IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL No. 2303 of 2008
With
CROSS OBJECTION NO.109 OF 2012
For Approval and Signature:
HONOURABLE MR.JUSTICE JAYANT PATEL Sd/-
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No Whether this case involves a substantial question of law 4 as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No =========================================
ORIENTAL INSURANCE CO LTD
Versus
BHAKULABEN MAHESHBHAI SHANTILAL BHATT & 3
========================================= Appearance :
MR RAJNI H MEHTA for the Appellant MR YN RAVANI for Respondent No.1 RULE SERVED for Defendant(s) : 2 - 3.
MR HARDIK C RAWAL for Defendant(s) : 4, ========================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE C.L. SONI
Date : 26/06/2012 CAV JUDGMENT
(Per : HONOURABLE MR.JUSTICE C.L. SONI )
1. This appeal is filed by the Insurance Co. against the judgment and award dated 6th October, 2007 passed by the Motor Accident Claims Tribunal (Auxi.), Fast Track Court-3, Bharuch in Motor Accident Claim Petition No. 440 of 2004 whereby the claims tribunal awarded Rs.21,30,767.00 as compensation with 9 per cent interest in favour of respondent No.1 – injured claimant. The appeal is restricted to Rs.15,00,000.00. Respondent No.1 is not satisfied with the amount awarded and has, therefore, filed Cross Objection claiming Rs.8,00,000.00 more.
2. As per the case of the claimant, on 16.11.2003, the claimant was traveling in Maruti Van bearing No. GJ-01-616 driven by her husband, respondent No.2 on a route from Vadodara to Nadiad. At that time, when the Maruti Van reached near Uttar Sanda village at about 7.45 p.m., one bus bearing registration No. GJ-18-V-6235 driven by respondent No.3 Baldevbhai Kalabhai Desai-driver serving with respondent No.4 Gujarat State Road Transport Corporation came from the opposite direction and struck the Maruti Van as a result of which, the claimant and her husband received serious injuries. The First Information Report was lodged with the Chaklasi Police Station in respect of the incident of accident. The claimant initially received treatment from Nadiad Primary Health Center and was shifted to Unity General Hospital at Vadodara and was kept as indoor patient for long time. During the treatment, both the legs of the claimant were amputated and rod was inserted in right hand side in view of the serious injuries received by the claimant. As a result of the injuries, the claimant sustained 100% permanent disability. The claimant, therefore, filed the above said claim petition before the Claims Tribunal at Bharuch claiming compensation of Rs.30,00,000.00 from the respondents. Initially, the claim petition was filed by the claimant claiming compensation of Rs.15,00,000.00 but later on, the claim petition was amended claiming compensation of Rs.30,00,000.00 with 12 per cent interest per annum.
3. The claim petition was resisted by the Insurance Company on all counts by obtaining permission under section 170 of the Motor Vehicles Act. Before the Claims Tribunal, the claimant examined herself at Exh. 32. She was cross examined by and on behalf of the insurance company and by and on behalf of respondent No. 4 Corporation. From the side of the respondent No.4, driver of the ST Bus was examined at Exh. 57 who was cross examined by the Insurance Company and on behalf of the claimant. On the basis of the evidence on record, the Claims Tribunal held the driver of the Maruti Van negligent for the accident to the extent of 90% and the driver of the ST Bus was held negligent to the extent of 10%. As regards quantum of compensation, the Claims Tribunal assessed the income of the claimant at Rs.15,000.00 per month but considering the permanent disability of the body as a whole at 95 %, the Claims Tribunal arrived at the figure of Rs.14,250.00 towards the loss of future income per month. The Claims Tribunal applied the multiplier of 7 years and assessed the future loss of income at Rs.11,97,000.00. To the said figure, the claims tribunal added Rs.1,00,000.00 towards pain, shock and suffering, Rs.1,05,000.00 towards the actual loss of income and Rs.4,49,767.00 towards the medical expenditure, Rs.5000.00 towards attendance and nutritious food, Rs.1,44,000.00 towards future expenditure for artificial leg and Rs.1,30,000.00 for treatment and future expenditure for transportation. Thus, the Claims Tribunal arrived at Rs.21,30,767.00 being the amount of compensation to be awarded to the claimants. The Claims Tribunal has thus passed an award for the aforesaid amount and directed respondent No.1 and 2 to deposit 90 per cent of the above said amount and also directed respondents No.3 and 4 to deposit 10 per cent of the aforesaid amount within sixty days.
