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Saturday, October 10, 2015

skid marks of the tyres of bus are about 32 ft. in length which were because of the speed of bus.The speed of the bus was quite high and at the relevant time it canno t be stopped immediately. The High Court has, therefore, correctly held that the bus was driven rashly and negligently and at a very fast speed. Therefore, the question of accident being a result of contributory negligence does not arise. what rate of conversion to be applied. As in the present case, we find from the claim petition that claimant had claimed the amount only in Indian rupees and there is no specific mention of US dollars, there is no question of applying any exchange rate. The Tribunal, while awarding compensation under the head ‘Special Damages’ in terms of US dollars when converted into Indian rupees, we find that the amount comes much less than the amount claimed by the claimant in the claim petition. Therefore, there is no question of any further reduction in the said amount.We are also of the view that the amount awarded by the Tribunal as modified by the High Court and further modified by us by awarding a sum of Rs. 10 lakhs towards the cost of helper/attendant is appropriate and does not call for any further enhancement. In view of the aforementioned discussions, Civil Appeal No. 2967 of 2012 is dismissed. However, Civil Appeal Nos. 9944-9946 of 2011 are partly allowed. Interlocutory applications, if any, are disposed of accordingly. In the facts and circumstances of the case, the parties shall bear their own costs.


                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       1 CIVIL APPEAL NO. 2967 OF 2012


Rajasthan State Road Transport Corpn.           .... Appellant(s)

            Versus

Alexix Sonier & Anr.                                       ....
Respondent(s)

     WITH

                                      2


3         CIVIL APPEAL NO. 9944-9946 OF 2011



                                      4


                               J U D G M E N T

R.K. Agrawal, J.

