FA/4909/2008 1/35 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4909 of 2008 With CIVIL APPLICATION No. 11711 of 2008 In FIRST APPEAL No. 4909 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 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 ? ========================================================= AHMEDABAD MUNICIPAL TRANSPORT SERVICE - Appellant(s) Versus MINOR RITABEN RAVJIBHAI VAGHRITHRO FATHER & GUARDIAN- RAVJI- & 1 - Defendant(s) ========================================================= Appearance : MR HS MUNSHAW for Appellant(s) : 1, None for Defendant(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 22/12/2008 ORAL JUDGMENT 1.Heard learned advocate Mr. HS Munshaw on FA/4909/2008 2/35 JUDGMENT behalf of appellant. 2.The appellant Ahmedabad Municipal Transport service has challenged award passed by Motor Accident Claims Tribunal, Ahmedabad (Rural) in MACP no. 2041/2000 dated 2/11/2007. The claims Tribunal has awarded Rs. 2,13,500/- with 9% interest in favour of claimants. 3.Learned advocate Mr. Munshaw raised contention that initially claimants has filed claim petition for claiming Rs. 1,00,000/- and subsequently that has been enhanced by claimant for Rs. 2,50,000/-. He submitted that claims Tribunal has considered only Rs. 1,00,000/-, even though, awarded Rs. 2,13,500/- being a compensation in favour of claimants. Therefore, claims Tribunal has committed gross error in awarding more than compensation claimed by claimants. 4.He submitted that driver was examined vide exh 35, where according to driver, incident taken place on 17/7/2000 when he was going from Iscon Temple to Vivekanand nagar, when he stopped bus at Hathinjan Stand, at that time, four passengers were get down from bus, out of which one lady and two small girls and lastly one old lady get down. Therefore, there was no injury due to rash and negligent driving of driver but some injury might be caused to girl. He was not responsible for FA/4909/2008 3/35 JUDGMENT injury caused to minor girl. 5.Learned advocate Mr. Munshaw also submitted that 15 multiplier is also on higher side, in such cases only 5 to 6 multiplier is to be reasonable. He submitted that total amount, which has been awarded being a compensation by claims Tribunal is on higher side. Therefore, interference from this Court is necessary. Except that no other submission is made by learned advocate Mr. Munshaw and no decision is relied by learned advocate Mr. Munshaw. 6.I have considered submissions made by learned advocate Mr. Munshaw and I have also perused award passed by claims Tribunal. The minor girl viz. Nitaben Ravjibhai Vaghari injured in said accident on 17/7/2000, when she was traveling with her mother in AMTS bus route No. 151 bearing No. GJ-1-T-7544. They were going to Hathijan from Lal Darwaja, at that time, when bus reached near Hathijan Chikanagar bus stand, minor and her mother are trying to getting down from said bus, at that time opponent no. 1 all of sudden started bus in rash and negligent manner in full speed. As a result of that, minor fell down and sustained serious injuries on both legs thigh, injury on kidney, crush injury on her hips and also sustained injuries on FA/4909/2008 4/35 JUDGMENT various parts of her body. Immediately, she was admitted as indoor patient at L. G. Hospital, where her indoor treatment was going on for three to four months. During period of hospitalization, operation was performed on her and skin grafting was also done and also spent considerable amount towards medical treatment of injured minor. Initially, claim of Rs. 1,00,000/- was filed by claimant, thereafter, that claim has been enhanced upto Rs. 2,50,000/- by giving application vide exh 14 before claims Tribunal and claims Tribunal has granted permission. 7.The appellant has filed reply vide exh 26, wherein he denied averment made in claim petition and also raised contention that accident is not occurred due to sole negligence of driver but it was a sole negligence of claimant herself. Thereafter, issues were framed by claims Tribunal vide exh 13 and father and mother of girl was examined vide exh 17. According to his evidence, on the date of accident, minor and his wife are going to their residence at Hathijan from Laldarwaja in AMTS bus route no. 151 bearing No. GJ-1-T-7544, when said bus reached near Hathijan Chikanagar bus stand, at that time, minor and her mother are FA/4909/2008 5/35 JUDGMENT trying to get down from said bus. The opponent no. 1 all of sudden started bus in rash and negligent manner in full speed. As a result of that minor fell down and sustained serious injuries. 