jeep and the rider of the motorbike (the appellants herein) were equally negligent for causing accident. Thus, the ratio of negligence was apportioned at 50:50. So far as the quantum of compensation is concerned, in connection with MACP No.535 of 1993, out of which the instant appeal arises, the Tribunal came to the conclusion that the appellant – claimant was entitled to recover Rs.36000/- under the head of future loss of income as his monthly income was assessed by the Tribunal at Rs.1000/- p.m. and as consented by both the sides, the functional disability was considered to be 20% and, therefore, the Tribunal came to the conclusion that the appellant – claimant sustained monthly loss at the rate of Rs.200/- and annual loss to the extent of Rs.2400/-. Considering the age of the appellant – claimant at the time of the accident to be 26 years, the Tribunal applied the multiplier of 15 years and, accordingly, came to the conclusion that the appellant – claimant was entitled to Rs.36000/- (Rs.2400x15) by way of compensation under the head of future loss of income. The Tribunal awarded Rs.64188/- under the head of medical treatment etc. and Rs.2000/- under the head of transportation and special diet. The Tribunal further awarded under the head of pain, shock and suffering Rs.5000/- and under the head of actual loss of income for 21 months @ Rs.1000/- p.m., the Tribunal awarded Rs.21000/- (21 x Rs.1000). The Tribunal held that, thus, the appellant – claimant was entitled to recover Rs.128188/- by way of compensation, but since he was 50% contributorily negligent, the Tribunal, therefore, came to the conclusion that he was thus entitled to recover Rs.64094/- by way of compensation.
4. Ms.Roopal Patel, learned advocate for the appellant – claimant, at the outset, submitted that the Tribunal committed serious error while assessing contributory negligence of the appellant at 50%, who was riding two wheeler. It is submitted that as per the deposition of the appellant – claimant, and even as per the panchnama of the scene of occurrence, produced before the Tribunal, it has clearly come on record that the width of the road was 22 ft. Both the vehicles, namely, motorbike and the jeep were coming from opposite direction. When the motorbike reached near the place of accident, the jeep came on the extreme wrong side and was driven by the respondent No.4 with excessive speed and dashed with the motorbike. It is, therefore, submitted that the finding arrived at by the Tribunal that the appellant was 50% contributorily negligent is outright contrary to the evidence on record. It is further submitted that the driver of the jeep, namely, respondent No.1 did not step into the witness box. The Tribunal, therefore, should have drawn adverse inference qua the driver of the jeep. It is, therefore, submitted that the driver of the jeep was thus 100% negligent for the mishap. Ms.Patel, learned advocate for the appellant submitted that the Tribunal held the appellant – claimant equally responsible for the accident, because according to the Tribunal, at the time of accident, the appellant was riding the motorcycle and permitted two persons to travel on the motorcycle as pillion riders and, thus, according to the Tribunal, three persons were proceeding on the bike and the Tribunal considered such act of the appellant as his negligence. It is submitted that this is a wrong approach adopted by the Tribunal, because to permit two pillion riders on the motorbike is a separate offence under the MV Act, but not a ground to come to the conclusion about the negligence of the rider of the bike.
4.1 Ms.Patel, learned advocate for the appellant – claimant submitted that the Tribunal committed serious error while considering the actual income of the claimant at Rs.1000/- p.m. It is submitted that not only in his evidence, he stated that at the time of accident, his monthly salary was Rs.2000/-, but in support thereof, he produced income certificate issued by Secretary, National Association for the Blind, Exh.37, wherein it has been clearly stated that at the time of accident, he was earning Rs.2000/-
p.m. It is further submitted that considering the medical evidence on record and the prolonged hospitalization and the appellant having sustained three fractures in this right leg and fracture in right wrist, he was entitled to recover just and fair amount under the head of pain, shock and suffering, but the Tribunal awarded only Rs.5000/- under that head. It is submitted that though the Tribunal considered the actual loss of income of 21 months, but the same was assessed Rs.1000/- p.m., which should have been assessed @ Rs.2000/- p.m.
