FA/202/1993 1/67 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 202 of 1993 With CROSS OBJECTION No. 34 of 2006 In FIRST APPEAL No. 202 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GUJARAT STATE ROAD TRANSPORT CORPORATION - Appellant(s) Versus MINOR HABSAKHATUN HUSENBAX THR'GUARDIAN HUSENBAX N MOMIN - Respondent(s) ========================================================= FA/202/1993 2/67 JUDGMENT Appearance : MR. MD PANDYA WITH MS. MAYABEN DESAI for Appellant(s) : 1, MR BS PATEL WITH MR CHIRAG B PATEL for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 19/07/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. Challenge in this appeal filed under Section 173 of the Motor Vehicles Act, 1988 ('the Act' for short) is to the judgment and award dated 3.8.1992 rendered in MACP No. 82 of 1991 by the Motor Accident Claims Tribunal (Aux.) District Kheda at Nadiad ('the Tribunal' for short) by which the claim petition filed under Section 166 of the Act by the respondent/original claimant ('claimant' for short) Minor Habsakhatun Husenbax, through her guardian and next friend, Husenbax Noorbhai Momin, of Changa, District FA/202/1993 3/67 JUDGMENT Kheda, against the appellant-Gujarat State Road Transport Corporation ('GSRTC' for short) to recover total compensation of RS.15,00,000/- on account of the injuries sustained by the claimant which have resulted into permanent partial disablement i.e., paraplegia in a vehicular accident which took place on 18.3.1989 at Kadi Bus Stand by a bus belonging to GSRTC, has been partly allowed and thereby the claimant has been awarded total compensation of Rs.6,12,000/- with running interest at the rate of 12% per annum from the date of the application till realization together with proportionate cost and accordingly GSRTC has been directed to pay the said amount within two months from the date of the award. The claimant has also challenged the said judgment and award by filing Cross-Objection contending that the amount awarded to the claimant by way of compensation is very meagre. 2. The factual matrix of the case of the claimant, briefly stated, is as under: FA/202/1993 4/67 JUDGMENT 2.1. An unfortunate accident took place on 18.3.1989 at Kadi Bus Stand, involving a bus belonging to GSRTC, which is, of course, disputed by the GSRTC, which has claimed all the enjoyments and comforts of life of a tender aged girl of 3 years, named Habsakhatun Husenbax, even before starting her academic career. On the fateful day, the minor girl, along with her parents and relatives, had gone to a pilgrimage at Kadi Dargah. While returning at around 5.30 P.M., they were standing near the gate of ST Bus Stand, Kadi. Her parents had gone for shopping and the minor was standing with her relatives. At that time a bus belonging to GSRTC, driven by its driver, in an excessive speed, came near the ST Stand gate and dashed with the minor girl as a result of which the minor girl got multiple injuries mainly on her spinal cord and with the result of the injuries stool and urine had also passed which shows how violent the impact was. Ihe registration number of the S.T. bus was not located because the injured was to be removed for treatment immediately to Bhagyoday FA/202/1993 5/67 JUDGMENT General Hospital at Kadi where she was treated initially and was removed in a jeep to Ankoor Hospital at Kalol. Thereafter she was removed to Nadiad Hospital in the said jeep and at around 9 P.M. they reached Utkarsh Hospital at Nadiad where she was admitted and thereafter the doctor advised the parents of the injured to consult Dr. Thakore, a neuro-surgeon, at Ahmedabad. The injured minor was removed to Dr.Thakore's Nursing Home at Ahmedabad and she was admitted in the said hospital. She was again brought for treatment at Methodist Hospital, Nadiad. The minor was treated at Methodist Hospital, Nadiad, Dr. Thakore, a Neurosurgeon of Ahmedabad, Dr. Dinubhai and Dr. Ranjitbhai Acharya of Ahmedabad, Dr. Baxi of Anand, etc. 2.2. It was further case of the claimant that the injured girl was taken to Christian Medical College and Hospital, Vellore, Tamil Nadu, for treatment on 16.6.1989 and they reached Vellore on 17.6.1989. The injured was admitted in hospital as an indoor patient on 20.6.1989 and FA/202/1993 6/67 JUDGMENT many tests of spinal-cord were conducted upto 28.6.1989. The injured sustained serious injuries and suffered from paralysis/paraplegia below the nipple. She is totally bed ridden and there are no chances of further improvement. Therefore, according to the claimant, bus of GSRTC was involved in the accident and as a result of the rash and negligent driving of the bus of GSRTC by it's driver, the accident in question took place. 