8.The FIR produced before claims Tribunal vide exh 21, panchnama vide exh 22. The FIR lodged by Pankhaben Vaghari and giving details of accident. The complainant Pankhaben was examined vide exh 31, where some details have been given who was cross examined by advocate of AMTS. The driver Mahendrabhai Devjibhai was examined vide exh 35. According to his evidence, when he was going from Iscon Temple to Vivekanandnagar, he stopped his bus at Hathijan stand. At that time, four passengers were get down from his bus, out of which first one lady and two small girls and lastly one old lady get down. It is further stated that when his bus reached Vivekananadnagar some people came and they told him that accident has taken place against your bus and he has denied that such type of incident has taken place. In cross examination of driver, he has admitted that Kanbha Police has also filed charge sheet against him in connection with accident taken place on 17/7/2000. He denied that he stopped bus at Chikanagar stand in running position i.e. how accident FA/4909/2008 6/35 JUDGMENT has taken place due to rash and negligent driving of opponent no. 1. 9.This evidence has been considered by claims Tribunal and after appreciating evidence of parents and driver vide exh 35, claims Tribunal has come to conclusion that accident is occurred due to rash and negligent driving of opponent no. 1, otherwise, there was no other cause to receive injury to minor girl. Therefore issue no. 1 is decided accordingly. 10.In respect to contributory negligence of children, view taken by Apex Court in case of Sudhir Kumar Rana Vs. Surinder Singh & Ors reported in JT 2008 (7) SC 131. The relevant observation made in para 4 and 5 are quoted as under: “4. The question which arises for consideration is as to whether the appellant can be said to have guilty of contributory negligence. Ordinarily, the doctrine of contributory negligence is not applicable in case of children with the same force as in the case of adults. 5. We do not intend to lay down a law that a child can never be guilty of contributory negligence but ordinarily the same is a question of fact. (See: Muthuswamy and another v. S.A.R. Annimalai and others (1990 ACJ 974). 11.Thereafter, claims Tribunal has considered quantum and Rs. 1500/- monthly income has been considered. The claims Tribunal has FA/4909/2008 7/35 JUDGMENT considered that due to injury received by minor girl, it having adverse effect in life of minor girl that her sexual life was totally spoiled and even at present also she is having Urinal problems, Rs. 75,000/- to be awarded under head of pain, shock and suffering. It is further argued by advocate of claimants that Rs. 50,000/- towards medical expenses for prolong treatment, Rs. 10,000/- for attendance, Rs. 20,000/- for transportation and Rs. 5,000/- for special diet can be awarded. 12.The aforesaid submissions made by advocate of claimant suggest quantum in favour of claimant. It is necessary to note submission made by advocate of transport service, which is as under: “against this, learned advocate for opponent has argued that only just and reasonable amount of compensation should be awarded”. 11.Meaning thereby that advocate of AMTS has not raised any contention before claims Tribunal. On the contrary, fairly statement was made that just and reasonable compensation be awarded to claimants. 12.The claims Tribunal has considered that minor girl received injuries on both legs and thigh, crush injury on right leg, hips, FA/4909/2008 8/35 JUDGMENT kidney and also sustained serious injuries on private parts of her body. Immediately, she was sifted to LG Hospital, where she was admitted as indoor patient about 101 days. During hospitalization, operation was performed on her daughter and skin grafting was also done. The minor girl was also admitted in Civil hospital in Kidney department where also operation was performed on her private parts and during operation, about 15 to 17 bottle blood was also given. Even at present also, she is having urine problem and she could not control over urine and continuously she has to carry one bag. Her right leg was shortened and her back and private part is disfigured. The injury certificate produced at exh 25 from R.M.O. LG Hospital, which is stated that injured has sustained injury on pelvit both right left side and hips. The claimant was admitted on 17/7/2000 and discharged on 23/10/2000. 