IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 1311 of 1984 For Approval and Signature: Hon'ble MR.JUSTICE KSHITIJ R.VYAS and Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO 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? : NO @ NANIKRAM SHHIJUMAL MULCHANDANI Versus MINOR DHARMENDRA -------------------------------------------------------------- Appearance: 1. First Appeal No. 1311 of 1984 MR MD PANDYA for Petitioner No. 1-2 MR SANDIP C SHAH for Respondent No. 1 MR CHANDRAKANT SHAH for Respondent No. 1 NOTICE SERVED for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE KSHITIJ R.VYAS and MR.JUSTICE K.M.MEHTA Date of decision: 26-27/06/2002 ORAL JUDGEMENT (Per : MR.JUSTICE K.M.MEHTA) 1. Nanikram Shhijumal - appellant No.1 and the National Insurance Co.Ltd - appellant No.2, appellants (original opponents) have filed this First Appeal under Section 110-D of the Motor Vehicles Act against the judgment and award dated 18th August, 1983, passed by the Motor Accident Claims Tribunal, Ahmedabad, in M.A.C.Petition No.152 of 1982. The tribunal by its impugned judgment and award has awarded Rs.3,47,700/- with running interest at the rate of 6% p.a. as compensation to minor Dharmendra original petitioner before the tribunal. 2. The facts giving rise to this appeal are as under:- 2.1 Minor Dharmendra - original petitioner (respondent No.1 herein) was a minor aged 13 years old. He was studying in Standard VII in the Central School at the relevant time. On 10th of March, 1982, at about 1.45 p.m., the petitioner was passing on the Asarwa Chakla road and he went to a public urinal situated on the footpath of the road. As it was engaged, he was standing outside with two other persons. This urinal is situated opposite Asarwa Municipal School No.4. At that time Siddikbhai Khamisabhai - original opponent No.1 (opponent No.2 in Appeal) came driving the Motor Truck No.GTX 8080 from New Shorrock Mill side in full speed and on the wrong side. He was driving rashly and negligently. He knocked down the petitioner and one another person by the front light side bumper of the truck. The petitioner fell down and his left leg was completely crushed by the front right hand side wheel. The petitioner was severally injured on his left leg and penis, and other parts of the body. The truck thereafter dashed with the urinal and also injured other persons who were at that time in the urinal and thereafter the driver sped away with the truck. Thereafter the petitioner was removed to Civil Hospital. On that very day his left leg was amputated, his right knees hip, penis and other parts were also injured and left side testical was avulsed. The pelvis bone was also fractured and the urethra was injured and catheter had to be inserted. On 24th March, 1982, skin grafting operation was carried out on left leg and he was discharged from the hospital on 27th April, 1982, but he was still not completely cured and he was advised to dress the wound regularly and to come to hospital periodically for further follow up treatment. At that time also the injury at a urethra was not healed and it was not possible for the petitioner to pass urine in natural way. Even after being discharged from the hospital, the petitioner was completely bed ridden and one compounder was coming daily for dressing and was dressing the injured parts of the body and in between the petitioner visited civil hospital thrice. The leg injury healed but the injury caused to the urethra was not healed. So the petitioner was admitted in private hospital of Dr.P.C.Patel on 21.6.1982 and he was operated upon. At that time also catheter tube was inserted in the urethra and skin grafting operation was also performed. He was discharged after nine days and after four days, thereafter the sutures were removed, the petitioner is still unable to pass urine properly and he experiences burning pain and he is likely to loss his virility. 2.2 It was further contended by the petitioner in the claim petition regarding his basic education and qualification that he had completed basic course of the Rifle shooting conducted by the Ahmedabad Military and Rifle Association with distinction at the young age of 10 years. Thereafter in that very year he had obtained first place in Air Rifle shooting competition organised by the said association. Thereafter he had secured first place at Inter School Level Competition held in the year 1979 and thereafter he represented Gujarat State in the All India Shooting Competition held at Chandigarh in the year 1980. He had broken the National Record and had secured two silver medals. Thereafter he represented Gujarat State in the competition held at Kolhapur in the year 1981 and secured second place. He had also participated in Silver Jubilee National Shooting Championship held at Ahmedabad in the year 1982 and he again broke the National record and secured first place and gold medal. He was awarded General Vikramsing Trophy by the National Rifle Association of India. He had also participated in two coaching camps conducted by two international experts Mr.Auto Charbour and Mr.Franke Brigs and he was likely to be invited to participate in Asiad Games which were to be held at New Delhi in the year 1982. 