National Insurance Co Ltd vs Smt Anita Ajit Pejawar & Ors
2017 Latest Caselaw 2620 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

                           FIRST APPEAL NO.42 OF 2000

 Gulam Nabi Mohammad S. Patel & Anr.                        .... Appellants

                  versus

 Smt. Anita Ajit Pejawar & Ors.                             ... Respondents

                                     WITH
                          FIRST APPEAL NO.501 OF 1997

 National Insurance Co. Ltd.                                ... Appellant

                  versus

 Smt. Anita Ajit Pejawar & Anr.                             ... Respondents
                                      .......

 •      None for the Appellants in FA No.501/97.
 •      Mr.Rohan S. Darandale i/b. Mr.R.S. Datar, Advocate for the 
        Appellant in FA No.42/00.
 •      Mrs.S.V. Sonawane, AGP, for Respondent No.2 in both the FAs.

                                       CORAM            : C.V. BHADANG, J.

                                       DATE             : 24th MAY, 2017.

 ORAL JUDGMENT :

1. Both these appeals arise out of judgment and award

dated 03/12/1996 passed by the learned Motor Accident Claims

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Tribunal, Raigad, at Alibaug ('Tribunal' for short) in Accident

Claim Case No.24/89.

2. The brief facts necessary for the disposal of these

appeals may be stated thus;

That, on 04/09/1998 Smt. Anita Pejawar (the original

claimant) was an occupant of jeep bearing No.MRA 5986. The

said jeep was owned by one Mr.Prabhakar A. Phanse (original

opponent No.2). The jeep was being driven by the owner

himself. At about 05.00 p.m. when the jeep came in front of

Garden Hotel at Panvel on the Bombay Pune Road, it met with

an accident, involving an oncoming truck bearing No.MHD 1986

owned and driven by Mr.Gulamnabi Mohd. S. Patel (original

opponent No.1). The National Insurance Company (original

opponent No.4) and United India Insurance Co. Ltd. (original

opponent No.3) are respectively the insurer of the jeep and the

truck.

3. It is claimed that in the accident right hand of the

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claimant Smt.Anita Pejawar suffered multiple fractures and

inspite of treatment, it has been immobilized.

4. The claimant filed a Claim Petition u/s 110-A of the

Motor Vehicles Act, 1939 (Old Act), claiming a compensation of

Rs.2,50,000/-. The case made out in the petition was that the

claimant is a Diploma holder in Arts and was taking tuitions and

Yoga classes and earning Rs.1,800/- per month. It was

contended that the accident occurred due to the composite

negligence of the drivers of both the vehicles.

5. The petition was opposed by the owner and the insurer

of both the vehicles. The owner and insurer of the two vehicles

attributed negligence to each other. The insurer of the jeep also

claimed that the liability of the occupant of the jeep was not

covered under the policy of insurance. It was contended that the

liability was limited to Rs.15,000/- as per the terms and

conditions of the policy.

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6. The learned Tribunal framed in all six issues including

issue No.3 pertaining to negligence.

7. Before the Tribunal the original claimant Mrs.Anita

Pejawar examined herself alongwith Jaywant Sinkar on the

point of bills/expenses, incurred on the treatment. The claimant

sought examination of the doctor, on commission, which was

not accepted by the Tribunal.

8. The original opponent No.1 Gulam Nabi Mohammad S.

Patel, the driver of the truck as well as opponent No.3 Prabhakar

Phanse, the driver of the jeep examined themselves in support of

their defence.

9. The Tribunal answered issue Nos.1 to 3 in affirmative

holding that the accident was a result of the composite

negligence of drivers of both the vehicles. The Tribunal refused

to accept the contention of the insurer of the jeep that the risk of

the occupant of the jeep was not covered. The Tribunal also

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refused to accept the defence as to limited liability. The Tribunal

then went upon assessing the quantum of compensation, under

various heads and arrived at an amount of Rs.2,05,000/- which

is apportioned equally between the owner and insurer of the

jeep and owner and the insurer of the truck.

