Bhavnaben Girishkumar Goda vs Driver Maheboob Ismail and 2

Honourable Mr. Justice G.R. Udhwani

Heard Mr. H.M. Lathia, learned advocate for the appellant and Mr. Vibhuti Nanavati, learned advocate for respondent No. 3. None was present for the other respondents. Both these appeals arise out of common judgment and award dated 26.04.2001 made by the Motor Accident Claims Tribunal (Main), Amreli u/s 166 of the Motor Vehicles Act, 1988 ("the Act" for short). Both these appeals, therefore, are heard and decided together. Since the First Appeals have been filed on limited ground i.e. quantum, only facts which are relevant to decide this issue, are referred to and it is not necessary to refer to other facts in greater detail.

There is no dispute that the vehicular accident occurred on 27.02.1994 at about 13:30 o''clock at a distance of one kilometer from Village Hadala under the local limits of jurisdiction of Bagsara Police Station of Amreli District involving the Jeep bearing Registration No. GJ-5-N-3666 which, on the way to Bagsara, dashed with Babool Tree and turned turtle after the driver lost control over his vehicle and injured each of the claimants herein.

There is also no dispute on the issue that it was on account of the rash and negligent driving of the driver of offending vehicle that such an accident occurred.

Two claim petitions bearing Motor Accident Claim Petition Nos. 181 of 1994 and 182 of 1994 were respectively instituted by Smt. Bhavnaben Girishkumar Goda and Smt. Subhadraben Manilal Goda, claiming compensation in the sum of Rs. 50,00,000/- and Rs. 10,00,000/-, respectively, under various heads. It appears that both the claimants were initially admitted to the Civil Hospital, Amreli and after primary treatment, they were shifted to H.J. Doshi Hospital at Rajkot and were treated as Indoor Patients for the period from 17.02.1994 to 27.03.1994.

The claimant Smt. Bhavnaben had examined Dr. Hemang Vasavada vide Exh:101 and on appreciation of his testimony, the Tribunal found that the claimant was treated by Dr. Vasavada for the period from 27.02.1994 to 20.03.1994 as an Indoor Patient and thereafter as an Outdoor Patient for a longtime. The Tribunal also found that the claimant had sustained fractures of spinal cord and neck and that the operation on injured leg of the claimant was performed and she had subluxation of C1 over C2, she had lost sensation on ocipital region; cervical transaction of 5 kg. weight was given to her and till the date of her deposition, spine fracture had not united. The Tribunal noted that the doctor assessed 70% permanent disability of claimant-Bhavnaben for the body as a whole. It was also noticed by the Tribunal from the cross-examination of Dr. Vasavada that the injured-Bhavnaben was under his treatment for the period from 1994 to 1998 and that he had prescribed pain killer tablets to her and advised her to wear hard coller and on 05.01.1998, X-ray was taken which indicated subluxation of C-1 over C2 and as per the opinion of the doctor, she would get pain in the movement of her head and neck. The doctor did not agree with the suggestion that the injured had disability to the extent of only 35% for the body as a whole.

After noticing the above-referred medical conditions of claimant-Bhavnaben, the Tribunal, on the premise that the said claimant had not produced the detailed case papers of treatment of H.J. Doshi Hospital nor those of Dr. Vasavada, as also on the premise that Bhavnaben had conceded in her cross-examination that she lacked documentary evidence to show that she was treated by Dr. Vasavada, as also on the premise that Dr. Vasavada had failed to explain as to how he arrived at 70% disablement, assessed permanent partial disability of the injured-Bhavnaben as 50% for the body as a whole and awarded Rs. 15,000/-towards pain, shock and suffering; Rs. 3,000/- towards special diet and Rs. 5,000/- towards transportation charges and Rs. 5,000/- towards attendant charges and Rs. 10,500/- towards medical expenses in absence of the medical bills of more than Rs. 10,500/-.

Learned advocate for the appellant assailed the above part of the award on the ground that the Tribunal failed to appreciate the evidence adduced by appellant-Bhavnaben. In his submission, there was medical documentary evidence on record sufficient enough to satisfy conscience of the Tribunal justifying the claim of Rs. 50,000/- towards pain, shock and suffering as also 70% disablement of the claimant-Bhavnaben. In his submission, in the summons calling the doctor for evidence, documents were required from the doctor and the doctor had come with more documentary evidence and therefore, it cannot be said that there was no documentary evidence. He, further, submitted that even in oral testimony of doctor, who was the only expert witness to speak about medical condition of the patient, has explained claimant''s medical condition where from easily an inference could have been drawn that the claimant had suffered serious injuries rendering her almost helpless for rest of her life. In his submission, therefore, the Tribunal was not justified in reducing disablement from 70% to 50% as there was no evidence justifying such reduction. However, learned counsel for respondent No. 3 supports the award of the Tribunal on this count.