2.3 It was his contention that because of this unfortunate accident he could not participate and his brilliant and promising sporting career is ruined and the petitioner has suffered severe shock and his completely broke. The petitioner has lost one limb and because of this and other likely complications his marital prospect are also likely to suffer. This shows that the petitioner had a very brilliant and bright future in this behalf which was completely destroyed. 2.4 In view of the aforesaid circumstances in the claim petition the petitioner contended that the petitioner had suffered acute physical and mental pain and torture. The petitioner had to spend about Rs.10,000/- on medicines, transport and other special diet. The petitioner has to walk with the aid of crutches and so the petitioner has to go to school and other places in rickshaw. The petitioner will have to continue to spend on transport for the rest of his life, as his left leg has been amputated near the limb and it is not possible to fix artificial limb. But even if it is possible the petitioner will have to spend about Rs.15,000/- for that purpose. The father of the petitioner was staying at the first floor the rent was only Rs.15/- per month, but as the petitioner is unable to climb the stairs, the petitioner's father had to occupy another house on the ground floor at the monthly rent of Rs.140/-. During hospitalisation and thereafter also the petitioner needed continuous attendance of his father and mother and the petitioner will also require such assistance for long time. Father of the petitioner had to take four months' leave and his monthly salary is Rs.1200/- per month. So the petitioner has claimed Rs.4,50,000/- in all under various heads as stated in the petition. 2.5 The opponent No.1 was driving the Motor Truck No.GTX 8080 involved in the accident at the relevant time and he was in the employment of the opponent No.2 Shri Nanikram S.Mulchandani (appellant No.1 in appeal) who is the owner of the motor truck. The said truck was insured with the original opponent no.3 the National Insurance Company Limited (appellant No.2 in Appeal) and so all the three opponents are jointly and severally liable for the claim of the petitioner. 2.6 In the claim petition, the original opponents No.1 and 2 have filed written statement at Exh.13 and have raised the following contentions. It was their contention that the said accident was purely an accident and it was not caused because of the rash and negligent driving of the opponent No.1. They have denied the contention of the petitioner regarding injuries and damages. It was admitted that the truck was properly insured with the National Insurance Company Limited, Rajkot. The date, time and place of the accident are admitted but it is not admitted that it was caused because the opponent no.1 was driving the truck on his wrong side of the road rashly and negligently. It is also not admitted that the petitioner and other persons were knocked down by the truck and that the petitioner was run over under the wheel of the truck. 2.7 It was contended that the opponent no.1 was driving the truck on his correct side of the road in slow speed and suddenly one small boy came running on the road and started crossing the road from near the truck and to save him the opponent no.1 had suddenly applied the brakes and he had turned the truck towards right side. At that time the petitioner was standing on the road completely inattentive to the road traffic and in violation of the traffic rules and he was lightly dashed by the rear side of the said truck. It was their contention that this was purely an accident and the opponents are not liable for the claim of the petitioner. 2.8 The opponent No.3 - Insurance Company also filed written statement at Exh.82 and has raised contention that the accident is not within the knowledge of the insurance company and so the same is not admitted. However, opponent No.3 admitted that the opponent No.1 was holding valid driving licence. However, insurance company has denied other contentions in this behalf. It was also stated that the claim is excessive. 