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Bhaskarbhai Khandubhai Desa Vs. Remanial Nathubhai Patel and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 707 of 1976
Judge
Reported inAIR1978Guj158
ActsMotor Vehicles Act, 1939 - Sections 96(1) and 110-B
AppellantBhaskarbhai Khandubhai Desa
RespondentRemanial Nathubhai Patel and ors.
Appellant Advocate V.M. Chokshi and; H.D. Karnik, Advs.
Respondent Advocate S.B. Vakil, Adv.
Cases ReferredRanjitsingh v. Meenaxiben
Excerpt:
- - the appellant would be unable to sit like a normal person continuously for six hours. though the appellant was residing in a village, he belongs to the anavil community where standard of education and prospects of profitable settlement in life can be reasonably rated to be good. 50,000/.-the insurance company would also be liable to make good the amount awarded......the permanent partial disability was to the extent of 20 per cent. we have there pointed out that damages awarded for pain and suffering and loss of amenities and enjoyment of life constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. the particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, are reflected in the actual amount of. the award. the fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points on the pattern where the disability is readily identifiable and not subject to large variations in individual cases. in that case, we awarded damages.....
Judgment:

P.D. Desai, J.

1-2. xxxxxxxx

3.. The claimant-appellant is the injured person and the claim for compensation atom out of an accident which occurred on Oct 10, 1974 at about 5 or 5-30 P. M. or, National Highway No. 8 near the spot where the road from village chalthan meets the Highway. The appellant, aged about 12 or 13 at the material time was residing at village Kadodra with his maternal uncle. Village Chalthan is at a distance of about of 3 furlongs from village Kadodra. There is a High School in village Chalthan and the appellant was studying in the said High School. On the day in question he was returning from the High School and going to his maternal uncle's house at village Kadodra. He was in the company of about 6 or 7 school mates. A truck bearing No. GTG 8706 owned by the first respondent and driven by the second respondent came from behind and knocked down the, appellant. it appears that at the spot of the accident there was a mile-stone and that the appellants legs, were crushed between the vehicle and the mile-stone against which the truck ultimately dashed. The appellant was taken to the Civil Hospital at Surat for treatment He was hospitalized therefrom Oct 10,1974 to Oct. 23, 1974. The appellant was then removed to the Vadilal Sarabhai Hospital at Ahmedabad where he was admitted on Oct. 24, 1974. The appellant was confined to the hospital up to March 12, 1975. The appellant was again admitted in the vadilal Sarabhai Hospital on April 15, 1975 and discharged on October 10, 1975. There was a further period of confinement in the same hospital from Nov. 27, 1975 to Jan. 13, 1976. On Feb. 21, 1976 the appellant was again admitted in the same hospital and he was in the hospital on March 6, 1976 on which day Dr. M. Desai, an Orthopaedic Surgeon, under whose treatment the appellant was all throughout the period of hospitalization at Ahmedabad gave his evidence at the trial During this entire Period of hospitalization, the appellant was given intensive treatment and he underwent surgical operations. On the day on which Dr. Desai gave his evidence, he estimated permanent disability in the right leg to the extent of 50 to 55 per cent and 10 to 15 per cent in the left leg. According to the doctor, the appellant needed further treatment for a period of one year and even after taking, such treatment. the difference in the permanent disability would be Only to the extent of 5 per cent.

4. The appellant filed the claim petition out of which this appeal arises on March 21, 1975. In the claim petition, the appellant claimed total compensation in the sum of Rs. 80,000/-. The claim was broadly split up under two heads: first, an amount of Rupees 15,000/- was claimed as special damages for expenses already incurred on medical treatment, diet and transportation charges, and, secondly, the balance amount of Rs. 65,000/- was claimed as general damages for pain and suffering, loss of amenities and enjoyment of life, social discomfiture, loss of career and prospective earning capacity and costs of future nursing, etc.

