FA/4018/1996 1/28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4018 of 1996 With FIRST APPEAL No. 4019 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE AKSHAY H.MEHTA ========================================================= 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 ? ========================================================= PANKAJBHAI VITHALDAS PARIKH - Appellant(s) Versus CHHAGANJI DAHYAJI THAKOR & 2 - Defendant(s) ========================================================= Appearance : MR PRAKASH K JANI for Appellant(s) : 1,MR MEHUL SHARAD SHAH for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1 - 2. MR YN RAVANI for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKSHAY H.MEHTA Date : 03-05/10/2006 ORAL COMMON JUDGMENT : Since both these appeals arise from a common judgment delivered FA/4018/1996 2/28 JUDGMENT by the Motor Accident Claims Tribunal [Auxi.] Banaskantha at Palanpur in Motor accident Claims Petitions No. 220 of 1984 and 221 of 1984 on 15th October, 1993, they are heard together and now they are being disposed of by this common judgment. 2. The appellant of First Appeal No. 4018 of 1996 – Pankajbhai Vithaldas Parikh is the original claimant of M.A.C.P. No. 220/1984; whereas the appellant of First Appeal No. 4019 of 1996 – Patel Pravinbhai Ishvarbhai is the original claimant of M.A.C.P. No. 221/1984. 3. The vehicular accident in which both these appellants received injuries took place on 10th March, 1984 at about 7.30 p.m. The appellants were proceeding on a motor bike. They were travelling from Bhabhar to Radhanpur on a State Highway on a motor cycle bearing Registration No. GJV-1247. When they reached a place near Bhabhar Guest House, there was collision between the motor bike and a jeep car bearing Registration No. GJV-8566 which was driven by respondent no. 1. The jeep was coming from opposite direction. As a result of the collision, the motor bike was knocked down and both the appellants sustained serious injuries on their left legs. They were hospitalized and treated for the fractures of the bone of the left legs. Even after their discharge from the hospital, they were confined to bed for considerably long time and could not attend to their respective jobs. Appellant of First FA/4018/1996 3/28 JUDGMENT Appeal No. 4018/1996, at the relevant time, was working in the Sub Division No. 1 of Public Health and Welfare at Radhanpur and he was drawing salary of Rs.1509/- p.m. So far appellant of First Appeal No. 4019/1996 is concerned, he was also working at Radhanpur and drawing salary of Rs.1067/- p.m. 3.1. In view of the aforesaid, the appellants preferred petitions under the provisions of the Motor Vehicles Act, 1939 for claiming compensation. Appellant of First Appeal No. 4018/1996 claimed Rs.60,000/-, whereas appellant of First Appeal No. 4019/1996 claimed Rs.50,000/-. At the hearing both the appellants examined themselves and their evidence is at Exh. 36 and Exh. 44 respectively. They have also examined Dr. Amrutbhai Amthabhai Patel, who is Orthopedic Surgeon and owned Orthopedic Hospital at Palanpur. The appellants were admitted in his hospital and they were under his treatment. His evidence is at Exh. 52. Over and above that, the appellants also produced documentary evidence. As against that, the respondents did not examine any witness. The offending vehicle, namely the jeep was driven by respondent no. 1 and it was owned by respondent no. 2 and insured with respondent no. 3. 3.2. At the end of the proceedings, the Tribunal came to the conclusion that the accident occurred because of the negligence of respondent no. 1 as well as that of appellant of First Appeal No. 4019/1996. At the time of incident, this appellant was driving the motor bike. Of-course, the Tribunal FA/4018/1996 4/28 JUDGMENT attributed 80% negligence to respondent no. 1 and 20% to appellant of First Appeal No. 4019/1996. So far the assessment of compensation is concerned, the Tribunal awarded compensation of Rs.35,000/- to appellant of First Appeal No. 4018/1996. It awarded compensation of Rs.24,000/- to appellant of First Appeal No. 4019/1996. The appellants have, therefore, approached this Court to seek enhancement of the compensation. 