Dnyaneshwar vs Namdeo And Anr.
2006 Latest Caselaw 165 Bom

JUDGMENT

S.B. Deshmukh, J.

1. This appeal impugns the judgment and award passed by learned District Judge/Ex-Officio Member of the Motor Accidents Claims Tribunal, Nanded in M.A.C.P. No. 187 of 1997 dated 18.7.1999.

2. The background facts of the present case were as follows:

(a) The appellant was the claimant in M.A.C.P. No. 187 of 1997 filed in the court of learned District Judge/Ex-Officio Member of the Motor Accidents Claims Tribunal, Nanded against one Namdeo s/o Gangadhar Phulwalkar and National Insurance Co. Ltd., who were the respondents. M.A.C.P. No. 187 of 1997 was filed under Section 166 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act of 1988' for short). The amount of compensation, to the tune of Rs. 4,00,000, was claimed in Claim Petition No. 187 of 1997, towards compensation.

(b) Applicant-petitioner in M.A.C.P. No. 187 of 1997 alleged that vehicular accident occurred on 13.11.1996. The petitioner was in the house of his maternal grandfather on the date of accident, i.e., 13.11.1996. The petitioner was standing on the road near the field of his maternal grandfather. The agricultural land of the maternal grandfather 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 Outpost. The offence was registered against the driver of the jeep. 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. Panchnama 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 Center, i.e., Kamal Nayan Bajaj Hospital at Aurangabad. Petitioner was inpatient in Kamal Nayan Bajaj Hospital with effect from 14.11.1996 to 16.12.1996. The petitioner was required to take long-drawn medical treatment. The petitioner was examined by the experts in the medical field. Petitioner has suffered permanent disablement. Petitioner due to accident has suffered dumbness. The petitioner could not walk on account of the 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 for medical treatment. Father of the petitioner, along with the petitioner, was required to stay at Aurangabad, for about 2 to 3 months and for that, was required to incur expenses of Rs. 35,000 for the 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 a result of the accident, has also sustained disability. The petitioner, is unable to do his mundane routine and is dependent on other family members. 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 his attendant-Rs. 1,00,000.

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

(g) National Insurance Co. Ltd., respondent No. 2 (hereinafter referred to as 'the insurer' for short), after entering the appearance, filed its written statement at Exh. 16. The insurer, respondent No. 2, denied the case of rash and negligent driving of the driver of the jeep. According to the insurer, respondent No. 2, the driver of the jeep was driving the jeep at a moderate speed. All of a sudden, the petitioner came in front on the road and could not control himself and he skidded and fell on hard and blunt object and sustained grievous injuries, however, the driver of the jeep is framed in the case. Insurer, respondent No. 2, also denied the injuries and permanent disablement, claimed by the petitioner.

(h) According to the insurer, respondent No. 2, there is a collusion between the petitioner and the respondent No. 1. The limited liability in respect of compensation is pleaded by the insurer, respondent No. 2. This written statement, Exh. 16, came to be filed by the respondent No. 2 on 17.7.1997.

(i) Learned trial court, considered the rival pleadings of the parties and framed issues at Exh. 17. Issue No. 1 is in respect of sustaining injury and permanent disablement on account of rash and negligent driving of the vehicle No. MH 26-C 1398, owned by the respondent No. 1 and insured with 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 petitioner partly and awarded an amount of Rs. 2,50,000 towards compensation, inclusive of no fault liability under Section 140 of 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 at the rate of 12 per cent per annum from the date of the order till realisation. The petitioner is not copacetic (sic) with this award passed by the trial court, hence the present appeal for enhancement in the amount of compensation by the petitioner in the High Court.

(k) This appeal was admitted by this Court by order dated 16.5.2002. The appeal, however, was dismissed against the owner of the offending vehicle, respondent No. 1, by the order of the Registrar of this Court dated 16.1.2003.

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

Points for determination:

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

(2) 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. Respondent-insurer is also not disputing 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 original respondent No. 1 or 2, challenging the judgment and order passed by the learned Tribunal in M.A.C.P. 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 No. 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. 2,50,000 towards compensation. Out of this Rs. 2,50,000, the learned Tribunal has awarded Rs. 1,00,000 towards expenses required for the medical treatment and other incidental expenses incurred by the petitioner. 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. But 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. Petitioner had sustained head injury and has suffered disability in this vehicular accident. The medical certificate is on record at Exh. 30.