Civil Appeal No. 2967 of 2012
1)    This appeal has been filed  by  the  Rajasthan  State  Road  Transport
Corporation (in short ‘the Corporation’)-the appellant  herein  against  the
judgment and order dated 23.04.2010 passed by the High Court  of  Judicature
for Rajasthan at Jaipur Bench, Jaipur in S.B. Civil Misc.  Appeal  No.  2629
of 2003 wherein the appeal filed by the present appellant  has  been  partly
allowed  and  the  sum  of           US$125,348.01  awarded  by  the   Motor
Accidents Claims Tribunal (in  short  ‘the  Tribunal’)  under  the  category
‘Special Damages’ has been disallowed and the remaining part  of  the  award
has been maintained.
Civil Appeal Nos. 9944-9946 of 2011
2)    The above appeals have  been  filed  by  Alexix  Sonier  through  next
friend-Mrs. Dominique Sonier (his mother)- against the aforementioned  order
passed by the High Court wherein  the  appeal  filed  by  the  claimant  for
enhancement of amount awarded by the Tribunal has been dismissed.
Brief facts:
 3)  Alexix Sonier-the claimant is an American citizen. On  08.01.1988,  the
claimant was participating in a ‘Peace March’ along  with  the  citizens  of
various other countries from Ahmedabad, in the State of Gujarat to  Rajghat,
in New Delhi.  While participating in  the  aforesaid  march  along  with  a
group of other persons, between Jaipur and Delhi, near Chandwazi, a  bus  of
the Corporation, bearing Registration No. RNP-897, which was driven  by  one
Banwari Lal Chowdhary rashly and negligently, at a  very  high  speed,  came
and struck the claimant from behind.  As a result  of  which,  the  claimant
fell down on the road and became unconscious and sustained injuries  in  the
said accident.  The claimant was taken to  the  Sawai  Man  Singh  Hospital,
Jaipur where it was found that among other injuries  he  had  also  received
head injury.  Three surgical operations  were  performed  on  the  claimant,
however, he did not regain consciousness.  On medical advice,  the  claimant
was shifted to Vadilal Sarabhai Hospital,  Ahmedabad,  Gujarat  and  despite
all possible efforts, the condition of the claimant  did  not  improve.   He
was discharged from the hospital at Ahmedabad on 22.04.1988 and  shifted  by
air, under medical supervision of the  doctors,  to  the  United  States  of
America.  The claimant, through his next  friend-Mrs.  Dominique  Sonier-his
mother, filed a claim petition through an authorized person  viz.,  Surendra
Nath Singh Javeria.  Mrs.  Dominique  Sonier-mother  of  the  claimant  also
joined the said claim petition through  that  authorized  person.    In  the
claim petition, after narrating the entire facts of the  accident,  injuries
as also the treatment  undergone,  a  total  sum  of  Rs.  2,02,36,000/-  as
compensation was claimed along with interest at the rate of  18%  per  annum
from the date of filing of the  claim  petition  till  the  actual  date  of
payment.
4)     The  various   heads   under   which   the   claimant   had   claimed
damages/compensation are as follows:-
(i) For treatment undertaken in India
Rs. 1,50,000/- less Rs. 16411.79 = Rs. 1,33,588.21
(ii) Expenses to be paid to Dr. Chawala for his services + the amount  spent
in shifting the patient from Jaipur to Ahemadabad by air: Rs. 1,40,000/-
(iii) The amount spent for treatment in America = Rs. 13,00,000/-
(iv) The amount proposed to be spent on keeping a nurse at home at the  rate
of Rs. 40,000/- per month.  A sum of Rs. 4,00,000/- is  claimed  under  this
head.
(v) Compensation for loss of earning Rs. 1,68,000/-
(vi) Compensation for loss of future earnings Rs. 1,25,00,000/-
(vii) Compensation for physical and mental suffering Rs. 25,00,000/-
(viii) Compensation for need of a helper Rs. 25,00,000/-
(ix) Compensation for keeping an attendant Rs. 10,00,000/-
(x) Compensation for the loss of earning of his mother who will  look  after
him Rs. 10,00,000/-
Hence, a total sum of Rs. 2,02,36,000/- was claimed.
5) The Corporation, apart from raising the objections on technical  grounds,
denied the manner in which the accident occurred  as  stated  in  the  claim
petition.  A specific stand was taken that the accident occurred on  account
of the negligence of the claimant himself and, at best, it  was  a  case  of
contributory negligence as the claimant was trying to  cross  the  road  but
midway he back tracked and met with an accident.   It  was  further  pleaded
that the best medical facilities were available at Jaipur and there  was  no
need to shift the claimant from Jaipur to Ahmedabad without having the  full
treatment at Jaipur itself.  Also, there was no necessity for  the  claimant
to proceed to United States of America  without  proper  treatment  and  the
Corporation was not liable for the condition of the claimant-Respondent  No.
1 herein.  Further, the expenses in the claim petition were  very  high  and
exaggerated so also the amount of compensation claimed.
6) The Tribunal held the claim petition to be in  accordance  with  law  and
properly presented.  It, however, held that the  accident  had  occurred  on
account of negligence on the part of the driver  of  the  Corporation.   The
Tribunal, on the basis of evidence on record, awarded damages as follows:-
“(a) Special Damages                             Dollar     Rupees
(i) Expenses incurred on treatment in India               50,000/-
(ii) Air Fare for Jaipur to Ahmedabad                       4,000/-
(iii) Air Fare to Ahmedabad to USA                           1,00,000/-
(iv) Medical Expenses in USA
     borne by Medi-Cal                       125,348.01
(v) Medical expenses in USA borne by parents    25,000.00
(vi) Future expenses on Medical Treatment                     4,00,000/-
(vii) Loss of income by Claimant             408,000.00
(viii) Loss of income of attending mother              81,584.00
(ix) Future expenses for management
     of attendant                                 60,000.00
(x) Expenses on Two Commissions                         1,61,954/-
(b) General Damages
(i) For pain, sufferance and mental agony                    10,00,000/-
(ii) For loss of amenities and enjoyment of life             10,00,000/-
Total                                  $699,932.01  Rs. 27,15,954/-
So Total damages in Rupees: (699932.01 x 14) + 2715954 = Rs. 1,25,15,002.14
In round figure, it is Rs. 1,25,15,002/-“