4. I have heard Mr. Mehul Sharad Shah, learned advocate for the appellants in both the appeals as well as Mr. YN Ravani, learned advocate for the respondent no. 3 – Insurance Company. Respondents no. 1 and 2 though served, have not chosen to appear either in person or through advocate. It is submitted by Mr. Shah that the Tribunal has committed error in not properly assessing the just compensation. He has submitted that the entire claim of the appellants ought to have been granted by the Tribunal. He has submitted that under the head of future economic loss, the Tribunal has not assessed the compensation properly. According to him, the future economic loss could be assessed by the common formula which is adequately reflected in the judgment of the Division Bench of this Court rendered in the case of Ritaben alias Vanitaben Wd/o. Dipakbhai Haribhai v. Ahmedabad Municipal Transport Service reported in 1999 (1) GLR p. 388. He has further submitted that had the Tribunal followed that formula, the amount under the head of future economic loss would have been much higher than the actual amount awarded. According FA/4018/1996 5/28 JUDGMENT to Mr. Shah, even under the head of pain, shock and suffering, the amount awarded by the Tribunal is very less considering the injuries suffered by the appellants and the duration of recovery as well as the medical treatment they were required to follow including physiotherapy. Mr. Shah has also made a grievance that for actual loss of income the Tribunal has not taken into consideration the period during which they were confined to bed and could not report for duty. Mr. Shah has lastly submitted that though in the present appeal the additional claim is restricted to Rs.25,000/-, the Court can always award just compensation even if the amount of compensation exceeded the actual claim made in the proceedings by the claimants. Mr. Shah has placed reliance on several decisions in support of his contention, which will be referred to during the course of the judgment. So far appellant of First Appeal No. 4019/1996 is concerned, Mr. Shah has advanced additional submissions on the issue of negligence. He has submitted that inspite of the oral evidence of both the appellants, who were victims of the accident, the Tribunal has simply relied on the contents of the panchnama of the scene of occurrence, which has resulted into erroneous finding having been given by the Tribunal. According to Mr. Shah, considering the oral evidence of both the appellants, it is clear that the entire fault was that of respondent no. 1 and, therefore, the Tribunal was in error in fixing 20% negligence on the part of appellant of First Appeal No. 4019/1996. FA/4018/1996 6/28 JUDGMENT 4.1. As against that, Mr. YN Ravani, learned advocate appearing for the Insurance Company has supported the judgment of the Tribunal. He has submitted that considering the facts and circumstances of the case, the award of the Tribunal is just and proper and it is not required to be interferred with. He has submitted that both the appeals do not have any merit and they are required to be dismissed. Both the learned advocates have taken me through the record of the case, especially the evidence, oral as well as documentary, to support their respective submissions. 5. In view of the submission advanced by Mr. Shah in First Appeal No. 4019/1996, I will first discuss the issue of negligence to find out whether the Tribunal was justified in attributing 20% negligence to the appellant of this appeal. There is no dispute that there was head-on collision between the jeep car and the motor bike. There is also no dispute that jeep car was being driven by respondent no. 1 and the motor bike by appellant of First Appeal No. 4019/1996. The other appellant was a pillion rider. They were proceeding from Bhabhar to Radhanpur on a State Highway and the accident took place near the guest house. Both the appellants sustained injuries on their left leg on account of this accident. They have examined themselves before the Tribunal and they have given detailed account of the accident. Pankajbhai Vithaldas Parikh - appellant of First Appeal No. 4018/1996 has stated in his evidence that they were proceeding towards Radhanpur on a State Highway, at that time one jeep FA/4018/1996 7/28 JUDGMENT car came from the opposite direction with full speed which was bearing Registration No. GJV-8566. He has further stated that the driver of jeep was driving his vehicle on the wrong side. As a result of it, the jeep dashed against motor bike and both of them were thrown on the road. He sustained serious injuries. According to the witness, at the point of the accident, the road was very straight and at the time of accident only these two vehicles were on the road. He has stated that the jeep driver thereafter took his vehicle on the correct side and halted it at some distance from the spot of accident. In the cross- examination on this aspect, certain suggestions have been made to this witness with a view to show that it was the driver of motor bike who was negligent and the jeep was standing on correct side of the road since there was a puncture in the tyre . It was also suggested that since the driver of motor bike lost control, he rammed into the stationary jeep as a result of which, both the riders were thrown off the vehicle. These suggestions have been denied by the witness. 