FA/1074/2008 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1074 of 2008 WITH CIVIL APPLICATION No. 2871 of 2008 IN FIRST APPEAL No. 1074 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 ? ========================================================= UNITED INDIA INSURANCE CO LTD - Appellant(s) Versus JAGDISHBHAI DHIRAJBHAI LAAD & 2 - Defendant(s) ========================================================= Appearance : MR RAJNI H MEHTA for Appellant(s) : 1, MR LR PATHAN for Defendant(s) : 1, RULE UNSERVED for Defendant(s) : 2, RULE SERVED BY DS for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH FA/1074/2008 2/22 JUDGMENT Date : 16/7/2008 C.A.V. JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) 1. Present appeal under sec.173 of the Motor Vehicles Act, 1988 (“the Act” for short) is by the appellant herein - original opponent No.3 named United India Insurance Co. Ltd. challenging the judgement and award dtd.30/10/2007 passed by the learned Motor Accident Claims Tribunal (Main), Surat in Motor Accident Claim Petition No.199 of 1998, by which the learned tribunal has partly allowed the said claim petition directing the appellant and other original opponents to pay a sum of Rs.7,50,000=00 as compensation to the respondent No.1 herein - original claimant, for the injuries sustained by the injured in the vehicular accident with interest at the rate of 9% per annum from the date of filing of the claim petition i.e. 6/3/1998 till realisation together with proportionate costs of the petition, by holding FA/1074/2008 3/22 JUDGMENT that the driver of the Tanker bearing registration No.GJ-15-G-168, which was insured by the appellant – Insurance Company, was negligent. 2. Jagdishbhai Dhirajbhai Laad sustained injuries in a vehicular accident which occurred on 17/10/1997 and as he sustained serious injuries and looking to the disability, he was not in a position to file the claim petition and therefore, MACP No.199 of 1998 came to be filed by him through his father – Dhirajbhai Laad under sec.166 of the Act. The claimant – injured - Jagdishbhai was going on his motorcycle from Kamrej Cross Road to Kadodara Cross Road on National Highway No.1 on 17/10/1997 at about 17.30 hours. He was driving his motorcycle GJ-5-R-5182. As per the claimant he was driving his motorcycle at moderate speed on the extreme left side of the road and at that time, the original opponent No.1 – driver was driving the Tanker bearing No.GJ-15-G-168 rashly, negligently and at excessive speed, in the manner endangering human life and when the injured reached near the FA/1074/2008 4/22 JUDGMENT temple of Dada-Bhagvan, the said driver abruptly turned to the right side and abruptly came on the wrong side of the road and as a result of which, the motorcycle dashed and collided with the tanker which resulted into very serious vehicular accident. The injured – original claimant sustained very serious bodily injures including head injury and head injury and became unconscious. That the opponent No.1 – driver of the tanker lodged FIR against the injured claimant alleging inter-alia that the injured claimant was driving the motorcycle in a rash and negligent manner. The claimant was admitted as indoor patient in Mahavir Hospital at Surat. The claimant was discharged from the hospital on 17/2/1998. The claimant was unconscious and there was paralysis on the entire right part of the body on account of the accidental injury. As the claimant sustained 60% permanent partial disability and was unable to speak and there was no vision in the right eye and unable to walk without any support. Though accidental injuries have resulted into 60% physical disability, the functional disability FA/1074/2008 5/22 JUDGMENT was assessed at 100% and therefore, the claimant through his father filed MACP No.199 of 1998 before the MAC Tribunal (Main) at Surat for compensation of Rs.15 Lacs under various heads, such as, future loss of income, medical expenses, actual loss of income, pain shock and suffering, special diet, attendance charges, expenses for future treatment and conveyance expenses. It was the contention on behalf of the claimant that the claimant sustained injuries and permanent partial disability because of the rash and negligent driving on the part of the driver of the tanker, as the driver of the tanker abruptly turned to the right side and abruptly came on the wrong side of the road, as a result of which, the motorcycle dashed and collided with the tanker on account of which the claimant sustained various serious injuries. It was also stated by the claimant in the claim petition that the original opponent Nos.1, 2 and 3, who are driver, owner and insurer respectively, of the offending Tanker No.GJ-15-G-168 being joint tort feasors, were jointly and severally liable to pay the compensation with interest and FA/1074/2008 6/22 JUDGMENT costs to the claimant. 