IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO. 831 OF 1990. APPEAL NO. 831 OF 1990. APPEAL NO. 831 OF 1990. 1. Union of India, C/o. Flag Officer, Commanding-in-Chief, Western Naval Command, Bombay 400 001. 2. Officer-in-Charge. Bombay 400 005. ... Appellants. Versus. Shri Tribhuvan Chagan Waghela, since deceased through his Legal Heirs and Representatives: 1. Mrs.Leelaben Tribhuvan Waghela, Widow-Adult. 2. Miss Neeta Tribhuvanm Waghela, Daughter-Adult. 3. Ms.Naresh ribhuvan Waghela, Son-Adult. 4. Mr.Jayesh Tribhuvan Waghela, Son-Adult. 5. Mr.Harish Tribhuvan Waghela, Son-Adult. All; R/o. Navaz Building, 1st floor, Room No.4, Tuloch Colaba, Mumbai 400 005. ... Respondents. Ms.Nisha Valani for the Appellants. Shri Khemka with Shri S.R.Kudroli for the Respondents. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 13th December, 2007. : 13th December, 2007. : 13th December, 2007. ORAL ORAL ORAL JUDGMENT.: JUDGMENT.: JUDGMENT.: 1. Heard the submissions of the learned Counsel appearing for the parties. The challenge in this Appeal is to the Judgment and Award dated 16th March 1990 passed by the learned Member of the Motor Accident : 2 : 2 : 2 : Claims Tribunal at Bombay. The original Respondent in this Appeal is the original Claimant in the claim petition. According to the case of the Respondent/Claimant on 13th May 1984 at about 10.00 a.m. he was walking by the eastern footpath of Shaheed Bhagat Singh Road from south to north. When he came near the entrance gate of INS Kunjali which is on the eastern side of the road, a vehicle owned by the Navy came in a fast speed and dashed against him. As a result of the impact of the accident, the Respondent fell down and sustained injuries. He was taken by the driver of the vehicle to the Naval Hospital from where he was shifted to St.George’s Hospital where he was hospitalised for about four months from 13th May 1984 to 5th September 1984. According to the case of the Respondent, the accident occurred due to the rash and negligent driving of the driver of the vehicle owned by the Appellants. He claimed compensation of Rs.1,50,000/-. The claim was contested by the Appellants by filing written statement. The Appellants admitted the accident. However, a contention was raised that the accident took place only due to the negligence on the part of the Respondent himself. It is contended that he was walking with complete disregard to the traffic rules. In the alternative, it was contended that the Respondent himself has contributed to the negligence. : 3 : 3 : 3 : 2. The Respondent examined himself as a witness. The Appellants examined the driver of the offending vehicle as their witness. The learned Member of the Tribunal recorded a finding that the accident took place due to the negligence on the part of the driver of the said vehicle owned by the Appellants. The learned Member of the Tribunal awarded compensation of Rs.83,000/- with interest at the rate of 9% per annum. 3. The submission of the learned Counsel for the Appellants is that the case of the Respondent ought to have been disbelieved inasmuch as in the claim petition, the Respondent came out with a case that the offending vehicle came from the eastern direction while he walking from south to north but in his deposition he stated that the vehicle came from opposite direction. It is pointed out that it was never the case made out by the Respondent in his claim petition that the vehicle came from behind. It was contended that the case made out by the Respondent in the claim petition is that the accident occurred at 1.00 p.m. In his evidence he deposed that the accident took place at 10.00 a.m. It is submitted that considering the major improvements made by the Respondent and considering the discrepancies, this was a fit case where the Tribunal ought to have disbelieved the version of the Respondent. It is further submitted that the a BEST Bus was also : 4 : 4 : 4 : involved in the accident. The learned Counsel submitted that the BEST bus dashed against the vehicle of the Navy which resulted in the injury to the Respondent and therefore, by no stretch of imagination it can be said that there was any negligence on the part of the Driver of the offending vehicle. A submission is made that though original claim was of Rs.50,000/-, a compensation of Rs.83,000/- has been granted. It is submitted that there was no evidence of any injury and disability as no medical practitioner was examined. Lastly it is submitted that the Tribunal could not have granted interest on the component of future loss. 4. I have carefully considered the submissions made by the learned Counsel appearing for the parties. It is true that the original claim made was only in the sum of Rs.50,000/-. However, it must be stated here that an application was made at Exh.16 by the Respondent for enhancing the claim to Rs.1,50,000/-. On the basis of the order passed by the Tribunal on the said application, the claim petition was amended by enhancing the claim to Rs.1,50,000/-. After enhancement of claim, the record shows that no additional written statement was filed by the Appellants. 