2.3. Putting forth the claim for compensation of Rs.15,00,000/-, it was the case of the claimant that they had gone to Vellore for further treatment and they spent a sizable amount for the treatment of the injured. In spite of that the injured has become totally bed-ridden and is totally dependent upon others. Therefore, she had suffered great pain, shock and sufferings and she has been permanently deprived of enjoyment and amenities of life. One person is constantly required to look after her. Her father and mother both were attending her. It was also FA/202/1993 7/67 JUDGMENT the case of the claimant that looking to the nature of injuries sustained by her, she might be required to be taken to foreign country for treatment. The injured had to undergo difficulties in her day-to-day life and she had suffered a lot of mental pain, shock and suffering and her future is in darkness. So far as education, earning capacity and marriage are concerned, she has suffered a lot and she is not in a position to earn for her livelihood and her marriage prospects is also bleak. Therefore, on all these major heads, the claimant claimed through her guardian and next friend, a total compensation of Rs.15 lakhs from the GSRTC with cost and interest. 2.4. It may be noted that originally the claim was preferred for Rs.9,999/- which was subsequently enhanced to Rs.5 lakhs and thereafter it was again enhanced to Rs.15 lakhs. 2.5. The claim petition was contested by GSRTC by filing reply affidavit to the claim petition FA/202/1993 8/67 JUDGMENT at Exs.8 and 20 wherein, inter alia, it was denied that the ST bus was at all involved in the accident. It was also denied that the accident in question took place on 18.3.1989 near the gate of ST bus stand, Kadi. According to GSRTC, the accident had never been reported to the ST Depot either by her relatives or any person standing nearby the gate. According to GSRTC, it has been wrongly implicated in the accident with view to get compensation from it. According to it, it might be true that injured might have suffered injuries in a vehicular accident but it was not by the bus driven by the driver of GSRTC. If at all the accident had ever taken place because of the rashness or negligence on the part of the driver of the bus involved in the accident, either the relatives of the claimant or somebody must have filed complaint in the nearest police station or at least before the Depot Manager immediately. Therefore, in sum and substance, involvement of the bus owned by GSRTC in the accident has been denied by it. FA/202/1993 9/67 JUDGMENT 2.6. With regard to the quantification of compensation, it was denied that the injured has sustained so-called paralytic-paraplegic injuries because of the accident. Medical certificates, more particularly, radiogram and myelogram reports, indicate that the injured has not suffered any paralysis-paraplegia and X-rays of spinal cord and myelogram were normal. Therefore, the amount claimed under the head of mental pain, shock and suffering is also denied. Similarly, the amount claimed under various heads, including special diet, transportation, attendance charges, etc., were also denied. It was also denied that in future the injured has to spend a lot of money for her treatment. The expenses to be incurred for medical treatment in future was also denied. It was also denied that the injured has suffered 100% disability and, therefore, there was no question of considering future loss of income. It was the case of GSRTC that since the bus owned by the GSRTC was not involved in the accident, there was no question of considering rashness or negligence on the part of the driver FA/202/1993 10/67 JUDGMENT of the GSRTC. Therefore it was prayed to dismiss the claim petition with cost since the bus owned by GSRTC was never involved in the accident and the claim made was every excessive, exorbitant and inflated. 2.7. The Tribunal, after considering the oral as well as documentary evidence adduced and produced on the record by both the parties and the submissions advanced at the bar by the learned advocates for the parties, came to the conclusion that though the accident was not immediately reported to the police or to the GSRTC, the accident did take place and the accident was a result of rash and negligent driving of the bus owned by GSRTC by its driver and as a result of the accident, the minor girl sustained very serious injuries which ultimately resulted in paralysis/ paraplegic condition and, therefore, she has suffered 100% disability for the whole of her life. 2.8. After having held that the driver of