Municipal Corporation Of Greater ... vs Dolly Thakore
2004 Latest Caselaw 473 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard advocate for BMC, appellant and for the respondent. This appeal is filed against the award of the Motor Accidents Claims Tribunal in Application No. 2072 of 1982, wherein the respondent was awarded compensation of Rs. 5,74,800 with interest at the rate of 12 per cent from the date of application, i.e., 8.12.1982 till realisation and costs by award dated 26.6.1987.

2. Claim petition before M.A.C.T. filed by the respondent arose in the following circumstances:

On 17.7.1982 at about 12.10 a.m., i.e., at midnight respondent was travelling in motor taxi No. MRO 5005. Taxi was proceeding from Raj Bhavan to Chowpatty. At that time a bus of the BEST undertaking No. MRL 5155 came from Walkeshwar Road. The bus was going downwards and taxi was climbing upwards. According to the respondent the bus driver was driving the bus in an uncontrollable speed and was driving in a rash and negligent manner, therefore, it collided with the taxi. As a result taxi was smashed, driver and another passenger in the taxi were killed and the respondent and the other passenger were seriously injured. Respondent was taken to the hospital and was treated.

3. It is the aforesaid manner in which the accident took place and the respondent initially claimed Rs. 3,00,000 as compensation. However, while original application was pending, respondent enhanced her claim from Rs. 3,00,000 to Rs. 8,00,000 by her application dated 12.3.1987. That was allowed by the Tribunal and, therefore, the case before the M.A.C.T. proceeded on the footing of the claim of the respondent as Rs. 8,00,000 for compensation.

4. Before the Tribunal the respondent examined herself and three witnesses, out of which two were doctors. The appellant examined the bus conductor. M.A.C.T. partly allowed the claim of the respondent and instead of granting Rs. 8,00,000 as demanded as compensation, Rs. 5,74,800 was awarded as compensation with interest as stated above. The present appeal is against the said award.

5. The appellant has challenged the impugned order on two grounds, firstly, according to them the accident did not arise on account of negligent driving of the driver of BEST bus and alternatively the award is challenged on the ground that compensation awarded to the respondent is very much excessive. It is without any justification and compensation has been awarded repeatedly under the same heading, e.g., For pain and suffering Rs. 50,000 For loss of amenities of life Rs. 50,000 For loss of income from proposed dubbing contract for the film 'Gandhi' Rs. 40,000 For loss of future earnings Rs. 2,00,000 For loss of getting no contribution to magazines and newspapers Rs. 30,000 For loss of future prospects Rs. 1,00,000 For loss of contract of film 'Gandhi' publicity Rs. 1,04,000 Towards medical expenses Rs. 800

6. Counsel for the appellant, therefore, contended that under the loss of income, learned Tribunal has awarded Rs. 40,000, Rs. 2,00,000, Rs. 30,000, Rs. 1,00,000 and Rs. 1,04,000. So out of the claim amount of Rs. 5,74,800, Rs. 4,74,000 have been granted for loss of income or earning, that according to the advocate for the appellant is totally wrong and unjustified and this is enriching the respondent out of the accident. Further according to him there is no evidence at all to support the claim of the respondent on these counts.

7. On the other hand it was the contention of respondent that when accident took place on 17.7.1982 she was a well-known personality in media. She had started profession in television as newsreader. She wrote and spoke commentaries for Door-clarshan. She used to work for Doordarshan, All India Radio as a freelancer. She was getting Rs. 6,000 per month as her income and because of the accident she suffered loss of her income. It was, however, the case of the respondent that the accident resulted in permanent physical disabilities, viz.,

(1) Foggy vision in the left eye.

(2) Drooping of left eyelid.

(3) Permanent sensitive scar on the forehead.

(4) Nerve damage to the facial muscle.

(5) Head injuries resulting in severe headache, loss of concentration and loss of memory.

