-:1:- 1. S.B.CIVIL MISC. APPEAL NO.2629/2003 2. S.B.CIVIL MISC. APPEAL NO.133/2004 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT 1. S.B.CIVIL MISC. APPEAL NO.2629/2003. RAJASTHAN STATE ROAD TRANSPORT CORPORATION VERSUS MR.ALEXIS SONIER AND ANOTHER. UNDER SECTION 173 OF M.V.ACT, 1988 AGAINST THE AWARD DATED 29.09.2003 PASSED BY SHRI VIJAY KUMAR VYAS, RHJS, JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL, JAIPUR DISTRICT, JAIPUR IN MAC NO.96/1991 (511/1988). 2. S.B.CIVIL MISC. APPEAL NO.133/2004. ALEXIS SONIER. VERSUS RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND ANR. UNDER SECTION 173 OF M.V.ACT, 1988 AGAINST THE AWARD DATED 29.09.2003 PASSED BY SHRI VIJAY KUMAR VYAS, RHJS, JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL, JAIPUR DISTRICT, JAIPUR IN MAC NO.96/1991 (511/1988) FOR ENHANCEMENT OF COMPENSATION. Date of Judgment. : April 23rd, 2010. PRESENT HON'BLE MR.JUSTICE DALIP SINGH HON'BLE MR.JUSTICE DALIP SINGH Mr.R.N.Mathur, for R.S.R.T.C. Mr.G.K.Bhartiya ] Mr.Ram Singh Rathore ] for the claimant-injured. Mr.S.N.Javeria ] BY THE COURT : 1. S.B.CIVIL MISC. APPEAL NO.2629/2003. This misc. appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed against the award passed by the learned Motor Accident Claims Tribunal, Jaipur District, -:2:- 1. S.B.CIVIL MISC. APPEAL NO.2629/2003 2. S.B.CIVIL MISC. APPEAL NO.133/2004 Jaipur dated 29.09.2003 in Motor Accident Claim Case No.96/1991 (511/1988) whereby the learned Tribunal has allowed the claim application and has passed an award of Rs.1,25,15,002/- (Rs.One Crore Twenty Five Lakhs Fifteen Thousand and Two only) in favour of the claimant-respondent after converting the amount from U.S.Dollars to Indian Rupee for some of the heads under which compensation has been awarded in U.S.Dollars. Being aggrieved by the award, the Rajasthan State Road Transport Corporation (hereinafter referred to as “the appellant Corporation”) has preferred this appeal. The brief facts which give rise to this appeal are that on 08.01.1988 the claimant-respondent Alexis Sonier was participating in a march for peace along with citizens from various other countries on foot from Ahmedabad in the State of Gujarat to Rajghat in New Delhi. The claimant-respondent is an American citizen from the United States of America. While participating in the aforesaid peace march along with group of other persons, between Jaipur and Delhi near Chandwaji, it was alleged, that a bus of the appellant Corporation bearing registration No.RNP-897 which was being driven the by the respondent No.2 rashly and negligently at a very high speed came and struck the claimant-respondent from behind. As a result of which, he fell down on the road and became unconscious as a result of the injuries he sustained in the said accident. He was taken to the Sawai Man Singh Hospital, Jaipur where it was found that among other injuries he had received a head injury. During the course of treatment three surgical operations were performed on the claimant- respondent, however, the claimant-respondent did not regain consciousness. On medical advice, he was shifted to Vadilal -:3:- 1. S.B.CIVIL MISC. APPEAL NO.2629/2003 2. S.B.CIVIL MISC. APPEAL NO.133/2004 Sarabhai Hospital, Ahmedabad in the State of Gujarat and despite all possible efforts, the condition of the claimant- respondent did not improve. The claimant-appellant was then discharged from the Hospital at Ahmedabad on 22.04.1988 and shifted by air under medical supervision of the Doctors to United States. The claim petition was filed before the learned Motor Accident Claims Tribunal, Jaipur District, Jaipur on 07.07.1988. It was stated in the claim petition that age of the claimant- appellant was 22 years at the time of accident and that he was a resident of California in United States. It was further stated that the claimant-appellant was working as a Carpenter and was earning about 2000 USD per month equivalent to Rs.28,000/-, as per rate prevailing at the time of filing of the claim petition. In the claim petition, it was stated in para 10 that as a result of the injuries the claimant-appellant had not regained consciousness and was continuously undergoing treatment in United States. In the claim petition, the claimiant- appellant made a claim for damages both special and general under the head of expenses incurred for treatment in India, expenses for transfer by air, medical expenses for treatment in United States both under Medi-Cal Scheme and expenses borne by parents of claimant-appellant. Damages were also claimed for future medical expenses, loss of income, loss of income for the attending mother, expenses for engaging attendant as well as expenses for sending of commissions for recording evidence to the United State of America. Under the head of General Damages, compensation was claimed for pain and suffering and mental agony as well as loss of amenities and enjoyment of life and future income. The appellant-Corporation