IN THE COURT OF SH. ANOOP KUMAR MENDIRATTA, JUDGE, MACT-1, (CENTRAL-DISTRICT), DELHI. SUIT NO. 168/09 Unique Case ID No.02401C-0169572009 1. Sh.[ENTITY], S/o Late Sh.Sukkhan Lal, R/o H.No. L-225 A, Lajpat Nagar, Sector-4, Shahibabad, Ghaziabad, U.P. Petitioner Versus 1. Sh.[ENTITY], S/o Sh.Ram Singh R/o H.No. 164, Naya Was, PS: Kotwali Distt. Muzaffer Nagar, U.P. (Driver) 2. [ENTITY] I.S.B.T., Kashmiri Gate, Delhi. 2nd Address Assistant, R.T.C. [ENTITY] Muzaffer Nagar, U.P. (Owner) RESPONDENTS [PRECEDENT] Naresh Kumr Agarwal Vs. [ENTITY] & Anr. Page 1 of 20 Date of Institution of the suit : 20.04.2009 Arguments heard on : 25.02.2015 Judgment pronounced on : 25.02.2015 JUDGMENT
1. The present claim petition has been preferred by the petitioner U/[SECTION] and [SECTION] of [ACT] (hereinafter referred to as 'the Act') claiming compensation of sum of Rs. 10,00,000/- in respect of injuries suffered by him in the motor vehicle accident.
2. Brief facts of this case giving rise to the present claim petition are that on 12.03.2009 at about 9:30 A.M. petitioner [ENTITY] while waiting for the bus at Mohan Nagar, U.P. bus stand for proceeding to Delhi was hit by bus bearing registration No.UP 12 K 2068 driven by Respondent No.1 in a rash and negligent manner. Consequently, petitioner sustained injuries and FIR No.361/09 dated 12.03.2009 was registered at PS:
Shahibad, Ghaziabad, U.P. regarding the accident.
3. Both the respondents contested the case by placing on record joint Written Statement whereby the factum of accident was denied. It was further submitted that petitioner was himself negligent as he tried to board the moving bus.
4. On pleadings of the parties, vide order dated 14.07.2010, following issues were framed :-
(i) Whether Sh.[ENTITY] had injured due to an accident which took place on 12.03.2009 because of rash and negligent driving of vehicle bearing registration No.UP 12 K 2068 by Respondent No.1?
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
5. In support of the claim, petitioner examined himself as PW-1 and testified on the lines of the claim petition that on 12.03.2009 while waiting at Mohan Nagar Bus Stand he ws hit by Bus No. UP 12K 2068 driven by respondent driver . Further, petitioner received grievous injuries and was admitted in the Narendra Mohan Hospital wherein an amount of Rs.2 lac was spent on the treatment and the doctor also suggested that amount of Rs.
1.25 to 1.50 lac would be required for future treatment. He further deposed that he was working in DTC as Foreman and earning Rs. 45,851/- per month and he could not attend his job for about 34 days. He further proved the certified copies of the criminal case record Ex.PW1/1, attested copies of leave application Ex.PW1/2, Medical bills and prescriptions Ex.PW1/3, salary slip for the month of August, 2010 Ex.PW1/4, copy of ration card Ex.PW1/5, copy of Voters I Card Ex.PW1/6, copy of disability certificate Ex.PW1/7 and future treatment expenses certificate Ex.PW1/8.
Respondent No.1/[ENTITY] also examined himself as R1W1 and stated that he had been falsely implicated in the accident. Further, he was driving the bus at permissible speed in right direction and the bus while coming from Muzaffar Nagar to Delhi was stopped at Mohan Nagar Crossing at a traffic signal. Further, when the traffic signal turned green, the traffic started moving at a slow speed and at aforesaid time, a person tried to board the moving bus while running and in the process could not control himself and fell down. As such, it was claimed that he was not responsible for the alleged accident and the petitioner was negligent.
6. I have heard arguments addressed by counsels for the petitioner and respondents and perused the record. Both the counsels have filed brief written submissions. Counsel for petitioner has also relied upon [CASE NUMBER] decided on 08th May, 2014 by Hon'ble Ms. Justice [ENTITY] (Delhi High Court) in support of the contentions.
My Issue-wise findings are as under :-
7. Issue No. (i) Whether [ENTITY] had injured due to an accident which took place on 12.03.2009 because of rash and negligent driving of vehicle bearing registration No.UP 12 K 2068 by Respondent No.1?
At the outset, reference may be made to the observations in [PRECEDENT] wherein the claim was allowed after consideration of FIR before the Tribunal.
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accident 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 Accident Claim Tribunal the standard of 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 enquiry and this is a legislation for the welfare of the society. In [PRECEDENT], the Supreme Court pointed out that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter."
Only Mechanical Inspection Report appears to have been filed along with the certified copy of the chargesheet without the site plan which reflects that the front indicator lights of the bus were damaged and the body had marks on both the sides. Both the petitioner and respondent no. 1 have given different versions as to the accident and sustenance of injuries by the petitioner. In the absence of any independent witness, the counter version of the petitioner and respondent no. 1 needs to be assessed considering the attending facts and circumstances.
Admittedly, Respondent No.1 was chargesheeted for rash and negligent driving by the police but no complaint was made by him regarding false implication, if any, with the concerned Authorities. As per the FIR, on 12.03.2009, the petitioner was hit by the offending vehicle while he was waiting at Mohan Nagar bus stand and it was alleged that due to the impact, the petitioner had fell down and his right hand was crushed beneath the rear tyre of the bus. The petitioner was taken to Narendra Mohan Hospital by the police and in the history it was recorded that petitioner had sustained injuries in road traffic accident. As such, the factum of accident cannot be denied. The stand of the petitioner has remained un-dented during cross-examination and it was categorically denied that injuries were sustained while trying to board moving bus. It does not appear to reason that petitioner would have tried to board a moving bus in a running traffic and there is nothing to reflect even if the doors of the offending vehicle were open to enable the petitioner to board the moving bus.
As such, the statement of R1W1 does not appear to be convincing and creditworthy whereby the negligence has been attributed to the petitioner. Further, in a petition Under [SECTION] of [ACT], the claim tribunal has to decide the negligence on the touchstone of preponderance of probability. Considering the certified copies of the Charge Sheet, evidence of PW-1 [ENTITY], I am of the considered view that the accident had been caused by rash and negligent driving by Respondent No.1. Issue No.1 is accordingly decided in favour of the petitioner and against the respondents.
8. Issue No. (ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
In [ENTITY] v. