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National Insurance Co. Vs. Minor Ramanbhai Fulabhai Bhoi and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 196 and 630 of 1979
Judge
Reported in[1985]58CompCas297(Guj); (1982)2GLR458
ActsWorkmen's Compensation Act, 1923 - Sections 2; Fatal Accident Act; Common Law; Motor Vehicles Act, 1939 - Sections 95(1)
AppellantNational Insurance Co.;minor Ramanbhai Fulabhai Bhoi
RespondentMinor Ramanbhai Fulabhai Bhoi and ors.;babubhai Alias Abdulbhai and ors.
Appellant Advocate B.R. Shah, Adv.
Respondent Advocate S.N. Soparkar, Adv. for the Injured Claimant and; A.J. Patel, Adv. for the Owner
Cases ReferredGujarat Mineral Development Corporation Ltd. v. Varjubhai Lallubhai Bhil
Excerpt:
.....- physical condition of appellant taken in account - age of appellant considered while awarding compensation - third respondent to satisfy award passed for additional amount as directed. - - kansara's opinion, it was possible that the condition of the appellant may lead to complications like septicemia and stone formation. he further opined that the appellant would not be able to enjoy the act of coitus because there would be erection but no ejaculation, as the seminal fluid will move in a retrograde direction. kansara about the condition of the appellant as well as its prognosis, the respondents have made no attempt whatever to challenge this medical opinion. kansara replied that the success of such operations would be problematic as such operations are not done in gujarat...........would be problematic as such operations are not done in gujarat. despite the fact that dr. kansara stated that the appellant would permanently suffer a disability for sexual intercourse and in micturating,, the opinion was not challenged in his cross-examination. we emphasise this aspect of the cross-examination because it was argued before us that we should place no reliance on the testimony of dr. kansara and that in fact the claimant should have examined dr. k. n. shah, who performed the operation upon him on april 20, 1978. it is true that if dr. k. n. shah was examined before us, he might have thrown out more light about the appellant's condition, but his absence on the record does not necessarily imply that we cannot put any faith in dr. kansara's evidence. dr. kansara is.....
Judgment:

Shukla, J.

1. On September 10, 1977, Ramanbhai Fulabhai (a minor, the appellant) had gone to the field of Ramachandra Fulabhai Pandya (respondent No. 2) for labour work for agricultural purpose. At about 5.30 p.m., he was returning in a tractor driven by Babubhai alias Abdulbhai Daudbhai Vohra (respondent No. 1) and belonging to respondent No. 2. It was the case of the appellant that the tractor was being driven in a rash and negligent manner. Due to rash and negligent driving of the tractor by respondent No. 1, there occurred a big jolt on account of which the appellant, Ramanbhai, who was sitting at the rear of the trailer fell down, was crushed under the wheels of the trailer and sustained serious injuries resulting in permanent disability. The appellant filed a claim application through his guardian and next friend, Fulabhai Ganeshbhai Bhoi, bearing No. 53 of 1978, before the Motor Accidents Claims Tribunal, Kaira at Nadiad and claimed a sum of Rs. 30,000 which, vide Ex. 36 was later raised to Rs. 90,000. In the same claim application, the appellant impleaded the driver of the tractor as respondent No. 1, the owner of the tractor as respondent No. 2 and the insurer of the tractor, namely, the National Insurance Company, as respondent No. 3.

2. The respondents resisted the claim made by the appellant and contended that the accident on account of which the appellant suffered injuries was not caused by the negligence of respondent No. 1, and that the appellant himself was responsible for its occurrence. It was also contended that the claim was grossly exaggerated and that the minor did not suffer any permanent disability. On behalf of the insurance company, respondent No. 3, it was contended that it was not liable to compensate for the occurrence of the accident as the appellant was travelling by a vehicle which was primarily meant for carrying goods and not passengers. It was also contended that the appellant was injured by the negligence of a co-employee. It was also contended that it will not be liable as the risk was not specifically covered under the policy.

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3. Ramanbhai (aged about 17 at the time of his deposition) deposed before the Tribunal and stated that he was crushed under the wheel of the trailer after he fell down from the trailer. He was injured on his pelvic region. He was treated for two months at Nadiad and thereafter intermittently at civil hospital, Ahmedabad, for a total period of eight months. Even by that time, the appellant was neither cured nor did he stop the treatment. He stated that even on the day on which he was giving his deposition, his treatment continued under Dr. Jeswani. The appellant has stated that he is unable to micturate and is required to keep a pouch and catheter. He has also stated that he continued to suffer pain even till the date of his deposition. He stated further that he was required to get the catheter changed every 15 days and that each time it cost his Rs. 50. He has stated that his father had already spent about Rs. 3,000 for his treatment. Till the date of deposition the appellant was not married. It is very relevant to observe that on behalf of the respondents, not a single question was put to the appellant to challenge his veracity so far as the deposition in connection with the injuries and the consequent sufferings by the appellant were concerned. We have, therefore, no reason to discard the appellant's statement that although the treatment was protracted for over eight months, he was not cured of the injuries due to which, he suffered so much.

4. In this connection, we shall now read the evidence of Dr. Pradipkumar Jinabhai Kansara, Registrar in Urology, Civil Hospital, Ahmedabad. He has deposed that appellant, Ramanbhai, was admitted in his hospital on April 5, 1978, and was operated upon by Dr. K. N. Shah, the Uro Surgeon, on April 20, 1978. Dr. Kansara has deposed that the claimant suffered from stricture of urethra. The appellant was discharged from civil hospital, Ahmedabad, on May 12, 1978. Five days before Dr. Kansara gave evidence before the Tribunal, the appellant was again examined by him and Dr. Kansara found that the appellant was not able to micturate and supra-pubic catheter had to be fixed. He has also stated in his evidence that supra-pubic catheter had become a permanent fixture. In Dr. Kansara's opinion, it was possible that the condition of the appellant may lead to complications like septicemia and stone formation. He has categorically deposed that the disability suffered by the appellant was irreversible. He further opined that the appellant would not be able to enjoy the act of coitus because there would be erection but no ejaculation, as the seminal fluid will move in a retrograde direction. Thus, Dr. Kansara has deposed about the serious ailments suffered by the appellant on account of the injuries sustained by him. It is again pertinent to note that despite this unmistakable opinion of Dr. Kansara about the condition of the appellant as well as its prognosis, the respondents have made no attempt whatever to challenge this medical opinion. The only question which is put to him in this regard was whether the restricted portion of urethra could be replaced by a skin-grafting to which Dr. Kansara replied that the success of such operations would be problematic as such operations are not done in Gujarat. Despite the fact that Dr. Kansara stated that the appellant would permanently suffer a disability for sexual intercourse and in micturating,, the opinion was not challenged in his cross-examination. We emphasise this aspect of the cross-examination because it was argued before us that we should place no reliance on the testimony of Dr. Kansara and that in fact the claimant should have examined Dr. K. N. Shah, who performed the operation upon him on April 20, 1978. It is true that if Dr. K. N. Shah was examined before us, he might have thrown out more light about the appellant's condition, but his absence on the record does not necessarily imply that we cannot put any faith in Dr. Kansara's evidence. Dr. Kansara is no stranger to the appellant since he had not only admitted the appellant in the hospital but had also examined him. If the respondents felt that Dr. Kansara could not be relied upon for one reason or another, they should have assailed his say in his cross-examination and pointed out as to what were the reasons why Dr. Kansara was not a good witness for the appellant. No mala-fides are attributed to Dr. Kansara, nor has any shadow been cast on the question of ability on the part of Dr. Kansara to depose about the physical condition of the appellant.

5. However, we are not resting satisfied with the opinion of Dr. Kansara, but we also take into account the other medical opinion of Dr. D. I. Patel (Ex. 45) and Dr. Jeswani (Ex. 53).