The Tribunal further awarded interest at the rate of 6 per  cent  per  annum
with effect from the date of presentation of the claim  petition,  that  is,
07.07.1988,  after  deducting  a  sum  of  Rs.  25,000/-  paid  to  the  two
Commissioners who were appointed for  the  recording  of  evidence  and  Rs.
1,16,411.69/- towards the expenses incurred  and  the  amount  paid  by  the
Corporation for the treatment etc., in India to the claimant.
7)    Being aggrieved by the Award  dated  29.09.2003,  the  Corporation  as
also the claimant have filed appeals before the High Court.  The High  Court
gave an opportunity  to  the  parties  to  arrive  at  a  mutual  settlement
regarding the claim but the Corporation declined to  negotiate  the  matter.
It may be mentioned here that  on  an  application  filed  by  the  claimant
before the Tribunal seeking appointment of  a  Commissioner  to  the  United
States of America to record the statements  of  11  persons,  the  Tribunal,
vide order dated 11.07.1990, allowed the  said  application  to  record  the
statements of 11 persons as mentioned in the  order  and  also  appointed  a
Commissioner for that purpose.  It was contended by the appellant  that  AW-
10A to AW-19 all of whom except AW-18 were not  named  in  the  order  dated
11.07.1990. The Commissioner submitted his report and also the  evidence  of
all the persons recorded by him before  the  Trinbunal.   No  objection  was
taken by the Corporation regarding recording  of  evidence  of  persons  not
named in the order dated 11.07.1990.   In fact, the Tribunal, in  its  order
dated 24.06.1991,  has  specifically  recorded  that  Mr.  Manish  Bhandari,
learned counsel who appeared on behalf of the Corporation was  asked  as  to
whether he has any objection to take on record the statements  of  witnesses
but he did not raise any objection and  the  statements  of  witnesses  were
taken on record.
8) Before the High  Court,  the  Corporation  took  an  objection  that  the
evidence recorded by the Commissioner of the persons who were not  named  in
the  order  dated  11.07.1990  cannot  be  taken  into  consideration.   The
Corporation also objected to the order  of  the  Tribunal  awarding  damages
under the head ‘Special Damages’ in respect of medical expenses incurred  in
United States of America borne by Medi-Cal  amounting  to  US$125,348.01  on
the ground that witness AW-18 had admitted that in the State  of  California
a medical programme is in force under which persons  who  were  not  covered
under any insurance and/or unable to pay their medical expenses,  all  their
medical expenses will be borne by the State.  According to the  Corporation,
since the aforesaid amount has  been  awarded  under  the  head  of  medical
expenses borne by Medi-Cal, the claimant cannot be held entitled to  receive
the aforesaid amount of US$125,348.01 and the same is liable to be  reduced.
 It was further submitted before  the  High  Court  that  the  claimant  has
failed to prove the negligence on the part of the driver of the  Corporation
and the Tribunal has erred in applying and holding the  Corporation  liable.
The High Court, on appreciation of evidence on record, upheld  the  findings
of the Tribunal that the driver of the bus of the Corporation was  negligent
and driving the bus rashly and it is not a case of contributory  negligence,
however, the High Court deleted the amount of US$125,348.01 under  the  head
of special damages on the ground that there is no manner for the  courts  in
India to verify the fact as to whether or not the aforesaid amount  will  be
paid to the concerned Medi-Cal department by the  claimant  and  apart  from
it, no statutory enactment of any such Scheme was produced before the  Court
in evidence of existence of such a Scheme for the Court to  take  cognizance
of.  Moreover, there is no averment in  the  claim  petition  regarding  the
amount spent by the Medi-Cal Programme and  for  reimbursing  the  aforesaid
amount to the said  department.   The  High  Court  further  held  that  the
statements of the persons recorded by  the  Commissioner,  pursuant  to  the
order dated 11.07.1990,  cannot  be  ignored  and  have  to  be  taken  into
consideration in view of  the  fact  that  the  Corporation  had  raised  no
objection, as would be clear from the  order  dated  24.06.1991.   The  High
Court, however, declined to enhance the amount of award by the  Tribunal  by
stating that it cannot be said to be inadequate.

9)    Heard the arguments advanced by learned counsel for  the  parties  and
perused the records.  Since a common question of  law  and  facts  arise  in
these appeals, they are being disposed of by this common judgment.

10)   Learned Counsel for the Corporation  submitted  that  the  High  Court
erred in law in upholding the order of the  Tribunal  awarding  compensation
to the claimant which  is  highly  on  the  exaggerated  side.   He  further
submitted that the claimant had not claimed  any  damages  in  terms  of  US
Dollars and claim was made only in Indian currency, therefore, the award  of
compensation by the Tribunal as upheld by  the  High  Court  in  respect  of
certain claims  in  US  Dollars  was  not  justified  in  law.   He  further
submitted that there was no question of applying the currency exchange  rate
of Rs. 14 per US Dollar as the claim itself has not been  made  in  it.   He
further contended that the driver of the bus of the Corporation was  not  at
fault and he was not driving the bus rashly or speedily and in fact,  if  at
all, the accident was a result of contributory  negligence,  and  therefore,
the Corporation is not liable to pay any amount as damages or  compensation.

