If the relevant chapter XII of the Motor Vehicles Act, 1988 is perused, the object seems to be to rehabilitate the victims of the motor accidents and/or their legal representatives. A claim petition under the said Act is in that sense not an adversarial litigation like a litigation where the rival parties fight in respect of a right over a property. At this stage, it will be necessary to make a reference to a recent judgment of the Apex Court in the case of Raj Kumar vs. Ajay Kumar and another, MANU/SC/1018/2010 : 2011(2) Mh. L.J. (SC) 569 : 2011(1) SCC 343. In paragraph No. 11 of the said decision, the Apex Court has held that the Tribunal under the said Act does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to hold an enquiry into the claim for determining the just compensation. The Apex Court has held that the Tribunal has an active role to play in ascertaining the true and correct position so that just compensation can be awarded. A judicial notice will have to be taken that in our country generally we have very bad road conditions. The street lighting is poor. There are no road dividers on major roads. In mofussil areas, the means of transport are limited. We do not have any kind of traffic discipline. The cumulative effect of all these factors is that there are large number of road accidents. Therefore, in a sense, the victims of motor accidents are the victims of the system and therefore, it is the duty of the Advocates representing the parties before the Tribunal to assist the Court in the mission of finding the truth and arriving at just compensation. If the claims are inflated or fabricated, the duty of the Advocates is to assist the Court to arrive at the truth. In genuine claims, the approach of insurers and their Advocates has to be fair and humane. In the facts of the present case, the respondent No. 3 should have adopted a fair approach and could have always avoided inhuman approach which was reflected from the questions put in the cross-examination of the appellant and Dr. Joshi. Less said the better about the written arguments. {Para 19}
IN THE HIGH COURT OF BOMBAY
F.A. No. 717 of 1999
Decided On: 08.08.2011
Dattatraya Laxman Shinde Vs. Nana Raghunath Hire and Ors.
Hon'ble Judges/Coram:
Abhay Shreeniwas Oka, J.
Citations: 2012 AAC 334 (BOM), 2011 (107) AIC (SOC) 32 (BOM), 2011 (6) ABR (NOC) 564 (BOM.), (2012) 3 ACC 554, (2011) 5 MAH LJ 854, (2011) 4 TAC 367, (2011) 6 ALLMR 646 (BOM), (2013) 1 ACJ 474, (2011) 6 BOM CR 553
1. The appellant, a young doctor who became a victim of paraplegia as a result of injuries sustained in a motor accident has taken an exception to the judgment and award made by the learned Member of the Motor Accident Claims Tribunal by which his claim for compensation has been partly allowed. The appellant met with an accident on 15th December, 1993. He met with an accident when he was about 25 and half years old and by that time, he had acquired qualification of Bachelor of Ayurvedic Medicine (B.A.M.S.). As a result of fracture to 12th thoracic vertebra. He suffered from complete paraplegia both motor and sensory below thoracic 12 with complete bladder and bowel involvement. The compensation granted by the Tribunal is Rs. 8,85,000/- with interest at the rate of 12% per annum against the claim of Rs. 50,00,000/- made by him in the claim petition.
2. The accident occurred on 08:30 am on 5th December, 1993. At the time of accident, the appellant was proceeding towards Kolhapur by Bombay -Bangalore national highway. It started raining and therefore, the appellant halted his scooter on the left side of the road below a tree. At that time, a Bajaj tempo-trax driven by the respondent No. 1 and owned by the respondent No. 2 came from Kolhapur side. It suddenly came on the its wrong side and dashed against the appellant when it was in a very high speed. That is how the appellant sustained serious injuries. The respondent No. 3 was the insurer of the said tempo - trax at the time of accident. The Tribunal recorded a finding that the accident occurred only due to negligence on the part of the driver of the tempo - Trax. The Tribunal found that the appellant suffered 100% loss of earning capacity and there was a disability of 100% in respect of the lower half portion of his body. The Tribunal granted a sum of Rs. 1,00,000/- on account of pain and suffering and a sum of Rs. 1,00,000/- on account of loss of amenities of the life. After recording a finding that the appellant can sit on a wheel chair, the Tribunal granted an amount of Rs. 3,50,000/- on account of loss of income. The Tribunal granted a sum of Rs. 75,000/- towards expenses on medical treatment, conveyance, transport, food and other necessities during the period of hospitalization. The Tribunal granted a sum of Rs. 50,000/- for acquiring a special chair, water bed etc. The Tribunal granted a sum of Rs. 1,00,000/- on account of future treatment. The Tribunal granted a sum of Rs. 4,00,000/- by way of general compensation.