5. In the written statement filed by the Appellants it is contended that the driver of the vehicle was : 5 : 5 : 5 : driving the vehicle with care and caution. It is stated that as the driver approached the gate of INS Kunjali, he slowed down the speed of the vehicle with a view to enter through the gate. It is stated that a BEST bus which was over-taking the vehicle coming from the opposite side dashed against the rear side of the vehicle of the Appellants. As a result the vehicle of the Appellant was pushed ahead and the Respondent who was carelessly walking on the road came in contact with the vehicle of the Appellants and suffered injuries. The case of the Appellants is that the Respondent himself is negligent. 6. While appreciating the submissions made by the Advocate for the Appellants it must be borne in mind that the strict rules of evidence are not applicable to the proceedings before the Accident Claims Tribunal. It will be necessary to refer to the oral evidence of the parties. The Respondent stepped into the witness box. The Respondent in his deposition stated that at the relevant time he was waking along the eastern footpath of the said road from south to north. As he approached the gate of INS Kunjali which is on the eastern side of the road, the offending vehicle came from behind him and dashed against him. He stated that the vehicle knocked him down and thereafter dashed against an electric lamp post on the left side of the road. He specifically : 6 : 6 : 6 : stated that horn was not blown by the driver. In his evidence he has described the injuries sustained by him by stating that his both legs were fractured. The injury certificate at Exh.11 was issued by the St.George’s Hospital. Follow up treatment was also taken in the said hospital. The certificates issued by the St.George’s Hospital were admitted in evidence on the basis of the no objection given by the Advocate for the Appellants. He stated that from 13th May 1984 and 5th September 1984 he was hospitalised in the said Hospital. He stated that for about six months he could not walk. He stated that for visiting the Hospital four times in a month for a period of six months for follow up treatment, he had incurred an expenditure of Rs.35/- per trip towards taxi fare. The OPD case papers maintained by the St.George’s Hospital were produced in evidence which were marked as Exh.13. He stated that his right leg was shortened as a result of the injury sustained in the accident. The disability certificate issued by the St.George’s Hospital was duly proved in his evidence and was marked as Exh.14. According to the Respondent, he was required to take special diet by spending Rs.25/- per day for about six months and he had to spent more than Rs.2,000/- for purchase of medicine. 7. According to the case of the Respondent, he was earning a sum of Rs.1000/- per month from his tailoring : 7 : 7 : 7 : business at Apollo Bunder. He stated that he used to get orders from Cambridge Shirts. He stated that he was unable to operate the tailoring machine as a result of the injury sustained by him. He stated that he is incapacitated to work as a tailor and he cannot stand without support and he cannot sit cross-legged. He has stated that he is now sitting in the shop of his brother and earning a salary of Rs.500/- per month by doing the work of stitching buttons and other miscellaneous work. 8. In his cross-examination, the Respondent has stated that the tailoring shop referred to by him in his deposition at Apollo Bunder belongs to his father. He has also described the distance between shop of the Cambridge Shirts and the place of his residence. He has stated that he fell unconscious after being hit by the vehicle. He stated that afterwards he came to know that the vehicle had given a dash to an electric pole thereafter. He denied the suggestion that the vehicle came from the north side and that at the relevant time, he was not on the footpath. He has further stated in his