8. She further stated that accident took place on 17.7.1982. There were 17 stitches over her left eye, from the middle of the eyebrow to the extreme left of the eye. The same were removed before she was discharged on 23.7.1982 from Jaslok Hospital but she was bedridden for three months as healing of the wound on the eye required 6 weeks. In 1980 she was contributing to the magazines Super, Gentlemen, Onlooker, Mid Day, Sunday Observer, Femina, etc. She was granted contract in connection with film 'Gandhi' by letter dated 1.9.1980, Exh. 9. Contract lasted till 1.3.1981. As regards voice working job of English film into Hindi she could not get the contract because of the accident. The meeting was held in May/June 1981. Oral agreement that she will be in-charge of publicity from July-August 1982 till October-November 1983 salary was Rs. 5,000 per week, she could not do that work on account of the accident. She could not attend the Oscar Award function held in April 1983.

9. Respondent, therefore, contended that the M.A.C.T. was fully justified in awarding compensation of Rs. 5,74,800.

10. Therefore, in the aforesaid background two questions arise, viz.,

(1) Whether the driver of the bus was negligent in driving the bus?

(2) Whether the compensation awarded by the Tribunal is justified or in excess?

11. Regarding the accident and proving the negligence of the driver of BEST bus respondent examined herself. She has stated that incident took place between night of 16.7.1982 and 17.7.1982 few minutes after the midnight. They had gone to Raj Bhavan for dropping the niece of Governor and, therefore, they were returning from Raj Bhavan. In the taxi she was accompanied by her son Quaser and Mr. and Mrs. Khare. Mr. Khare was sitting at the left side of the driver in front portion and other three persons were sitting on the rear side. Mrs. Khare was behind the taxi driver. The respondent was by the side of Mrs. Khare and her son was on her lap who was about 3 1/2 years. The taxi was proceeding along the left side of the road. It was being driven in a moderate speed. She saw the light of BEST bus coming from the opposite side and then she does not remember what happened. She became unconscious. This is the version given by respondent about the manner in which the accident took place. Respondent also examined Randhir Khare, AW 5, who was accompanying her in the taxi. He stated that he saw the bus coming from the opposite direction. The bus was being driven recklessly and through the middle of the road. The bus was swerving to left side and right side while coming from the opposite direction in fast speed. Headlights of the bus were fully on. The taxi driver tried to move the taxi further to the left side and at that time the bus collided with the taxi. At that time no space was left on the left side of the taxi and it was head-on collision.

12. As against this the appellant examined the conductor of the bus Ashok Vasant Jaikar, OPW 1. He has stated that the bus was moving in slow speed because the street had an upward slope. The bus was running by the left hand side, then he felt that brakes were applied and he heard the noise of a thud and he found that there was an accident. He has admitted in the cross-examination that it was single decker bus. There were two more bus stops to be covered. He had to issue tickets to the passengers. Admittedly, therefore, he does not know anything. The driver of the bus has not been examined nor any explanation is given in that regard and, therefore, considering the evidence on record that of Mr. Khare and that of the conductor, Tribunal was justified in holding that the accident occurred on account of the negligence of the driver of the BEST. Therefore, first point has to be answered in the affirmative as has been done by the Tribunal.

13. However, second question is about the quantum of compensation to which the respondent is entitled and it was on this point that both the advocates made exhaustive submissions taking me through the entire evidence on record. It is true that once the negligence of BEST is held to have been proved then the liability of the appellant to pay compensation has to be there, the question is of the quantum to be awarded.

