(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. These appeals arise out of a common judgement and award dated 30.07.2001 passed by Motor Accident Claims Tribunal (Auxi), Ahmedabad (Rural) in Motor Accident Claim Petition No. 1794 of 1990 and Motor Accident Claim Petition No. 428 of 1991.
2. Facts may be noted at the outset:
2.1 On 05.06.1990, one ambassador car bearing registration No. GAJ-9399 was travelling with two passengers Mr. Shudhir Dandekar and Mr. Bulusu Sastry, both sitting on the back seat of the car. At about 16.45 hours, the ambassador car tried to cross Sarkhej- Gandhinagar highway in outskirts of city of Ahmedabad. Car was coming from Ahmedabad side going towards Thaltej village, at which point of time, a truck bearing registration No. GQY 4956, travelling on the highway, came from Sarkhej side. The vehicles collided. The driver of the ambassador car received minor injuries. The other two passengers, however, received serious injuries. The driver took the injured passengers to a government hospital. A complaint with respect to such accident was lodged by the driver of the ambassador car.
2.2 Mr. Shudhir Dandekar received extensive bodily injuries. He was rendered completely immobile and bedridden. His spinal cord was damaged rendering him quadriplegia. He had to receive extensive medical attention. He was treated at Ahmedabad and Mumbai. His condition did not improve. Eventually, after suffering such unfortunate fate for over three years, Mr. Sudhir Dandekar expired on 05.10.1993. His co-passenger Mr. Bulusu Sastry also received injuries principally on the head. He was also treated by different doctors from time to time. His case is that such injuries left permanent damage to his brain resulting into reduced mental abilities, recurrent bouts of depression and forgetfulness.
2.3 Mr. Sudhir Dandekar was, at the time of accident, employed as Deputy General Manager in Gujarat Industrial Investment Corporation Ltd. (G.I.I.C. for short). He had himself filed Claim Petition No. 1794 of 1990 seeking compensation of Rs. 18 lacs from the driver, owner and insurance company of the truck involved in the accident. Since during the pendency of the claim petition, the original claimant died, his heirs which included his widow, two sons and aged parents were brought on record. They pursued the claim petition. The claims tribunal, in the impugned award, came to the conclusion that the drivers of the truck as well as the ambassador car were negligent in the ratio of 60%:40% respectively. The claims tribunal awarded compensation of Rs. 13,78,800/- to the heirs of the deceased Mr. Sudhir Dandekar. The tribunal also awarded compensation of Rs. 9,32,000/- to injured Mr. Bulusu Sastry.
3. First Appeal No. 5266 of 2001 is filed by owner of the truck involved in the accident challenging award of the claims tribunal passed in M.A.C.P No. 1794 of 1990. In this appeal, the claimants i.e. the heirs of the deceased Sudhir Dandekar have filed Cross Objection No. 28 of 2009. Likewise, the Oriental Insurance Company, insurer of the ambassador car, has also filed Cross Objection No. 25 of 2009, principally on the issue of negligence.
4. First Appeal No. 5267 of 2001 is also filed by the owner of the truck. In such appeal, he has challenged the award of the claims tribunal passed in M.A.C.P. No. 428 of 1991. In such appeal Mr. Shastri, the claimant, has filed Cross Objection No. 27 of 2009. Here also, Oriental Insurance Company, the insurer of the ambassador car, has preferred Cross Objection No. 26 of 2009 mainly on the question of negligence.
5. Insofar as the accident in question, the fact that two passengers in the ambassador car received serious bodily injuries during such accident and the involvement of the two vehicles in such accident, there was no serious dispute raised before the claims tribunal. With respect to the question of negligence, the claims tribunal noted that the Sarkhej-Gandhinagar highway was having width of 48 ft. The ambassador car which was trying to cross over the highway coming from Ahmedabad side going towards Thaltej was passing on a road 14 ft width. The tribunal, taking note of the deposition of Mr. Shastri, who himself was an eye witness and after taking into consideration deposition of the driver of the truck and the panchnama of scene of accident, came to the conclusion that the truck driver was negligent to the extent of 60% and the driver of the ambassador car was negligent to the extent of 40% in causing the accident.
