Dnyaneshwar vs Namdeo And Anr.
2006 Latest Caselaw 163 Bom

JUDGMENT

S.B. Deshmukh, J.

1. This appeal impugns the judgment and award passed by the learned District Judge/Ex officio member of Motor Accident Claims Tribunal, Nanded in Motor Accident Claim Petition No. 187 of 1997 dated 18th July, 1998.

2. Background facts of the present case were as follows:

(a)The appellant was the claimant in MACP No. 187 of 1997 filed in the Court of the learned District Judge/Ex-officio member of the Motor Accident Claims Tribunal, Nanded against one Namdeo s/o Gangadhar Phulwalkar and National Insurance Company Ltd., who were the respondents. MACP No. 187 of 1997 was filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act of 1988 for short). The amount of compensation, to the tune of Rs. 4, 66,000, was claimed in Claim Petition No. 187 of 1997, towards compensation.

(b) The applicant petitioner in MACT No. 187 of 1997, alleged that vehicular accident, occurred on 13th November, 1996. The petitioner was in the house of his maternal grand-father on the date of accident i.e. 13th November, 1996. The petitioner was standing on the road near the field of his maternal grand-father. The agricultural land of the maternal grand-father of the petitioner, was abutting to highway. Jeep bearing No. MH-26-C-1398, gave dash to the petitioner. The jeep at the relevant time, was being driven with high speed, negligently and rashly. The petitioner suffered permanent disablement in the accident. This accident occurred in the vicinity of Nipani Savergaon. One Maruti lodged report to the Pethwadaj Police Out Post. The offence was registered against the driver of the jeep. The petitioner was rushed to the Rural Hospital, Mukhed for treatment and after first aid, was shifted to Civil Hospital, Nanded. The petitioner had sustained head injury and was unconscious. Panchanama was prepared by the Police Officer. The petitioner was also referred to Lokmanya Medicare Suryamohan Hospital and C.T. Scan was performed on the medical advice. The petitioner was further shifted to Marathwada Medical and Research Centre, i.e. Kamal Nayan Bajaj Hospital at Aurangabad. The petitioner was in-patient in Kamal Nayan Bajaj Hospital with effect from 14th November, 1996 to 16th December, 1996. The petitioner was required to take long drawn medical treatment. The petitioner was examined by the expert in the medical fields. The petitioner has suffered permanent disablement. The petitioner, due to accident has suffered dumbness. The petitioner could not walk on account of accident. The petitioner became deaf on account of the injuries suffered in the accident.

(c) The petitioner was required to incur the expenses of Rs. 70,000 towards medical treatment. Father of the petitioner, along with the petitioner, was required to stay at Aurangabad, for about 2-3 months and for that, was required to incur expenses of Rs. 35,000 for stay and other sundry expenses.

(d) The petitioner, was 8 years old on the date of the accident. The petitioner is the only son of his parents and was taking education in primary school. The original respondent No. 1 was the owner of the offending vehicle, which is a jeep and the said vehicle was insured with the respondent No. 2 on the relevant date and time.

(e) The petitioner has sustained permanent disablement and as the result of the accident, has also sustained disability. The petitioner is unable to do his mundane routine and is dependent on other family members. The petitioner claimed an amount of Rs. 4,00,000 towards compensation.

(f) The petitioner has claimed following sums towards compensation:

(i) Compensation towards pain, suffering and loss of amenities of life -Rs. 2,00,000

(ii) Compensation for amount already spent towards treatment, transportation charges, hospitalisation, special rent, attendant, care, milk, liquid diet, etc. Rs. 1,00,000

(iii) Compensation on account of future cost of nursing/care of the claimant and for its attendant Rs. 1,00,000

(iv) Compensation on account of loss of future earning Rs. 2,00,000.

(g) The respondent No. 2-Insurance Company Ltd. (hereinafter referred to as the insurer for short), after entering the appearance, filed its written statement at Exhibit 16. The respondent No. 2-insurer denied the case of rash and negligent driving of the driver of the jeep.

According to the respondent No. 2-insurer, the driver of the jeep was driving the jeep in a moderate speed. All of sudden, the petitioner came in front of the road and could not control himself and he skidded and failed on hard and blunt object and sustained grievous injuries, however, driver of the jeep is framed in the case. Respondent No. 2-insurer also denied the injuries and permanent disablement, claimed by the petitioner.

(h) According to the respondent No. 2-insurer, there is a collusion between the petitioner and the respondent No. 1. The limited liability in respect of compensation is pleaded by the respondent No. 2-insurer. This written statement Exhibit 16 came co be filed by the respondent No. 2 on 17th July, 1997.

