Full Text
CIVIL APPELLATE JURISDICTION
FIRST APPEAL (ST) NO.31875 OF 2018
Reliance General Insurance
Company Limited
]
] Appellant
Mahendra Kadam as Natural
Guardian and Next Friend & Anr.
] Respondents
…
Mr.Rahul Mehta i/b KMC Legal Venture for the Appellant.
Mr.T.J.Mendon for the Respondent No.1. ...
JUDGMENT
1. By the present appeal, the Reliance General Insurance Co. Ltd. question the legality and validity of the Judgment and Award passed by the Motor Accident Claim Tribunal, Mumbai on an application fled on behalf of the applicant-Master Siddhant, aged 10 years through his mother, a natural M.M.Salgaonkar guardian and next friend. The application came to be granted, by holding the opposite party and the Insurer to be jointly or severely liable to pay compensation of Rs.33,48,670/- (Rs.Thirty Three Lakh Forty Eight Thousand Six Hundred Seventy only) to be paid to the Applicant, with interest, for the injuries sustained by him in the accident.
2. Heard the learned counsel Mr.Rahul Mehta for the Appellant and the learned counsel Mr.Mendon for the In fling the appeal, there is delay of 87 days, which is sought to be condoned by Civil Application No.4223 of 2018. Since the delay is not seriously objected by the learned counsel for the Respondent/Claimant and, being, suffciently explained in the application, I come to the conclusion that the delay is bona fde and, since, it is procedural, it is condoned. Upon condonation of delay, the learned counsel for the respective parties expressed that the appeal deserves to be taken up for hearing urgently, since the Applicant, who sustained injuries in the accident has resulted into paraplegic and he is bed-ridden. He is in dire need of money, for the follow-up treatment and incidental expenses. The aforesaid position, being brought before me and since not denied by the learned counsel for the Appellant with the compilation of documents already on record, the appeal can be heard fnally, at the stage of admission. Upon the consensus being expressed, I have taken up the Appeal for fnal hearing.
3. 10/04/2010 happened to be the most unfortunate day in the life of Master Siddhant Mahendra Kadam, who was travelling in a motor car bearing registration No.MH-04-CE- 5956 on Mumbai Goa Highway from Kandivli towards Ratnagiri. He was accompanied by his mother Smt.Jayashree and brother Pratik. The vehicle was registered in the name of the claimant’s father Shri Mahendra Kadam. When the car reached at Mangaon, District Raigad, Pratik who was driving the vehicle, lost control over the wheels, as the car was being driven in a high and excessive speed and when he attempted to apply brakes to slow down, the car turned turtle and the minor, Master Siddhnt sustained serious head injury and become unconscious. He was immediately shifted to Raut Hospital at Mangaon, but considering the gravity of injuries sustained by him, he was advised to be shifted to a multispeciality hospital and that is how, his journey continued from one hospital to other, spread over a period for about fve months. The Applicant was in coma for a period of about one month and there were moments of great concern for his family, when he was required to be pulled out from the jaws of death by performing numerous operations. He was required to be treated by different specialists i.e. Neurologist, Epileptologist, Psychologist, apart from various consulting surgeons. The said accident left him crippled and even as on date, he is unable to perform his day-to-day activities and require assistance. At the time of accident, Master Siddhant was 10 years’ old and had passed 4th standard from Thakur Vidyamandir High School, Kandivli by securing excellent marks. An active, blissful life turned into a passive, distressing one, compelling him to give up his education, since, he was diagnosed with a permanent partial disability to the extent of 75%.
4. A claim came to be instituted for compensation under Section 166 of the Motor Vehicles Act by Master Siddhant through his mother before the M.A.C.T., Mumbai. In the application, his own father Shri Mahendra Kadam, the owner of the vehicle was impleaded as Party No.1 and, since, the vehicle was insured with the Appellant, the Insurance Company came to be impleaded as respondent No.2. On being noticed, respondent No.1 chose to remain absent, but the Insurer (Appellant) contested the claim by fling the written statement (Exh.40) and the claim was opposed on ground of non-joinder of necessary party and also attributing rash and negligent driving of the offending motor car driver. Defence of breach of the terms and conditions of the policy was also pressed in service, since the driver of the vehicle was not holding valid and effective driving licence and it was specifcally pleaded that he was holding licence of a light motor vehicle (LMV). Since he was driving the offending vehicle, which he was not authorised to do so, the liability was sought to be avoided. Apart, the claim of the Applicant about the percentage of disablement was also denied.