3. The learned counsel appearing for the appellant has taken the Court through the record of the case, notes of evidence and documents on record. His submission is that the appellant had a brilliant academic career. The appellant was planning to join post graduate degree medicine course in Ayurvedic Medicine. He pointed out that the appellant was already employed in an Ayurvedic Medical College as a lecturer. He submitted that this is a case of 100% loss of earning capacity at the age of 25 years. He submitted that the appellant had lost his father in 1978 and the entire family consisting of his mother and younger brothers were looking forward to the appellant for financial support. He submitted that the compensation of Rs. 3,50,000/- granted on account of loss of income is extremely on the lower side. He submitted that loss of income has to be taken at least at the rate of Rs. 8,000/- per month and multiplier of 18 will have to be applied. He submitted that the appellant incurred huge expenditure on medicines, for purchasing equipment, and for his own stay and the stay of his relatives at various places. He incurred expenditure on special diet and conveyance. He submitted that the appellant was admitted in more than three to four hospitals. He pointed out that all the bills have been produced on record and the total amount of bills comes to more than Rs. 1,54,000/-. He submitted that the evidence of Dr. Rajiv Shriprakash Joshi, Orthopedic Surgeon, attached to Sancheti Hospital, Pune shows that the appellant would require attendant for 24 hours because the appellant has no control over bladder and bowel movements and he requires catheterization. He submitted that the cost of engaging such attendant was estimated by Dr. Joshi at Rs. 400/- per day. He submitted that apart from the cost of attendant, Dr. Joshi deposed that the appellant will need continuous medication which will require substantial amount. He submitted that all these aspects have been completely overlooked by the Tribunal. He submitted that the compensation of Rs. 1,00,000/- each awarded on account of pain and suffering and loss of amenities of the life is extremely on the lower side. He submitted that a sum of Rs. 1,00,000/- granted for treatment in future is also on the lower side. He relied upon a decision of the Apex Court in the case of Nizam's Institute of Medical Sciences vs. Prasanth S. Dhananka and others, MANU/SC/0803/2009 : (2009) 6 SCC 1. He also placed reliance on an unreported decision of this Court in the case of The New India Assurance Co. Ltd. vs. Shweta Dilip Mehta and ors, dated 14th December, 2009 in First Appeal No. 969 of 2008 and First Appeal No. 1262 of 2008 [reported in MANU/MH/1489/2009 : 2010 (3) Mh. L.J. 145]. He pointed out that it was a case of a boy aged 11 years, who became paraplegic. This Court has granted compensation of nearly Rs. 50,00,000/- and compensation of Rs. 4,00,000/- has been granted on account of pain and suffering and a sum of Rs. 3,00,000/- has been granted on account of loss of amenities of the life. Thus, his submission is that compensation of Rs. 50,00,000/- as claimed deserves to be granted. He submitted that the appellant needed a very large amount for treatment at an institution in England where the best facilities are available for rehabilitation of paraplegic patients. His submission is that the appellant could not go to England due to want of funds. He claimed compensation on account of specialized treatment in future. The learned counsel appearing for respondent No. 3 relied upon a decision of the Apex Court in the case of Divisional Controller, Karnataka State Road Transport Corporation vs. Mahadeva Shetty and another, MANU/SC/0529/2003 : 2003 AC J 1775 and submitted in a similar case where the accident was of the year 1995, only a sum of Rs. 1,00,000/- was granted by the Apex Court on account of pain and suffering. He submitted that the Apex Court did not grant separate compensation on account of loss of amenities of the life. He relied upon another decision of the Apex Court in the case of Nagesha vs. M. S. Krishna and another, MANU/SC/1330/1997 : 1998 ACJ 467 wherein the Apex Court granted compensation of Rs. 6,00,000/-. The injured was aged 23 years who had suffered disability to the extent of 95%. He also relied upon a decision of the Apex Court in the case of Nandkumar Vishnu Narkar vs. Maharashtra State Road Transport Corporation, MANU/SC/1356/1998 : 1999 ACJ 1388. He submitted that in case of similar injuries, the Apex Court confirmed the award in the sum of Rs. l,50,000/-.His submission is that the compensation granted is reasonable and not interference is called for.
4. I have perused the pleadings, notes of evidence and documents on record. It is not necessary to deal with the aspect of negligence as none of the respondents have challenged the finding on that aspect. Therefore, the only issue which survives for consideration is regarding the quantum of compensation. As far as the nature of injuries is concerned, Dr. Joshi who was attached to Sancheti Hospital at Pune as an Orthopedic Surgeon was examined by the appellant as a witness. From the year 1987, Dr. Joshi was attached to the said hospital as a resident doctor and from the year 1990, he started working in the same hospital as consultant. He has described the injuries sustained by the appellant as under :
1. Fracture 12th thoracic vertebra with complete paraplegia both motor and sensory below thoracic 12 with complete bladder bowel involvement.