13.The claimant has also produced another certificate and case papers at exh 27 and 28 respectively issued by Institute of kidney disease and research Institute, where claimant was admitted on 19/11/2000 and discharged on 30/12/2000 and operation was performed on her. Vide exh 33, disability certificate produced, which was given by Dr. FA/4909/2008 9/35 JUDGMENT Pradip Seju and in said certificate it is mentioned that at present she has complaint of inability to pose urine per urethra with continuous urinary leakage from abdominal opening abdominal paid off and on with indigestion disfigurement and on examination there is an extensive scar involving left student region, sacral region and whole premium Vulvr disorted, vague admits one finger with tight fibrous annular band at the site of fistula repair. There is partial obstruction of welurenthra on passing 90 ft. rubber catherter which is or urithreal stricture and there is teprapuhic urinary leak. The doctor has assessed total 55% disability with body as a whole considering Cenitorihary system with reason that Urethral impairment has made her life miserable. She will never enjoy sexual life as a normal woman and would deliver a child normally if at all somebody marries her in future and she become pregnant. 14.Thus, all circumstances clearly established that due to injuries applicant had to take treatment in hospital. Due to injuries, she could not control over urine and her normal life is also completely spoiled and she work become mother in future. 15.Therefore, considering pain, shock and FA/4909/2008 10/35 JUDGMENT suffering of minor girl, Rs. 25,000/- has been awarded by claims Tribunal. The medical bill of Rs. 14,125.65/- produced by claimant vide exh 30. therefore, round figure of Rs. 15,000/- has been awarded. Thereafter, claims Tribunal has considered Rs. 5,000/- under head of attendant charges, Rs. 5000/- for special diet, Rs. 5000/- for head of transportation. The tribunal has considered 55% disability of minor girl as suggested by Dr. Seju, according to his evidence, she was treated in LG Hospital thereafter kidney Institute at Civil Hospital. She was treated for urine and private parts problem and he has referred case papers of Civil Hospital and she was operated for said problem. He stated that she is having urine problem and she could not do urine naturally and she do urine through one hole and continuous urine is coming from that hole. He has given certificate and put his signature on said certificate. 16.Thereafter, claims Tribunal has considered 55% disability body as a whole as per medical certificate and income of Rs. 1500/- has been assessed and while deducted comes to Rs. 9900/- yearly and 15 multiplier has been applied comes to Rs. 1,48,500/-. Rs. 10,000/- has been considered for special FA/4909/2008 11/35 JUDGMENT damage and for disfigurement caused to unmarried girls Rs. 10,000/- has bee awarded. 17.I have considered aforesaid observations made by claims Tribunal. This Court has an occasion to consider injuries received by Dinaben, who was aged about 10 years, at that time. The accident occurred by AMTS bus and due to injuries received by minor Dinaben on left leg having permanent disability of 65.45% as per certificate issued by Dr. Kanabar, in that case, this Court has considered recent decision of Apex Court in case of Sapna Vs. United India Insurance Co. Ltd & Ors reported in 2008 (3) Supreme Today page 735. The relevant discussion made in para 15 of First appeal 1393/1990 dated 30/9/2008 is quoted as under: “15.Recently apex court has considered in case of Sapna Versus United India Insurance Co. Ltd. & Anr. reported in 2008(3) Supreme Today page 735 wherein apex court considered what should be the fair and adequate compensation for permanent disability suffered by a 12 years' girl in an accident involving a motor vehicle is the question involved herein. On 3.9.1999, at about 10.00 am, Sapna, while going to a temple, was hit by a `jeep', used as a taxi. She was FA/4909/2008 12/35 JUDGMENT dragged along with the jeep to a distance of about 15-20 feet. She suffered compound fracture of left knee and dislocation of Patellae/bone of left knee and skin and muscles above and below came out and veins got cut and knee got completely damaged and bones of left leg became bare due to tearing of skin and flesh and left leg bent at 90 degree at knee as a result whereof she has become crippled and completely disabled to walk. The skin of right leg from thigh to ankle was also peeled off resulting in serious wounds. She was taken to a hospital and admitted as an inpatient therein for about 25 days. A sum of Rs.45,000/- were expended for her treatment till that day. It is stated that she is still required to undergo treatment from the aforementioned hospital. Relevant discussion made by apex court in para 8 to 15 is reproduced as under: “8. The principles governing a claim petition for assessing the damages in case of bodily injury suffered is that while awarding the compensation, the Tribunal should consider all relevant factors so as to enable the insured to be put in the same position as if he had not FA/4909/2008 13/35 JUDGMENT sustained any injury. The principle of Restitutio-in-integrum may be applied in a case of nature. Pecuniary loss and non-pecuniary loss are required to be pressed under certain heads. So far as the pecuniary loss is concerned, the same can be ascertained. What is required to be done is a balancing act by awarding such sum which, on the one hand, shall take care of the loss suffered by the claimant for the present time and future pecuniary benefits and, on the other, pecuniary advantages which from whatever source comes to them by reason of such injuries. So far as non-pecuniary loss is concerned, the same has to be assessed broadly under certain heads, namely, damages for physical pain, mental suffering etc. besides the amount spent on medical treatment, if any. 9. Expenditure for medical treatment has been granted. The High Court, in its judgment, noticed that although the Tribunal had referred to the likely effect on the matrimonial prospects of the appellant on account of permanent disability, due regard in that behalf had not been given. The High Court opined : "Considering the age of the claimant Km. Sapna at the time of the accident; the nature of the injuries and the fractures suffered by her in the accident; the extent of permanent disability suffered by her in left leg on account of the injuries sustained in the accident; the amount FA/4909/2008 14/35 JUDGMENT of physical pain and mental suffering she must have suffered during the period she remained hospitalised and her left leg was under plaster; the fact that the permanent disability to the extent of 90% in her left leg is bound to affect adversely her matrimonial prospects and that for rest of her life she would remain crippled and in view of the guidelines laid down by the Apex Court in the above quoted dicta, we are of the opinion that a lump sum of Rs.2,00,000/- (Rupees Two Lakhs only) would be just and proper compensation to the claimant for the injuries suffered by her in the accident, the amount spent on treatment, physical pain and mental suffering, loss of future earning capacity and other permissible heads. 10. No reason has been assigned in support thereof. In arriving at the said figure, only loss of matrimonial prospect has been taken into consideration. The fact that she would remain crippled throughout her life was also noticed but it does not appear that any serious consideration was bestowed thereupon. 11. The principle that is to be applied in a case of this nature that the amount of compensation should be just and fair is not in dispute. What would, however, be just and fair amount of compensation is required to be determined having regard to the facts and circumstances of the case involved. In given cases, the courts may deviate from the structured formula. In terms of the Second FA/4909/2008 15/35 JUDGMENT Schedule, where the deceased or injured were not having any income, the statute presumes an income of or about 15,000/- per month. If having regard to the age of the appellant, the multiplier of 15 is applied, a sum of Rs.2,25,000/- would be payable. Besides the said sum, not only some amount of compensation should be awarded under the heading of mental agony but also some provision should be made for future treatment. 12. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India & Anr. [(2003) 3 SCC 148], it was held : "11. It is now a well-settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation from the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case." We may also notice a decision in Nagappa v. Gurudayal Singh & Ors. [(2003) 2 SCC 274] wherein a Three Judge Bench of this Court opined that the law does not permit FA/4909/2008 16/35 JUDGMENT passing of any further award after the final award was passed, stating : "Therefore, in a case where injury to a victim requires periodical medical expenses, fresh award cannot be passed or previous award cannot be reviewed when the medical expenses are incurred after finalization of the compensation proceedings. Hence, the only alternative is that at the time of passing of final award, the Tribunal /court should consider such eventuality and fix compensation accordingly. No one can suggest that it is improper to take into account expenditure genuinely and reasonably required to be incurred for future medical expenses. Future medical expenses required to be incurred can be determined only on the basis of fair guesswork after taking into account increase in the cost of medical treatment." 