IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1973 of 1997 With FIRST APPEALS No. 1975, 1977, 1978, 1979 of 1997 With CIVIL REVISION APPLICATIONS No. 777 & 778 OF 1997 For Approval and Signature: Hon'ble MR.JUSTICE J.N.BHATT and Hon'ble MR.JUSTICE H.R.SHELAT ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- UNITED INSURANCE CO LTD Versus LEGAL HIERS & REP OF DECD BABUBHAI BHOTHABHAI -------------------------------------------------------------- Appearance: MR PV NANAVATI, Advocate for the appellants. -------------------------------------------------------------- CORAM : MR.JUSTICE J.N.BHATT and MR.JUSTICE H.R.SHELAT Date of decision: 14/07/97 ORAL JUDGEMENT (Per: J.N. Bhatt, J.) In this batch of seven appeals, the controversy and challenges have been raised by the common appellant, United India Insurance Company Limited, original-opponent No.3 (Insurer) being aggrieved by the composite and common judgment and award recorded by Motor Accident Claim Tribunal (Main), Bhavnagar, passed on 22nd November 1996. 2. A few salient features leading to the rise of this group of appeals may be, shortly, narrated at the outset. Nine claim petitions were filed by the different claimants. The road accident in question occurred on 23.3.1995 at about 9.45 a.m. in between villages Khodiyar and Navagam on Bhavnagar-Rajkot State Highway in the Bhavnagar District. Since common questions are raised and common award is adopted, common evidence was led, we propose to dispose of this batch of appeals simultaneously. 3. Two vehicles were involved in the road accident,one Mini Luxury Bus No. GJT 9247 and S.T. Bus No. GQE 8762 (hereinafter referred to as `Mini Bus' and `S.T. Bus' for the sake of convenience). It is a case of the claimants in all the petitions that the driver of Mini Bus, one Mr. M.M. Baraiya was rash and negligent and fully accountable for the happening of the road accident in question. The claimants consistently and coherently pleaded that the Mini Bus driver was driving his bus at the relevant time in excessive and uncontrollable speed and on the wrong side of the road. The Mini Bus driver in an attempt to overtake a vehicle going ahead went on the wrong side and dashed against the ongoing S.T. bus which was on its extreme correct side. Thus according to the case of the claimants there was no rashness or negligence or any accountability on the part of the driver of the S.T. bus and the full blameworthiness lay on Mini Bus driver. 4. On account of head-on collision the passengers travelling in the Mini Bus sustained injuries of varying gravity and there were also fatal injuries. After making assessment and the evaluation of the evidence the Tribunal in its composite judgment positively reached a conclusion that the entire responsibility for the happening of the road accident was on the part of the Mini Bus driver and there was no negligence on the part of the driver of the S.T. bus. This finding of fact is vehemently questioned before us. The Tribunal has clearly held that the claimants have proved that the original-opponent No.1 driver of the Mini Bus was responsible for the accident. 5. In Para 24 of the impugned judgment, Issues No. 1 and 2 are, elaborately, dealt with by the Tribunal. The manner and mode in which the accident occurred speaks volumes about gross rashness and negligence on the part of the Mini Bus driver who should not have taken his bus on extreme wrong side without giving signal for overtaking a truck going ahead. Apart from that he must be driving his bus in such a way with uncontrollable speed because even despite seeing oncoming S.T.bus on its extreme correct side the driver of the Mini Bus could not control the vehicle. Had he driven the Mini Bus in a cautious manner or in a controllable speed, accident could have been averted. The discussion made by the Tribunal in Para 24 is quite justified and the learned advocate appearing for the appellant has not been able to convince us to make a departure thereof. The photographs of scene of accident taken at the relevant time were produced at Exhs. 110 & 111. The Panchnama of the scene of accident was produced, at Exh. 37. The condition of the vehicles, the dimensional part of damage to both the vehicles, undoubtedly, go to show that the entire responsibility for the happening of the road accident remained on the part of the driver of the Mini Bus. We do not propose to repeat those discussions in Para 24. However, we hasten to add that the observations made by the Tribunal in the said paragraph could not be shown to be impeachable. Therefore, the first contention that the S.T. bus was compositely liable for the happening of accident cannot be accepted. The finding of fact recorded by the Tribunal, upon the assessment and analysis of the evidence on record that the entire responsibility was on the part of the driver of the Mini Bus, has remained unquestionable. Therefore, the first contention raised by learned advocate, Mr. Nanavati, on behalf of the appellant, is, meritless, and is required to be rejected and is accordingly rejected. 