The New India Assurance Company ... vs Pramod S/O Shankarrao Bhonde And ...
2015 Latest Caselaw 37 Bom

                                       1



                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                          
                     NAGPUR BENCH : NAGPUR




                                                  
    First Appeal No. 1136 of 2011




                                                 
    Appellant        :     The New India Assurance Company Limited,

                           through its Divisional Manager, Walcut




                                      
                           Compound, Amravati,  presently through 
                         
                           its Chief Regional Manager, 4th Floor, Dr

                           Ambedkar Bhawan, MECL Premises, Seminary
                        
                           Hills, Nagpur

                           versus
      


    Respondents      :     1)  Pramod son of Shankarrao Bhonde, aged 

about 20 years, Occ: Student, through his

next friend-father, Shankarrao Rajaramji

Bhonde, resident of Guljaripura, Near Ved

Mangal Karlaya, Anjangaon Surji, District

Amravati (original claimant)

2) Asim Khan Akbar Khan, aged adult, Owner

of TATA Truck, resident of 620, Mahendra

Nagar, Nagpur

Mr Gautam Chatterjee, Advocate for appellant

Mr P. R. Agrawal, Advocate for respondent no.1/org. Claimant

Coram : A. P. Bhangale, J

Dated : 11th August 2015

Judgment

1.

This appeal is preferred against judgment and Award dated

19th April 2011 passed by the Member, Motor Accident Claims Tribunal,

Amravati in Claim Petition No. 25 of 2005 whereby the learned Member

of the Tribunal awarded a sum of Rs. 19,20,000/- payable to the claimant

as compensation inclusive no-fault liability amount awarded under

Section 140 of the Motor Vehicles Act together with interest @ 8% per

annum from the date of claim petition till realization.

2. Brief facts are that, claimant - an engineering student while

sitting pillion on the motor-cycle (bearing registration number MH-31-AZ-

5939) driven by one Prajwal More was dashed by a truck bearing

registration number MH-31/AP-6855 coming from opposite direction. Due

to the impact, petitioner and his friend were thrown away on the road.

Claimant Pramod received grievous injuries on vital parts of his body and

was rendered disable for almost hundred percent for pursing his

education as engineering student in B. E. Part-II. As a result of accident,

the claimant had to undergo medical treatment for various grievous

injuries to his body. These injuries were described as under :-

"I (i) depressed fracture of anterior wall of right masillary sinus with

fracture of nasal arches on both sides.

(ii) Fluid collection in bilateral maxillary sinus.

(iii) Intra-cerebral haematoma measuring 1.5 cm x 1.1 cm size inleft

gangliocaspsolar region s/o shearing injury.

(iv) Subarchnoid haemorrhagesin right Sylvain tissues.

(v) Multiple haemorrhagic cortical contusion in bilateral basifrontal

region.

(vi) Soft tissue swelling in the region of right maxilla and right parietal

region.

II. Compound fracture to the right leg. The rod is fixed from hip joint

to knee i.e. femur by making surgery.

III. Grievous injuries and multiple fractures to the frontal side, face,

nose, tooth, mandible region, throat and tongue.

IV. The petitioner sustained grievous injuries due to which he is unable

to eat or drink, a tube is fixed for providing juice to the petitioner since

the date of accident.

V. The fluid (water) is collected in the brain of the petitioner, it is

removed two times and at last a tube is fixed by making a drain in the

body from brain to lower lumber region for purposes of water collected in

brain fluid removed from tube.

VI. Two teeth of the petitioner are broken out of which one is entered

into lungs of the petitioner. The petitioner has sustained grievous injuries

to his chest, due to which his heart is disturbed and not functioning as

prior to the accident and thereby the petitioner caused 30% permanent

disability in the heart.

VII.

The petitioner sustained fracture to the base of C-2 body with

fracture fragment displaced ante body. The fracture line extends into

right pedicle C3 and backwards involving post surface of G3 body with

mild C2-C3 subsuxation. The uper vertebra of the vertebra column is

fractured, due to which the movements of the neck and back of the

petitioner are restricted and unable to move the neck and back, eat and

drink and thereby caused permanent disability in the neck to the extent of

30%.

VIII. In CT Scan of brain of the applicant biofrontal temporal significant

effusion seen. Right basifrontal lobe small low attenuated area suggest

minimal non-haemorrhagic contusion.

IX. On 20.9.2004 operation performed - left fronto parietal peritoneal

shunt by surgeon Dr L. Singh."

3. The claimant was initially admitted in General Hospital,

Amravati and then he was shifted to Yadgire Superspeciality Hospital,

Amravati and underwent treatment till 31.8.2004. He was then shifted

to CIMS Hospital, Nagpur and there he underwent treatment till

18.10.2004. It was the case of appellant before the Tribunal that for

medical treatment, his family had to spend Rs. 6,00,000/-. During

treatment amount of Rs. 1,00,000/- was spent over special diet; Rs.