6. With respect to the claim petition filed by Mr. Sudhir Dandekar, the claims tribunal noted that he was working as Deputy General Manager in G.I.I.C. He was Civil Engineer and also had a post graduate degree in Material Management. He was working for G.I.I.C. since 17 years and drawing a salary of Rs. 9,000/- per month. Before the tribunal, the claimants examined widow of the deceased. One Kiranbhai Vishnubhai Sinte (Exh. 134), an employee of G.I.I.C. working as Senior Accounts Manager was also examined. He also produced before the court, details of the salary of the deceased and the pay structure of G.I.I.C.
7. On the basis of such evidence, the tribunal found that the deceased would have retired at the age of 60 years, if he would not died earlier. The tribunal considered the salary of the deceased at Rs. 8,215/- per month at the time of accident and thereafter, considering future possible increase, adopted a sum of Rs. 10,000/- per month for calculating the future loss of income of the deceased. Setting apart one third for the personal expenditure of the deceased, the tribunal worked out a sum of Rs. 6,700/- per month or Rs. 80,400/- per annum towards the dependency benefit of the family.
8. Considering the fact that the deceased survived for forty months after the accident, the tribunal awarded sum of Rs. 8,215/- per month for such period and thereby awarded a sum of Rs. 3,28,600/- under the head of actual loss of income.
9. The tribunal, looking to the age of retirement being 60 years, the age of deceased which was 40 years at the time of accident and after considering the evidence as a whole including the fact that the deceased survived for a considerable period of time after the accident, adopted a multiplier of 8. The tribunal thereupon awarded a sum of Rs. 6,43,200/- (i.e. Rs. 6,700 x 12 x 8) towards the dependency benefits of the family of the deceased.
10. The tribunal took into account the extensive medical treatment that the deceased had to undergo and the bills produced by the claimants for such treatment. The tribunal granted Rs. 2,17,000/- towards such expenditure including a sum of Rs. 41,300/- for physiotherapy. The tribunal did note that the employer i.e. G.I.I.C. had paid a sum of Rs. 1,32,159/- towards medical reimbursement. However, the tribunal did not adjust such payment against the medical claim.
11. The tribunal awarded a sum of Rs. 75,000/- towards pain, shock and suffering and loss of amenities of life. The tribunal awarded further sum of Rs. 1 lac towards special diet, conveyance and attendant charges. The tribunal awarded sum of Rs. 15,000/- for loss of expectation of life. In all, the tribunal awarded a sum of Rs. 13,78,800/- to the claimant as under :
12. In Motor Accident Claims Petition No. 428 of 1991 filed by injured Shri Bulusu Sastry, the tribunal found that he was working in a private company viz. Gujarat Himalaya Cements Ltd., as a President. After accident, he lost the job because the company had closed down. He had fresh offers but not as a remunerative.
13. The tribunal referred to the medical certificate and the evidence of the expert certifying that Mr. Bulusu Sastry had suffered permanent disability assessed at 65% of the body as a whole. The tribunal, however, was of the opinion that such assessment was on the higher side and accepted disability of 35% as a whole. Assessing the income of the injured at Rs. 15,000/- per month at the time of accident, the tribunal adopted a sum of Rs. 5,250/- per month towards loss of income applying 35% reduction. The injured was aged 51 years at the time of accident. The tribunal applied multiplier of 9 and computed future economic loss of Rs. 5,67,000/-. The tribunal awarded sum of Rs. 50,000/- towards pain, shock and suffering and granted actual loss of salary for 20 months @ 15,000/- per month which worked out to Rs. 1,80,000/-. The tribunal awarded Rs. 35,000/- towards attendant charges, special diet and conveyance and further sum of Rs. 1 lac for medicines, medical treatment and other expenses. In all, the tribunal awarded, compensation of Rs. 9,32,000/- as follows:
14. We would first address the question of negligence. Before the tribunal, F.I.R. lodged by the driver of the ambassador car was produced at Exh. 43. In the F.I.R., driver Nathabhai Karsanbhai Solanki stated that, on 05.06.1990, he was travelling in the car along with the President of the Company, Mr. Shastri. At 16.45 hours, when they were crossing Thaltej crossroads, a truck came with full speed and dashed against the car on the left hand side which caused injuries to Mr. Shastri and the General Manager of G.I.I.C. He shifted such injured persons to the V.S. Hospital in the emergency ward.
15. Panchnama of the scene of accident was produced at Exh. 44. It showed that the Sarkhej-Gandhinagar highway had a width of 48 ft. The road coming from Ahmedabad and going towards Thaltej after crossing the highway, had a width of 14 ft. The ambassador car was lying on the road. While crossing the crossroads, the ambassador car was hit by the truck. Headlights of the truck was damaged and the front portion also had received damage. The ambassador car was lying at a distance of 12 feet measured from the rear portion of the car from the edge of the road on the northern side.
