Iffco Tokio General Insurance Company Limited v. Sameera Hajimiyan Patel

(c) Patient has suffered from disfigured face due to which she is psychologically severely affected

(d) Unable to lift objects with right hand;

(e) Unable to do day-to-day activities; (f) The fractures, i.e. Fracture Mandible, Fracture Rt. Humerus and fracture Rt. Ribs have not consolidated; (g) Patient will require further treatment, physiotherapy and further surgery, including surgery for removal of implants. The patient will be required to undergo further treatment and surgeries in future. Accordingly, I assessed her Permanent Partial Disability at 71% (Seventy One Percent only). I have issued Smt.Sameera Hajimiyan Patel the Certificate dated 20.08.2016. Now shown to me in the said certificate dated 20/08/2016 issued by me. The contents of the same are correct. It is on my Letter Head. It is my handwriting. It bears my signature. I have also affixed my rubber stamp which mentions my Registration Number".

16 Dr. Khanna also deposed in the case of Sameera about her Opthalmic and ENT disability and it is stated as under:- "The Opthalmic and ENT Disability suffered by the patient would be additionally and separately assessed and evaluated by respective surgeons. The Opthalmic and ENT Disability would be over and above and in addition to the physical disability assessed by me".

17 The witnesses examined by the claimant were subjected to cross-examination by the counsel for the Insurance Company, but as far as the claimant is concerned, her evidence went unchallenged since she denied a specific suggestion that there was negligence on part of the her driver which had caused the collusion. The testimony of Dr.Naresh Khanna also went unchallenged, particularly since he specifically admitted that he had not treated the patient but had only assessed her disability.

18 The other victim Zuleka also filed an affidavit in lieu of examination in chief and deposed that at the time of the accident, she was aged 15. She also narrated the manner in which the accident took place and distinctly spelt out the injuries sustained by her. She narrated about her treatment in the Fortis Hospital, Mumbai as indoor patient from 30/5/2014 to 26/5/2014. She placed on record the original discharge summary as well as the receipt and bills and the amount spend on special diet. She deposed that she was required to visit the hospital even after her discharge and was charged separately. Further, she also underwent physiotherapy for around one year and had to spend an amount of Rs.1,68,000/- towards the sessions. About the trauma suffered by her, she testified in the following words:- "I was a bright and intelligent student and intended to pursue Law as my career. My role model was my uncle who is a practicing lawyer in London and I also desired to become a successful lawyer. The Board results were declared after the accident and I secured 76% in my SSC examinations. However, after the accident my academic career has been severely and adversely affected. My educational career has been ruined because of the accident. My confidence was totally shattered due to the accident. Due to the long period of treatment and due to the fact that I had suffered serious injuries, I could not continue my further education and I was constrained to leave my studies due to the accident. My sports career is also totally shattered and I will never be able to participate in any athletic or physical sport in my entire life". She specifically stated that the accident has changed her life and she has lost her confidence and she remain sad all the times, since her face look ugly and deformed, with severe injuries and multiple surgeries which has affected her self confidence and self esteem. She further narrated her, restrictive life and suffering, in the following words: "I am unable to bend and carry weight. I am unable to lift heavy objects and walk. I suffer from imbalance and lose my balance on walking even for a few minutes or on climbing stairs. As a result, I have developed extreme fear of falling while walking and hence tend to request somebody to accompany me even if I have to merely step out of the house. I experience severe abdominal pain after eating food. I also face severe digestive problems. I have several facial palsy which has led to diminished sensation and severe numbness of the face with uncontrolled eye, eyelids, cheek and lip movements and complete sensory loss. I have recurrent and severe headaches due to the head and facial injury suffered by me. I have severely diminished short-term and long-term memory. I have also become forgetful and am unable to recollect recent or even past events. I have severe pain in my hand and at times the pain is so acute that I even cry out. I have to occasionally take painkillers".

19 The medical bills in the claim petition being brought on record through Shri Sagar Kamble, the employee of Fortis Hospital, Dr. Naresh Khanna who assessed her disability on examining heron 20/8/2016 and by referring to her history, deposed that she suffer from the following disability and problems "(a) Tenderness with Deformity and Scaring of Right Occipito - Mastoid - Temporal Region. (b) Deafness in Right Ear is present.

(c) Unable to hear - objects and sound from near and far

(d) Remnants of Head Injury are present - Headaches,

Dizziness, Irritability, lapses of memory are observed. (e) Patient will require further treatment, physiotherapy, surgery and further Ear treatment. (f) Complete recovery of the patient from the above disabilities is not possible" Her future is seen by the medical expert as under: "The Permanent Disability suffered by her would greatly and adversely affect her daily work, household work and any other work which would require any physical activity. Due to the permanent disability suffered by her, she is totally incapacitated to do any physical, manual or laborious work. Her disability would make it practically impossible for her to pursue further education. She also requires further treatment and surgeries in future for the head and ear injuries. She has also suffered severa disfigurement of face. The disability certified by me pertains to the whole body. The disability suffered by her is of a permanent nature and it would not reduce in the future.".