10. First Appeal No.501/97 is filed by National Insurance

Company Limited, the insurer of jeep while First Appeal

No.42/00 is filed by the owner and insurer of the truck.

11. None appeared for the appellants in First Appeal

No.501/97. I have heard Mr.Darandale, the learned counsel

appearing for the appellants in First Appeal No.42/00. There

was no appearance on behalf of the original claimant. I have

gone through the record and impugned judgment and award of

by the learned Tribunal.

12. It is submitted by the learned counsel for the

appellants (First Appeal No.42/00) that the accident was caused

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solely due to the negligence in driving of the truck. It is

submitted that the driver of the jeep had no role to play in the

occurrence. It is submitted that the original claimant was

interested in absolving the owner of the jeep in as much as the

owner of the jeep was a friend of the husband of the claimant. It

is submitted that in the absence of the examination of the

doctor, the Tribunal could not have placed reliance on the

nature and extent of the injuries. It is submitted that the

Tribunal erred in holding that the claimant had suffered

permanent partial disablement to the extent of 30%. It is

submitted that no compensation could have been granted on

account of expenses incurred for engaging a maid servant. It is

also submitted that there is no acceptable evidence to establish

that the claimant was taking tuition and Yoga classes and was

earning Rs.1,800/- per month. It is submitted that the

compensation of Rs.10,800/- granted on account of actual loss

of earnings is incorrect.

13. I have carefully considered the circumstances and the

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submissions made. It is necessary to first dwell on the issue of

negligence, as it is the very basis for granting compensation in a

claim of the present nature. The original claimant came with a

case of composite negligence of drivers of both the vehicles

being the cause of the accident. The original claimant Anita

Pejawar can be said to be an eyewitness to the accident. We also

have evidence of both the drivers. In this case undisputedly, it

was the driver of the truck who was prosecuted, who has since

been acquitted. The Tribunal has observed, and in my

considered view rightly so that acquittal of the driver in the

criminal case will not be decisive. The proof of negligence in

claim of the present nature essentially proceeds on

preponderance of probability, unlike in a criminal case where

negligence has to be established beyond reasonable doubt. Thus

the acquittal of the driver of the truck may not come in the way

of the Tribunal in coming to an independent finding as to the

cause of the accident.

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14. It has come in the evidence of the claimant Smt.Anita

that when the jeep reached near Garden Hotel, the 'lorry' came

from the opposite direction and gave dash to the right side

portion of the jeep. The jeep was in normal speed. She was

sitting near the window. Because of the impact she suffered an

injury to her right hand.

15. In the present case the occurrence of the accident, the

involvement of the two vehicles in the same and the ownership

of the two vehicles and factum of the two vehicles being covered

by policy of insurance is not in dispute. It has come on record

that at the time of accident there was a light rain/drizzle and

the condition of the road was not fair. It has come in the cross

examination of the claimant that jeep was belonging to a friend

of her husband and they had gone on a family picnic and she

was not a fair paying passenger. She denied that she had

contributed as her hand was kept out of the window of the jeep.

She denied that the National Insurance company i.e. the insurer

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of the jeep was liable. It has further come in the cross

examination that while the two vehicles crossed each other, they

brushed on their right rear side. She denied that the driver of

the jeep was responsible for causing the accident.

16. Mr.Gulamnabi the driver of the truck claimed that the

jeep came from the opposite side in a high speed and in a ditch

on the road, tire of the jeep burs, as a result of which the driver

of the jeep could not take "right judgment" and the jeep gave a

dash to the backside of the drivers cabin. He claimed that the

glass of the jeep struck the hand of the claimant. He claimed

that due to rain, the driver of the jeep could not see the ditch

and the condition of the road was not fair. In the cross

examination he stated that there was no much damage to the

lorry. The width of the tar road was 22 ft and there were kaccha

strips of 5 ft. on either side. He admitted that the driver side

front wheel of his vehicle was damaged. He further denied that

the truck was being driven in a high speed.