(i) The learned Trial Court, considered the rival pleadings of the party and framed issues at Exhibit 17. Issue No. 1 is in respect of sustaining injury and permanent disablement on account of rash and negligent driving of vehicle No. MH-26-C-1398, owned by the respondent No. 1 and insured with the respondent No. 2 at the relevant time. Another issue was in respect of the entitlement of the petitioner for compensation.

(j) The Trial Court, after recording the evidence, allowed the application filed by the petitioner partly and awarded an amount of Rs. 2,50,000 towards compensation inclusive of NFL under Section 140 of the Motor Vehicles Act to the petitioner. The respondent Nos. 1 and 2 are further directed to pay the amount of Rs. 2,50,000 as compensation to the claimant together with interest @ 12% p.a. from the date of the order till the realisation. The petitioner is not co-pacetic with this award passed by the Trial Court, hence the present appeal for enhancement in amount of compensation by the petitioner in the High Court.

(k) This appeal was admitted by this Court by order dated 16th May, 2002. The appeal, however was dismissed against the respondent No. 1/owner of the offending vehicle by the order of the Registrar of this Court dated 16th January, 2003.

3. Having heard the learned Counsel for the parties, following are the points arising for my determination with the finding thereon:

Points for Determination-

(i) Whether the petitioner is entitled to seek enhancement in the amount of compensation? Yes

(ii) What order- As per Final Order

Reasons for Point Nos. 1 and 2:

4. There is no dispute that the petitioner was 8 years old on the date of the accident. The respondent-insurer is also not disputing the rash and negligent driving of the driver of the jeep No. MH-26-C-1398, owned by the original respondent No. 1. There is no appeal filed on behalf of the original respondent No. 1 or 2, challenging the judgment and order passed by the learned Tribunal in MACP No. 187 of 1997. In this appeal also, no cross-objection is filed on behalf of the respondents, challenging the finding, recorded by the Trial Court on Issue No. 1 regarding rash and negligent driving of the driver of the jeep MH-26-C-1398 and claim of the petitioner to have suffered permanent disablement on account of said accident. The fact of the insurance of the vehicle by the respondent No. 2 at the relevant date and time is also not disputed. The Trial Court has awarded an amount of Rs. 2,90,000 towards compensation. Out of this Rs. 2,50,000, the learned Tribunal has awarded Rs. 1,00,000 towards expenses required for medical treatment and other incidental expenses incurred by the petitioner. The learned Tribunal has awarded an amount of Rs. 1,50,000 towards loss of enjoyment of life and inconvenience and hardship suffered by the petitioner. The learned Tribunal has denied the claim of Rs. 1,50,000 out of the total claim of Rs. 4,00,000.

5. It is a case of personal injury suffered by the petitioner. It is on record that the petitioner initially was rushed to the Civil Hospital at Nanded and, thereafter shifted to Kamal Nayan Bajaj Hospital at Aurangabad. The petitioner, undisputedly, was required to undergo various tests and operation. The petitioner had sustained head injury and has suffered disability in this vehicular accident. The medical certificate is on record at Exhibit 30.

On behalf of the petitioner, evidence of his father i.e. P.W. 1 Shankar Ganpatrao Yedge is adduced. Father of the petitioner has accounted for the expenses of Rs. 1,00,000 towards medical treatment and other expenses incurred by him. Medical bills are placed on record at Exhibit 25(M). Father of the petitioner has deposed that treatment to the petitioner is still being continued. He has also deposed that an amount of Rs. 1,500 per month, is required for medical treatment and he could not find any change or improvement in the condition of his son. Before the accident, the petitioner was taking education in 1st standard in primary school. After the accident, he could not attend the school. After the accident, the petitioner is not in a position to look after himself. The petitioner is the only son of P.W. 1 Shankar. He has performed vesectomy, after the birth of the petitioner. He was required to borrow money for expenditure of medical treatment of his son. He has placed on record certified copy of the First Information Report Exhibit 26. Certified copy of the spot panchnama Exhibit 27 and medical certificate Exhibit 28, discharge card/certificate Exhibit 29 and disablement certificate Exhibit 30. He has also filed on record X-ray report Exhibit 33. From the certificate Exhibit 30, it is explicit that the petitioner entered vehicular accident on 13th November, 1996 and was admitted to the hospital on 14th November, 1996 as indoor patient and discharged on 16th December, 1996. The petitioner was thereafter treated as outdoor patient from 17th December, 1996 till the date of issuance of the certificate Exhibit 30. The certificate Exhibit 30, states that the petitioner has sustained disability in the form of weakness of left sided limb, which may or may not improve. According to the medical officer, petitioner is not able to walk due to injuries. The injuries of the petitioner needed operation, due to which he has permanent disfigurement of head. Along with these certificates, I have perused the observation of the Trial Court, who had an opportunity to see the petitioner-injured boy. The Trial Court has observed in it a judgment paragraph 12 that:

I had occasion to see the petitioner. He could not walk. He could not understand. He was medically as well as physically disabled.

