IN THE COURT OF MS. [ENTITY] : PRESIDING OFFICER MACT : KARKARDOOMA COURTS (EAST) : DELHI. SUIT NO. 145 OF 2011 UNIQUE CASE I.D. NO. : 02402C0122022011 [ENTITY] S/o Sh. Jagan Nath R/o H.No.482, Vandana Enclave, Khoda Colony, Ghaziabad, U.P. PETITIONER VERSUS 1. [ENTITY] S/o Sh. Jagdish Singh R/o H.No.A383, G.D. Colony, Mayur Vihar, PhaseIII, Delhi. DRIVER 2. Smt. [ENTITY] W/o Sh. Radhey Shyam R/o 208A, PocketC, Mayur Vihar, PhaseII, Delhi. REGD. OWNER 3. Smt. [ENTITY] W/o Sh. Anil Kumar R/o 261 B, EBlock, Mayur Vihar, PhaseII, Delhi. ACTUAL OWNER 4. HDFC Ergo General Insurance Co. Ltd. Off. At : Connaught Place, Ground Floor, Ambadeep Building14, Kasturba Gandhi Marg, New Delhi01. INSURER RESPONDENTS
[CASE NUMBER] PAGE NO. 1/19 SUIT NO. 146 OF 2011 UNIQUE CASE I.D. NO. : 02402C0122072011 [ENTITY] S/o Sh. Jagdish Singh R/o H.No.D11, Gazipur Village, Delhi96. PETITIOENR VERSUS
1. [ENTITY] S/o Sh. Jagdish Singh R/o H.No.A383, G.D. Colony, Mayur Vihar, PhaseIII, Delhi. DRIVER
2. Smt. [ENTITY] W/o Sh. Radhey Shyam R/o 208A, PocketC, Mayur Vihar, PhaseII, Delhi. REGD. OWNER
3. Smt. [ENTITY] W/o Sh. Anil Kumar R/o 261 B, EBlock, Mayur Vihar, PhaseII, Delhi. ACTUAL OWNER
4. HDFC Ergo General Insurance Co. Ltd.
Off. At : Connaught Place, Ground Floor, Ambadeep Building14, Kasturba Gandhi Marg, New Delhi01. INSURER RESPONDENTS SUIT NO. 147 OF 2011 UNIQUE CASE I.D. NO. : 02402C0122042011 [ENTITY] S/o Sh. Jait Singh R/o H.No.D133, Saraswati Vihar, BlockA, Ghaziabad, U.P. PETITIOENR [CASE NUMBER] PAGE NO. 2/19 VERSUS
1. [ENTITY] S/o Sh. Jagdish Singh R/o H.No.A383, G.D. Colony, Mayur Vihar, PhaseIII, Delhi. DRIVER
2. Smt. [ENTITY] W/o Sh. Radhey Shyam R/o 208A, PocketC, Mayur Vihar, PhaseII, Delhi. REGD. OWNER
3. Smt. [ENTITY] W/o Sh. Anil Kumar R/o 261 B, EBlock, Mayur Vihar, PhaseII, Delhi. ACTUAL OWNER
4. HDFC Ergo General Insurance Co. Ltd.
Off. At : Connaught Place, Ground Floor, Ambadeep Building14, Kasturba Gandhi Marg, New Delhi01. INSURER RESPONDENTS Represented by : Ms. [ENTITY], counsel for all petitioners.
Respondents no.1, 2 and 3 are ex parte.
Mr. [ENTITY], counsel for respondent no.4.
Presented on : 25.01.2011 Reserved for Order on : 16.01.2015 Date of Award : 03.02.2015 A W A R D
1. By this common judgment, I shall dispose off these three [CASE NUMBER] PAGE NO. 3/19 Petitions No.145/11, 146/11 and 147/11 filed by petitioners [ENTITY], [ENTITY] and [ENTITY] respectively in a road accident which occurred on 24.12.2010. In the said accident, petitioner [ENTITY] suffered grievous injuries. Petitioner [ENTITY] suffered grievous injuries and resultant permanent disability. Petitioner [ENTITY] suffered simple injuries in the said accident.