the FA/202/1993 11/67 JUDGMENT bus owned by GSRTC was rash and negligent in driving the bus at the time of accident, the Tribunal has examined the quantum of compensation claimed under various heads and after considering the medical evidence, determined the compensation under various heads as under: Rs. 75,000/- for pain, shock and sufferings. Rs.2,00,000/- for past medical treatment. Rs. 12,000/- for medicines. Rs. 15,000/- for nursing, care and attendance. Rs. 15,000/- for transport charges. Rs. 10,000/- for special diet. Rs. 20,000/- for future medical treatment. Rs. 25,000/- for amenities of life. Rs.2,40,000/- for future loss of income. --------------------------------------- Rs.6,12,000/- Total ================= The Tribunal, therefore, awarded Rs.6,12,000/- with running interest at the rate of 12% per annum from the date of the application till realization and proportionate costs, which has FA/202/1993 12/67 JUDGMENT given rise to instant appeal at the instance of the appellant-GSRTC challenging the same as excessive, exorbitant and inflated and Cross- Objection at the instance of the claimant- Habsakhatun Husenbax, through her guardian and next friend Husenbax Noorbhai Momin, challenging the same as being very meagre. 3. Mr. M.D. Pandya, learned advocate with Ms. Mayaben Desai, learned advocate, for GSRTC raised the following contentions: (i) The claimant has failed to prove by cogent evidence that the bus of the GSRTC was involved in the accident. When the claimant has failed to prove the involvement of the ST bus in the accident, question of considering any rashness or negligence on the part of the driver of the GSRTC does not arise. However, the Tribunal, on conjectures, surmises and assumptions wrongly held that the bus of GSRTC was involved in the accident and the driver of the GSRTC was negligent in driving the bus. FA/202/1993 13/67 JUDGMENT (ii)So far as quantum of compensation is concerned, the Tribunal has considered the medical certificates which were not exhibited during the course of evidence. On the contrary, those certificates produced by the claimant, particularly the X-rays and myelograms, in terms certify that the injured had never become paralytic/paraplegic because of the injuries sustained by her because the nexus between the accidental injuries and paralysis/paraplegia has not been established. There is variance among the certificates produced by the claimant. However, the Tribunal has wrongly relied upon those certificates for coming to the conclusion that the injured has become paralytic/paraplegic because of the accidental injuries and has become cripple and permanently disabled. Therefore, the quantum of compensation has been wrongly calculated and exorbitant amount has been awarded. (iii) It was also contended that the Tribunal FA/202/1993 14/67 JUDGMENT has erroneously believed the documents produced by the claimant which are not proved and not exhibited. The Tribunal has relied upon non- proved and non-exhibited documents for coming to the conclusion that the driver of the bus owned by GSRTC was involved in the accident and as a result of the rash and negligent driving on the part of the driver of the bus owned by GSRTC the accident took place as well as the injured suffered paralytic/paraplegic injuries which have resulted into permanent total disablement. In support of both the aforesaid contentions, Mr. Pandya, learned advocate for GSRTC, has taken us through the testimonial collections. According to him, the impugned award involving the bus of the GSRTC in the accident as well as the quantum of compensation determined by the Tribunal deserves to be quashed and set aside by allowing the appeal and thereby dismissing the claim petition filed by the claimant and also the Cross-Objection. He, therefore, urged to allow the appeal and to dismiss the cross-objection FA/202/1993 15/67 JUDGMENT filed by the claimant. 4. Per contra, Mr. BS Patel, learned advocate for the claimant, has made following submissions: (i) There are voluminous evidence which would unequivocally establish that the bus of GSRTC was involved in the accident. The accident had taken place near the gate of Kadi ST bus stand. The driver of the ST bus knocked the minor down and as a result of the impact she sustained serious injuries. The impact was so forceful that the minor girl passed urine and stool. Immediately after the accident, she was taken to the nearest hospital at Kadi and thereafter from one hospital to another and therefore they could not lodge the complaint with the police or with the Depot Manager of GSRTC immediately. According to him, for proving the involvement of the ST bus