6. Next it would take us to the consideration of the quantum of compensation granted by Tribunal in different aforesaid claim petitions. Before we examine the merits of each petition insofar as the quantum of compensation is concerned, we would like to put it on record that at the admission stage, we were supplied with the copies of the evidence part by the learned advocate, Mr. Nanavati while appearing for the appellant. Upon the request of learned advocate for the appellant, two Civil Revision Applications connected with the seven group of matters and arising out of the same accident involving same parties in Civil Revision Application No. 777 of 1997 and 778 of 1997 were also heard along with this group of appeals. 7. Before we discuss the merits of quantum of compensation case-wise, we would like to put important and relevant factual data in a following tabular form so as to obviate repetition of the facts and firsthand account of the material information; ==================================================================== Sl. First Appeal M.A.C.P. Amount Amount Fatal or No. Number. Number. Claimed. Awarded Injury Rs. Rs. ==================================================================== 1. 1973 of 1997 151/1995 8,00,000.00 6,20,000.00 Fatal 2. 1975 of 1997 251/1995 40,000.00 61,000.00 Personal Injury. 3. 1977 of 1997 280/1995 1,00,000.00 64,000.00 Injury. 4. 1978 of 1997 540/1995 1,32,600.00 68,000.00 Injuries. 5. 1979 of 1997 541/1995 72,000.00 22,000.00 Personal Injuries. 6. Civil Revn. Appln.777/97 281/1995 9,00,999.00 91,000.00 Injury. 7. Civil Revn. Appln.778/97 496/1995 25,000.00 9,000.00 Injuries. ==================================================================== 8. It could very well be visualized from the aforesaid tabular form showing relevant and material information about the claim petitions that in the light of the facts and circumstances, it cannot be said that the amount awarded by the Tribunal in a composite judgment is highly excessive or very much inflated requiring our interference in the first appeals. On the contrary, after having heard Mr. Nanavati at a greater length and considering the records of the copies of evidence which were supplied to us by Mr. Nanavati in course of submissions,we are satisfied that the amount in respective claim petitions awarded by the Tribunal is justified. It is a settled proposition of law that ordinarily appellate court under Motor Vehicles Act should not embark upon an enquiry in a First Appeal against the award of the Tribunal unless it is shown to be grossly inadequate or highly excessive. Ordinarily, there is no question of inadequacy since insurer only could question legality and validity of the judgment on limited grounds. The Tribunal however had also given permission to cross-examine the insurer in absence of any effective defence being raised by the insured and driver. Therefore, we also permitted the insurer to make submissions on negligence and quantum aspects. 9. The Tribunal has to make an award of just and reasonable amount of compensation for injury or death of a person or damage to the property arising out of the use of the motor vehicles. It, therefore, becomes clear that the anxiety of the Tribunal ought to be to see that a victim of the road accident or in case of fatal accident, victim's dependents and legal representatives are awarded an amount which is just and reasonable. Thus the concept is to recompensate the loss, harm or resultant injury. Doctrine of "restitutio in intigrum" is the basis of the whole edifice of compensation under the Motor Vehicles Act. 10. The Tribunal has to address itself as to what amount will be reasonable and just in the circumstances of the case so that there may be a compensation in proportion to the loss, harm or wrong suffered by the victims of the road accidents. Needless to mention that on account of variety of reasons the accidents involving injuries and fatal injuries are increasing and one of them is on account of increase in the vehicular traffic. It is in this context the right which was hitherto available to the victims of the road accidents under the common law based on tort is crystalised initially in old Motor Vehicles Act, 1939 and thereafter in a new Act of 1988. It must be remembered that in a case of personal injuries the amount of compensation has to be awarded