2.9 Before the tribunal, on behalf of the claimants petitioner Dharmendra was examined at Ex.56. He has narrated how the injury caused to him in this behalf in detail. He also stated that about his bright future prospects in this behalf. The claimants have also examined Manubhai Narottamdas Nayak at Exh.60 father of Dharmendra who was also serving in the Municipal Corporation. He stated about future prospects of his son Dharmendra and the injury caused to minor Dharmendra at that time. One eye-witness Murlikumar Jayrambhai Vyas was also examined at Exh.63 who was also standing near the urinal. He has deposed that the truck was driving rashly and negligently. One Laxmanbhai Kalaji was examined at Exh.68 who was also standing near the urinal at the relevant time. He also deposed that the truck was driving rashly and negligently. Other witnesses Pravinbhai Chaturbhai Patel at Exh.71 has been examined. He has deposed that the injury caused to minor Dharmendra. One Dr.Nandkishor Ramanlal Parikh was also examined at Exh.75 regarding disability caused to minor Dharmendra. One Keshav Govind Prabhu at Exh.77 was also examined. He has deposed that he was associated in Rifle Training Programme and he has narrated about the bright future of Dharmendra in this behalf. 2.10 On behalf of opponents, driver Siddikbhai Khamisabhai was examined at Exh.83. He has deposed that he was driving the truck on the correct side of the road and at that time one boy suddenly came from the left side foothpath and so he had applied the brakes and turned his truck towards his right and the boy was saved. Over and above the claimants have also produced the necessary documentary evidence in this behalf. 2.11 The Tribunal after considering the oral and documentary evidence held that the claimant sustained injury on account of rash and negligent driving of the Motor Truck No.GTX 8080 by opponent no.1. The tribunal has awarded compensation as follows: Rs.10,000/- For medicines, medical charges, special diet and transport charges. Rs.12,000/- For future transport charges. Rs.10,000/- For loss of wages of father of the petitioner and nursing charges. Rs.75,000/- For pain, shock and suffering and for loss of amenities and other pleasures of life. Rs.2,40,000/- For future economic loss. ---------------- Rs.3,47,800/- in all. 3. It may be noted that the other claimant Laxmanbhai Kalaji Thakore had also filed Claim Petition No.124 of 1982 arising out of the said accident. The tribunal has decided both the claim petition by common judgment. However, the insurance company has filed appeal only against Claim Petition No.152 of 1982 filed by minor Dharmendra, therefore we are not discussing the same in present proceedings. 4. Ms.Maya Desai, learned advocate on behalf of Mr.M.D.Pandya, learned Senior Advocate, appeared on behalf of the appellants - original opponents No.2 and 3 has submitted that so far as negligency is concerned the tribunal has erred in not properly appreciating the oral and documentary evidence on record. She further submitted that the tribunal has erred in holding that the petitioner-claimant sustained injuries on account of rash and negligent driving of the Motor Truck No.GTX 8080 by opponent No.1 the driver. 4.1 She has relied upon Ex.46 panchnama and other documentary evidence also in this behalf. 4.2 As regards quantum of compensation, learned advocate submitted that as regards amount awarded towards pain, shock and sufferings which has been given Rs.75,000/-, the tribunal has awarded very high amount particularly looking to the nature of the injury sustained by minor Dharmendra. Learned advocate submitted that the tribunal ought to have given lesser amount in this head of compensation. 4.3 Learned advocate further submitted that, as regards future economic loss, the tribunal has awarded Rs.2,40,000/- that amount is also a very high amount awarded by the tribunal. She submitted that the tribunal has erred in awarding Rs.1000/- per month regarding future economic loss of minor Dharmendra and also applied multiplier of 20 and thereby erred in awarding Rs.2,40,000/- for future economic loss. Regarding Negligence: 5. In this case, from the facts stated in the claim petition and the evidence on record, the petitioner was standing near the public latrine situated on the footpath of the north-south road running from Asarwa Chakla to New Shorrock Mill. At that time the opponent No.1 came from New Shorrock Mill driving the Motor Truck No.GTX - 8080 in full speed and driving rashly and negligently and on the wrong side. The truck driver also dashed the truck with the urinal and as a result the urinal was demolished. Thereafter the truck driver ran away with the truck. The bricks of the urinal fell on the petitioner and he was severally injured and he sustained compound fracture of Tibia and Fibula bones of the left leg and received injuries on other parts of the body also. So the petitioner sustained permanent disability in this behalf. 