From the evidence on record, it appears that the petitioner has sustained multiple fractures/injuries. The petitioner has sustained physical and mental disability. This position is also not seriously disputed by the respondent No. 2.

6. The learned Counsel for the appellant, refers to the judgment of the Apex Court, in the matter of R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and Ors., . The Apex Court, in the matter of R.D. Hattangadi (supra), held as under:

9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damates are those which are incapable of being assessed by arithmetical calculations. In order to appreciate the concepts pecuniary damages may include expenses incurred by the claimants (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss, so far as non-pecuniary damages are concerned, they may includes (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damage to compensate for the loss of amenities of life which may include a variety of matters, i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

Applying the test, in the present case, the petitioner is entitled to seek pecuniary damages as well as non-pecuniary damages. The pecuniary damages, may include the amount of Rs. 65,000, towards medical bills/medical attendance and Rs. 35,000 towards other material loss, i.e. the expenses incurred by the parents of the petitioner, to stay along with the petitioner at Nanded and Aurangabad. Thus an amount of Rs. 1,00,000, is justifiably awarded by the Trial Court under the head of pecuniary damages.

7. The learned Tribunal has awarded the damages to the tune of Rs. 1,50,000, under the head namely compensation towards pain, suffering and loss of amenities in life (non-pecuniary damages) though, it was claimed to the tune of Rs. 2,00,000. The learned Tribunal has also not awarded any compensation on account of loss of future pains. Petitioner has sustained mental as well as physical disability and that the petitioner is not even in a position to walk without the help of any other person, and/or is unable to perform mundane personal activities. In my views, the claim of the petitioner, on account of compensation towards pain, suffering, loss of amenities of life to the tune of Rs. 2,00,000/- was justifiable. I cannot forget that the petitioner was 8 years old on the date of the accident and in normal circumstances, longevity can be considered to be 65 years of age. The petitioner has to pull on his life with this pain and sufferings. Therefore, the reduction of compensation to the tune of Rs. 50,000 made by the Trial Court, in my view, is not proper and justifiable.

8. Though, the petitioner has claimed compensation on account of future cost of nursing/care, according to the learned Counsel for the respondent No. 2-insurer, no evidence is adduced on behalf of the petitioner. I find from the evidence of the father of the petitioner that on the date of recording of evidence, he has claimed that the petitioner was being treated and further requires medical treatment. During the pendency of this appeal, along with civil application, some medical bills have been placed on record for Rs. 33,000. The fact of filing of this civil application, showing that the petitioner was being treated during the pendency of this appeal, is sufficient to show that the petitioner, even after disposal of his claim petition by the Trial Court, was in need of the medical treatment. It is true that no evidence is adduced on behalf of the petitioner, showing that future cost of the nursing or medical treatment, would be Rs. 1,00,000, however, father of the petitioner has made a statement that the petitioner requires medical expenses to the tune of Rs. 1,500 per month. From the material on record, in my view, the need of continuous medical treatment to the petitioner stands established. Therefore, having regard to this fact, the claim of the petitioner for compensation on account of future nursing to the tune of Rs. 30,000 could have been considered by the Trial Court.

9. The petitioner, has also claimed compensation on account of loss of future earnings. It is assessed at Rs. 2,00,000.

Undisputedly, the petitioner, was not in gainful employment, on the date of the accident, since he was 8 years old. However, with the help of little guesswork, loss in future earnings can be worked out. Even if it is considered that the petitioner after attaining the majority, would have worked as unskilled labourer, his earnings would not have been less than Rs. 50 per day. This gives as a figure of Rs. 1,500, towards monthly hypothetical income of the petitioner. It can be considered that 1/3rd amount, would have been spent by the petitioner for his personal expenses, which gives us a figure of Rs. 1,500 per month and Rs. 1,000 towards annual income of the petitioner. Having regard to the schedule under Section 163 A of the Motor Vehicles Act, the proper multiplier, as a guideline can be considered to be 15 reference to the petitioner's age, the annual income of the petitioner to the tune of Rs. 12,000 can be multiplied with the multiplier of 15, which comes to Rs. 1,80,000. In my view, an amount of Rs. 1,80,000, could have been awarded by the Trial Court, in relation to the future loss in earning of the petitioner.

