1 IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI ([CASE NUMBER]/13) (Grievous Injury Case) [ENTITY], S/o Mr. Ambar Ahmad @ Ambar Ali, R/o. 127A & B Extension Sultan Puri, Delhi. Petitioner Versus 1) Sh. [ENTITY] (Owner) W/o Sh. B.S.Pandey, R/o. 23/241, Pocket 23, Sector 24, Unity Apartment, Rohini, Delhi. 2) Sh. [ENTITY] (Driver) S/o Sh. Jagdish Rai, R/o. 414, Village & Post Rithala, Delhi. 3) [ENTITY] Scop Tower Laxmi Nagar District Centre, (Policy No. [CASE NUMBER] valid from 14.3.2008 to 13.3.2009) Respondents Date of institution 22.09.2008 Date of decision 20.09.2013 (Application u/s 166 and 140 of Motor Vehicles Act for grant of compensation) JUDGMENT:
1 Petitioner aged about 39 years filed the present claim petition claiming therein a compensation of Rs. 5 lakhs alongwith interest on the ground that on 21.8.2008 the petitioner was coming from village Pooth Kalan after fetching patties and was going towards Sultan Puri side on his cycle, in order to supply the Bakery Product to the various customers. At about 2.30 PM when the injured/petitioner reached near Gram Sabha Sultan Puri, Pooth Kalan Road, Delhi suddenly a RTV bearing its registration No. DL 1V A 5715 being driven by respondent No.2 in a rash and negligent manner hit the petitioner from behind with great force/impact. With this sudden and forceful impact the petitioner fell down on the road alongwith cycle and the bakery products were spread away on the road and the wheels of the RTV passed over the body of the petitioner due to which he received multiple injuries on his abdominal and lateron the gall bladder of injured was removed in order to save the life of the injured. The injured was removed to Sanjay Gandhi Memorial Hospital where he was admitted and remained there for quite long time and underwent operation and also removal of the Gal bladder, multiple stitches were applied from stomach to chest. A criminal case under [SECTION] [ACT] was registered against respondent no.1 vide FIR No. 547/08 in police station Sultan Puri.
2. Petitioner claimed sum of Rs. 5 lakhs alongwith interest as compensation from the respondents being driver and owner and insurance company under various pecuniary and non pecuniary heads.
3. Respondents no. 1 & 2 filed their separate written statements wherein they denied all allegations against them. Respondent No.3/Insurance company filed separate WS wherein it denied all allegations and evaded its liability on technicalities.
4. On the basis of pleadings of the parties, following issues were framed on 18.12.2009:-
1.Whether the petitioner received injuries in the accident occurred on 21.8.2008 at about 2.30 PM ner Gram Sabha, Sultan Puri, Pooth Kalan Road, Delhi due to rash and negligent driving of R2 of vehicle No. DL 1VA 5715 ? OPP
2.Whether the petitioner is entitled to compensation, if so, to what an extent and from which of the respondents? OPP
3.Relief
5. In order to prove his case, petitioner examined himself as PW1. In addition to that petitioner has filed certain documents, i.e. Ex.PW1/1 to Ex.PW1/6.
Petitioner also examined Sh. [ENTITY], Record Clerk from Sanjay Gandhi Hospital who brought the summoned record and deposed that injured [ENTITY] was admitted in the hospital on 21.8.2008 and was discharged on 28.8.2008. Hke proved the attested photocopies of entire medical treatment record with MLC as Ex.PW2/1 (containing 33 sheets). Thereafter PE was closed.
Respondent No.3 examined Sh. [ENTITY], Administrative officer of insurance company as R3W1. He proved the notice U/[SECTION] [ACT] as Ex.PWR3W1/1, postal receipts as Ex.R3W1/2 and 3.The notice was neither returned back nor replied or complied from the driver or owner. The policy schedule cum certificate of insurance in respect of insurance company was proved as Ex.R3W1/4. He proved the certified copies of the seizure memo of driving licence of R2 and registration certificate of the offending vehicle as Ex.R3W1/5 to 7. The verification report in respect of driving licence of R2 was proved as Ex.R3W1/8. Thereafter RE was closed.