2. Fracture left femur-closed-of shaft.
3. Fracture left ulna, middle third level.
4. Fracture ischio pubic ramus left wide.
5. Resolved head injury.
5. He stated that prior to admission of the patient in Sancheti Hospital, the appellant was a resident patient in Krishna Hospital at Karad and Ruby Hospital at Pune. He stated that the appellant continued as indoor patient in Sancheti Hospital upto 29th December, 1993. Apart from describing the injuries as aforesaid, has set out the details of the treatment given to the appellant. It is stated that because of the injuries to D-12 area of the vertebra, his spinal cord was completely damaged, which lead to paraplegia below D-12 level. He stated in his evidence thus :
.... The patient was operated for his fracture of shaft femur and fracture of ulna on 14-12-1993. Because of the injury to D-12 area of the vertebra, the spinal cord was severely damaged. This led to complete paraplegia below D-12 level i.e. loss of sensation and active movements below the level of D-12, with complete bladder bowel paralysises. There was no motor power or sensory power below the level of D-12. The long term effects of complete paraplegia are multisystem including the psyche of patient. The patient is chair bound and it left for wheel chair ambulation. The parapleagic patients are known to go into severe depressions and sometimes result is suicide. Parapleagic are known to have sever rediating pain in both legs and back which is neurological in origin. In addition to this, they suffer from multiple bladder infections which may led to superadded kidney infection and also injuries to both legs due to loss of sensation. Besides which a previously walking about patient sees a futile future and this leads him to suicidal tendency. The neuronal irritation gives rise to severe burning pains in both the legs. All these symptoms stated above were found in the said patient Dr. Shinde. For subsiding this pains, tablets like Mazetol are given i.e. antiepileptic drug. The side effect of this medicine is mainly drowziness, grastic irritation, with reflex depression. It also affects appatite with the loss of appetite with decrease in multivitamins in the body. Such type of patient is required supplementation of multivitamins along with high protein diet. These patients require self catheterisation to remove the urine from the bladder from time to time. This could lead to multiple episodes of infections which have to be treated by higher antibiotics. Also these patients are required to sleep on a water bed or aidbed to avoid pressure sores over the legs and buttocks. In addition to that the patient requires high protein diet along with multivitamin supplementation and enema frequently to regularise the bowel movements. They require passive physiotheraphy for both the lower limbs. Usually at night time, tranquillizers are given to help the patient sleep. At times, there is a reflex spasm of the lower limbs in certain patients which usually develops between 4 to 6 years and for which tranquillizers is given. The supplementary food contains high fibre and protein content.
(Emphasis added)
6. There is no serious cross-examination of the witness on the aforesaid aspects stated by him. He proved the case papers of the Sancheti Hospital in evidence. He proceeded to state that the appellant will require one or two trained nursing person/s for 24 hours. He stated that nursing charges will be Rs. 200/- for 12 hours. He stated that the appellant will have to incur expenditure on daily medicines, special protein diet etc. He stated that in India there was no facility to get total spinal rehabilitation in case of such types of patients. He stated that he knew a patient, who was benefited from the treatment taken by him in the National Spinal Injury Centre, Stoke Mandeville in England. He stated that he did not suggest in writing to the appellant to take treatment in the said institution. This aspect has been brought on record in cross-examination of Dr. Joshi. He denied the correctness of the suggestion that he has given exaggerated amount of expenses of daily medicines.
7. Dr. Joshi proved the disability certificate issued by him in the evidence apart from proving the medical papers of Sancheti Hospital. He also proved discharge summary issued by the Sancheti Hospital. In the disability certificate at Exhibit - 60, he has quantified the permanent disability of the appellant at 100%.
8. As far as injuries are concerned, the appellant who is an Ayurvedic Medicine Graduate has given his version. He stated that initially he was admitted in Krishna Hospital at Karad and thereafter, he was shifted to Ruby Hospital at Pune. From 8th December, 1993 till the end of February, 1994, he remained admitted as an indoor patient in Sancheti Hospital at Pune. He stated that for some time, he was hospitalized in Bharati Hospital at Pune. Thereafter, he took Ayurvedic treatment in an Ayurvedic hospital at Satara for about 15 days. As the said treatment showed no improvement, the appellant got himself admitted at Telangu Palaum Hospital, Coimbatore, Tamil Nadu for about two and half months. He stated that even the treatment at Coimbatore did not help him. He described the expenditure incurred by him on the treatment as well as in travelling. He stated that after the accident occurred, he has not earned a single farthing. On the effect of injuries, he has stated thus :
... I was and I am unable to have any movement below D-12. Due to this I am totally bed ridden and had lost control over bladder and bowel. Result is that I am getting bed sores, it has also adversely affected my damages, it has also affected my sleep, also adversely affected my mind. Still I get pains in my whole body. My life has become miserable. Though I had taken required medical treatment and medicine, still there is no improvement. I am required to be attended by attendant and the Nurse, about 3 to 4 times in a day, urine is required to be extracted by use of catheter. Due to this I am getting infection often and the result is that I get fever and chills and urine gets on dripping. I am required to take enema for passing bowels either daily or one in two days. For all this Nursing and attendance is necessary.
(Emphasis added)
9. Before going to the cross-examination, it must be stated that on the aforesaid version in the examination-in-chief, there is no cross-examination. What the appellant stated is that his body below waist has become completely paralytic and he has lost control over the bladder and bowel movement.