14. Respondent contended that she could not get the contract for several films. Her colleagues Shama Habibulla and Suresh Jindal got the contract for those assignments at Rs. 7,000 to Rs. 10,000 per week. If she had not met with the accident, she would have got those contracts at Rs. 5,000 minimum per week as her remuneration. Her loss of 20 weeks on one film in two years in that regard. Then Asian Games were to be held at New Delhi in November 1982. Buta Singh had sent her a message in May-July 1982 for coordinating the television coverage of the Asian Games. In May-June 1982 Harbinder Singh Dhillon actually met her and offered assignment for an overall remuneration of Rs. 10,000 per week along with free accommodation. She could not accept the assignment. Non-aligned Conference was held in 1982-83. The Chogam was held in March 1983. In 1984 Rakesh Sharma, the first Indian Astronaut made his voyage in space. All these events were telecasted. She could have been involved in these projects if she had not met with an accident. If she had continued to be in such assignments, she would have been included in TV team that went with the Prime Minister Rajiv Gandhi to America and other countries and as she could not do that work, Rajeev Malhotra got those assignments. Jagdish Sarin was in the Voice of America in Washington. He approached her with an offer of two years assignment in Washington for 30,000 dollars per year plus other things to be the Indian TV presenter for Voice of America. She was contracted in June 1982; he came to India to meet her in July-August 1982 and came to Delhi. On account of accident, she could not meet him. Further, according to her as a film actress any International Director coming to Mumbai was invited to see their play. One William Greaves the Founder Member and Professor of the Lee Strausbourge Institute where people like Marlon Brando were trained, asked her to apply for scholarship for 1983. She had to apply in September 1982 but because of the accident she could not apply. If she was trained at the institute, she would have got a fantastic remuneration.

15. She was in news reading in Bombay Doordarshan in 1974 and continued to do so right up to the date of the accident. She was the seniormost newsreader and was paid remuneration of Rs. 100 per day. She used to get 7 or 8 appearances in a month. But since her face and voice were affected by the accident, her services could not be utilised by Doordarshan on 14.8.1982 and 15.8.1982.

16. After the accident, she was bedridden for 3 months. Then she was advised not to travel and not to exert herself and take things lightly and that continued till the end of 1984. She was also advised not to read too much during the period and she used to get headache while reading as her eyes were affected. She was advised not to concentrate her vision on films and TV.

17. As an actress she was to wear her makeup while reading news on television but after accident she could not wear the makeup because of scar on her face nor any important role to be done by her.

18. Regarding the loss on account of not getting the contract of publicity with the English film Gandhi, she has stated that her loss has been at the rate of Rs. 5,000 per week from July-August 1982 till November 1983. Loss on account of inability to work at the Bombay Doordarshan from the date of accident to 14/15.8.1982 was Rs. 700 to Rs, 800. Loss with respect to the work regarding Asian Games was Rs. 10,000. Loss in not getting five films was Rs. 5,00,000. Her loss for not contributing the magazine Super was Rs. 500 per month, regarding Gentlemen Rs. 500 per month, loss on Onlooker Rs. 500, loss on Sunday Observer Rs. 500, loss on Mid Day Rs. 1,000 per month. Then the loss for inability to attend 3 to 4 fashion shows was Rs. 10,000 per annum, loss of income of her inability to attend Films Division because of her voice was Rs. 1,500 per month. This was being given by the applicant about her loss on different counts in her examination-in-chief. It will be clear from the aforesaid evidence itself and without going to the cross-examination that most of the heads under which the loss is claimed are imaginary or far-fetched. Admittedly she had no contract with her for the five English films, about which some work was given to Shama Habibulla and Suresh Jindal. As stated above she has claimed Rs. 5,00,000 to be loss of not getting the work in connection with five films. This is totally without any foundation, basis, actual final agreement taking place between herself and the producer or distributor of those five films.

19. While awarding compensation of Rs. 40,000 towards loss of income from the proposed dubbing contract for film Gandhi, Tribunal had in paras 20, 21, 22 and 23 has taken into consideration even the evidence regarding the India's first satellite APPLE launched in 1981, inaugurated by Mrs. Indira Gandhi and the oral statement of the respondent that it was the prestigious assignment and she was told that all VIP assignments would be given to her on TV and radio but because of the accident in July 1982 respondent lost the chance of those assignments even in regard to Asian Games held in November 1982, covering of the NAAM conference held in 1982-83 and Chogam held in March 1983 and voyage in space by the first Indian astronaut Rakesh Sharma in 1984. It was totally wrong on the part of the Tribunal to have considered all those future assignments, for which no appointment letter was given to the respondent nor any writing to include her in any programme was given to her and nor any supporting, corroborating evidence. Further, these were assignments which are ahead in period of time from the date on which the incident took place and there is nothing on record to show that while she was in hospital or was bedridden for 3 months, nobody has contacted her for giving her assignment. There is absolutely no connection between accident and these future programmes nor there is anything to show that the respondent would have been selected amongst all the competitors in that field. Programmes held in November 1982-83 and March 1983 and even regarding voyage in space there is absolutely nothing with the respondent to substantiate her contention. Claims Tribunal has not considered those important aspects or the direct link between the accident and these aforesaid programmes and taken them into consideration.