4. Learned Advocate Mr. R.H. Mehta for the appellant Insurance Co. has made the following submissions:
(1) The Claims Tribunal has committed grave error in holding the driver of Maruti Van negligent to the extent of 90%. He referred to the evidence on record including the FIR and Panchanama and submitted that the bus being the heavy vehicle, driver of the bus was expected to take more care to avoid the accident, however, though the driver of the ST Bus having seen the Maruti Van coming from the opposite direction, has not taken enough care and caution to avoid the accident. He submitted that when the bus was to pass a curve, even if the driver of the Maruti Van coming from the opposite direction omitted to take the Maruti Van to his immediate correct side, then also, it was for the driver of the ST Bus to immediately slow down the bus so as to avoid any accident with the Maruti Van, therefore, the negligence on the part of the driver of the ST Bus ought to have been assessed on higher side than the driver of the Maruti Van which was a small vehicle. As per his submission, in fact, driver of the bus having seen the Maruti Van coming from the opposite direction in advance and still accident took place would clearly go to show that it was only because of the absolute negligence on the part of the bus driver the accident took place. Not only this but the fact that the great damage was suffered by the Maruti Van is also a factum which would go to show that the bus driver has failed to take enough care to avoid the accident and, therefore, there was total negligence on the part of the bus driver, therefore, the Claims Tribunal was not justified in attributing 90% negligence on the part of the driver of the Maruti Van.
(2) The Claims Tribunal committed serious error in awarding Rs.11,97,000.00 as loss of future income. Respondent No.1 claimant was serving as Head Clerk in Vivekanand Arts College. The disability suffered by the claimant as a result of the accident has not resulted into loss of earning capacity. After the accident, the claimant has been serving on the same post and her salary has in fact been increased. Looking to the job performed by her as a Head Clerk, loss of two legs because of the accident has not affected her earning capacity, therefore, the Claims Tribunal was not justified in granting any amount to the claimant towards loss of future income. As held by Hon'ble the Apex Court in case of RAJ KUMAR VERSUS AJAY KUMAR AND ANOTHER (2011) 1 SCC 343, where the claimant suffers permanent disability as a result of the injury, assessment of compensation under the head of future earning capacity is dependent upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. The Tribunal should consider the effect and impact of disability on the activities of the claimant to ascertain as to whether the claimant can still carry out the same activity after the accident. The Tribunal should take an active role to ascertain true and correct position so that it can assess 'just compensation”. Though there is an evidence that the claimant has not suffered any actual loss of future income, the Claims Tribunal has still awarded compensation under this head contrary to the principles laid down by Hon'ble the Apex Court in the above referred decision.
(3) The Claims Tribunal has gravely erred in awarding Rs.4,49,767.00 under the head of medical expenses. The Claimant has already got medical reimbursement under the Medi Claim Policy from the another Insurance Company and as per the decision of Hon'ble the Apex Court in case of National Insurance Company Ltd. Versus Sebastian K. Jacob reported in (2009) 4 SCC 778 , the claimant was not entitled to claim the amount of medical expenses from the two different insurance companies.
(4) The Claims Tribunal also committed gross error in awarding Rs.1,00,000.00 under the head of Pain, Shock and Suffering to the claimant as also Rs.1,44,000.00 under the head of future expenses for artificial leg.
5. Learned Advocate Ms. Archana Patel appearing for learned Advocate Mr. Hardik C. Raval for respondent No.4 GSRTC has made the following submissions:
(1) The Claims Tribunal has not committed any error in holding the driver of Maruti Van negligent to the extent of 90% for causing the accident. In fact, the driver of the Maruti Van coming from the opposite side with full light was on a wrong side which resulted into dashing of the Van with the ST Bus and as a result of his own negligence, the claimant suffered serious injuries, therefore, the Claims Tribunal ought to have attributed 100% negligence on the part of the driver of the Maruti Van. FIR as also the Panchanama and even the evidence of the claimant would clearly go to show that it was the driver of the Maruti Van who saw the bus coming on the right side from the opposite direction, still made the Maruti Van to dash with right front side of driver which resulted into causing serious injuries to himself and claimant, therefore, the Claims Tribunal was justified in holding the driver of the Maruti Van negligent to the extent of 90%.
6. Learned Advocate Ms. Renu Singh appearing for learned Advocate Mr. YN Ravani for the claimant has made following submissions:
(1) Because of the composite negligence on the part of the driver of the two vehicles, claimant suffered serious injuries resulting into amputation of both the legs of the claimant and as per the medical certificate, permanent disability sustained by the claimant is assessed by the claims Tribunal at 95% and because of such permanent disability, the claimant has not been in a position to function in the same manner in which she was functioning prior to the accident, and what is granted by the Claims Tribunal under the head of loss of future income is also on lower side and is required to be suitably enhanced.
