Chhaganlal Nathubhai Patel Vs. Bhagirath Kheraji and ors. - Court Judgment

Excerpt:
- section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - this apart, we have good evidence on record to show that the mishap occurred solely on account of the negligence of pakarsingh. the truck gave so severe a dash to the fiat car that the front side of the car was badly smashed. the version as given by chhaganlal and hasmukh did come from witnesses who had a stake in the success of their claims for compensation. money flows like water for undergoing preliminary tests. there is some reliable evidence wherefrom we can ascertain the loss in terms of money occasioned to chhaganlal as the result of a mishap. vora's opinion, chhaganlal was never going to be in a position to walk like a normal man. a person who suffers a bone injury is in the unfortunate position of being well, and yet, seriously incapacitated in his normal pursuits.s.m. daud, j.1. this appeal takes exception to the quantum of compensation granted by the motor accidents claims tribunal at thane.2. the appellant, chhaganlal nathubhai patel, is a person of indian origin who has acquired british citizenship and who was working for his livelihood in the united states of america. in the states, chhaganlal was running a hotel in los angeles which is in the state of california and also doing business as an insurance agent with the metropolitan insurance company. chhaganlal's wife and children were in india and from time to time he was coming to this country to see them. one such visit was made by him in july, 1978. chhaganlal on 16.1.1979 stalled en route to bombay with a friend hasmukh jariwala and two others in a car of fiat make. hasmukh was at the steering wheel and chhaganlal was seated by his side. the rear side of the car was occupied by two others. the car left surat at about 8.00 a.m. on the very day, i.e., 16.1.1979, opponent's witness pakarsingh was at the steering wheel of a goods truck bearing registration no. grs 5734. the said truck was headed for ahmedabad and had started from bombay at about 12.00 a.m. the consignment in the truck was soap boxes. at 2.00 p.m. when the truck and the car were some distance away from each other, the two vehicles headed in opposite directions. there had been the breakdown of another truck and this truck which had broken down was parked almost in the centre of the road. pakarsingh, with a view to negotiate the partially blocked road, took his truck to the road's right side. seeing this, hasmukh took the fiat car to the left extreme, his correct side. the goods truck dashed against the fiat car completely smashing its front side and also the door of the car on the left front side. chhaganlal and hasmukh were both injured, the person most seriously affected by the mishap being chhaganlal. the injured were taken to the hospital at vasai where they were given first aid. later they were shifted to harkissondas hospital at bombay. the truck being driven by pakarsingh was owned by respondent no. 1. the purchase of the truck by respondent no. 1 had been financed by respondent no. 2. it was insured with respondent no. 3. both the injured persons, viz., chhaganlal and hasmukh preferred separate applications claiming compensation. in relation to hasmukh he has been content with whatever was awarded by the tribunal and more need not be said in respect of his claim. chhaganlal at the initial stage claimed about rs. 1,00,000/- for medical expenses. it is relevant to quote the application:the applicant could not leave india as scheduled on or about 19th january, 1979 and had to remain in india till 26.4.1979. he had to employ a manager and manage his business of hotel and was required to incur heavy expenditure for medical and other incidental expenses to the tune of rs. 80,000/- and also other medical expenses to the tune of rs. 20,000/- till now.general damages were estimated at rs. 25,000/-. thus the total sum claimed was rs. 1,25,000/-. later on, the application was amended and the compensation under all heads was placed at rs. 3,25,000/-. it was chhaganlal's contention that the mishap had occurred on account of the rash and negligent driving of pakarsingh which rendered all the respondents liable. the respondents in their written statement denied that pakarsingh was responsible for the mishap. according to them, the fault lay with hasmukh, but for whose negligence in the driving of the fiat car, the mishap could not have occurred. the claims on different counts were described as exaggerated and untenable in law. chhaganlal, dr. vora and hasmukh were the witnesses examined in support of the claim, whereas the only witness examined by the respondents was the truck driver pakarsingh. the learned member of the claims tribunal held that the mishap occurred as a result of contributory negligence on the part of hasmukh as also pakarsingh. the negligence was apportioned half and half between chhaganlal and pakarsingh. the only two heads under which compensation was granted to the applicant, rs. 12,500/- towards general damages and rs. 7,500/- towards special damages-the latter, only if chhaganlal could satisfy the tribunal by documentary evidence that his