in a vehicular accident it is not always necessary to lodge a complaint or FIR. According to him, of course, a complaint or FIR has a persuasive value but if there is oral evidence and supporting FA/202/1993 16/67 JUDGMENT documentary evidence suggesting that the bus of GSRTC was involved in the accident there is no reason to disbelieve or discard such piece of evidence. Therefore, the Tribunal has rightly held that the claimant has proved that the bus of GSRTC was involved in the accident and as a result of the rash and negligent driving on the part of the driver of the ST bus the accident had taken place. (ii) So far as the quantum of compensation awarded by the Tribunal is concerned, according to him, there is voluminous evidence which unequivocally suggests that as a result of the accident, a girl of tender age of three years has practically become cripple and she has become paralytic and paraplegic and she will remain totally disabled for the whole of her life. There is medical evidence to the effect that as a result of the trauma of spinal-cord the injured girl has become paralytic/paraplegic, and therefore, the amount awarded under various heads is on the contrary on the lower side and, FA/202/1993 17/67 JUDGMENT therefore, the claimant has filed cross objection for enhancement of the award. On the aforesaid premise, it is submitted by him that the impugned award is on lower side so far as the quantum of compensation is concerned and this court may enhance the compensation. According to him, the appeal filed by GSRTC lacks merit and therefore the same may be dismissed and the cross-objection filed by the claimant may be allowed by enhancing the amount of compensation. He, therefore, urged to pass appropriate orders in this regard. 5. We have considered the submissions advanced by Mr. MD Pandya, learned advocate with Ms. Mayaben Desai, learned advocate for GSRTC and Mr. BS Patel, learned advocate with Mr. Chirag B. Patel, learned advocate for the claimant. We have also perused the impugned award and the paper book containing testimonial collections in the form of oral as well as documentary evidence FA/202/1993 18/67 JUDGMENT supplied by Mr. BS Patel, learned advocate for the claimant and considered the decisions cited at the bar. 6. To prove the case against GSRTC with regard to involvement of the bus owned by it in the accident, the claimant first relied upon the oral testimony of Husenbax Noorbhai Momin, Ex.52 at page 86 of the paper book. He has, inter alia, testified that on 18.3.1989 the accident took place at the gate of Kadi Bus Stand. On that day they had been to pilgrimage to Kadi Dargah along with his wife, daughter and sister-in-law. While returning on the same day in the evening, they were standing near the ST Bus Stand, Kadi. He and his wife had gone to a shop opposite ST Depot for some purchase. At that time his sister-in-law Zubeda and Nazma and Habsakhatun were standing outside the ST Bus Stand. His brother Mahmad had gone for chewing betel (pan). The shriek of his daughter attracted his attention towards her and at that time he saw a ST bus was passing. People assembled there. His daughter was found lying FA/202/1993 19/67 JUDGMENT down covered with dust. There was distance of 15 ft. between him and his daughter. His sister-in- law Zubeda told that the ST bus knocked his daughter down. He immediately took her daughter to Bhagyoday General Hospital, Kadi, in an auto rickshaw. He had informed the doctor that his daughter received injuries because of the accident caused by ST bus. The doctor treated her. During his cross examination he clarified that since they were concentrating on the treatment of the injured they could not lodge complaint in the police immediately. However, prior to going to Vellore he had written a letter to DSP Mehsana as a result of which the DSP recorded statements. He had also shown the place of the accident to the police. It may be noted that during cross-examination he admitted that he did not remember the registration of the bus nor did he know the route as well as the name of the driver of the bus. He also admitted that he had not contacted any of the officers of the GSRTC. FA/202/1993 20/67 JUDGMENT He also admitted that though he had heard the cry of his daughter which attracted his attention towards the place of accident he had not seen the dashing of the bus with his daughter. He also stated that the police had recorded the statements of witnesses. According to this court, this witness withstood the test of cross- examination and there is no reason to disbelieve the deposition given by him on oath. 7. To corroborate the said evidence, the