6. Learned advocate for the original claimants respondent herein has relied upon Panchnama Ex.46. From the panchnama it appears that the width of the road was 24 feet. The urinal was situated on the east of the road on the footpath side. The urinal was completely broken. There was no brake marks of the truck in question. 7. We have also considered the oral evidence of Dharmendra Manubhai Nayak Ex.56 and also other oral evidence of Murlikumar Jayrambhai Vyas Ex.63 who was present at the time of accident and one Laxmanbhai Kalaji Ex.68 who was also present at the time of accident. In view of the oral evidence as well as documentary evidence and the nature of injury sustained on minor Dharmendra, in our view, when the truck came from New Shorrock Mill side and knocked down the minor Dharmendra and his left leg was run over by the front right hand side wheel of the truck and thereafter the truck collided with the urinal was completely demolished and thereafter the truck ran away towards Asarwa Chakla. This fact clearly shows that the truck driver was rashly and negligently driving the truck and accident occurred because of his sheer negligence in this behalf. The truck driver has not taken any due care and caution in driving the truck. In view of the same the truck driver was completely negligent in driving the truck and the minor Dharmendra sustained injury on account of rash and negligent driving of the Motor Truck No.GTX 8080 by opponent No.1. Our Conclusion regarding negligency: 8. We have considered the documentary evidence as well as oral evidence of Dharmendra, his father and medical evidence. We have also considered the various decisions cited by the learned advocate for the appellants and respondents in this behalf. Looking to the injury suffered by minor Dharmendra which has been supported by medical evidence and also panchnama on record, we are of the view that the petitioner sustained injury on account of rash and negligent driving of Motor Truck No.GTX 8080. In view of the fact that urinal was completely demolished and debris was lying scattered on the road and that damage caused to the urinal was assessed at Rs.1000/-. The petitioners have also produced photographs at Exh.54. This also supports the contention of the claimant that urinal was completely demolished and the bricks and other materials were lying scattered on the road. In our view the road was 23 feet wide and it was imperative for the driver to take sufficient care so as not to injure anybody when driving and this would have required to drive very slowly in this behalf. From the evidence on record, it is clearly established that the driver of the Motor Truck was driving the truck in speed and on the wrong side. Applying the res ipsa loquitur and in light of the documentary evidence as well as oral evidence it is clear that accident was caused by the opponent No.1 who was driving the Motor Truck No.GTX 8080 in a rash and negligent manner. 8.1 We have now to consider whether maxim of res ipsa loquitur can apply in this case? In view of this peculiar facts and circumstances of the case for which we have considered, in our view maxim of res ipsa loquitur clearly applies in this case and truck driver was negligent in driving the truck. This maxim applies to cases where the peculiar circumstances constituting the event or accident proclaim that the negligence of somebody is the cause of the event or accident. In this case event or accident has happened is a kind of things if those who have management and control use due care; secondly, the claimants have also shown that the event or thing which caused the accident was within the driver control. Regarding Compensation. 9. In this behalf, we have considered the contention raised by the claimants and the oral evidence as well as medical evidence led by the parties. Admittedly both the petitioners were removed to the civil hospital immediately after the accident and they were treated as the indoor patient. As per the medical certificate Exh.25 issued by civil hospital which has been produced by the claimants. It has been stated that the petitioner minor Dharmendra was admitted on 10.3.82 and he was discharged on 27.3.82. The following injuries has been stated in the said certificate. 