claim for reimbursement of medical expenses incurred in india had been rejected by his insurer in the states. the alleged error in the finding of contributory negligence as also in fixing quantum of compensation has brought chhaganlal in appeal to this court.3. counsel representing chhaganlal and respondent nos. 2 and 3 have been heard. the first point for decision is whether the tribunal was in error in holding the mishap to be the result of contributory negligence. in coming to this conclusion, the tribunal has overlooked the very obvious fact of chhaganlal not being a contributor to the mishap. chhaganlal was not at the steering wheel of the fiat car. he was an innocent passenger in the said car and if there was any person guilty of contributory negligence from amongst the inmates of the car, it was hasmukh. if that finding is correct, the mishap should have been described as the result of a composite negligence, the tort-favors being hasmukh and pakarsingh. their liability would be joint and several. but there is an apparent error in equating the driver of the fiat car with the driver of the goods truck. pakarsingh was prosecuted for rash and negligent driving in the court of judicial magistrate, first class. he pleaded guilty to the charge, was convicted and sentenced. it may be that the plea of guilt by pakarsingh was motivated by considerations other than the plea being a reflection of the true position. pakarsingh who has been examined as a witness admits his conviction on the basis of an admission. he does not say that the admission was made to get a lenient sentence or to save time. having regard to the admission it was for the respondents to establish that the guilt lay at the doors of the others or that it had to be shared between pakarsingh and the driver of the fiat car. no such evidence has been led and the absence of such evidence fortifies the inference arising out of the conviction recorded by the magistrate against pakarsingh. this apart, we have good evidence on record to show that the mishap occurred solely on account of the negligence of pakarsingh. he himself testified that instead of stopping after sighting the broken down vehicle on the road, his truck was taken ahead though this required his going to the wrong side of the road and then bringing it to his correct side. the fiat car, on the other hand, was on the correct side of the road and it was with a view to avert the collision that it went off the tarred portion of the road. even so, this did not prevent the collision. the truck gave so severe a dash to the fiat car that the front side of the car was badly smashed. the left side door of the fiat car also smashed. even the lay witnesses of the scene of offence, panchnama which is at exh. 32, have assessed the damages at rs. 30,000/-. as against the damage caused to the fiat car, the goods truck being driven by pakarsingh suffered nothing worse than a dent on the bumper and the breaking of the head lamp. unless the truck was in a high speed the collision would not have been so serious. the scene of offence, panchnama, does not show that any attempt was made by pakarsingh to arrest the speed of the vehicle. hasmukh who was driving the fiat car was on the correct side of the road and had even got out of the tanned portion of the road so as to avoid colliding with the truck. he could have done nothing more. the version given by chhaganlal and hasmukh is thus borne out by the impersonal circumstances as also the direct evidence. mr. desai appearing for the appellant has rightly criticised the approach of the tribunal in stalling with a firm conviction about the incapacity of the actors involved in the event, to tell the truth. we do not see why this conviction should have been the stalling point for an appraisal of the evidence. after all, chhaganlal is a foreigner who visits india occasionally and does not appeal' to have much time to waste over speculative litigation. the version as given by chhaganlal and hasmukh did come from witnesses who had a stake in the success of their claims for compensation. but what they had to say was borne out by the scene of offence, panchnama, showing that it was the goods truck which had strayed from the correct side of the road. the explanation given by pakarsingh was falsified by the scene of offence, panchnama. the damage caused to the fiat car shows the larger vehicle being driven at uncontrollable speed and dashing much smaller vehicle with great force. added to this was the fact of pakarsingh's admission that on the preceding night he was at the steering wheel for quite some time and had slept very little before commencing the journey back from bombay. differing with the tribunal, we hold that pakarsingh's rash and negligent driving of the goods truck was the sole and exclusive cause of the mishap.4. the second point for discussion is what compensation should be allowed to chhaganlal, firstly, by way of special damages and next, by way of general damages. in so far as the special damages are concerned, the learned member of the tribunal has passed a conditional award in favour of chhaganlal and that too for the meagre amount of rs. 7,500/-. chhaganlal has testified