4.2 Ms.Patel , learned advocate for the appellant – claimant relied upon certain decisions, which shall be discussed in this judgment at appropriate time.
5. Mr.Sunil Parikh, learned advocate for the respondent No.3 – insurance co., at the outset, fully supported the impugned judgment and award rendered by the Tribunal and submitted that the Tribunal was perfectly justified while coming to the conclusion that the appellant was equally responsible for the accident and the Tribunal, therefore, rightly apportioned his equal negligence. It is submitted that the evidence on record clearly reveals that along with the driver of the jeep, he was equally responsible for the accident. In the instant matter, the FIR came to be lodged by the driver of the jeep himself and the said FIR is also relied upon by the appellant – claimant and perusing the contents of the said FIR, the driver of the jeep has categorically stated that since the right hand side front wheel came to be abruptly bursted, he lost control over the steering and the motorcycle dashed with his jeep. Mr.Parikh, learned advocate for the respondent No.3 insurance co., therefore, submitted that when the appellant – claimant relied upon the FIR, lodged by the driver of the jeep himself, it was not necessary for the driver of the jeep to step into the witness box. Mr.Parikh, learned advocate for the respondent No.3 – insurance co. further submitted that there is no dispute that to permit two persons as pillion riders on the motorbike is an offence, but this fact is equally important while considering the issue regarding negligence.
5.1 Mr.Parikh, learned advocate submitted that admittedly, three claim petitions, namely, MACP No.535 of 1993 filed by the appellant – claimant, who was riding the motorcycle as well as two more claim petitions filed by each of the pillion riders were consolidated and common evidence was recorded and in the impugned judgment and award, the Tribunal came to the conclusion that both, the driver of the jeep as well as the appellant – claimant being the rider of the motorbike were equally negligent for causing the accident. So far as the two claim petitions filed by each of the pillion riders are concerned, they joined drivers, owners and insurance cos. of both the vehicles as opponents and all the six opponents were held responsible to pay compensation to them, which suggest that the award was passed even against the appellant – original claimant of MACP No.535 of 1993 to pay atleast 50% amount of the compensation qua his negligence. The appellant challenged the judgment and award by preferring the instant appeal, but did not file two more appeals wherein he was held responsible to pay the compensation qua his negligence. Mr.Parikh, learned advocate, therefore, submitted that on such ground, the appellant cannot be heard to say that he was not at all negligent.
5.2 Mr.Parikh, learned advocate for the respondent No.3 – insurance co. about the quantum of compensation submitted that it is true that the appellant – claimant only produced the certificate allegedly issued by Secretary of National Association for the Blind dated 11.7.2000 stating that in the month of December 1992, the claim was getting Rs.2000/- as fixed salary. However, the appellant – claimant did not examine the person, who issued said certificate. It is further submitted that in absence of any specific evidence regarding the the exact income, the Tribunal was justified in considering Rs.1000/- p.m. as the income of the appellant at the time of the accident. It is submitted that the Tribunal awarded Rs.21000/- by way of actual loss of income (Rs.1000 x 21) as according to the Tribunal, the appellant could not join his duty for 21 months. The accident occurred on 21.3.1993 and, therefore, even as per the case of the appellant, he could have joined his duty in the year 1995 or in the later part of the year 1994 The certificate relied upon by the appellant is dated 11.7.2000, allegedly issued by his employer. In the certificate dated 11.7.2000, there is nothing that for those rest period of 21 months, no salary was paid to the appellant – claimant. Under such circumstances, Mr.Parikh, learned advocate for the respondent No.3 – insurance co. submitted that as a matter of fact, the award passed by the Tribunal is otherwise on higher side. About the future loss of income, it is true that the Tribunal considered actual income of the appellant at Rs.1000/- p.m. and considering 20% disability, the Tribunal came to the conclusion that the monthly loss sustained by the appellant was Rs.200/- and the annual loss was Rs.2400/- and applied the multiplier of 15 years and awarded Rs.36000/- by way of compensation under the head of future loss of income and it is also equally true that no prospective income is considered, but it is submitted that there is no evidence whatsoever to come to the conclusion that because of the bodily disability at 20%, his earning capacity was reduced, which affected his future income. Mr.Parikh, drew my attention to the deposition of the appellant – claimant recorded before the Tribunal and submitted that his monthly basic salary was increased to Rs.3000/-. Mr.Parikh, learned advocate for the respondent No.3 – insurance co., therefore, submitted that in that view of the matter, the bodily disability in fact did not cause any adverse effect upon the earning capacity of the appellant and as a matter of fact after the accident he was earning more than what he was earning before the accident. Thus, even otherwise, he was not entitled to recover any amount under the head of future loss of income. Under such circumstances, mere fact that the actual monthly income is not considered at Rs.2000/- and the future prospective income is not considered by the Tribunal as contended by the appellant, pales into insignificance.