We have carefully gone through the record of the case on this count and find that the Tribunal has committed a grave error in appreciating the medical documentary evidence produced before it as well as the oral testimony of Dr. Vasavada. The Tribunal had noticed various important facts as borne from the testimony of the doctor which we have already discussed above and for the sake of brevity, we may not repeat. However, some of the facts as are borne from the doctor''s testimony appears to have escaped the notice of the Tribunal, which we may refer. In his testimony, the doctor deposed that the patient had to wear hard collar so as to prevent other part of the body being paralyzed and such hard collar would restrict the movement of her neck and she would not be able to look downwards and that she would face difficulties in her skilled movements, household works and even if she is operated again, there would be no reduction in her permanent disability. The doctor also opined that such subluxation is more painful than even fracture and that pain, shock and suffering to such patient would continue life long and that the mussels of affected parts have contracted and on both sides of her forehead, drilling was done so as to fix required instrument. He also deposed that even on the day of his deposition, the fracture was not united (after a period of more than four years) and still there were complications and operation is required to be done on few parts of the head which involve a big life threat with no guarantee of its success and that also with the expenditure of about Rs. 4 lakhs to Rs. 5 lakhs. He also deposed that he had advised the victim to undergo the operation. It was also deposed that because of such fractures, the patient will have to face "sleeping plegia" and the chance of other parts being paralyzed cannot be ruled out and in such cases, patients are exposed to paralysis.

The doctor proved the disability certificate at Exh:102, the treatment certificate at Exh:33, the discharge card of H.J. Doshi Hospital at Exh:33 and photographs of the patient in hard collar at Exh:39.

In the cross-examination, the doctor reiterated the stand taken by him in the examination in chief and nothing substantial could be borne out in favour of the respondents.

Considering the testimony of the doctor in its entirety, it is seen that the Tribunal was not justified in holding that there were no case papers of the treatment of H.J. Doshi Hospital nor those of Dr. Vasavada with the claimant. The Tribunal was also not justified in holding that the doctor has not explained as to how the victim was disabled to the extent of 70% for the body as a whole. With the opinion of expert medical witness as discussed above, the Tribunal was not justified in scaling down the partial permanent disability from 70% to 50% for the body as a whole in absence of any cogent evidence from the respondents. It can be noticed that with the restriction of movement, pain, shock and suffering which were going to last till life of the victim, expensive future operation with the life risk and no guarantee of cure and reduction of disablement as well as serious medical condition as noted above, assessment of 70% permanent disability of the claimant for the body as a whole was wholly justified.

In view of above discussion, Rs. 15,000/- towards pain, shock and suffering awarded by the Tribunal will stand enhanced to Rs. 50,000/- as claimed by the claimant.

Considering the fact that the victim was hospitalized for about 21 days and considering the nature of medical treatment given to her, as also the fact that her treatment, even as an outdoor patient, continued from 1994 to 1998 albeit without full recovery, and that she is required to expend for hard collar for rest of her life, the Tribunal ought to have done a little guess-work rather than relying upon the medical bills already produced and ignoring those medical bills which according to the claimant were misplaced. It can be anybody''s guess that if the treatment of the patient lasts for such a long duration, she might expend a sum of about Rs. 40,000/-to Rs. 50,000/-. We, therefore, deem it fit to award Rs. 40,000/- to the appellant Bhavnaben towards medical expenses and thus, Rs. 10,500/- towards medical expenses awarded by the Tribunal shall stand enhanced to Rs. 40,000/-.

