1 FA.896.99 w xobjst.350.00.sxw ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 896 OF 1999 ALONGWITH CROSS OJBECTION (stamp) NO. 350 OF 2000 1. Chandrakant G. Vadkar. 2. Oriental Insurance Company. ... Appellants Versus Mrs. Jacinta Sequeira. ... Respondent -------- Mrs. Urmila K. Samil for the Appellant No.1. Mr. C.M.Lokesh i/b Mr. G.S.Hegde for the Respondent. -------- CORAM : A.S.OKA, J. DATE ON WHICH SUBMISSIONS ARE HEARD : 19 th October, 2011. DATE ON WHICH JUDGMENT IS PRONOUNCED : 19 th December, 2011. JUDGMENT: 1 By this appeal, the Appellants have taken an exception to the judgment and award dated 27 th July, 1999 passed by the learned Member of the Motor Accident Claims Tribunal at Mumbai in a claim 2 FA.896.99 w xobjst.350.00.sxw petition filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the said Act”). The claim petition was filed by the Respondent herein. As a result of the injuries sustained in the accident, she has become completely paralysed below the waist. 2 The Respondent at the relevant time was employed with M/s. Park Davis India Limited. On 19 th August, 1991, the Respondent was proceeding to her place of employment. She was waiting at a bus stop near her house for arrival of a bus for the purposes of proceeding towards the railway station. At that time, an ambulance owned by the Appellant no. 1 which was being driven in reverse gear, gave a dash to her. The Respondent sustained several injuries including the fractures. She had to undergo a long medical treatment and her permanent partial disability has been assessed as 60%. As a result of the injuries sustained in the accident, she has become completely paralysed below the waist. The claim petition was opposed by the present Appellants. The Appellant No.1 is the owner of the ambulance and the Appellant No.2 is the insurer of the ambulance. The case 3 FA.896.99 w xobjst.350.00.sxw made out in the written statement is that on the day of accident, the driver of the ambulance had stopped the ambulance near the bus stop. It is alleged that at that time, the Respondent ran across the road to catch a bus of BEST undertaking. However, she missed the bus. At that time the driver of the ambulance was taking his vehicle in reverse direction. It is alleged that the accident occurred due to negligence of the Respondent herself. The Tribunal held that the accident occurred due to negligence on the part of the driver of the ambulance. It was held that there was no contributory negligence on the part of the Respondent. The Tribunal granted compensation of Rs. 18,50,000/- with interest at the rate of 12% per annum. 3 It must be noted here that on 13 th July, 2011 when the appeal was called out for final hearing, Mr.M.G.Barve, the learned Advocate who was earlier representing both the Appellants, made a statement that he was desirous of obtaining discharge. Mr.Barve filed a praecipe seeking withdrawal of his appearance on behalf of the Appellant No.2 – Insurer. On 27 th September, 2011, when the appeal 4 FA.896.99 w xobjst.350.00.sxw was called out, none appeared for the Appellant No.2 – Insurer and therefore, the appeal was dismissed as far as the Appellant no.2 is concerned in exercise of powers under Rule 17 of Order XLI of the Code of Civil Procedure, 1908 and therefore, in this Appeal the submissions were heard of the learned counsel appearing for the Appellant No.1. 4 Before dealing with the merits of the case, it must be noted here that while passing an order on the application for interim relief being Civil Application No.7859 of 1999, this Court directed the Appellants to pay to the Respondent a sum of Rs.45,000/- every quarter. There is no dispute between the parties that a total amount of Rs.21,45,000/- has been paid by the Appellant No.2 to the Respondent in terms of the said order. Apart from the said amount, a sum of Rs. 5,37,000/- has been deposited. Out of the said amount, a sum of Rs. 5,00,000/- was deposited with the Tribunal. A sum of Rs.12,000/- has been deposited with the Tribunal in compliance with the order under Section 140 of the said Act and a sum of Rs.25,000/- has been 5 FA.896.99 w xobjst.350.00.sxw deposited in this Court in compliance with Section 173 of the said Act. 5 The learned counsel appearing for the Appellant No.1 has taken the Court through the evidence and findings recorded by the Tribunal. The learned counsel submitted that on plain reading of the evidence of the Respondent, it is obvious that even she has contributed to the accident. He invited attention of the Court to the statements made in the examination-in-chief. The learned counsel pointed out the evidence of Mr.Tukaram Khandu Raut, the driver of the ambulance. She pointed out that the said Tukaram stated that before taking the vehicle in reverse direction, he had blown horn. She pointed out that the driver deposed as to how the Respondent ran across the road for getting into a bus and how she failed to get into the bus. The learned counsel, therefore, submitted that this is a case of contributory negligence on the part of the Respondent. 