20 Another Doctor examined in support of the claim of Zuleka, is Dr. Alok Sharma who had treated her and he depose that she suffered from multiple fracture of skull and because of the injury, she has turned deaf from her right ear, because of the injury to the occipital bone and since the voice do not reach to the nerve and brain. She also depose that since there was a chance of infection to the brain, the whole of the ear portion was required to be closed.

21 An attempt on part of the insurance company to discredit the said witness was unsuccessful and rather in crossexamination, the Doctor has deposed as under:- "The patient was suffered neurologist disability as she suffered parallel the right side of the fact and she is having difficulty in walking due to imbalance".

22 It is the wake of this evidence which is brought on record, The tribunal held that he accident had occurred on account of the rash and negligent act of the trailer by it's driver. The counsel for the appellant Shri Parshurami would vehemently submit that since the offending vehicle was stationary, by no stretch of imagination, it can be said that it was being driven rashly and negligently and it can be held responsible for the accident.

23 In order to appreciate the said contention, it is worth to note that the two claimants are the eye witnesses to the said accident, which has changed their life and they have given true version of the unfortunate incident. If the Insurance Company was, in any way, doubting the said version, it ought to have examined the driver of the vehicle, who would have been the best witness to depose that the accident was on account of the rash and negligent driving of the Sumo, in which the claimants were travelling, but the Insurance Company has failed to do so, nor any evidence is brought on record to discredit the claimants who are the victims of the accident. In absence of the evidence being brought to the contrary, the version of the claimants about the accident deserve an acceptance.

24 The learned counsel for the Insurance Company has also pleaded about the breach of statutory conditions which are fundamental and according to him, on this count, the liability can be avoided. Per contra, the counsel for the respondent would submit that in the factual matrix, the breach would not exonerate the insurer from satisfying the judgment and the proposition of law no longer res integra, that the person who alleges breach, must prove the same.

25 The Insurance Company is thus required to establish the breach by cogent evidence and in the event if it fails to prove that there has been a breach of condition of policy, the Insurance Company cannot be absolved of it’s liability. If the Insurance Company complains of a breach of a term of contract, it would permit it do disown it’s liability under the contract of insurance, and if the breach of a term, permits a party to the contract, not to perform it, the burden is squarely upon that party, which complains of breach of proof that the breach has been committed by the other party. The test in such a situation would be, who would fail if no evidence is led. Further, the Insurance Company, with a view to avoid it’s liabilities is not only required to show that the condition laid down u/s.149(2)(a) or (b) are satisfied, but it is further required to establish that there has been a breach on part of the insured. After the third party has obtained a judgment against any person insured by the policy in respect of the liability required, covered u/s.145, same must be satisfied by the insurer, notwithstanding that the insurer may be entitled to avoid or cancel the policy, or may in fact have done so. The same obligation applies in respect of a judgment against a person not insured by the policy in respect of such a liability, but would have been covered if the policy had covered the liability of all persons except that in respect of liability for death or bodily injury. The law being well settled, to pay the compensation initially by the Insurance Company and subsequently, to recover it from the owner of the vehicle, by applying principle of ‘pay and recover’.

26 Coming to the quantum of compensation, the counsel for the appellant would submit, that the claimant Sameera was a housewife and the Tribunal was therefore, not justified in taking her notional income as Rs.5,000/- per month. He would also submit that in her case, the multiplier should not have been applied but her case should have been considered by making lump sum payment as contemplated u/s.164 of the Motor Vehicles Act. Both the arguments do not deserve any consideration. The Hon'ble Apex Court recently in the case of Kirti and Ors. Vs. Oriental Insurance Ltd, 2021 ACJ (1) has dealt with the category of non-working victims, that Courts are often called upon to calculate the compensation for, i.e. the home maker. Relying upon it’s earlier decision in case of Lata Wadhwa Vs. State of Bihar, 2001 ACJ 1735(SC), where compensation came to be granted to housewives who were victims of the fire during a function, on the basis of the services rendered by them in the house and their age, by observing as under:- “So far as the deceased housewives are concerned, in the absence of any data and as the housewives wee not earning any income, attempt has been made to determine the compensation on the basis of services rendered by them to the house. On the basis of the age group of the housewives, appropriate multiplier has been applied, but the estimation of the value of services rendered to the house by the housewives, which has been arrived at Rs. 12,000 per annum in cases of some and Rs. 10,000 for others, appears to us to be grossly low. It is true that the claimants, who ought to have given data for determination of compensation, did not assist in any manner by providing the data for estimating the value of services rendered by such housewives. But even in the absence of such data and taking into consideration the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation, should be Rs. 3,000 per month and Rs. 36,000 per annum...” In his concurring judgment, the Hon’ble The Chief Justice, Justice N.V. Ramanna, J, has elaborated principle further by analyzing the notional income of a housewife, calculated for the purpose of granting compensation in a Motor Accident case, and summarized the principles to the following effect.

