ash 1 fa1127.98n1054.98-rj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION FIRST APPEAL NO.1127 OF 1998 WITH FIRST APPEAL NO. 1054 OF 1998 FA NO.1127 OF 1998 Mrs. Sandhyarani Bandunana Subnis. .. Appellant Vs Shri Shantaram Daji Mandlik & Anr. .. Respondents -- Shr T.J. Mendon for the Appellant. Shri Ranjan Tripathi along with Shri S.S. Vidyarthi for Respondent No.2. -- FA NO. 1054 OF 1998 Dr. Bandunana Manikrao Subnis. .. Appellant Vs Shri Shantaram Daji Mandlik & Anr. .. Respondents -- Shr T.J. Mendon for the Appellant. Shri Ranjan Tripathi along with Shri S.S. Vidyarthi for Respondent No.2. -- CORAM : A.S. OKA, J DATE ON WHICH SUBMISSIONS WERE HEARD : 21ST DECEMBER, 2010. DATE ON WHICH JUDGMENT IS PRONOUNCED : 23RD MARCH, 2011. ash 2 fa1127.98n1054.98-rj JUDGMENT : . These two Appeals can be disposed of by a common judgment as the appeals arise out of the same accident. The Appellants in these Appeals are the Claimants in Claim Petitions filed under the Motor Vehicles Act, 1988 ( hereinafter referred to as “the said Act”). The appellant in First Appeal No.1127 of 1998 is the wife of the Appellant in First Appeal No.1054 of 1998. 2. On 24th May, 1990, the Appellant in First Appeal No.1127 of 1998 was proceeding by a Maruti car from Mumbai to Lonavala. The accident occurred within the limits of Belpada Village near Kalamboli, District – Raigad. According to the case of the Appellants, the Appellant in First Appeal No.1127 of 1998 was driving a Maruti car and her husband (the Appellant in First Appeal No.1054 of 1998) and their son were sitting in the said Car. According to the case of the Appellants, a tempo owned by the 1st Respondent which was insured with the 2nd Respondent came from opposite direction. Allegation is that the tempo was being driven in a rash and negligent manner which gave a dash to the Maruti Car. As a result of impact, both the Appellants suffered serious injuries and, therefore, the claims were filed under the said Act of 1988. The Appellant in First Appeal No.1127 of 1998 claimed compensation of Rs.2,00,000/- and the Appellant in First Appeal No.1054 of 1998 claimed compensation of Rs.3,00,000/-. ash 3 fa1127.98n1054.98-rj 3. The claim petitions were contested by the 2nd Respondent by contending that a spot panchanama made by the police showed that it was the driver of Maruti Car who was completely responsible for the accident and the Driver of the tempo was not at all responsible. The Tribunal came to the conclusion that the drivers of both the Maruti Car and the tempo were responsible for the accident. The learned Member of the Tribunal relied upon the spot panchanama which showed that the accident occurred near the road divider and as there was a head on collision near the road divider, both the drivers were responsible for the accident. In a claim petition subject matter of First Appeal No.1127 of 1998, thought the Tribunal held that the Appellant was entitled for compensation of rs.1,50,000/-, 50% deduction was made and compensation of Rs.75,000/- was granted to the Claimant with interest thereon at the rate of 12% per annum. In the claim petition subject matter of First Appeal No.1054 of 1998, the Tribunal held that the Appellant was entitled to compensation of Rs.2,41,000/- and after making deduction of 50%, the compensation of Rs.1,20,500/- was granted with interest thereon at the rate of 12% per annum. 4. Learned counsel appearing for the Appellants/Claimants submitted that a copy of spot panchanama was produced along with the claim petitions only because the production of a copy of the spot panchanama is a mandatory requirement of rules. He submitted that as the ash 4 fa1127.98n1054.98-rj rules mandate that a copy of the spot panchanama should be produced, the Appellant had produced the same. He submitted that the contents of the said panchanama were not proved by the 2nd Respondent and, therefore, the Tribunal could not have read the spot panchanama in evidence. He submitted that merely because the Appellants were forced to produce a true copy of panchanama for making compliance of the requirement of law, it cannot be said that the Appellants were relying upon the said panchanama He submitted that as the panchanama was not at all proved, the Tribunal committed a gross error by relying upon the same. He submitted that the evidence of the Appellants as regards negligence on the part of the driver of the tempo has gone unchallenged, and, therefore, the finding on issue of negligence ought to have been recorded by holding that it was the driver of the tempo who was the only person responsible for the accident especially when no attempt was made to examine the driver of the tempo as a witness. Inviting attention of the Court to the evidence on the aspect of the injuries, he submitted that the compensation granted on all counts is on the lower side and in fact the entire claim of the Appellants ought to have been allowed. 