6. I have heard counsel for parties and gone through the record. My decision on the above mentioned issues is as under:
Issue no.1:-
7. The proof required in MACT claim petition are less than the proof required to criminal offence or a civil case. The principles to be followed in the case of motor accident claims has been laid down by the Hon'ble High Court of Guwahati in case cited as [PRECEDENT] wherein it is held that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
In [PRECEDENT], Hon'ble Supreme Court has observed as under:-
"Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
8. The police has prosecuted the respondent no.1 for causing the accident due to rash and negligent driving of the offending RTV bearing No. DL 1V A 5715 by filing the charge sheet. Petitioner Mr. [ENTITY] being injured/eye witness of accident in his statement as PW1 specifically narrated the way and manner in which the accident took place and corroborated his story by way of affidavit. Witness has clearly stated that the accident took place due to rash and negligent driving of offending vehicle. It is the case of the R-2 that he has been falsely implicated in this case. No complaint has been lodged by driver and owner of the offending vehicle before any higher authority regarding the fact that R-1 and R-2 has been falsely implicated in this case at the instance of injured or IO. It is not the case of R-2 that injured or IO of the case nursed grudge or enmity with owner of the vehicle or they are known to each other. Respondent No. 2 has failed to bring himself in the witness box in order to prove his defence, hence adverse inference it to be drawn against him. Hence the R1 and R2 failed to prove that accident did not take place due to rash and negligent driving of the vehicle driven by R-2. Nothing has come in cross- examination by respondents of PW1 that accident did not take place due to rash and negligent driving of R-2. Testimony of petitioner is trustworthy and unimpeachable who deposed that accident took place due to rash and negligent driving of R-2 due to which he sustained grievous injuries as mentioned above. Hence this issue is decided in favour of petitioner and against the respondents.
Issue no.2:-
9. Petitioner was taken to the hospital after sustaining injuries on 21.8.2008 and injuries suffered were grievous in nature.
10. Hon'ble Supreme Court in [ENTITY] vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has observed as under:
"The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term "compensation" used in [SECTION] of the [ACT] (for short, "the Act") would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses' make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under [SECTION] of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of the compensation in such cases should invariably include pecuniary andnon- pecuniary damages.
In [PRECEDENT], this Court while dealing with a case involving claim of compensation under the [ACT], referred to the judgment of the Court of Appeal in [PRECEDENT] and observed:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance, (ii) loss of earning of profit up to the date of trial, (iii) other material loss. So for non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future, (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e, on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life".
In the same case, the court further observed:
"In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards".
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka MANU/SC/0803/2009: (2009) 6 SCC 1, the three-Judge Bench was dealing with a case arising out of the complaint filed under the [ACT]. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs. 15 lakhs to Rs. 1 crore, the Bench made the following observations which can appropriately be applied for deciding the petitions filed under [SECTION] of the Act:
"At the same time we often find that a person injured in an accident leaves his family in greater distress vis- -vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution ensures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity".
In [PRECEDENT], this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the Judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
In [PRECEDENT], the Court considered the plea for enhancement of compensation made by the Appellant, who was a student of final year of engineering and had suffered 70% disablement in a motor accident. After noticing factual matrix of the case, the Court observed:
"We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as ho was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered".
In [PRECEDENT], the court considered some of the precedents and held:
"The provision of the [ACT], ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant 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 for as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and hie inability to earn as much as he used to earn or could have earned".
In our view, the principles laid down in [PRECEDENT] (supra) and [PRECEDENT] (supra) must be followed by all the Tribunals and the High Court in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident".
The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages) I)Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure.
II)Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising;
a) Loss of earning during the period of treatment; b) Loss of future earnings on account of permanent disability. iii)Future medical expenses. Non Pecuniary damages (General damages)
iv)Damages for pain suffering and trauma as a consequence of the injuries.
v)Loss of amenities (and/or loss of prospects of marriage).
Loss of expectation of life (shortening of normal longevity).
Pecuniary damages (Special damages):
Medical Expenses
11. The petitioner has stated that he received grievous injuries all over his body and was removed to Sanjay Gandhi Memorial Hospital, Delhi from the spot of accident where he remained admitted from 21.8.2008 to 28.8.2008. In support of his claim he examined PW2 Sh. [ENTITY], Record Clerk from said hospital who proved the entire medical treatment record alongwith MLC as Ex.PW2/A. Admittedly the petitioner got treatment from government hospital but he submitted that he spend a sum of Rs. 3193/- upon his medicines which has not been disputed by the insurance company. As such he is granted a sum of Rs.
3193/- against actual medical expenses to which there is no dispute from insurance company.
Special diet and conveyance charges
12. No proof of spending on conveyance and special diet is brought on record but it is a fact that normally in case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc is provided instead of or in addition to the normal food. He must have visited hospital in some transport but in absence of any evidence in this regard and after considering her injuries, period of hospital admission and treatment etc., I am of the view that maximum petitioner can be paid lump sum of Rs. 7,000/- towards special diet and Rs. 7,000/- towards conveyance charges.
Loss of Income:
13. Petitioner has suffered grievous injuries all over his body as per MLC and other medical documents proved on record collectively as Ex.PW2/1. Injured was removed to Sanjay Gandhi Memorial Hospital, Delhi from the spot of accident where he remained admitted from 21.8.2008 and discharged on 28.8.2008. After the discharge his treatment was continued there as an outdoor patient. Due to the accident the petitioner suffered grievous injuries on his abdominal and his gal bladder was removed. Further it is stated that he was possessing a very good health at the time of accident and due to the said accident, the physique of the petitioner was deteriorated. Furthermore it is submitted by the petitioner that at the time of accident was self employed and was supplying the bakery products to the nearby shopkeepers and also to the nearby outlets. From these business the petitioner was earning an amount of Rs. 8000/- per month but he has failed to prove any proof pertaining to his occupation or earnings. In such situation, relying upon the precedent of Hon'ble Delhi High Court in [PRECEDENT] and [PRECEDENT] decided on 25.8.2009 raising a legal fiction, the assumed income of injured is treated based upon Minimum Wages applicable to a unskilled labour since the no document proved on record. Hence I consider the injured to be earning minimum wages of Rs. 3633/- per month for the calculation of loss of income and I grant him loss of income for the period of 3 months i.e. Rs. 10,899/- (3633 X 3 = 10,899/-).