13.What would be the genuine and reasonable expenditure likely to be incurred by the appellant towards her future treatment is not borne out from the records. It would require serious consideration for the purpose of award of damages. When a person becomes completely incapable to do any work and virtually has no enjoyment for life, the same form relevant factors and, thus, requires consideration for the purpose of determining a fair and reasonable amount of compensation. 14.It has not been disputed that future treatment for the appellant would be necessary. If future treatment is necessary, some provision should be made FA/4909/2008 17/35 JUDGMENT therefor. In absence of any clear cut estimate, we are inclined to award a further sum of Rs.75,000/- under the said head. She may require another operation. She may require to be provided with an artificial limb. We, direct accordingly. 15. Similar question came up for consideration in Madhya Pradesh State Road Transport Corporation Bairagarh, Bhopal v. Sudhakar & Ors. [AIR 1977 SC 1189] wherein this Court held : "The other appeal (C.A. No.2255 of 1968) relates to the injury sustained by a boy aged about four years. He suffered compound fracture of his right tibia and fibula lower third near the ankle joint with infection of the wound, skin-grafting had to be done and the boy had to remain in hospital from June 25 to August 4, 1961. According to the doctor who examined him, the child was likely to develop a permanent limp which might require another operation at the age of 16 years or so. In any case, in the opinion of the doctor the deformity was certain to persist till the boy was 16 years when another operation might remove it. The tribunal awarded Rs.10,000/- as general damages and Rs.890/- as special damages. The High Court increased the general damages to Rs.20,000/-. It appears from the evidence that the boy comes from a well-to-do family. Though the possibility was there of the deformity being removed by surgical operation when he grew up to be 16 years, the other possibility cannot FA/4909/2008 18/35 JUDGMENT be altogether ruled out. That being the position, we are not inclined to interfere with the sum awarded by the High Court." 18.This Court has also considered one decision from Madhras High Court in identical case in case of Saravanan @ Saravanakumar Vs. M. Sankaran and Another reported in 2008 (4) MLJ 1193 as discussed in para 17 which is quoted as under: “17. In case of Saravanan @ Saravanakumar Versus M. Sankaran and Another reported in (2008) 4 MLJ 1193, Madras High Court was considering question of enhancement of compensation. It was a claim filed by pillion rider. Claimant sustained irreparable injury. Lost manhood. He was declared to be impotent and sterile. Tribunal awarded Rs.2,44,000.00 as against claim of Rs.4,00,000/-. Claimant, a business executive was earning Rs.1750.00 as per Exh.A/6. Tribunal assessed earning as Rs.1000.00 which was held to be improper by Madras High Court by holding that materials on record show that claimant had lost his amenities of life, therefore, claim was enhanced to Rs.5,00,000/- though amount claimed is lesser. It was also held that in a fit and proper cases and upon sufficient materials, tribunals can award higher compensation than that of amount claimed. It was observed by Madras High Court in para 9,10 and 11 as under: “9. The question is what is the reasonable compensation. In K.S apana v.B. Appa Rao 1998 ACJ 113 M. JAGANNADHA RAO, J.(as he then was), considered the case of girl who had suffered serious damage and made claim for loss of prospects of marriage and loss of future FA/4909/2008 19/35 JUDGMENT earnings. The learned Judge dealt with 'loss of Amenities of life'. “Loss of amenity is broad and amorphous category, and embraces a hotpotch of disabilities, such as the interference with or prevention of the pursuits of former activities and it goes further. This head of non pecuniary damages embraces every thing which reduces the plaintiff's enjoyment of life considered apart from any material or pecuniary loss which may be attendant upon the plaintiff's injuries. The words 'loss of amenities' have been explained in a vivid manner in the off quoted unreported case Manley v. Rugby Portland Cement Co. Ltd. CA No.286 of 1952, referred to in Kemp & Kemp, 1982, para 3.001, page 3001 by BURKITT,LJ as follows: “There is a head of damage which is sometimes called loss of amenities, the man made blind by the accident will no