10. The petitioner has claimed an amount of Rs. 1,00,000 towards future cost of nursing/care of claimant and for assistant. As noted above, the claimant has filed civil application, alleging that an amount of Rs. 32,661 has been spent during the pendency of this appeal. In this view of the matter, it appears that the petitioner/appellant is still under treatment and medical expenses are required to be put in by the petitioner. Future cost of nursing, in my view, an amount of Rs. 50,000 can be awarded to the petitioner. Thus, the petitioner is entitled to seek enhancement in the amount of compensation as detailed hereinbelow:

-------------------------------------------------------------------------------------

Amount(Rs.)

-------------------------------------------------------------------------------------

(i) Compensation towards pain and suffering and loss of amenity of life (The learned Tribunal has awarded Rs. 1,50,000). Additionally. 50,000

(ii) Compensation on account of future cost of nursing/care of claimant and for his assistant (The Trial Court has not awarded any compensation for this head). 50,000

(iii) Compensation on account of loss of future earning (The Trial Court has not awarded any compensation specifically under this head). 1,80,000

----------------

      Total:                                                           Rs. 2,80,000
  --------------------------------------------------------------------------------------

 

11. I have noticed from the judgment of the Tribunal that compensation was awarded along with interest @ 12% p.a. However, looking to the present global trend of plunge in the interest, I am inclined to award interest @ 7.5% p.a., on the enhanced amount of compensation to the tune of Rs. 2,80,000. In the circumstances of the present case, I am also inclined to award an amount of Rs. 5,000 to the appellant/petitioner by way of costs from the respondent.

12. Initial claim of the appellant/petitioner was for Rs. 6,00,000, however the petitioner has restrained his claim to the tune of Rs. 4,00,000, accordingly paid the appropriate Court-fee stamp. I have held that the claimant/petitioner is entitled for enhancement of the compensation to the tune of Rs. 2,80,000. In other words, the claimant/petitioner is now getting total amount of compensation to the tune of Rs. 5,30,000. The petitioner has initially paid the Court-fee stamp, for the claim of Rs. 4,00,000 in the Tribunal. In this appeal, the appellant/petitioner has paid Court-fee stamp for enhanced claim i.e. to the tune of Rs. 1,60,000. This Court, has awarded an amount of Rs. 2,80,000, i.e. Rs. 1,30,000 more than the claim made in this Appeal. Thus, appellant has not affixed Court-fee stamp for Rs. 1,30,000, claim which is enhanced by this Court, appellant is under an obligation to pay appropriate Court-fee stamp for enhancement in claim of Rs. 1,30,000.

13. In this view of the matter appeal is allowed. Respondent is directed to make the payment of amount of Rs. 2,80,000 along with interest @ 7.5% from the date of filing of this appeal till the deposit of the amount in this Court. The respondent is directed to deposit amount of compensation in this Court, within a period of 8 weeks from today. Respondent is also directed to deposit an amount of Rs. 5,000, towards costs of this appeal, payable to the appellant.

(a) I am also inclined to pass an order in respect of investing part of the amount or the compensation in the bank. The learned Advocate for the appellant has pointed out that the appellant was 8 years old on the date of the accident and as of today, is 18 years old. The Advocate for the appellant has also admitted that amount of compensation awarded by the Trial Court, is received by the parents of the appellant. Though, the appellant, by this time, has attained majority, in my view, to protect the interest of the appellant, it is necessary to put some part of the amount of compensation in the bank for a period of 7 years from today. Payment of interest, can be directed to be withdrawn by the father of the appellant, who is shown as guardian of the appellant in the Trial Court, as well as in this Court.

(b) The Registry, therefore, is directed to transmit the entire amount of compensation to the Court of the learned ex officio member of the Motor Accident Claims Tribunal, Nanded.

(c) The learned Member of the Motor Accident Claims Tribunal, Nanded is further directed, on receipt of the amount of compensation, from this High Court to invest the amount of Rs. 2,00,000 with Nationalised Bank, initially for a period of 6 years and permit the petitioner, through his father Shankarrao Banpatrao Yedge, to withdraw the amount of Rs. 80,000 plus amount of interest. The learned Tribunal shall permit the applicant/petitioner to withdraw the interest or FDR of Rs. 2,00,000 every after 3 months. After the period of 7 years of FDR of Rs. 2,00,000, the applicant/ petitioner is entitled to seek withdrawal of said amount of Rs. 2,00,000 by making proper application to the learned Tribunal. It is made clear that the petitioner is also entitled to withdraw amount of interest calculated @ 7.5% from the date of filing of this appeal till the deposit of the money in this High Court, from the Tribunal. An amount of Rs. 2,00,000 shall remain invested with the Nationalised Bank for the period of seven years.

14. The appellant/petitioner is directed to deposit appropriate Court-fee stamp for enhanced claim of Rs. 1,30,000 within a period of 4 weeks from today in this High Court.