Urviben Chiragbhai
Sheth Vs. Vijaybhai Shambhubhai Joranputra & Ors.
J U D G M E N T
GANGULY, J.
1.
Delay
condoned.
2.
Leave
granted.
3.
On
18.5.1990, the appellant and others were going in a Fiat car (No. GGG 792),
owned by the second respondent, from Surat to Ubhrat. The said car was driven by
the first respondent, who lost control of the car and dashed the car with full force
against a milestone, after which the car turned turtle thrice. As a result, the
occupants of the car sustained serious injuries.
4.
The
appellant filed a claim petition before the Motor Accident Claims Tribunal (MACT)
claiming compensation of Rs.15,00,000/-. At the time of the accident, she was aged
30 years and she claimed to be earning Rs.1,500/- to Rs.1,600/- per month from running
a business in the name of Contessa Beauty Parlour at Ahmedabad.
5.
Before
the MACT it was established that the first respondent was absolutely liable for
the accident in view of his careless, rash and negligent driving. Thus, the first
respondent (driver), second respondent (owner of the car) and the third respondent
(insurance company with which the car was insured) were held jointly and severally
liable to pay compensation to the appellant. In the accident, the spinal cord of
the appellant was damaged, as a result of which she was unable to walk and was bedridden.
In computing the compensation payable to the appellant, the MACT, by order dated
23.3.2001, reached a finding that the compensation had been computed with the
consent of the parties.
6.
MACT
awarded Rs.50,000/- towards pain and suffering, Rs.3,50,000/- towards treatment
charges, Rs.10,000/- towards attendant charges and Rs.5,000/- towards nutritious
food. The appellant had contended that she was running a beauty parlour, but no
reliable evidence was produced to substantiate the same. Thus, appellant being
a housewife, monthly income was assessed at Rs.1000/- and applying a multiplier
of 16, the future loss of income was assessed at Rs.1,92,000/- (Rs.1000 X 12 X
16). Thus, the appellant was held entitled to total compensation of Rs.6,07,000/-
with interest at the rate of 9%.
7.
Aggrieved
by the compensation awarded by the MACT, the appellant appealed to the High Court
for enhancement of compensation. The High Court, vide order dated 6.7.2005, dismissed
the appeal on the following ground: "Through these appeals judgment of the
MACT Valsad at Navsari dated 23.3.2001 is assailed on the ground that proper compensation
has not been awarded, therefore, it be enhanced. However, after hearing the counsel
for both the sides, it is found that the compensation has been settled as per the
consent of the counsel for the parties. This fact is recorded in para 10 of the
award. That being so, interference is not called for. Shri Parikh, learned counsel
for the appellants want to place on record affidavit of Shri K.Z. Rifai, Advocate
dated August 5, 2002 to point out that neither any pursis in writing was passed
to the Claims Tribunal nor while arguing, such consent was given, fact appears to
have been recorded erroneously. Placement of affidavit at this stage is after thought,
therefore, declined. In such case no such agreement was there with regard to the
amount of compensation as mentioned in the judgment, averment to that effect
ought to have found place in the memorandum of appeal dated 20th June, 2001. Judgment
record is conclusive. Neither lawyer nor litigant can claim to contradict it, except
before the judge himself but nowhere else. Court is bound to accept the statement
of the judge recorded in the judgment as what transpired in the court and cannot
allow statement of the Judge to be contradicted by statement by affidavit and other
evidence (See: Daman Singh and others etc. v. State of Punjab and others (AIR 1985
SC 973). Accordingly, claim for enhancement cannot be considered in light of the
agreement by counsel for parties before the Claims Tribunal."
8.
This
appeal is directed against the aforesaid judgment of the High Court.
9.
The
appellant contends that there was no consent before the MACT, and the same was wrongly
recorded by the Tribunal. However, we notice that no application appears to
have been made before the Tribunal to rectify the error, if there was one.