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6. The appellants have further examined Dr. K. D. Jeswani, vide Exh. 53. Dr. K. D. Jeswani has deposed that from June 27, 1978, appellant, Ramanbhai, was under his treatment and that the appellant was admitted in his hospital as an indoor patient. It is stated in the certificate issued by Dr. Jeswani (Exh. 54) that the claimant had sustained complicated fracture of the pelvis. The urethra had also ruptured as a result of the fracture of the pelvis. The appellant was treated and operated for on various procedures at other places and the urethroplasty was also performed but it was not successful. It is further stated in the certificate that the appellant had a supra-pubic catheter kept through which the urine was passing out. It is further stated in the certificate that the natural passage of urine was totally closed. Dr. Jeswani opined in his certificate that from the then condition of the patient, it seemed that he would have to pull on with the supra-pubic catheter throughout his life. This would lead to many complications like recurrent urinary infections, stone formation and septicemia. It is in terms stated in the certificate that the appellant would not be in a position to enjoy sex as coitus would not be possible. Dr. Jeswani has also certified that the appellant also would not be able to do any labourious work in the presence of the supra-pubic catheter.

7. Dr. Jeswani is an M.S. and is practising as a consultant Surgeon. In his deposition, Dr. Jeswani stated that the contents of the certificate are correct. In his examination-in-chief, it is stated by him that the appellant would not be able to enjoy coitus as there would be erection but no ejaculation. He has also stated that the appellant will constantly feel discomfort and pain. He has also deposed that the use of the catheter would be a permanent feature. The catheter would be required to be replaced periodically which would cost the appellant Rs. 50 every time. Dr. Jeswani further stated that the boy would be useless for hard labour and that in his opinion external injuries may not be found but both the pubicrami may be fractured.

8. We find that the result of the medical evidence of the three doctors is quite consistent with one another. So far as Dr. Jeswani is concerned, there is no cross-examination whatever and so far as Dr. Kansara is concerned, nothing substantial has been brought out in his cross-examination which would adversely affect the appellant in his claim for damages.

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9. The Tribunal has taken into account the physical condition of the appellant and has awarded him Rs. 20,000 for the pain, shock, suffering and discomfort which the appellant suffered and which he will have to endure in future. The Tribunal has awarded a further sum of Rs. 25,000 for the permanent disability that that the claimant has suffered, including the social set-back and the loss of marital prospects. In other words, the Tribunal has awarded a sum of Rs. 45,000 as damages for the non-pecuniary loss. The Tribunal has also awarded a further sum of Rs. 22,500 as compensation for future pecuniary loss. So far as the medical expenses are concerned, the Tribunal awarded Rs. 6,000. Thus, the Tribunal totally awarded to the appellant Rs. 73,500 by way of compensation.

10. Mr. Soparkar, the learned advocate for the appellant, submitted before us that the Tribunal has not awarded adequately to the appellant for the non-pecuniary loss. He submitted that the claim for non-pecuniary loss is covered by the judgment of the Division Bench of this court consisting of P. D. Desai and S. B. Majmudar J. in First Appeal No. 1641 of 1979, A. S. Rajara v. Joitaram Revabhai [1982] ACJ (Suppl.) 1 (Guj.), which was decided under identical circumstances.

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11. While adjudicating the claim for damages for pain, shock and suffering and loss of amenities and enjoyment of life, Majmudar J. considered the relevant earlier judgments in order to award to the appellant-claimant adequate compensation. A detailed reference was also made to the English cases from 1952 onwards, and it appears to us that no useful purpose will be served by our treading the same ground again. Majmudar J. summed up the analysis of the Indian and the English Cases in the following words :

'A resume of the aforesaid awards of English courts leaves no room for doubt that accidental injuries which leaves serious effects on the victims who lose partially or fully their sex functions are considered as forming a class by themselves and for which a higher rate of damages by way of pain, shock and suffering has to be awarded, than in the case of mere injury or loss of a limb. It can also be observed that from 1952 onwards all throughout over a period of years, the trend in the awards of damages shows an upward rise, though in each case, assessment of damages would depend upon the age factor and the impact of the injuries sustained by the concerned victim. The aforesaid analysis shows that the courts in England have raised the awards in such cases under the head of non-pecuniary loss by almost five times between 1952 and 1977.'

12. Proceeding further, Majmudar J. observed as under :

'In other words, an integrated view of the totally of the after-effects of the manifold injuries must be taken so as to assess and award a lump-sum compensation for the pain and suffering, past present and future, and for the lost pleasures and enjoyment of life. It would not be proper to individually assess damages under this head qua each injury and then to aggregate the same and make a cumulative award under this head. There is a great risk of duplication in segregating and separately assessing compensation for the pain and suffering and loss of amenities and enjoyment flowing out of each injury. Only a total or overall view can insulate against overlapping.'