5. Learned counsel appearing for the 2nd Respondent while supporting the impugned judgment and award submitted that the Appellants had placed true copy of the panchanama on record and contents thereof were never disputed by the Appellants. He submitted that in fact the contents of panchanama showed that Maruti Car climbed over the road divider and thus ash 5 fa1127.98n1054.98-rj only the driver of Maruti Car was responsible for causing the accident. He submitted that in any event, there was a head on collision between the Maruti Car and tempo at the centre of the road. Relying upon the judgment of the Apex Court in the case of Bijoy Kumar Dugar v. Bidyadhar Dutta & Others, ( 2006 ACJ 1058 ) , he submitted that in any event both the drivers will have to be held negligent for the said accident. 6. I have given careful consideration to the submissions. The first question to be decided is as regards the negligence. The Appellant in First Appeal No.1127 of 1998 stepped into the witness box and stated that she was driving the Maruti Car at the relevant time. In Paragraph 1 of her deposition she has stated thus:- “I was driving car of the speed of 30 or 40 per km.ph. At the spot of accident I found few traffic. I was driving vehicle properly in my lane. From opposite side one tempo came in speed. Before I could guess the tempo dashed to my car. Front portion of Maruti car by forcible dash of tempo pressed inside.” 7. It is pertinent to note that the witness has not stated that the tempo came on its wrong side. All that she has stated is that from opposite side, the tempo was coming in a very high speed. In the cross examination, she was given a suggestion that there was a road divider. She stated that she was unable to remember whether there was a road divider. While ash 6 fa1127.98n1054.98-rj responding to the suggestion, she stated that on one or two occasions, she had travelled by the said road. She denied the correctness of suggestion that while driving the car, she lost her control over the car and that her car crossed the road divider. A specific suggestion was given to her that the tempo was in its proper lane and that it was 4 to 5 feet inside the proper lane from the centre of the road. The Appellants did not deny the correctness of the suggestion and merely stated that she did not remember whether the tempo was in its proper lane. As far as the Appellant in First Appeal No.1054 of 1998 is concerned, he deposed that the Maruti Car was being driven on its correct side. He stated the tempo owned by the 1st Respondent came from the opposite side and front portion of the driver’s side of the tempo dashed against half front portion of the driver’s side of Maruti Car. In the cross examination, he also pleaded ignorance as to whether there was a road divider. He stated that the road was straight and there was no other vehicle except the Maruti Car and the Tempo at that time. He admitted that the road was divided into two lanes for coming and going and each lane is sufficient to enable two vehicles to pass through at a time. He stated that though he had filed a copy of panchanama on record, he was not admitting the contents thereof to be correct. A specific suggestion was given to the said witness also that at the time of accident, the tempo was within its own lane. The response of the witness was that he was not aware whether the tempo was within its own lane at the time of accident. ash 7 fa1127.98n1054.98-rj 8. If the statements made by both the Appellants are taken as it is, it is obvious that no negligence was specifically alleged against the driver of the tempo. The Appellant in First Appeal No.1127 of 1998 has not at all explained the manner in which the accident occurred. There is no specific allegation by both the witnesses that the tempo was on its wrong side. The Appellant in First Appeal No.1054 of 1998 stated that front half portion of the driver’s side of the tempo gave a dash to the front half portion of Maruti Car on its dirver’s side. Even assuming that the panchanama cannot be read in evidence, from the aforesaid statement, it is obvious that the accident must have occurred at the centre of the road. There were no other vehicles on the road at the time of accident. The driver of the car had seen the tempo coming from opposite direction. In any event, there is no attempt made by the driver of the car to avoid accident. The driver of the tempo has not been examined to explain as to why he could not avoid the accident. Therefore, even if panchanama is ignored, it is not possible to find fault with the finding of the Tribunal that there was negligence on the part of both the drivers of the car as well as tempo, as a result of which the accident occurred. It is not possible to find fault with the finding that the liability of the driver of the car (the Appellant in First Appeal no.1127 of 1998 was to the extent of 50% 9. The second question to be decided is regarding the quantum of compensation. The Appellant in First Appeal No.1127 of 1998 suffered following injuries. ash 8 fa1127.98n1054.98-rj “1) Fracture pelvis, 2) Fracture acetabular roof (rt), 3) Fracture shaft famur (rt) communited, 4) Fracture humerus (left), 5) Left radial nerve paralysis.” 