Non-pecuniary damages (General damages):
Pain & Sufferings etc.
14 As per the case of [ENTITY] (Supra), it is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person as a result of accident. The gal bladder of the injured was removed due to the accident. Even if the victim of accident gets out of grievous injuries, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the injured was a young man of 39 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, ends of justice will be met by awarding her a sum of Rs. 50,000/- in lieu of pain, suffering, inconvenience, frustration, hardship and trauma caused due to injuries suffered in accident.
15 As the offending vehicle i.e RTV bearing registration No. DL 1VA 5715 was insured with the respondent No. 3/insurance company from vide policy [CASE NUMBER] valid from 14.3.2008 to 13.3.2009 which has been placed on record. Counsel for the insurance company has argued that the driver of the offending vehicle was not having a valid driving licence at the time of accident. In support of his claim the insurance company examined Sh. [ENTITY], Administrative officer of insurance company as R3W1. He proved the notice U/[SECTION] [ACT] as Ex.PWR3W1/1, postal receipts as Ex.R3W1/2 and 3. The notice was neither returned back nor replied or complied from the driver or owner. The policy schedule cum certificate of insurance in respect of insurance company was proved as Ex.R3W1/4. He proved the certified copies of the seizure memo of driving licence of R2 and registration certificate of the offending vehicle as Ex.R3W1/5 to 7. The verification report in respect of driving licence of R2 was proved as Ex.R3W1/8. Counsel for insurance company has cited the judgment of Hon'ble Supreme Court directly on the point and judgment of Hon'ble High Court of Kerala cited by the counsel for R1 and R2 in view of that though it is later in period cannot be considered in law on the point in view of the clear dicta of the Hon'ble Supreme Court reported in 2008 (3) TAC 20 (SC) decided by Hon'ble Mr. Justice [ENTITY] [ENTITY] on 12th May 2008 on the point directly involved in this case which was followed by the Hon'ble High Court in [CASE NUMBER] and it is ordered that following the dicta of Hon'ble Supreme Court, the insurance company will make the payment of amount at first instance and will have the recovery right to get it same recovered from the jointly from driver and owner of offending vehicle.
16 In view of the above discussions, this issue is decided in favour of petitioner, by holding that he is entitled to get the following total compensation from the respondent no.3/insurance company with the right to the insurance company to recover the same jointly from the driver and owner of the offending vehicle vehicle i.e. R1 and R2.
A) Pecuniary damages (Special damages): a) Medical expenses Rs. 3,193/-
c) Special diet Rs. 7,000/-
d) Conveyance charges Rs. 7,000/-
e) Loss of income Rs. 10,899/-
B) Non-pecuniary damages (General damages):
a) Pain, suffering, inconvenience Rs. 50,000/- frustration, hardship and trauma-
Total Rs. 78,092/- Relief 17 Petitioner is entitled to a sum of Rs. 78,092/- alongwith interest @ 9%
as per the judgment in case [PRECEDENT], from filing of petition i.e 22.09.2008 till the payment is made by the respondent No. 3/insurance company within 30 days from the date of this award alongwith accrued interest with the right to the insurance company/R3 to recover the same jointly from the driver and owner of the offending vehicle vehicle i.e. R1 and R2.
18 It is further ordered that out of the total compensation amount Rs. 10,000/- be released to the petitioner through his saving bank account and remaining compensation amount with upto date interest be kept in the form of FDR in the name of petitioner initially for the period of five years (thereafter it be renewed from time to time) with SBI, Tis Hazari Court branch, Delhi, with liberty to the petitioner to withdraw the monthly interest on the said FDR by way of saving bank account of the petitioner. The said FDR shall not be encashed without permission of the court. No ATM facility, loan or advance shall be granted to the petitioner on the FDR. The original FDR be kept by the bank itself and only the attested copy of said FDR be handed over to the petitioner.
19 Copy of this judgment be given to petitioner and counsel for respondents.
20 Put up for payment on 19.10.2013.
Announced in the open (D.K. MALHOTRA) Court on 20.09.2013 JUDGE, MACT (NORTH-II) DELHI 20.09.2013 Pr. Counsel for the parties. Final arguments heard.
Vide separate judgment, petition stands disposed off.
Put up for payment on 19.10.2013.
Announced in the open (D.K.MALHOTRA) Court on 20.09.2013 JUDGE, MACT (NORTH-II) DELHI