Urviben Chiragbhai Sheth vs Vijaybhai Shambhubhai Joranputra & Ors

Urviben Chiragbhai Sheth ...Appellant(s)

- Versus -

Vijaybhai Shambhubhai Joranputra & Ors. ...Respondent(s)

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

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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,

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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

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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.

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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.

5 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

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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

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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.

8 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

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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.

10 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).

11 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).

12 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?

13 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

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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.

15 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.

16 36. No order as to costs.

.......................J.

(G.S. SINGHVI)

.......................J.

New Delhi (ASOK KUMAR GANGULY)

April 26, 2011

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