5.1. Pravinkumar Ishvarbhai Patel i.e. appellant of First Appeal No. 4019/1996 has examined himself at Exh. 44. In the examination-in-chief he has narrated the way in which the accident took place. He has stated that he was driving his vehicle on the correct side and at a slow speed. However, the jeep driven by respondent no. 1 came from the opposite direction with excessive speed and it dashed against the motor bike. As a result of the impact both of them were thrown off the bike. Thereafter, the driver of the jeep car i.e., FA/4018/1996 8/28 JUDGMENT respondent No. 1 took his vehicle ahead from the point where the accident took place and parked it on its correct side. According to the witness, the speed of his motor bike was approximately 40 Kms per hour. After the accident, both of them were initially treated at Bhabhar Government Hospital and thereafter removed to the hospital of Dr. Amrutbhai at Palanpur. In the cross- examination, the witness has stated that he did not know how to drive jeep. He has denied the suggestion that he was driving his vehicle on the wrong side of the road. He has also volunteered that the jeep car did not have the head lights. He has stated that the motor bike was lying on the west of the edge of the road at the distance of about 3 ft. He has denied that the accident occurred on account of his negligence. At this juncture, it is required to be noted that though respondents no. 1 and 2 were represented by an advocate Mr. Pujara, as can be seen from the title of the judgment, respondent no. 1 – the driver was not examined. He could have been the best witness to reflect the version of respondents about the accident. For reasons known to the respondents, he has not stepped into the witness box. In view of the same, it can as well be said that the evidence of appellants on the manner in which the accident took place has remained uncontroverted. As already stated above, nothing of importance from the point of view of the respondents is elicited in the cross-examination of both the witnesses. The Tribunal has referred to the panchnama of the scene of occurrence and after considering the contents thereof, it has come to the conclusion that there is 20% negligence on the part of appellant of First Appeal FA/4018/1996 9/28 JUDGMENT No. 4019/1996. It appears that the contents of the panchnama corroborate the version of the appellants. Further when there is oral evidence of eye witnesses on record, the Tribunal ought not to have placed total reliance on the panchnama and thereby determined the negligence of the parties. It is the well known principle of law that the panchnama has merely corroborative value and not beyond that. It is not a substantive piece of evidence. When the appellants examined themselves on oath and they stood the test of cross-examination, the Tribunal ought to have attached much value to their evidence particularly when the respondents did not choose to examine any witness to prove any negligence on the part of the driver of the motor bike. To that extent, the finding of the Tribunal clearly appears to be erroneous and the same is required to be quashed and set aside. Considering the evidence of both the appellants as well as the contents of the panchnama, I am of the opinion that there is 100% negligence on the part of the jeep driver i.e., respondent no. 1 and appellant of First Appeal No. 4019/1996 has been wrongly attributed the negligence even to the extent of 20%. 6. This brings me to the question whether the Tribunal has awarded just compensation to the appellants. So far appellant of First Appeal No. 4018/1996 is concerned, he has claimed a sum of Rs.60,000/- by way of compensation. However, he has been awarded Rs.35,000/-. In this appeal the additional claim was restricted to Rs.25,000/- by the appellant. The judgment FA/4018/1996 10/28 JUDGMENT shows that this appellant has been awarded Rs.13,500/- for future loss of income. For pain, shock and suffering he has been awarded Rs.10,000/-. He has also been awarded Rs.6,000/- for medical expenditure and Rs.2,500/- for attendance of one person. The actual pecuniary loss is assessed at Rs.3,000/-. Thus, he has been awarded a sum of Rs.35,000/-. 