filed their reply to the claim -:4:- 1. S.B.CIVIL MISC. APPEAL NO.2629/2003 2. S.B.CIVIL MISC. APPEAL NO.133/2004 petition. Though the Driver of bus in question did not file any reply to the claim petition despite service and proceedings were taken ex-parte against him vide order dated 04.11.1988 passed by the learned Tribunal. The appellant Corporation raised certain preliminary objections regarding maintainability of the claim petition on account of it not having been filed by the claimant-appellant himself but by Mr.Surendra Nath Singh Javeria and his locus standi to file the same was challenged. The appellant-Corporation also denied the manner in which the accident occurred, as stated in the claim application and alleged that the accident occurred on account of the negligence of the claimant himself. It was alleged that it was a case of contributory negligence on the part of the claimant who was trying to cross the road but midway he back tracked and met with the accident. The appellant Corporation also stated that the best medical facilities were available at Jaipur and there was no need to shift the claimant from Jaipur to Ahmedabad and without having taken the full treatment at Jaipur itself, the claimant had proceeded to Ahmedabad and thereafter to the United States without proper treatment. Under these circumstances, the Corporation cannot be held liable for the condition of the claimant respondent No.1. It was also stated that the expenses as shown in the claim application were high and exaggerated so also the amount of compensation claimed. On the pleadings of the parties, the following issues were framed by the learned Tribunal: “1. Whether on 08/01/1988 non-petr.No.2 drove the Bus RNP 897 rashly or negligently at the Jaipur- Delhi Road near village Lakher and hit Alexis, as a result of which Alexis got injured and his mother had to face many difficulties in transportation etc. 2. Whether non petitioner No.2, was driver of the above vehicle and was in the employment of non- -:5:- 1. S.B.CIVIL MISC. APPEAL NO.2629/2003 2. S.B.CIVIL MISC. APPEAL NO.133/2004 petr. No.1 and was driving for the benefit of the same at the time of accident. 3. Whether the petitioners are entitled to get the amount claimed, if yes then, how much amount and from whom? 4. Whether the petitions have not been presented according to law, and so, are not maintainable. 5. Relief.” The learned Tribunal decided issue No.4 first and held that in the facts and circumstances which have come on record the presentation of claim application was in accordance with law and the same cannot be rejected for want of proper presentation. While deciding the issue No.1, the learned Tribunal after going through the evidence of the eye witnesses who were present along with the claimant in the march for peace. The claimant also filed documentary evidence in the form of the site plan, prepared during the investigation by the Police along with challan papers including Exhibit-52, the site plan. While discussing the evidence of the eye witnesses and the documentary evidence, the learned Tribunal came to the conclusion that it was amply proved on the basis of the evidence that the accident occurred on account of negligence on the part of the driver of the appellant-Corporation and decided the issue No.1 in favour of respondent No.1-claimant. So far as the issue No.2 is concerned, the same was decided in favour of the claimant and against the appellant Corporation as the ownership of the Bus and the fact that the same was driven by the driver of the appellant Corporation has not been contested. So far as issue No.3 is concerned, which -:6:- 1. S.B.CIVIL MISC. APPEAL NO.2629/2003 2. S.B.CIVIL MISC. APPEAL NO.133/2004 relates to the award of damages, the learned Tribunal bifurcated the evidence in two parts. In the first part, were the witnesses who deposed with regard to the condition of the claimant, treatment provided to the claimant and the expenses incurred for the treatment in India and in the other part with regard to the evidence recorded on commission in the United States with regard to the expenses incurred in the treatment and treatment given to the claimant in the United States. On the basis of the evidence on record, the learned Tribunal came to the following findings, as regards the damages both special and general to be awarded to the claimant:- “(a) Special Damages Dollars Rs. i. Expenses incurred on treatment in India. 