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13. There is no doubt that the injuries suffered by the claimant before us are identical and his case cannot in any way be distinguished from the case considered by the Division Bench. As a matter of fact, the appellant before us is hardly 20 years of age and he would have to suffer his misfortune for a long period of time. Mr. Soparkar was right in submitting before us that there was no reason why the claimant should get a lesser amount from the one that was awarded to the claimant by the Division Bench. We accept his submission and accordingly we award to the claimant Rs. 75,000 as damages under the head of pain, shock and suffering and loss of amenities and enjoyment of life instead of Rs. 45,000 awarded by the Tribunal. That means that the appellant would be entitled to get an additional sum of Rs. 30,000 on the ground of pain, shock and suffering etc., whereas the appellant has limited his claim to Rs. 16,500 only. We, therefore, allow First Appeal No. 630 of 1979 and award him his claim of Rs. 16,500 with interest at the rate of six percent per annum thereon from the date of the filing of the claim petition till payment or realisation and proportionate costs throughout. The respondents shall bear their own costs.

14. Before parting with this topic, we might observe that the appellant was also dissatisfied with the compensation awarded to him for the loss of future pecuniary benefits. However, Mr. Soparkar submitted before us that in view of our reassessment of compensation awarded to the appellant for non-pecuniary loss and in view of the further fact that, in any case, the claim limit in the appeal was reached, he did not press for the further claim of compensation for future pecuniary loss.

15. Having thus disposed of first Appeal No. 630 of 1979, we now proceed to consider the appeal files by the National Insurance Co., Baroda. Mr. B. R. Shah submitted three propositions before us : (1) the appellant-claimant was not covered by the policy at all and, therefore, the insurance company was under no liability to satisfy the award passed in favour of the company was under no liability to satisfy the award passed in favour of the claimant, (2) Even if the insurance company is found liable to satisfy the award, the liability will extend only to cover the compensation under the Workmen's Compensation Act since that only was the statutory liability of the company, and (3) even if the insurance company was found liable to pay under the Common Law, the liability would not exceed Rs. 50,000 as stipulated in the policy.

16. We cannot agree with Mr. B. R. Shah as regards his first argument because evidence on record clearly establishes that the claimant was covered by the statute as well as policy. The claimant, Ramanbhai, has stated in his evidence that on September 10, 1977, he had gone to work in the field of respondent No. 3, Ramachandra Fulabhai Pandya. In cross-examination, he stated that, 'I was working as a labourer in the field of opponent No. 2. The tractor was making the last run for the day. There were eight other labourers working in the field along with me. They were senior to me in age. I first left my bundle of ears-of-corn at my house and then we were proceeding to the house of opponent No. 2 for unloading the same. It is not true that I was engaged only for harvesting the crop. It is not true that I was not employed on the trailer.' This evidence finds support from the deposition of the driver, Abdulbhai Daudbhai (Exh. 56), who stated in his cross-examination, that 'the applicant was employed as a labourer and the bajra stalks were to be unloaded at the place of opponent No. 2. All the labourers were being carried in the tractor for the purpose of unloading the stalks at the place of opponent No. 2. The injured was also employed for the said purpose.'

17. Being an employee, he would be covered under the statute and as we shall note a little later, he is also found covered under the policy. Thus, we must reject the first submission of Mr. B. R. Shah.

18. The second submission of Mr. B. R. Shah must also be negatived in view of a specific term added in the policy by an endorsement which runs as under :

'In consideration of the payment of an additional premium, it is hereby understood and agreed that notwithstanding anything contained herein to the contrary, the company shall indemnify the insured against his legal liability under :

The Workmen's Compensation Act, 1923, and subsequent amendments of that Act prior to the date of this endorsement, the Fatal Accidents Act, 1855, or at Common Law,

in respect of personal injury to any paid driver (or cleaner or conductor or person employed in loading and/or unloading whilst engaged in the service of the insured in such occupation in connection with the ... M/V ... and will in addition be responsible for all costs and expenses incurred with its written consent.

The premium having been calculated at the rate of Rs. 5 per driver (and/or cleaner or conductor and/or person employed in loading and/or unloading) the insured shall certify at the expiry of each period of insurance the maximum number of drivers and/or cleaners and/or conductors and/or persons employed in loading and/or unloading employed at any one time during such period in connection with the ... M/V ... belonging to him and the premium shall be adjusted accordingly.'

