FA/4943/2007 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4943 of 2007 With CIVIL APPLICATION No. 13114 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 ? ========================================================= NEW INDIA ASSURANCE CO. LTD. - Appellant(s) Versus KAMLESHBHAI HARISHBHAI RAGHUVANSHI & 2 - Defendant(s) ========================================================= Appearance : MR VASANT S SHAH for Appellant(s) : 1, MR MTM HAKIM for Defendant(s) : 1, None for Defendant(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 27/02/2008 ORAL JUDGMENT FA/4943/2007 2/12 JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. Appeal admitted. The original claimant is represented by advocate on Caveat. On the request of learned advocates for the parties, the matter is taken up for final hearing. 2. This appeal arises out of a judgment and award rendered by the Motor Accident Claims Tribunal (Auxiliary) (6th Fast Track Court) Surat in Motor Accident Claims Petition No.948 of 1992 rendered on 8.3.2006 awarding a compensation of Rs.15,21,060/- to the claimant with 9% interest and costs. The claimant met with a vehicular accident on 13.4.1992. The claimant, a minor, was travelling on the pillion seat of Kinetic Honda Scooter No.GJ-5J-9200 which was driven by original opponent no.1 – Chandrasen Narimal – respondent no.2 herein and insured by the appellant. Somehow, the driver of the scooter lost control over the vehicle as a result of which the claimant fell down on the divider and suffered head injuries. The injuries ultimately resulted into quadriplegia i.e., paralysis of the whole body below the neck. The claimant was required to be hospitalized for a long time, had to undergo surgery and suffer permanent partial disablement in form of quadriplegia. He, therefore, initially lodged a claim of Rs. 9,00,000/- as compensation but enhanced the same to Rs.30,00,000/- at later point of time. The amendment for enhancement of claim was permitted by the Tribunal. FA/4943/2007 3/12 JUDGMENT 3. The appellant filed its written statement at Exh.28 before the Tribunal more or less in form of denials. But, it was specifically contended that the claimant; minor Kamlesh; himself was driving the scooter and the accident is out-come of his own negligence and therefore, the insurance company is not liable to pay compensation. The owner and driver of the scooter have filed their written statements at Exh.114 where details of vehicle are accepted. It is denied that the accident occurred because of negligence on part of the driver of the scooter. The defence taken is that because of a dog abruptly running across the road in the path of the scooter, the scooter slipped and the claimant sustained head injury. 4. The Tribunal, after considering the evidence of record, came to the conclusion that the factum of the involvement of the vehicle in the accident is established, the factum of the vehicle being insured with the appellant was also established and held that all the opponents were jointly and severally liable to pay compensation. The Tribunal did not accept the theory of the claimant himself driving the scooter. 4.1. While computing the amount of compensation, the Tribunal took into consideration the fact that the claimant has suffered permanent disability in form of quadriplegia and would be confined to bed for rest of his life. He has spent sizeable amount on FA/4943/2007 4/12 JUDGMENT treatment and would be required to spend further money on treatment. The Tribunal also assessed the prospective income at Rs.2500/- deducting 1/3rd out of it while computing future loss of income and took Rs.1667/- as the figure for future loss of income and adopted the multiplier of 15 and passed the award impugned herein. 5. Learned advocate Mr.Shah appearing for the appellant submitted that the Tribunal has assessed the prospective income of the claimant to be Rs.2500/- per month. Since the claimant was then studying, he had no income of his own and the Tribunal, therefore, ought to have resorted to the second Schedule of the Motor Vehicles Act and assessed a notional income of Rs.15000/- p.a., in respect of the claimant. 5.1. Mr.Shah also submitted that the Tribunal has awarded an amount of Rs.3,00,000/- under the head of pain, shock and suffering which is very much on higher side. Mr.Shah submitted that it is the case of the claimant that after the fall, he became unconscious and an unconscious man does not suffer any pain, therefore, at the most an amount of Rs.25,000/- could have been awarded by the Tribunal under the head of pain, shock and suffering. 5.2. Mr.Shah also submitted that an amount of Rs. 2,00,000/- is awarded by the Tribunal for future treatment including electric bill and purchase of air FA/4943/2007 5/12 JUDGMENT conditioner. Therefore also, the appeal may be entertained. So far as award of compensation of actual medical expenses is concerned, Mr.Shah concedes that it is founded on medical bills and may not be interfered with. 5.3. Last but not the least, Mr.Shah contended that the claimant was a pillion rider and his risk was not covered by the policy. The appellant, therefore could not have been saddled with any liability to pay compensation. 