5. The Tribunal, upon appreciation of evidence on record, came to the conclusion that the truck in question was being driven at the material time by the second respondent in the course of his employment and that the accident occurred on account of his rashness and negligence. As regards compensation, the Tribunal awarded Rs.6000/- for pain and suffering, for Rs.8000/- for medical expenses and Rs.9000/- for prospective economic loss. In all, as earlier started, an awarded in the sum of Rs. 23,000/- was accordingly made.

6-12. x x x x

13.The evidence d1sciussed above, which we accept unhesitatingly, establisher that the injuries received by the appellant in the course of the accident were extensive and that their aftereffects will persist throughout the life of the appellant. The appellant's evidence that he was not in a position to place his left leg on the ground and that his right leg had become totally useless has gone unchallenged. Dr. Desai's evidence establishes that on Oct. 24, 1974 when he examined the appellant for the first time, he found one contused lacerated wound of large size on each leg exposing the muscles and other parts below the injuries. The right forefoot was hanging with help of some of the muscles on its plantar side and the viability of the foot was doubtful. Besides, there was fracture dislocation. Several operations had to be performed during the four periods of hospitalization. Skin grafting was done. Even on the. date of the deposition of Dr. Desai, that is to say, on. March 6, 1976 there was extensive painful scar over the left leg with mild killoid formation. There was 5 degrees of equinus deformity of left ankle The right ankle and foot were completely stiff and in a deformed position and there was a painful adherent scar and ulcer of 1' x 1'. Toe movement was only of few degrees. There was half an inch shortening of right leg. Even on March, 6, 1976, the appellant was in hospital and a g to Dr. Desai, he would require treatment for one year more. The appellant was unable to stand bearing any weight on right foot. Even after the reconstructive surgery, he would not be in a position to, bear weight for more than 30 to 40 minutes. The limp would be permanent and there was likely to be repeated break-down of scar. The appellant would not be able to run or stand for a long time. He would have difficulty in normal walking. There was likely to be still greater shortening of the right leg. He would be required to, wear a special surgical boot and would require support for rest of his life. The permanent disability was 50 to 55 per cent in the right leg and about 10 to, 15 per cent in the left leg, with a possibility of difference of 5 per cent only even after further treatment. The appellant would be unable to sit like a normal person continuously for six hours. He would have to suffer pain and repeated break-down of the scar even after successful treatment throughout his life. Even if proper care was taken, the pain would persist. this evidence will have its own bearing on the assessment of damages under various heads.

14-17. x x x x x x x x

18. Then comes the claim for damages under the various heads such as pain and suffering, loss of amenities and enjoyment of life, social discomfiture, loss of career, prospective earning capacity and cost of future nursing, etc. So far as this claim in the sum of Rs. 65000/- is concerned, the Tribunal has awarded Rs. 6000/- for pain and suffering (past, present and future) and Rs. 9000/- for future economic loss. So far as the future economic loss is concerned, the Tribunal was of the view that the disablement of the appellant would result in diminishing his earning capacity by Rs. 50/- per month and that the annual loss would, therefore, be to the tune of Rs. 600/-. The Tribunal applied the multiplier of 15 and arrived at the figure of Rs. 9000/- as the proper amount of damages for prospective loss of earning. The question is whether the Tribunals award under these two heads is just and proper.