10. The appellant stated in his evidence that he secured 88% marks in S.S.C. examination and he had stood first in mathematics and social science subjects. He stated that he has secured admission to M.D. course in Ayurved in an Ayurvedic College in Pune and he had joined as a lecturer in Bharati Vidyapeeth, Pune and was drawing salary of Rs. 4,500/- per month. He stated that he has appeared for MPSC and UPSC examinations. To prove salary received by him from Bharati Vidyapeeth, he examined Dr. Vijay Vithalrao Bhalsing, Vice Principal of the College of Ayurvedic Medicines run by the Bharati Vidyapeeth. He proved the certificate of income at Exhibit - 64, which disclosed that gross salary of the appellant including allowances was Rs. 4,229/-per month. In the cross-examination, Dr. Bhalsing admitted that minimum qualification for the post of lecturer was post graduation and therefore, the appellant was not entitled to be promoted as Assistant Professor or Professor. A suggestion was given in the cross-examination that the appellant was not qualified to become a lecturer.
11. On this aspect, the appellant was cross-examined by the Advocate for the respondent No. 3. In the cross-examination, he stated thus :
The upper part of D-12 level is physically sound. It is not true to state that I can work efficiently by both my hands. It is not true to state that it is quite possible to me to examine the patient by sitting on the chair. It is not true to state that I can do consulting work efficiently. It is not true to state that it is quite possible for me to give lecture by sitting on the chair. It is not true to state that Doctor had never medically suggested to use catheterization and enema. It is not true to state that the doctor has not given any certificate in writing that my life span has been reduced and there is a deterioration from time to time due to the accidental injuries. It is not true to state at present there is no restriction on my food. It is not true to state that no doctor had advised me to take liquid food only and consequently I am not required to spend Rs. 15,000/- to 20,000/- p. m. on liquid diet. It is not true to state that I am not at all required any nursing or attendance as alleged. Till today approximately about Rs. 3 lac to 4 lac or more than that have been required for my treatment. Initially I have spent from my saving and therefore, thereafter by incurring hand-loans from friends and relatives to meet the medical expenses.
(Emphasis added)
12. Apart from Dr. Joshi and Dr. Bhalsing, the appellant examined two other witnesses. He examined Dr. Sopan Ramchandra Chaugule, a General Surgeon, who had treated the appellant for some time. He also examined his colleague in the Ayurvedic College Dr. Sukumar Bhopal Gat. He had accompanied the appellant to the institution at Coimbatore.
13. Before going to the quantification of the quantum of compensation, a note will have to be taken of the stand taken by the respondent No. 3 during the trial. Perusal of the record shows that the appellant had made an inquiry with the Christian Medical College at Vellore regarding the possibility of paraplegia patient receiving rehabilitation. The letter dated 29th April, 1996 sent by the said institution is on record wherein the name of the National Spinal Injury Centre at Stroke Mandeville in England was suggested apart from another institution in England. Correspondence was made by the appellant with the institution at Stroke Mandeville. By the letter dated 12th August, 2006 issued by the consultant in spinal injuries attached to the said institution, the appellant was informed that he will have to pay an amount of 45,000/- English pounds as deposit for the purpose of treatment. In the written argument filed by the respondent No. 3 before the Tribunal, it is suggested that no amount should be granted for undergoing such treatment as the appellant may not survive. I am not referring in detail to the stand taken in the written submissions which is far from being fair as the learned counsel for the respondent No. 3 on instructions has fairly stated that he is not relying upon the written submissions filed before the Tribunal. The appellant produced voluminous original documents such as original mark-list of S.S.C and original mark-list of H.S.C. He has also produced certificates showing that in S.S.C. examination he stood first in mathematics in Kolhapur district. He has produced mark-lists of first, second and third year B.A.M.S examinations. He has produced admission card of UPSC civil services preliminary examination of the year 1993. He has produced various other certificates showing the progress made in education. He also produced a photocopy of the certificate of registration issued by the Maharashtra Council of Indian Medicines. None of the said documents including the original mark-lists issued by the S.S.C. Board, H.S.C. Board and Shivaji University were admitted by the respondent No. 3. In the written submissions, no case was made out that the said documents were fabricated. Perusal of file-D shows that the said documents were produced along with the list at Exhibit-47 on 1st December, 1997. In the first part of the cross-examination of the appellant recorded on 18th November, 1997, the appellant admitted that he has not produced any documentary evidence to prove educational qualifications. A suggestion was given to the appellant that he was deposing falsely that he was serving as a lecturer in Bharati Vidyapeeth and was getting salary of Rs. 4,500/- per month. The correctness of the said suggestion was denied by the appellant. Thereafter, a suggestion was given that a candidate who has passed a BAMS course will not get a monthly pay of more than Rs. 1,500/- per month. Further cross-examination was conducted on 1st December, 2007 after the aforesaid documents were produced. In the cross-examination, suggestion was given to the appellant that by taking disadvantage of his professional acquaintance, he has produced false documents. A suggestion was given to the appellant that none of doctors who had treated him had advised him to go to the Ayurvedic hospital at Satara and in the institution at Coimbatore. He was given a suggestion that he had not met any patient, who had sustained injuries like him and was cured by the institution in England. In the further cross-examination, a suggestion was given that he can do consulting work efficiently by sitting on the chair. A suggestion was also given that it is possible for him to deliver a lecture by sitting on the chair. The Advocate for the respondent No. 3 went to the extent of suggesting that doctors had never advised the appellant to use catheterization and enema. The material on record showed that the appellant had no control over the bladder and the bowel movement. Therefore, aforesaid suggestion that doctors had never advised the appellant to use catheterization was not at all fair. Another suggestion was given in the cross-examination that no doctor has given him a certificate in writing that his life span has been reduced due to injuries.