Instead, the parties filed an appeal before the High Court being aggrieved by the
compensation awarded by the Tribunal.
10.
This
court finds that in the impugned judgment, the High Court has taken a rather narrow
view of the entire controversy. In its rather cryptic judgment, the High Court refused
to take into consideration the affidavit filed by Sri K.Z. Rifai, the learned advocate
who appeared for the appellant before the MACT. The said affidavit is on record.
A perusal of the said affidavit which was filed before the High Court shows that
the advocate who appeared on behalf of the appellant before the MACT averred: "2)......The
learned Tribunal in paragraph 10 of the judgment has recorded that both the parties
agree qua the amount that was to be paid to the claimant. I say that neither any
pursis in writing was passed to the Tribunal to such effect nor while arguing was
any such consent given. The said fact appears to have been recorded
erroneously."
11.
The
High Court ignored the said stand taken before it on the ground that such an affidavit
being placed before the High Court was an afterthought and no ground had been taken
in the memorandum of appeal dated 21.6.2001 to that effect.
12.
The
other ground which weighed with the High Court is that statement recorded in the
judgment of the Court cannot be contradicted by any affidavit or any other evidence
and in coming to said conclusion the High Court relied on the judgment of this Court
in Daman Singh and others etc. v. State of Punjab and others, reported in AIR
1985 SC 973.
13.
This
Court fails to appreciate the aforesaid stand of the High Court for various reasons
which are discussed hereunder.
14.
From
a perusal of the judgment of the Tribunal, it does not appear that it was based
solely on the consent of the parties. Apart from consent, if any, of the
parties, the MACT also held that the amount of compensation awarded by it "appears
to be proper, just and reasonable taking into consideration the aforesaid evidence."
15.
In
fact, the exact finding of the MACT is set out below: "......With consent
of both the parties, it has been decided to make payment of the under mentioned
amount which appears to be proper, just and reasonable taking into consideration
the aforesaid evidence."
16.
Therefore,
it appears to be a mixed bag. MACT curiously held that in the facts of the case,
the amount granted by it is just proper and reasonable and also held that the
same is based on the consent of the parties. The High Court, as the last court of
fact and law should have examined whether the Tribunal's finding that the compensation
granted is proper, just and reasonable in the facts of the case. The High Court
has admittedly failed to do so.
17.
Coming
to the question of so-called consent of the parties, the approach of the High Court
also cannot be appreciated. It is true that while acting as a Claims Tribunal, its
proceedings are summary in nature but in exercising its summary jurisdiction the
Tribunal must follow principles of justice, equity and good conscience and must
be aware that its summary enquiry is in connection with a legislation which is meant
for social welfare. Therefore, when a representation is made before the Tribunal
that a claim of Rs.15 lacs by way of consent is reduced to Rs.6 lacs and odd,
the Tribunal must insist on production of some material either, an affidavit of
the claimant or the statement of the claimant before the MACT in support of such
lowering down of claim. The MACT cannot accept the said representation on the mere
oral statement of counsel since such settlement is purely a question of fact.
In fact no leave was obtained from the Tribunal to enter into a compromise between
the parties in respect of the settlement.
18.
In
the absence of all these materials, when an affidavit was filed by the learned
advocate who appeared before the Tribunal, contending that no such settlement
was ever entered into by the consent of parties, the High Court fell into an error
by discarding the same only on the ground that this was filed belatedly before the
High Court and is an afterthought.
19.
It
may be true that in the grounds of appeal before the High Court, this should have
been mentioned, but on a mere defect of pleading of the parties, justice cannot
be denied if in the facts of the case, the stand taken on the affidavit of the
advocate appears probable.
20.
To
our mind, the stand taken in the affidavit of the advocate referred to above appears
probable specially when there is nothing on record to show that the appellant ever
filed any petition or affidavit for settlement or compromise before the MACT.
21.