6 The learned counsel appearing for the Appellant No.1 pointed out that under the policy of group insurance, the Respondent 6 FA.896.99 w xobjst.350.00.sxw received a sum of Rs.1,50,000/- and therefore, the said amount was required to be deducted. The learned counsel submitted that the Respondent was in the employment of M/s. Park Davis India Limited only for a period of eleven days prior to the accident and therefore, this is not a case where future prospects of enhancement in the earnings of the Respondent can be taken into consideration. The learned counsel submitted that this is not a case of 100% loss of earning capacity. The learned counsel submitted that a sum of Rs.10,00,000/- granted on account of past and future loss of earning granted by the Tribunal is exorbitant. The learned counsel submitted that considering the disability certificate, this is not a case of 100% loss of earning capacity. The learned counsel submitted that the amount granted on account of attendant charges is exorbitant. The learned counsel submitted that the amount of Rs.25,000/- granted on account of future treatment is also exorbitant. The learned counsel submitted that a sum of 4,75,000/- granted on account of pain and suffering and loss of amenities of the life is certainly on the higher side. The learned 7 FA.896.99 w xobjst.350.00.sxw counsel further submitted that in any case, separate amount of on account permanent disablement could not have been granted. The learned counsel submitted that rate of interest of 12% per annum granted by the Tribunal is also excessive. 7 The learned counsel appearing for the Respondent has taken the Court through the evidence on record. He submitted that this is a case where absolutely no precaution was taken by the driver of the ambulance before taking the ambulance in reverse direction. He submitted that there was no warning given to the persons who were on the rear side of the ambulance. He pointed out that this is a case where the entire portion of the body below the waist has been completely paralyzed and the Respondent who was working as a stenographer will not be able to discharge her duty as a stenographer. He urged that as a result of the injuries, now the Respondent is not capable of earning livelihood. He submitted that this was a case of 100% loss of earning capacity of the Respondent. He submitted that a combined appeal at the instance of the insured and the Insurer is not 8 FA.896.99 w xobjst.350.00.sxw maintainable especially when the insurer had not raised a defence under Section 149 (2) of the said Act and when the leave was not granted under Section 170 of the said Act. He pointed out the orders passed by the Registrar on the Cross-Objection and submitted that the objections therein were removed and hence the cross objection could not have been numbered as a rejected case. He has taken the Court through the relevant part of the evidence, which is relevant for determination of the compensation amount. He submitted that at the time of accident, the age of the Respondent was only thirty-one years and as a result of the injuries sustained, her life is completely ruined. He submitted that the compensation granted under all heads is on the lower side and therefore, the cross-objection deserves to be allowed. The learned counsel for the Appellant No.1 submitted that no case was made out for enhancement. 8 The first question is regarding maintainability of the appeal. The appeal, as far as the Appellant No.2 is concerned, already stands dismissed by the order dated 27 th September, 2011. 9 FA.896.99 w xobjst.350.00.sxw The Appellant No.1 is the owner of the offending vehicle and therefore, the appeal at his instance is maintainable in as much as he is held liable under the impugned Award to pay compensation. 