5.3 Mr.Parikh, learned advocate for the respondent No.3 – insurance co. asserted that considering the facts and circumstances of the case, it cannot be said that the amount awarded by the Tribunal under the head of pain, shock and suffering is on lesser side. The medical expenses have been awarded to the appellant as per the bills and vouchers produced by him before the Tribunal.
5.4 Mr.Parikh, learned advocate for the respondent No.3 – insurance co. relied upon certain decisions, which shall be discussed in this judgment at appropriate place. Ultimately, it is submitted hat the appeal may be dismissed.
6. I have examined the record and proceedings in context with the submissions made by either side.
7. The basic contention raised by the appellant – claimant is about the apportionment of negligence arrived at by the Tribunal in the impugned judgment and award. As stated above, the Tribunal assessed the negligence of the jeep driver at 50% and also assessed contributory negligence of the appellant – claimant at 50%. To put it differently, according to the Tribunal, both were equally negligent for causing the accident. On behalf of the appellant, this finding is vehemently assailed on various grounds, namely, in comparison with jeep, the bike is smaller vehicle; as per the panchnama of the scene of accident, the jeep came on the wrong side of the road and dashed with oncoming motorbike; the jeep driver did not step into the witness box, whereas the appellant – claimant on oath stated that the accident occurred because of sole rash and negligent driving by the driver of the jeep; the finding of the Tribunal that the appellant – claimant was riding the motorbike and permitted the two persons to travel on said bike as pillion riders i.e. in all three persons were travelling on the bike, was sufficient enough to attribute the negligence on the part of the appellant – claimant is outright incorrect and did not consider the police papers in true perspective.
8. Before the above aspect of the matter is discussed further in this judgment, one important aspect, which is required to be considered is this that the appellant – claimant filed claim petition joining driver, owner and insurance company of the jeep as the opponents (MACP No.535 of 1993). However, the two pillion riders, namely, Dalpatsingh Amarsing Chavada and Manilal Chenava filed two separate claim petitions, namely, Dalpatsingh filed MACP No.283 of 1993 and Manilal filed MACP No.539 of 1993 and it is pertinent to note that in their claim petitions, along with driver, owner and insurance co. of the jeep, they joined the appellant – claimant (in capacity as rider of the bike), owner of the motorbike – National Association for the Blind and the insurance co. as co-opponents of the bike, namely, United India Insurance Co. Thus, the two pillion riders filed their respective claim petitions against the six opponents. As stated above, since all the aforementioned three claim petitions were arising from the common vehicular accident, all the three claim petitions were consolidated and common evidence was recorded. It is pertinent to note that the claim Tribunal in the impugned judgment and award came to the conclusion that the jeep driver was negligent to the extent of 50% and the appellant herein, who was riding the bike was negligent to the extent of remaining 50% (the original opponent No.4 in the two claim petitions filed by the two pillion riders). Under such such circumstances, so far as the appellant - claimant in MACP No.535 of 1993 is concerned, the Tribunal came to the conclusion that the appellant was though entitled to recover compensation of Rs.128188/-, but deducted 50% amount towards his contributory negligence, and the Tribunal came to the conclusion that the appellant was entitled to recover Rs.64094/-. However, so far as the remaining two claim petitions filed by the pillion riders are concerned (i.e. MACP Nos.283 and 539 of 1993) the Tribunal came to the