The
reliance placed by the High Court on the judgment of this court in the case of Daman
Singh (supra) is rather misconceived. In the said case, what this court held was
when several points were raised in a writ petition before the High Court, and
argument is confined to some grounds or points, as other grounds are considered
by the counsel unworthy of canvassing, thereafter the counsel cannot make a grievance
that other grounds were not considered by the court (see para 13).
22.
The
situation in this case is not similar to the one pointed out in Daman Singh
(supra).
23.
Here
the High Court relied on the principle of sanctity of a record entered by a Court
and held that what is recited in the Court record is sacrosanct. The High Court,
in the process, fell into an error by equating the record of proceedings in a
Tribunal with proceedings in a court of record. Under our hierarchy of Courts, a
High Court (under Article 215) and the Supreme Court (under Article 129) are recognized
as Courts of Record. A Motor Accidents Claims Tribunal constituted under the Motor
Vehicles Act, 1988 is a Civil Court of limited jurisdiction, and is certainly not
a Court of Record. The infallibility of its formal record is one of the
earliest marks of a Court of Record, but it has developed other characteristics
too (See A History of English Law by W.S. Holdsworth, Vol 5, p. 158).
24.
In
Reg v. Aaron Mellor, reported in (1858) 7 Cox's Criminal Law Cases 454, it was held
"We must consider the statement of the learned judge as absolute verity and
we ought to take his statement precisely as a record and act on it in the same manner
as on a record of Court which of itself implies an absolute verity."
25.
This
has been followed by this Court in State of Maharashtra v. Ramdas Srinivas
Nayak & Anr., reported in AIR 1982 SC 1249.
26.
Therefore,
the principle of sanctity of recitals in Court proceedings is available to a Court
of Record. This principle cannot be stretched to the proceedings of a tribunal.
Unfortunately the High Court failed to appreciate this.
27.
Now
the question which arises is whether the matter should be remanded by this Court?
Having regard to the materials on record, this Court is of the opinion that the
matter should not be remanded, keeping in mind the period which has elapsed in
between since the accident took place in 1990, and the fact that the appellant
had been bedridden since then.
28.
Admitted
evidence about her medical disabilities is that she has 100% disability which is
permanent in nature with no sign of recovery.
29.
It
is of course true that the appellant's case that she was running a beauty parlour
prior to the accident could not be proved, specially her income from the said parlour
has not been proved. The existence of the beauty parlour is however not in
dispute.
30.
Assuming
the appellant is not running the parlour, the fact remains that she has two children
and her husband died prior to the incident. Therefore, the dependence of the children
and the running of the family is to be shouldered by her even though she is
infirm and bedridden. She also needs someone to help her in her daily life. She
has to have recurring medical expenses.
31.
Just
because she is a homemaker is no reason why the courts should be miserly in fixing
compensation for her. A Bench of this Court in Arun Kumar Agrarwal & Anr. v.
National Insurance Co. Ltd. & Ors., reported in 2010 (9) SCC 218, had
occasion to consider this question and held that the work of homemakers and housewives
should be properly assessed and in making assessment of compensation payable to
them, they should not suffer from a gender bias.
32.
It
is an accepted principle that compensation may be so assessed that the interest
accruing therefrom will be sufficient for the maintenance of the family of the
victim and the concept of compensation is wider than mere damages.
33.
Considering
all this, we grant compensation of Rs.15 lacs (Rupees Fifteen Lacs) with interest
at the rate of 8% on the enhanced compensation from the date of filing the claim
petition before MACT till date of realization.
34.
Compensation
on the aforesaid basis must be paid to the concerned MACT by the respondents within
six weeks by a demand draft. Thereupon the MACT shall forthwith deposit the same
in the bank account of the appellant.
35.
The
appeal is thus allowed.
36.
No
order as to costs.
.......................J.
(G.S. SINGHVI)
.......................J.
(ASOK KUMAR GANGULY)
New
Delhi
April
26, 2011
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