14. Dr. Joshi, Orthopedic Surgeon attached to a reputed institution like Sancheti Hospital at Pune was cross-examined by the respondent No. 3 by giving a suggestion that with a view to help the appellant in getting exorbitant compensation, he has quoted exaggerated amount of expenses required to incurred by the appellant.
15. I have made a reference to the written argument filed by the Advocate for the respondent No. 3, which was taken on record by the learned Member of the Tribunal. The approach reflected in the written argument is no different from the line of cross-examination adopted by the learned Advocate for the respondent No. 3. Much can be said about the inhuman approach of the respondent No. 3 reflected from the written submissions. However, the learned counsel for the respondent No. 3 has on instructions fairly stated that the respondent No. 3 does not desire to rely upon the said written submissions.
16. Even in written submissions, there is no challenge to the original certificates. It appears that by not admitting the original certificates issued by the H.S.C and S.S.C Boards as well as the Shivaji University, the respondent No. 3 desired that the appellant should summon the officers of the S.S.C. and H.S.C Boards as well the Shivaji University to prove the said documents. It is a matter of common knowledge that insurance companies have a panel of investigators whose services are hired to trace out the insured and drivers and to ascertain whether any breach of terms and conditions of the policy has been made. The services of investigators could have been utilized by the respondent No. 3 to find whether the certificates produced by the appellant were genuine.
17. As pointed out earlier, in the first part of the cross-examination of the appellant, a suggestion was given that he has falsely stated that he was serving as a lecturer in Bharati Vidyapeeth. In the cross-examination a suggestion was given that notwithstanding paraplegic condition, the appellant can deliver lectures by sitting on the chair. Thus it was sought to be suggested that notwithstanding paraplegic condition, the appellant can continue to do the teaching job. When the Vice Principal of the Ayurvedic College where the appellant was employed stepped into witness box, a suggestion was given to him that as the appellant was not holding a post graduate degree, he was not qualified to act as a lecturer. Within few months of obtaining BAMS degree, the appellant had suffered the accident and he became paraplegic. Without understanding the psychological impact of the paraplegia on a young person like appellant, a suggestion was given in the cross-examination that by sitting on a chair, the appellant can examine patients. As far as the role of an Advocate is concerned, the Apex Court in the case of T. V. Chaowdhari, In re MANU/SC/0873/1987 : 1987(3) SCC 258 has quoted with approval what is held by the likes of Lord Reid and Lord Denning :
11. Lord Reid in Rondel vs. Worsley has succinctly set out the conflicting nature of the duties a counsel has to perform in his own inmitable manner as follows :
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. As an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests. Counsel must not mislead the Court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. By so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him.
12. Again as Lord Denning, M. R. in Rondel V. W2 would say : He (the counsel) has time and again to choose between his duty to his client and his duty to the Court. This is a conflict often difficult to resolve; and should not be under pressure to decide it wrongly.... [When a barrister (or an advocate) puts his first duty to the Court, he has nothing to fear, (words in brackets added).
In the words of Lord Denning :
It is a mistake to suppose that he is the mouthpiece of his client to say what he wants :.... He must disregard the most specific instructions of his client, if they conflict with his duty to the Court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline....
(Emphasis added)
18. It is true that an Advocate is under an obligation to do his best in the interest of his client, but said obligation is limited by his position as an officer of the Court. An advocate cannot be passive about the term "officer of the Court". He has to perform many fold duties including an important duty to assist the Court in the administration of justice. He has to do best for his client so long as it does not conflict with the interests of justice. In the aforesaid decision, the Apex Court proceeded to observe thus :
We are constrained to give expression to our views with a feeling of remorse to remind the counsel of that sense of detachment and non-identification they are expected to maintain with the causes espoused by them...