30,000/- towards travelling, lodging, boarding and auto-rickshaw

charges. He claimed Rs. 2,00,000/- on account of loss of amenities,

mental and physical shock, pain and sufferings etc.; Rs. 1,00,000/-

towards loss of education; Rs. 1,00,000/- towards sport activities and Rs.

45,00,000/- towards future loss of earning. He claimed total

compensation of Rs. 56,30,000/-, but it was restricted to Rs. 15,00,000/-

with interest @ 10% per anum from the date of claim petition till

realization of claim.

4. It was the claim of claimant that he used to study in

electronic faculty in the College of Engineering at Badnera. He had bright

future, but due to the motor vehicle accident, he became totally bed-

ridden and all of his dreams were shattered as a result of multiple injuries

and fractures sustained by him. Claimant lost his physical capacity to

such an extent that he was unable to do any work without the aid or

assistance of another person. Thus, a dynamic and intelligent boy having

aspiration to become engineer upon whom his parents were also

dependent for their support during old age, but due to motor vehicle

accident, the claimant Pramod became so bed-ridden that his parents lost

their support of old age and on the contrary were made to look after bed-

ridden child which was very painful to them.

5. Driver as well as owner of the offending motor vehicle

(truck) remained absent while on behalf of the appellant Insurance

Company, Written Statement (exhibit 23) was filed. The Insurance

Company denied the contentions made as above including even age,

qualification and income of the claimant and the nature of injuries and

extent of permanent disability were all denied. The claim for

compensation was denied. According to Insurance Company, the driver

concerned was not holding effective driving licence as on the date and

time of the accident and due to negligence of the driver of the motor-cycle

the accident had occurred. According to the Insurance Company, the

claimant ought to have joined insurer of the motor-cycle and driver

Prajwal More as party to the claim petition.

6. Learned Tribunal recorded finding that due to rash and

negligent driving of the offending Truck, accident occurred on 23.7.2004

in which claimant Pramod suffered injuries resulting into his permanent

disability. The Tribunal also held against the Insurance Company that

there was breach of policy condition. According to the Tribunal, owner

and Insurance Company of motor-cycle were not necessary party driven

by Prajwal More. Considering the evidence on record, the Tribunal

awarded compensation of Rs. 19,20,000/- to the claimant, as aforesaid.

Hence, this appeal.

7.

On behalf of the appellant Insurance Company, the impugned

judgment and Award is criticized as illegal and highly inflated on the

ground that claimant Pramod was non-earning person, a student and

should have been reasonable award according to law.

8. Mr Chatterjee appearing on behalf of the appellant submitted

that there were three permanent disability certificates on record which

mentioned varying percentage of disability and the Tribunal ought to have

carefully and judiciously struck a balance to arrive at exact percentage of

disability from the three disability certificates varying in percentage of

disability. At the most, the Tribunal ought could have accepted disability

certificate which mentioned 52% as permanent disability incurred, but

wrongly adopted permanent disability of claimant as engineering student

as hundred percent which was not proved by doctor or surgeon. The

permanent disability certificate dated 3rd December 2007 also revealed

that claimant's condition will improve with passage of time and the

doctor had recommended fresh assessment of disability after five years.

Thus, there were prospects to reduce disability from 52% mentioned in it.

However, the Tribunal awarded compensation on the basis of pecuniary as

well as non-pecuniary damages without applying its mind to the evidence

on record. Mr Chatterjee submitted that the three disability certificates on

record were not duly proved by evidence of expert or doctor and no

opportunity was extended to the Insurance Company to cross-examine

doctors and experts. Thus, according to him, the Tribunal committed

error to take into account various amounts claimed towards medical

expenses and medicinal bills without being duly proved in accordance

with law. Thus, he prayed that impugned judgment and award be set

aside as legally unsustainable. Mr Chatterjee relied on the judgment of

the Supreme Court in Raj Kumar v. Ajay Kumar and anr reported in

2011 ACJ 1.

9. In the ruling of Raj Kumar v. Ajay Kumar & anr (supra), the

Apex Court observed in paragraph 12 that the Tribunal should act with

caution, if it proposed to accept the expert evidence of doctors who did

not treat the injured but who give 'ready to use' disability certificates,

without proper medical assessment. The Apex Court expressed that there

are several instances of unscrupulous doctors who without treating the

injured, readily give liberal disability certificates to help the claimants.

However, at the same time, giving the aforesaid caution, the Honourable

Supreme Court stated thus :-

"But where the disability certificates are given by duly

constituted Medical Boards, they may be accepted subject to evidence regarding the genuiness of such certificates. The Tribunal may invariably make it a point to require the

evidence of the doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or discharge certificate will not be proof

of the extent of disability stated therein unless the doctor who

treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for cross-

examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel

maintained by it in consultation with reputed local hospitals/medical colleges) and refer the claimant to such

Medical Board for assessment of the disability."