19. We shall first deal with the award for pain and suffering. Recently we had an occasion to consider this question in Babu Mansa v. Ahmedabad Municipal Corporation First Appeal No. 1030 of 1978 decided on 5-4-78: (Reported in AIR 1978 Guj 134). We were there dealing with a claim under the head of pain and suffering and loss of amenities and enjoyment of life in the case of a boy aged 15, who had suffered permanent injury on the right leg which had resulted in the shortening of the leg by 1/2 c. m. and other injuries. The medical evidence in that case was to the affect that the permanent partial disability was to the extent of 20 per cent. We have there pointed out that damages awarded for pain and suffering and loss of amenities and enjoyment of life constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the Courts in the light of previous decisions. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, are reflected in the actual amount of. The award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points on the pattern where the disability is readily identifiable and not subject to large variations in individual cases. In that case, we awarded damages in the sum of Rs. 15,000/- as a conventional global amount having regard to the permanent handicap in a vital limb in the case of a young boy of 15. In terms we held that that was the bracket of damages into which that kind of injury would currently fall in similar cases. Herein also we are concerned with a young boy aged 12 or 13. The injury which he has sustained is also in the right leg and it has left its permanent sear. However, as against the permanent partial disability to the extent of 20 per cent assessed in Babu. Mansa's case, herein, according to the medical evidence, the permanent disability is to the extent of 50 to 55 per cent, so far as the right leg is concerned. There has been much more prolonged period of hospitalization and more, intensive treatment, including surgical operations. Pain and suffering have been on a much higher scale. There has been shortening of the right leg by half an inch and, according to Dr. Desai, there is every likelihood of further shortening of the said leg. Besides, the appellant would suffer pain and repeated break-down of scar even after successful treatment throughout the life besides other physical handicaps. This, however, is not the only injury. The appellant has also sustained an injury on the left leg. Dr. Desai has deposed that even on the day of his deposition, there was an extensive sear with mild killoid formation on the said leg. The injury was painful and there was five degrees of equinus deformity of left ankle. The permanent disability. so far as the left leg is concerned, was assessed at 10 to 15 per cent. This case, therefore, stands in a category different from Babu Mansa's case. Herein, though we are concerned with a young boy more or less of the same age, the injury is not in one leg but in two legs bringing in its, trail permanent disablement. Besides, the extent of permanent disablement is also on a higher scale. Therefore the appellant is bound to have a more severe handicap resulting in greater restriction of movement. The social discomfiture is also likely to be on a higher scale. The period of hospitalization has been more extensive. Besides, there has been the loss of two or three years in the academic career. The appellant appears to be' brilliant and this loss too must have left its own scar on the mind of this young boy. If all these factors are taken into account, it is difficult to appreciate the award in the sum of Rs. 6000/- . made by the Tribunal. Even in Ranjitsingh v. Meenaxiben (1972) 13 Guj LR 662, the conventional amount for pain and suffering in our country was found to be Rs. 10,000/-. As pointed out in Babu Mansa's case, the fall in the value of money since the decision in Meenaxiben has also to be taken into account. In our opinion, therefore, the award is grossly inadequate and the conventional global award under the head of pain and suffering and loss of amenities and enjoyment of life will have to be made herein the sum of Rs. 22,500/- This, in our opinion, is the bracket of damages in which this kind of injury involving two vital limbs will currently fall in similar cases. The award under this head, therefore, will have to be raised from Rs. 6000/- to Rs. 22,500/-.

20. Then comes we award under the bead of general damages for future economic loss and the cost of medical treatment and services which will have to be provided to the appellant because of his physical needs attributable to the accident. In this connection, it requires to be borne in mind that the evidence on record discloses that the appellant was a bright student. He was at the time of the accident studying in 8th Standard. He stood first in all the, examinations except two. He secured fifth rank in 6th Standard because he was laid down with typhoid and in 7th Standard he stood third. Though the appellant was residing in a village, he belongs to the Anavil community where standard of education and prospects of profitable settlement in life can be reasonably rated to be good. The appellant deposed that it was his ambition to be a lawyer, doctor or engineer. There is no reason to believe that he would not have been able to attain this goal had he not met with this unfortunate accident. Even if he still attains the qualifying degree for such professional career, the severe physical handicap suffered by him is bound to come in his way in making a successful career. His earning capacity is bound to he affected by his physical handicap. A person requiring support for the rest of his life, who cannot stand or sit for a long time or walk normally and who is likely to be subjected to recurring painful trouble at the site of injury cannot ordinarily be expected to earn what a successful lawyer, doctor or engineer would do. In our opinion, even on a modest scale, the loss of earning capacity should be estimated to be Rs.150/- per month on the facts and in the circumstances of the case. The Tribunal's estimate of Rs.50/- is totally unrealistic. Accordingly, the annual loss would be in the sum of Rs.1800/-. It would be just and proper to take the multiple of 15 which the Tribunal has adopted in the facts and circumstances of the case, Accordingly, the appellant would be entitled to compensation in the sum of Rs. 27000/- under this sub-head.