3. Though served, nobody appeared on behalf of the opponent Nos.1 and 2 i.e. driver and owner of the tanker and therefore, the tribunal proceeded with the claim petition ex-parte against the opponent Nos.1 and 2. The opponent No.3 – appellant herein - United India Insurance Co.Ltd. appeared before the tribunal and filed written statement at Ex.19. The Insurance Company denied all the averments made in the claim petition inclusive of the age and income of the original claimant. It was also denied that the original claimant became unconscious and was in Coma for 20 days. It was denied that the injuries sustained by the original claimant has resulted into 100% functional disability. It was also denied that the original claimant was driving his motorcycle at a moderate speed and on the extreme left side of the road. It was also specifically denied that the accident occurred due to sheer negligence on the part of the opponent No.1 – driver of the tanker and it was contended that the accident occurred due to sheer negligence on the part of the original claimant FA/1074/2008 7/22 JUDGMENT himself and therefore, it was submitted that the injured claimant was not entitled to get any compensation. Even the claim of the original claimant being medical treatment, special diet and conveyance expenses, were also denied. The tribunal framed issue at Ex.20. The father of the injured claimant named Dhirajbhai Dayabhai Lad came to be examined at Ex.159. His affidavit of evidence was filed at Ex.159. He came to be cross- examined by the learned advocate appearing on behalf of the Insurance Company. To prove the permanent partial disability, the medical expenses and injuries sustained by the claimant, the claimant examined Dr.A.J. Desai at Ex.166. On behalf of the claimant one another Dr.Pradip H.Pethe came to be examined at Ex.172. The opponent did not examine any witness. The original claimant produced copy of the FIR at Ex.31 and copy of the panchnama of the place of incident at Ex.32. On appreciation of oral as well as documentary evidence, the tribunal came to the conclusion that the vehicular accident dtd.17/10/1997 occurred as alleged and the Tanker FA/1074/2008 8/22 JUDGMENT No.GJ-15-G-168 was involved in the said accident. On appreciation of deposition of Dr.Asit J.Desai, who was examined at Ex.166, and deposition of Dr.P.H. Pethe, who was examined at Ex.172 and considering the disability certificate at Ex.173 and deposition of the father of the original claimant, the tribunal held that the claimant sustained accidental injuries which has resulted into 60% physical disability but the functional disability is almost 100%. The tribunal also noted the deposition of the father of the claimant and affidavit of evidence, which was not challenged by the Insurance Company in the Cross- examination that the accidental injuries sustained by his son Jagdishbhai has resulted into paralysis on the right side of the body and resulted into permanent partial disablement and there is no sensation in the right side of the body of the injured claimant and that on the right side there is haemeplegia. The claimant at the relevant time was aged 21 years. He was working as a mechanic of two wheeler vehicles in the Garage of Chhanabhai Bhikhabhai. According to his father, the claimant was earning Rs.3000 to FA/1074/2008 9/22 JUDGMENT 3200 per month and on appreciation of evidence, the learned tribunal held that, in fact, the monthly income of the claimant can be assessed at Rs.2000 per month at the time of accident and considering the fact that the injury sustained by the claimant had resulted into 100% permanent partial disability with respect to the body as a whole, the tribunal held that the loss of future income of the claimant would be Rs.2000 per month and applying multiplier of 12 considering the fact that the claimant was aged 21 years, the tribunal held that the injured claimant would entitled to get compensation of Rs.3,60,000 under the head of future loss of income. Considering the medical bills, produced at Ex.Nos.21 and 25, of Rs.1,18,144=00, the tribunal awarded Rs.1,15,000 under the head of actual medical expenses. The tribunal also awarded Rs.2 Lacs under the head of pain, shock and suffering, considering the fact that it was the case of haemeplegia and that the claimant has lost the enjoyment of his life. The tribunal also awarded Rs.10,000 under the head of special diet; Rs.15,000 under the head of attendance charges and FA/1074/2008 10/22 JUDGMENT Rs.10,000 under the head of conveyance allowance. Considering the fact that the injured claimant Jagdishbhai got haemeplegia and he was required to undergo medical treatment in future, the tribunal awarded Rs.30,000=00 under the head of future treatment. Thus, the tribunal, in all, awarded Rs.7,50,000 as total compensation by the impugned judgement and order. 