5. In the wake of the rival pleadings placed for consideration before the Tribunal, it proceeded to determine the issue, whether the Applicant proves that on 10/04/2010, in the jurisdiction of Mouje Repoli at about 9.30 hrs. on Mumbai Goa Highway, he sustained injuries in an accident, which occurred due to rash and negligent driving of the motor car bearing No.MH-04-CE-5956. The additional issue was also framed to the effect as to whether the Insurer proves that the driver of motor car was not holding valid and effective driving licence at the time of accident.
6. The Claimant proved his claim by examining 12 witnesses, including his mother/natural guardian Smt.Jayshree Kadam, who was accompanying him in the motor car, when it met with the accident. Smt.Jayashree, fled her affdavit in lieu of oral evidence, in support of the claim for compensation of Rs.25,00,000/-. She gave the frst hand version of the accident, since she was also travelling in the vehicle, which turned turtle since the driver of the vehicle attempted to apply the brakes, but was unsuccessful. Smt.Jayashree narrated the woes of her son Siddhant, who was taken to the hospital in Mangan, then shifted to Suraj Hospital, Navi Mumbai where he was admitted from 10/04/2010 to 15/04/2010. She deposed that he was thereafter shifted to Lilavati Hospital & Research Centre, Bandra and was treated as indoor patient from 15/04/2010 to 18/05/2010 and, thereafter transferred to B.C.J. Hospital, Santacruz as an indoor patient from 18/05/2010 to 11/08/2010. She deposed about the trauma undergone by the young boy, as well as the entire family, since the Applicant was in coma for about one month. She also explicitly deposed about the present status of the Applicant and as to how the accident has impeded his normal movements and that he is unable to even perform his daily chores, without any assistance. She specifcally deposed that her son is unable to do any act independently, which has compelled her to arrange for a attendant to take care of him for the whole day and for which, she has to incur expenses of Rs.11,000/- per month.
7. A.W.1, the mother of the Claimant, brought on record the documents pertaining to the investigation, which included the FIR, spot panchnama, insurance policy etc. She also produced on record the original cash memos/receipts issued by various hospitals, chemists, doctors, pathologists, ambulances, specialists total 560 in original, amounting to Rs.14,77,067/alongwith the statement of expenses. She also narrated the hardship faced by her in persuading the follow-up treatment of her son in the following words:- “I further state that even till today, I am required to take my Son to the various Consultants, very often I take him to Pune for the treatment of Dr. Nandan Yardi, MD, EPILEPTOLOGIST. I have spent more than Rs.1,00,000/- on conveyance for attending various Doctors and Pathologist and C.T. Scan centers etc. I have also spent more than Rs.50,000/- on special diet as he was unable to take normal diet for the period of about 3 years. I further state that I was also compelled to take leave for the period of about Five months from my employer since the date of accident till September 2010. I am working with altima Hi-Tech Pvt Ltd. As a Accounts Manager. My salary in the year 2010 was Rs.25,000/- per Month. My employer paid half of the said salary i.e. Rs.12,500/- for the said absenteeism. Today I am producing certifcate issued by my employer for the same.”
8. In paragraph 4, she depose as under:- I state that applicant Master Siddhanth is my only child. I myself and my husband also take his care at night time. I further state that in spite of giving better treatment to my Son till date his overall behavior and general intelligence is of less than 7 years of child. The Siddika Panjwani, Clinical Psychologiost, has assessed his condition as under:- Basal Age 3 Years Terminal Age 7 Years Mental Age 4 years and 4 Months I.Q. 28 Social Age 3 Years and 6 Months Cronological Age 15 Years and 4 Months Social Quotient (SQ) 23
9. In the cross-examination, the witness admit that the car was being driven at the speed 90 to 100 km per hour and she was sitting on the rear seat of the car and her son was sitting next to her. She categorically admitted that there was no vehicle travelling ahead of their vehicle nor any pedestrian cut their way. Nothing of much signifcance was extracted by the counsel for the Appellant from her cross-examination, so as to discredit her.