So far as future loss of income is concerned, the Tribunal took into consideration income tax returns of the last three years i.e. 1991, 1992 and 1993 produced at Exhs:36 to 38 and arrived at average income of the appellant at Rs. 19,800/- per year and assessed her monthly income at Rs. 2,000/-. However, learned advocate for the appellant submitted that the Tribunal was not justified in ignoring other important parts of testimony of the appellant. In his submission, the victim was contributing about two days to her partnership business along with other members of her family with her share being 25%; and over and above her partnership income, she was running cooking classes even before her marriage and such activity was continued even after marriage until she met with an accident, but the Tribunal, after holding that there was no documentary evidence to assess the said claim, declined to award the same. He submitted that a woman earns also from such extra activities over and above household works. He also submitted that, on the assumption that she was not running a cooking class, as a housewife also, she was entitled to just compensation.

From the oral testimony of Mr. Mahesh Manilal Goda at Exh: 91, who was one of the partners in the partnership firm above-referred, it appears that the appellant-Bhavnaben used to visit the printing factory for two days in a week and was discharging her duties of drawing sketch and designs etc. This part of testimony of Maheshbhai was not questioned in the cross-examination. Similarly, the claim of Bhavnaben in her testimony at Exh:55 that she was running cooking classes for three days at her residence and that she was contributing one day for every three days to printing work at factory was also not disputed. It is true that she could not justify her claim on this count by producing documentary evidence. But, in our opinion, two important aspects are required to be considered at this stage being (1) women do occupy themselves doing extra activities like cooking classes etc. and (2) assuming that the deposition of the witnesses aforesaid is not reliable for want of documentary evidence, one cannot be oblivious of the fact that the women also contribute to the household work which if translated in terms of money, would amount to salary that she would have earned, had she worked elsewhere. Therefore, just because the Tribunal did not find any documentary evidence in support of the claim of the claimant that she was running cooking classes, her claim could not have been rejected altogether. The Tribunal assessed the income from her business (excluding cooking) based upon her income tax returns at Rs. 2,000/- per month, but lost sight of the aforesaid aspect. In our opinion, taking into consideration said aspects, Bhavnaben was further entitled to at-least Rs. 2,000/- per month either towards her income from cooking classes or as a housewife. We, therefore, assess the income of the appellant at the rate of Rs. 4,000/- per month and considering 70% of her disablement for the body as a whole, appellant-Bhavnaben is entitled to Rs. 2,800/-per month towards future economic loss. Therefore, the future economic loss comes to Rs. 2,800 X 12 X 15 = 5,04,000/-.

There is, however, no evidence suggesting that appellant-Bhavnaben could have prospered in her business or cooking classes. In fact, Fy.B.A. Marksheet of the appellant at Exh:27 indicates that she had failed and there is no other evidence to establish her skill in her business so as to allow her prospective income from her business or cooking activities. Further, except bare statement of the witnesses, there is no evidence to suggest that Bhavnaben was a designer expert. In fact, admittedly, she was not holding any degree or qualification as designer. Therefore, no inference can be drawn that if she had worked elsewhere as a designer, she would have earned Rs. 40,000/- to Rs. 50,000/- per month as claimed by the learned advocate for the appellant.

Learned advocate for the appellant submitted that considering the fact that appellant-Bhavnaben was a Designer, appropriate multiplier could have been 20 and not 15. Therefore, in his submission, the multiplier is also required to be enhanced. We are not convinced with this argument inasmuch as fixation of multiplier has no relevance with the nature of work the injured does. It has relevance with the age at which the injured sustained injuries in the accident. Undisputably the claimant was aged about 41 years at the time of accident and appropriate multiplier for such age as held in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , Paragraph-42 is 14 multiplier and in fact, the Tribunal has awarded 15 multiplier. We, therefore, reject the contention of the learned advocate of the appellant on this count.

Learned advocate for the appellant-Bhavnaben submitted that the Tribunal ignored the evidence that the appellant-Bhavnaben is required to incur expenditure on future operation and therefore, this Court may award an amount between Rs.4 lakhs and Rs.5 lakhs towards her future operation. It is true that the doctor has opined that Bhavnaben is required to undergo an operation in future costing her somewhere around Rs. 5 lakhs. However, at the same time, the doctor has indicated that there is no surety of success of the operation and life threat is involved in it. Bhavnaben in her testimony Exh:55 has nowhere stated that she is willing to undergo any such operation. It appears that as the risk factor is involved in the operation with no guarantee of its success, she has not shown willingness to undergo the said operation and it is not the case of the appellant that she has undergone the future operation even as on the date of the judgment. However, the evidence on record indicates that she may have to undergo pain, shock and suffering for the rest of the life, even if the operation is performed and this Court has already enhanced her claim qua pain, shock and suffering to the tune of Rs. 50,000/- as claimed, and therefore, in our opinion, there is no question of awarding any amount qua future operation.