50,000/- ii.Air Fare for Jaipur to Ahmedabad 4,000/- iii.Air Far for Ahmedabad to USA 1,00,000/- iv.Medical expenses in USA borne by Medi-Cal 125,348.01 v.Medical expenses in USA borne by parents 25,000.00 vi.Future expenses on Medical Treatment 4,00,000/- vii.Loss of income by the claimant 408,000.00 viii.Loss of income of attending mother 81,584.00 ix.Future expenses for management of attendant 60,000.00 x.Expenses on Two Commissions 1,61,954/- (b) General Damages i. For pain, sufferance and mental agony 10,00,000/- ii.For loss of amenities and enjoyment of life 10,00,000/- Total $699932.01 Rs.27,15,954/- So, total damages in Rupees : (699932.01 X 14) + 2715954 = Rs.12515002.14/- In round figure it is Rs.1,25,15,002/-” Based upon the above, the learned Tribunal awarded an amount of Rs.1,25,15,002/- with interest at the rate of 6% per annum w.e.f. the date of presentation of the claim application i.e. 07/07/1998 to the claimant out of which an amount of Rs.25,000/- was ordered to be paid to the two Commissioners who were appointed for recording the evidence and an amount of Rs.1,16,411.69p was to be given credit towards expenses incurred and amount paid by way of palliative grounds by the -:7:- 1. S.B.CIVIL MISC. APPEAL NO.2629/2003 2. S.B.CIVIL MISC. APPEAL NO.133/2004 appellant Corporation for the treatment, etc. given in India to the claimant. Being aggrieved by the aforesaid award dated 29.09.2003, the appellant Corporation has come up in appeal before this Court. Before concluding the arguments on 30.03.2010 an opportunity was given to the parties to arrive at a mutual settlement regarding the claim. However, today it was submitted by the learned counsel for the appellant on instructions from the appellant Corporation that the Corporation is in no position to negotiate the matter. I have heard learned counsel for the parties and perused the record. Learned counsel for the appellant made the following submissions in support of the appeal:- It was contended that the evidence in the present case was recorded under the orders of the learned Tribunal on commission after the claimant moved an application before the learned Tribunal which was allowed vide order dated 11.07.1990 and according to which the learned Tribunal had only permitted the commissioner appointed for the purpose to go to the United States and record the statement of 11 persons, as mentioned in the said order. Learned counsel for the appellant contended that the Commission exceeded his authority delegated to him by the Court by recording the statements of AW-10A to AW-19, all of whom except AW-18 were persons not named in the order dated 11.07.1990 and accordingly, the evidence of all these witnesses except AW-19 deserves to be excluded from the -:8:- 1. S.B.CIVIL MISC. APPEAL NO.2629/2003 2. S.B.CIVIL MISC. APPEAL NO.133/2004 consideration. The second submission of the learned counsel for the appellant Corporation is that the learned Tribunal erred in awarding damages under the head of “Special Damages” in (iv) Medical expenses in USA borne by “Medi-Cal” amounting to compensation of 125,348.01 USD. The submission of the learned counsel for the appellant is that so far as the aforesaid expenses are concerned, it has been admitted by the witness AW-18 that in the State of California in the United States of America there is in enforce a “Medi-Cal Program” and under Section 14124.70 in the case of persons who are not covered under any insurance scheme and are unable to pay their own medical expenses all the medical expenses are borne by the State. It was thus, contended that since the aforesaid amount which has been awarded under the head of Medical Expenses borne by the Medi-Cal, the claimant cannot be held entitled to receive the aforesaid amount and, therefore, out of the total compensation amount of 125,348.01 USD awarded towards medical expenses incurred under the Medi-Cal Scheme deserves to be reduced. The next submission of the learned counsel for the appellant is that the claimant has failed to prove the negligence on the part of the driver of the bus of the appellant-Corporation and that the learned Tribunal has erred in applying the principle of res ipsa loquitur in the facts and circumstances of the present case. At the same time, it was also contended that it was a case of contributory negligence on the part of the claimant as mentioned in the reply to the claim petition in para No.6 and, therefore, the learned Tribunal has erred in holding the appellant liable and awarding the entire damages against the appellant-Corporation whereas the same ought to have -:9:- 1. S.B.CIVIL MISC. APPEAL NO.2629/2003 2. S.B.CIVIL MISC. APPEAL NO.133/2004 been reduced on account of the contributory negligence of the claimant himself. Learned counsel for the appellant also contended and raised submissions in respect of the preliminary objection submitted before the learned Tribunal regarding the maintainability of the claim and the same not having been filed in accordance with the provisions contained under Section 166 of the Motor Vehicles Act, 1988. Learned counsel for the respondent-claimant on the other hand submitted that so far as the submissions of the appellant regarding exclusion of the evidence recorded by the Commissioner of the witnesses AW-10A to AW-19 except AW- 18 is concerned, the Commissioner recorded the evidence of the witnesses who were produced by the claimant and the counsel for the Corporation