Pravinchandra Jivraj Mehta and Vs. Lalbhai Metabhai Vasava and ors. - Court Judgment

Majmudar, J.

1. On the basis of the aforesaid evidence, now we have to consider the question of awarding adequate compensation to the claimant on the head of the pain, shock and suffering and loss of amenities in life which the severe accidental head injury had left on the claimant. The Tribunal came to the conclusion that the claimant of Rs. 3,000 as just and reasonable compensation. We find that the aforesaid award of the Tribunal is grossly adequate and it is far below the line drawn by the decided cases which had to deal with a similar question especially the cases which came up for consideration before the English court. Before we proceed to deal with the question of assessment of the proper damages on the head of the pain shock and suffering in the light of the peculiar injuries suffered by the claimant it would be profitable to have a look at the settled legal position on this aspect.

2. In First Appeal No. 822 of 1974 and group decided by my learned brother P. D.Desai J and R. C. Mannkad J. on 18-/19/20-3 -19 90 (Ahmedabad Municipal Creation v. Niranjan Ambalal Patel [1982] 23 (2)_ GLR 180) and to which we have made a detailed reference earlier this court had an occasion to consider the question regarding grant of proper damages under the head of pain shock and suffering when the injured claimant had suffered severe injuries on different part of this body including his eye. While considering this question my learned brother, speaking for the Division Bench in terms observed:

' Injuries which result in loss or partial loss of sense or faculty are not comparable with injuries involving loss of limb and that such injuries result in loss or impairment of capital asset as these faculties can be so treated.'

3. In First Appeal NO. 619 of 1978, decided on June 23, 1980, (Ashish Jivraj Bhai v. Ashwinbhai Himatlal [1982] 23 (2) GLR 290, by a Division Bench consisting of my learned brother sitting with R. C. Mankad J. had again to deal with the question regarding awarding of proper damages under the head of pain shock and suffering caused to a young victim aged about 7 at the time of the accident who was left with serious multiple injuries one of which was brain injury which had resulted in spastie hemiplegia . The victim in that case had suffered various external juries and internal injury on the brain . He was knocked down by a motor cycle when he was proceeding on the rain rendered him unconscious immediately after the accident and he started bleeding form his school. The internal in jury sustained by him on the brain. He was knocked downs by a motor cycle when he was proceeding on foot toward his school. The internal injury sustained by him on the brain rendered him unconscious immediately after the accident and he started bleeding from his left ear. His clinical examination at the hospital revealed that he did not respond to painful stimiation His pupile were bilateral semi-diluted and they reacted sluggishly. He remained unconscious for about 15 days after his admission and thereafter for a period of about 20 days he was semi-conscious. As he was experiencing difficulty in repatriation he was operated upon on July 18, 1975. Another operation was performed on him on July 23, 1975, for his brain injury. All throughout the period of his hospitalisation he suffered intense pain. When he was in the process of recovery, though there was weakness of limbs. He was unable to walk and to speak properly . In the light of the aforesaid injuries suffered by victim Ashish in the aforesaid case with which this court was circerned my learned brother speaking for the Division Bench observed that the case before them was one in which the injuries sustained by the claimant had left in this was once in which the injuries sustained by the lifetime of the claimant. The brains injury has resulted in spastic hemiplegia There was consenqeuntail weaker and loss of co-ordination of the uopper and lower left limbs. IT was also noticed that there was weakness of ripr so for as the left hand was concern and that the gait was not absolutely normal. It was further noticed that the brains injury which led a berceuses formation in the right eye had result in loss of vision and it had bought about disfigurement. There were permanent and irreversivble consequences. It was further observed that the multiple injuries suffered by the claimant, Ashish, in that case had taken a very heavy to and the after offsets were multiple. Not only the limbs but also the facutaly of sight of the unfortunate victim of the accident were involved. Under these circumstances, it was held by my learned brother in the aforesaid Division Bench decision that an integrated view of the totality of the after-effects of the manifold injuries must be taken so as to assessee and award a lump sum compensation for the pain and suffere in, past present and further, and for the lost pleasures and enjoyment of life. It was further observed that it was not property to individually assessee damages under the said head qua such injury and then to aggregate and same and make a cumulative award under this head. there was a great risk of duplication in segregating and separately assessing compensation for the pain and suffering and loss of separately assessing composition for the pain and suffering and loses of amentities and enjoyment flowing out of each injury. Only a total or over-all view can insulate against overlapping. It would be premissible, indeed necessary, in some cases, however, to view each injury and to assessse the consequential deprivation and then to estimate the totality of suffering, pain an lost pleasures and comforts of life to arrive at a just compensation. Keeping in mind several circumsntaces of the case before them and taking an overall view of the scale of pain ans suffering and loss of amenities and enjoyment of life resolution from multiple injuries suffered by the injured victim, Ashish, this court awarded a global amount of Rs. 55,000 under the head of pain, shock and suffering to the appellant in First Appeal No. No. 619 of 1978 (Ashish Jiurajbhai v. ashwinbhai Himatlal [1982] 232) GLR 290.