2. The FIR was registered on the complaint of [ENTITY] S/o [ENTITY], one of the passengers in the RTV Bus. He stated that on 24.12.2010 at about 10.20 AM, he alongwith other passengers was travelling in RTV Bus bearing registration No. DLIVA3918 which was driven by respondent no.1 in high speed and reckless manner. After overtaking another RTV near Dallupura T. Point, it dashed against one [ENTITY] Car No. DL2CAF4501. The RTV bearing no. DLIVA3918 (the offending vehicle) got disbalanced and overturned and dashed against a motorcyclist i.e. Petitioner [ENTITY], coming on his motorcycle bearing no.DL6SAE3108. The passengers of RTV Bus i.e. petitioners [ENTITY] and [ENTITY], sustained injuries due to the rash and negligent driving of respondent no.1, while motorcyclist [ENTITY] suffered grievous injuries. Petitioner [ENTITY] [CASE NUMBER] PAGE NO. 4/19 Bhati suffered serious injuries and resultant permanent disability. They all were taken to LBS Hospital. A case FIR No. 588/10, u/[SECTION] [ACT] was registered at Police Station New Ashok Nagar against respondent no.1.
3. The respondent no.1 is the driver; respondent no.2 is the registered owner; respondent no.3 is the owner in possession and respondent no.4 is the Insurer of the offending vehicle, they all are jointly and severally liable to make the payment of compensation to the all petitioners.
4. It is pertinent to mention that the respondent no.1 and respondent no. 2 were proceeded ex parte vide order dated 05.11.2012.
5. The respondent no. 4 filed written statement in which it is stated that owner was not having a valid permit for plying the vehicle; that respondent no.1 was not holding a valid driving licence as on the date of accident.
6. Vide order dated 20.04.2013, all the [CASE NUMBER] were consolidated and on the basis of the pleadings, following common issues were framed :
1.Whether petitioner has suffered injuries in road side accident on 24.12.2010 involving vehicle i.e. RTV bus bearing registration no. DL1VA3918 being driven allegedly in a rash and negligent manner by R1? [CASE NUMBER]
2. To what amount of compensation, if any, the petitioner is entitled to and from whom?
3. Relief.
7. In [CASE NUMBER], petitioner [ENTITY] has examined himself as PW1 and filed his affidavit Ex.PW1/A. He relied upon documents i.e. his Voter I Card as Ex.PW1/1, DAR as Ex.PW1/2 and Discharge Summary as Ex.PW1/3.
8. In [CASE NUMBER], petitioner [ENTITY] has examined himself as PW1 and filed his affidavit Ex.PW1/A. He relied upon documents i.e. treatment record and medical bills amounting to Rs. 1,00,188/ as Ex.PW1/1 (colly.), Disability Certificate as Ex.PW1/2, Chargesheet as Ex.PW1/3, MLC as Ex.PW1/4, FIR as Ex.PW1/5, RC of offending vehicle as Ex.PW1/6, DL of respondent no.1/driver as Ex.PW1/7 and site plan as Ex.PW1/8. Petitioner also examined PW2 Sh. [ENTITY] from Income Tax Office who proved ITRs for the year 200809, 201314 and 201415 as Ex.PW2/1 (colly.).
9. In [CASE NUMBER], petitioner [ENTITY] has examined himself as PW1 and filed his affidavit Ex.PW1/A. He relied upon documents i.e. medical treatment record as Ex.PW1/1 and Voter I Card as Ex.PW1/2.
[CASE NUMBER]
10.In all cases, the Respondent no.4 has examined Sh. [ENTITY], Asstt. Manager (Legal) as R4W1 relied upon the documents i.e. Notices U/[SECTION] [ACT] alongwith postal receipts sent to respondent no.2 and 1 as Ex.R4W1/1 and R4W1/2 respectively, Insurance Policy as Ex.R4W1/3, DL of driver as Ex.R4W1/4, Verification Report as Ex.R4W1/5 and Form 54 of DAR as Ex.R4W1/6.
11.I have heard Ld. Counsel for parties, perused the entire material carefully in the light of relevant statutory provisions of law and my findings on the issues are as follows : ISSUE NO.1 (IN ALL CASES) :
Whether petitioner has suffered injuries in road side accident on 24.12.2010 involving vehicle i.e. RTV bus bearing registration no. DL1VA3918 being driven allegedly in a rash and negligent manner by R1?
