:1: IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI (MACT No. 345/11) [ENTITY] S/o Sh. [ENTITY] R/o House NO. 106, Block-A, Behind MCD School, Vijay Nagar, Village Bawana, Delhi Petitioner Versus 1) [ENTITY] S/o Sh. Om Parkash @ Parkash (Driver) R/o H. No. 14, V.P.O. Munirpur Distt. Sonipat. 2) [ENTITY] S/o Sh. Ram Kishore (Owner) R/o 445, A Block, Jahangirpuri, Delhi-110033. 3) HDFC ERGO General Insurance Company Ltd. (Insurer) C-302, IIIrd Floor, Ansal Plaza, HUDCO Place, Andrews Ganj, New Delhi Respondents Date of institution 24.10.2011 Date of decision 04.04.2012 (Petition u/s 166 and 140 of [ACT] for grant of compensation) JUDGMENT:
Petitioner [ENTITY] aged about 22 years sustained grievous injuries through the present petition claimed compensation of Rs. 20,00,000/- alongwith interest on the ground that on 03.07.2011 at about 11.00 p.m. the injured alongwith his friends namely [ENTITY] and [ENTITY] was going from Bawana to Narela by their motorcycle bearing No. DL-8S-MC-6149 and when they reached in front of DESU office on Bawana-Narela Road near Ghogha more, the offending vehicle i.e. Indica Car bearing No. DL-3CU-7167 which was coming from Narela side and was being driven by its driver in a very high speed, rash and negligent manner, hit the motorcycle from front side. Due to head on collision, sudden and forceful impact, the petitioner and his friends [ENTITY] and [ENTITY] fell down on the road and sustained grievous injuries. At the time of accident, the petitioner was traveling as pillion rider on the motorcycle bearing no. DL-8S- MC-8410 driven by his friend [ENTITY]. A criminal case under [SECTION] [ACT] was registered against respondent no. 1 vide FIR no. 316/11 in police station Narela, Delhi.
Petitioner alleged that he was doing private service and was earning about Rs. 12,000/- per month. Petitioner claimed compensation from respondents no. 1 being driver, respondent no. 2 being owner and respondent no. 3 being insurance company of the offending vehicle jointly and severally.
Respondent no. 1 & 2 filed joint written statement admitted happening with an accident but stated that the said accident was caused due to sole negligence of one [ENTITY] who was plying the motorcycle no. DL-8S-NC-8410 at a very high speed, rashly and negligently and none of them were wearing the helmet and were plying the motorcycle in a zig-zag manner and tried to overtake the vehicle without seeing the vehicle of the answering respondents very and inspite of applying emergency brake the sake accident could not be averted. It is further stated that the petitioners mentioned the another motorcycle in their petition and further stated that the present petition is not maintainable and is liable to be dismissed. Respondents no. 3 insurance company did not file its written statement, but filed reasoned reply to the petition and admitted existence of insurance policy in respect of offending vehicle but tried to avoid its liability on various technical grounds by stating that in the present case the third party two wheeler carrying three passenger had a head on collusion with the insured vehicle. Insurance company further stated that as the negligence on the part of third party vehicle is apparent, the insurance company is not liable to make any payment to the petitioners and the present proceedings may kindly be dismissed with exemplary costs.
On the basis of pleadings of the parties, following issues were framed on 16.01.2012 by my ld. Predecessor:
1) Whether Sh. [ENTITY] S/o Sh. [ENTITY] suffered injuries due to road accident on 03.07.2011 at about 11.00 p.m. in front of Bawana Narela Road, DESU Office, near Ghogha More, Delhi within the jurisdiction of P.S. Narela, Delhi due to rash and negligent driving of Indica Car bearing no. DL-3CU-7167 being driven by respondent no. 1 which hit the motorcycle bearing no.
DL-8S-MC-6149 on which the deceased was sitting as pillion rider? OPP
2) Whether the petitioner is entitled to compensation, if so, from whom and to what amount? OPP
3) Relief.