entitled to recover Rs.21340/- by way of compensation and the another pillion rider – claimant Manilal in MACP No.539 of 1993 was entitled to recover Rs.20200/- by way of compensation, but it is significant to note that they both were held entitled to recover the amount of compensation from all the six opponents jointly and severally. As stated above, out of those six opponents, the opponent No.4 happens to be the appellant being the rider of the bike. To put it differently, according to the Tribunal, the driver, owner and insurance co. of the jeep were liable to pay 50% of the amount of compensation whereas the remaining 50% of the amount of compensation awarded to the pillion riders, they were entitled to recover from the rider, owner and insurance co. of the motorbike. Under such circumstances, the situation that has arisen is this that the appellant, who was rider of the motorbike filed the instant appeal whereby even he assailed the findings of the Tribunal regarding the apportionment of negligence, whereby reduction in amount of compensation is made qua his negligence. However, the appellant did not challenge the findings arrived at by the Tribunal in connection with the aforementioned two claim petitions filed by the two pillion riders wherein the jeep driver was held to be 50% negligent and the appellant herein being the rider of the bike was held equally negligent i.e. 50% (his liability to pay 50% of the compensation).
9. In above view of the matter, Mr.Parikh, learned advocate for the respondent – insurance co. relied upon the case of Shardaben Wd/o.Dhirajbhai Rayjibhai Patel & Ors. Vs.Parshottambhai P.Patel reported in 2011(1) GLR 330. In that case almost identical facts were there. In that case, there was collision between two vehicles, namely, dumper Truck No.GRV 6054 and a motor Truck No.GTS 6217. One Dhirajbhai was driving said dumper Truck, which dashed with aforesaid motor Truck. The heirs and legal representatives of driver Dhirajbhai filed MACP No.452 of 1986.
In the accident one more person sustained fatal injuries and his heirs and representatives filed MACP No.737 of 1986. Common evidence was recorded by the Tribunal. The Tribunal apportioned negligence equally between the drivers of the two vehicles, namely, dumper Truck No.GRV 6054 and motor Truck No.GTS 6217. Pursuant to the common evidence recorded, as stated above, both the drivers were held to be equally negligent for causing accident. The Tribunal awarded Rs.145800/- to the claimants, who happen to be heirs and legal representatives of deceased driver Dhirajbhai of dumper Truck No.GRV 6054. The claimants felt that the amount awarded to them was inadequate and that the apportionment of negligence arrived at by the Tribunal was also faulty and, therefore, preferred only one appeal before this Court. This Court in the aforesaid decision re-examined the oral and documentary evidence on record. This Court in paragraph 6.1 in said decision observed that the apportionment of negligence is a pure question, which is to be answered on appreciation of facts which vary from case to case. In paragraph 7 in said decision, this Court observed as under:-
“7. So far as the present First Appeal is concerned, the present First Appeal is challenging only the judgment and award rendered in MACP No.452 of 1986. As mentioned herein above MPCP No.452 of 1986 is decided by common judgment and award rendered in MACP No.737 of 1986 and therefore if at all the present appellant wanted to challenge the question of negligence he was required to file two appeals. Be that as it may, the fact that this Court does not find the apportionment of negligence of the Tribunal any way illegal, non filing of 2nd appeal pales into insignificance. It was only in the event if the Court wanted to decide afresh the proportion of negligence, the question of other appeal being not before the Court would have become material.”
10. Thus, this Court came to the conclusion that if at all the appellant therein wanted to challenge the question of negligence, he was required to file two appeals. As stated above, almost identical is the facts involved in the instant matter. Under such circumstances, it can safely be said that if at all the appellant herein wanted to challenge the apportionment of negligence arrived at by the Tribunal, along with this appeal, he should have filed in all three appeals.
