Gujarat High Court
Gujarat vs Rameshchandra on 16 February, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/937/1991 1/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 937 of 1991
With
CIVIL
APPLICATION No. 13206 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
1,
2 and 3 : Yes, 4 and 5 : No
=========================================================
GUJARAT
STATE ROAD TRANSPORT CORPORATION - Appellant(s)
Versus
RAMESHCHANDRA
S BHATT & 1 - Defendant(s)
=========================================================
Appearance :
MR
PG DESAI for
Appellant(s) : 1,
MR HM PARIKH for Defendant(s) : 1,
DELETED
for Defendant(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 16/02/2010
ORAL
JUDGMENT
CIVIL APPLICATION NO.13206 of 2006 IN FIRST APPEAL No. 937 of 1991 Heard learned Advocate Mr. P.G. Desai appearing on behalf of applicant and learned Advocate Mr. H.M. Parikh appearing on behalf of respondent claimant.
This application is preferred by applicant Corporation with a prayer to bring legal heirs and representatives of respondent claimant Rameshchandra Shantilal Bhatt, who expired on 16th June, 1997 which came to the knowledge of applicant only on 10th March, 2004 vide letter issued by advocate of respondent claimant. The copy of letter dated 10th March 2004 is also annexed to present application at Annexure 'A'. On receipt of said letter, learned advocate for the applicant requested to learned advocate Mr. Parikh to furnish the details by letter dated 11th January, 2005, but, there was no response from other side. Copy of letter dated 11th January 2005 of applicant Corporation is also annexed. Thereafter, learned Advocate Mr. Parikh has furnished the names of legal heirs and representatives of deceased by letter dated 7th February 2005 which is also annexed at Annexure 'C' to present application. Following five are the legal heirs and representatives of respondent claimant which are required to bring on record as respondent claimant is expired.
(1)Annapurna R. Bhatt (2) Hemangini R. Bhatt (3) Priti R. Bhatt (4) Mitul R. Bhatt (5) M.R. Bhatt In light of aforesaid facts stated in present application alongwith letter of learned advocate Mr. Parikh and death certificate of respondent-claimant and letter of Corporation, prayer made in this application in paragraph-4(A) is granted accordingly.
Cause title of first appeal is to be amended accordingly by Registry. Accordingly, present Civil Application for bringing legal heirs and representatives of deceased is disposed of.
FIRST APPEAL No.937 of 1991 With CIVIL APPLICATION No. 13206 of 2006 Heard learned Advocate Mr. Pranav G. Desai appearing on behalf of appellant Gujarat State Road Transport Corporation, learned Advocate Mr. H.M. Parikh appearing on behalf of respondent Rameshchandra S. Bhatt. Respondent No.2 ST Driver is deleted by order dated 29.08.2007. The appellant has challenged the award passed by Claims Tribunal, Kheda at Nadiad in MACP No.121/1990 Exhibit 45, decided on 26.02.1991. The Claims Tribunal has allowed the claim petition with a direction to appellant to pay Rs.5,91,000/= to the claimant with running interest at the rate of 12% per annum from the date of filing of the application within three months and if they fail to pay, then running interest at the rate of 15% is required to be paid by appellant to claimant.
Learned Advocate Mr. Desai raised contention before this Court that Claims Tribunal has committed error in appreciating the evidence on record of the case properly and awarded Rs.5,91,000/= as amount of compensation, which is an abnormal amount and also on the higher side. He also submitted that Claims Tribunal has not decided the issue about rash and negligent driving of the driver of the bus involved in the accident and the Claims Tribunal has also committed error while assessing income of Rs.2,000/= per month of claimant and even the multiplier of 22 which has been applied is also contrary to law. The Claims Tribunal has also committed error in awarding Rs.50,000/= for pain, shock and suffering which include loss of abilities and deprivation of worldly pleasure. He submitted that Claims Tribunal ought to have seen that claimant is still in service and there is no evidence on record of the case that respondent claimant will lose all chances of future promotion and also lose his job/service. Therefore, he submitted that Claims Tribunal has committed error in holding that respondent claimant will lose all chances of future promotion and in all probability, he will lose his job. The Claims Tribunal has also committed error in awarding Rs.10,000/= for medical treatment and Rs.2,000/= for transportation and special food. The Claims Tribunal has committed error in considering 60% disability for the injury received by claimant in the accident and awarding compensation on that basis while not considering decision of this Court in the case of Ahmedabad Municipal Corporation V. Niranjan Ambalal Patel & Others reported in 23(2) G.L.R. 180 for deciding disability of the injured person on the basis of medical evidence on record of the case. He submitted that the Tribunal ought to have fixed permanent disability at 30% of the injuries received by claimant as per medical evidence which are available on record. In short, his submission is that amount of compensation which has been awarded is on the higher side and contrary to law.
