First Appeal No. 762 of 1990 with Civil Application Nos. 1030 and 1070/2009. Case: Rupesh Rashmikant Shah Vs Elegant Industries Pvt. Ltd.. High Court of Bombay (India)
| Case Number | First Appeal No. 762 of 1990 with Civil Application Nos. 1030 and 1070/2009 |
| Counsel | For Appellant: Tejpal Shrikant Ingale, Umesh Hanmantrao Pawar and Anand D. Landge, Advocates and For Respondents: Anita A. Agarwal, Advocate |
| Judges | R.G. Ketkar, J. |
| Issue | Motor Vehicles Act, 1988 - Sections 166, 171 |
| Citation | 2015 (1) ABR 197, II (2015) ACC 305, 2015 (2) Bom CR367 |
| Judgement Date | November 21, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
R.G. Ketkar, J.
-
Heard Mr. Tejpal S. Ingale, learned counsel for the appellant and Ms. Anita A. Agarwal, learned counsel for respondent no. 2 at length. None appears for respondent No. 1, though duly served.
-
By this Appeal, the original claimant has challenged the Judgment and Award dated 30.3.1990 passed by the learned Member, IIIrd Addl. Motor Accidents Claims Tribunal for Gr. Bombay, (for short, 'Tribunal') in Application No. 565 of 1979 filed under the provisions of Motor Vehicles Act, 1988 (for short 'Act'). By that order, the Tribunal partly allowed the petition instituted by the appellant, hereinafter referred to as 'claimant', and held that he is entitled to recover from respondent no. 1, (hereinafter referred to as opposite party), and respondent no. 2, (hereinafter referred to as 'Insurer'), compensation of Rs. 4,12,000/- together with interest at 6 per cent per annum from the date of the petition until realization, among other directions.
-
The Petition was instituted by the claimant on 16.4.1979 through his father, the next friend, as at the time of accident the claimant was aged about 8 years. The Petition was instituted claiming compensation for the injuries sustained by him in the motor vehicle accident that took place on 16.10.1978 at about 4.15 pm near Kashinath House, Nepeansea Road, Mumbai. Initially, compensation to the tune of Rs. 1,00,000/- was claimed. By filing application on 26.11.1981 at Exhibit 7, the claim was raised to Rs. 15,00,000/-. During the pendency of the Petition, application dated 8.12.1987 at Exhibit 28 was filed raising compensation from Rs. 15,00,000/- to Rs. 50,00,000/-. The application at Exhibit-7 was granted. The application at Exhibit-28 was not decided as on behalf of the claimant it was urged before the Tribunal that it can fix the amount of compensation in excess if so desired and the claimant is prepared to pay such deficit court fees on the enhanced claim of compensation. The relevant and material facts giving rise for filing of this appeal, briefly stated, are as under,-
-
On 18.10.1978 at about 4.15 pm, the claimant accompanied by his servant Sitaram who was then aged about 12 years, were crossing Nepeansea Road when vehicle bearing Registration no. MMF-2823 (for short, 'offending vehicle') owned by the opposite party, came from Kamps corner side and dashed the claimant all of a sudden. At that time, the claimant and Sitaram were crossing Nepeansea Road from East to West and the offending vehicle was being driven from North to South. As a result of the impact, the claimant sustained serious injuries and was removed to Breach Candy Hospital. He was admitted there and was unconscious for about 5.1/2 months. The driver of the offending vehicle was prosecuted by the police for rash and negligent driving in criminal case which was registered as C.R. No. 1191 of 1978. The learned Magistrate, as is evident from record, convicted the driver upon admitting his guilt.
-
On account of the accident, the claimant was required to take extensive medical treatment as his brain was affected. He could not appear for the ensuing examination because of the continuous pain and suffering undergone by him. It was contended that an amount of Rs. 50,000/- was spent till the filing of the petition over treatment. The claim for general damages for pain and suffering for shock is also claimed including conveyance charges, medical expenses, future conveyance charges, loss of amenities of life etc. It is the case of the Claimant that he requires constant attention for the purpose of carrying daily necessities of life and separate amount of compensation is claimed under that head, so also loss of pleasure of life as the claimant is unable to participate in any game or event. In all, the claimant claimed amount of Rs. 50,00,000/- compensation.
-
It is further contended that the opposite party', is owner of the offending vehicle and the same was driven by its driver in a rash and negligent manner. The opposite party is, therefore, liable to pay damages. Respondent no. 2 is an Insurer of the offending vehicle and the amount of damages is claimed from the opposite party as also the Insurer.
-
The Written Statement was filed by the opposite party and the Insurer at Exhibit-6 opposing the claim. It was contended that the accident was not the result of any rash and negligent act on the part of the opposite party. The claimant and his servant-Sitaram were guilty of contributory negligence and consequently he is not entitled to claim any sum from the Insurer.
-
On the basis of pleading of the parties, the Tribunal framed the necessary Issues. The parties led evidence in support of their respective case. After considering the material on record, the Tribunal partly allowed the Petition, as indicated herein above. It is against this decision, the claimant has instituted this Appeal for enhancement of compensation.