11. Apart from such technical aspect of the matter, it is pertinent to note that in the instant matter, the FIR was filed by none other than the driver of the jeep, namely, respondent No.1 herein named Mahamadsafi, which is even relied upon by the appellant herein. In said FIR, the driver of the jeep clearly pleaded that when he reached near the place of incident, the front right side wheel of his jeep came to be burst and he lost control over the steering and dashed with the oncoming motorbike. In above view of the matter, the panchnama of the scene of occurrence relied upon by the appellant is required to be considered. In the panchnama, it is true that it has been stated that on the right hand side of the road, jeep was found stationary. The right hand front wheel of the jeep was found on the right side end of the road and it is significant to note that in the panchnama, it has been stated that the right hand front wheel of the jeep was found burst. In the above background, I have also taken into consideration the oral evidence of the appellant and other two claimants (the two pillion riders). Considering their evidence, they stated that at the place of the incident, they saw a jeep coming on wrong side of the road from the opposite direction. As stated above, in the FIR, as well as supported by the panchnama of the scene of accident, it has come on record that since the right hand side front wheel came to be burst, the jeep came on the wrong side of the road. In this connection, Mr.Parikh, learned advocate for the respondent No.3 insurance co. relied upon a case of Bijoy Kumar Dugar Vs.Bidyadhar Dutta & Ors. reported in AIR 2006 SC 1255 wherein there was head-on-collision between the two vehicles, namely, a motorcar and passenger bus, the person travelling in motorcar in their evidence stated that when they saw the bus coming from the opposite direction, its movement was not found normal and it was coming in a zigzag manner. In the accident, the driver of the motorcar died. The Hon'ble Apex Court in paragraph 12 in said decision observed that “if the bus was being driven by the driver abnormally in a zigzag manner, as PW-2 wanted to believe the Court, it was, but natural, as a prudent man for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus from a long distance coming from the opposite direction”. The Tribunal in said case assessed equal negligence of both the drivers i.e. driver of the bus as well as the deceased driver of the motorcar. The said finding was confirmed by the High Court. As seen above, the Hon'ble Apex Court while discussing this aspect of the matter in paragraph 12 in said decision, ultimately, came to the conclusion that both the drivers of the vehicles should be held responsible to have contributed equally to the accident.
12. In above view of the matter, apart from the technical ground that the appellant should have filed in all three appeals, even on merits, this Court comes to the conclusion that the ultimate conclusion arrived at by the Tribunal to the effect that the driver of the jeep and the rider of the bike were equally negligent does not warrant any interference. It is true that one of the grounds, according to the Tribunal was that the deceased permitted two persons to travel on the bike and thus in all there were three persons on the bike. This factor was also taken into consideration by the Tribunal at the time of apportionment of negligence. Ms.Patel, learned advocate for the appellant relied upon a case of Kattabomman Transport Corporation Limited Vs.Vellai Duraichi & Ors. decided by Madras High Court and reported in 2004(2) TAC 456. In said case, three persons were travelling on a motorcycle and met with a vehicular accident. In paragraph 6 in said decision, Madras High Court dealt with this issue and took into consideration as to in that case how far three persons in a motorcycle, which was prohibited have contributed for the accident. In said case, this aspect was not seriously raised before the Tribunal. Since there was a collision between the motorcycle and a bus, Madras High Court further observed that the bus driver did not lodge any FIR. In above background, Madras High Court held that mere violation of provision of the Act or Rules or Policy conditions, being not automatic to apply principles of contributory negligence. In the facts and circumstances of the instant case, the decision is not helpful to the appellant for the simple reason that in the instant matter, the issue regarding the three persons were travelling on a motorbike was seriously raised by the insurance co. Moreover, in the instant matter, the FIR is filed by none other than the driver of the jeep and in his FIR, which was also relied upon by the claimant, it was his stand that on account of bursting of front right side tyre, the jeep dashed with the oncoming motorcycle. The said fact, as stated above, are supported by the panchnama of the scene of accident. Ms.Patel, learned advocate for the appellant relied upon a case of Municipal Corporation of Greater Bombay Vs.Shri Laxman Iyer & Anr. reported in AIR 2003 SC 4182 wherein Hon'ble the Apex Court while considering the meaning of the word negligence held that negligence is not an absolute term, but is a relative word. No absolute standard can be fixed and no exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions. To determine whether a mere act would be negligence, it is relevant to determine for any reasonable man would foresee that the act would cause damage or not. There cannot be any dispute regarding the true meaning of the term negligence given by Hon'ble the Apex Court in the said decision. However, even applying said principle, suffice it to say that the findings arrived at by the Tribunal in the instant matter regarding the apportionment of negligence does not warrant any interference.
