(Per : HONOURABLE MR.JUSTICE C.L. SONI) The first appeal at the instance of the Insurance Company and the Cross Objection at the instance of the claimants are directed against the judgment and award passed by the Motor Accident Claims Tribunal (Main) Rajkot District, Rajkot dated 28th October, 1998 in Claim Case No. 1529 of 1997 ("herein after referred to as "the Tribunal").
Originally, the claim petition was filed before the Motor Accident Claims Tribunal at Vadodara by the injured claimant which was registered as Claim Case No. 435 of 1993 but subsequently it was transferred to the Tribunal at Rajkot.
The claimant claimed compensation of Rs.25,00,000.00 under section 166 of the Motor Vehicles Act, 1988 (herein after referred to as "the Act"). As per the case in the claim petition, on 16.9.1992, the claimant was going on his scooter bearing No. GJ-6-B-9095 on the State Highway from Gorva to Udaiya and the accident took place near Harni Airport in Vadodara City when the opponent No.1 - respondent No.2 herein suddenly came from the opposite direction on wrong side driving his scooter bearing No. GBV-6929 in rash and negligent manner and dashed with the scooter of the claimant near Gayatri Petrol Pump as a result of which the claimant sustained serious injuries. The claimant was serving in the Indian Oil Corporation and he was earning Rs.1,40,000.00 per annum. He was aged 34 years. He was holding qualification of Degree of Master in Technology and also holding the Degree in AMII. Because of the multiple injuries suffered in the accident, he was admitted in Jaslok Hospital at Mumbai, and he had undergone operation in the said Hospital, and entire lower part of his body had become non-functional because of the paraplegia.
He was kept as indoor patient for about four months and he had to incur lot of expenses for the medical treatment.
The claim petition was resisted by the Insurance Company by filing reply at Exh. 11. Before the claims tribunal, the claimant examined himself and produced documentary evidence in support of his claim. On the basis of the evidence, the Tribunal came to the conclusion that the respondent no.2 original opponent no.1 was negligent for the accident to the extent of 75 % and the claimant was negligent to the extent of 25 %. As regards compensation, the Claims Tribunal assessed compensation at Rs.20,00,000.00. After deducting 25% therefrom,the Tribunal held that the claimant shall be entitled to Rs.15,00,000.00 as compensation. The Tribunal, thus, partly allowed the claim petition and ordered the respondents to pay Rs. 15,00,000.00 with interest at the rate of 15 per cent from the date of the application. The Claims Tribunal clarified that since the amount of compensation of Rs.15,00,000.00 includes Rs.1,00,000.00 which is awarded towards future medical expenses, the claimants shall be entitled to have interest on the amount of Rs.14,00,000.00. The claims Tribunal also ordered that if the amount of compensation is paid within the period of three months from the date of the order, then, the amount of compensation shall carry interest at the rate of 12% instead of 15%.
We have heard learned advocate Mr. KK Nair for the Insurance Company and Mr. M.B. Parikh, learned advocate for the claimants in the First Appeal and the Cross Objection. Learned Advocate Mr. Nair for the insurance company has submitted that the Tribunal has committed grave error in holding that the respondent NO.2 is negligent to the extent of 75%. Mr. Nair submitted that it was a case of total negligence on the part of the claimant himself because the claimant was driving his vehicle on wrong side as a result of which, his vehicle dashed with the scooter coming from the opposite side in right direction. Learned Advocate Mr.Nair took the Court through the cross examination of the claimant and pointed out that the claimant himself has stated that he was going from the north to south. On west of the road, Gayatri Petrol Pump was situated. The road was of the width of 22 ft. There was divider in-between the road. After getting the petrol filled in and coming on the road, he turned towards the southern side and at that time, respondent No.2 original opponent no.1 came from the opposite direction and dashed his scooter with the scooter of the claimant. On the basis of the above said statement made by the claimant in his cross examination, learned advocate Mr. Nair argued that since the claimant after coming out from the petrol pump, immediately moved his scooter towards the southern side which was wrong side for the claimant, his scooter dashed with the another scooter for which the claimant only was responsible. Learned advocate Shri Nair also argued that even as per the panchanama, scooter of the claimant was found on the wrong side of the road i.e. at the distance of 5 ft. away from the edge of the road towards eastern side. As per the panchanama, width of the road is 22 ft. and the steering of scooter of claimant was facing southern side and from the rear wheel of the scooter, divider wall was at the distance of 13 ft. This panchanama read with the statement of the claimant himself establishes that it was the claimant who alone was negligent for causing the accident and, therefore, the claimant was 100% negligent for causing the accident and the Tribunal has committed grave error in holding respondent No.2 original opponent negligent to the extent of 75%. Learned Advocate Mr. Nair also submitted that in fact there was no eye witness to the accident and in fact, some other person had dashed with the scooter of the claimant and had run away but just to make the appellant insurance company liable, scooter of respondent no.2 is shown to have dashed with the scooter of the claimant, therefore, the appellant insurance company cannot be made liable.