who was present did not at that time raised any objections to the production of the said witness before him by the claimant. It was further submitted that after the return of commission, the commissioner gave his report before the learned Tribunal along with the recorded evidence and the appellant-Corporation or the counsel appearing on behalf of the appellant-Corporation did not raise any objection before the learned Tribunal to the aforesaid set of evidence being taken on record, as would be evident from the ordersheets of the proceedings of the learned Tribunal dated 24.06.1991.The learned counsel for the respondent-claimant, therefore, submitted that the objection, if any, to the evidence recorded by the commissioner and irregularity if at all in that behalf had been waived by the appellant-Corporation consciously and, therefore, it was not open for the Corporation to raise the aforesaid objections. -:10:- 1. S.B.CIVIL MISC. APPEAL NO.2629/2003 2. S.B.CIVIL MISC. APPEAL NO.133/2004 So far as the question of award of compensation for the Medi-Cal amount is concerned, learned counsel for the claimant-respondent drew the attention of the court to the statements of AW-18 who clearly stated that in the event of the Injured-Claimant receiving any compensation, the Medi-Cal department of State would have a lien on the aforesaid amount of compensation awarded to the Injured for actual expenses incurred by the State under the said Scheme and, therefore, the amount which has been awarded would be liable to be paid to the Medi-Cal department of the State of California. On the question of negligence, learned counsel for the appellant pointed out after going through the evidence that from the side of the claimant there was unimpeachable evidence of the eye witnesses who had clearly deposed regarding the manner in which the accident was caused which clearly establishes that the accident in which the claimant received injuries was solely on account of rash and negligent driving of the Driver of the vehicle of the appellant-Corporation. At the same time, learned counsel for the respondent-Claimant stated that while the claimant has discharged his burden by proving the fact of accident by producing the eye witnesses, the appellant-Corporation had failed to lead any evidence regarding the manner in which the accident occurred. On the contrary, the only evidence which was produced by the appellant- Corporation was in the form of NAW-1 Banwari Lal, the Driver of the bus of the Corporation as well as the Conductor of the said bus NAW-2 Dinesh and both these witnesses had only denied that any accident in fact had took place with their bus. These two witnesses have not deposed anything about the alleged contributory negligence of the claimant. Learned counsel for the respondent-Claimant, therefore, contended that while there is ample proof regarding the fact of the accident of -:11:- 1. S.B.CIVIL MISC. APPEAL NO.2629/2003 2. S.B.CIVIL MISC. APPEAL NO.133/2004 the claimant with the bus in question, the only evidence which was led by the appellants was denying the fact of accident with bus at all and no evidence has been led with regard to the contributory negligence, as alleged by the appellant- Corporation in their reply. Learned counsel for the respondent, therefore, contended that there was no force in the submission of the learned counsel for the appellant on this issue. So far as the presentation of claim application is concerned, learned counsel for the appellant-Corporation contended that presentation had been made by the authorized representative and which was on the basis of vakalatnama, the authority given by the mother of the claimant Mrs.Dominique Sonier as the next friend of the claimant who was in no position to file the claim himself on account of his physical condition. This has been reiterated by the witness of the claimant and not disputed by the parents who are looking after the claimiant as his parents and next friends. On the basis of the above, learned counsel for the respondent-Claimant contended that appeal is totally without merits and the same deserves to be dismissed. I have given my thoughtful consideration to the rival submissions and perused the record. So far as the question with regard to the commission having exceeded its authority in recording the statements of the witnesses other than those mentioned in the order of the learned Tribunal dated 11.07.1990 is concerned, I am of the view that the appellant-Corporation could have objected to the same in the very first place by filing objections before the learned commissioner himself when the witnesses were -:12:- 1. S.B.CIVIL MISC. APPEAL NO.2629/2003 2. S.B.CIVIL MISC. APPEAL NO.133/2004 produced before the Commission in the United States. The witnesses who were produced were also cross examined by the counsel for the appellant-Corporation and no objection in this behalf was raised with regard to any of the witnesses from