4. It is, therefore, clear that while awarding just and adequate damages under the head of pain, shock and suffering and loss of amentiers and enjoyment of life to an injured claimant, an overall view of multiple injures suffered by the claimant on account of the accident and their after-effects was to be taken and considering the impact left on the victim by the injuries, the aforesaid assessment has to be made, It is now time for us to look at different awards passed from time to time by the English court which were concerned with similar question of assessment of proper damages under the head of pain shock, and suffering caused to the victims who had the misfortune to suffers brain in jurist coupled with other injuries on account of the tortes as of there who were called upon to answer their claim for damages. WE give herein in a tabular from relevant awards of the English courts, with a view to present a comprehensive picture that emerges from the different awards passed by different English courts over the years.

-----------------------------------------------------------------------------------------------Sr. year of age of Awarded Details regarding Remarks andNo. Asst. victim amount nature of injuries referencesuffered------------------------------------------------------------------------------------------------1 2 3 4 5 6-------------------------------------------------------------------------------------------------1. 1974 18 years $ 6,100 In the case of Harling v. Berkely, Kemp & Kemp,the court of appeal in England Quantum ofhad occasion of consider the Damages,question of award of proper Vo.II, Sweetdamages under the head of and Maxwell,pain, shock and suffering. The 1975, p. 3028,plff, was a boy aged nearly case No. 3.028.18 years in road accident. Asa result of the accident, hesuffered severe concussion andlacerations of the mouth.Those lacerations soon mouth.completely. However, concussionwas so severe that a tracheotomyhad to be performed upon theplaintiff's arrival in hospitalafter the accident and tubeplaced in windpipe had to be keptin position for 10 days to facili-tate berthing in his unconsciousstate. Plff. gradually regainedconsciousness over a period ofabout three weeks. However, theconcussion suffered in the accid- ent had had a deleterious effectupon the plff.'s memory and powers of concentration and he was unableto obtain his qualification at the his qualification at the technical college as a plumber. The trialjudge awarded & 7,000 for pain, shock and suffering. The court of appeal reduced the said amount to $ 6,100.2. 1972 25 years $ 12,000 Fuller v. Munchi and Anr., Talbot J. Kemp & Kemp, awarded damages for pain, shock and Quantum of ans suffering and loss of amenities damages,suffered by a man aged 25 who had on Vo-II, Sweetaccount of accidental injuries suff- & Maxwellered brain stem compression and blood 1975. p. 3104,clot on brain, speech slurred, ability Case No. 3.111.to concentrate and memory impaired,had to take anti-convulsant drugs, haddifficulty in finding words he wantedand had become over-emotional. Theinjured could resume pre-accidental work but there was now a chance he might be downgraded.3. 1970 25 years $ 1,750 In the case of carlin v. Helical Bar. do. Ress. J. as trial judge had to evaluate p. 11255, Case evaluate general damages payable to an No. 11,269. payable to an anged victim aged 61 years. Accident left a very serious effect on his perpersonality . Before the accident, he was working as a crane driver. after the accident, he found it impossible to to concentrate on work as crane driver because of the fear of causing death and to concentrate on any work at all. His behavior towards his wife and others also changed; he became irritable; unpleasant and withdrawn and suffered and withdrawn and suffered dizziness,headaches and absentmindedness. the trial judge passed an award for $ 1,750.4. 1971 41 years $ 1,650 In Harrop v. Howard hill (Plumbing Kemp & Kemp. contractors) Ltd., Chapman J. had to Quantum of consider the case of an injured marred damages, woman with three children. She met with Vol.- II, sweet a car accident when she was the front and Maxwell seat passenger in a car. As a result 1975, p. 11,266, of collision of car at a bend in the Case No. 11.270 road, she suffered no physical injuries except cuts and bruises to her knees which were painful for about 2 years, but no permanent disability resulted. She was given tables by her own doctor. She developed a phobic anxiety state and a secondary reactive depression. She was terrified to travel in a car and for' a time became physically sick with tension and fear when she treis to do so. Her terror did not affect her on a bus or coach, but travelling in a car or the prospect of doing so re-created the accident and she was convinced she would meet her death in a car accident. Chapman J. took the view that award of $ 1,650 by way of general damages would suffice in such a case.5. 1951 Ago to $ 750 John Galway Foster v. London Transport do.Executives (Times dt. 23-5-1951 noted a p. 11267, Case case in which Justice Jones, in the king's No. 11-272. bench Division, Awarded Mr. John Galway Foster K.C.M.P. damages to the tune of $ 1,536 for the injury on account of the accident between his motor car and an omnibus belonging to the defendant. IT was noticed that Foster, on account of the accident, received an emotional shock and had been unable to drive his car any long distance ever since. Mr. Foster had driven a car for many years in the course of his political durties but since the accident, he had been quite incapable of driving long distances. He could drive from the Temple to Houses of Parliament but for longer journeys, he had to employ a chauffeur. whereas before the accident, Mr. Foster was a careful and safe driver, he was now highly nerovds and worried when in charge of a car. At the stage of evidence, Mr. Foster said that he had driven only 750 miles since the accident. He felt that he should not drive if he was a danger to other people.--------------------------------------------------------------------------------------------------

5. The aforesaid decisions of English courts rendered from time to time show that when the injured victims were pot not left with any physical after-effects but were left with a sort of hobai or fear complex regarding their driving motor vehicles or from being driven n motor vehciels as passengers, different amounts of general damages by way of pain, shock and suffering ranging from $ 750 in 1951 in 1951 to $ 1,650 in 1971. were awarded. If in additions to the mere psychic set- back or fear complex, physical injuries were left or recurring nature, $ 1,750 were awarded to an aged man of 61 years. Thus, for a yound man, award would be on much higher side as is found from the case wherein a young boy of 18 years was awarded $ 6,100 when a brain injury caused to him as a result of the injury had left a permanent physical defect by way of loss of memory and other delecterious effects. So far as more serious physical effects of brain injury were concerned, the English court awarded $ 12,000 in 1972 which is practically double the award made in favour of a boy of 18 years who had suffered injuries of lesser magnitude but which had left permanent physical effect on account of the brain injury. We, therefore, find that for similar types of injuries which the present claimant has suffered, the English court in. 1974 though it fit to grant by ways of general by way of general damages on account of pain, shock and suffering an amount of $ 6,100. It is true that the awards of English courts cannot automatically by followed so far as this country is concerned as i that an entirely different type of economy, mode of living of its people an standard of life. Still those English decisions give a general indication about the extent of damages which can be awarded with reference to serious brain injury coupled with the lingering physical effects left by them on the victims. THe resume of the English decisions shows that in England, damages, are awarded on very high and liberal scale in cases of loss of sense of faculty such as loss of memory and other side-effects resulting from such as loss of memory and other side-effects resulting from such brain injury. conversion from one currency into another may not be strictly relevant in the context of the point under consideration, having regard to the varying conditions in the two countries. It might still be mentioned, however, that in terms of the rupee currency, an award in the sum of $ 6,100 for loss of brain injury suffered by the injured claimant which had resulted in the loss of memory etc., would work up to Rs. 1,09,800 taking the exchange rate of $ 1= Rs. 18 which is the equation around which the exchange rate usually fiuctuates.

6. We have to consider the question regarding awarding of proper damages to the present injured claimant in the background of the aforesaid legal position which emerges from various decisions of this court and also keeping in view the general trend of liberal awards of damages under this head by English courts. To recapitulate, the present claimant had suffered serious and grave after-effects on account of the 'head injury' suffered by him in the accident as revealed by the evidence of Dr. Manubhai Patel, Ex. 124. The claimant had suffered from retrograde amnesia and post-traumatic nervous instability. He had post concussional nervous instability resulting in headache, proof attention, irrtaibity, inability to concentrate on consistent and routine work. He had no chance of recovery of retrograde amnesia. According to Dr. Patel, it would not be safe for the claimant to drive any motor vehicle in future. As further deposed to by Dr. Patel, the patient would not be able to do any work requiring constant concentration and he could only do manual work in fidesl in ordinary agricultural seasons, but no responsible work connected with agriculture. The evidence of Dr. Patel further reveals that he had impairment of attention and speed of perception when he examined the patient at Ahmedabad. Thus, the malady from which the claimant suffered on account of the head injure as a result of the accident, had left him with prolonged incurable pernicious after-effects. He had suffered from loss of memory and returngrade amnesia. They came to stay with him and it was not safe for him to drive any motor vehicle. Thus, he had suffered multiple adverse effects on account on the head injury and they were all of permanent nature. It can, therefore, be broadly seen that there was severe,, irreparable impairment of his faculty which, as noted by various decisions, of this court to which we have made reference earlier, amounted, to impairment of capital asset. Fro this type of multiple injuries having pernicious adverse effects which will linger on with the claimant for all time to come and especially when the claimant aged 25 at the time to the accident had to drags on the rest of life having lost all chances of carrying on his occupation as a car driver and being reduced to pitiable state of an agricultural laborer. an overall assessment of damages on the head of pain, shock and suffering, and loss of amenities and enjoyment of life which had resulted to the claimant on account of the accident, will have to be made. It must be noted that the extent of the injuries suffered by victim, Ashish, in the First Appeal No. 822 of 1974 and group (Ahmedabad Municipal corporation v. Niranjan Ambalal Patel [1982] 23(2) GLR 180) were of more severe nature as compared to the injuries suffered by the present claimant. Still, the injuries which he has suffered are certainly grave in nature and have resulted in continuous inconvenience and suffering, cause to the claimant. We therefore, deem it fit to award, by way of a golable fiture an amount of Rs. 25,000 in all to the injured claiment in the present case on the head of pain, shock and suffering and loss of amenities and enjoyment of life. To say least, it is the most conservative figure which can be currently awarded under this head. We must at once state that the award of a mere amount of Rs. 3,000 by the Tribunal under this head is really no assessment of damages at all and is grossly inadequate. We, therefore, raise that award to Rs. 25,000.

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7. That takes us to the insurance company's liability . - Now is the time for us to consider the question regarding insurance company's liability to answer the claim of the respective injured-claimants. As already stated above, on issue No. 4A, the Tribunal has taken the view that the liability of the insurance company will be an unlimited liability and the insurance company has not challenged the said finding, which has resulted in the adverse awards against it in both these cases, by filing any cross-appeal or cross-objections. Still, however,m we have though it fit to perm it Mr. Chhatrapti to address us on this question as we rare enaching the award of compensation payable to both the claimants in these appeals. The insurance policies taken out by respondent No. 4, insurer of the truck-raler in question, are at Exs. 96 and 97 on the record of this case. both these policies show that respondents no. 4 insurance company has insured the owner of the truck and trailer, viz., Palej Gram Panchayat, respondent No. 2 herein to the extent of Rs. 50,000 for third party liabilities in case of vehicular accident which may be caused to each of the vehicles, viz., the tractor and trailer. Ex 96 is the insuracen policy issued by respondent no. 4 - insurance company - for tractor no. GJN 7749 while Ex. 97 is the insuracne policy insuring trailer No. CH 993, which was also involved in the vehicular accident along with the tractor. It is not in dispute that both the policies were in force at the time of the accident. Both these policies incorporate similar terms and conditions of the policy. Section II of the insurance policies pertains to liability to third parties are para. 1 of the same reads thus 1

'Subject to the limits of liability the Corporation will indemnify the insured against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of -

(i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the motor vehicle).

(ii) damages to property caused by the use (including the loading and/or unloading) of the motor vehicle.'

8. The limits of liability as mentioned in the policies show that the limit of the amount of the Corporation's liability under s. II-1(i) in respect of any one accident is such amount as in necessary to meet the requirements of the Motor Vehicles Act, 1939; while the limit of the amount of the Corporation's liability under s. II-1(ii) in respect of any one claim or saris of claims arising out of one event is Rs. 50,000. Similar are the terms and conditions incorporated in the policy Ex. 97, which covered the trailer. It is, therefore, clear that by each of the pollices the insurances company had insured to owner of the tractor and trailer to the extent of the claim for third parties as was necessary to meet the the requirements of the Motor Vehicles Act. Mr. Chhatrapti, the learned advocate appearing for the respondents including the insurance company, contended that as per the provision of ss. 95(1) and 95(2) of the Motor Vehicles Act, liability of the insurance company company under each of the aforesaid two policies so far as injuries caused to third parties are concerned, would be limited to Rs. 50,000 qua each accident caused by the insured vehicle as to be covered under the provisions of the Motor Vehicles Act, meaning thereby that both the policies were the Act policies.

9. Mr. Chhatrapati's submissions on behalf of the insurance company can be summarised as under :

(i) The insurnce is liable under the policy and also under ss. 95 and 96 of the Motor Vehicles Act, 1939, to indemnify the insured up to the limit of Rs. 50,000 in respect of 'any one accident ' and that, therefore, the liability of the insurer was restricted to Rs. 50,000 in all in respect of awards made in the concerned claims petitions .

(ii) Even assuming that in respect of each injured/deceased person, there was an accidental injury caused, which fastened upon the insurer the liability to satisfy the award in respect of each of such injured/deceased person, the extent of liability to satisfy the award in each of such cases could not, in any event, exceed Rs. 50,000.

10. So far as the first contention based on the Words 'any one accident' is concerned, it has been stated merely to be rejected so far as this court is concerned. In Liliben Wd/o. Ajitsingh alias Jilubaha mulubah v. Lilaji mafathi and Co., First Appeal no. 696 of 1971, and companion matter, decided on September 30, 1976, by a Division Bench consisting of J.B.Mehta and M.C., Trivedi JJ., the question was whether the insurer was liable to satisfy the awards in favour of two different claimants, each one of which was within the limit of Rs. 20,000 but which jointly exceeded Rs. 20,000. It was there held that the overall limit of Rs. 20,000 was prescribed under the section, as it then stood in respect of death or bodily injuries to employees/passengers. So far as third party risk was concerned, however, no limit was prescribed and s. 95(2) in terms provided that the policy shall cover any liability incurred in respect of 'any one' accident. Therefore, the insurer would be liable to the extent of Rs. 20,000 qua each claimant, when the accident takes place by the use of the vehicle which is injured, even if there are several accidents in the sense that several, persons are injured, because on a true construction of the term `any one' accident, so far as third party risk is concerned, in case of every injured person there would be an accidental injury. the decision, in our opinion, completely clinclus the issue. In respect of each of the two claims which have arisen out of a single accident in the present case, the insurer of the tractor trailer would be liable because, the claim was in respect of third parties and in respect of each one of these cases there was an accidental injury caused by the vehicle insured.

11. So far as the second contention, viz., that there is on overall limit of rs. 50,000 qua each claimant, is concerned, we may mention here one submissions of Mr. Chhatrapati. Mr. Chhatrapati's contention is that even though respondent no. 4 insurance company had ensured the tractor as well as the trailer by tow separate policies., exc. 96 and 97, wherein for accidental risk, pertaining to each of the two insured vehicles, liability to third parties as per provisions of s. 95(1) and (2) of motor Vehicles Act, would be confined to Rs. 50,000 in all even though for each insured vehicle there was a separate policy. Mr. Chhatrapati submitted that the accident can be said to have been caused by driving of tractor and the trailer which was separately insured by Ex. 97 was merely attached to the tractor and hence no liability would arise for the insurance company, under the policy, Ex. 97. In other words, according to him, policy, Ex. 97, would be completely otiose and inoperative and would foist no liability on the insurance company. It is difficult to accept the aforesaid highly technical submission of Mr. Chhatrapati. The fact remains that on charge of premium, the insurance company has separately insured, the owner of the tractor as will as trailer by two separate policies, Exc. 96 and 97, and under each of the policies , the insurance company has made itself liable so far as third party liabilities are concerned to make good the Act liability arising out of any accident wherein the insured tractor and trailer were involved. In the present case, in the accident in question insured, tractor as well as trailer were both involved and the accidental injuries caused by use of both of them in a public place to third party claimants are required to be compensated for and for there damages the insures ia called upon to satisfy the awards passed in favour of the concerned injured claimants, its cannot be said that even though the trailer was attached to the tractor and only tractor was being driven at the relevant time by the driver, the accident can be said to have been caused only by the tractor and not by the trailer which was accompanying it when both the the tractor as well as the trailer jointly dashed against the oncoming Ambassador can which was occupied by the insured claimants at the relevant time. Thus, the accidental injuries to the third parties were caused by both the injured vehicles. The insurance company, therefore, cannot urge with any emphasis that the accidental injuries were caused to the third parties only by the tractor and not by the trailer which also was admittedly insured against third party risk and which also was admittedly insured to the injured claimants and, hence, the insurance company which has separately insured both the vehicles by two separate policies will have to make good the Act liabilities arising out of the injuries caused to the injured third party claimants on account of the accident caused by the both these injured vehicles. It is interesting to note that Mr. Chhatrapati's for the insurance company submitted in this behalf that the Ambassador car which was occupied by the injured claimants at the relevant time dashed with the trailer which was insured under policy, Ex. 96, was concerned, it did not dash with the car. That makes no difference to the resulting liability of the insurance company out of the accident caused by both the vehicles. The trailer could not have moved by itself as it was attached to the tractor which was being driven by the driver of the tractor-trailer. Thus, it was the tractor which put the trailer in motion and it was as a result of the negligent driving by the driver that the accompanying trailer got dashed with the Ambassador Car. Consequently, it cannot be said that only the trailer was involved and not the tractor in the present accident. In fact, but for the tractor to which the trailer was attached the trailer would not have been at the place where it was, at the time of the accident. IT is, therefore, obvious that the accident in the question was caused by the combined operation of both the tractor and the trailer which were separately insured by the insurance company under tow different were polices, Exs. 96 and 97 . Mr. Chhatrapti then raised a futile arguments that in any case the trailer was n to a motor vehicle as covered by the provision of the Motor Vehicle Act. A mere look at the definition of s. 2(28) shows that ' motor vehicle' means any mechanical propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted there to from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle ruling upon fixed rails or a vehicle of a special type adapted for use only in a factory or a vehicle a special type adapted for use only in a factory or in any other enclosed premises. The aforesaid definitions in terms includes a trailer to which power of propulsion may be transmitted from an external source like a tractor to which it is attached It is therefore, obvious that both the tractor and the trailer were motor vehicles as covered by the definition of the term 'motor vehicle' under s 2(18) the Motor Vehicles Act and both of them jointly caused the accidental injuries to third parties viz the injured claimants.