under two heads; (1) Pecuniary loss suffered; (2) Personal loss to the victim. In case of fatal injury, the legal representatives of the dependents of the deceased are entitled to an amount of compensation which they have suffered on account of untimely and premature demise arising out of use of the vehicle. No doubt, we may make it abundantly clear at this juncture that what we value is not the value of invaluable life or loss of limb or effect on any part of anatomy in the matter which is otherwise invaluable. But the main endeavour as transpires from the statutory provisions is to see that the victim or the dependents of the victim are placed in the same financial position, as quickly as possible, in terms of money, as if there occurred no accident. In other words, we may make it clear that Tribunal is obliged to make an award for the resultant loss, wrong or harm suffered and it is not a reward. Therefore, a question based on tort (except under Sec. 140 or 163-A) must indicate the resultant harm, wrong, or damage and the Tribunal has to grant a just and reasonable award after taking into account and making an assessment of the relevant facts and circumstances emerging from the evidence on record. In short, the main anxiety of the Tribunal in such cases is to see that the harm, damage or injury as far as possible in terms of money, is recompensated. The basis is "restitutio in intigrum" which cannot be lost sight of. 11. In the aforesaid legal setting, we would like to examine the merits of awards and amount of compensation awarded by the Tribunal to different claimants. Insofar as Civil Revision Applications No. 777 and 778 of 1997, respectively, are concerned, it would not detain us any longer as apart from the amount being insignificant, Rs.5,000/- and 9,000/respectively for personal injuries, there is no other substantial question or any aspect of law involved. Therefore, in our opinion, on the ground of smallness of amount and absence of any legal controversy, they are required to be rejected at the threshold keeping in mind the nature, scope, ambit and legal inhibitions which shorten the jurisdictional sweep. Therefore, in our opinion, these two revisions are required to be rejected. Additionally, the petitioners in this revisions have not cleared and removed the Office Objections. So on all counts both these revision applications deserve to be rejected at the outset. Accordingly, they are rejected directing appellants to comply and remove office objections within three weeks. 12. As we have notified from the tabular chart that First Appeal No. 1973 of 1997 has arisen out of the award of Rs.6,20,000/- plus costs and interests in Motor Accident Claim Petition No. 151 of 1995. It is fatal injury case. The deceased was the breadwinner of the family, his life was cut-short by the cruel hands of providence, untimely, at the age of 32 where he was in the prime of his youth. Deceased Babubhai was doing diamond business at the relevant time. He was also working as a broker in the business of diamond. The respondents in this First Appeal are the legal heirs and representatives of the deceased, Babubhai who are the original-claimants who claimed an amount of Rs. 8,00,000/- by way of compensation who came to be awarded Rs. 6,20,000/- plus costs and interest. 13. Learned advocate, Mr. Nanavati vociferously and repeatedly submitted that the amount of Rs. 6,20,000/- is highly excessive. This submission, prima facie, may appear to be subtle but not sound when one gets into the reality of the facts. The Tribunal has taken into consideration various aspects and circumstances referable to the grant of compensation in a case of fatal injury. The relevant discussions are made in para 25 of the common judgment. 14. There was no dispute about the fact that deceased was 32 years old at the relevant time. Deceased was a sole breadwinner of the family and he had to shoulder the liability and responsibility of his five children, his wife and parents. No doubt the parents were residing at the relevant time with the other brothers of the deceased but the natural, moral, legal liability to maintain the parents cannot be questioned. Deceased Babubhai was engaged in diamond business. He was also working as a broker. Deceased was young, hale, hearty and energetic at the relevant time as per the evidence on record. The claimants case was that the deceased was earning Rs. 5,000/- per month at the relevant time. However, the Tribunal has not accepted this version of the claimants and has assessed the income of the deceased at Rs. 5,000/- considering the income at the relevant time and also the future and prospective earnings. The dependency value is assessed by the Tribunal