12.For succeeding in a claim petition filed under [SECTION] of the [ACT], it is for the petitioners to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver. This is sine qua non for getting the relief.
13.The petitioners stated in their affidavits that on 24.12.2010 at about 10.20 AM, they all sustained injuries due to the rash and negligent driving of respondent no.1 as he was driving the DLIVA3918 (the [CASE NUMBER] PAGE NO. 7/19 offending vehicle) in a zigzag and negligent manner. Police after investigation has filed charge sheet against respondent no.1 under [SECTION] [ACT] in case FIR No.588/10 Police Station New Ashok Nagar which is primafacie suggestive of negligence of respondent no.1 in driving the vehicle at the time of accident. The location of the vehicles in site plan and their positioning would suggest that reckless manner in which DLIVA3918 (the offending vehicle) had hit the two other vehicles i.e. [ENTITY] Car and a motorcycle. In [ENTITY] and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Hon'ble Supreme Court held :
"8. In a petition under [SECTION] of the Act, the petitioners were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the [ACT]. Para 15 of the report is extracted hereunder :
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the petitioners. The petitioners were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
14.The report in [ENTITY] (Supra) was relied on by the Hon'ble [CASE NUMBER] Supreme Court in its latest judgments in [PRECEDENT] and [PRECEDENT]."
15.In the case of [PRECEDENT], the Hon'ble High Court of Delhi has held :
" On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under [SECTION], [ACT] against the driver;
(iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the [ACT] are not akin to proceedings in a civil suit and hence strict rules of evidence are not requires to be followed in this regard.
Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver".
16.In case of [PRECEDENT], an adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written [CASE NUMBER] PAGE NO. 9/19 statement. It was noted that there was nothing on record to show that the petitioners had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case.
17.The issue thus stands decided in favour of all petitioners holding that the accident happened as a result of negligent driving by respondent no.1, in which all petitioners received injuries. ISSUE NO.2 :
To what amount of compensation, the petitioners are entitled to?
In [CASE NUMBER] :
18.Soon after the accident, all petitioners were taken to LBS Hospital. Petitioner [ENTITY] stated that he suffered fracture of bone of left shoulder besides other injuries. In the case of [PRECEDENT] [CASE NUMBER] decided on 18.10.2010, following principles were laid down by the Hon'ble Supreme Court for determining compensation payable to road traffic accident victims :
i) The compensation payable to the petitioner who is a victim of road accident should, to the extent possible, fully and adequately restore the petitioner to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equatable [CASE NUMBER] manner.
ii) Compensation payable in injury cases is payable under two heads. They are pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii) (a) Loss of earning (and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (iii) Future medical expenses. Nonpecuniary damages (General Damage) are (iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities and/or loss of prospects of marriage) and (vi) loss of expectation of life (shortening of normal longevity).
iii) In routine personal injury cases compensation is awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the petitioner, that compensation is granted under any of the heads (ii) (b),
(iii) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life".
19.Petitioner [ENTITY] is entitled for the compensation on account of pain and suffering. Considering the period of treatment underwent and the nature of injuries alongwith period of rest, I award a sum of Rs.50,000/ to him under the head Pain and Suffering.
20.No medical bills are proved by the petitioner on record. However, [CASE NUMBER] he is awarded a lumpsum amount of Rs.5,000/ for Cost of Treatment.
21.With the kind of injuries, I guess he would have remained without work at least for a period of three months. He deposed that he was doing a private job and was earning Rs.7,000/ per month. However, in the absence of any evidence of such earnings or avocation, he is only entitled to minimum wages of unskilled workman. These were Rs.5,278/ per month and I grant Rs. 15,834/ (Rs.5,278.00 x 3) as loss of wages to him.
22.In view of the law in [PRECEDENT], the Hon'ble High Court of Delhi has held that there cannot be any deduction if domestic help is obtained from a family member. This judgment was further relied upon by the Hon'ble High Court of Delhi in the case of [PRECEDENT] 04.07.12. Therefore, on a lumpsum basis, the petitioner is awarded a compensation of Rs.15,000/ for three months as Attendant's Charges.