6.1. I will first take up the issue with regard to the compensation awarded under the head of pain, shock and suffering. For that purpose it will be necessary to consider the evidence of Dr. Amrutbhai Amthabhai Patel, the Orthopedic Surgeon, who treated the appellant in his hospital at Palanpur. His evidence is at Exh. 52. His evidence shows that this appellant had suffered compound fracture of patella of left leg and as a part of treatment he was operated upon and the broken patella was removed from the knee. Necessary dressing was done and plaster was applied. It is stated by the witness that medical certificate was issued on 20th March, 1984. The said certificate is at Exh. 53. 6.2. Appellant of First Appeal No. 4019/1996 – Pravinbhai Patel was also admitted in his hospital and he was given treatment by the witness. He had suffered fracture of tibia fibula of left leg. According to the witness, the iron plate was inserted by performing an operation. Certificate to the said effect has been produced by the party at Exh. 53. The witness has further stated that he FA/4018/1996 11/28 JUDGMENT had also examined appellant of First Appeal No. 4018/1996, namely Pankajbhai Vithaldas Parikh. He had suffered fracture of patella as stated above. According to the witness, this appellant was not in a position to sit on the ground and would not be in a position to walk with speed. He would also not be able to lift heavy articles. According to him, the disability suffered by this appellant would be to the extent of 15% in respect of the entire body. At Exh. 55 is certificate disclosing the disability of this appellant is produced. So far appellant of First Appeal No. 4019/1996 – Pravinbhai Patel is concerned, he had suffered disability of 25% as per the witness. According to the witness, he would not be in a position to walk fast, lift weight, etc. These facts have been stated in a certificate which is at Exh. 56. This witness had inserted plate in the left leg of Pravinbhai Patel and according to him, expenditure for such operation would be around Rs.4,000/- to Rs.5,000/-. So far appellant of First Appeal No. 4018/1996 – Pankajbhai Parikh is concerned, according to the witness Dr. Patel, he was required to spend around Rs.6,000/-. However, if he intended to have the artificial patella, he would have to undergo an operation. In the cross-examination also Dr. Patel has stated that it would be difficult for the said appellant to climb the stair-case, to run, etc., and that he would suffer pain. He has stated that for the operation of Pankajbhai Parikh - appellant of First Appeal No. 4018/1996, the expenditure of Rs.3,000/- was done. 6.3. The evidence of this witness, therefore, gives clear picture about FA/4018/1996 12/28 JUDGMENT the injuries that they had suffered, the consequences of the injuries and the treatment given to them and the expenditure for the treatment. So far as the evidence of appellant of First Appeal No. 4018/1996 – Pankajbhai Parikh is concerned, he has stated that even after 12 days' hospitalization, he was confined to bed for about 178 days at home. Over and above this, he had taken treatment of physiotherapist for about 4 months. He has stated that for such treatment he had to spend about Rs.1,000/-. He has also spent around Rs.150/- for taxi fare for visiting Palanpur for treatment from Bhabhar. So far as evidence of Praivnbhai Ishvarbhai Patel - appellant of First Appeal No. 4019/1996 is concerned, he has also stated that he had suffered injuries on the left leg below the knee and had sustained fracture. He had suffered bruises on the left elbow. He has further stated that there was shortening of the leg because of the injury caused to it and the permanent partial disability is assessed at 25%. This fact stands duly corroborated by the certificate issued by Dr. Amrutbhai which is on record at Exh. 56. 6.4. In view of the aforesaid position of the injuries suffered by the appellants, the resultant effect of these injuries and the medical treatment taken by them, it is now required to be considered whether the award of Rs.10,000/- under the head of pain, shock and suffering to each of the appellants is just and proper. FA/4018/1996 13/28 JUDGMENT 6.5. The appellant of First Appeal No. 4018/1996 – Pankajbhai Parikh is concerned, the aforesaid evidence would show that the award under the head of pain, shock and suffering is inadequate. His disability is assessed at 30%. He has developed limping and there is difficulty in running even after the adequate treatment given to him by the Orthopedic Surgeon. This itself shows that he has suffered pain for considerably long time and even after full treatment he was not fit completely. The compensation under this head is, therefore, required to be enhanced by Rs.5,000/- i.e., the compensation that could be awarded to him under this head would be Rs.15,000/-. 