10. In support of the claim, the Claimant also examined other witnesses to prove the indoor papers, hospital bills and reports of treatment of the Applicant in various hospitals. The witnesses, on referring to the original bills/receipts issued by the hospital in respect of the patient, proved the same. A.W.[3] is a witness attached to BCJ Hospital & Asha Parekh Research Centre. A bio-statistician from Lilavati Hospital was examined to prove the indoor treatment papers of Siddhanth, who was treated in the hospital from 15/04/2010 to 18/05/2010. He was confronted with the original bills and receipts of Lilavati Hospital and he brought on record the fnancial statement dated 18/05/2010. A.W.[4] proved the medical papers from Kokilaben Ambani Hospital where Siddhanth was treated from 17/08/2015 to 19/08/2015 and he deposed that the patient is still attending the OPD. Apart from this, an Assistant Manager (Billing) from Dr.Balabhai Nanawati Hospital was examined as witness (A.W.5) since the Applicant had attended OPD in the said hospital for CT Scan and MRI of brain and EEG CT Scan and for consultation of Neurologist in the said hospital. Medical Records Offcer of P.D.Hinduja Hospital was examined as A.W.6, since the Applicant attended OPD under consultation of a Neurologist working there.
11. Dr.Pankaj Tripathi, attached to Suraj Hospital, Navi Mumbai where the Applicant was admitted also stepped into the witness box. He deposed about the patient being admitted in his hospital from 10/04/2010 to 15/04/2010, when he was transferred to the other hospital. He proved the hospital charges incurred during the said period. Dr.Vinayak Kale, working as Head of Psychiatric Department to Grant Medical College, stepped into the witness box as.A.W.12. This witness had issued the disability certifcate to the Applicant on 07/06/2017, after perusing the medical papers of his treatment. He specifcally deposed about the mental assessment of the Applicant in the following words:- “2. Siddhant Kadam was then examined by Clinical Psychologist- Swapnil Bhopi for IQ test in my department. In IQ test, he performed 40 points. Normal IQ remains above 70. As per test conducted his mental age was 8 years. As per clinical fndings, he has to depend on others. Accordingly, a computerised IQ report was prepared under signature of Dr Swapnil Bhopi. I have attested photostate copy of it as a true copy under my signature. Its contents are correct (marked Exh 72). I have verifed the original report at Department.
3. ….
4. ….
5. After these reports, we prepared disability certifcate. I am referring to disability certifcate dtd.20/06/2017. It is issued by Medical Board of which I am one of the Member. Siddhant Kadam was diagnosised for IQ equivalent 40 moderate mental retardation 75% permanent, progressive not likely to improve disability. I say that contents of disability certifcate are true and correct (marked Exh 75).” In the cross-examination, he state as under:- “7. I say that patient was lastly discharged from Kokilaben hospital in the year 2010 and till my examination on 07/06/2017, there was no improvement in his health. While issuing disability certifcate, we are not referring any previous treatment papers, it is our independent assessment of disability. Disability of 75% relates to brain-intellectual disability. I do not agree that it does not relate to occupational disability. I do not agree that patient will improve during future treatment.”
12. The Principal of Thakur Viday Mandir High School, was also examined as a witness, who narrated that, Master Siddhant was a bright child and had cleared standard 4th examination and on hearing the news of accident when the teachers visited him, he was not able to identify them.
