1 FA-1264-2010 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1264 OF 2010 WITH CIVIL APPLICATION NO.1079 OF 2010 WITH CIVIL APPLICATION NO. 1642 OF 2010 WITH CIVIL APPLICATION NO.3993 OF 2010 The Oriental Insurance Co. Ltd., Oriental House, 7, J.T.Road, Mumbai 400 020. Certificate No.2000/420 from 28-8-1999 to 27-8-2000 ... Appellant (Org. Insurer) Versus 1. Mrs Doria Arun aged 42 years, residing at 116, Oriole Drive, Arlinghton TX 76010, U.S.A. 2. Shri Hemant Mehta 301, Asalap, Opp.Parle Book Depot, Nehru Road, Vile Parle (E), Mumbai 400 057. ... Respondents (Resp.No.1-Original Applicant & Resp.no.2-original Opposite Party 2 FA-1264-2010 Mr.S.S.Vidyarthi i/b. Mr.S.M.Vidyarthi for appellant. Mrs.Shanta Joshi for respondent no.1. CORAM: B. H. MARLAPALLE & A.S. SAYED, JJ. Reserved on : August 5, 2011. Pronounced on : August 11, 2011. JUDGMENT (PER B.H.MARLAPALLE, J.) 1. This appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act”) arises from the award passed by the Chairman of the Motor Accident Claims Tribunal at Mumbai in Claim Application No.3721 of 2000. By the impugned award the following compensation has been granted to the claimant – respondent no.1. (1) Medical treatment in Hinduja Hospital in India Rs. 52,230=00 (2) Medical treatment in U.S.A. U.S.$ 7937.60 converted into rupees Rs. 3,09,543=00 (3) Total loss of earning capacity U.S.$ 92,160 converted into Rupees Rs.35,94,240=00 (4) Pain and sufferings Rs. 50,000=00 ______________ Total Rs. 40,06,022=00 ============= 3 FA-1264-2010 2. The claimant is a citizen of the United States of America and she was on annual vacation in November 1999 with the family of her husband’s brother at Mumbai. After attending a dinner on 23/11/1999 at the house of Mr.Allan D’silva she was returning to the house of her sister- in-law at Malbar Hill by Maruti 800 car bearing registration No.MH-02- Y-8297. The said car was being driven by Mr.Alan D’silva and along with him on the front seat his wife was sitting. On the rear seat there were three passengers viz. Aruna Azaria, Arun Johnny and the claimant. The claimant was sitting on the right hand side behind the driver’s seat. In the midnight while they were proceeding on General Arunkumar Vaidya Marg, another Maruti car bearing registration No.MH-01-P-1804 came from the opposite direction and it was being driven in high speed. The driver of that car lost the control and the car crossed the road divider and dashed against the Maruti car being driven by Mr.D’silva. The said car was being driven by respondent no.2 and it was owned by his father. In the accident the claimant suffered severe injuries and the car in which she was travelling also suffered dents on the right hand side. The claimant was hospitalized at P.D.Hinduja National Hospital, Mahim for treatment. 4 FA-1264-2010 3. The claimant suffered a number of injuries and she was an indoor patient from 23/11/1999 to 27/11/1999. She obtained a discharge and returned to USA so as to continue the medical treatment. She was under treatment at Arlington Memorial Hospital, Texas. Despite the said treatment she suffered 60 % permanent disability and, therefore, a claim petition came to be filed under Section 166 of the Act. She had claimed a total compensation of Rs.10,00,000/- (Rupees ten lakhs) against the present appellant who was the insurer of Maruti Car No.MH-01-P-1804. The claim petition was amended by filing the amendment application at Exhibit 48 and as per the order passed by the Tribunal on 2/12/2006. The enhanced compensation claim prayed for was for US $2,39,000. 4. The claim petition was against the owner of the car bearing Registration No.MH-01-P-1804 and the insurance company i.e. the present appellant. Written Statement at Exhibit 7 was filed so as to oppose the claim petition and both the opponents were represented by the very same Advocate. It was contended by the opponents that the application suffered from non-joinder of the owner and insurer of Maruti 5 FA-1264-2010 car bearing registration No.MH-02-Y-8297 in which the claimant was travelling. It is pertinent to note at this stage that during the pendency of the claim petition, the owner of Car No.MH-01-P-1804 died and in his place his son and respondent no.2 who was driving the said vehicle was brought on record. 5. The claimant examined PW 1 – Aruna Princes Azaria, PW 2 – Prince Azaria, PW 3 – Jayendra Shriyan, PW 4 – Dr. Vikas Agashe and PW 5 – Dr. Bimal Mody. An application at Exhibit 43 was filed seeking leave of the Tribunal for recording of evidence by video conferencing and the said application was allowed on 1/2/2006 by relying upon the decision in the case of State of Maharashtra Vs. Praful B. Desai [AIR 2003 SC 2058]. Consequently, the evidence of three more witnesses came to be recorded by video conferencing in as much as they submitted their affidavits by way of examination in chief and their cross-examination was by e-mail/fax. These three witnesses are PW 6 – the claimant herself, PW 7 - Harvey Miller and PW 8 – Dr. Dale Allen. The Tribunal considered the oral and documentary evidence as well as the disability of 60 per cent and awarded a total compensation of Rs.40,06,022/- (Rupees forty lakhs six thousand twenty two only) as per the above stated details 6 FA-1264-2010 with interest at the rate of 6% per annum from the date of filing of the written statement i.e. 18/12/2002 till the date of actual deposit. 6. Mr.Vidyarthi, the learned counsel for the appellant at the threshold submitted that the claimant had claimed a total compensation of Rs.10,00,000/- (Rupees ten lakhs) and the Tribunal granted her by the impugned award a compensation of more than Rs.40 lakhs. This submission has to be rejected outrightly. The claim petition was allowed to be amended as per the order dated 2/12/2006 and the evidence was recorded regarding the income of the claimant while she was employed as Food Services Specialist since May 1994. 