Learned Advocate, Mr. H.M. Parikh appearing on behalf of respondent-claimant submitted that Claims Tribunal has rightly examined the matter, considered evidence on record and rightly assessed income as Rs.2,000/= per month and looking to age of claimant, he submitted that 22 multiplier is rightly applied because claimant has lost continuity in job upto 22 years. He submitted that looking to the injury which has been caused to claimant, it is clear that the claimant has become totally invalid and he is not attending his services and has also lost his job. The age of the claimant was 33 years when the accident occurred. Therefore, considering evidence of Dr. Patel - Exhibit 34 and Medical Certificate Exhibit 35, 60% disability has been rightly considered by Claims Tribunal and in his opinion, no error is committed which requires interference by this Court. Therefore, he submitted that award of compensation of Rs.5,91,000/= with 12% interest is perfectly justified which are based on record. Therefore, no interference is required by this Court.
I have considered submissions made by both the learned Advocates and I have perused the award passed by Claims Tribunal, Nadiad. Original claim was made for Rs.5,00,000/= which was subsequently enhanced to Rs.8,00,000/= by filing application at Exhibit 35 which was granted by Tribunal. The case of the claimant was that on 09.12.1989, he was travelling in one State Transport Bus owned by opponent No.2, driven by his driver employee. The Bus No. was G.Q.E.-8925, the driver was driving the bus at great speed in a rash and negligent manner. As a result, when the bus was passing on the over bridge constructed above railway track, the driver lost control over the steering. It dashed with the railing of the bridge and fell on the ground as deep as 40 ft. The claimant sustained serious injuries because of this accident. At the time when accident had occurred, claimant was working in Public Works Department drawing monthly salary of Rs.1,700/=. He was healthy and sturdy person but because of the injuries, he has become totally helpless and dependent on others. He has sustained fracture of cervical bone. He has received paralytic effect in both the hands and legs. He is unable to get up and has to do so with the help of others. He is unable to answer the natural call or pass urine in the usual normal way. Because of the injuries, he is also suffering from insomnia. Due to head injury, his head remains heavy all the time. He is a married person with four children but because of the injuries sustained by him in the motor accident, he is unable to enjoy his sexual life nor he is able to attend and guide his children in their studies. In short, he is not able to perform his domestic duties towards his family. He is dependent upon two persons who are attending him daily and helping him in his day to day activities. Because of the injuries, he has suffered great pain and shock and the accident has caused him permanent disablement. The appellant Corporation has filed reply by Exhibit 10 denying averments made in the claim petition and also claimed that claim made by claimant is highly excessive. Therefore, claim petition is required to be dismissed with cost. Substantial questions (issues) have been framed by Claims Tribunal at Exhibit 18. Thereafter, matter has been considered by Claims Tribunal after considering evidence of claimant. In order to prove the case, the claimant has examined himself at Exhibit 26, stating inter-alia that on 09.12.1989, he was travelling in ST Bus from Ahmedabad to Thasra. When the bus was passing on the over bridge over the Railway Track at Nadiad, opponent No.1 Driver of the bus lost control and bus dashed with the railing of the over bridge and fell on the railway line deep as 40 feet and as a result of that, he sustained injuries on his head, hands, legs etc. He was taken to Civil Hospital, Nadiad and thereafter, he was shifted to Civil Hospital, Ahmedabad. On the next day, he was again shifted to V.S. Hospital where he was treated as an indoor patient for about 23 days as because of the injuries he had paralytic effect on his hands and legs. He was not able to pass urine or answer nature's call. After 23 days in the hospital, he was discharged from hospital. Thereafter, in Nadiad, he received treatment of Dr. Harshadbhai Patel and his right leg and hand started functioning a little. His left hand and left leg are not functioning at all. Even right hand and leg are not totally cured. He can walk only with the help of a stick and one man. He is not able to sit properly nor he is able to get up by himself without the help of somebody else. He was a junior engineer in Public Works Department and total salary was Rs.1,824/=. Bharatbhai Shantilal Bhatt was examined at Exhibit 32 being younger brother of claimant. The notebook wherein the account of expenditure has been written is produced at Exhibit 33 which was maintained by younger brother is examined at Exhibit 32 and medical certificate is produced at