at Rs. 40,000/- per annum and it has been multiplied by 15 multipliers. Since deceased was 32, this multiplier is quite reasonable in the light of the facts and circumstances and evidence on record. The assessment of Rs. 5,000/- per month being the income of the deceased taking into consideration the prospective and potential income in future and the dependency value of Rs. 40,000/- have remained unimpeachable. With the result, the Tribunal has awarded an amount of Rs.6,00,000/(Rs.40,000/- multiplied by 15). The claimants are also awarded conventional amount of Rs. 20,000/- for the loss of expectation of life. Thus, total amount of Rs. 6,20,000/- awarded by the Tribunal to the dependents and the legal representatives of the deceased, Babubhai by any stretch of imagination could not be said to be so excessive or perverse requiring our interference in this appeal. We have also had the benefit of going through the entire record, the certified copies of which were supplied to us. After having examined the record and considering the submissions of Mr. Nanavati, we are of the opinion that this appeal is without any substance and is required to be rejected at the threshold. Accordingly, it is rejected. 15. An amount of Rs. 61,000/- is awarded in the final order arising out of Motor Accident Claim Petition No. 251 of 1995 against which First Appeal No. 1975 of 1997 is preferred. After having considered the relevant discussions in Para 27 in the common judgment and the amount mentioned in the final order, we are convinced that there is bonafide typographical mistake in mentioning amount of Rs. 61,000/- instead of Rs. 41,000/-. It be noted that claimant, Jasvantbhai who was serving in the Sihor Nagarpalika as Senior Clerk at the relevant time had suffered fracture of lateral condyle left leg. Considering the nature and number of injuries, injured victim claimed an amount of Rs. 40,000/- by way of compensation only. The Tribunal assessed loss at Rs. 61,000/under four heads, the breakup of which is specifically mentioned in the penultimate para 27 in the impugned judgment. It is also observed by the Tribunal again in the last portion of Para 27 which is as follows; "However, the petitioner has restricted his claim to the tune of Rs. 40,000/- only and therefore, his entire claim requires to be allowed." 16. Despite this, the final order after Para 35 indicates that the amount of Rs. 61,000/- is awarded by way of compensation and not Rs. 40,000/- though the claim was restricted to that extent and though the Tribunal has accordingly observed as seen above. Ordinarily, in such a situation, Tribunal can correct the mistake and when it comes to the notice of the appellate court, such a typographical mistake needs to be corrected. We, therefore, propose to correct it even in absence of the claimant for the simple reason that issuance of notice only on this core to the concerned claimant would not help or enlighten this Court, but in all probabilities he will be out of pocket and when we see the result is obvious for the simple reason that it is arising out typographical arithmetic mistake. In the circumstances, as a special case, without issuing notice to the claimant considering the smallness of the amount and together with the fact that there is a clear arithmetical typographical error which can be corrected by this court as the appeal is in continuation of the original proceedings, we hereby correct the typographical arithmetical mistake and direct the original opponents to pay only Rs. 40,000/- against the amount of Rs. 61,000/- mentioned in the final order. In other words, the amount of compensation of Rs. 21,000/- is to be deducted from the amount of Rs. 61,000/- so that it may not exceed the amount claimed by the claimant. It is a settled proposition of law which we would like to reiterate that the claimants are not entitled to amount of compensation which is not claimed. No doubt, insofar as claims under different heads are concerned, they are always subject to the assessment made by the Tribunal concerned, but the overall claim cannot be acceded while passing the amount of compensation in an award. In the result, in the First Appeal No. 1975 of 1997, the amount of Rs.61,000/- is corrected and reduced to Rs. 40,000/- and it is clarified that the amount by way of compensation is awarded as claimed though the awardable amount was found more with proportionate costs and interest. Accordingly in this appeal amount is corrected and the final order shall stand modified to the aforesaid extent with no order as to costs. 