1. Left lower limb is crushed, more from inquinal ligament to the knee joint, skin loss of thigh on its medial and anterior aspect. Completely and partial on the lateral aspect. There is crushing of muscles & vessels of (L) thigh. There is avulsion of (L) testis, completely and of penis partially. There is fracture of (L) temur with stimp projecting outside. 2. C.L.W. (R) parital region 1" x 1/4" scalp deep fresh. 3. C.L.W. (L) parital region 1" x 1/2" scalp deed fresh. 4. Abrasion (L) elbow 1" x 1". 9.1 After the said certificate, follow up action was also been done for which further medical certificate has been produced by the claimants at Ex.26 in this behalf. 9.2 It has been contended by original claimants that petitioner was born in the year 1968 and the accident occurred in the year 1982. That shows that he was aged about 14 years old at the time of accident to show that the claimant had a very bright future. The claimants have produced certificate from Kendriya Vidyalaya (Central School) at Exh.27 to show that he was regular N.C.C. cadet of Air Wing of this School Troop No.7. He was very active in pareds and shooting. He appeared for the 'A' certificate examination of N.C.C. in the month of March 1982. He has also produced the certificate of the Ahmedabad Military & Rifle Training Association at Exh.28 in which it was stated that minor Dharmendra Manubhai Nayak has successfully completed basic course in 177 Co2 Air Rifle Shooting with distinction in the examination held by the Association in the year 1978. He has also produced certificate of the Ahmedabad Military & Rifle Training Association at Exh.29 to show that Dharmendra Naik has achieved First A group rank in the Independency Shooting Competition in the year 1978. Similarly he has also produced certificate issued by the Ahmedabad Military & Rifle Training Association at Exh.30 to show that he has taken part in Inter-School Shooting Competition held in the year 1979. He has also produced certificate of merit issued by the Ahmedabad Military & Rifle Training Association to show that he stood first rank in the sub-junior group inter school shooting competition held in December 1979. He has also produced Special Certificate of Merit issued by National Rifle Association of India at Ex.32 to show that he had awarded special prize in the Air Rifle CLS.UB-Junior and stood second place in the said event held in the N.S.C.C. at Chandigarh in March 1980. He has also produced certificate issued by National Rifle Association of India at Ex.33 to show that he has awarded Special Prize in the Match No.45 .177 Air Rifle (ISU) Sub-Junior and stood second place in the shooting competition held at Kolhapur in the month of January 1981. He has also produced paper cutting of Newspaper "Prabhat" dated 14.4.80 to show that he has obtained championship at the National Level Shooting Competition and has awarded gold medal in the said competition. Regarding injury also the claimants have produced press cutting of Newspaper "Gujarat Samachar", "Jansatta", "Sandesh" and other newspapers. 9.3 All these certificates go to show that the young boy aged about 14 years has a very shinning and promising career. The claimants have also relied upon oral evidence of claimant himself, father of the claimant, medical certificates and other evidence to substantiate his claim regarding injury and the damages. 9.4 It was submitted that petitioner has lost his left leg and he is walking with the aid of crutches. Formerly he was going to Central School in Municipal Transport Bus but because of his injury now he used to go by a rickshaw. For that he has claimed Rs.100/- p.m. in this behalf. The claimants have claimed the said amount for 15 years and multiplier of 15 would apply, the tribunal has awarded Rs.100/- p.m. for 10 years and thereby awarded Rs.12,000/- on that account. 10. As regards medical expenses, looking to the injury sustained by the petitioner where the father of the claimant has stated that he has taken a loan of Rs.5,000/- from the Employees Credit Society and he has to pay interest at the rate of 9% and the loan is being repaid by the monthly instalment of Rs.200/-, and looking to the injury the claimants claimed Rs.10,000/- for medical expenses, medical treatment, special diet for which the tribunal has awarded Rs.10,000/- for medical expenses. We are of the view that looking to the injury sustained by the claimant, the tribunal awarded Rs.10,000/- towards medical expenses is quite precisely legal and valid. 10.1 As regards transportation charges also the tribunal has awarded Rs.12,000/- is also perfectly legal and proper towards future transportation charges. 11. The father of the claimant also deposed that he was serving in the Municipal Corporation in the Octroi Department. He had taken four months leave