On the aspect of quantum, learned advocate Mr. Nair has submitted that the claimant continued to serve with his employer even after the accident and there was no actual loss of income to the claimant. He pointed out that the Tribunal has committed grave error in assessing the income of the claimant at Rs.14,000.00per month though on the date of accident, as per the claimant's evidence, the claimant was getting the salary of Rs.10600.00. Learned advocate Mr. Nair also argued that the Tribunal awarded higher amounts on the other heads and on the basis of the evidence, substantial reduction in the amount on other heads is called for.
Learned Advocate Mr. MB Parikh for the claimant in first appeal and cross objections has submitted that the tribunal has committed grave error in holding the claimant negligent even to the extent of 25%. He submitted that the claimant in his cross examination has not stated that he was going on the wrong side and, therefore, accident had taken place. He submitted that the claimant has stated in his cross examination that after getting the petrol filled in from Gayatri Petrol Pump, he was going from north to south. His scooter dashed with the scooter of respondent No.2 because respondent no.2 was driving his scooter on wrong side and in a rash and negligent manner. He also placed reliance on the panchanama and pointed out that the fact that the scooter had suffered damage on steering light and the fact that the scooter was found at the distance of five ft. from the edge of the road from western side to the eastern side shows that the claimant had not immediately turned his scooter towards the southern direction after leaving the petrol pump but was proceeding towards the east side to cross the divider and to go on his right side and at that time, respondent no.2 came driving his scooter in rash and negligent manner and dashed with the scooter of the claimant, and, therefore, on correct reading of the statement of the claimant in his cross examination as also the contents of the panchanama, respondent no.2 alone was negligent for causing the accident and therefore, the tribunal ought not to have held the claimant negligent to the extent of even 25%.
As regards quantum of compensation, learned advocate Mr. Parikh has made serious grievance about the assessment of income made by the claims tribunal. Learned advocate Mr. Parikh argued that from the evidence on record, it was clearly established that at the time of accident, the claimant was earning Rs.25,660.00 per month, and if the accident had not taken place, the claimant would have reached to the post of General Manager at the time of his retirement and at that time, his salary would have been Rs.75,000.00 per month. He submitted that the Company had clearly informed the claimant that the claimant would not be in a position to serve and he would be continued in service till his claim petition was decided. Inspite of the fact that there was clear evidence on record as regards income of the claimant, of Rs.25,660.00 per month, the claims tribunal took only Rs.10,600.00 as salary per month and by considering prospective income, had assessed only at Rs.14000.00 which is grossly inadequate and insufficient considering the position held by the claimant as Manager at the relevant time in Indian Oil Corporation. Mr. Parikh therefore submitted that the income of the claimant is required to be assessed at around Rs.37,000.00 per month by considering the future prospective income of the claimant.
Learned Advocate Mr. Parikh also submitted that the claimant suffered 100% disability. His lower part of the body had become non-functional. He was found to have suffered paraplegia, therefore, the tribunal has committed grave in taking the multiplier of only 5. He pointed out that as per the decision of Hon'ble the Supreme Court in Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, the claimant would be entitled to the multiplier of 16 and accordingly, the claimant would be entitled to future loss of income. Learned Advocate Mr. Parikh argued that the amounts awarded by the tribunal on other heads are also on lower side. Learned advocate Mr. Parkh therefore urged to dismiss the first appeal filed by the insurance company and allow the cross objection accordingly.
We have perused the impugned judgment and award passed by the tribunal. We have also perused entire record of the case. We may first deal with the issue of negligence.