13. The entire evidence brought on record in support of the claim, was coupled with a disability certifcate issued by Dr.Nayak and it is certifed that he has a permanent partial disability of 75%. The disability certifcate certify as under:- “A follow up examination after about one and half year, shows that the child is totally dependent in all his activities of daily living. He is conscious and alert and can speak a string of words not constituting any meaningful sentences. He can walk a few steps but remains signifcantly ataxic and needs supervision even while going to toilet. His bladder and bowel functions are only partially (now about 25% controlled) improved. He can not perform any skilled motor task, reading, writing, playing games, etc. He cannot eat by himself, take bath or wear his clothes or take medicines independently. His gait is clumsy and 'L' upper and lower limbs remain spastic. However his vision and hearing seem adequate. He does not follow commands consistently and frequently. He is restless and occasionally aggressive and distractive. He is on anti epileptic medication which may have to be continued for many years and family has to observe seizure precautions,”
14. Another certifcate produced on record is the certifcate of mental retardation issued by Sir J.J.Group of Hospital and Grant Government Medical College, Mumbai, on 20/06/2017, which has diagnosed the disability of Siddhant to be moderate and his condition as, ‘permanent progressive, not likely to improve’.
15. The Appellant, also examined one Sanjay Lad, a Junior Clerk with RTO Mumbai at Andheri Offce, who has produced an extract of driving licence of Pratik Kadam and he has deposed that on 10/04/2010, Pratik Kadam was not authorised to drive passenger type vehicle, but was only authorised to drive LMV transport vehicle.
16. The aforesaid evidence brought on record is self evident and the learned Judge has rightly appreciated the same in light of the cross-examination, at the instance of the Appellant- Insurance Company.
17. The learned Judge carefully scrutinized, the evidence placed before him and dealt with the submissions advanced on behalf of the Appellant, particularly about thebreach of policy and the fundamental defect, which would permit avoiding the liability by the insurer. By relying upon the decision of the Hon’ble Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance CO. Ltd. [ 2017 ACJ 2011 (SC)], the Tribunal rejected the said objection and I will turn to the same a little later.
18. As far as the compensation is concerned, by relying upon the disability certifcate as well as the certifcate produced on record, assessing the disability of the Applicant at 75% relating to his intellectual defciency, being progressive, the Tribunal drew an inference, that the Applicant would require support throughout his future life from parents and, therefore, awarded compensation of Rs.33,48,670/-. While computing the compensation, his notional income is taken as Rs.6,000/per month, since he was not having any independent earnings but was dependent on his parents. By applying the multiplier of 15 and by calculating the loss of future prospects to the extent of 40%, his income was computed as Rs.8,400/- and taking disability at the rate of 55%, the loss of income was computed as Rs.8,31,600/-. The aforesaid amount was further topped up by amount of Rs.1,00,000/- towards pain and sufferings, Rs.1,00,000/- for loss of amenities and Rs.2,00,000/- towards loss of marital prospects and lumpsum amount of Rs.50,000/- towards future attendant charges and Rs.25,000/- for extra nourishment and transportation. The actual expenses incurred towards hospital and OPD expenses were also granted apart from the attendant charges.
19. The award of the compensation as above, in favour of the Applicant, is assailed in the present appeal, basically on three counts, as sought to be projected by the learned counsel Mr.Mehta. The frst ground being, whether the compensation could have been awarded, when a person holding a driving licence to drive light motor vehicle was driving a motor car for which he was not licenced and it causes an accident. A far as the said objection is concerned, I may gainfully refer to the decision of the Hon’ble Supreme Court in Mukund (supra) where the said conundrum is put to rest, by holding that no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class and the licence issued under Section 10(2)(d), continues to be valid even after the amendment inserted in the Motor Vehicles Act in the year 1994. In it’s exhaustive authoritative pronouncement, the Hon’ble Supreme Court, by referring to the various formats/applications and licences, has held as under:- “23. The State Government has to maintain a register of motor vehicles under rule 75 as provided in Form 41 which includes gross vehicle weight, unladen weight, etc. The Central Government has the power to frame rules under section 27, inter alia, regarding minimum qualifcation, forms and contents of the licences, etc. Thus, we are of the considered opinion that the defnition of 'light motor vehicle' under section 2 (21) of the Act includes transport, vehicle of the class and weight defned therein. The transport vehicle or omnibus would be light motor vehicle, gross vehicle weight of which, and also a motor car or tractor or road-roller, unladen weight of which, does not exceed 7,500 kg and can be driven by holder of licence to drive light motor vehicle and no separate endorsement is required to drive such transport vehicle.” In the wake of the aforesaid ruling, the objection raised by the learned counsel Mr.Mehta for the Appellant, fnding aw in the impugned judgment on that count cannot be sustained and is overruled.