20. At this juncture it is necessary to consider the impact of the accident on the respondent, the injury suffered by her with reference to the application and the evidence of the doctors examined by her.

21. This accident occurred on 17.7.1982 at 12.10 p.m.; claim application was filed in 1982 itself before the Tribunal. In para 11 of the application filed in the prescribed form, the applicant has stated the following injuries as suffered by her:

(a) Macular oedema

(b) Ecchymosis left eyelid

(c) Jagged contused lacerated would left upper eyelid

(d) Fracture acromion process of right scapula

(e) Cerebral concussion

(f) Post-traumatic syndrome

(g) Forgetfulness, lack of concentration, irritability

(h) Impairment of vision in left eye

(i) Abrasions on forehead and all over the face and other injuries.

While giving the particulars of the accident and the consequences in para (b) applicant has stated that she had incurred expenditure of Rs. 10,000 and she will have to undergo medical treatment in future, will be prevented from attending her work and from enjoying the ordinary amenities of life and she had reasonable expectation of being assigned important work during the IX Asiad at Delhi and the premier, release and dubbing of the film 'Gandhi' and the several other assignments at the national and international level. She has claimed Rs. 3,00,000 with interest without giving any particulars of the heads under which the amount is claimed and even though this claim is enhanced to Rs. 8,00,000 no special particulars appear to have been given in the original application by way of any amendment. Regarding the actual medical expenditure, Tribunal has awarded Rs. 800 only to the respondent as incurred by her. She was discharged within seven days of the accident, i.e., 23.7.1982. There were 17 stitches over her left eye. The stitches were removed in the hospital before she was discharged. Doctors prescribed 2 or 3 ointments for application on the eyelid. She was bedridden for three months. The healing of the eye required six weeks and she admitted that when she was examined in court she had no problem in opening the eyes but she had got severe headache and consequently cannot concentrate upon the work. She examined one Dr. Bhardwaj, Dr. Narendra J. Pandya and third witness as Dr. Turel, Neurosurgeon in support of her contention.

22. Dr. Turel, witness No. 7 of the respondent stated that he has studied the case of the respondent with respect to the injury sustained by her in the accident and her history right from the time of accident. He saw her twice in February 1987 and he has prepared a report about her case with his findings. The report was exhibited as Exh. 19. In cross-examination he has admitted that he has not mentioned in his report, Exh. 19, about seeing respondent twice in the month of February 1987 (there appears to be some mistake in recording the deposition because the accident is of July 1982). He has admitted that the contents of para 1 of his report are based on the narration given by respondent and some documents, viz., the certificate of the doctor. He has admitted in the cross-examination that the contents of paras 1, 2 and 3 are based on the narration of the respondent and his conclusions are based on what respondent told him which he found believable on the basis of kind of injury sustained by her. He admitted that he has prepared his own case file about the respondent but he did not see the original case papers before preparing Exh. 19. It will be clear from this evidence that Exh. 19 is substantially based on the narration of the respondent. Dr. Turel had not stated that he thoroughly checked and examined the respondent and then came to certain conclusions. Doctor also did not know on the date of issuance of certificate certain effects of the accident were noted by him (Sic.). Even regarding loss of memory, doctor has noted that the respondent claimed to have had an excellent memory which was key to her outstanding success as a TV Broadcaster. This certificate is, therefore, of no practical use to the respondent as it is substantially based on the narration made by the respondent.