10. According to Mr Chatterjee, the caution as well as the

procedure mentioned in paragraph 12 ought to have been followed by

learned Member of the Tribunal before arriving at just and proper amount

of compensation. Mr Chatterjee also has grievance that in the impugned

order, learned Member of the Tribunal gave perverse finding without

applying its mind to the facts and circumstances of the case. According to

learned Tribunal, injured Pramod was on artificial feeding and supportive

system. To grant compensation for this treatment and feeding, the

Tribunal gave finding thus :

"For such treatment, feeding and after discharge also in order to get recovery fast, the petitioner's family might have taken care to give him special diet and they might have spent

about Rs. 75,000/-."

This finding is based upon conjunctures merely on the basis of evidence

that for initial period, Pramod was on artificial feeding and supportive

system. Learned Member of the Tribunal continued to observe thus :

"If the nature of the injuries sustained by the petitioner is

considered and the fact that he is still bed ridden his pain and suffering is beyond imagination. Though it cannot be

compensated in terms of money token amount of Rs. 1,00,000/- is just and proper. It has come on record that even

after period of five years re-assessment of his physical condition is necessary and it might be improved. It means in future also medical treatment is necessary for petitioner. For this, amount of Rs. 50,000/- is just and proper. Since Pramod

has sustained total disability he has lost his marriage prospects. On that count he is entitled to get compensation to the tune of Rs. 1,00,000/-. For the lost of expectation of life considering the longevity he would have lived healthy life if hewould not have met with the accident. He is entitled to get Rs. 50,000/- for loss of expectation of life. Thus, the

petitioner is entitled to total compensation of Rs. 19,20,000/-

from the respondents 1 to 3 with interest at the rate of 8% P.A. from the date of application till realization...."

11. These observations made by the learned Member of the

Tribunal are vehemently criticized by learned counsel on the ground that

in such case when it was alleged that injured had received medical

treatment for his permanent disability which was assessed in respect of

various injuries received by the claimant, then various percentages were

given by doctor attending the patient at different stages of his treatment.

One of the certificates mentioning permanent disability to the extent of

52% also indicated chances of improvement in respect of the claimant.

Mr Chatterjee contended that all these relevant facts which could be

deposed by competent doctor ought to have been insisted upon by

learned Member of the Tribunal instead of giving baseless finding for

granting pecuniary as well as non-pecuniary damages on account of

compensation payable to the claimant by or on behalf of the insurer,

owner or driver of the offending motor vehicle. Mr Chatterjee, therefore,

in the light of ruling in Raj Kumar v. Ajay Kumar & anr (supra)

submitted that the proceedings in this case ought to be remanded back to

the Tribunal in order to comply with the general principles of law in

relation to grant of compensation in injury claim cases. Learned counsel

Mr Chatterjee made reference to observations of the Apex Court in Raj

Kumar 's case (supra) and summary of those general principle

mentioned in paragraph 19 of the ruling to argue that learned Member of

the Tribunal ought to have guided itself by the stated principles in order

to assess just and proper compensation payable to the claimant in the

present case. According to learned counsel, if doctor who attended the

injured-claimant is required to depose before the Tribunal, appellant who

may be liable to pay compensation which may be awarded in such case,

must get reasonable and proper opportunity to cross-examine the doctor

concerned who gives opinion having bearing upon permanent disability.

According to learned counsel, as suggested by the Apex Court, learned

Tribunal may assess and ascertain percentage of permanent disability

suffered by the claimant, if necessary, by constituting a Medical Board of

doctors from the panel maintained by the Tribunal in consultation with

reputed local hospitals or medical colleges so that claimant can be

referred to Medical Board for assessment of percentage of permanent

disability of the injured claimant in order to grant just, fair and

reasonable compensation with reference to the percentage of disability

suffered permanently by him and on account of other pecuniary and non-

pecuniary grounds stated in the claim application.

12. On the other hand, learned counsel for respondent/claimant

submitted that various percentages of permanent disability as evident

from exhibits 52, 54 and 67 ought to be read together to ascertain exact

percentage and on that basis, compensation must be granted. Learned

counsel for the claimant submitted that in such motor-vehicle accident

cases which are to be heard by following summary procedure and

disposed of expeditiously, the evidence as in the case of a criminal trial is

not required, but learned tribunal having considered functional physical

disability of the claimant, various medical documents and bills on record,

rightly considered that claimant suffered permanent total disability and it

is submitted that claimant who was an engineering student of electronic

faculty with bright future prospects, ought to get fair and just

compensation with reference to his prospective losses in future apart from

reimbursement of actual expenses incurred by his parents for his medical

treatment, medicine and on account of heads of non-pecuniary damages

such as loss of marriage prospects, loss of pleasure and enjoyment in

future life, future medical treatment required so as to restore him as far as

possible back to the position in which he was, just prior to the incident of

motor-vehicle accident. Learned counsel for claimant made reference to

the following rulings :-

(1) Chitra Chintaman Kolekar & ors v. Govt of Maharashtra & anr

reported in 2014 ACJ 1317.