16. The driver of the truck, Devkaranbhai Vishrambhai, was examined at Exh. 143. He stated that when he was driving at a speed of about 30 to 35 k.m. and was crossing the Thaltej crossroads, the ambassador car came and dashed against his truck. In the cross-examination, he stated that before the accident, he had not seen the car. He denied that his truck was being driven at a high speed.
17. The injured, Mr. Bulusu Sastry was also examined at Exh.
93. He stated that when the car reached Thaltej crossroads, the truck came and dashed against their car.
18. This in essence, is the evidence with respect to the manner in which the accident took place. From the evidence on record, it clearly emerges that the accident took place right on the crossroads in the outskirts of city of Ahmedabad on a highway leading from Sarkhej (a suburb of Ahmedabad) going towards Gandhinagar. The ambassador car was trying to cross the highway.
The highway had a width of 48 ft. The lane crossing the highway was 14 ft wide. In that view of the matter, when the ambassador car driver was crossing the national highway, and coming from a narrow lane, it was his duty to ensure that no vehicle was coming from either side of the highway. Naturally, the vehicles being driven on a national highway which was as wide as 48 ft way back in the year 1990, would be driven at considerable speed. Any driver of a vehicle trying to cross such a highway, would have the primary duty to take care that he does so without causing risk of an accident. The ambassador car ought to have slowed down ensuring that no vehicle was coming on the highway and thereafter ought to have negotiated the crossroads. Apparently, this was not done. Neither the driver in his F.I.R. stated so, nor the witness Mr. Bulusu Sastry in his deposition stated that the driver of the ambassador car slowed down his vehicle to ensure that no vehicle was passing on the highway before entering the highway to cross it.
19. This, however, does not mean that the driver of the truck was not negligent at all. In his deposition, he admitted that he had not even seen the ambassador car before the accident took place. May be that he was driving his truck on a highway and may be the basic duty to take care of the traffic on the highway was of the driver of the ambassador car coming from the narrow by-lane, nevertheless, the driver of the truck was in charge of a much heavier and bigger vehicle and so owed a basic duty to drive his vehicle in such a manner that no unfortunate incident or accident happens. He obviously failed in discharging such duty. Firstly, he was not even aware of an ambassador car trying to cross the highway. Secondly, there is neither any statement of the truck driver having applied his breaks nor there are any break marks noticed in the panchnama. In the result, we are of the opinion that even the truck driver cannot be completely absolved of the liability of causing the accident.
20. In the facts of the case, we hold the truck driver negligent to the extent of 40% whereas 60% negligence would be attributable to the driver of the ambassador car.
21. Counsel, Mr. Shelat for the Oriental Insurance Company, however, vehemently contended that the truck driver had to give way to the ambassador car which was coming from a direction which was on the right hand side. In this respect, he relied on Regulation Nos. 8 and 9 of The Rules of The Road Regulations, 1989. Reliance was also placed on the decision of the Apex Court in case of Smt. Sarla Dixit & Anr. Vs. Balwant Yadav & Ors. reported in AIR 1996 SC 1274.
22. Regulation 8 of the said Regulations provides that driver of a motor vehicle shall slow down when approaching a road intersection, a road junction, pedestrian crossing or a road corner, and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety of persons thereon. Likewise Regulation 9 provides that the driver of a motor vehicle shall, on entering road intersection at which traffic is not being regulated, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand.
23. In fact, to our mind, these regulations would go against the driver of the ambassador car. Firstly, as per Regulation 8, he had the duty to take care that while approaching the road intersection, he had to do so without endangering the safety of persons thereon. Further, Regulation 9 lays down the basic principle that the traffic on the main road has a precedence over the traffic entering from by-lane which has to give way to the vehicles proceeding along such main road. In other cases, the traffic to the right hand would have the first right of way. In the present case, the motor car was negotiating a Junction on a highway. The motor car was coming from a narrow lane.
24. The decision in case of Sarla Dixit (supra) was rendered in a different factual background. Firstly, question of negligence would necessarily be purely a question of fact to be judged on the facts of each case. In the present case, we have found that the motor car was trying to cross over the major highway coming from a narrow by- lane. Before Supreme Court it was a case, where the scooterist had already entered the cross-roads and was about to go to other side of the road when the truck dashed against him causing his death. Both the roads apparently had equal width. The decision of the Apex Court in case of Sarla Dixit (supra) therefore, would not apply in the present case.