Learned advocate for the appellant submits that the Tribunal ought to have awarded a sum of Rs. 1 lakh towards social life disturbance. We do not find any such claim having been made before the Tribunal and therefore, the appellant-Bhavnaben cannot be permitted to make such claim on this count in appeal for the 1st time.

Appellant-Bhavnaben in her testimony has not justified as to what amount she expended towards the attendant or the person who attended her while she was admitted in the hospital, and thereafter, while she was bedridden. In this view of the matter, attendant charges awarded by the Tribunal are just and proper and require no interference.

Similarly, though the appellant claimed in her testimony that she had to visit the hospital from Jetpur to Rajkot for 30 to 40 times for check-up and medical examination, no documentary evidence in the form of medical record for she having attended hospital has been brought on record. Further, it is claimed that for 40 to 50 times, she had to attend the Court from Jetpur to Amreli and had to bear the expenses of a lawyer attending the Court from Rajkot to Amreli for 40 to 50 times. However, no supporting evidence was produced before the Tribunal and therefore, we are not inclined to enhance the transportation charges are required to be enhanced.

Learned advocate for the appellant submitted that considering the fact that there was a gap of seven years between the date of accident and the award and that the money could have doubled at an average of six years, if invested in cumulative fixed deposit in a bank, the award with interest at the rate of 9% per annum is inadequate and the interest should be awarded in such a manner as would meet the reducing money power. In our opinion, in absence of any evidence on the facts submitted by the learned advocate, we do not find any reason to raise the rate of interest.

First Appeal No. 5099 of 2001

In this case, claimant had subsequently expired; not on account of the accidental injuries but a natural death and she is now represented through her legal heirs. The claimant was aged 67 years at the time of accident. On overall consideration of the matter, the Tribunal assessed Rs. 1,500/- per month as income of the injured; partial permanent disability at the rate of 65% for the body as a whole and awarded, in all, a sum of Rs. 1, 25, 986/- with interest at the rate of 9% per annum towards compensation.

We have considered the arguments made by the learned advocate for the appellant as also those made in the memo of appeal and having gone through the evidence on record, it appears to us that the said award is more than just and proper and requires no interference. To justify our finding, we may briefly refer to the testimony on record, particularly to the various admissions made by the injured. It transpires from her testimony at Exh:73 that she was using denture even prior to the accident; that she continues to earn rental income of Rs. 40,000/- as also the income from deposits; that she was sleeping partner in the partnership firm; that her two sons continued their business in the partnership firm viz. Arihant T. Depot and she has no documentary evidence to show that the said business has suffered or discontinued on account of her injuries and that Arihant T. Depot was mainly managed by Maheshbhai; and that she and her three sisters were taken as partners for income tax purposes. Thus, it has been established that virtually it was not injured but other partners particularly her son and Maheshbhai who were actively incharge of the partnership business and it appears that there was no evidence whatsoever before the Tribunal to establish future economic loss or actual economic loss on account of the accidental injuries to the injured Subhadraben M. Goda. Still, however, it appears that the Tribunal has generously considered her income at the rate of Rs. 1,500/- per month even at her age of 67 years and generously applied 7 as multiplier; as also generously counted her permanent disability at the rate of 65% for the body as a whole. Thus, more than reasonable amount of Rs. 1,24,986/- as compensation under various heads has been awarded. Therefore, there is no justification for enhancing the compensation.

In the result, the First Appeal No. 5099 of 2001 must fail and is dismissed. The judgment and award made by the Tribunal in this regard stands confirmed. In so far as First Appeal No. 5098 of 2001 is concerned, as discussed hereinabove, the appellant-Bhavnaben Girishkumar Goda is entitled to Rs. 5,04,000/- towards future economic loss, Rs. 50,000/- towards pain, shock and suffering and Rs. 40,000/- towards medical expenses, Rs. 3,000/-towards special diet, Rs. 5,000/- towards transportation charges, Rs. 5,000/- towards attendant charges and Rs. 6,000/- towards past economic loss, as against the amount awarded by the Tribunal. Accordingly, the judgment and award made in First Appeal No. 5098 of 2001 is modified and enhanced to total Rs. 6,13,000/- with the rate of interest as awarded by the Tribunal. The award be drawn, accordingly.