20. Another ground which Mr.Mehta pressed into service is the compensation being awarded on an exorbitant side. On perusal of the impugned judgment, I am not in a position to concur with Mr.Mehta that the compensation is awarded at a higher rate and I must explain, why! Since the Applicant is not earning any wages, his notional income is considered as Rs.6,000/- per month and on applying the multiplier of 15, the loss of income is calculated at Rs.8,31,600/- The compensation awarded under other heads is also justifed. The Applicant, at the time of accident, was a young boy aged 10 years and he is a paraplegic patient and has been certifed so. His sufferings and personal deprivation cannot be compensated in terms of money, but the Tribunal has restricted the claim of Rs.1,00,000/- towards pain and sufferings and Rs.1,00,000/- for loss of amenities. The amount of Rs.2,00,000/- is awarded towards loss of marital prospects and since it has come in evidence that the Applicant is unable to manage his daily chores and require an attendant throughout, Rs.50,000/- is awarded towards future attendant charges which, in my considered opinion, is on a lower side. Rs.25,000/- which is awarded for extra nourishment is perfectly justifed, taking into account the nature of disability sustained by the Applicant and this monetary sum is insuffcient to wipe out his misery, since he has to lead his life a paraplegic. His mental capacity is also affected by the accident as is clearly certifed by A.W.12-Dr.Vinayak Kale. The Applicant has to lead a life as a paraplegic for his remainder of life, on account of severe head injury, which he had sustained. The compensation awarded is, no way, enough to offer any justiceable solace to him as well as his family.
21. Master Siddhant was a bright young boy. He was like any other boy in the neighbourhood, full of fun/frolic. One moment changed his entire life, he turned paraplegic, a condition diagnosed by medical science as an incurable medical condition. Treatment offered is rehabilitation, some medication and a ‘Big Hope’. His condition as on day, do not even permit this ‘Hope’, to him. While fxing the amount of compensation payable to the victim of accident, damages have to be separately assessed as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations and may include mental and physical shock, pain and suffering alrady suffered or likely to be suffered in the future and damages to compensate for the loss of amenities of life, which may include variety of matters like being unable to walk, run or sit, enjoy the pleasures of life and live like like every other boy in the neighbourhood. Apart from this, inconvenience, hardship, discomfort, disappointment, frustration and mentral stress in life may also be some of the factors which would necessarily be required to taken into account while granting the compensation.
22. In the present case, ascertaining the disability and considering that the Applicant was a minor aged 10 years at the time when he met with an accident with no independent earnings, his notional income was taken as Rs.6,000/- and loss of future prospects to the extent of 40% was added and the income derived is Rs.8,400/-. By adopting multiplier of 15 and taking the disability factor, the loss of income was arrived at Rs.8,31,600/-. The compensation came to be awarded under the following heads:- Pain and sufferings Rs.1,00,000/- Loss of amenities Rs.1,00,000/- Loss of monetary prospects Rs.2,00,000/- Attendant charges Rs.50,000/- Transportation and extra nourishment Rs.25,000/- Future medical expenses Rs.1,00,000/-
23. Though I am not inclined to interfere with the amount arrived at as loss of income, since the Claimant has not fled appeal, I cannot stop myself from intervening in the award where the pain and sufferings of the young boy have been estimated barely Rs.1,00,000/- and so also the loss of amenities.
24. The Hon’ble Supreme Court in the case K. Suresh Vs. New India Assurance Co. Ltd. (2012 ACJ 2694 (SC) held as under:- “2….. There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, section 168 of the Motor Vehicles Act, 1988 stipulates that there should be grant of ‘just compensation.’. thus, it becomes a challenge for a court of law to determine ‘just compensation’, which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance.”