cross examination that he along with his brother Jayantilal had a joint business. He stated that after the accident his brother and father were looking after the shop. 9. The driver of the vehicle Mr.Narayan Raghunath : 8 : 8 : 8 : Sinh was examined as a witness. His version in the examination-in-chief is as under: "When I reached near the gate of INS Kunjali I blew the horn to gain entry to INS Kunjali. There were two Sentries at the gate of INS Kunjali who regulate the entry into INS Kunjali and without their checking I could not enter INS Kunjali from the said gate. I was at distance of about 10 yards from the gate of INS Kunjali when I blew the horn as aforesaid. My vehicle was stopped at the gate by the Sentry. Meanwhile one BEST Bus came from behind my vehicle. It was proceeding towards Sassoon Docks. It was proceeding from North to South. I felt a heavy shock to my vehicle, at the left rear portion. At that time my vehicle was facing Kunjali gate, and two third portion of my vehicle had entered inside the gate of INS Kunjali. I, therefore, got down from the vehicle and I saw one person lying under my vehicle. The said person was lying injured under right side rear wheel of my vehicle. Right side rear wheel of my vehicle was on the road and not on the footpath." Thus his version is that when he reached the gate of INS : 9 : 9 : 9 : Kunjali he blew horn at a distance of 10 yards from the gate. He has deposed that the BEST bus gave a dash. It must be stated here that the driver has not stated that his vehicle was pushed ahead due to the impact of the BEST bus. On the contrary his version is that at the time of the impact his vehicle was facing the gate and 2/3rd portion of the vehicle had entered the gate. He stated that he noticed that a person was lying near his vehicle only when got down from the vehicle. He however stated that the injured was near the right wheel of the vehicle. He stated that right side wheel was 2-3 feet away from the footpath. In the cross-examination he admitted that there is a footpath on either side of the road and it is a raised footpath. He stated that when he applied brakes he was on the Shaheed Bhagatsingh Road. He denied that the front side of his vehicle suffered any damage. He deposed in the cross-examination that when he applied brakes he was on the Shaheed Bhagatsingh Road. 10. It will be necessary to refer to the panchanama at Exh.5. In the panchanama it is recorded that the vehicle of the Appellants has given a dash to the electric pole thereby causing damage to the vehicle. In the panchanama it is stated that there was a dent to the front bumper of the vehicle. : 10 : 10 : 10 : 11. The fact that as a result of the dash given by the vehicle of the Appellants, the Respondent suffered injuries is not disputed. The alleged inconsistent statement made by the Respondent in the claim petition that the offending vehicle came from otherside would have been relevant if the incident itself was denied by the Appellant. However, the incident is admitted. 12. The driver of the vehicle had denied that his vehicle dashed against the electric pole and that his vehicle suffered damage on the front side. These statements are falsified by what is mentioned in the panchanama which is exhibited on record. Moreover in the examination-in-chief, the driver stated that at the time of the impact by the BEST bus, a part of the vehicle had entered the gate of INS Kunjali. It must be remembered here that the gate is on the eastern side and the Respondent was walking south to north. The gate is obviously on the side of the footpath. If the statement of the driver that his vehicle had partly entered the gate at the time of impact is considered, then it is very difficult to attribute any negligence to the Respondent. In fact from the evidence of the driver, it appears that he was not even aware that a person was knocked down by his vehicle, as according to him he could see the injured only after he got down from the vehicle. Therefore, going by the version of the driver : 11 : 11 : 11 : of the Appellants, it is not possible to accept that the driver was driving the vehicle with due care and caution. It is impossible to attribute any negligence on the part of the Respondent. Thus going by the evidence of the driver of the Appellants, the Tribunal has rightly found that the case of negligence against the driver has been established. 