21. The compensation under this head however, is not confined merely to the loss of earning capacity, It must also include the cost of future medical treatment and services for such period as the appellant reasonably requires them. Dr. Desai has deposed that the appellant would require hospitalization for a further period of one year. In fact, after the appellant's deposition was recorded on Jan. 28, 1976, he was again admitted in the hospital and he was in the hospital when Dr. Desai's deposition was recorded on March 6, 1976. Dr. Desai's evidence also discloses that considerable expenses might still have to be incurred in providing medical treatment to him. Then there is the provision to be made for services which the appellant would require. Those services may be rendered gratuitously by his parents and other relatives. Even then, the appellant would be entitled to claim compensation for the same on the basis of the reasonable costs of such services. The appellant, according to Dr. Desai, would be required to use surgical boot for the rest of his life. Provision must also be made for the, same. In our opinion, having regard to all. these factors and in the light of the award in the sum of Rs.15000/- made by us as i special damages up to the date of the trial' under this sub-head, it would be just reasonable and proper to award compensation in the sum of Rs. 9000/- for the cost of medical treatment and services after the date of trial.

22. On the aforesaid basis, the appellant would be entitled to total compensation in the sum of Rs.36000/- under this head.

23. We may now summarize the effect of our decision in respect of damages under the aforesaid three heads. We will indicate in the table set out below the additional award made by us under each of the heads:-

Rs. 700/- : Medical treatment, transportation charges, costs of attendance diet, etc.Rs 16500/- : Pain and suffering and loss of amenities and enjoyment of life.Rs. 27000/- : Loss of earning and cost of medical treatment and attendance.__________Rs. 50500/-__________

The appellant will accordingly be entitled to additional compensation in the sum of Rs. 50,500/- with interest at the rate of 6 per cent per annum from the date of the claim petition and proportionate costs throughout. In its award, lie Tribunal has directed that the appellant would be entitled to recover the awarded amount from respondents Nos. 1 and 2 (owner and driver) who, in their turn, should be indemnitied by respondent No. 3 (Insurance Company). This direction, in our opinion, is contrary to the provisions of S. 96 (1) of the Motor Vehicles Act, 1939. Subject to the terms of the policy and not exceeding the sum assured, the Insurance Company is liable in respect of the award as if it is the judgment-debtor. In the present case, the Insurance Policy, Ex. 383, shows that the limit of the Insurance Company's liability was Rs. 50,000/.-. Therefore, to the extent of Rs. 50,000/.-, the Insurance Company would also be liable to make good the amount awarded. The Insurance Company would also be liable to pay proportionate costs and interest on the sum of Rs. 50,000/-. Out of the additional amount awarded by us, the respondent No. 3 will deposit with the Tribunal within two months from today an amount equivalent to, its liability determined as aforesaid. The balance amount will be deposited by respondents Nos. 1 and 2 within the same period. Out of the amount so deposited, the Tribunal will pay to the father of the appellant a sum of Rs.10,000/.- in order to reimburse him in respect of the costs of medical treatment, etc. incurred so far and which might have to be incurred in future. The Tribunal will arrange to have the balance amount, minus costs and interest, deposited in a fixed deposit with a nationalized Bank for a period of 61 months, with the condition that the appellant or his guardian will not be entitled to withdraw the amount before the due date nor will it be open to them to raise any loan against the, sod fixed deposit without the prior permission of the Tribunal. Till the fixed deposit matures the guardian, of the appellant will be entitled to receive only interest accruing due from time to time for the maintenance, and education of the appellant. The amount of costs and interest will be paid over to, the guardian ad the appellant for meeting the costs of this litigation and other incidental expenses. There will be no order as to the costs of the respondents.

24. Order accordingly.


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