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)