25. We now take up the question of compensation awarded to the heirs of deceased Sudhir Dandekar. We may recall that this was a peculiar case where the person received serious bodily injuries. He, however, survived for nearly forty months after the accident. He died also on account of such injuries. The appellant has not raised any dispute about the fact that cause of death was the injuries received by Mr. Shudir Dandekar in the accident.
26. Even otherwise we have reliable medical evidence in this respect. Dr. Sanjay Pandit, Exh. 131 stated that he had treated Mr. Dandekar. He was admitted as an indoor patient from 20.07.1990 to 23.08.1990 in the hospital in which Dr. Pandit was working at the relevant time. Due to quadriplegia, the patient was admitted with chest infection, urine infection and back sores. He was referred to Aurtho Surgeon for rehabilitation. Dr. Manoj Desai, thereafter, treated him. He emphatically stated that such complications are most common in case of patients of quadriplegia and that patient of quadriplegia never fully recovers, and ultimately, dies due to such causes. To this medical opinion, the original opponents raised no serious doubt. In fact, in his cross-examination, he further explained that, in cases where quadriplegia is developed, in a rare case, the patient could survive.
27. Two things are thus, clearly established. Firstly, that Mr. Dandekar received injuries during the accident which damaged his spinal cord resulting into quadriplegia. This rendered him completely immobile and bedridden. Secondly, that such injury and resultant condition of the patient, ultimately caused his death.
28. In the present case, therefore, the need has arisen to assess the compensation to be paid to the heirs of the deceased in two parts. We would have to assess the actual loss of income for the period during which the deceased survived after the accident. After the death, the case would be treated as one, in which the accident resulted into death of the person and compute the future economic loss to which the dependents and legal heirs of the deceased would have to be compensated.
29. Ms. Sunitaben Dandekar, wife of the deceased, was examined at Exh. 69. She stated that the deceased was a Civil Engineer and was also holding post graduation degree in Material Management. At the time of the accident, he had put in 17 years of service in G.I.I.C. He was drawing salary of Rs. 9,000/- per month. Such income would have increased to Rs. 21,000/- had the deceased worked till the age of retirement. In addition to the salary, the deceased was receiving other benefits such as medical reimbursement for the entire family, first class A.C.fair in block of four years etc.
30. Claimants examined Mr. Kiranbhai Vishnubhai Sintre at Exh. 134. He was a Senior Manager (Accounts) of G.I.I.C.
He stated that on the date of the accident, the salary of deceased was Rs. 8,215/- per month. He was Deputy Manager in the scale of Rs. 2500-3100. With effect from 01.01.1986, pay scales were revised as per the recommendation of the pay commission and the scale of the Deputy Manager was revised to 5900-7000. Such revision, however, was granted in the year 1992. The retirement age was 60 years. If the deceased had worked till such age, he would have drawn the salary of Rs. 17,300/- on the date of the retirement. He produced at Exh. 135, the calculation of salary that the deceased would have received had he continued in service. He calculated that had the deceased rendered full service, he would have received total remuneration of Rs. 19,53,000/-.
He stated that G.I.I.C had reimbursed a sum of Rs. 1,34,747/- towards medical expenditure on the basis of original bills produced by Mr. Dandekar.
31. From the above, it can be seen that on the date of accident, the deceased was drawing salary of Rs. 8,215/- per month. The accident took place on 05.06.1990. Such salary the deceased was drawing as Deputy Manager in the pay scale of Rs. 2500-3100. Upon implementation of the pay commission recommendation, such scale was revised to 5900-7000. Such pay revision was granted only in the year 1992 but with retrospective effect from 01.01.1986. On the date of the accident, the salary, that was actually paid, was in the pre-revised scale which was later on with retrospective effect revised. Another factor that shall have to be borne in mind is that the service of the deceased was terminated in December,1990. For the period between 05.06.1990 i.e. date of accident till 05.10.1993, i.e. the date when Mr. Dandekar expired, for a period of forty months, the Claims Tribunal has worked his actual loss of income on the basis of his salary of Rs. 8,215/- per month. We notice two minor errors in such computation. Firstly, the tribunal has not made any deduction for the income-tax that the deceased would have to pay on the gross salary. Ordinarily, we also would have made necessary adjustment for income-tax. In the present case, however, another error committed by the tribunal was not to take into account the effect of pay revision. As noted earlier, pay commission recommendations were implemented in the year 1992, with retrospective effect from 01.01.1986. The old pay scale of Rs. 2500-3100 was revised to Rs. 5900-7000. Such pay revision would have resulted into considerable higher salary of the employee. We are of the opinion that such higher pay pursuant to implementation of the pay commission recommendation would substantially offset the income-tax which the tribunal omitted to deduct from the gross salary of the deceased for the period of forty months during which the deceased actually survived. In that view of the matter, we are not inclined to disturb the tribunal's computation of actual loss of income at Rs. 3,28,600/-.