13. About the quantum of compensation, on behalf of the appellant – original claimant, it has been submitted that despite the fact that the appellant – claimant in his oral evidence stated that at the time of accident, he was serving as Field Supervisor in National Association for the Blind and was drawing Rs.2000/- p.m. by way of salary and to substantiate said oral evidence, the claimant produced the certificate issued by Secretary, National Association for the Blind, Exh.37 stating that in the month of December 1992, the monthly salary of the claimant was Rs.2000/-, the Tribunal in the impugned judgment and award considered only Rs.1000/-
p.m. as actual income of the claimant and despite the fact that the Tribunal came to the conclusion that the claimant sustained actual loss of income for 21 months and awarded Rs.21000/- under said head considering Rs.1000/- p.m. as income and as a matter of fact the Tribunal should have awarded Rs.42000/- under this head considering Rs.2000/- p.m. as income (Rs.2000 x 21). It is also submitted that while considering the loss to the future income, the Tribunal did not take into consideration the future prospective income, but again took into consideration Rs.1000/- p.m. as actual income of the claimant and considering the disability at 20%, affecting the earning capacity of the claimant, observed that accordingly, Rs.200/-
p.m. and Rs.2400/- p.a. should be the future annual loss and applied the multiplier of 15 years and awarded Rs.36000/- under the head of loss of future income. It is, therefore, submitted that not only the prospective income is ignored, but even the actual income is not properly considered.
14. In above context, I have perused the impugned judgment and award rendered by the Tribunal. Considering the paragraph 16 in impugned judgment, the Tribunal considering the salary certificate Exh.37, however, observed that as per said certificate, the monthly salary of the claimant was Rs.2000/-, but the Tribunal further observed that in the claim petition, the claimant has not stated that his salary was Rs.2000/- p.m. In this connection, considering the claim petition, nowhere it has been specifically pleaded by the claimant that at the time of the accident, he was serving as Field Supervisor in National Association for the Blind. Apart from that he has nowhere stated that his monthly salary was Rs.2000/- and, accordingly, his annual salary was Rs.24000/-. On the contrary in the claim petition at Sr.No.3 about the annual income of the injured, it has been stated to be Rs.35000/-. Thus, in a way it cannot be said that the Tribunal committed any error while considering this aspect of the matter in light of the averments made in the claim petition.
15. In the impugned judgment and award, the Tribunal came to the conclusion that the claimant suffered actual loss of income of Rs.21000/- (Rs.1000 x 21). Under such circumstances, according to the Tribunal, not only the claimant could attend his service for 21 months, but during his absence period, no salary was paid to him. In this connection, considering the injury certificate, Exh.35, it appears that the claimant was admitted in hospital on 29.1.1993 and was discharged on 24.6.1993. Thus, it can safely be said that for the period of five months, the claimant remained as indoor patient. The Tribunal considered that for the period of 21 months, the claimant was required to take rest. In the oral evidence of the claimant, he stated that he could not attend his services for 21 months. In this respect, it is pertinent to note that the claimant himself relied upon the certificate, Exh.37 issued by Secretary, National Association for the Blind dated 11.7.2000 wherein it is stated that in the month of December 1993, the monthly salary of the claimant was Rs.2000/-. It is pertinent to note that the accident occurred on 29.1.1993, and as per the say of the applicant – claimant, he could not attend his duty for 21 months, meaning thereby, till the later part of the year 1994, he could not attend his duty. If the claimant could obtain and produce the certificate issued by the Secretary, Exh.37 dated 11.7.2000, then the Secretary should have specified further in the certificate itself that the appellant remained absent for either 21 months or for any period and during said period, he was not paid any salary. Neither in the certificate, Exh.37, dated 11.7.2000 this aspect has been clearly specified nor the claimant examined any person from said Association to substantiate the fact that he could not attend the duty for 21 months and for that period, he had to take