We find that after the accident, the wife of the claimant had lodged First Information Report (FIR) on the date of accident 16.9.92. However, she was not an eye witness of accident. She having come to know about the accident, had lodged FIR. The police drew panchanama which has been on record at Exh.4/5. Over and above the panchanama, claimant who himself is the victim of accident deposed as witness. Respondent NO.2 whose scooter had dashed with the scooter of the claimant has not come forward either to file reply or to give oral evidence before the tribunal. As per the deposition of the claimant, he was going on his scooter from north to south. There was petrol pump situated on the western side. Road is having the width of 22 ft. and there is divider on the middle of the road. The claimant had gone to take the petrol from the petrol pump and coming out from the petrol pump and after reaching on the road, he took his scooter towards the southern direction Before going to petrol pump for taking the petrol, he had already gone towards the southern direction. From the panchanama, it also appears that the scooter was found lying facing the southern direction. It appears that after getting the petrol, the claimant was required to first go to his correct side by crossing the divider and then to proceed towards the southern direction. It does not appear that the claimant after coming out from the petrol pump and on reaching the road immediately turned his scooter towards the southern direction. Therefore, the contention raised by the learned advocate Mr.Nair that since the claimant immediately turned his scooter on road from the petrol pump towards the southern direction he alone was negligent for causing accident, cannot be accepted. However, since the accident had taken place at the distance of 5 ft. away from the edge of the road from western side towards eastern direction, it appears that the claimant had not taken enough care while crossing the road to reach to his correct side. At the same time, respondent no.2 who was coming from the southern direction was also equally required to take more care while driving his scooter while reaching near to the petrol pump and to avoid accident by driving the scooter at slow speed. On the basis of the evidence available before us, it appears that the claimant had turned to his southern direction and the accident had taken place inside the dividing line of the road at the distance of 5 ft. from the western edge of the road towards the east, therefore,we are of the opinion that the claimant was negligent at least to the extent of 40% for causing the accident. We accordingly hold the claimant negligent to the extent of 40% instead of 25%and respondent no.2 negligent to the extent of 60% instead of 75%.
Now, coming to the issue of quantum of compensation, we may first look at the evidence available as regards the income as also the injuries suffered by the claimant and the disability of the claimant assessed by the tribunal.
The claimant examined himself at Exh. 16.In his deposition, he has deposed that at the time of accident, his monthly salary was Rs.10,600.00. He stated that he was still in service and his salary was Rs.25660.00. He has also stated that he was continued in service on the condition that till his claim petition was finally decided. He was told that after he received the amount of compensation, his services would come to an end. He has further stated that he was not in a position to serve. He stated that he could not walk and sit on his own and he needed help and assistance of other persons. His left leg was amputated. His right leg and the portion below the lower part of the body has become non functional. He would not be in a position to do any kind of work in future. He has further stated that his salary would have reached upto Rs.75,000.00 at the time of his retirement if he would have continued in service.
The above was the evidence as regards income of the claimant. In cross examination, attention of the claimant was drawn to the fact that the claimant had shown his monthly income at Rs.5246.00 in his claim petition. The claimant has answered this question in affirmative while stating that the said was the old pay scale and thereafter, there was revision in the pay scale. The statement of income of the claimant before the income tax department as in January, 1992 was produced at Exh. 42 wherein the gross income is shown at Rs.1,38,408.00. Certificate under section 203 of the Income Tax Act, 1961 for the income of the claimant for the period from April, 1991 to March, 1992 also reflects the gross salary of the claimant at Rs.1,39,895.00. The claimant has produced pay slip for the month of September, 1998 at Exh. 34 to substantiate his say that there was rise in the salary and he was earning Rs.25,660.00 per month. This of course shows increase in the pay of the claimant as stated by the claimant in his deposition. However, we cannot consider this evidence for the purpose of assessing income of the claimant at the time of accident but at the same time, we cannot ignore the fact of rise in the salary of the claimant. The claimant was aged 34 years at the time of accident. The Tribunal has considered prospects in the income and arrived at the figure of Rs.14,000.00 per month for the purpose of awarding compensation. In our view, the Tribunal has committed error in arriving at the figure of Rs.14,000.00 to be the prospective income per month. In fact, if the salary of the claimant was believed at Rs.10600.00 per month and if the prospects in the salary of the income of the claimant were to be considered, prospective income of the claimant is required to be considered by adding 1/2 of the salary of Rs.10,600.00 believed by the Tribunal. Thus prospective income per month was required to be assessed at Rs.15900.00. We accordingly assess Rs.15,900.00 to be the income of the claimant per month for the purpose of awarding compensation. Thus, annual income of the claimant would come to Rs.1,90,800 [Rs.15,900x12].