32. With respect to the dependency benefit, however, a different picture emerges. We may recall that the deceased died at the age of 53 years. The tribunal assessed the future loss or the dependency benefit on the basis of income of Rs. 8,215/- per month and thereafter, deducted one third thereof, leaving remaining Rs. 6,700/- for the family. The tribunal adopted a multiplier of 8.
33. In the present case, it has already come on record that even while the deceased was alive, the employer G.I.I.C. had accepted the recommendation of the 5th Pay Commission. Pursuant to such recommendation, which was implemented in the year 1992 but with retrospective effect from 01.01.1986, the pay scale was revised to 5900-7000. The Manager (Accounts) had produced on record, the possible salary of the deceased in such revised scale. Even while he was alive, in month of January,1991, he would have received a gross salary of Rs. 10,410/-. Additionally, he would also have received certain perquisites in the form of several allowances and other benefits. In the month of January,1993 his gross salary would have reached Rs. 12,230/-.
34. Considering such concrete evidence on record, we are of the opinion that the entire entitlement of the dependents, after the death of the deceased, cannot be worked out on his original salary of Rs. 8,215/- in the pre-revised scale. Two factors must be borne in mind. Firstly, the pay revision was effected even while the deceased was still alive and in fact was given retrospective effect on 01.01.1986 when deceased was in active service. Secondly, pursuant to such pay revision, considerable increase in the salary was granted to other employees by G.I.I.C. In that view of the matter, we would accept the basic figure of Rs. 12,500/- as gross salary of the deceased on the date of his death. His yearly gross salary wold therefore be Rs. 1,50,000/-. Income Tax Ready Reckoner for the year under consideration shows that there was standard deduction of Rs. 15,000/- for salaried assessees. Taxable income of the deceased would thus be reduced to Rs. 1,35,000/- per year. From such income, he would get further deduction for investments in specified schemes such as PF and PPF. Counsel for the Insurance Company submitted that there was no evidence that the deceased was making any such savings. We can however take judicial notice of the fact that contribution in GPF at the rate of minimum of 10% of the basic salary is compulsory for government and semi-government organizations. Giving such benefit or deduction, we may round off the taxable income of deceased at Rs. 1,20,000/- per year. Ready Reckoner tells us, he would have paid income tax including surcharge of Rs. 30,000/- Thus, take home income of deceased would come to Rs. 1,20,000/- i.e. Rs. 1,50,000/- - Rs. 30,000/- Over such take home salary, he would further get 30% increase for future increase. The salary of the deceased for the purpose of computing future loss of income would thus come to Rs. 13,000/- per month or Rs. 1,56,000/- per year. One third of that amount i.e. Rs. 52,000/- would have to be set apart for personal expenditure of the deceased, leaving Rs. 1,02,000/- for the benefit of the dependents.
35. We are conscious that the Apex Court, in case of Sarla Dixit (supra.), has emphasized that ordinarily, in case of person over the age of 50 years, there should be no addition over and above the current income found by the Court. However, in the very same decision, the Apex Court observed that addition could be made in special circumstances. The decision in case of Sarla Dixit was noticed by the Apex Court in decision in case of K.R.Madhusudhan and ors. Vs. Administrative Officers and anr. reported in 2011 4 SCC page 689. The Apex Court observed as under:
“8. In Sarla Verma1 judgement the Court has held that there should be no addition to income for future prospects where the age of the deceased is more than 50 years. The learned Bench called it a rule of thumb and it was developed so as to avoid uncertainties in the outcomes of litigation. However, the Bench held that a departure can be made in rare and exceptional cases involving special circumstances.