4. Mr.Rajni H.Mehta, learned advocate appearing on behalf of the appellant – Insurance Company has vehemently submitted that the tribunal has erred in holding the driver of the tanker 100% negligent for the vehicular accident in question. It is submitted that the tribunal has erred in holding that the collision occurred between the motorcycle and driven by the original claimant and the Tanker No.GJ-15-G-168, because of the sole negligence of the driver of the tanker. It is submitted that the learned tribunal ought to have considered the FIR lodged by the injured driver of the tanker, wherein it is clearly stated that the tanker was stationary and the cleaner was watering trees and at that time, the FA/1074/2008 11/22 JUDGMENT motorcycle collided with the tanker on its front side and considering the same, the tribunal ought to have held that the accident occurred due to the negligence of the motorcycle driver - claimant. It is submitted that even considering the FIR at Ex.31 and Panchnama at Ex.32, the tribunal ought to have held the driver of the motorcycle negligent for the accident. He has relied upon the decision of the Hon'ble Supreme Court in the case of Oriental Insurance Co.Ltd. Vs. Premlata Shukla and others, reported in 2007 ACJ 1928 in support of his submission that once FIR is exhibited, the same was not required to be further proved and the tribunal ought to have relied upon the contents of the FIR and ought to have held the driver of the motorcycle negligent for the accident. Mr.Mehta, learned advocate for the appellant has submitted that even otherwise also the tribunal has materially erred in awarding compensation of Rs.7,50,000 under various heads and the same is even otherwise also on higher side. By making above submissions FA/1074/2008 12/22 JUDGMENT and relying upon the aforesaid decision, learned advocate for the appellant has requested to allow the present appeal. 5. Mr.L.R. Pathan, learned advocate appearing on behalf of the original claimant has opposed the present appeal. It is submitted by Mr.Pathan that so far as panchnama produced at Ex.32 is concerned, it is neither here nor there and from the said panchnama it is very difficult to prove and establish that fact that who was negligent. It is submitted that even from whatever is stated in the panchnama, couple with the deposition of the father of the claimant, the tribunal has rightly held the driver of the tanker negligent. It is submitted that in the present case, the driver of the tanker, who can be said to be best witness to explain the accident could not be examined, as he died during the pendency of the claim petition. Similarly, the original claimant also could not be examined as he is suffering from haemeplegia and is not in a position to give evidence. It is submitted that it is born bout from the record and even from the complaint given by the FA/1074/2008 13/22 JUDGMENT driver of the tanker that along with him, one cleaner was there and therefore, he can also be said to be the best witness to explain the accident but he is not examined by the Insurance Company and therefore, an inference can be drawn. It is submitted that, in fact, even it can be seen from the panchama that the tanker came on the wrong side and abruptly turned on the right side i.e. on the wrong side of the road, and therefore, the only conclusion can be that the driver of the tanker was negligent. However, it is submitted by Mr.Pathan that with a view to put an end the litigation, if the award is reduced by 10% by holding the driver of the motorcycle i.e. original claimant, negligent to the extent of 10%, the claimant would not have any objection and the impugned judgement and award passed by the tribunal be modified to the aforesaid extent and to that extent the appeal be allowed. He has submitted that even otherwise, the judgement and award passed by the tribunal awarding compensation of Rs.7,50,000 is just and proper and the same is not required to be interfered with looking to the FA/1074/2008 14/22 JUDGMENT evidence and permanent partial disability sustained by the claimant and considering the fact that the claimant was suffering from haemeplegia. 