For assessing the future loss of income, the Tribunal has applied multiplier of 5. Evidence clearly shows that the claimant has suffered 100% disability. At the bottom of the deposition of the claimant, we find note made by the Tribunal itself which records that the Tribunal had seen the claimant. Left leg of the claimant was found amputated. Lower part of the body of the claimant had become totally non functional i.e. claimant had suffered paraplegia. We have also on record the medical certificate at Exh. 33 which is reproduced as under:
"This is to certify that Mr. H.R. Kotecha, Aged 40 years is examined by me for Physical Disability.
Deformity & Disabilities:
He is physically handicapped and Paraplegic with amputated left lower limb from hip joint. He does not have any sensation of Urinary System and Bowel System.
He is having 100% disability.
Mark of Identification:
A scar mark on left side of the forehead due to injury."
Considering the age of the claimant 34 years at the time of accident and 100% disability suffered by him, considering the injuries suffered by the claimant, he was to be continued in service till the case for compensation is decided and considering the loss of future potential and he having become totally handicapped paraplegic having amputated lower limb from hip joint and his lower part of the body having become non functional, we are of the opinion that multiplier of 8 being half than as prescribed for 16 multiplier in case of Sarla Verma (supra) should be made applicable in the facts of the present case. We, therefore deem it proper to apply multiplier of 8 instead of 5 for the purpose of awarding compensation towards loss of future income. Accordingly loss of future income is assessed at Rs.15,26,400 [Rs.1,90,800x8].
This brings us to consider the compensation awarded on other heads by the Tribunal. The Tribunal awarded Rs.3,00,000.00 towards pains, shock and suffering. Rs.5,00,000.00 towards towards medical expenses including medical expenses to be incurred in future, Rs.3,50,000.00 towards the actual loss of income and Rs.10,000.00 towards the damages to the scooter and, thus, total amounts awarded by the tribunal on different heads come to Rs.11,60,000.00. We find that the amounts awarded by the claims tribunal on other heads are just and proper, therefore, same do not call for interference.
In view of the above, total compensation could be worked out as under:
Rs.15,26,400.00 Towards loss of future income.
Rs.11,60,000.00 Amounts awarded by Claims ---------- Tribunal on different heads.
Rs.26,86,400.00 Total amount of compensation.
However, since the claimant is held negligent to the extent of 40%, deducting 40% amount from the total amount of compensation, amount available to the claimant towards compensation would come to Rs.16,11,840. Deducting Rs.15,00,000.00 awarded by the claims tribunal, the claimant shall be entitled to additional compensation of Rs.1,11,840.00. Such additional compensation shall carry interest at the rate of 9% per annum from the date of claim petition till realization. The interest already awarded by the Tribunal on the amount of Rs.15,00,000.00 does not deserve to be interfered with.
In the result, the appeal and the cross objections are partly allowed to the extent stated above. The claimants are held entitled to additional amount of compensation of Rs.1,11,840.00 to be recovered from original opponents (the appellant-Insurance Company and the respondent No.2) with 9% interest from the date of claim petition till the same is realized. The judgment and award of Tribunal shall stand modified. Award shall be drawn accordingly.
(Jayant Patel,J.) (C.L.
Soni,J.) an vyas FURTHER ORDER:-
(Per : HONOURABLE MR. JUSTICE JAYANT PATEL) After the pronouncement of the judgment, Mr. Nair States that the amount may not be permitted to be withdrawn by the original claimant for some time so as to enable his client to approach before the higher forum, if they so desire.
Whereas Mr. Parikh, learned counsel for the original claimant states that the insurance company may be directed to deposit the additional amount with the accrued interest within some time.
Considering the facts and circumstances, it is directed that the appellant insurance company shall deposit the amount within four weeks from today with the Tribunal. Out of the available amount, the Tribunal shall permit 20% withdrawal and 80% of the amount shall remain invested for a period of three years with the nationalized bank on the condition that the original claimant shall be entitled to periodical interest on the investment as and when it becomes due. Upon expiry of the period of three years, the claimant shall be entitled to the entire amount available by way of investment.
(Jayant Patel,J.) (C.L.
Soni,J.) an vyas