6. The appeal is opposed to by learned advocate Mr.M.T.M.Hakim. He submitted that the Tribunal has taken into consideration the decision in the case of R.D.Hattangadi V/s M/s Pest Control (India) Pvt.Ltd., AIR 1995 SC 755 where the Apex Court in case of a person aged about 51 years suffering from paraplegia awarded a compensation of Rs. 3,00,000/- under the head of pain, shock and suffering and loss of amenities of life. Here is a case where a young boy has suffered quadriplegia and will have to undergo the trauma for a longer period of life. The Tribunal in fact ought to have awarded higher amount of compensation. 6.1. Mr.Hakim also submitted that the Tribunal has committed an error in deducting 1/3rd of the income while awarding compensation under the head of future loss of income. Such deduction has to be made only in fatal cases. Mr.Hakim submitted, however, FA/4943/2007 6/12 JUDGMENT since the claimants has not preferred any appeal for enhancement, he would only say that the compensation does not merit further reduction. 6.2. Mr.Hakim also submitted that the Tribunal has adopted a multiplier of 15 whereas considering his age at the time of the accident, a higher multiplier of at least 18 ought to have been adopted. 6.3. Mr.Hakim also submitted that the claimant is required to be constantly attended by an attendant as he is not in a position to move his body even an inch except his head. He is not in a position to speak because of quadriplegia. Constant medication is required. To save him from bed soars, he is constantly required to be kept in an air conditioned room and, therefore, a compensation of Rs.2,00,000/- awarded by the Tribunal under the head of future medical treatment is far lesser than a just compensation. Mr.Hakim submitted that considering these aspects, the award by the Tribunal is just, legal and proper and does not call for any interference. 7. We have considered the rival side contentions and have examined record and proceedings. 8. The first question that falls for our consideration is, whether the appellant could have been saddled with liability to pay the compensation in view of the fact that the claimant himself was a FA/4943/2007 7/12 JUDGMENT pillion rider and was not covered by the policy. 9. In order to answer this question, we looked for, at the first instance, a copy of the policy in the record and proceedings but we are unable to find copy of the policy and in absence of a policy copy on record, it is not possible to conclude that risk of pillion rider was not covered by the policy. 9.1. We may also observe that the case of the appellant in the written statement was that the claimant himself was driving the scooter. Therefore, the stand that the claimant was a pillion rider would run contrary to its own stand. Under these circumstances, since the appellant is taking self- conflicting stand, it is not possible to accept the same. 9.2. In view of the fact that in the written statement, a specific plea about the risk of pillion rider being not covered by the policy is not taken and the fact that no plea of want of policy is taken, the appellant would be liable to pay compensation as indemnifier to the claimant as has been held by the Tribunal. The first contention, therefore, cannot be accepted. 10. Now comes the contention on facts of the case and quantum of compensation. 10.1. A contention is taken that the FIR was FA/4943/2007 8/12 JUDGMENT delayed by about 4 months and 22 days. It may be observed that the incident occurred on 13.4.1992 whereas the FIR is dated 5.8.1992 and delay is apparent. But we also find that an Occurrence Report was registered on 13.4.1992 itself which is at Exh.118 where details of the accident involving the claimant is recorded. Therefore, though a formal FIR is lodged late, there is no reason to doubt the occurrence of accident and the claimant suffering injuries therein. The contention, therefore, cannot help the appellant in any way. 10.2. Now on quantum aspect, it has been contended that the Tribunal committed an error in assessing the prospective income of the claimant at Rs.2500/- p.m., and that the Tribunal ought to have relied on second schedule of the Motor Vehicles Act and assessed the income of the claimant at Rs.1250/- p.m., i.e. Rs.15000/- p.a. 10.3. It is not possible to accept this contention for the reason that there is evidence on record to show that both the parents of the claimant were income tax assessees and payers. It is not a case of no evidence on prospects of the victim. The father is running a business. The claimant, had he not suffered from quadriplegia and even if he was not so good at studies, would have joined the business and would have earned at least the same as his father does. The father of the claimant is indicated to have filed returns of an income of approximately Rs.3,80,000/- FA/4943/2007 9/12 JUDGMENT for the assessment year 1994-95 and an income of Rs.3,72,000/- for the assessment year 