7. Mrs.Joshi, on the other hand, submitted that the appeal filed by the Insurance Company is not maintainable in as much as no application was filed by the appellant – insurer seeking leave under Section 170 of the Act and in support of this proposition she placed reliance on the decision in the case of National Insurance Co. Ltd. Vs. Nicolleta Rohtagi [AIR 2002 SC 3350]. It was submitted by Mr.Vidyarthi that the decision of the Supreme Court in the case of Nicolleta (Supra) has not considered the earlier decision of the very same 7 FA-1264-2010 Court on the very same point and, therefore, it ought to be held that this appeal challenging the compensation amount is maintainable. In this regard he has referred to the decision in the case of British India General Insurance Co. Ltd. Vs. Captain Itbar Singh & ors. [AIR 1959 SC 1331]. The fact remains that the law laid down in the case of Nicolletta (Supra) is based on the interpretations of Sections 149(2), 170 and 173 of the Motor Vehicles Act, 1988 and we are bound by the same. We would be justified in dismissing this appeal as not maintainable. However, we have considered the appellant’s case on merits as well. 8. The factum of accident is not in dispute and respondent no.2 did not examine himself so as to oppose the claim made on the basis of the said accident when he himself was driving car bearing Registration No.MH-01-P-1804 and which car banged against the car driven by Shri Allan D’silva. Allan D’silva is the husband of the sister of PW 1 – Aruna Azaria. The evidence of PW 1 – Aruna Azaria also proved that she was sitting on the left side of the claimant and while their car was passing through the General Arunkumar Vaidya Marg around midnight, the car driven by the respondent no.2 came from the opposite direction, lost its control, broke the cemented road dividers and banged perpendicularly the 8 FA-1264-2010 vehicle driven by Allan D’silva. The claimant suffered a number of injuries and she was immediately admitted to the nearby hospital i.e. Hinduja National Hospital, Mahim. 9. PW 3 - Jayendra Shriyan is the employee of the Hinduja Hospital and he proved the medical papers submitted by the claimant. He also proved the payment of Rs.52,239/- at Exhibit 28 for the claimant’s treatment during the time she was an indoor patient in the said hospital. PW 4 – Dr. Vikas Agashe was the Orthopedic Surgeon who was treating the claimant and he had performed some operations. His evidence has been supported by the testimony of PW 5 – Dr. Bimal Mody as well. PW 2 – Prince Azaria has been examined so as to prove the documents received from Auxiliary Personnel regarding the employment of the claimant prior to the accident like the salary certificate etc. and the medical papers regarding the claimant’s treatment at Arlington Orthopedic Associates, Texas. PW 7 – Harvey D. Miller has proved the employment of the claimant with Auxiliary Personnel from May 1994 and she was being paid at the rate of $ 8 per hour and for 40 hours in a week, as per the letter dated 20/9/2002 issued by the Auxiliary Personnel (Exhibit 64). The claimant’s monthly salary, therefore, worked out to $ 9 FA-1264-2010 1280. PW 8 – Dr. Dale Allen is an Orthopedic Surgeon with more than 25 years experience and he certified that the claimant suffered a permanent partial earning capacity of 60 % at least. These witnesses have been cross-examined by forwarding to them the questionnaire by the appellant – opponent’s Advocate. We have no doubt that the monthly income of the claimant and the permanent partial disabilities suffered by her have been duly proved by the evidence of PW 7 and PW 8. 10. The age of the claimant at the time of the accident was 42 years and the Tribunal has taken the multiplier as 10. We do not find any error in this regard, though there may be a case for higher multiplier in as much as in the United States of America the age of retirement could be even more than 65 years, as one is allowed to work till he/she is physically fit. The Tribunal has also not taken into consideration the expected future rise in the earnings of the claimant. The Tribunal noted that the conversion rate was Rs.39.67 for one $ and it rounded it off to Rs. 39 instead of Rs.40. 11. Be that as it may, the claimant has not filed an appeal and, therefore, the conversion rate of Rs.39/- would be the basis for calculation 10 FA-1264-2010 of compensation. The monthly earning with Auxiliary Personnel of the claimant worked out to $ 1280 and 60% of the same would come to $ 768. The annual loss of income suffered would, therefore, come to $ 768 x 12 = $ 9216. 12. The medical papers proved through the evidence of PW 2 and PW 8 for the claimant’s treatment at Arlington Orthopedic Associates, Texas have established that the claimant spent $ 7937.60 and she was, therefore, entitled for reimbursement of the said medical expenses. The Tribunal has granted Rs.50,000/- for pain and sufferings and we do not find any error in the same. We are, therefore, satisfied that the Tribunal did not commit any error in granting compensation on four different counts i.e. reimbursement of medical expenses incurred at Hinduja Hospital, reimbursement of medical expenses incurred at Arlington Orthopedic Associates, Texas, total loss of earning capacity and for pain and suffering. The challenge to the award is devoid of merits in addition to the fact that the appeal is not maintainable. 13. In the premises, the appeal fails and the same is hereby dismissed. 11 FA-1264-2010 14. In view of the above, Civil Applications stand disposed. (A.A. SAYED, J.) (B. H. MARLAPALLE, J.)