In respect of this accident, three claim petitions bearing no. 297/11, 346/11 & 345/11 filed which were ordered to be consolidated for the purpose of evidence of eye witness i.e. petitioner [ENTITY] vide order dated 07.02.2012 and the evidence of eye witness [ENTITY] was recorded in present claim petition relating to the injuries caused to the petitioner [ENTITY] which is being decided today. The common evidence recorded in the present claim petition was ordered to be read in this case also.
Petitioner in support of his case examined himself as PW-1 who in his affidavit in evidence reiterated the facts as stated in the petition. He in his statement further deposed that immediately after the accident, he noticed the registration number of the offending vehicle and meanwhile someone from the by-passers who stopped at the accident spot, gave a telephone call to the police on 100 number. The PCR van reached at the spot and rescued the petitioner and other injured persons including the driver of offending vehicle and they were taken to Maharishi Valmiki Hospital for treatment where his MLC bearing No. 2660/11 was recorded. The petitioner was further admitted to Shardha Multispeciality Hospital, Safiabad Road, Narela on 05.07.2011 where he was operated and discharged on 16.07.2011. He further stated that his treatment was continued with aforesaid hospital and he used to visit the OPD of the said hospital also. He was again admitted to Shardha Multispeciality Hospital, Safiabad Road, Narela on 21.08.2011 and discharged on 26.08.2011 and his treatment is still continuing. The petitioner further stated that he was doing private service and was earning Rs. 12,000/- p.m. at the time of accident, but he lost his job due to the injuries sustained in the accident and was compelled to confine on bed for a period of about 6 months. He further stated that he was compelled to keep an attendant for a period of about 6 months and has incurred expenditure of Rs. 3,000/- p.m. on this account. In the cross examination, eye witness [ENTITY] stated that they were three persons riding on the motorcycle when the accident took place and he was sitting in between two riders on the motorcycle. He denied the suggestion that the accident took place due to his negligence. He further stated that police made inquiry from him regarding the accident on the same day. He noted down the registration number of the offending vehicle and gave the registration number of the offending vehicle to the police who made inquiry from him. He stated that he has not filed any document in support of his last drawn salary at the time of accident. He has also not placed any document on record that he was working with private hospital Kaushalya Jain Hospital at Narela. He denied the suggestion that the accident took place due to fall of motorcycle and not due to fault of driver [ENTITY] who was driving the vehicle or himself who was sitting as a pillion rider. He proved the copy of ration card and copy of election card as Ex.PW1/1 & Ex.PW1/2 respectively, original discharge card and bill no. 028 as Ex.PW1/3 & Ex.PW1/4 respectively, original discharge card of re-admission, bill no. 042 and two OPD slips as Ex.PW1/5, Ex.PW1/6, Ex.PW1/7 & Ex.PW1/8 respectively, the mark sheet of Matriculation Examination and the mark sheet and certificate of Senior School Examination as Ex.PX (collectively). No evidence was led on behalf of the respondents.
I have heard counsel for the parties and gone through the record. My decision on the above mentioned issues is as under:
Issue no. 1:-
The onus of proving this issue was upon the petitioners. The principles to be followed in the case of motor accident claim have been laid down by Hon'ble Guwahati High Court 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], Mr. Justice [ENTITY] and Mr. Justice [ENTITY], Division Bench of Hon'ble Supreme Court has observed as under:-
"In 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 careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
Petitioner [ENTITY] is the eye witness of the accident and on whose statement FIR was registered against respondent no. 1. [ENTITY] being the eye witness of the accident narrated about the way and manner of the accident and disclosed how and in which manner accident took place and entirely blamed driver of offending car in causing the accident. In the cross examination, eye witness [ENTITY] stated that they were three persons on the motorcycle when the accident took place and he was sitting in between two riders on the motorcycle. He denied the suggestion that the accident took place due to his negligence. He noted down the registration number of the offending vehicle and gave the registration number of the offending vehicle to the police who made inquiry from him. He further denied the suggestion that the accident took place due to fall of motorcycle and not due to fault of driver [ENTITY] who was driving the vehicle or himself who was sitting as a pillion rider. The plea taken by respondent no. 1 & 2 that the said accident was caused due to sole negligence of [ENTITY] who was plying the motorcycle no. DL-8S-NC-8410 at a very high speed, rashly and negligently and none of them were wearing the helmet and were plying the motorcycle in a zig-zag manner and tried to overtake the vehicle without seeing their vehicle and inspite of applying emergency brake the sake accident could not be averted, has not been established on record either by leading evidence or through the cross examination of eye witness [ENTITY]. Hence it exonerates the rash and negligent driving on the part of the motorcycle rider [ENTITY]. There is nothing on record to show that respondents no. 1 & 2 have lodged any complaint to any higher authority regarding the alleged false implication of respondent no. 1 in criminal case. There is also no evidence on record to point out that respondents no. 1 and 2 had any enmity with the petitioner, deceased persons or their family members or eye witness or investigating officer to create possibility of false implication of respondent no. 1 in criminal case. The statement made by eye witness [ENTITY] regarding the manner of accident is impeachable and trustworthy.