6.6. So far Pravinbhai Patel - appellant of First Appeal No. 4019/1996 is concerned, the injuries have been discussed above and the certificate also confirms the fact that there is shortening of the leg. The movement of the left leg is restricted and movement beyond certain extent causes pain. In view of the same and in particular because of the shortening of the leg, the amount under this head is required to be enhanced by Rs.5,000/- i.e., this appellant would be entitled to Rs.15,000/- under the head of pain, shock and suffering. 7. This will bring me to the another important head i.e., future economic loss. So far the appellant of First Appeal No. 4018/1996 is FA/4018/1996 14/28 JUDGMENT concerned, at the relevant time, his monthly salary was Rs.1509/-. The record shows that on the date of his deposition, he was receiving salary of Rs.5,200/-. The Tribunal has placed extensive reliance on the decision rendered by the Division Bench of this Court in the case of State of Gujarat v/s. Somabhai Dhurabhai Sindhava reported in 1993 (2) GLR at page 1043. The Tribunal has, therefore, applied, the multiplier of 5 years. The Tribunal has taken into consideration only the salary which was received by this appellant at the time of accident i.e. Rs.1500/-. The disability of this appellant is determined at 15% in respect of the entire body. Hence, the Tribunal has calculated the monthly loss to the appellant of Rs.225/- and has calculated the annual loss at Rs.2700/-. By relying on the decision stated above, the Tribunal has applied multiplier of 5 and has assessed the compensation at Rs.13,500/-. The Tribunal seems to have committed simple error in taking into consideration Rs.1500/- as the income of the appellant for determining the loss of earning capacity. The evidence itself shows that there was considerable rise in the salary of this appellant and, therefore, it is safe to presume that his salary would not have remained stagnant. It is true that this can also be used against the appellant on the ground that no monetary loss has been suffered by him on account of the disability. However, principle of law as propounded by various High Courts including this Court is that irrespective of the fact that no adverse effect on the monetary aspect is suffered by the concerned person, in the course of his employment, the loss of earning capacity has to be determined. However, since the Division FA/4018/1996 15/28 JUDGMENT Bench in the case of State of Gujarat v/s. Somabhai [supra] has discussed this aspect, relevant portion is required to be reproduced here from the said decision. It reads as under :- “16. Now for computing the future economic loss of an injured person, the Court has to apply its mind not only to the abstract percentage of loss of earning capacity, but also the actual economic loss sustained or likely to be sustained by the injured person. Merely computing the economic loss on the basis of the medical certificate regarding physical disability will amount to turning a blind eye to the reality of actual economic loss. It is admitted by all concerned at the Bar that Jivaji has been promoted twice after the accident and Saburbeg was promoted in the year 1987. Thus, the disability certified by the Doctor has not actually resulted in economic loss and it is not likely to result in such a loss till their retirement. It can of course be said that loss of earning capacity on account of physical disability would materialise after their retirement when in normal physical conditions they would be expected to do some private work on re-employment or some security job. Such a loss can be assessed for a period of about 5 years after retirement. It is not disputed that on pay revision effected from 1986, the pay-scale of a Constable is raised to Rs.800-1150, that of a Head Constable Grade-II has been raised to Rs.950-1400, and that of a Head Constable Grade-I has been raised to Rs.1200-1800. The injured claimant would certainly get the benefit of these pay-scales during their service, but after the retirement they could not have expected to get the same salary even if they were physically fit.” Relying on these observations, the Tribunal has calculated the future economic FA/4018/1996 16/28 JUDGMENT loss of this appellant. Mr. Shah has, however, submitted that in a later decision the Division Bench of this Court has taken slightly different view. He has drawn my attention to the decision rendered by the Division Bench in the case of Mohanbhai Gemabhai v. Balubhai Savjibhai reported in 1994 ACJ at page 260. This very controversy,