23. The other doctor examined by the respondent was Dr. Bhardwaj, who was attached to Jaslok Hospital. He was then Opthalmologist. He had examined her with reference to her eyesight. The respondent was complaining of some foggy vision by left eye. He found that the vision of the left eye was less than the vision of the right eye. He proved certificate, Exh. 1, so far as the signature of Dr. Muljiani is concerned, because the certificate was issued by Dr. Muljiani. In his cross-examination he admitted that he did not make any record of the findings and observations about the examination of the respondent and also stated that Dr. Muljiani also did not make any record and whatever he has stated in examination-in-chief was on the basis of his memory. His evidence appears to have been recorded on 12.12.1986, i.e., 4 years and 5 months after the accident. This evidence is not of much use for the respondent to prove her disability because as rightly argued by the advocate for the appellant that difference in both the visions of the right and left eye is a normal thing.

24. Next witness examined by respondent was Dr. Narendra Jeewanlal Pandey. He saw her in the hospital on 17.7.1982. He has stated about the injury suffered because of the accident and has proved the certificate dated 29.8.1985 as Exh. 3. He has stated that there was disparity between the appearance of the two eyes and the two sensory nerves going from the eyebrows to scalp must have been either cut or crushed. He has stated that because of this condition and other injuries respondent was advised not to wear makeup on the injured portion. He has stated that initially the respondent was treated in Jaslok Hospital but subsequently she was treated in his consulting room and the consequences mentioned in the evidence were on the basis of the certificate issued by him on 15.12.1982 and 29.8.1985, Exhs. 13 and 14. He has stated that the stitches were removed on the 5th day in the hospital and the respondent was discharged on 23.7.1982. Wounds were slow in responding to treatment and they showed some improvements but there were some residual problems. Those problems included the movement of the left upper eyelid being restricted. Scar on the left eye still looked jagged. The left upper eyelid could not be opened to the same extent as the right eyelid. There was still considerable numbness at the left forehead and the scalp making it sensitive to touch. The skin on the scar still looked thickened and irregular. He, therefore, advised continuance of the same treatment. He also stated that there was disparity between the appearance of the two eyes and there was still puffiness of the left upper eyelid which gave the appearance of fullness or swelling of the left eye. The scar had become aesthetically improved but not completely acceptable. The skin around the scar was still sensitive and swollen. His evidence was recorded on 12.12.1986.

25. It is on the basis of this evidence that the learned advocate for the appellant contended that the respondent had not suffered any permanent disability nor any serious injury and that she did not require any treatment and lastly according to him even if the injuries as stated above were suffered by the respondent they did not prove that she could not continue the work.

26. I find considerable force in the submissions made by the advocate for the appellant. No doubt the respondent had suffered the aforesaid injuries as a result of the accident and for some time she was required to be hospitalized, thereafter required to take treatment and the scar on the eyelids and disparity in the vision has affected her looks, the constant headaches and numbness at the left forehead and scar has also affected her working capacity or capability and for this she is certainly entitled for compensation. However, the compensation awarded by the Tribunal is not only in excess but there is repetition of heads while awarding grant of compensation.

27. Advocate for the respondent relied upon the judgment of Apex Court reported in Divisional Controller, Kamataka State Road Trans. Corporation v. Mahadeva Shetty . In that case claimant had suffered an accident and serious injuries. He was a mason by profession. He was hospitalized for about seven weeks. There was fracture of T-12 vertebra and consequent damage to the nervous system of the whole body below the hips and the body has been functionless. Limbs have become functionless permanently due to failure of the nervous system due to the accident and he has also lost sexual power. Claims Tribunal awarded compensation of Rs. 2,20,000. The High Court raised this amount to Rs. 6,25,000 and, therefore, appeal was carried to the Supreme Court by the Divisional Controller of K.S.R.T.C. The Apex Court partly allowed the appeal and reduced compensation to Rs. 4,50,000. While awarding compensation Apex Court found that the High Court has granted compensation under following heads:

(a) Pain and suffering.

(b) Mental agony.

(c) Medical expenses.

(d) Transportation.

(e) Loss of marital life.

(f) Loss of future income.

(g) Future expenses.

(h) Interest.

In para 12 of the judgment, the Supreme Court observed as under:

It is true that perfect compensation is hardly possible and money cannot renew a physical frame that has been battered and shattered, as stated by Lord Morris in H. West & Son Ltd. v. Shephard 1958-65 ACJ 504 (HL, England). Justice requires that it should be equal in value, although not alike in kind. Object of providing compensation is to place the claimant, as far as possible, in the same position financially as he was before accident.