10. The said injures are mentioned in the certificate at Exhibit- 25 which was admitted in evidence by consent of the 2nd Respondent. On account of medical expenses, the Tribunal granted a sum of Rs.2,041/-. On account of loss of enjoyment of life and pleasure of life, a sum of Rs.15,000/- was granted. On account of her inability to carry out domestic work, the compensation of Rs.24,000/- was granted at the rate of Rs.1,000/- per month for two years. On account of four fractures, she was granted Rs.60,000/- and Rs.2,000/- on account of other minor injuries. On account of permanent disability to the extent of 25%, she was granted Rs.36,000/-. On account of expenses incurred after filing of the claim petition for removal of plates in the hand and leg, a sum of Rs.10,000/- was granted. Taking a round figure, the compensation was estimated at Rs.1,50,000/-. 11. As far as the last item regarding the expenditure on removal of plates is concerned, the Appellant stated in her evidence that Dr. Pravin Vora had estimated that a sum of Rs.20,000/- to Rs.25,000/- would be required ash 9 fa1127.98n1054.98-rj for removal of the plates inserted in hand and leg. The said estimate was given by the Appellant in her evidence recorded in the year 1994. Evidence of Dr. Vora was recorded on 20th September, 1997 in which he stated that he had removed the plates fixed in the hand and leg. A sum of Rs.10,000/- has been granted by the Tribunal only on the ground that Dr. Vora has not deposed about the expenditure. It must be noted here that the Appellant in her evidence stated that Dr. Vora had given estimate of expenses of Rs. 22,000/- to Rs.25,000/- for removal of the plates. Perusal of the cross- examination of the Appellant shows that the said statement has not been challenged. Therefore, merely because Dr. Vora did not depose on this aspect, the claim made by the Appellant in her deposition could not have been disbelieved. Therefore, instead of a sum of Rs.10,000/-, a sum of Rs. 22,000/- ought to have been granted on the said account. On account of permanent disability, the Appellant in First Appeal No.1127 of 1998 has been granted a sum of Rs.36,000/-. Dr. Vora in his deposition deposed about the effect of injuries sustained by the said Appellant. He stated thus: :- “Because of numerous injury mentioned at Sr. No.3 in Exh.30, she has injury to radial nerve at the side of the fracture and due to this she had paralysis of the extensias of wrist and fingers. She has recovered from this paralysis but not fully leaving behind marginal weakness of dorsiflexors of the wrist and fingers. The said weakness results in weakness of grip and one tends to drop objects from hand. Injuries mentioned in Exh.30 has given rise to the disability which consists of back pain, shortening getting tired easily, difficulty on sitting on floor and getting up and climbing and going down the stair case and limp. There is stress ash 10 fa1127.98n1054.98-rj in incontinence. The stress incontinence is related to fracture pelvis. Because of this urinary passage is simultaneously damaged and this results into weakness of ability to control passing of urine. In the initial stage cathetor was inserted when she was admitted in the hospital for few weeks or a month. It is painful because of said painful suffering of injury No.1 married life of the applicant is affected.” (emphasis added) In the cross-examination, this aspect was not at all challenged. The compensation of Rs.36,000/- was granted mainly on the ground that the Appellant housewife would be required to employ a servant. Considering the aforesaid evidence of Dr. Vora which is unchallenged, in fact, a total sum of Rs.50,000/- ought to have been granted on account of disability. Thus, enhancement of Rs.14,000/- will have to be granted in that behalf. The compensation granted under the other heads appears to be reasonable. Thus, in First Appeal No.1127 of 1998 enhancement will have to be granted by a sum of Rs.13,000/- ( 50% of Rs.26,000/- ). 12. Now turning to the First Appeal No.1054 of 1998, the Appellant therein holds degrees of M.B.B.S. and M.S. in General Surgery. As far as injuries sustained by the said Appellant are concerned, the certificate issued by Dr. Vora was admitted in evidence which discloses following injuries. “1) Fracture shaft femur upper third right. 2) Fracture ulna right. 3) Fracture ribs (two) on right side.” ash 11 fa1127.98n1054.98-rj 13. In Paragraph 7 of his deposition, the Appellant has stated thus:- “I have leceration of forehead, fracture of ribs, 2nd and 3rd ribs on left side; behind ribs 2 and 3 there is heart and aorta; fracture shaft femur right junction of upper third with middle third. This was communicated fracture having butterfly piece having separated segments. In such fracture it requires long period of healing. I have also received fracture on ulna right upper third.” He was required to undergo hospitalization for 2 and ½ months. A nurse was required to be engaged for 24 hours. He stated that he was a gold medallist from in General Surgery from Marathwada University and as a result of injuries, he was out of profession for six months. He stated that his professional