On behalf of the petitioner, evidence of his father, i.e., Shankar Ganpatrao Yedge, PW 1, is adduced. Father of petitioner has accounted for the expenses of Rs. 1,00,000 for medical treatment and other expenses incurred by him. Medical bills are placed on record at Exh. 25(M). Father of the petitioner has deposed that treatment of 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 Shankar, PW 1. He has performed vasectomy, after the birth of the petitioner. He was required to borrow money for the expenditure of medical treatment of his son. He has placed on record a certified copy of the first information report, Exh. A26; certified copy of the spot panchnama, Exh. 27; medical certificate, Exh. 28; discharge card/certificate, Exh. 29 and disablement certificate, Exh. 30. He has also filed on record X-ray report, Exh. 33. From the certificate, Exh. 30, it is explicit that the petitioner suffered vehicular accident on 13.11.1996 and was admitted to the hospital on 14.11.1996, as indoor patient and discharged on 16.12.1996. The petitioner was thereafter treated as outdoor patient from 17.12.1996 till the date of issuance of the certificate, Exh. 30. The certificate, Exh. 30, states that the petitioner has sustained disability in the form of weakness of left side 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 its judgment para 12 that:

I had occasion to see the petitioner. He could not walk. He could not understand. He was mentally 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 respondent No. 2.

6. 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. . 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 are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; and (iii) other material loss. So far as non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in the future; (ii) damages 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; and (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 pain. 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 view, the claim of the petitioner, on account of compensation for 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 suffering. 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 learned Counsel for insurer, respondent No. 2, 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 medical treatment. It is true that no evidence is adduced on behalf of the petitioner, showing that the future cost of nursing or medical treatment, would be Rs. 1,00,000, however, father of the petitioner has made a statement that 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. 50,000 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 majority, would have worked as unskilled labourer, his earnings would not have been less than Rs. 50 per day. This gives us a figure of Rs. 1,500, as 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. 1,000 per month and Rs. 12,000 for annual income of the petitioner. Having regard to Schedule under Section 163-A of Motor Vehicles Act, the proper multiplier, as a guideline can be considered to be 15 with 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. 1,50,000. 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 earnings of the petitioner.

10. Petitioner has claimed an amount of Rs. 1,00,000 for future cost of nursing care of the 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 petitioner. Future cost of nursing, in my view, an amount of Rs. 50,000 can be awarded to petitioner. Thus, the petitioner is entitled to seek enhancement in the amount of compensation as detailed hereinbelow:

(i) Compensation towards pain and suffering and loss of amenity of life.

      (The learned Tribunal 
      has awarded Rs. 1,50,000) 
      Additionally.                     Rs. 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).                       Rs. 50,000
(iii) Compensation on 
      account of loss of 
      future earnings. (The 
      trial court has not 
      awarded any compensation 
      specifically 
      under this head).                 Rs. 1,80,000
                                      ---------------
                    Total               Rs. 2,80,000
                                      ---------------

 

11. I have noticed from the judgment of Claims Tribunal that compensation was awarded along with interest at the rate of 12 per cent per annum. However, looking to the present global trend of plunge in the interest, I am inclined to award interest at the rate of 7.5 per cent per annum, 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 a sum of Rs. 5,000 to the appellant-petitioner by way of costs from the respondents.

12. Initial claim of 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 the enhancement of the compensation to the tune of Rs. 2,80,000. In other words, the claimant-petitioner is now getting a 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. 1,50,000. 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, the 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 the appropriate court-lee stamp for the 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 at the rate of 7.5 per cent from the date of filing of this appeal till the deposit of the amount in this Court. 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 the 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 of compensation in the bank. The learned advocate for the appellant has pointed out that 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 the amount of compensation awarded by the trial court was 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 Accidents Claims Tribunal, Nanded.

C. The learned Member of the Motor Accidents Claims Tribunal, Nanded is further directed that 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 2 years and permit the petitioner, through his father Shankarrao Ganpatrao Yedge, to withdraw the amount of Rs. 80,000 plus amount of interest. Learned Tribunal shall permit the applicant-petitioner to withdraw the interest on FDR of Rs. 2,00,000 after every 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 at the rate of 7.5 per cent from the date of filing of this appeal till the deposit of 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 7 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.