Exhibit 35. The doctor has certified permanent disability of claimant as 60% of the body as a whole. On behalf of appellant, no evidence at all is adduced before Claims Tribunal. The case was expedited by claims tribunal because of the application preferred by claimant. According to claimant, because of the effect of paralysis, he is totally bed ridden and he is not able to attend his service. The Claims Tribunal has considered evidence of Dr. Patel, Exhibit 34 which show that the claimant has become totally invalid and at Exhibit 42 has mentioned that he is not attending his service also. Obviously, in all probabilities, he shall have to lose his job and considering the age of claimant of 36 years, remaining 22 years service has been taken into account by Claims Tribunal and considering Rs.4,000/= per month being the future prospective income of claimant and considering Rs.2,000/= per month income of claimant which yearly comes to Rs.24,000/= and being an invalid now, he has lost all chances of future promotion and in all probability, he will lose his job too. This loss yearly comes to Rs.24,000/= and 22 multiplier considering remaining service of claimant, total amount comes to Rs.5,28,000/= and considering medical evidence which shows that claimant has undergone great mental and physical torture for which he is entitled to Rs.50,000/= which includes loss of abilities and deprivation of worldly pleasure. Exhibit 33 shows actual expenses incurred by him and on that basis, Claims Tribunal has awarded amount of compensation considering Rs.10,000/= for medical treatment, Rs.2,000/= for transportation and special food and Rs.200/= per month for one man's attendance and for two persons, Rs.400/= can be calculated and accordingly, total amount has been awarded Rs.5,91,000/= being compensation with 12% interest.
In light of the aforesaid observations made by Claims Tribunal, the contention raised by learned Advocate Mr. Desai cannot be accepted because claimant has become totally useless for enjoying his subsequent life as a married person and considering remaining 22 years service for which he was not able to work because of injuries received in accident on account of rash and negligence would be apparently because ST Driver lost his control over steering and dashed the bus with railing of the over bridge and fell on the railway line which is at a depth of about 40 feet. The claimant was a passenger travelling in bus, therefore question of res ipsa loquitur for negligence is rightly applied by Claims Tribunal and applying said principles, the driver of ST Bus was found apparently driving his bus in a rash and negligent manner. Therefore, contention raised by learned Advocate Mr. Desai cannot be accepted. The future prospective income of claimant has been rightly considered and income of claimant on the date of accident at Rs.2,000/- per month has been rightly assessed and looking to injuries as certified by Dr. Patel in medical certificate, 60% permanent disability and because of serious injuries, pain, shock and suffering, Rs.50,000/= has been rightly awarded in favour of claimant. For that Claims Tribunal has not committed any error which require interference by this Court. In such a case when the bus fell at a depth of 40 feet, then it is presumed that accident occurred due to rash and negligent driving of the bus driver, as per decision in the case of New India Assurance Co. Ltd. V. Phelishsa Bakai and others reported in 2007 ACJ 2388, when the lower part of body has become paralysed due to injury, then it amounts to 100% permanent disablement as per reported decision in 2008 ACJ 1481. The Apex Court in case of K. Janardhan V. United India Insurance Co. Ltd. & Anr. reported in AIR 2008 SC 2384 has held that when driver of tanker who met with an accident had suffered serious injuries and due to that amputation of right leg upto knee joint has been considered as 100%, as driver is disqualify for obtaining driving license. Similarly in facts of this case also claimant has become totally useless because of receiving injuries, he is not able to work properly with injury and therefore, he lost his job in all probability and also resulted in loss of future chances of promotion and considering remaining 22 years, which is lost by claimant, the Claims Tribunal has rightly examined the matter on that basis and considering future prospective income of Rs.4,000/= and safely taking Rs.2,000/= income per month and multiplier of 22, amount of compensation which comes to Rs.5,28,000/=. The Apex Court in case of Sapna V. United India Insurance Co. Ltd. & Anr. reported in AIR 2008 Supreme Court 2281 has considered the case of injury received by a girl of 12 years being a permanent disability and held that she would remain crippled throughout her life and would have no enjoyment for life which is to be considered and also the requirement of any future medical treatment is also to be considered. Principle which has been decided by Apex Court in paragraph 8 is quoted as under :-
8.