leave without pay. As stated above, the actual period of hospitalization was five months. According to the Tribunal, he was required to take rest for 21 months, meaning thereby, that even after the discharge, the claimant could not attend his duty for 16 months and had to remain on leave for said period. As stated above, except the bare word of the claimant, there is no evidence. The best evidence could have been produced by the claimant himself from the Association, but nothing whatsoever was done. In the certificate, Exh.37 itself, the Secretary of the Association, could have clarified this aspect of the matter, but nothing whatsoever was done. In above view of the matter, when it clearly transpires that the Tribunal was wrong in coming to the conclusion that for 21 months, the claimant had to take rest and could not attend his duty and had to take leave, even Rs.21000/- awarded under this head cannot be said to be the proper calculation arrived at by the Tribunal. To put it differently, even if it is considered that the actual income was Rs.2000/- p.m., yet, to justify the fact that for 21 months, the claimant had to take rest and had to proceed on leave, cannot be said to have been duly established. So even at the rate of Rs.2000/- p.m. salary, and taking into consideration the actual hospitalization of five months, the actual loss may come to Rs.10000/-. Even again after the discharge it is believed that for five more months, he had to take rest and had to proceed on leave, the total comes to Rs.20000/-. As against that, Rs.21000/- awarded by the Tribunal under the head of actual loss of income cannot be said to be less amount or inadequate amount.
16. The second limb of submission on behalf of the appellant – claimant about the future loss of income was to the effect that the Tribunal did not took into consideration the future prospective income of the claimant. Admittedly, at the time of accident, the claimant was aged about 26 years. The Tribunal awarded Rs.36000/- under the head of future loss of income. About the physical disability aspect, admittedly, there is no dispute as to Tribunal considering 20% disability. The Tribunal considered Rs.1000/- p.m. as income and considering 20% disability accordingly Rs.200/- p.m., which comes to Rs.2400/- p.a. as future loss of income and applied the multiplier of 15 years and, accordingly, the Tribunal came to the conclusion that Rs.36000/- was the future loss of income. It is true that the Tribunal did not take into consideration the future prospective income of the claimant. It transpires that one important fact, which appears to have lost sight of the Tribunal is the deposition of the claimant himself on this aspect of the matter. It is pertinent to note that the evidence of the claimant was recorded before the Tribunal on 1.8.2000. In his cross-examination, he admitted that he studied upto B.Com. Initially, he was appointed as Clerk and then he was promoted as Field Supervisor and on the date of the evidence i.e. on 1.8.2000, his basic salary was Rs.3000/-. However, the claimant contended that because of the accident and the injury, which resulted into bodily disability, he was pushed down to lower cadre by his employer, but, again in support thereof, no evidence is adduced though the best evidence was available to the claimant from his employer from the Association itself. Even in the certificate, Exh.37 issued by the Secretary of the Association dated 11.7.2000, nothing is stated that the claimant was pushed back to lower cadre nor in support of such case, the claimant examined any witness from said Association. Under such circumstances, the fact reveals that the claimant was initially employed as Clerk and then he was promoted to the cadre of Field Supervisor. According to the claimant, at the time of the accident, he was earning Rs.2000/- p.m. and as per his evidence recorded in the year 2000, his salary was increased. To put it differently, despite the fact that according to the claimant, he sustained bodily disability affecting his earning capacity at 20%, yet, in fact, there was no reduction in his income, but on the contrary his income was increased even after the accident. In this respect, on behalf of the respondent – insurance co. reliance was placed upon the case of Raj Kumar Vs.Ajay Kumar and Anr. reported in (2011)1 SCC 343 and more particularly paragraphs 13 and 14 in said decision, which runs as under:-
“13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (I) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, theloss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.”