Counsel for respondent no. 3 insurance company has taken a plea that this is a case of contributory negligence. In support of his contention he has relied upon the judgment cited as [PRECEDENT] of Hon'ble Bombay High Court, National Insurance Co. Ltd.
vs. S. Chitra and others, 2010 ACJ 1316 of Hon'ble Madras High Court and [PRECEDENT] of Hon'ble Supreme Court. But I find no force on the point raised by counsel for respondent no. 3 to treat this case as a case of contributory negligence being triple riding and the same plea is hereby rejected. Accordingly, it is held that the accident has taken place with offending Indica Car bearing No. DL-3CU-7167 due to rash and negligent driving by respondent no. 1 and there was no fault or negligence on the part of the driver [ENTITY] in driving his motorcycle. In view of the above discussions, this issue is decided in favour of petitioners and against the respondents.
Issue no. 2:-
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 and non-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 Reshma Kumari v. Madan Mohan Manu/SC/1303/2009:
(2009) 13 SCC 422, 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 Arvind Kumar Mishra v. New India Assurance Co.
Limited Manu/SC/0777/2010: (2010) 10 SCC 254, 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, hospitalization, 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). (vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (iii) (a) and (iv).
The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages):
MLC and other medical papers produced on record shows that the petitioner sustained grievous injuries i.e. fracture pelvic with retention urinal with CLW scalp with partial urethral tear. The petitioner was admitted to Shardha Multispeciality Hospital, Safiabad Road, Narela on 05.07.2011 where he was operated and discharged on 16.07.2011. He further stated that his treatment was continued with aforesaid hospital and he used to visit the OPD of the said hospital also. He was again admitted to Shardha Multispeciality Hospital, Safiabad Road, Narela on 21.08.2011 and discharged on 26.08.2011 and his treatment is still continuing. The petitioner has placed on record the medical bills of Rs. 80,400/-. No dispute regarding the correctness and genuineness of these bills is raised so the amount of these medical bills at Rs. 80,400/- is to be paid to the petitioner.
Petitioner stated that he was doing private service and was earning Rs. 12,000/- p.m. at the time of accident, but he lost his job due to the injuries sustained in the accident and was compelled to confine on bed for a period of about 6 months. But the petitioner has not placed on record any document to prove his income and the work. He even has not disclosed where he was working. In the absence of any proof of income of the deceased, there remains no other option except to take the help of schedule of minimum wages to presume the monthly income of the deceased by treating him falling in matriculate as per matriculation certificate Ex.PX and as per minimum wages chart, a matriculate person was presumed to be earning sum of Rs. 7,826/- per month as applicable on 01.04.2011. Thus, this amount of Rs. 7,826/- has to be taken into consideration for calculating his loss of income and in the present circumstances, I am granting the loss of income of six months. Petitioner is thus entitled to sum of Rs. 46,956/- (7,826 x 6) towards loss of income for six months.
Medical record shows that petitioner had visited number of times to hospital as OPD patient and remain admitted to Shardha Multispeciality Hospital, Safiabad Road, Narela for 12 days. His treatment was continued with aforesaid hospital and he used to visit the OPD of the said hospital also. He was again admitted to aforesaid Hospital for 6 days and his treatment is still continuing, though no proof of spending upon any conveyance is brought on record. Injured must have spent some amount on extensive visits to the hospital during that period. 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. Hence in absence of any evidence and documentary evidence, I am of the view that maximum petitioner can be paid Rs. 10,000/- towards special diet and Rs. 10,000/- towards conveyance charges.
Counsel for petitioner during arguments requested for awarding future medical expenses. But no evidence is brought on record that petitioner requires any further treatment in future. Judicial notice can be taken of the fact that due to such type of grievous injuries as is suffered by the petitioner, future treatment is required. Difficulty and inconvenience arises to perform even daily personal routine acts. Hence I awarded a sum of Rs. 20,000/- towards future medical expenses.
The petitioner further stated that he was compelled to keep an attendant for a period of about 6 months and has incurred expenditure of Rs. 3,000/- p.m. on this account. No proof has been filed by the petitioner regarding joining of any attendant and no proof of payment made to him is there on record. In the absence of any documentary proof, judicial notice can be taken note of the fact that some amount has to be incurred on attendant. Hence, I award a sum of Rs. 20,000/- towards attendant charges to the petitioner from the date of accident till the decision of this claim.
Non-pecuniary damages (General damages):
There is no certificate of any disability of petitioner on record. Judicial notice can be taken of the fact that due to grievous injuries normal human life is also affected. Even after recovery from injury, the original position hardly came in existence or restored for several months. Difficulty and inconvenience might have arisen to perform even daily personal routine acts due to physical immobility. Petitioner could not enjoy the amenities of life properly for few months. Such type of non pecuniary losses cannot be assessed in terms of money but keeping in view the status and condition of the petitioner, hospital admissions, extent of his injuries etc., he is granted lump sum amount of Rs. 1,00,000/- towards pain and sufferings, mental shock and trauma, inconvenience, frustration, loss of amenities and enjoyment of life as per the judgment of [ENTITY]'s case.
Respondent no. 3 insurance company could not bring on record any evidence to point out that it is not liable to pay compensation amount as assessed by the court or any term or condition of the insurance policy was breached by the insured or it has any limited liability. Keeping in view the existence of valid insurance policy, respondent no. 3 alone becomes liable to pay entire compensation amount.
In view of the above discussions, this issue is decided in favour of petitioners and against the respondents. Following compensation amount is payable by respondent no. 3 Insurance company:
Pecuniary damages (Special damages):
1). Medical expenses Rs. 80,400/-
2). Loss of income Rs. 46,956/-
3). Special diet Rs. 10,000/-
4). Conveyance charges Rs. 10,000/-
5). Future medical expenses Rs. 20,000/-
6). Attendant charges Rs. 20,000/-
Non-pecuniary damages (General damages):
7). Pain, sufferings, mental shock, trauma, etc. Rs.1,00,000/-
Total Rs. 2,87,356/-
Hence petitioner is entitled to get Rs. 2,87,356/- as compensation from the respondent no. 3 along with interest at the rate of 7.5% p.a. on this amount from the date of institution of the petition i.e. 24.10.2011 till realization.
Issue no. 3 (Relief):-
On the basis of findings given above, present petition is disposed off. Respondent no. 3 insurance company is directed to pay sum of Rs. 2,87,356/- to the petitioner alongwith interest at the rate of 7.5 % p.a. from 24.10.2011 till this amount is fully paid.
It is further ordered that out of the compensation amount, Rs. 1,50,000/- be deposited in the FDR in the name of the petitioner initially for five years with liberty to withdraw monthly interest through saving bank account. Remaining amount alongwith accrued interest be deposited in saving bank account of the petitioner with liberty to withdraw Rs. 5,000/- p.m. till this amount is fully exhausted. However, petitioner is allowed to withdraw the quarterly interest on the FDR. The FDR shall not be encashed without permission of the court. No loan or advance shall be granted to the petitioner on the FDR. Respondent no. 3 insurance company to pay further sum of Rs. 11,000/- as counsel fee to counsel for petitioner to Ms. [ENTITY], Adv., Enrollment No. D-1239-F/04 by preparing separate cheque in the name of counsel as per the judgment of Hon'ble Mr. Justice [ENTITY].
Announced in the open (D.K. MALHOTRA) Court on 04.04.2012 JUDGE, MACT (OUTER-II) DELHI