Further the Supreme Court has observed:

Compensation awarded should not be inadequate and should neither be unreasonable, excessive nor deficient. There can be no exact uniform rule for measuring value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and the circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded.

If the facts of the aforesaid case are considered, it is clear that the mason in that case had suffered injuries which were extremely serious and grave in nature than compared to the injuries suffered by respondent in the present appeal. The whole body below the hips has become functionless. He has lost his power of sex but even then the compensation of Rs. 6,25,000 granted by the High Court was reduced by the Supreme Court to Rs. 4,50,000.

28. As rightly observed by the Supreme Court, it is difficult to exactly measure the amount of compensation, it should be neither punitive against whom claim is decreed nor it should be a source of profit in accident case. If the injuries suffered by the respondent are taken into consideration the fact that she was discharged within seven days, that she was bedridden for 3 months, adverse effect of the accident upon her career is also considered, even then the compensation awarded by the Tribunal is completely excessive. The Tribunal has awarded compensation under the similar head of loss of income and there does not appear to be any justification for doing the same.

29. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. , the Apex Court has laid down the following guidelines:

Towards personal injury, their medical attendance, loss of earning of profit up to the date of trial and other material loss as the pecuniary damages and non-pecuniary damages include (1) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered; (2) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimants may not be able to walk, run or sit; (3) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (4) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

Out of the four heads for non-pecuniary damages, item No. 3 about normal longevity does not apply in the present case. Therefore, further and most importantly the respondent's income part is concerned, she admitted in her cross-examination that she does not want to rely upon her income returns. The statement of her advocate is recorded during her evidence that the respondent does not propose to lead any evidence regarding her income and the tax paid prior to the date of the accident. It will be, therefore, clear that the respondent did not want to bring anything on record regarding the actual income she was getting on the date of the accident. If this is so then the case of the respondent requires not only scrutiny but adverse inference will have to be drawn against her.

30. In fact, the medical expenditure of Rs. 800 incurred by the respondent even after taking treatment in hospital like Jas-lok Hospital speaks about the seriousness of the injury. Her discharge from hospital within 8 days and bed rest for 3 months also shows the physical capacity of the respondent to earn her livelihood was not that seriously affected except the period of four months in all including her hospitalization and bed rest. Grant of Rs. 30,000 by the Tribunal for loss of getting no contribution to magazines and newspapers is, therefore, not based on any actual aspect and matrix of the case.

31. I have already discussed how the respondent has made far-fetched claims pertaining to the accident having no nexus to the accident or any guaranteed, assured income of the respondent on those counts. She has also admitted that she has no documentary evidence on record to show that she was approached for contract with foreign films, Claims Tribunal has granted Rs. 2,00,000 for loss of future earnings in this regard, that is totally wrong for all these reasons.

32. Further, even if the aforesaid heads under which compensation is awarded as observed by the Supreme Court are taken into consideration and even if the finding of the Tribunal regarding the liability of the respondent to pay compensation has to be upheld, the quantum is required to be reduced. Consequently the respondent has to be awarded the following amount:

  For medical expenses          Rs. 800 
For pain and suffering        Rs. 50,000
For loss of amenities of
life                          Rs. 50,000
Towards loss of income,
from all possible avenues
open to the respondent
like dubbing of the film
Gandhi, loss of getting
any contribution to the
magazines and inability
to do any further work
during the period of the
accident                      Rs. 1,50,000

 

33. As held by the Supreme Court compensation cannot be claimed to enrich a person nor it can be expected to be windfall for the victim. It has to be just in the circumstances and it cannot be a bonanza nor a source of profit but should not be a pittance. Therefore, in the circumstances, in my opinion, the amount of Rs. 2,50,800 will be proper compensation in the circumstances of the case. In the result I pass the following order:

Appeal is partly allowed.

Award of the Claims Tribunal is modified and the compensation is reduced to Rs. 2,50,800 with interest as awarded by the Tribunal. No order as to costs.

Certified copy expedited.