(2) Because of the injuries suffered by the claimant in the accident, the claimant has suffered great potential disability and her future prospects are vitally affected and impaired permanently. The Claims Tribunal has not at all considered this aspect of the matter properly, therefore, claimant has to file the Cross Objection claiming higher amount of compensation.
(3) The Claims Tribunal has also committed gross error in awarding only Rs.1,00,000.00 under the head of pain, shock and suffering. Considering the prolonged treatment undergone by the claimant, severe pain and shock and the mental agony suffered by the claimant, the Claims Tribunal ought to have awarded Rs.5,00,000.00 towards the pain, shock and suffering.
(4) The Claims Tribunal has failed to award any amount towards the loss of amenities and enjoyment of life. The injuries sustained by the claimant in the accident has made the claimant to suffer every moment of enjoyment of life as a lady. The Claims Tribunal ought to have awarded at least Rs.3,00,000.00 on this count.
(5) The Claims Tribunal has not awarded adequate amount under the head of attendant charges. As a result of amputation of two legs, the claimant requires constant support and therefore award of only Rs.5,000.00 towards the attendant charges is on lower side. In fact, the Claims Tribunal ought to have considered Rs.2500.00 per month towards the attendant charges and such attendance would be required by the claimant at least for more than 10 years, therefore, the claims tribunal ought to have awarded Rs.3,00,000.00 towards the attendant charges.
(6) The Claims Tribunal committed grave error in awarding only Rs.1,44,000.00 towards expenses for future artificial limb and only Rs.1,30,000.00 towards incurred and future transportation charges. The Claims Tribunal ought to have Rs.2,50,000.00 for future artificial leg and Rs.2,50,000.00 towards incurred and future transportation charges. Therefore, the Cross Objection for additional amount of compensation of Rs.8,00,000.00 is required to be allowed and the appeal of the Insurance Company is required to be dismissed.
(7) Relying on the judgment of the Hon'ble Supreme Court in case of Laxman alias Laxman Mourya versus Divisional Manager, Oriental Insurance Company Limited and another, reported in (2011) 10 SCC 756,, she submitted that the efforts should always be made to award just compensation not only for the physical injury and loss of income but also for pain, shock and trauma caused to the victim and for loss of amenities including loss of marriage aspects and enjoyment of life. In the said case, though the victim had suffered 38% disability to the body as a whole, the Hon'ble Supreme Court had awarded Rs.1,50,000.00 for pain, shock and trauma and Rs.2,00,000.00 for loss of amenities including loss of marriage prospects.
7. We may first consider the issue of negligence. We have on record the FIR at Exh. 62. The FIR was lodged by the respondent No.3 Shri Baldevbhai Kalabhai Desai, driver of ST Bus. He stated that when his bus passed Nadiad and was going towards Anand and was about to reach Uttar Sanda, one Maruti Van came from the opposite direction with full light and he was dazzled by such bright full light and his bus dashed with the Maruti Van as a result of which, he lost control over the bus which then went into the ditch by the side of the road. After getting down from the bus, he saw that the Maruti Van also went down in the ditch on its left side of the road and the persons sitting inside the Maruti Van received injuries and since many persons got together, he fled away the scene of accident and went to the police station and lodged the FIR. This very informant is examined as witness No.4 on behalf of the ST Corporation at Exh. 57. In his deposition, while saying that he was dazzled with the bright full light of the Maruti Van coming from the opposite direction, he stated that his bus was going slow on the curve of the road and he was about to reach the bus station within two to five minutes and during that time, when he saw Maruti Van coming from the opposite direction, he took his bus to the left hand side but the Maruti Van dashed with the bus on the rear portion of the driver side. He, however, stated in the cross examination that the light of the ST Bus have more capacity than the lights of the Maruti Van and the reflection of lights of the ST Bus are from more height than the lights of Maruti Van and the seat of the driver of the bus is also at more height than the seat of the driver of the Maruti Van. He also stated that on the curve of the road, ST Bus should go slow and he also agreed that if the Maruti Van dash with the right hand side of the ST Bus, the direction of the Maruti Van would change.