9. We are of the opinion that the rule of thumb evolved in Sarla Verma is to be applied to those cases where there was no concrete evidence on record to definite rise in income due to future prospects. Obviously, the said rule was based on assumption and to avoid uncertainties and inconsistencies in the interpretation of different courts, and to overcome the same.”
36. Having so observed, the Apex Court granted benefit of future increase in salary in case, where deceased was 52 years of age at the time of accident. He was a Senior Assistant in Karnataka Electricity Board. His salary, at the time of accident, was 15,642/-. The Apex Court granted benefits of dependency to the claimants considering the income of the deceased at Rs. 20,000/-.
37. In the present case, therefore, we are persuaded to accept 30% increase over the net salary of the deceased from the date of the death. We reiterate that the deceased was an employee of the State owned Corporation. He was senior level executive and had already worked for 17 years at the time of accident. He was a Civil Engineer and possessed post graduation in Material management. He had atleast seven years of service left when he died.
38. We may recall that the Tribunal adopted the multiplier of 8. We find that the deceased was aged 53 years on the date of the death. Multiplier of 8 is on the lower side. Following the decision of Sarla Varma (supra.) which recommends multiplier of 11 for the person in the age group of 51 to 55, we are inclined to adopt such multiplier of 11.
39. In the result, the dependency benefits to the claimants would be worked out as follows:
Rs. 1,02,000/- X 11 = 11,22,000/-
40. The tribunal awarded a sum of Rs. 2,17,000/- towards medical treatment and medicines. This included Rs. 41,300/- for physiotherapy. Learned counsel, Ms. Jani for the appellant contended that G.I.I.C. had reimbursed a sum of Rs. 1,32,000/- towards medical expenditure. This is the only dispute raised with respect to medical reimbursement. Counsel did not seriously question the quantification of Rs. 2,17,000/- which was based on bills produced before the Tribunal. In this regard learned counsel Shri Shah for the claimants fairly conceded that there has been duplication. Medical reimbursement of Rs. 1,32,159/- granted by the G.I.I.C is required to be reduced from the sum of Rs. 2,17,000/- awarded by the Tribunal. Accordingly, the claimants shall receive Rs. 85,000/- (i.e. Rs. 2,17,000/- - Rs. 1,32,000/-) towards medical treatment.
41. This brings us to the question of pain, shock and suffering. We may recall that the tribunal has awarded sum of Rs. 75,000/- under this head.
42. Widow of the deceased Ms. Sunita Dandekar has given a detailed account of the condition of the deceased after the accident. He survived for forty months as a quadriplegia patient. His entire body movements had stopped. He was not only completely bedridden, but could not move any part of his body. He had to undergo several operations. He was kept in traction for few weeks. His immobile condition led to frequent occurrence of bed sores. Once he had to be operated for such aggravated bed sores. Eventually he succumbed to the deteriorating physical condition arising from such multiple complications.
43. Here is a case where an energetic Senior Executive of a Government Company was suddenly rendered completely bedridden, unable to move any part of his body. From the position of Deputy Manager of a State owned Corporation, he suddenly became dependent on nursing for even his daily pursuit. In such condition, he survived for over three years. He died a slow painful death.
44. Counsel for the claimants brought to our notice decision of this Court in case of Vijaykumar BaBul Modi versus State of Gujarat (Deleted) & Gujarat State Road Transport Corporation dated 23.12.2011 rendered in First Appeal No. 2071 of 2005. This Court granted Rs. 4 lacs for pain shock and suffering to the person who was rendered quadriplegic. The Court separately granted a sum of Rs. 75,000/- for loss of enjoyment of amenities of life.
45. Amount of Rs. 75,000/-, awarded by the Claims Tribunal for pain, shock and suffering and also for loss of amenities of life, therefore, clearly is on the lower side. In case of Vijaykumar (supra.) the Division Bench had also referred to and relied on the decision of Apex Court in case of R.D.Hattangadi Vs. Pest Control (India) Pvt. Ltd. and ors. reported in 1995 ACJ page 366. In the said case also, the Apex Court had granted Rs. 3 lacs for pain, shock and suffering to a person who was rendered quadriplegic due to accident.
46. We are conscious that in case of Vijaykumar (supra.), person involved in the accident was a young man aged about 18 years. In the present case, the injured was older. Additionally the injured died after about three years of the accident. We would therefore have to make some adjustments for such factors while applying the standards adopted in case of Vijaykumar (supra.). At the same time, we can not lose sight of the fact that an energetic, active Senior Executive of a Government Company was rendered completely dependent for all his activities on outside help and had to suffer multiple operations, medical treatment and frequent and recurrent bed sores.