11)   Learned counsel for the claimant, on the other  hand,  submitted  that
the High Court was not justified in deleting the  medical  expenses  in  USA
borne by Medi-Cal, as in the State of California, it  is  government  policy
that medical treatment is to be given by the State to such persons  who  are
unable to afford and further such persons  are  not  reimbursed  by  anybody
else, however, if any reimbursement of any medical expense is  received,  it
has to go to  the  State.   He  further  submitted  that  the  claimant  was
entitled to the amount given by the Tribunal under expenses borne  by  Medi-
Cal.  He further submitted that the  claimant  was  also  entitled  for  the
amount to be spent for helper/attendant to be engaged as  the  claimant  had
suffered brain injury and have been confined to bed.  According to  him,  as
the expenses have been incurred and  are  to  be  incurred  in  US  dollars,
exchange rate which was prevalent at the time of the passing  of  the  award
by the Tribunal ought to be given.  In support of this, he  placed  reliance
on a decision of this Court in Sanjay Verma vs. Haryana  Roadways  (2014)  3
SCC 210.
12)   With regard to the plea taken by the Corporation  that  the  statement
of the persons recorded by the court appointed Commissioner,  who  were  not
named in the order dated 11.07.1990 cannot be taken on record is  concerned,
we find that though the Commissioner has recorded evidence of persons  viz.,
AW-10A to AW-19  except  AW-18  who  were  not  named  in  the  order  dated
11.07.1990, yet, when the Commissioner  filed  the  report  along  with  the
evidence so recorded, a specific question was put  to  the  counsel  of  the
Corporation as to whether he has any objection but  he  did  not  raise  any
objection as would be clear from the order dated 24.06.1991  passed  by  the
Tribunal which for ready reference is reproduced below:
“On behalf of the applicant Shri Bhartiya and on behalf  of  R.S.R.T.C  Shri
Manish Bhandari and Commissioner          Shri Bhag Chand Jain are  present.
Today Shri Bhag Chand Jain,  court  commissioner  presented  an  application
annexing the statements which he recorded of  10  witnesses  after  visiting
America. Shri Manish Bhandari was asked whether  he  has  any  objection  to
take on record the statement of witnesses Dr. E.Scott Conner, Dr. Thomas  Z.
Weber, Mr. Courtney Billups, Mr. Kent Furguson, Mr.  Walter  Joseph  Babine,
Mr. Jan Robert,  Mrs.  Nancy  Brooks,  Miss  Maureen  Mckenzie,  Mrs  Carole
Kellogg and Mr. Ivan Sonier. Mr. Ivan  Sonier  which  was  recorded  in  his
presence.  He  did  not  raise  any  objection.  Therefore   the   aforesaid
statements of witnesses are taken on record and exhibited as AW 10A and  AW-
19. The applicant concludes his depositions.”

In this view of the matter, it is not now open for the Corporation to  raise
this plea.
13)   So far as the question as to whether the accident  in  question  which
occurred on 08.01.1988 was  a  result  of  contributory  negligence  or  the
driver of the bus of the Corporation was  driving  rashly  and  speedily  is
concerned, we find that the driver of the bus had denied that  any  accident
in fact had taken place, however, the site plan (Exh. 52),  which  has  been
taken into consideration by the High Court, shows that the  bus  was  driven
at a sufficiently high speed and skid marks of the tyres of  bus  are  about
32 ft. in length which were because of the speed of bus.The speed  of  the
bus  was  quite  high  and  at  the  relevant  time  it  canno  t  be  stopped
immediately.  The High Court has, therefore, correctly  held  that  the  bus
was driven rashly and negligently and at a very fast speed.  Therefore,  the
question of accident being a result  of  contributory  negligence  does  not
arise.  So far as the question regarding  the  amount  of  damages/award  in
respect of Medi-Cal, which has been deleted by the High Court is  concerned,
we are of the considered opinion that in the State of California,  there  is
a Scheme under which persons who are not covered under any insurance  scheme
like claimant are extended medicare facilities for which no  payment  is  to
be made by such persons and only the amount received  as  reimbursement  has
to be handed over to the Medi-Cal Department.  In the present case, we  find
that  the  Medi-Cal  Department  has  already  incurred  expenses  for   the
treatment of the claimant.  It will be very difficult to keep  a  track,  as
observed by the High Court, as to whether  the  amount  awarded  under  this
head would be paid over to the Medi-Cal Department or  not,  and  therefore,
in our considered view, the High Court was justified in modifying the  award
of the Tribunal by disallowing US$125,348.01  under  the  category  ‘Special
Damages’ relating to the Medi-Cal.
14)   However, we find that the claimant had claimed a sum of Rs.  10  lakhs
for keeping an attendant for the entire life.  Neither the Tribunal nor  the
High Court had given any amount under the said  head.   We  find  that  this
Court, in the case of Sanjay Verma (supra), has held that  where  any  claim
is made towards cost of attendant from the date of accident till he  remains
alive and it is also proved, then that claim is justified. In  paragraph  22
of Sanjay Verma (supra) this court has held as follows:

“22. In the claim petition filed before the Motor Accidents Claims  Tribunal
the claimant has prayed for an amount of  Rs  2,00,000  being  the  cost  of
attendant from the date of accident till he remains alive. The  claimant  in
his deposition had stated that “he needs one person to be with him  all  the
time”. The aforesaid statement of the claimant  is  duly  supported  by  the
evidence of PW 1 who has described the medical condition of the claimant  in
detail. From the aforesaid materials, we are satisfied that the  claim  made
on this count is justified and the amount of  Rs  2,00,000  claimed  by  the
claimant under the aforesaid head  should  be  awarded  in  full.  We  order
accordingly.”


Following the principles laid down by this Court  in  Sanjay  Verma  (Supra)
reproduced above, we accordingly hold that the claimant is  entitled  for  a
sum of Rs. 10 lakhs plus interest at the rate of 6  %  per  annum  from  the
date of presentation of the claim petition till the date of  actual  payment
towards expenses to be incurred for keeping an attendant  for  the  rest  of
his life to look after him.
15)   We further find that even though the  claimant  had  not  claimed  any
amount in US dollars in the claim petition and the entire claim was  in  the
Indian currency, the amount awarded by the Tribunal in respect  of  some  of
the items under head ‘Special  Damages’  has  been  given  in  terms  of  US
dollars and the exchange rate has been applied at the  rate  of  14  per  US
dollar. This has been  done  on  the  specific  finding  that  the  claimant
himself had claimed exchange rate of Rs. 14  per  US  dollar.   Even  though
this Court in the case of United India Insurance Co. Ltd.  and  Others.  Vs.
Patricia Jean Mahajan and Others (2002) 6 SCC 281 has held that there  would
be three relevant dates for the purpose, viz., the date on which the  amount
became payable, the date of the filing of the  suit  and  the  date  of  the
judgment and it would be fairer to both the parties to take  the  latest  of
these dates, namely, the date of passing of the decree as the relevant  date
for applying the conversion rate.  Yet,  where  the  prayer  for  passing  a
decree is indicated in rupees, there would  not  be  any  dispute  regarding
what rate of conversion to be applied.  As in  the  present  case,  we  find
from the claim petition that claimant had claimed the amount only in  Indian
rupees and there is no specific mention of US dollars, there is no  question
of applying any exchange rate. The  Tribunal,  while  awarding  compensation
under the head ‘Special Damages’ in terms of US dollars when converted  into
Indian rupees, we find that the amount  comes  much  less  than  the  amount
claimed by the claimant in the claim petition.     Therefore,  there  is  no
question of any further reduction in the said amount.
16)   We are also of the view that the amount awarded  by  the  Tribunal  as
modified by the High Court and further modified by us by awarding a  sum  of
Rs. 10 lakhs towards the cost of helper/attendant is  appropriate  and  does
not call for  any  further  enhancement.   In  view  of  the  aforementioned
discussions, Civil Appeal No. 2967 of  2012  is  dismissed.  However,  Civil
Appeal  Nos.  9944-9946  of  2011  are   partly   allowed.     Interlocutory
applications, if any,  are  disposed  of  accordingly.   In  the  facts  and
circumstances of the case, the parties shall bear their own costs.

...…………….………………………J.
          (RANJAN GOGOI)


















.…....…………………………………J.
   (R.K. AGRAWAL)

NEW DELHI;
OCTOBER 8, 2015.
ITEM NO.1B               COURT NO.12               SECTION XV
(For judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                       Civil Appeal  No(s).  2967/2012

RAJASTHAN STATE ROAD TPT CORPN.                    Appellant(s)

                                VERSUS

ALEXIX SONIER & ANR.                               Respondent(s)



WITH
C.A. Nos. 9944-9946/2011

Date : 08/10/2015      These appeals were called on for pronouncement
            of judgment today.

For Appellant(s)       Mr. S. K. Bhattacharya, AOR
                       Mr. Niraj Bobby Paonam, Adv.

                       Mr. Rajiv Shankar Dvivedi, AOR

For Respondent(s)      Mr. Rajiv Shankar Dvivedi, AOR


      Hon'ble Mr. Justice R.K. Agrawal pronounced  the  reportable  judgment
of the Bench comprising Hon'ble Mr. Justice Ranjan Gogoi and His Lordship.
      Civil Appeal No. 2967 of 2012 is dismissed and Civil Appeal Nos. 9944-
9946 of 2011 are partly allowed.  Interlocutory applications,  if  any,  are
disposed of in terms of the signed reportable judgment.

      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
            (Signed reportable judgment is placed on the file)

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