Gujarat High Court
Vinodbhai Gopalbhai Patel And Ors. vs Bharatbhai Maganbhai Patel And Anr. on 15 December, 2005
Equivalent citations: I(2007)ACC249
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT Bhawani Singh, C.J.
1. This appeal arises out of judgment dated 31st December, 1988 passed by Motor Accident Claims Tribunal (Aux.), Surat, MACP No. 546 of 1984.
2. Claimant (27) was returning from Bardoli on his motorcycle GTN-5498. When he reached near Bamrdli village turn, truck No. GTT-5425 came from opposite direction driven at an excessive speed. Driver of truck lost control, went on wrong side and hit the claimant. As a result, claimant was thrown off towards west and sustained injury on the head. He became unconscious and motorcycle badly damaged. Truck driver left the place, claimant shifted to Sardar Smarak Hospital at Bardoli. Neuro Surgeon performed brain operation opening the skull bone which was broken into pieces, doctor could see that the brain was injured and some part of it was found paralytic. This portion was removed. The left hand is affected by paralysis because of brain injury. He remained in the hospital for 50 to 60 days. He regained consciousness after 15 to 20 days' admission in the hospital. For better treatment, he was shifted to Ashaktashram Hospital at Surat where necessary treatment was given but no improvement could be noticed, therefore, removed to Shanta Neuro Surgical Unit at Vadodara where Dr. C.D. Patel treated him but no improvement was there. However, he was advised physiotherapy and other treatment. He will remain bedridden for whole of his life, unable to walk of his own accord, unable to take care of himself, unable to attend agriculture work, no longer can undertake the work of diamond cutting, therefore, claim of Rs. 3,50,000/ - is preferred against the opponents alleging rash and negligent driving of the truck.
3. Opponents 1 and 2 filed written statements and denied allegations, Insurance Company also denies allegations. Further, it states that claimant could not negotiate the turn correctly, therefore accident took place. Opponent-1 did not possess valid driving licence to drive the truck. In the alternative, accident was result of contributory negligence on the part of claimant.
4. On the pleadings of parties, Claims Tribunal framed issues, recorded evidence and found that accident was caused by truck driver and not by the claimant. Therefore, compensation of Rs. 3,09,700 is awarded with interest at the rate of 12% from the date of application till payment with proportionate costs.
5. This award is challenged on two counts, namely, liability for the accident and assessment of compensation. On the first point, it is contended that as per the pcmchnama, truck was going on the correct side of the road, therefore, finding of the Claims Tribunal holding driver of the truck responsible is not sustainable. We do not find favour with this submission. Witnesses Navinbhai and Maganbhai say that truck was being driven at an excessive speed ignoring the curve on the road. They also say that driver did not follow rules of traffic and turning the vehicle properly on the correct side and direction of the road. With this nature of eyewitnesses' account, much reliance cannot be placed on thepanchnama. Finding on this question is based on evidence and unless perverse, the Appellate Court should not disturb the same. We find no perversity in the assessment of evidence on this aspect. Further, the driver was prosecuted and found guilty. The claimant did not contribute to the accident, therefore, finding based on evidence, is confirmed, contention rejected.
6. With regard to assessment of compensation, we may quote paragraph 13 of Award which deals with the nature of injuries suffered by the claimant:
13. When the applicant has sustained serious injury making him a dead wood for the whole of the life, he is entitled to reasonable amount of compensation under the different heads which I would be dealing them in seriatim. Looking to the above stated injuries, the applicant must have undergone severe pain and shock not for a day or two but for the whole of the period of treatment and the same still continue. Dr. Pethe has assessed his disability. The applicant has been now placed into miserable and helpless conditions, which would last for the whole of the life. He is not in a position to speak and will not be able to speak correctly. No doubt, he follows the question put to him but he is not in a position to reply even by conjectures because his whole of the left side is paralyzed. His right leg was paralyzed when he was a child. At present, his right hand is not now in a position to function because of the injury. Its grip has gone. He is not able to hold pen or pencil and write. He is not able to do any work with the aid of hand or foot. He will not be able to do any job or work. For the whole of the life, he will have to remain bed-ridden and dependent on others. It is also made clear by Dr. Desai that he will not be able to enjoy his marital life now, and such disabilities which can be assessed 100 per cent would remain for ever despite best treatment given or if given in future. It seems that the injuries are of such a nature that at present the medical science is also helpless to help the applicant and the applicant will have to live a life like a dead wood. This precarious situation in which the applicant is put to will cause anxiety, miseries, worries and tension not for certain time, but for whole of the life and would affect the psychology of the applicant. Physically and mentallyhe would be broken down. He would always think that the life is not worth living. His memory is considerably impaired. When such is the precarious condition of the applicant, under the head 'pain, shock and suffering', higher amount than conventional one should be awarded, and that should be Rs. 25,000.
From perusal of facts recorded in above quoted paragraph, physical condition of the claimant appears to be quite serious, thoroughly dependant on others for rest of his life, therefore, rightly said by the Claims Tribunal that he is a "dead wood" for whole life.
7. Question therefore arises whether, in the circumstances, Court can enhance the compensation? It can do so under Order 4 Rule 33, Civil Procedure Code, read with Section 168, Motor Vehicles Act, 1988, which requires Court to determine amount of compensation which appears to it to be just. See: New India Assurance Co. Ltd. v. Charlie ; Prakramchand v. Chuttan ; Oriental Fire and General Insurance Co. Ltd. v. Amarsingh Pratapsingh Sikliker ; Andhra Pradesh State Road Transport Corporation v. Patan Shasmshad Begum ; Krishan Lal v. Mehndi Hasan , and Chairman, Tamil Nadu Electricity Board v. Parvathi Ammal .
8. Therefore, appropriate enhancement is called for under certain heads to the extent of Rs. 50,000 (pain, shock and suffering), Rs. 5,000/ - (attendant charges), Rs. 5,000 (transportation charges), and Rs. 30,000/ - (loss of future prospects and future medical expenses). Accordingly, appeal is dismissed, award is modified to the extent that against the award of Rs. 3,09,700, claimant shall be entitled to compensation of Rs. 4,00,000 with interest at the rate of 9% on the enhanced compensation from the date of application till payment. The award amount shall be deposited with the Claims Tribunal within two months, which shall invest it in F.D.R. with a Nationalised Bank in the name of Bharatbhai Maganbhai Patel (claimant), for a period often years in the first instance, extendable from time to time. Interest accruing on the F.D.R. shall be paid to the claimant monthly or quarterly or six monthly, as may be demanded by him from the Manager of the Bank. Cost on parties.