47. Considering the facts and circumstances of the case, in our opinion, total sum of Rs. 2,50,00/- should be awarded for pain, shock and suffering and loss of amenities of life.
48. The tribunal has further awarded Rs. 1 lac for special diet, conveyance and attendant charges. Looking to the condition of the deceased, the extent of treatment that he had to undergo, the fact that he would need attendance round the clock, such amount calls for no interference.
49. The tribunal awarded sum of Rs. 15,000/- towards loss of expectation of life and awarded no amount for loss of consortium. Going by the current standards, we award sum of Rs. 25,000/- towards loss of expectation of life. Rs. 20,000/- to the consortium to the life.
50. In the result, the total compensation payable to the claimants would be worked out as under:
51. Claim before the Tribunal as well as in Cross Appeal before us however was Rs. 18,00,000/-. On such basis court fees in both courts have been paid. Claimants would therefore receive total compensation of Rs. 18,00,000/-. The claimants would thus receive additional amount of Rs. 4,21,200/- (i.e. Rs. 18,00,000/- - Rs. 13,78,800/-).
52. This brings us to the claim of injured Bulusu Sastry.
53. In his case, Dr. Balkishan Exh. 126, stated that he had given the disability certificate to the deceased. He had assessed his disability at 65% of the body as a whole. He recorded that the deceased was complaining about headache , inability to walk without support, loss of mental abilities and loss of memory. He was also suffering from mental disturbance and depression. The Doctor was of the opinion that such symptoms were on account of the head injury that the injured had received during the accident. He agreed that prior to 17.11.1988, he had not treated the injured. He was not familiar with his history.
54. Mr. Bulusu Sastry gave his deposition at Exh. 93. He stated that he was working as the President of Gujarat Himalaya Cements Ltd. He was Diploma in Mechanical Engineering. After five years of accident, he had gone to Porbandar where the factory of the company was situated. Such factory, however, had closed down. Looking to his experience, he did get job offers at Banglore and Madras. However, he did not accept such offers.
55. His daughter Shamla G. Shastri was examined at Exh. 97. She stated that after the accident, her father would go to his office at Porbandar but only sit there without doing any work. His memory had reduced. However, there was no other physical defect. He had remained bedridden for nearly one and half years.
56. The claims tribunal did accept that the head injury resulted into permanent disability. However, found the the assessment of such disability as 65% of the body as a whole adopted by the Doctor was too high. The claims tribunal noted that despite such injury he was fit to work elsewhere. The tribunal, therefore, accepted permanent disability at 35% of the body as a whole.
57. We are in complete agreement with view of the tribunal. It is true that there was some evidence on record which showed that head injury resulted into some physical discomfort as also case of diminished memory. It may also be that occasionally the injured may be suffering from depression. However, it has come on record that after the accident, injured had received fresh job offers at Banglore and Chennai. The fact that he did not accept such job offers is a different matter. The claims tribunal correctly noted that, if the mental condition of the injured was as disturbed as projected by the Doctor, it would not have been possible for him to convince other companies to offer him service in senior executive position. We may also recall that many years after the accident, the injured had, before the claims tribunal, given detailed account of the manner in which the accident took place.
Considering such factors, we are not inclined to disturb assessment of disability adopted by the tribunal though forcefully argued by the counsel for the claimant.
58. We may now take up question of assessing actual loss of income as well as future loss of income. Though witness Bulusu Sastry (Exh. 93) in his deposition, stated that he was paid salary of Rs. 20,000/- per month the letter of appointment issued by the employer Gujarat Himalaya Cements Ltd. produced at Exh. 116 showed that his consolidated salary was Rs. 8600/- per month. He was in addition to such salary entitled to certain perquisites such as a free furnished house, help of one servant for maintainable of the house, a company car with driver, leave travel assistance for the entire family up to a maximum of one month's salary in a year, medical expenses for himself and the family. On the basis of such evidence, the tribunal assessed his income on the date of the accident at Rs. 15,000/-.