9 The first question will be regarding allegation of negligence. As far as the Respondent is concerned, her version of the accident in the examination-in-chief reads thus: “I was standing at the bus stop for route no.205, and was looking in the southward direction to see whether the bus was coming. Suddenly, I was hit by an ambulance which was coming a reverse direction from north to south. Due to the dash I fell down though conscious and was dragged by the offending ambulance being under the vehicle all the time. I was dragged by the vehicle to a distance of about 5 feet. Then suddenly the said ambulance stopped after hearing shouts from the members of the public. The said ambulance then went ahead.” In the examination-in-chief, she further stated that when she went to the bus-stop, she had seen the ambulance parked opposite Bhagwati Tea Stall. She stated that it was in the lane of the bus-stop and was facing the north. She stated that only after the accident that she came to know that the ambulance was coming in 10 FA.896.99 w xobjst.350.00.sxw reverse direction. She stated that the bus-stop has only a pole having a small board over the pole. It must be noted here that a very lengthy deposition of the Respondent has been recorded in the handwriting of the learned Court Commissioner which runs into 49 pages. The Respondent has been cross-examined at length by the Advocate for the Appellant No.2. Perusal of the cross-examination shows that the aforesaid version is not shaken in the cross-examination. The Respondent denied the suggestion that she was in hurry to catch the bus. She stated in the cross-examination that she was standing at the bus-stop and was looking towards the southern side for another bus or rickshaw as she had seen one bus passing through, when she was at the gate of the compound of the building where she was staying. She stated that the offending vehicle did not blow the horn. She denied the correctness of the suggestion that at the time of the impact, she was standing at the middle of the road. In this context, it will be necessary to make a reference to the deposition of the driver of the ambulance. In the examination-in-chief, he has stated thus: 11 FA.896.99 w xobjst.350.00.sxw “I had to collect a dead body at Naigaon and then take it to Bandra. I was not knowing the location at Naigaon in order to ask it to some person, I had halted my ambulance by the left side of the road and near a bus stop meant for Route No.202. On inquiry I learnt that the place where I had to go was just on the rear side of that very bus stop. I had to take my ambulance in reverse direction but at that time a bus at the bus stop of Route No.202 had already arrived and was standing at Bus stop. My ambulance was about 10-15 ft away from that standing bus. My ambulance was facing Dahisar. In order to take my ambulance in reverse gear I was looking towards the bus. I then saw that a woman on crossing the road on which my ambulance was standing and on coming from the east had ran towards the standing bus. The bus had then passed by my ambulance. On blowing my horn I had taken the ambulance in reverse. As I was taking the vehicle in reverse, a man had shouted that a woman was got caught under my vehicle and on left side. On halting my ambulance I got down and on going towards the rear of my vehicle I saw that a woman was lying injured near the left mudgad of my ambulance. I had then lifted her up and had put her in my ambulance and had taken her to Hariom Hospital at Dahisar. I might be taking the vehicle in the reverse in the speed about 10 Kmph. My vehicle might have travelled a distance about 6-7 ft from the place where it was halting and till the place where it was taken in reverse. This accident has not taken place on account of my driving of the ambulance.” In the cross-examination, he admitted that the road runs from Borivali to Dahisar i.e. from south to north. He admitted that at the bus-stop, there is only a pole with a sign board and there is no 12 FA.896.99 w xobjst.350.00.sxw pick-up shed. He stated that there is no footpath on the side of the road where the bus stop was located. In the examination-in-chief, he stated that his ambulance was facing the Dahisar. As stated earlier, Dahisar is towards the north. The Respondent was naturally looking in southern direction while waiting for a bus to arrive at the bus stop . The ambulance which was facing the north was being driven in a reverse gear i.e. towards south at the time of accident. Therefore, the Respondent could not have noticed the movement of the ambulance in southern direction. There is a categorical statement in the cross- examination by the Respondent that the driver of the ambulance did not blow the horn. As far as the version of the driver is concerned, his case is that he had seen the Respondent running towards the standing bus and only after blowing the horn, he had taken the ambulance in reverse direction. Thus, he wanted to suggest that while the Respondent was running after the bus proceeding in