(Emphasis added)
19. If the relevant chapter XII of the Motor Vehicles Act, 1988 is perused, the object seems to be to rehabilitate the victims of the motor accidents and/or their legal representatives. A claim petition under the said Act is in that sense not an adversarial litigation like a litigation where the rival parties fight in respect of a right over a property. At this stage, it will be necessary to make a reference to a recent judgment of the Apex Court in the case of Raj Kumar vs. Ajay Kumar and another, MANU/SC/1018/2010 : 2011(2) Mh. L.J. (SC) 569 : 2011(1) SCC 343. In paragraph No. 11 of the said decision, the Apex Court has held that the Tribunal under the said Act does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to hold an enquiry into the claim for determining the just compensation. The Apex Court has held that the Tribunal has an active role to play in ascertaining the true and correct position so that just compensation can be awarded. A judicial notice will have to be taken that in our country generally we have very bad road conditions. The street lighting is poor. There are no road dividers on major roads. In mofussil areas, the means of transport are limited. We do not have any kind of traffic discipline. The cumulative effect of all these factors is that there are large number of road accidents. Therefore, in a sense, the victims of motor accidents are the victims of the system and therefore, it is the duty of the Advocates representing the parties before the Tribunal to assist the Court in the mission of finding the truth and arriving at just compensation. If the claims are inflated or fabricated, the duty of the Advocates is to assist the Court to arrive at the truth. In genuine claims, the approach of insurers and their Advocates has to be fair and humane. In the facts of the present case, the respondent No. 3 should have adopted a fair approach and could have always avoided inhuman approach which was reflected from the questions put in the cross-examination of the appellant and Dr. Joshi. Less said the better about the written arguments. However, it must be stated that the approach of the learned counsel appearing for the respondent No. 3 before this Court has been different.
20. Now in the year 2011, this Court is deciding an Appeal arising out of an accident of 1993 wherein the victim has became a paraplegic. The dream of the appellant of having a successful career as a doctor was shattered by the accident. Assessing compensation in such cases always poses some difficulty. In the case of R. D. Hattangadi vs. Pest Control (India) Ltd., MANU/SC/0146/1995 : 1995(1) SCC 551, the Apex Court observed thus :
10. It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by Courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.
11. In the case Ward vs. James it was said :
Although you cannot give a man so gravely injured much for his 'lost years', you can, however, compensate him for his loss during his shortened span, that is, during his expected 'years of survival'. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern, and they keep it in line with the changes in the value of money.
12. In its very nature whenever a tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards.
(Emphasis added)
21. Now, bearing in mind the principles laid down by the Apex Court, it will be necessary to do the exercise of determining the compensation. In the case of Raj Kumar vs. Ajay Kumar and others, MANU/SC/1018/2010 : 2011(1) SCC 343, the Apex Court has laid down principles governing grant of compensation in such cases. The Apex Court in paragraph 6 has held thus :
6. The heads under which compensation is awarded in personal injury cases are the following :
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure, (ii) Loss of 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 earnings 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 (and/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) 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 lumpsum 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. Decisions of this Court and the 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.
22. As far as the assessment of loss of earning capacity on account of the disability is concerned, the Apex Court held thus :
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry." Thereafter, the Apex Court proceeded to hold :
19. We may now summarise the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity, (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability), (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety, (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.
20. The assessment of loss of future earnings is explained below with reference to the following illustrations :
Illustration A. - The injured, a workman, was aged 30 years and earning Rs. 3000 per month at the time of accident. As per doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows :
(a) Annual income before the accident: Rs. 36,000
(b) Loss of future earning per annum (15% of the prior annual income): Rs. 5400
(c) Multiplier applicable with reference to age : 17
(d) Loss of future earnings: (5400 x 17): Rs. 91,800.
Illustration B. - The injured was a driver aged 30 years, earning Rs. 3000 per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows :
(a) Annual income prior to the accident: Rs. 36,000
(b) Loss of future earning per annum (75% of the prior annual income): Rs. 27,000
.. J. r
(c) Multiplier applicable with reference to age : 17
(d) Loss of future earnings: (27,000 x 17): Rs. 4,59,000.
Illustration C. - The injured was aged 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows :
(a) Minimum annual income he would have got if had been employed as an engineer : Rs. 60,000
(b) Loss of future earning per annum (70% of the expected annual income): Rs. 42,000
(c) Multiplier applicable (25 years): 18
(d) Loss of future earnings: (42,000 x 18) : Rs. 7,56,000.
[Note.- The figures adopted in Illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on actuals taken from the decision in Arvind Kumar Mishra].
21. After the insertion of section 163A in the Act (with effect from 14-11-1994), if a claim for compensation is made under that section by an injured alleging disability, and if the quantum of loss of future earning claimed, falls under the Second Schedule to the Act, the Tribunal may have to apply the following principles laid down in Note (5) of the Second Schedule to the Act to determine compensation :
5. Disability in non-fatal accidents. - The following compensation shall be payable in case of disability to the victim arising out of nonfatal accidents :
Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks.
PLUS either of the following :
(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under Item (a) above.
Injuries deemed to result in permanent total disablement/ permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under the Workmen's Compensation Act, 1923.