25. Recently their Lordships of the Hon’ble Supreme Court in the case of Kajal Vs. Jagdish Chand & Ors. (2020 ACJ 1042) had an occasion to deal with a girl aged 12, who suffered head injury, resulting in 100% disability, making her bed-ridden for life and the question that arose was, whether the multiplier method may be adopted and whether the gratuitous services and loss of earning of the family members, who attended the girl who was admitted in the hospital for 51 days are entitled to compensation, for loss of their ‘wages’. In the facts, the Hon’ble Supreme Court enhanced the amount of compensation of Rs.2,00,000/- awarded for future medical treatment to Rs.5,00,000/- The pain, sufferings and loss of amenities were awarded to the tune of Rs.15,00,000/- and one pertinent observation, which is relevant is reproduced as under:- “27. One factor which must be kept in mind while assessing the compensation in a case like the present one is that the claim can be awarded only once. The claimant cannot come back to court for enhancement of award at a later stage praying that something extra has been spent. Therefore, the courts or the Tribunals assessing the compensation in a case of 100 per cent disability, especially where there is mental disability also, should take a liberal view of the matter when awarding compensation. While awarding this amount we are not only taking the physical disability but also the mental disability and various other factors. This child will remain bedridden for life. Her mental age will be that of a 9-monthold child. Effectively, while her body grows, she will remain a small baby. We are dealing with a girl who will physically become a woman but will mentally remain a 9 month-old child. This girl will miss out playing with her friends. She cannot communicate; she cannot enjoy the pleasures of life; she cannot even be amused by watching cartoons or flms; she will miss out the fun of childhood, the excitement of youth; the pleasures of a marital life; she cannot have children who she can love let alone grandchildren. She will have no pleasure. Hers is a vegetable existence. Therefore, we feel in the peculiar facts and circumstances of the case even after taking a very conservative view of the matter an amount payable for the pain and suffering of this child should be at least Rs. 15,00,000.”
26. For applying the aforesaid pronouncement, I have scrutinized the evidence brought on record, by the mother of the Claimant, who has narrated his misery and pain and sufferings, which were not limited to him only, but to his whole family. The boy remained in coma for a period of about one month. His present physical status was described by his mother, by stating that he is unable to work out any activity on his own and he has discontinued his education and his permanent partial disability as 75% is certifed by the consultant, Neurosurgeon whereas the physical disability is assessed by 75% and this young boy is totally dependent on his caretaker and his family. The intelligence of the boy has also suffered and through Dr.Kale (A.W.12) it has been brought on record that he has a low I.Q. and his mental age is 8 years. It is deposed that, as per clinical fndings, he has to depend on others and a certifcate to that effect has been proved through the competent person, the Head of Psychiatric Department. The said medical practitioner has stated that there is no improvement in his health and he has assessed his disability independently, including brain-intellectual disability and denied the suggestion that it do not relate to occupational disability. On a specifc suggestion, he denied that the patient shall ever improve during his future treatment. This despicable situation of Master Siddhant though deserve a pity, but that will not gain him anything. On the contrary, by some means, this hapless and pitiful situation can be minimised in any way, it would amount to doing justice to him. I am, therefore, inclined to modify the award by grant of additional compensation under the following heads:- Pain and suffering Rs.3,00,000/- Loss of amenities Rs.2,00,000/- Future medical expenses Rs.3,00,000/- The aforesaid amount payable under the distinct heads shall be over and above the amount of compensation, awarded by the Tribunal, and I do not think that I shall refrain myself from providing the enhanced compensation, merely because the Claimant has not fled an application, on this non-pecuniary heads. While dismissing the appeal fled by the Appellant- Insurance Company and upholding the impugned judgment in it’s modifed form as stated above, the opposite party and the insurer shall be jointly or severally liable to disburse the compensation alongwith additional compensation of Rs.8,00,000/-. I do not intend to levy interest on this additional component, but the opposite party and the Appellant-Insurance Company shall ensure the payment to be deposited before the Tribunal within a period of three months from today, which shall be disbursed to the Claimant. Failure to deposit the amount within a period of three months shall carry an interest at the rate of 8% p.a. till its realization.
27. In view of the dismissal of the Appeal, the pending civil applications do not survive and stand disposed off. ( SMT.
BHARATI DANGRE, J.)