17. An amount of Rs. 64,000/- is awarded for the personal injuries arising out of an award in M.A.C.P No. 280 of 1995 leading to First Appeal No. 1977 of 1997. The injured claimant claimed an amount of Rs. 1,00,000/- by way of consolidated amount of compensation for the personal injury sustained by the claimant, Gangaben. She sustained fracture of right tibia and fibula u/3 and also injuries on right knee joint. Her right knee movements were considerably restricted. It is also very clear from the medical evidence that she has sustained shortening of right leg by 1 cm. The disablement percentage is assessed and according to the evidence on record, claimant has sustained permanent partial disablement and resultant disability to the extent of 8%. The injury certificate is produced at Exh. 80 and disability certificate is produced at Exh. 79. 18. It is very clear from the evidence on record that the claimant was initially taken to Sir `T' Hospital at Bhavnagar as an indoor patient where she was kept for treatment. After discharge from the said hospital, she was undergoing treatment for some time. She was working as a Sweeper in Anandji Kalyanji Firm and she was earning Rs. 25.50 ps.per day. It is noticed from her evidence that after disablement on account of the injuries sustained in the vehicular accident in question, she has not been able to perform her duties as effectively as she was doing prior to the date of accident. No doubt, she has stated in evidence that she is totally rendered jobless pursuant to the infliction of harm and injuries. 19. No doubt, it appears from the evidence that she was for a long spell bedridden and was required to spend a huge amount for treatment. The required documentary evidence and medical evidence had been produced, X-Ray plates were taken, radiological findings were obtained, medical bills, hospital case papers, medical certificates etc.,are produced. In the light of the nature of fracture injuries, period of hospitalization, resultant disablement to the extent of 8% in the movements of right leg, the award of compensation of Rs.64,000/- awarded under the four different heads, the breakup of which is mentioned as follows, could not be said to be in any way excessive or harsh requiring interference by this court exercising appellate power; Rs.25,000.00 for future economic loss due to disability. Rs.12,000.00 for mental agony, pain, shock and suffering. Rs.15,000.00 for medical expenses, transportation and attendance charges, special diet, and other misc. expenses. Rs.12,000.00 for loss of actual income. ____________ Rs.64,000.00 Total ____________ 20. In the net result, we have no hesitation in finding that this appeal is meritless and is required to be rejected. Accordingly, it is rejected at the threshold. 21. It will take us to the consideration for an amount of compensation of Rs. 68,000/- questioned in First Appeal No. 1978 of 1997 which has arisen out of award granted in M.A.C.P. No. 540 of 1995 by the Tribunal. The claimants made the claim of Rs. 1,32,600/-. 22. Claimant, Bachubhai sustained fracture of pelvis bone in his right leg. He was firstly removed to the Sir `T' Hospital, Bhavnagar, and thereafter again he was admitted in Railway Hospital, Bhavnagar, as an indoor patient. For a pretty long time he had remained as an indoor patient for treatment. 23. Claimant Bachubhai was working in Railway at the relevant time as a Points Man and he was earning an amount of Rs. 4,356/- per month which is not in dispute. It appears from the testimony of the claimant that he was required to take leave of 5 months as he was totally bedridden. He had spent huge amount for his treatment. The payslip of the claimant is produced at Exh. 102. The discharge summary sheet of Railway Hospital, Bhavnagar is produced at Exh. 103. No doubt, it is true, the claimant has not sustained permanent partial disablement on account of pelvis fracture. We may state here that it is not the only permanent disablement must carry the future or prospective loss of earnings. At times in a given case in view of the type, nature, mode of the injuries are such that without resultant disablement it affects not only the functional ability of the claimant but at times even it affects the mental aspect. Al though no permanent partial disablement has resulted into, the impact, adverse effect and ramifications on the anatomy is such that it affects functional performance more than even a case of partial disablement. Pelvis fracture, the manner and mode it happened to the claimant would clearly go to show that it will have significant adverse impact on the anatomical atlas of the claimants. We need not go to the extent the quantity and quality of the damage that may ultimately arise for the simple reason that the Tribunal has awarded an amount of Rs. 68,000/-. No doubt, an amount of Rs. 30,000/- is