claimant has also relied upon the complaint dated 14.6.1989 sent by the father of the injured claimant to DSP, Mehsana, Ex.53, which is at pages 92-93 of the paper book. This complaint was sent after three months of the occurrence. A xerox copy of the complaint sent by him was shown to him and it was a certified copy and he has produced it as mark 27/1 which is at Ex.53. It was produced along with the true copy of the panchnama as mark 27/2, which is at Ex.54. From the close scrutiny of the complaint, it is seen that the claimant had also explained the reason FA/202/1993 21/67 JUDGMENT why immediately complaint could not be lodged. It was stated therein that for three months they were busy in giving treatment to the injured minor and therefore they were mentally broken down. It was also stated by him that they have immediately informed the doctors who treated the minor injured about the accident and the involvement of the bus of GSRTC in the accident and he had categorically stated before the doctors that the accident had taken place by the bus of GSRTC at the gate of ST Depot, Kadi. 8. To further corroborate the evidence of Husenbax Noorbhai Momin about the involvement of the ST bus in the accident, the claimant has also examined and relied upon the evidence of Zubedabibi, Ex.58, at page 99 of the paper book. She, inter alia, testified that on 18.3.1989 they had gone for pilgrimage at Kadi Dargah. The accident had taken place near the gate of ST Depot Kadi. At that time Habsakhatun was with her. The bus came from the ST stand without blowing horn and in an excessive speed. They were FA/202/1993 22/67 JUDGMENT standing near the second gate on a side. As the bus dashed with the minor girl, she fell down and became unconscious. Urine and stool passed as a result of the impact. People assembled there. Meanwhile, Husenbax and his wife, i.e., father and mother of injured Habsakhatun, came there and she informed them about the accident. Thereafter they took the injured in an auto-rickshaw to a hospital at Kadi and thereafter from Kadi to a Hospital at Kalol and then to Nadiad. This witness was also subjected to cross-examination by the learned advocate for the GSRTC. In her cross-examination she denied all the suggestions put to her about non-involvement of the ST bus in the accident. She reiterated that accident did take place by the rash and negligent driving on the part of the driver of the ST bus while taking the bus from ST stand without blowing horn and in an excessive speed. This witness withstood the test of cross-examination and there is no reason to discard her oral testimony so far as the involvement of the ST bus in the accident is concerned. FA/202/1993 23/67 JUDGMENT 9. To fortify that the bus of the GSRTC was involved in the accident, the claimant also relied upon the first MLC certificate issued by Bhagyoday General Hospital, Kadi where after the accident immediately the injured was taken for treatment. This medical certificate is at page 96 of the paper book. On a perusal of the said certificate it is seen that the doctor has certificated that Habsakhatun, resident of Vanakbori, aged about 3 years, was brought to the hospital on 18.3.1989 at 5.20 P.M. following alleged history of ST bus accident. Thereafter she was referred to orthopedic surgeon for further treatment. The concerned doctor wrote a note dated 81.3.1989 to the orthopedic surgeon wherein also complaint of vehicular accident was noted. Therefore, these two documents are first in point of time from the hospital where immediately after the accident the injured was taken for treatment and history of vehicular accident involving ST bus near the Bus Stand, Kadi, was noted. FA/202/1993 24/67 JUDGMENT 10. The claimant also relied upon deposition of Dr. Shantiswarup, Ex.62, page 101 of the paper book to prove the involvement of the ST bus in the accident. Dr.Shantiswarup testified that on 18.3.1989 Habsakhatun was brought to his hospital for treatment. It was informed to him that accident had taken place at Kadi Bus Stand by ST bus. In cross-examination also he narrated similar version and stated that in his case paper he had mentioned about the accident caused by ST bus. He had also issued a certificate dated 25.4.1989 which is on record at page 104 of the paper book. A perusal of the said certificate shows that he had mentioned in the said certificate about the alleged vehicular accident at Kadi ST Depot. Therefore there is no reason to discard the oral testimony of Dr. Shantiswarup as well as the certificate issued by him. 11. It was the case of GSRTC that the bus of the ST Corporation was never involved in the accident. They,