27 As far as another contention about Section 164 is concerned, it is pertinent to note that the only manner on which the compensation can be awarded is by applying the multiplier and Section 164 can be invoked only in case of the lump sum amount being claimed without necessity of proving negligence.

28 When the impugned order passed in Application No.661 is perused, the claimant has been awarded compensation by accepting her monthly income as Rs.5,000/- with deduction of 40% disability and considering her age to be 37 years, the amount is arrived at Rs.3,60,000/-. The monthly payment of cook and maid servant for 57 months is computed as Rs,5,70,000/- which is a reasonable calculation though the counsel for the Insurance Company has argued that it on the excessive, side medical bill of Rs.5,20,616/-, an amount of Rs.5,17,338/- for pain, sufferings and enjoyment and Rs.One lakh for diet and Rs.20,000/- for conveyance is granted by the Tribunal which comes to a total figure of Rs.20,87,954/-.

29 The claimant has stepped into witness box and narrated her miseries as a mother and as a woman. As a mother, she has to take care of the twins who are differently abled and even her daughter Zuleka who is now major, and by keeping aside her own anguish pain and sufferings, she has to deal with the frustration, anxiety of a young girl who was otherwise entitled for the blossom of her youth has lost the smile on her lips. The mental trauma of such a mother can just be imagined. Both the mother and daughter are leading a life carrying the baggage of the worst incident, and are suffering from past traumatic stress, an ongoing feeling of uneasiness. Though, they are healed of the bodily injuries, they are still making serious effort to overcome the emotional injury. The victims are emotionally exhausted and filled with a feeling of helplessness, in coping with the problem Young Zuleka has suffered a personality change, because of trauma of the accident and suffer from anxiety disorder. The whole episode has left the family in severe distress and their condition can be analysed as post traumatic stress disorder, which may bring chronic changes in the functioning and personality, as a person. Traumatic brain injury according to medical experts, can impact different parts of brain with different severity. It may thus affect the emotion of pleasure, happiness, affecting core personality. As far as Zuleka is concerned, she is a bright girl who had dream in her eyes and was looking forward for bright career. She was barely 15 years when she met with the accident and the Tribunal has applied multiplier of 18, which is objected to, by the Insurance Company, by stating that the multiplier to be applied ought to have been 15. Learned counsel may be right in submitting so, but at the same time, it is to be noted that the Tribunal has not paid any compensation to her for loss of marriage prospects, loss of future prospect, and in addition, a Special Compensation for disrupting her normal life which was full of hope and sanguity. In awarding damages on account of an accident, sufferings, the principles are by and large well settled. and pin point towards ‘just compensation’. The injuries causes deprivation to the body which entitles the claimants to claim damages, which may vary according to the gravity of injuries sustained by the claimant and its impact upon his/her future life. The injuries may result in loss of earnings, loss of future prospects, loss of prospects for marriage, loss of dimunition, of the pleasures of life by loss of particular part of the body. No amount of money can compensate human sufferings and personal deprivation. In case of Mediana (1900) AC 113, Law Halsbury it is held “of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless, it is remitted to the injury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. In truth, it would be very arguable to say that a person would be entitled to no damages for such thing. In what manly mind cares about pain and suffering that is passed, but nevertheless, the law recognizes that as a topic upon which damages may be given”.

30 The sufferings of the mother and daughter which have been brought before the Tribunal, has resulted into award of compensation which, in my considered opinion, do not deserve any interference. On the other hand, as far as young Zuleka is concerned, the compensation in my considered opinion, do not include the component of loss of marriage prospects and future medical treatment. I am therefore, inclined to enhance the compensation limited to Zuleka by adding an amount of Rs.Three lakhs for loss of marriage prospects and Rs.Two lakhs for future medical treatment, since it has surfaced in her deposition that she is required to undergo further treatment and which is also the deposition of the medical practitioner.

31 The settled principle of law being that the compensation should be just and fair, though it may not be exactly payable to confer the physical and mental loss of the adolescence in monetary terms. “In Concorde India Insurance Co.Ltd vs. Nirmala Devi, 1980, ACJ 55, the Supreme Court has specifically held “determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales.” The young girl deserve to be compensated for the loss of amenities of life which may include her inability to walk in public with confidence or undertake any single activity of her day to day life without any assistance. The impugned judgment in case of MACP No.662/2014, therefore, stand modified to the extent by adding an amount of Rs.Five lakhs by way of additional compensation, which liability shall be discharged by the opponent nos.[1] and 2 to jointly and severally and compensation to be paid within a period of three months from today. The Tribunal shall ensure execution of the said order of the additional compensation. Both the Appeals are dismissed.

32 In view of the dismissal of the appeals, Civil Applications do not survive and are disposed off. SMT.

BHARATI DANGRE, J