13. In so far as the proof of injuries is concerned, the certificate issued by the St.George’s Hospital at Exh.11 and the follow up card issued by the St.George’s Hospital have been admitted in evidence by consent of the Advocate for the Appellant. The follow up card issued by the out patient department of the St.George Hospital is also taken in evidence without any objection of the Appellants. The same is the case as regards the injury certificate issued by the St.George’s Hospital at Exh.14. The said certificate at Exh.11 records the following injuries: 1. # of shaft of femur. 2. Left avulsion. _ 3. Supracondylar femur c. The certificate at Exh.14 also records that the right leg of the Respondent was shortened by 1-1/2". The document at Exh.11 in detail mentions the injuries on : 12 : 12 : 12 : the person of the Respondent. The documents at Exh.11 and 12 record the fact that from 13th May 1984 to 5th September 1984 the Respondent was hospitalised. The document at Exh.11 shows that after discharge the Respondent was advised rest for one month and he was further advised to continue treatment in OPD. The OPD card of the Sr.George’s Hospital showed that even on 5th February 1985 the Respondent was under treatment. As the injury certificate at Exh.14 issued by the St.George’s Hospital is admitted in evidence without any objection by the Appellants, the Tribunal did not commit any error when when it accepted the injuries sustained by the Respondent as mentioned therein and the fact of permanent disability of 20% suffered by the Respondent on account of shortening of leg by 1-1/2". The certificate at Exh.14 shows that it is a final certificate. 14. While computing the compensation, in paragraph 18 of the judgment, the Tribunal felt that the income of the Respondent in the form of value of services tendered by the Respondent in the joint family business is only Rs.800/- per month. The Tribunal accepted the fact that after the accident, the Respondent is earning Rs.500/- per month and therefore, loss of earning capacity is taken only at Rs.300/- per month. The Tribunal rightly accepted the case made out by the Respondent that as a : 13 : 13 : 13 : result of disability and the injury sustained to both the legs the Respondent was unable to operate the machine for tailoring business. After computing the future loss of earning at the rate of Rs.1920/- per annum for 24 years, a reduction of 50% has been made by the Tribunal on account of lumpsum payment. 15. For mental and physical shock as well as pain, a compensation of Rs.25,000/- has been awarded and a sum of Rs.15,000/- is awarded for loss of amenities of life. The Respondent was hospitalized approximately for a period of four months and thereafter atleast for a period of six months, the Respondent was under treatment. A sum of Rs.840/- has been allowed as conveyance, a sum of Rs.4500/- for special diet and a sum of Rs.2000/- on account of price of medicines. In so far as the claim of expenses incurred on treatment is concerned, the same is quantified at Rs.5000/-. In my view the amounts awarded by the Tribunal are very reasonable. 16. It is true that on the quantum of future loss of earning of Rs.23,000/- interest could not have been awarded. The Tribunal has rightly observed that the normal rate of interest payable on compensation amount is 12% per annum. The said view is in conformity with the various decisions of the Apex Court considering the : 14 : 14 : 14 : fact that the incident is of the year 1984 and the claim petition was filed in the year 1984. Instead of awarding interest at 12% on the compensation amount of Rs.60,000/- for a period of six years and granting no interest on the sum of Rs.23,000/-, the Tribunal awarded interest at the rate of 9% per annum on the total amount of Rs.83,000/-. Thus in effect the Tribunal has denied interest on the sum of Rs.23,000/-. It is not possible to find fault with the said approach of the Tribunal. 17. There is no merit in the Appeal and the same is accordingly dismissed with no order as to costs. 18. At this stage, the learned Advocate for the Respondents pointed out that the Respondents are the legal representatives of the original Claimant. He states that the compensation amount be paid to the 1st Respondent who is the widow of the deceased and sons and daughters of the deceased have no objection for paying the entire compensation amount to theie mother. The Tribunal to act accordingly by paying the entire amount to the first Respondent. 19. If the compensation amount is not deposited till today, the same shall be deposited by the Appellants with the Tribunal within a period of eight weeks from today. : 15 : 15 : 15 : Judge. Judge. Judge.