23.The petitioner is also awarded compensation of Rs.10,000/ towards Special Diet and Rs.10,000/ for Conveyance Charges. [CASE NUMBER] Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to him :
1 Towards pain and sufferings Rs. 50,000.00 2 Towards servant/attendant for three months Rs. 15,000.00 3 Towards conveyance and special diet (without bills) Rs. 20,000.00 4 Towards medical bills Rs. 5,000.00 5 Towards loss of earning for three months Rs. 15,834.00 Total = Rs.1,05,834.00 Therefore, in my opinion the petitioner [ENTITY] is entitled to Rs.1,05,834/ which shall be the just compensation to him.
IN [CASE NUMBER] :
24.PW1, petitioner [ENTITY] stated that on 24.12.2010, he was admitted to LBS Hospital and thereafter shifted to Ram Lal Kundan Lal Orthopedic Hospital. He suffered fracture of left clavicle, fracture of shaft and femur of right leg and other injuries. He suffered permanent disability of 13% in relation to his right lower limb as per Disability Certificate Ex. PW1/2.
25.Considering the period of treatment, the nature of injuries and overall facts of the case, I assess Rs.80,000/ as compensation towards Pain and Suffering to the petitioner. [CASE NUMBER]
26.Petitioner is entitled for the compensation on account of future loss due to disability. While assessing such future loss, his functional disability has to be assessed, which is to be judged with reference to the nature of work being performed by him. Petitioner deposed that he was working with M/s. M.B. Constructions as a Building Constructor at Greater Noida and was earning Rs.10,000/ p.m. The accident has largely curtailed his working capacity. It was held in "[PRECEDENT]" that 'loss of future income' as a head of compensation applies to all persons, whether earning or not at the time of accident. Considering the facts and circumstances, the functional disability is taken as 6% in relation to his whole body, in view of dictum of "[PRECEDENT]".
27.From the income tax documents Ex.PW2/2, date of birth of petitioner is shown as 06.07.1978. He was aged 32 years at the relevant time. The petitioner has proved his ITRs for the assessment year 200708 and the year 200809. PW2 Sh. [ENTITY], Income Tax Inspector from Income Tax Office stated that the Returns for these years after necessary deduction under [SECTION] was Rs.1,01,000/ and Rs.1,11,000/ for the assessment [CASE NUMBER]. Thus the income can be assessed on the basis of taking the average of these years which comes to Rs. 1,06,000/ p.a. and the monthly comes to Rs. 8,833/. Relying upon the judgment of [ENTITY] & Ors. Vs. [ENTITY] and [PRECEDENT] dated 30.09.2011, he is entitled for addition of 50% increase while assessing the future prospects and thus, the same is assessed as Rs.8,833.00 + Rs. 4,417.00 (50%) = Rs.13,250/ per month. On applying the multiplier of 16, the Future Loss of Income comes to Rs. 1,52,640/ (13,250.00 x 12 x 16 x 0.06).
28.Petitioner will have to endure the inconvenience on account of injuries and stress for the whole of his remaining life. Keeping in mind all these facts and circumstances, he is awarded a sum of Rs. 50,000/ towards Loss of Amenities and Enjoyment of Life.
29.Petitioner has placed on record the Medical Bills of Rs.1,00,188/ alongwith an affidavit. Thus, an amount of Rs.1,00,188/ is awarded under the head Medical Bills.
30.With the kind of injuries suffered by his, it can be safely assumed that he would have suffered loss of earning capacity at least for a period of six months. He is awarded Rs.52,998/ (Rs.8,833.00 x 6) [CASE NUMBER] PAGE NO. 15/19 for six months for Loss of Wages.
31.The petitioner is also awarded a compensation of Rs.10,000/ for Special Diet and Rs.10,000/ for Conveyance Charges.
32.On a lump sum basis, the petitioner is awarded a compensation of Rs.20,000/ for six months as Attendant's Charges.
33.Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the petitioner:
1 Towards Pain & Sufferings Rs. 80,000.00 2 Towards Loss of Amenities Rs. 50,000.00 3 Towards future loss of income Rs. 1,52,640.00 3 Towards servant/attendant for 6 months Rs. 20,000.00 4 Towards conveyance and special diet Rs. 20,000.00 5 Towards medical bills Rs.1,00,188.00 6 Towards loss of earning for 6 months Rs. 52,998.00 Total = Rs.4,75,826.00 Therefore, petitioner [ENTITY] is entitled to Rs.