23. In the present case, the appellant will never be able to practice medicine. He will not be able to continue as a lecturer due to physical disability. Moreover, witness examined by the appellant admitted that the appellant is not qualified for the post of a lecturer as he is not holding a post graduate degree. He is incapable of earning any income. No argument is necessary to come to the conclusion that this is a case of 100% loss of earning capacity. In the year 1993, the income of the appellant as a lecturer was around Rs. 4,200/-. The appellant had an excellent academic record. It is obvious that the income of the appellant would have been much higher than Rs. 4,200/-. In a matter like this, exercise of determining the compensation always involves an element of guess work. Looking to the academic record of the appellant, the income can be reasonably taken at Rs. 6,000/- per month. Multiplier of 18 will have to be applied as on the date of the accident the age of the appellant was about 25 years. Applying multiplier of 18, the loss of income can be quantified at Rs. 12,96,000/- (Rs. 6000 x 12 x 18). As pointed out earlier, the entire body of the appellant below waist has become paralytic and he has no control over bladder and bowel movement. He regularly requires catheterisation. As stated by Dr. Joshi, he requires an attendant for 24 hours. Even if the conservative estimate of cost of one attendant is taken at Rs. 200/- per day, the amount will be Rs. 6,000/- per month. Adopting multiplier method, the total amount will come to Rs. 12,96,000/-.
24. As far as claim of expenditure on medical treatment is concerned, it is brought on record that the appellant was admitted in three different hospitals in Pune and in hospitals at Karad and Satara. The appellant was also admitted to the institution at Coimbatore for a period of more than two months. Lot of expenditure must have been incurred on travelling and residence of the relatives and friends of the appellant. The bills evidencing expenditure on medicines, medical treatment, special diet, travelling expenses and residence of the relatives and friends of the appellant have been produced on record. There are four lists of documents marked as 85/1 to 85/4. Along with the said four lists, voluminous original documents such as bills, vouchers etc. have been produced on record. As expected, none of the documents were admitted by the respondent No. 3. Perhaps the respondent No. 3 wanted that large number of witnesses should be examined to prove the documents. In the examination-in-chief, the appellant has made a reference to all the bills and vouchers. The Tribunal constituted under the said Act is not bound by strict rules of evidence. Therefore, the said bills and vouchers ought to have been taken into consideration by the Tribunal in absence of the specific case made out that the documents were fabricated. The total amount reflected from the said bills and vouchers is Rs. 1,54,526/-, which can be rounded off to Rs. 1,55,000/-. Therefore, no separate amount can be awarded by the Tribunal for purchasing equipment such as chair, water bed etc.
25. Evidence of Dr. Joshi indicates that the appellant will have to continuously remain under medication. Dr. Joshi has stated that such patients who are suffering from paraplegia can suffer many ailments. In paragraph 5 above, the detailed version of Dr. Joshi on the treatment required in future has been reproduced. Dr. Joshi has said "The paraplegic patients are known to go into severe depressions and sometimes result is suicide. Paraplegic are known to have severe radiating pain in both legs and back which is neurological in origin. In addition to this, they suffer from multiple bladder infections which may led to superadded kidney infection and also injuries to both legs due to loss of sensation. Besides which a previously walking about patient sees a futile future and this leads him to suicidal tendency. The neuronal irritation gives rise to severe burning pains in both the legs. All these symptoms stated above were found in the said patient Dr. Shinde. For subsiding this pains, tablets like Mazetol are given i.e. antiepileptic drug. The side effect of this medicine is mainly drowziness, gastric irritation, with reflex depression. It also affects apetite with the loss of appetite with decrease in multivitamins in the body. Such type of patient is required supplimentation of multivitamins along with high protein diet. These patients require self catheterisation to remove the urine from the bladder from time to time. This could lead to multiple episodes of infections which have to be treated by higher antibiotics. Also these patients are required to sleep on a water bed or aid-bed to avoid pressure sores over the legs and buttocks. In addition to that the patient requires high protein diet along with multivitamin supplimentation and enema frequently to regularise the bowel movements. They require passive physiotheraphy for both the lower limbs. Usually at night time, tranquillizers are given to help the patient sleep. At times, there is a reflex spasm of the lower limbs in certain patients which usually develops between 4 to 6 years and for which tranquillizers is given. The supplementary food contains high fibre and protein content." The Tribunal has granted only a sum of Rs. 1,00,000/- for future expenses on treatment. The appellant will require large amount in future on medicines and equipment like wheel chairs, water bed, catheters etc. Even by a conservative estimate, the said amount cannot be less than Rs. 2,50,000/-.
26. The real problem is in determining non-pecuniary loss because there are no fix standards for assessing the non-pecuniary loss. In a case like this where the victims suffer from paraplegia, the non-pecuniary loss will be basically under the following headings.
i. pain and suffering;.
ii. loss of amenities of the life; and
iii. loss or destruction for prospects of marriage.