-
In support of this Appeal, Mr. Ingale has taken me through the impugned order passed by the Tribunal as also the evidence on record. He submitted that the heads under which compensation is awarded in personal injury cases, are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure;
(ii) Loss 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).
-
Mr. Ingale submitted that as against the claim of Rs. 2,50,924/- towards expenses already incurred by the claimant before making the Award, the Tribunal awarded amount of Rs. 1,11,985/-. The claimant has, therefore, claimed remaining amount of Rs. 1,38,939/- in this Appeal. Under the head 'physical pain and suffering' he had claimed Rs. 9,00,000/-. As against this, the Tribunal awarded Rs. 75,000/- only. Under the head 'loss of amenities of life', an amount of Rs. 9,00000/- is claimed. As against this, the Tribunal did not award any amount. Under the head 'inevitable expenses', he has claimed:
(a) Conveyance to the tune of Rs. 4,00,000/- at the rate of Rs. 36,000/- per annum. The Tribunal awarded Rs. 25,000/-. Towards conveyance and physiotherapy In the present Appeal, the claimant is demanding Rs. 6,48,000/-.
(b) Future medical treatment and periodical check up Rs. 4,00,0000/- @ Rs. 66,000/- per annum, (Rs. 36,000/- p.a. For medical and Rs. 30,000/- pa. Towards consultation fees and hospitalization) the Tribunal awarded Rs. 5000/-.
(c) Contingency and Special Education Rs. 2,60,000/-. The Tribunal granted Nil.
(d) Expenses of Attendant to the tune Rs. 4,80,000/- at the rate of Rs. 75,000/-. The Tribunal awarded Rs. 25,000/-. The claimant is, therefore, demanding remaining amount of Rs. 4,55,000/- under this head.
(e) Physiotherapy to the tune of Rs. 4,80,000/- at the rate of Rs. 24,000/- per year. The Tribunal awarded Rs. 25,000/- by clubbing conveyance and physiotherapy together.
(f) Crunch Tips: Rs. 32,000/- at the rate of Rs. 2,500/- per year, the Tribunal awarded Rs. 1,500/- under this head.
(g) Other Miscellaneous already incurred expenditure, the Tribunal awarded Rs. 18,515/-.
-
Mr. Ingale further submitted that the claimant also demanded Rs. 1,90,000/- under the head 'loss suffered by his mother'. The Tribunal awarded Nil compensation. Under the head 'loss of future income', he claimed Rs. 40,00,000/- at the rate of Rs. 1,00,000/- per year. The Tribunal awarded lump sum Rs. 1,50,000/-. Under the head of loss suffered by family in business, an amount of Rs. 5,50,000/- was claimed. The Tribunal awarded Nil. Mr. Ingale, therefore, submitted that as against the claim of Rs. 88,42,934/- made by the claimant, the Tribunal awarded Rs. 4,12,000/- along with interest at the rate of 6% per annum. He submitted that the interest should be at the rate of Rs. 9.5% per annum. Having regard to a recent decision of the Apex Court, interest at the rate of 12 % per annum ought to be awarded.
-
In support of his submissions, Mr. Ingale relied upon the following decisions:
(1) Ibrahim Vs. Raju, AIR 2012 SC 534
(2) Rajkumar Vs. Ajaykumar, (2011) 1 SCC
(3) Nizam Institute of Medical Science Vs. Prasanth Dhananka 2009 (6) SCC 11
(4) New India Assurance Company Ltd. Vs. Shweta Mehta, 2010 (3) Mah. L.J. 145
(5) R.D. Hattangadi Vs. Pest Control India) (P) Ltd., (1995) 1 SCC 551
(6) Nagappa vs. Gurudayal Singh, 2003 (2) SCC 274
(7) Arvind Kumar Mishra Vs. New India Assurance Co. Ltd., 2010 (1) SCC 254
(8) Govind Yadav Vs. New India Assurance Co. Ltd., 2011 (10) SCC 683
(9) K. Suresh Vs. New India Assurance Co. Ltd., 2012 (12) SCC 274
(10) Rekha Jain Vs. National Insurance Co. Ltd., 2013 (8) SCC 389
(11) Sanjay Varma Vs. Haryana Roadways, (2014) 3 SCC 210
(12) V. Mekala Vs. M. Malathi, JT 2014 (6) SC 212
-
On the other hand, Ms. Agarwal supported the impugned order. She submitted that during the pendency of the Appeal, the claimant filed Civil Applications No. 4287 of 2005, 1070 of 2005, 2107 of 2010 for bringing on record subsequent events and relevant circumstances which, according to him, are necessary for final disposal of the Appeal. She submitted that the Act does not provide making further award's after final Award is made. In the present Appeal, the claimant seeks enhancement of compensation awarded by the Tribunal. The Court, therefore, will have to examine the basic structure of compensation on existing evidence before the Tribunal for ascertaining whether the compensation is calculated properly or not, is less, all required heads under which compensation is dealt with...
To continue reading
Request your trial