northern direction, she did not notice the ambulance and that is how she was hit by the ambulance. In the cross-examination, the witness admitted that 13 FA.896.99 w xobjst.350.00.sxw his statement was recorded by the police, but the statement does not record that the Respondent was running towards the bus. Therefore, the theory propounded by the driver in the examination-in-chief does not inspire confidence. The learned Member of the Tribunal has made a reference to Rule 233 of the Maharashtra Motor Vehicles Rules, 1989, which reads thus: “No driver of a motor vehicle shall cause the Vehicle to travel backwards without first satisfying himself that he shall not thereby caused danger or undue inconvenience to any person or any circumstances, save in the case of a road roller or any greater distance or period of time than may be reasonably necessary in order to turn the vehicle round.” The learned member of the Tribunal after considering the said Rule 233 of the said Rules of 1989 and the evidence of the Tukaram – driver of the ambulance has observed thus: “It is not disputed that witness Tukaram Khandu was taking his vehicle in reverse at the relevant time. The next question that would be then necessary to see is whether he had satisfied the requirement of Rule 233 while taking the vehicle in reverse. Curiously enough, the oral 14 FA.896.99 w xobjst.350.00.sxw evidence of Tukaram the driver of this ambulance falls too short/to show such satisfaction. All that he says is that he had blown his horn when he had taken the ambulance in reverse. The applicant has denied this suggestion and secondly, the statement of Tukaram Khandu recorded by the police on 20/8/91 i.e. immediately on the following day of this accident does not even make a whisper of any such thing. Tukaram Khandu has come out with an improved version that he had seen a woman running crossing the road and he states that he had stated before the police that the injured woman had come running form the eastern direction while the bus was standing at the bus stop, but he expresses his inability to say as to why his statement does not mentioned so.” 10 After considering the aforesaid aspects, the Tribunal found the driver of the ambulance to be negligent. A Tribunal established under the Motor Vehicles Act is not bound by strict rules of evidence. However, there is enough evidence in support of the finding recorded by the Tribunal that the driver of the ambulance was negligent. Therefore, the finding recorded by the Tribunal on the issue of negligence will have to be confirmed. 11 The second issue will be regarding the quantum of compensation. For that purpose, it will be necessary to consider the 15 FA.896.99 w xobjst.350.00.sxw nature of the injuries sustained by the Respondent. Before dealing with what is stated by the Respondent herself, it will be necessary to make a reference to the deposition of Dr.Madhav Narayan Shahane. He is an Orthopaedics Surgeon. He treated the Respondent in the Nanavati Hospital. In his deposition, he stated thus: “I have treated the Applicant Mrs.Jacinta Siqueira in August 1991 in Nanavati Hospital, Vile Parle, Bombay. She had fracture dislocation of 11th dorsal vertebra and 12th dorsal vertebra with total paraplegia. I reduced fracture dislocation by open surgery and spine was internally fixed with roads and spinal fusion was done. I had examined the Applicant for the purpose of issuing the disability certificate on 22nd January 1992 and at that time the disability of the Applicant was 100% permanent disability. Recently I have examined the Applicant at her residence at Dahisar, Bombay on 15-11-1995. On 15th November 1995 after examining her on the same day I issued the disability certificate. Now shown to me. It is in my hand writing. The contents are correct. I have signed the same. I produce the same. It is taken on record and marked as Exh.18. In that certificate I have mentioned various disabilities. Firstly total loss of power both lower limbs below the level of umbilicus, (2) total loss of sensation of both lower limbs below the level of umbilicus (3) total loss of control over urinary bladder and bowel functions (4) pain in the back on sitting or turning in bed (5) inability to sit with or without support for more than one hour. She has 100% permanent disability. Since 1 January 1992 there is no change in her condition of disability. There is no possibility of reduction of disability in future.” (emphasis added) 16 FA.896.99 w xobjst.350.00.sxw 12 He was cross-examined at length by the Advocate for the Appellant No.2. He was cross-examined on the question as to why M.R.I. of the