8. We have also on record the panchanama of the scene of accident at Exh. 63. As per the panchanama, the bus was found facing east side and the Maruti Van was found facing west side. Substantial portion of the Maruti Van on its left hand side was broken apart the damage was assessed at Rs.40,000.00 to the Maruti Van. The road is stated to be south-north. Before we weigh and assess the negligence of the drivers of both vehicles, we may refer to the principles laid down by our High Court in the decision in case of Rehana Rahimbhai versus Transport Manager, Ahmedabad Municipal Transport Service, AIR 1976 Gujarat 37, as per which those who are moving with heavy and mechanically operated vehicles in route, driver bear greater responsibility not only towards the pedestrian and cyclist but also towards equally heavier and speedier vehicles and, therefore, to drive their vehicles in such a manner that they can stop them and take them into control within friction of moment to avoid the collision. Driver of such vehicle should always be on proper look out and watch the road behaviour of all the pedestrians moving on the road. This does not mean that the whole blame is on the driver of the heavier vehicle. Now, referring to the facts, stated in FIR, wherein it is stated that driver of bus was dazzled with the full light of the Maruti Van, and considering the damage and position of Maruti Van shown in panchnama coupled with the fact that the accident happened on the curve of the road which was near to bus stand, there are all reasons to believe that Maruti Van must have rushed into the curve in excessive speed and driver of Maruti Van could not have avoided accident. However, it is not possible to believe that the bus driver had taken enough care to avoid the accident on seeing Maruti Van which suddenly came from opposite direction. In our view, the bus being a bigger vehicle and its driver owes responsibility to avoid accident and since even as per the evidence of the bus driver, he was dazzled with the full lights of the Maruti Van, in our view, the bus driver was negligent at least to the extent of 25%. Therefore, the Tribunal was not justified in holding the bus driver negligent to the extent of only 10%. We, therefore,hold the driver of Maruti Van negligent to the extent of 75% and the driver of the bus negligent to the extent of 25% for causing the accident as a result of which the claimant sustained injuries.
9. We may now deal with the issue of quantum of compensation awarded by the claims tribunal. As per the contention of learned Advocate Shri Mehta, the permanent disability sustained by the claimant has not resulted into any economic loss or loss of earning capacity to the claimant. He contends that the claimant was not entitled to any amount under this head and the Claims Tribunal was not justified in awarding Rs.11,97,000.00 towards the loss of future income. In case of Raj Kumar (Supra), Hon'ble the Supreme Court has held that the Claims Tribunal should hold an inquiry into the claim by taking active role to assess just compensation. It is laid down that the percentage of permanent disability with reference to the whole body of a person cannot be assumed to be the percentage of loss of earning capacity. In the present case, we find that the Claims Tribunal has assessed loss of future income by taking same percentage of permanent disability as the percentage of loss of earning capacity. However, one thing cannot be lost sight of that the claimant has lost both her legs. Though we are informed that she was forced to resign because of her incapacity to work, there is no material placed before us. But, considering her age at the time of accident, the decision of Hon'ble the Supreme Court in the case of Raj Kumar (Supra) as also the fact that the claimant continued to serve even after the accident, substantial reduction in the amount awarded under the head of loss of future income is called for. However, while doing so, we cannot ignore to consider her future potentiality in functioning because of amputation of both the legs. We are, therefore, of the opinion that instead of Rs.11,97,000.00 awarded by the Claims Tribunal as loss of future income, interest of justice will be served if Rs.4,00,000.00 is awarded towards the loss of future income. We accordingly hold that the claimant would be entitled to an amount of Rs.4,00,000.00 under the head of loss of future income.
9.1. This brings us to consider as to whether amount awarded under other heads are just and proper. We are of the opinion that the Claims Tribunal has awarded less compensation under the other heads. In the case of Govind Yadav versus New India Assurance Co. Ltd., reported in 2011-10-SCC page 683, Hon'ble the Supreme Court has held that if the victim is suffering from permanent disability, then, adequate compensation should be awarded not only for physical injury and treatment but also for the loss of earning capacity and inability to live normal life and enjoy amenities. As it is not possible to make the precise assessment of the pain suffered by the disabled person and future handicap and the stigma likely to be suffered by such a person, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. In the said case, one limb of the victim was amputated and the Hon'ble Supreme Court awarded Rs.1,50,000.00 in lieu of the pain, shock and suffering caused due to amputation of leg and Rs.2,00,000.00 towards the cost of artificial limb and the expenses incurred in periodical replacement of artificial limbs for future treatment and Rs.1,50,000.00 awarded towards the loss of amenities and enjoyment in life.