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17. Mr.Prabhakar Phanse, the driver of the jeep claimed

that the truck came from the opposite direction and the brushes

against the jeep on the driver's side. He claimed that he was

driving the jeep on the left side of the road. In cross examination

this witness stated that he saw the lorry for the first time when it

was at a distance of 300 ft to 400 ft. He also claimed that the

driver side portion of his vehicle was damaged. He denied that

he was driving in the centre of the road and was in a high speed.

18. It can thus been seen that drivers of both the vehicles

are trying to attribute negligence to each other. It has come on

record that on the spot of the accident, the road was 22 ft. wide

with Kaccha patches of 5 ft width on either side. Thus, the road

was sufficiently wide for the two vehicles to pass. The evidence

clearly suggests that when the vehicles were crossing each other

they brushed on their right side, causing injury to the claimant.

19. Although the driver of the truck has claimed that the

front wheel of the jeep landed in a ditch, as a result of which the

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tyre of the jeep burst, there is nothing on record, including the

spot panchanama to suggest that the tire of the jeep burst. The

panchanama shows that the front side wheel of the jeep was

bent due to impact. This would be suggestive of the magnitude

of the impact. It is thus not possible to accept and the Tribunal

has rightly rejected the claim of the driver of the truck that it

was because of the bursting of the tyre of the jeep that the

accident occurred. Even assuming that the tire of the jeep got

burst resulting into the driver of jeep loosing control, the

appellants cannot establish negligence of the driver of the jeep

on such a hypothesis. It has come in the evidence of the driver of

the jeep that for the first time he had seen the "lorry" when it

was at a distance of 300 ft to 400 ft. He also admitted that at the

time of accident, the jeep was posed so positioned as to leave

three ft tar road on the left side open. It can certainly be said

that the driver of the jeep had the last opportunity to avoid the

impact, assuming that the oncoming truck was approaching at

high speed. Taking an over all view of the evidence and the

material on record a conclusion appears to be inescapable that

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the drivers of both the vehicles had contributed equally in the

occurrence of the accident. Negligence is basically, absence of

duty to take care. In my considered view, the learned Tribunal is

right in holding that if the driver of the two vehicle had

exercised a little caution and taken care, the accident could have

been avoided. Thus, no exception can be taken to the finding

recorded by the Tribunal that there was composite negligence of

both the drivers in causing the accident and they were equally

responsible for the same.

20. This takes me to the issue of quantum. The Tribunal

has awarded compensation under the following heads:

(i) Compensation for injuries, Rs.50,000/-

pain and sufferings

(ii) Expenses on treatment Rs.30,000/-

including the medicines

(iii) Expenses on conveyance Rs.10,000/-

                   (iv)        Expenses on account of                        Rs.5,400/-
                               special diet



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                   (v)         Compensation on account of                     Rs.10,800/-
                               actual loss of earning for a 
                               period of six months
                   (vi)        Loss of amenities and                          Rs.25,000/-
                               enjoyment of life
                   (vii) Compensation on account of                           Rs.45,000/-
                               30% disability 
                   (vii) Compensation for employing                           Rs.28,800/-
                               a maid servant
                                                             Total    Rs.2,05,000/-

As stated earlier the compensation is apportioned

equally against the owner and the insurer of the jeeep and the

truck. The Tribunal has allowed interest at the rate of 12% per

annum from the date of the petition, till realisation.

21. The Honourable Supreme Court in the case of

Rajkumar, vs., Ajay Kumar & Anr. (2011) 1 Supreme Court

Cases 342, has set out the general principles for grant of

compensation, in injury cases. Para Nos.6 and 7 of the

judgment, which are apposite, can be reproduced as under-:

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"6. The heads under which compensation is awarded in

personal injury cases are the following:

Pecuniary damages (Special damages)

i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.

ii) Loss or earnings (and other gains) which the injured would have made had he not been injured, comprising:

a) Loss of earning during the period of treatment;

b) loss of future earning on account of permanent disability

iii) Future medical expenses.

Non-pecuniary damages (General damages)

iv) Damages for pain, suffering and trauma as a consequence of the injuries.

v) Loss of amenities (an/or loss of prospects of marriage).

vi) Loss of expectation of life (shortening of normal longevity)

In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv).