As far as first two items are concerned, in cases of a child or young person, who suffers paraplegia, the amount will be much higher than the entitlement of a person who suffers paraplegia at a comparatively late age. Therefore, there is variance in the amounts fixed by this Court as well as the Apex Court in such cases. The Apex Court and this Court in its various decisions has granted amounts ranging from Rs. 1,00,000/- together under the first two headings to a very high amount. In the case of Nizam's Institute of Medical Sciences (supra), where the Apex Court was dealing with a case arising out of an order passed by the Consumer Redressal Forum, a very high amount of Rs. 10,00,000/- has been granted on account of the pain and suffering. That was a case of engineering student aged 20 years, who was a victim of medical negligence. The case before the Apex Court was of a young student who being the victim of paraplegia was confined to wheelchair, and who pursued career in education and ultimately got employed as I.T. engineer at a handsome salary. Reliance was placed on the judgment of the Division Bench in the case of The New India Assurance Co. Ltd. vs. Shweta Dilip Mehta and ors. (supra). This Court dealt with the injury sustained by a minor child aged 11 years, who became paraplegic as a result of accidental injuries. In the facts of the case, this Court granted total amount of Rs. 4,00,000/- on account of pain and suffering. In the present case the compensation cannot be granted on account of loss of amenities of life in view of what is held by the Apex Court in the case of Raj Kumar. In paragraph 15 of the decision, the Apex Court held that:
15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
(Emphasis added)
27. In the case of Divisional Controller, Karnataka State Road Transport Corporation vs. Mahadeva Shetty and another (supra), the Apex Court granted a sum of Rs. 1,00,000/- in case of similar injuries. Ultimately, the amount will depend on facts of each case. It will depend upon the age of the victim, his social status, his marital status, his family background etc. It cannot be overlooked that a young person like the appellant who suffers from paraplegia, also suffers in mind and in the given case, such a person may become a patient of a psychological disorder. Paraplegia can have devastating effect on the mind of a person like the appellant, who had a brilliant academic career and who was aiming to pursue post graduate studies in Ayurvedic Medicine. It must be borne in mind that the accident occurred in the year 1993. The appellant was unmarried at the time of the accident. The appellant had responsibility of family consisting mother and two younger brothers. The impact of all these factors will have to be considered. The amount granted on this count by the Apex Court and Division Bench of this Court is in the range of Rs. 1,00,000/- to Rs. 4,00,000/-. Considering the facts of this case, compensation on account of pain and suffering deserves to be fixed at Rs. 3,75,000/-. As the compensation has been granted on account of 100% loss of earning capacity, separate amount cannot be granted on account of loss of amenities of life. In the case of Controller, Karnataka State Road Transport Corporation vs. Mahadeva Shetty and another (supra), the Apex Court approved compensation of Rs. 75,000/- granted by the Tribunal on account of complete loss of prospects of marriage. The same amount deserves to be granted in this case.
28. With this Judgment a long drawn litigation has come to an end as far as this Court is concerned. Costs of the appeal will have to be quantified at Rs. 20,000/-.
29. Thus, the entitlement of the appellant to compensation is as under :
a. Loss of income Rs. 12,96,000/-;
b. Cost of attendant Rs. 12,96,000/-;
c. Expenditure on medicines, treatment, conveyance Rs. 1,55,000/-;
d. Compensation on account of pain and suffering Rs. 3,75,000/-;
e. Compensation on account of loss of prospects of the marriage Rs. 75,000/-;
f. Compensation on account of medical expenditure in future Rs. 2,50,000/-;
Thus, the total compensation should be Rs. 34,47,000/-. This figure can be rounded off to Rs. 34,50,000/-.
30. After taking into consideration a sum of Rs. 8,85,000/- granted by the Tribunal, the appellant will be entitled to enhancement of Rs. 25,65,000/-. As far as amount of Rs. 2,50,000/- is concerned, the interest will not be payable from the date of the accident and the interest will be payable from the date of this judgment. Interest on the remaining enhanced amount of Rs. 23,15,000/- will have to be granted at the rate of 7.5% per annum.
31. Hence, I pass the following order:
i. In addition to the compensation granted under the impugned judgment and award, the appellant will be entitled to additional compensation of Rs. 25,65,000/- together with interest on the sum of Rs. 23,15,000/- at the rate of 7.5% per annum from the date of filing of the claim petition till the deposit of the amount with the Tribunal. The additional compensation shall be deposited with the Tribunal within a period of three months from today;
ii. In addition, the appellant will be entitled to costs of this Appeal quantified at Rs. 20,000/- from the respondents;
iii. If the enhanced compensation is not deposited within the stipulated time, on the amounts of Rs. 2,50,000/- and Rs. 20,000/-, interest will be payable from the date of this judgment at the rate of 8% per annum till the date of deposit;
iv. Out of the amount of enhanced compensation with interest and costs payable to the appellant, 50% amount shall be paid over to the appellant by an account payee cheque;
v. Remaining 50% amount shall be invested by the Tribunal in fixed deposit for a period of ten years;
vi. The fixed deposit shall be made with any nationalized bank in such a manner that, it will attract maximum rate of interest;
vii. The appellant will be entitled to withdraw quarterly interest payable on the said fixed deposit amount; and
viii. The Appeal is partly allowed on above terms.
Dattatraya Laxman Shinde vs. Nana Raghunath Hire and Ors. (08.08.2011 - BOMHC) : MANU/MH/1265/2011
Print Page
No comments:
Post a Comment