10. In the present case, the Claims Tribunal has awarded only Rs.1,00,000.00 towards the pain, shock and suffering, Rs.5,000.00 for special died and attendance charges, Rs.1,44,000.00 towards the expenses for future artificial limb. The Claims Tribunal has, however, not awarded any amount for the loss of amenities and enjoyment of life. It is very hard and difficult to assess the suffering of pain, shock and trauma of claimant lady who lost her both legs. Considering her long hospitalization and operation performed on her, we are of the opinion that the claimant in the present case is entitled to Rs.2,50,000.00 towards the pain, shock and suffering; Rs.2,50,000.00 towards the loss of amenities and enjoyment of life; Rs.2,00,000.00 for special diet and attendance charges for her whole life and Rs.2,00,000.00 towards the expenses for replacement of artificial limbs from time to time in future. The claimant shall be thus entitled to following amounts:
The total amount of compensation would come to Rs.19,34,767.00 and on rounding it would come to Rs.19,35,000.00. The claimant would thus be entitled to Rs.19,35,000.00 as compensation with 9 per cent interest. 75% thereof with proportionate costs and interest will be required to be paid by respondent No.1 and 2 and the remaining 25% thereof will be required to be paid by respondents No.3 and 4 with proportionate costs and interest.
11. Learned advocate for the appellant also submitted that the claimant who had already received some amount under the Medi Claim Policy from another insurance company is not entitled to receive any amount towards the medical expenses from the insurer in the present case. We find that the decision of Hon'ble the Supreme Court in case of National Insurance Company Ltd. Versus Sebastian K. Jacob (supra) relied by him is on different facts and cannot be applied to the facts of the present case. In the said case, there were two different insurance companies for two different vehicles involved in the accident and out of those two different insurance companies, the claimant had already received amount of medical expenses from one of the companies which was the insurer of one of the vehicles. In the present case, respondent No.1 has not received any amount of medical expenses either from the insurer of Maruti Van or from the GSRTC prior to the award of medical expenses passed by the Claims Tribunal. What was received by the claimant is the amount under her independent medi-claim policy, therefore, it cannot be said that the claimant is receiving double amount under the same head. In fact, this Court in the case of Revaben, wd/o. Nathubhai Mohanbhai v/s. Kantibhai Narottambhai Gohil reported in 1994 (8) GLR 1728 has settled this issue by holding that the tort-feasor is liable to pay damages for his tortious act and cannot be permitted to take advantage of his own wrong. It is required to be mentioned that for medi-claim policy, separate premium is required to be paid and only then, a person is entitled to claim the amount incurred for medical treatment on the basis of such medi claim policy and, therefore, what is being received under the medi-claim policy is an independent right other than the claim under the Motor Vehicles Act and, therefore, argument advanced by the learned advocate for the appellant is devoid of any merits and stands rejected.
12. In the result, the appeal as also the Cross Objections are partly allowed to the extent stated above. Respondent No.1 claimant is held entitled to receive the total compensation of Rs. 19,35,000.00 with 9 per cent interest per annum. The appellant and respondent No.2 shall jointly and severally pay to the claimant 75% of the above said amount of compensation and respondent No.3 and 4 shall jointly and severally pay 25% of the above said amount of compensation with proportionate costs and 9% interest per annum. The appellant and respondents no.3 and 4 are directed to deposit the above said amount of compensation with costs and interest in the proportion of their liability before the Claims Tribunal within six weeks from the date of pronouncement of this judgment and order, if such amount is not deposited or falling short.
13. The judgment and award dated 6th October, 2007 passed by the Motor Accident Claims Tribunal (Auxi.), Fast Track Court-3, Bharuch in Motor Accident Claim Petition No. 440 of 2004 stands modified accordingly.
Sd/- (Jayant Patel,J.) an vyas Sd/- (C.L. Soni,J.) After the pronouncement of the judgment, it was submitted by the learned counsel appearing for the appellant insurance company that the court may give appropriate directions for withdrawal and investment and may also observe that the amount under additional liability of 15% of compensation together with the interest and cost which is to be borne by the GSRTC may directly be paid to the appellant-insurance company since it has already deposited 100% amount of compensation with the interest and cost as prevailing then as held by the Tribunal.
As per the present judgment, the GSRTC will have an option to deposit the remaining balance amount, if any, with the Tribunal minus the amount if already deposited, but with the observation that it would also be open to the GSRTC to directly pay to the insurance company, if it so chooses, after verifying that the insurance company has already deposited the amount. In the event the amount is deposited with the Tribunal by GSRTC, the appellant insurance company would be entitled to the refund of the amount of 15% towards total liability but such aspect is to be dealt with by the Tribunal on the basis of the circumstances as may prevail in future. On the aspect of withdrawal and investment we find that it would be appropriate to permit withdrawal to the extent of 20% to the original claimants and 80% of the amount shall remain invested with the Nationalised Bank by the Tribunal in the Fixed Deposit Receipt for a period of 4 years with the condition that the original claimants shall be entitled to periodical interest as and when it becomes due. Ordered accordingly.
Sd/- (Jayant Patel,J.) an vyas Sd/- (C.L. Soni,J.)