It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b), (iii), (v) and (vi)

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relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."

7. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case.

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22. It can thus be seen that in routine personal injury cases

the compensation will be awarded only under heads (i)(ii)(a)

and (iv) and it is only in serious cases of injuries where there is

specific evidence corroborating the evidence of the claimant,

that the compensation will have to be granted under the heads

(ii)(b), (iii), (v) and (vi).

23. Coming back to the present case, the Tribunal has not

awarded any compensation under heads (ii)(b) i.e. loss of future

earnings, (iii) i.e. future medical expenses and (vi) loss of

expectation of life. Obviously, the claimant being married,

neither the compensation was admissible nor it has been

granted for loss of prospects of marriage. However, the Tribunal

has granted Rs.25,000/- towards loss of amenities and

enjoyment. Be that as it may be, the claimant had sought

examination of the doctor on commission, which was not

allowed by the Tribunal.

24. As noticed earlier the Honourable Supreme Court has

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interalia held in case of Rajkumar (cited supra) that the

assessment of pecuniary damages under Item No.(i) and under

Item No.(ii)(a) do not pose much difficulty as they involve

reimbursement of actuals and are easily ascertainable from the

evidence. The assessment of non-pecuniary damages under item

Nos.(iv)(v)and (vi) involves determination of lump sum

amounts with reference to the circumstances such as age, nature

of injury, disability suffered by the claimant and the effect

thereof on the future life of the claimant. In the case of

Rajkumar (supra) the Honourable Supreme Court was

essentially concerned with the assessment of compensation on

account of loss of future earnings. As noticed earlier it has not

been granted in this case.

25. It has come in the evidence of the claimant that after

the accident she was carried to KEM hospital at Bombay. She

was operated upon. She was in the hospital from 04/09/1988 to

27/11/1988. Subsequently also she was required to take follow

up treatment regularly upto 17/01/1989 by attending OPD. She

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produced the receipts/bills including that of purchase of

medicines. She is having pain in the hand. She cannot lift heavy

articles or remove cooking utensils. She is also having difficulty

in wearing a Sari and is taking help of others. She got herself

examined from Dr. Govekar, who certified the disability to the

extent of 40%, which is substantial.

26. The Tribunal has granted the actual expenses of

treatment, conveyance and special diet including, loss of earning

for six months during the period of treatment and towards the

engagement of maid servant. The later is not a specific head

under which normally the compensation is granted. The

Honourable Apex Court has observed that the compensation

under head (i) can also include some miscellaneous

expenditure. Looking to the nature of the injuries and the fact

that the claimant was in hospital for a long period and was

required to take follow up treatment, I am not inclined to

interfere with the said award, in the peculiar facts and

circumstances of the case. It is true that the medical officer is

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not examined in this case. However, it is borne out of record

that the claimant had sought examination of the medical officer

which the Tribunal did not accept as has been recorded in the

impugned judgment. I do not find it appropriate to send the

matter back to the Tribunal at this distance of time, the accident

having occurred, as far back as, in the year 1988. I have

carefully gone through the evidence of the claimant and the

record in which the claimant has produced the photographs of

the injury and the also the treatment papers. The Tribunal had

also an opportunity to observe the claimant in person. The

injuries are certainly serious and extensive. Strict rules of

evidence do not apply to the proceedings before the Tribunal.

Under the Act the Tribunal is required to determine just

compensation, which is payable to the claimant. The question

would essentially depend upon the facts and circumstances of

each case. On a overall consideration of nature of the injuries

and looking to the quantum of compensation granted it cannot

be said to be either exorbitant or unjust. Thus in the peculiar

facts and circumstances of the present case I am not inclined to

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interfere with the quantum of compensation as awarded. In the

result First Appeal No.42/2000 is hereby dismissed. First Appeal

No.501/1997 is dismissed for want of prosecution. In the

circumstances there shall be no order as to costs.

(C.V. BHADANG, J.)

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