The principles governing a claim petition for assessing the damages in case of bodily injury suffered is that while awarding the compensation, the Tribunal should consider all relevant factors so as to enable the insured to be put in the same position as if he had not sustained any injury. The principle of Restitutio-in-integrum may be applied in a case of nature. Pecuniary loss and non-pecuniary loss are required to be pressed under certain heads. So far as the pecuniary loss is concerned, the same be ascertained. What is required to be done is a balancing act by awarding such sum which, on the one hand, shall take care of the loss suffered by the claimant for the present time and future pecuniary benefits and, on the other, pecuniary advantages which from whatever source comes to them by reason of such injuries. So far as non-pecuniary loss is concerned, the same has to be assessed broadly under certain heads, namely, damages for physical pain, mental suffering etc. besides the amount spent on medical treatment, if any.
In the aforesaid decision, Apex Court has considered that in such serious injuries having permanent disability of more than 60%, then in such cases loss of compensation is also required to be awarded for future medical treatment to the claimant, while considering decisions of Apex Court reported in the cases of Abati Bezbaruah V. Dy. Director General, Geological Survey of India and another reported in 2003 AIR SCW 1266 (Paragraph
11), Nagappa V. Gurudayal Singh and Others reported in 2002 SCW 5348 (Paragraph 23) and High Court of Judicature at Allahabad through its Registrar V. Raj Kishore and others, reported in AIR 1997 SC 1189. However, in aforesaid decisions such serious cases of injury required future medical treatment but unfortunately Claims Tribunal has not awarded any amount towards the future medical treatment in favour of claimant. In my opinion, the matter has been properly dealt with and Claims Tribunal has considered 60% disability as established by evidence of Dr. Patel Exhibit 34 and therefore, the contention which has been raised by learned Advocate Mr. Desai cannot be accepted and hence, submission made by learned Advocate Mr. Desai is rejected. In my opinion, the Claims Tribunal has not committed any error which require interference by this Court. The amount of compensation which has been worked out and which has been awarded in favour of the claimant is found to be just, proper and reasonable looking to the serious injury received by the claimant and due to that injury, the claimant has become totally useless for enjoyment of subsequent life. Therefore, there is no substance in First Appeal and accordingly, First Appeal is dismissed. Today, First Appeal is dismissed by this Court. Therefore, no order is required to be passed in Civil Application and if any stay is operating, the same stands vacated. The amount of compensation as awarded by Claims Tribunal if not deposited by appellant-Corporation before Claims Tribunal, Nadiad, let it be deposited by appellant-Corporation including any short fall before Claims Tribunal, Nadiad within a period of two months from the date of receipt of the copy of present order. From perusal of record, during pendency of First Appeal, the respondent claimant Shri. Rameshchandra S. Bhatt has expired on 16.06.1997. A death certificate of claimant is on record. The legal heirs and representatives of claimant are as under as referred in Civil Application No.13206/2006 filed by Corporation which is allowed by this Court while deciding First Appeal :-
(1)Annapurna R. Bhatt (2) Hemangini R. Bhatt (3) Priti R. Bhatt (4) Mitul R. Bhatt (5) M.R. Bhatt Therefore, let heirs and legal representatives as referred above may file necessary application before Claims Tribunal, Nadiad for disbursement of compensation. After receiving such application from aforesaid legal heirs of respondent claimant, it is directed to Claims Tribunal, Nadiad to distribute amounts of compensation which are lying with Tribunal in accordance with law after giving reasonable opportunity to all respective legal heirs and representatives and pay such amounts by Account Payee cheque in name of such a person who is entitled to it after proper verification, without fail and further delay.
(H.K. Rathod, J.) Caroline Top