that hospitalisation at harkissondas hospital cost him rs. 20,000/-. he had to undergo an operation. the attendant medication and other expenses must have been considerable. judicial notice can be taken of the fact that orthopaedic treatment is a costly affair. physicians have to be paid as also surgeons. money flows like water for undergoing preliminary tests. even after the operation or operations are over, the patient has to visit the treating physician or surgeon for the post-operative examinations and counselling. we see nothing unreasonable in chhaganlal's claim that the treatment in india itself cost him nearabout rs. 20,000. even the tribunal has accepted that fact that there could not be receipts or accounts for every single penny spent on the treatment. chhaganlal has also spoken of the treatment required to be taken by him in america and this costing him quite a considerable' sum. the tribunal disallowed this part of the claim on the ground that chhaganlal was compensated by the insurance company in america. but that compensation was the result of premiums paid by chhaganlal and the risks undertaken by the american insurer. the medical expenses in america totalled 20,000 dollars. 18,000 dollars were borne by the american insurance company and chhaganlal was required to pay 2,000 dollars from his own pocket. judicial notice can again be taken of the fact that medical treatment in the states is very costly. there is no reason to disbelieve chhaganlal and the equivalent of 2,000 dollars which he was required to bear, at the rate of exchange then prevailing would be in the neighbourhood of rs. 20,000/-. we would, therefore, allow chhaganlal rs. 40,000/- towards special damages.5. this brings us to the general damages. to start with, the claim for general damages was only rs. 25,000/-. later on, chhaganlal enhanced the claim to rs. 3,25,000/- describing this figure as damages on all counts. the evidence in relation to loss of income is not very satisfactory. chhaganlal has spoken of the inconvenience to which he was put in running his occupations. his brother was made to give up a job and start looking after the hotel that chhaganlal was running. chhaganlal speaks of loss of business as an insurance agent. true, as this may be, the difficulty lies in assessing the loss in terms of money. there is some reliable evidence wherefrom we can ascertain the loss in terms of money occasioned to chhaganlal as the result of a mishap. his brother who was said to be assisting chhaganlal in the conduct of the hotel business, was assessed by the american internal revenue, to an income of 5,000 dollars per annum. the evidence shows that chhaganlal and the said brother are in fact running that hotel as members of a joint family. his brother's income being 5,000 dollars per annum, the same must also be the income of chhaganlal himself. chhaganlal's not being in a position to do proper business for at least 4/5 years cannot be doubted. apart from his account of the difficulties, we have the testimony of dr. vora. the evidence shows that dr. vora last examined chhaganlal some two weeks prior to 23.9.1983. even at that time chhaganlal was limping. in dr. vora's opinion, chhaganlal was never going to be in a position to walk like a normal man. the disability was permanent and it was to the extent of 20 per cent. we see no reason to doubt this estimate of dr. vora. taking the loss of income at 20 percent for has to be compensated for the physical pain, agony, anguish and suffering imposed upon him. that he must have suffered immensely goes without saying. a person who suffers a bone injury is in the unfortunate position of being well, and yet, seriously incapacitated in his normal pursuits. for every step he requires the assistance of another. the treatment is endless and every visit to a consulting physician adds to his woes. placing the damages payable under all these heads at rs. 35,000/- will not be deemed unreasonable. therefore, the damages payable to chhaganlal come to:(i) rs. 20,000/- for treatment in india;(ii) rs. 20,000/- for treatment in the states;(iii) rs. 50,000/- for loss of income for 3 years assessed at 20 per cent of the loss of income per annum;(iv) rs. 35,000/- for physical pain and mental suffering, etc.total: rs. 1,25,000/-.6. the only item now remaining is in relation to interest. the tribunal has allowed pendente lite and future interest at the rate of 6 per cent per annum. mr. desai contends that this is an error and the interest should be allowed at the rate of 12 per cent per annum. he relies for support upon maharashtra state road transport corporation v. pushpaben rajarambhai patel . but that was a case of interest allowed on dependency compensation. in the instant case, the injured person has fortunately survived. therefore, the tribunal was right in awarding interest only at 6 per cent per annum. hence, the order.7. appeal partly allowed. respondents do severally and jointly pay to the appellant a sum of rs. 1,25,000/- along with interest at the rate of 6 per cent per annum from the date of application until realisation. rest of the appellant's claim is dismissed. parties do bear their own costs in both the courts.