59. We are of the view that the tribunal correctly came to such a figure. As noted above, as a President of a private company, his job offer letter showed his consolidated salary of Rs. 8,600/- per month. Even if we compute other perquisites in terms of monetary consideration, assessment of total emoluments of Rs. 15,000/- is just and reasonable. We may recall that the injured was aged about 51 years. H was in private employment. In absence of any proof of future increase in income and his age, by virtue of the decision of Apex Court in case of Sarla Varma, we would be inclined to accept such figure for computing his actual as well as future loss of earning.
60. On the basis of such monthly emoluments, the tribunal awarded sum of Rs. 1,80,000/- for 12 months of period during which, the injured could not discharge his duties. This was on the basis of evidence on record. The tribunal, in addition to taking into account oral testimony of Mr. Bulusu Sastry and his daughter Shamla Sastry also found that the claimant had received job offers from M/s. Ercom Consulting Engineers Pvt. Ltd. having its office at Hayderabad. Such offer of appointment letter dated 04.12.1991 was produced at Exh. 94. Yet another appointment offer was made to him by Karnataka Minerals & Manufacturing Company Ltd. under letter dated 04.01.1992 (Exh. 95). In the letter Exh. 94 the claimant was offered a consolidated salary of Rs. 6,500/- per month and other perquisites such as accommodation were offered. In the letter Exh. 95, he was offered a consolidated salary of Rs. 7,500/- per month, in addition, the company offered other perquisites such as entertainment expenditure, office expenses, and reimbursement for servants and gardner.
61. Two things emerge from such evidence. Firstly, from oral testimony of the claimant and his daughter, it can be gathered that for about one year he could not discharge his duties in any capacity due to the accident. It was, therefore, the tribunal awarded the salary for the entire period of one year by way of actual loss. Secondly that, despite his handicap resulting from the accidental injuries, he did get new offers of appointments in different companies. Such offers, though were somewhat less remunerative as compared to his previous engagement, nevertheless provided fresh engagement to the injured.
62. Bearing in mind these factors, we do not find the tribunal committed any error in awarding sum of Rs. 1,80,000/- for actual loss of income.
63. The tribunal, on the basis of income of the injured at Rs. 15,000/- per month and applying 35% reduction due to permanent disability, held that the injured would suffer loss of Rs. 5,250/- per month i.e. Rs. 63,000/- per annum in future. The tribunal applied a multiplier of 9 and worked out future economic loss of Rs. 5,67,000/- With respect to the assessment of loss per month, we are not inclined to make any modification. However, in so far as multiplier is concerned going by the decision in case of Sarla Verma and looking to the age of the injured, we adopt a multiplier of 11 and thereby, award a sum of Rs. 6,93,000/- (i.e. Rs. 5,250 x 12 x11) under the head of future loss of income.
64. The amount of Rs. 50,000/- awarded under the head of pain, shock and suffering is left untouched since we find that looking to the nature of injuries, the medical treatment that the injured had to undergo and the discomfort that he may suffer for the rest of life, the tribunal has awarded a reasonable amount.
65. The tribunal, however, has not awarded any amount for the loss of amenities of life. It has come on record that due to the injuries, the claimant suffers recurrent bouts of depression, forgetfulness. He also cannot move freely and lift any weight. Looking to such handicaps and also looking to the age of the injured, sum of Rs. 25,000/- would be awarded towards loss of enjoyment of amenities of life.
66. In facts of the case, the tribunal awarded Rs. 35,000/- towards attendant charges, special diet, and conveyance and Rs. 1 lac towards medical treatment medicines and other related expenses also calls for no interference. With respect to sum of expenditure, original bills were not produced. The tribunal, however, has taken into account the facts of the case and suitably reduced the claim under such heads. In the result, with respect to the injured-claimant, we allow following total compensation:
67. In this case, the Tribunal awarded Rs. 9,32,000/-. The claimants would thus receive additional compensation of Rs. 1,51,000/- (i.e. Rs. 10,83,000- Rs. 9,32,000/-).
68. The claimants, in each case, shall receive additional compensation available under this judgement along with simple interest at the rate 9% per annum from the date of the petition till actual payment.
69. With these directions, both the first appeals are partly allowed. Cross objections of the claimants being Cross Objection No. 27 of 2009 and 28 of 2009 are partly allowed. Cross Objection Nos. 25 of 2009 and 26 of 2009 of The Oriental Insurance Company Ltd. are dismissed.
Awards of the Claims Tribunal are modified accordingly. R & P to be transmitted to the Trial Court.
[AKIL KURESHI, J.] [C.L.SONI, J.] JYOTI