Respondent was not done. The witness stated that the facility of the M.R.I. was not available in the Mumbai city in the year 1991. He was cross-examined on the disability certificate issued by the All India Institute of Physical Medicine and Rehabilitation, Bombay which shows that the disability exceeds 60%. He was also cross- examined on the nature of surgery performed. He denied the correctness of the suggestion that the version in the certificate issued by him was exaggerated. The examination-in-chief of the said Dr.Shahane discloses that he was practicing as an Orthopaedics Surgeon for 26 years. There is no reason to disbelieve his version. His version is supported by the discharge summary issued by the Nanavati Hospital which clearly records final diagnosis of paraplegia. The Respondent produced disability certificate issued by the All India Institute of Physical Medicine and Rehabilitation, Bombay. The said certificate was admitted in evidence during the course of cross- 17 FA.896.99 w xobjst.350.00.sxw examination of Dr.Shahane as it was shown by the Advocate for the Respondent No.2 to Dr.Shahane in the cross-examination. It records that the disability of the Respondent exceeds 60% and that she is suffering from paraplegia. The Respondent has deposed regarding various inconveniences suffered by her. Reliance has been placed on the certificate issued by Dr.Dastur (Exhibit-49) which is dated 4 th January, 1992. Dr.Dastur is a urologist. She has recorded that there is complete lesion – Upper motor neuron type of vesico urethral dysfunction. She recommended use of catheter after every two hours. There are certificates produced by the Respondent issued by the prominent orthopaedic surgeons in the city of Mumbai, Dr.Dholakia and Dr. Laud. The certificate of Dr.Shahane is that the Respondent has suffered 100% disability. After considering the certificates of Dr.Dholakia and Dr. Laud and Dr.Dastur, the learned member of the Tribunal has observed thus: “The applicant has stated that she has consulted other experts like Dr.Dholakia and Dr.Laud and both of them have opined that since spinal injury is severe there is little scope of her walking again and she should rehabilitated 18 FA.896.99 w xobjst.350.00.sxw herself of being on wheel chair She has also produced their certificates at Ex.47 & 48 in support of her say. She has also produced a certificate of Dr.Dastur who conducted uredynamic test on her and then advised her to take out the indwelling cathetur and to use a bed pan every two hours for her bladder functions which she as doing since 4th January, 1992. Dr.Dastur's certificate (Ex. 49) shows the gravity of urinary bladder problem and corborates the applicant. The applicant has stated that she has become paralysed below waist and has no sensation below waist and does not learn if a insect bites her and she had stated on occasion she happened to sustain a burn injury on her right knee. She also says that she has become prone to get bed sores and once she gets six months to heal a bed sore. She has to spend all her time on bed, need help for small things like brushing teeth, cutting nails, combing hairs, washing hands, taking bath etc. due to her bladder problem and bowel problem she cannot take sufficient bard or liquid foods. She cannot accompany her husband or children for functions and has to live with fear and depression. The rods in her back give pain and she is unable to take sexual intercourse. She suffers from migrane and gets heads and cold often. Her menstrual periods have necessitated and an operation for removal of uterus to avoid inconvenience and embarrassment. As I said earlier, the medical evidence of Dr.Shahane and the certificate Ex.18 and 24, 47, 48 and 49 and several other documents go a long way to support her. I have therefore no hesitation in holding that the applicant has sustained 100% disability.” (emphasis added) There is no reason to disturb the said finding based on oral and documentary evidence on record. 19 FA.896.99 w xobjst.350.00.sxw 13 The evidence of the Respondent supported by the documentary evidence shows that the Respondent obtained B.Com degree of Bombay University in April 1979. The original marks-list and the degree certificate are on record. The certificates produced by the Respondent at Exhibit – 75 to Exhibit – 81 show that right from May 1976, the Respondent was employed as a stenographer in various organizations including Bombay Port Trust, State Bank of India, Gabriel India Limited, Stand Bank of India Capital Markets Limited. The letter of appointment of Stand Bank of India Markets Limited, etc. shows that from 4 th