(2) Darshana Ganesh Kaavaje & ors v. MSRTC & ors reported in

2014 ACJ 882.

(3) APSRTC v. Shaik Yousuf Pasha reported in 2007 (5) ALD 439.

(4) Rajesh and ors v. Rajbir Singh and ors reported in 2013 ACJ

1403.

(5) Kavita v. Deepak & ors reported in 2012 (5) All MR 914 (SC).

(6) New India Assurance Co. Ltd. v. Shweta Dilip Mehta and ors

reported in 2011 ACJ 489.

(7) The New India Assurance Co. Ltd. v. Sheikh Rizwan and ors

(delivered by this Court in First Appeal No. 1501 of 2008 on 26th

September 2012).

(8) B. Ramulamma and ors v. Venkatesh Bus Union and anr

reported in 2011 ACJ 1702.

(9) Mr Shaikh Farooq Mohammad Gaouse v. The Transport

Manager reported in 2013 (3) All MR 509.

(10) HDFC Ergo v. Lalta Devi & ors reported in I (2015) ACC 927

(Del.).

13. All these rulings reflect principles for to assess just quantum

of compensation payable to the victim of accident or his dependents on

pecuniary as well as non-pecuniary grounds. The Motor Accident Claims

Tribunal is bound to consider binding judicial precedents cited in the light

of facts and circumstances brought on record so that just, fair and proper

compensation is granted to the claimant in motor accident claim.

Needless to state that quantum of compensation is required to be decided

bearing in mind the settled principles as well as guidelines from the

binding judicial precedents. The amount of compensation ought not to be

decided on the basis of conjectures and speculations, but must be based

upon sound judicial principles and guidelines and the evidence on record

as well as material disclosed in facts and circumstances of each case

whether it is the claim based on death of victim in motor vehicle accident

case or injuries received by victim in such accident case.

14. Looking to the Award passed in the present case, the

compensation awarded by learned Member of the Tribunal appears based

upon conjectures and bald speculations and possibility of claimant's

family members that they might have taken care of claimant to give

special diet, might have spent certain amount etc. Thus, compensation is

granted without application of mind to the evidence on record and on

imaginary ground and finding being without evidence on record, is not

sustainable. Impugned Award is not generally based on settled legal

principles and guidelines from the judicial precedents. Impugned Award

is partly sustainable on the ground of undisputed fact that the accident

had occurred on account of rash and negligent driving of the offending

motor vehicle, a truck bearing registration number MH-31/AP-6855.

However, for decision as to quantum of compensation, I feel, when victim

had received serious injuries, required medical treatment over a long

time, his family members had to incur medical expenses over a long time

and probability of medical treatment in future as also non-pecuniary

damages on the ground such as loss of pleasure and pain; loss of marriage

prospects etc. and loss of income in future are all probabilities which will

have to be taken into consideration while arriving at just, fair and proper

award of compensation amounts payable to the claimant in such case.

Therefore, I consider the impugned judgment and award as unsustainable

on account of non-application of mind to fixation of just and proper

quantum of compensation only. Matter needs to be remanded for fresh

findings on issues no. 4 and 5 to enable the parties to adduce evidence as

they may choose and to enable the Tribunal to consider the entire

evidence to ascertain just, fair, reasonable compensation.

O R D E R

In the result, impugned judgment and award is maintained

on issue no. 1. It is set aside as far as findings on other issues are

concerned proceeding is remitted back with direction to the Tribunal to

take into consideration all the aspects like medical treatment undergone

by the claimant and also the one which would be required by him to

undergo in future; considering nature of injuries; loss of physical ability;

exact percentage of permanent or partial disability of the victim; loss of

prospects in life; loss of marital happiness and loss of pleasure etc. The

Tribunal shall permit the parties to lead additional evidence, if they so

deem fit and shall arrive at just, fair and proper quantum of compensation

on the basis of evidence led on record; principles and guidelines settled

through various judicial precedents. If any amount of compensation is

deposited by appellant with the Tribunal, the same shall be retained in the

fixed deposit, fetching maximum interest, with any nationalized bank till

the decision on merits in claim petition. Investment so directed shall be

subject to final decision in the case. Amount withdrawn by the claimants,

if any, shall be retained by them subject to final decision in the claim

petition. Appeal is accordingly allowed and disposed of with no order as

to costs.

A. P. BHANGALE, J

joshi