6. Heard the learned advocates appearing on behalf of the respective parties. 7. At the outset, it is required to be noted and it is not in dispute that in the vehicular accident in question, the motorcycle dashed with the tanker in which the driver of the motorcycle i.e. original claimant had sustained serious injuries and at that time he became unconscious and was in Coma for 20 days. It is the case on behalf of the claimant that the claimant was going on his motorcycle from Kamrej Cross Road to Kadodara Cross Road on the National Highway No.8 and he was driving his motorcycle on the left side of the road. The tanker came from the opposite direction i.e. from sough to north, with excessive speed and near Bhagvan-Dada temple, there was a big gap in the divider and all of a sudden and abruptly the driver of the tanker took turn on the right side i.e. on the wrong side, for watering trees and at that time, tanker dashed with the FA/1074/2008 15/22 JUDGMENT motorcycle on the front side of the tanker. The driver of the tanker had filed FIR, in which it is stated that by the driver of the tanker that the tanker was stationary. However, the driver of the tanker could not examined as he died during the pendency of the claim petition. The panchnama of the place of incident prepared by the police during the investigation of the said FIR has been produced at Ex.32. Perusal of the contents of the Panchnama, by and large, does not give complete picture. However, it is born out that the tanker was found on the wrong side, near the gap in the divider and therefore, there is substance in what the father of the claimant says about the accident that abruptly the driver of the tanker took turn on the right side and came on the wrong side. The fact that the tanker was on the wrong side is established even from the panchnama. It is required to be noted at this stage that this is a peculiar case in which the driver of the tanker and the claimant, who can be said to be best witnesses, could not be examined, as the driver of the tanker expired during the pendency of the claim FA/1074/2008 16/22 JUDGMENT petition and driver of the motorcycle was not in a position to give evidence and depose before the court as he was suffering from haemeplegia. From the FIR it appears that one cleaner was there at the time of accident, but he is not examined on behalf of the Insurance Company nor the owner of the tanker has appeared. In absence of the driver of the tanker and driver of the motorcycle, the cleaner who was there at the time of accident along with the tanker driver, who can also be said to be the best witness, but the insurance company, who alleges that the driver of the motorcycle was negligent, has not examined the cleaner. The insurance company ought to have examined the cleaner to prove the negligence of the driver of the motorcycle. Under the circumstances, an adverse inference can also be drawn against the driver of the tanker. It is true that as held by the Hon'ble Supreme Court in the case of Premlata Shukla and others (supra), once FIR is exhibited and produced on record, though the contents have not been proved, the same can be FA/1074/2008 17/22 JUDGMENT considered by the tribunal. However, the mere say of the complainant in the FIR that the driver of the motorcycle was negligent, is not sufficient to prove the negligence. In the facts and circumstances of the case and looking to the panchnama, it appears that the tanker was on the wrong side and the motorcycle dashed with the front side of the tanker and therefore, the driver of the tanker can be said to be 100% negligent for the accident in question. However, to put an end the litigation, learned advocate appearing on behalf of the claimant has stated that if the award is reduced 10%, he would have no objection. 8. Now, so far as the amount awarded by the tribunal on different heads is concerned, it appears that the tribunal has not committed any errors. On appreciation of evidence and and considering the depositions of Dr.Asit Desai at Ex.166 and Dr.P.H. Pethe at Ex.172, disability certificate at Ex.173, prolonged hospitalisation and other documentary evidences as well as deposition of th father of the claimant, the tribunal has not committed any error in FA/1074/2008 18/22 JUDGMENT holding that the injures sustained by the injured has resulted into 100% permanent partial disability, with respect to body as a whole, the claimant has become a patient of haemeplegia and is not able to perform his routine acts, such as natural call etc. The right side of his body is not working. Considering the fact that the claimant was serving as mechanic of two