AW-10A to AW-19 by the learned counsel for the appellant- Corporation. At the same time, after the commission returned after recording the evidence and the commissioner submitted his report before the learned Tribunal, the ordersheet of the proceedings on 24.06.1991 shows that commissioner Shri Bhag Chand Jain, Advocate produced the record before the learned Tribunal along with the statements of ten witnesses whose statements have been recorded by him. The learned Tribunal has then proceeded to record in its ordersheet dated 24.06.1991 that it inquired from the counsel for the appellant- Corporation whether he had any objection in taking on record the statements of witnesses viz., Dr.E.Scott Conner, Dr.Thomas Z.Weber, Mr.Courtney Billups, Mr.Kent Furguson, Mr.Walter Joseph Babine, Mr.Jan Robert, Mrs.Nancy Brooks, Miss Maureen McKenzie, Mrs.Carole Kellogg and Mr.Ivan Sonier. The counsel for the appellant-Corporation on being asked specifically with reference to the above named witnesses stated before the Tribunal that he has no objection to the statements of these witnesses being taken on record. Hence, the learned Tribunal ordered for the aforesaid evidence of AW- 10A to AW-19 being taken on record. For ready reference, the ordersheet of the learned Tribunal dated 24.06.1991 is reproduced hereunder:- “24.06.91 ूाथर् की ओर से ौी भारतीय व RSRTC से ौी मनीष भण् डारी तथा कमीँ नर ौी भाग चन् द जैन उप0। आज ौी भाग चन् द जैन, आयुक् त ने एक ूाथर्ना पऽ ूः तुत कर अमरीका में जाकर कमीशन पर 10 साआ यों के बयान लेकर ूः तुत िकया। साथ में पऽावली भी ूः तुत की। ौी मनीष भण् डारी को पूछा गया िक क् या उनकों साआ य सवर्ौी Dr.E.Scott Conner, Dr.Thomas Z.Weber, Mr.Courtney Billups, Mr.Kent Furguson, Mr.Walter -:13:- 1. S.B.CIVIL MISC. APPEAL NO.2629/2003 2. S.B.CIVIL MISC. APPEAL NO.133/2004 Joseph Babine, Mr.Jan Robert, Mrs.Nancy Brooks, Miss Maureen McKenzie, Mrs.Carole Kellogg, Mr.Ivan Sonier के बयान जो कमीशन पर उनकी उप0 में िलये गये हैं, को िरकाडर् पर िलये जाने में कोई आपित् त है? उन् होंने कोई आपित् त नहीं बताई। अत: उक् त साआ य के बयान इस पऽावली के िरकाडर् पर िलये जाते हैं। तथा इन बयानों पर AW-10A से AW-19 डाला गया। ूाथर् अपनी शहादत समाप् त करते हैं।...." In the facts and circumstances, therefore, I am of the view that the appellant-Corporation had two opportunities to raise objections with regard to recording of the evidence by the Commission of witnesses other than those named. The first opportunity, as has been stated above, arose when the witnesses were produced before the Commissioner for recording their statements in U.S.A. and no objection to that effect was raised by the counsel for the appellant-Corporation. The second opportunity arose when the Commission returned and the report was submitted by the Commission before the learned Tribunal on 24.06.1991 and consciously the counsel for the appellant-Corporation stated that he had no objection to the statement of the witnesses named above and recorded in the ordersheet being taken on record. In that view of the matter, I find no force in the submission of the learned counsel for the appellant-Corporation so as to warrant interference in appeal on the aforesaid ground for setting aside the award passed by the learned Tribunal. It may also be added that in this case the accident took place 22 years ago on 08.01.1988 and despite the award having been passed in the year 2003, the claimant has not received any amount apart from Rs.1,16,411.69p and the compensation awarded has only remained illusory. If the submission of the learned counsel for the appellant was to be accepted, it would certainly result in re-trial and again requiring fresh set of evidence to be recorded. If the appellant- Corporation had any objection they could have stated so before -:14:- 1. S.B.CIVIL MISC. APPEAL NO.2629/2003 2. S.B.CIVIL MISC. APPEAL NO.133/2004 the learned Tribunal in the year 1991 itself and remedial measures could have been taken then and there. Having taken note of the facts mentioned above, I am of the view that in the facts and circumstances of this case the award passed by the learned Tribunal does not call for any interference on the aforesaid count. So far as the next submission with regard to their being no negligence on the part of the Driver of the appellant- Corporation or that the Insured-Claimant himself contributed to the accident is concerned, I have perused the evidence on record. On the part of the claimant in the claim petition, in the description of the accident as given in paragraph No.10 of the claim petition, it was stated that the claimant was participating in a march for peace which started from Ahmedabad on 04.12.1987 and on 08.01.1988 when the said march for peace reached near about Chandwaji (in the District Jaipur in Rajasthan) at about 1:30 PM a bus of the appellant-Corporation being driven by the Driver-respondent No.2 at very fast speed, rashly and negligently without caring for the driving regulations came from the side of Jaipur and struck