4,75,826/ which shall be the just compensation to him. In [CASE NUMBER] :
34.PW1 [ENTITY] stated that he suffered nasal injuries. Except OPD Ticket Ex.PW1/1 and MLC of LBS Hospital, there is nothing on record in support of averments of petition. He stated [CASE NUMBER] that he was doing the work of tailoring and stitching and was earning Rs.250/ per day. There is no document placed on record in support of his job or avocation. However, it can be assumed that the injuries would have taken some time to heal up. No medical bills are placed on record by petitioner. Therefore, under the facts and circumstances, I consider that Rs.10,000/ would be the just compensation under all allowable heads to petitioner [ENTITY].
LIABILITY
35.The insurance company has examined Sh. [ENTITY], Asstt. Manager (Legal) as R4W1 who has proved on record the Notice Under [SECTION] [ACT] upon respondent no.1 and 2 as Ex.R4W1/2 and R4W1/1 respectively. He states that the owner was not holding a permit to ply the vehicle on the route, where the accident happened. He states that the driver was also not holding a valid driving licence. The respondent no.1 and respondent no.2 have not produced the Driving License or Permit even during the proceedings. There is presumption of service of notice, sent by respondent no.4 on the correct addresses of respondents, who have failed to produce the driving licence and Permit, even during proceedings before Tribunal. An inference can be drawn that there [CASE NUMBER] was no valid driving licence and Permit at the time of accident. I am aware of the judgment of Hon'ble Apex Court in '[PRECEDENT]. Therefore, respondent no.4 cannot be fastened with the liability and is entitled to recovery rights against respondents no.1, 2 and 3 as per law.
RELIEF
36.All the petitions stand allowed. In [CASE NUMBER], the respondent No.4/Insurance company, in the first instance, is liable to pay the compensation of Rs.1,05,834/ to the petitioner [ENTITY], in [CASE NUMBER], Rs.4,75,826/ to petitioner [ENTITY] and in [CASE NUMBER], Rs. 10,000/ to petitioner [ENTITY], but with liberty to recover the same from respondents no.1, 2 and 3 as per law. Following the judgment of [PRECEDENT] passed by Hon'ble Delhi High Court, the respondent no.4 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to all the petitioners.
37.In [CASE NUMBER], an amount of Rs.75,826/ shall be released to [CASE NUMBER] the petitioner [ENTITY] forthwith and the remaining amount shall be kept in the form of Two FDRs of equal amount for a period of five years with the release of monthly periodical interest to him.
38.On request of petitioner, Bank shall transfer the amount to the Savings Account of petitioners.
39.The award amount alongwith interest be deposited by respondent no.4/Insurance Company, within 30 days in the court. In case, even after passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of [PRECEDENT], this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
File be consigned to record room.
Announced in the open Court Dated : 3rd February, 2015 (MS. [ENTITY]) PRESIDING OFFICER MACT (EAST) KARKARDOOMA COURTS, DELHI.
[CASE NUMBER] [CASE NUMBER] 03.02.2015 Present : Ld. Counsel for parties.
Vide separate order announced in the open court today, all the petitions are allowed.
In [CASE NUMBER], the respondent No.4/Insurance company, in the first instance, is directed to pay the compensation of Rs.1,05,834/ to the petitioner [ENTITY], in [CASE NUMBER], Rs.4,75,826/ to petitioner [ENTITY] and in [CASE NUMBER], Rs.10,000/ to petitioner [ENTITY], but with liberty to recover the same from respondents no.1, 2 and 3 as per law. Following the judgment of [PRECEDENT] passed by Hon'ble Delhi High Court, the respondent no.4 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to all the petitioners.
In [CASE NUMBER], an amount of Rs.75,826/ shall be released to the petitioner [ENTITY] forthwith and the remaining amount shall be kept in the form of Two FDRs of equal amount for a period of five years with the release of monthly periodical interest to him.
On request of petitioner, Bank shall transfer the amount to the Savings Account of petitioners.
The award amount alongwith interest be deposited by respondent no.4/Insurance Company, within 30 days in the court. In [CASE NUMBER] case, even after passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of [PRECEDENT], this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
List for reporting compliance on 17.03.2015.
(MS. [ENTITY]) P.O. MACT (EAST)/KKD./DELHI/03.02.2015 [CASE NUMBER] PAGE NO. 21/19