skill has been affected. In Paragraph 14 of his deposition, he stated thus:- “Main problem for me is I cannot stand prolonged time. All my operative work requires standing. For using scissors my right hand tingless and nums. In difficult surgery I have to take little rest and then start and for this purpose I am required to take experienced assistant to take over in that period. My right leg is shortened by 3/4”. There is a limp, I use shoe having higher heal. This will lead to osteoarthrites of the spine and lumbos region of hip and lumbar spine. In my case this is advanced due to injury. There is wasting of quadricepes muscles of thigh. This wasting of musclese of right leg would lead to narrowing and circumference of limb. There is nail in thigh and plate in ash 12 fa1127.98n1054.98-rj forearm. I will have to get operated for removal. I would require Rs.10,000/- each for two operations. Because of the problems I again joined Govt. Service. At present I am not allowed to do private practice as I joined Govt. Service. Due to the injuries I cannot sit cross legs, cannot use Indian toilet, cannot sit on floor. I cannot drive. I have a car.” (emphasis added) There is hardly any challenge to the said version in the cross examination of the appellant. 14, Dr. Vora has assessed permanent disability of 25%. Dr. Vora was examined as a witness in the said claim. As regards shortening of right limb, Dr. Vora stated that it will not be possible for the Appellant to stand for a long time for undertaking a surgery. Dr. Vora stated that the implants were inserted at the time of surgery and separate surgery will be needed for removal of the implants which would cost a sum of Rs.50,000/-. 15. Learned Member of the Tribunal granted a sum of Rs.7,042/- as cost of the hydraulic bed and a sum of Rs.4,525/- as a cost of implants on the basis of bills. For special diet he was granted Rs.12,000/-. For the loss of income for six months, he has been granted Rs.30,000/-. On account of fractures, he was granted Rs.60,000/- and Rs.2,000/- for other minor injuries. For loss of enjoyment of life and pleasure of life, Rs.25,000/- was granted. On account of permanent disability, he was granted a sum of Rs. 1,00,000/-. The Tribunal discarded the claim made on account of surgery required to be undergone for removal of the implants on the ground that the ash 13 fa1127.98n1054.98-rj Appellant is himself working at J.J. Hospital and therefore, he will not incur expenditure. That is how the total amount of Rs.2,41,000/- was granted. 16. The finding is that there was shortening of one leg of the Appellant which affected his capacity to work as a surgeon. The Appellant has stated that he was a gold medallist in General Surgery. The loss of future prospects of increase in the earnings has not been considered by the Tribunal. The age of the Appellant on the date of the accident was around 39. Considering the qualifications of the Appellant, a substantial amount of at least a sum of Rs.500/- per month with appropriate multiplier ought to have been granted on account of loss of income in future. The total claim made by the Appellant was for a sum of Rs.3,00,000/-. Out of which, a sum of Rs.2,41,000/- was allowed. In fact, this was a case where the complete claim of Rs.3,00,000/- ought to have been allowed. However, the Appellant has claimed only against one tort-feasor and therefore, 50% deduction will have to be made and thus total entitlement of the Appellant in the said Appeal will be Rs. 1,50,000/-. Thus, he will be entitled to enhancement of Rs.29,500/-. 17. During the last few years, rates of interest offered by the nationalised banks on fixed deposits have been considerably reduced. Hence, interest on the enhanced amount will have to be fixed at the rate of 9% per annum. ash 14 fa1127.98n1054.98-rj 18. Hence, I pass the following order:- (a) First Appeal No.1127 of 1998 is partly allowed. The Appellant is entitled to the total compensation of Rs. 88,000/-. Thus, the compensation is enhanced by a sum of Rs.13,000/-. On the additional amount of Rs. 13,000/-, the Appellant will be entitled to the interest at the rate of 9% per annum from the date of filing of the claim petition till realization or deposit. The Appellant is entitled to proportionate costs of the claim petition and this appeal from the Respondents. Time of eight weeks is granted to the Respondents to deposit the additional amount with the Tribunal. (b) First Appeal No.1054 of 1998 is partly allowed. The Appellant is entitled to the total compensation of Rs. 1,50,000/-. Thus, in addition to the compensation awarded by the Tribunal, the Appellant will be entitled to compensation of Rs.29,500/-. Interest will be payable on the said additional amount at the rate of 9% per annum from the date of filing of the claim petition till realization or deposit. ash 15 fa1127.98n1054.98-rj (c) The Appellant is entitled to proportionate costs of the claim petition and First Appeal No.1054 of 1998 from the Respondents. Time of eight weeks is granted to the Respondents to deposit the additional amount with the Tribunal. ( A.S. OKA, J )