1993-94. It is true that the claimant did not have his own independent income at the time of accident but there is sufficient material to indicate his prospects in life. In our view, therefore, the Tribunal cannot be said to have over assessed the prospective income of the deceased at Rs.2500/- p.m. 10.4. We may hasten to add that though the Tribunal has assessed the prospective income of the claimant at Rs.2500/-, it has deducted 1/3rd from it for assessing compensation under the head of future loss of income and taken the income at Rs.1667/- p.m., which is, in our view, an error committed by the Tribunal. Such deduction is not to be made in case of personal injuries and that is permissible only in fatal cases. What is to be computed is loss of future income and not dependency loss. We may refer to the note below second schedule which makes it clear that deduction is to be made in case of claims for a compensation in fatal cases only and not injury cases. Thus, virtually; the Tribunal has assessed the income very near to the notional income and no interference, therefore, is called for therein. So far as the award of compensation by the Tribunal under the head of future economic loss is concerned, the challenge is only on this count and thus compensation under that head calls for no interference. FA/4943/2007 10/12 JUDGMENT 10.5. The Tribunal has then awarded compensation of Rs.3,00,000/- under the head of pain, shock and suffering which is heavily assailed upon by learned advocate for the appellant. However, if we refer to the decision in case of Hattangadi (supra), we find that the Apex Court has reduced the compensation of Rs.6,00,000/- under the head of pain, shock and suffering and loss of amenities of life to Rs.3,00,000/-. This compensation of Rs.3,00,000/- was awarded by the Apex Court in case of a person aged about 51 years suffering from paraplegia i.e., paralysis of both the lower limbs as against the case of the claimant where he suffered injuries at the age of 17 and is suffering from quadriplegia i.e.,paralysis of all four limbs, virtually the body below the neck. He leads an unfortunate vegetable sort of life. He is required to be attended to by attendants constantly. The agony of a youth who is confined to bed for rest of his life without the feel of touch is in-assessable in terms of rupees. When the Tribunal has awarded Rs.3,00,000/- as compensation under the head of pain, shock and suffering, we do not think any interference is called for. In the year 1995, the Apex Court has awarded the compensation of Rs.3,00,000/- comprising of compensation of Rs.1,50,000/- for pain, shock and suffering and Rs.1,50,000/- for loss of amenities of life. The Tribunal was, therefore, justified in awarding compensation of Rs.3,00,000/- under similar head. FA/4943/2007 11/12 JUDGMENT 11. The next contention was that the compensation of Rs.2,00,000/- awarded by the Tribunal as compensation for future treatment, electricity bill, etc., is excessive. It cannot be lost site of the fact that the person suffering from quadriplegia would be lying as a lump in bed. All mental faculties would be active, alert and agile throbbing to lead a regular life. He will have to depend on others even for medicines and for his daily chores. If he remains in bed for such a long time, he may suffer bed soars. Therefore, some preventive or prophylactic action would be necessary in form of medication and in other terms. In our view, we can certainly take notice of the fact that medical treatment is becoming costlier day by day. The amount of Rs.2,00,000/- awarded for future treatment does not seem to be on higher side to us. If the claimant could produce the medical bills etc., to the tune of Rs.6,41,000/- for the medical treatment taken by him from the date of accident till the documents were produced before the Court, the expenditure in future would be certainly higher than that. The claimant has produced the medical bills of Rs.6,41,000/- which have been accepted as true, genuine and compensation under that head has been awarded by the Tribunal and not disputed by the appellant. These factors go to show that the award of Rs.2,00,000/- as compensation under the head of future medical treatment does not call for any interference. 12. In light of above discussion, it is clear FA/4943/2007 12/12 JUDGMENT that the Tribunal has adopted a conservative approach while adopting the multiplier, while computing the dependency loss and, therefore, the judgment impugned does not call for any interference by this Court in exercise of the appellate jurisdiction in an appeal by the insurance company for reduction in the award of compensation. 13. The appeal, therefore, must fail and stands dismissed accordingly. No order as to costs. 13.1. Rs.25,000/- deposited by the appellant with this Court shall be transmitted to the Tribunal forthwith by the Registry. 13.2. Record and proceedings be sent back to the Tribunal forthwith. 14. Civil Application stands disposed of in view of the order passed in the appeal. ( A.L.DAVE, J )( SHARAD D DAVE, J ) srilatha