17. Considering the ratio laid down by Hon'ble the Apex Court and more particularly considering the discussions made in the above paragraphs 13 and 14 by Hon'ble the Apex Court, it transpires that in the instant case, the claimant after the accident earned more by way of salary than he was earning at the time of accident. It can, therefore, safely be said that the bodily disability did not come in his way of earning. Moreover, there is nothing to substantiate the oral say of the claimant that he was shifted to other lesser post with lesser emoluments by his employer. Under such circumstances, the observation made by Hon'ble the Apex Court that in fact there may not any need to award any compensation under the head of “loss of future earning”, with full force applies to the facts and circumstances of the instant case. When such is the situation, the fact as to whether the Tribunal failed to take into consideration the future prospective income of the claimant or that the actual income held by the Tribunal is not appropriate etc. would pale into insignificance because as a matter of fact, it cannot be said that the Tribunal was justified in awarding the compensation under this head. Be that as it may, since the insurance co. has not challenged the award by filing any cross appeal or cross objection, it would not be appropriate for this Court to go much deep into the said aspect of the matter, but in the appeal filed by the claimant for enhancement, it can safely be said that no enhancement under this head as claimed by the claimant is warranted.
18. The Tribunal awarded Rs.5000/- under the head of pain, shock and suffering. It appears that on behalf of the appellant, it has been rightly pointed out that the amount awarded under this head cannot be said to be just and proper. I need not repeat here the entire above discussion regarding the nature of injuries sustained by the appellant – claimant and the multiple fractures sustained by him as emerged from the injury certificate, Exh.35. It is further pertinent to note that the injuries resulted into permanent bodily disability. It is further pertinent to note that the applicant had to incur huge cost for his medical treatment and it is required to consider that the Tribunal awarded Rs.64188/- under the head of medical treatment and medical expenses etc. In above view of the matter, this Court is of the opinion that the Tribunal should have awarded atleast Rs.50000/- by way of compensation under the head of pain, shock and suffering. The Tribunal awarded Rs.5000/- under the said head and, therefore, the excess amount under this head comes to Rs.45000/-. Since the Tribunal apportioned the contributory negligence of the appellant – claimant at 50% and as discussed above, the Tribunal did not err in arriving at such conclusion, the appellant is entitled to recover Rs.22500/- (Rs.45000/2) by way of additional amount of compensation under the head of pain, shock and suffering.
19. This Court does not find any error having been committed by the Tribunal while granting Rs.64188/- by way of compensation under the head of medical treatment and medical expenses and Rs.2000/- awarded by the Tribunal under the head of transportation and special diet charges.
20. The net result is that the instant appeal deserves to be partly allowed to the effect that the appellant is entitled to recover Rs.22500/- more by way of compensation than what was awarded to him by the Tribunal. The Tribunal awarded the compensation with running interest @ 9% p.a. from the date of the filing of the claim petition till its realisation. Considering the facts and circumstances of the case, so far as the enhanced amount of compensation i.e. Rs.22500/- is concerned, it would be just and proper to award running interest @ 7.5% p.a. from the date of the filing of the claim petition till the realisation of the amount. Considering the enhanced amount together with interest, it would be just and proper to direct the Tribunal to pay the aforesaid amount in cash by account payee cheque to the appellant – claimant.
21. For the foregoing reasons, the appeal is partly allowed and the impugned judgment and award rendered by the Motor Accident Claims Tribunal (Auxiliary), Himmatnagar, Dist. Sabarkantha on 26.2.2002 in M.A.C.P. No.535 of 1993 is hereby modified and it is hereby directed that the respondents herein shall pay jointly and/or severally Rs.22500/- (Rupees Twenty-two thousand five hundred only) more by way of additional amount of compensation to the appellant – claimant with running interest @ 7.5% p.a. from the date of the filing of the original claim petition till the realisation with proportionate cost thereon. Upon the amount being deposited with the concerned Claim Tribunal, the Claim Tribunal shall pay said amount in cash by account payee cheque to the appellant in accordance with rules. No costs.
(binoy) (J.C.UPADHYAYA, J.)