19. We have seen above that the evidence discloses that at the relevant time, the claimant was employed in connection with the loading and/or unloading in the service of the insured. The endorsement indicates an additional liability to indemnify the insured against the legal liability under the Workmen's Compensation Act, 1923, and subsequent amendments to that Act prior to the date of the endorsement, the Fatal Accidents Act or at Common Law. Since the additional liability to pay compensation under the common law is undertaken by the insurance company, vide this endorsement, we cannot accept Mr. B. R. Shah's submission that the insurance company was liable only to the extent of the compensation that may be found payable under the Workmen's Compensation Act.

20. So far as the third submission of Mr. B. R. Shah is concerned, he submitted an argument which it seems was not advanced at any previous stages of the case. Mr. Shah submitted that this wider coverage undertaken by the endorsement must be read under s. 2, liability to third parties, in place of clause (b) to the proviso and if that be so, it would not cover the liability of the insurance company which is specified in the Schedule. We cannot accept this submission of Mr. B. R. Shah for the following two reasons :

21. In the first place, this extra coverage cannot be read as a part under s. 2, liability to third parties, as it is added at the end of the entire policy inclusive of the Schedule. Secondly, the wording of the extra coverage itself specifies that in consideration of the payment of an additional premium and notwithstanding anything contained 'herein', the company shall indemnify the insured as stated in the endorsement. The word 'herein', therefore, makes the position very clear. It means that the coverage was to apply notwithstanding anything stated in the policy which would mean the entire policy inclusive of the schedule.

22. We, therefore, cannot accept any of the three arguments submitted before us by Mr. B. R. Shah. We find that in the case of Gujarat Mineral Development Corporation Ltd. v. Varjubhai Lallubhai Bhil, AIR 1979 Guj 26; [1979] 20 GLR 123; [1979] ACJ 186, there was a similar extra coverage and the learned judges have taken the same view of the matter as we have done. It was observed therein as under (p. 33 of 1979 AIR) :

'Though under s. 95(1), proviso (i) of the M.V. Act, the policy was statutorily required to cover liability in respect of the death of, or bodily injury to, any employee of the insured arising out of and in the course of his employment, if such employee was carried in the goods vehicle, only to the extent of the liability arising under the Workmen's Compensation Act, 1923, the insurance company in the present case had offered a wider cover to the insured under the policy in question in consideration of the payment of an additional premium.'

23. We find such an additional liability undertaken by virtue of the extra coverage which has been referred to above. It is, therefore, apparent that in view of this wider coverage, the insurance company must reimburse the appellant in respect of the entire liability arising out of the accident in question. However, in the reported case, the claim of the claimants was within the limits stipulated in the policy and, therefore, it was not required to be considered about the unlimited liability of the insurers, if it is so found in the policy. The endorsement quoted by us above shows that the insurance company had undertaken an unlimited liability under the Common Law and, therefore, the submission of Mr. B. R. Shah that the insurance company was liable only to the extent of Rs. 50,000 has to be rejected.

24. No other argument was urged before us by Mr. B. R. Shah.

25. In the result, First Appeal No. 196 of 1979, filed by the insurance company is dismissed with no order as to costs.

26. Since we have allowed First Appeal No. 630 of 1979, as stated above, we now direct that respondent No. 3, the National Insurance Company, shall satisfy the award passed by us for the additional amount as directed under the order above by depositing it in the court of the Tribunal within 12 weeks hereof. We further direct that the Tribunal shall invest the entire amount inclusive of costs and interest deposited in the Tribunal in a fixed deposit receipt with any scheduled bank initially for a period of three years. The amount shall lie invested totally for a period of ten years from the date of deposit. The investment shall be made in the name of the Tribunal or any of the officers authorised by the Tribunal and the fixed deposit receipt shall continue in the custody of the Tribunal. The concerned bank shall be directed that no advance shall be paid on the security of the fixed deposit receipt. The claimant shall have liberty to apply to the Tribunal for the release of an appropriate amount in case of an exigency. The interest accruing on the investment shall be paid to the claimant.


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