CHHAGANLAL NATHUBHAI PATEL Vs. BHAGIRATH KHERAJI

JUDGEMENT

(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.) 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.