wheelers, the tribunal has rightly assessed income of the claimant at Rs.2000 per month and considering the fact that the claimant was aged 21 years at the time of accident, the tribunal has rightly applied the multiplier, the tribunal has rightly awarded Rs.3,60,000 under the head of loss of future income. Considering the above, the medical bills produced at Ex.Nos.21 and 25 of Rs.1,18,144=00, the tribunal has rightly awarded Rs.1,25,000=00 under the head of medical expenses. The claimant has become patient of haemeplegia and the right side of his body is paralysed and there is no sensation in the rights side of his body and the claimant has become crippled for all purposes at the young age of 21 years and looking to the prolonged FA/1074/2008 19/22 JUDGMENT hospitalization, it cannot be said that the tribunal has committed any error in awarding Rs.2 Lacs under the head of pain, shock and suffering. The tribunal has rightly awarded Rs.10,000 under the head of special diet, Rs.15,000 under the head of attendance charges, Rs.10,000 towards conveyance expenses, as the claimant was required to go to Bombay for consultation of Nuero Surgeon, considering the fact that the claimant is suffering from haemeplegia and is required to undergo treatment in future also. The tribunal has rightly awarded Rs.30,000 under the head of compensation for future treatment. Thus, the tribunal has not committed any error in assessing the compensation of Rs.7,50,000=00 in all. However, considering the concession given by the learned advocate appearing on behalf of the claimant to reduce the awarded compensation by 10%, the impugned judgement and award passed by the tribunal is required to be modified to that extent and the appeal is required to be allowed to the aforesaid extent only. 9. For the reasons stated above, the appeal succeeds in FA/1074/2008 20/22 JUDGMENT part. The impugned the judgement and award dtd.30/10/2007 passed by the learned Motor Accident Claims Tribunal (Main), Surat in Motor Accident Claim Petition No.199 of 1998 is modified to the extent and it is held that the injured claimant – respondent No.1 would be entitled to get compensation of Rs.6,75,000 in all instead of 7,50,000, for the injuries sustained by him in the vehicular accident, with interest at the rate of 9% per annum from the date of filing of claim petition i.e. 6/3/1998 till realisation, with interest and proportionate costs of the petition and the same shall be recovered from the appellant and other opponents. The appellant herein and respondent Nos.2 and 3 are jointly and severally held liable to pay the aforesaid amount of compensation to the claimant and it will be open for the original claimant to recover the entire amount of compensation with interest and costs from any one of the original opponents i.e. appellant herein and respondent Nos.2 and 3. 10.The appellant – Insurance Company is directed to FA/1074/2008 21/22 JUDGMENT deposit the entire amount of compensation, as stated hereinabove, with interest and proportionate costs with the tribunal within two months from the date of this judgement and order. Rs.25,000 deposited by the appellant herein shall be transmitted by the registry of this Court to the tribunal immediately. 11.On such deposit, the tribunal shall invest 80% of the amount of the compensation with proportionate costs and interest in Fixed Deposit in any Nationalised Bank, for a period of five years, having a branch of the choice of the original claimant with a further direction that the claimant shall not be entitled to have loan or advance on the said deposit without the permission of the tribunal. However, the claimant shall be entitled to periodical interest on the said fixed deposit. Balance 20% of the amount of compensation with proportionate costs and interest be paid to the father of the original claimant by Account Payee Cheque on proper identification and verification. The tribunal is directed to personally see that the that the said cheque is handed over to the father of the original claimant and he be FA/1074/2008 22/22 JUDGMENT appraised what amount the claimant will be entitled to receive by way of compensation, what amount would be deposited in the Fixed Deposit Receipt and what amount the claimant would receive by way of Account Payee Cheque and that what amount of interest on the said deposit the claimant will receive. The first appeal is accordingly partly allowed. In the facts and circumstances of the case, there shall be no order as to costs. 12.In view of above order passed in main appeal, no orders in Civil Application No.2871 of 2008. [J.R. VORA, J.] [M.R. SHAH, J.] rafik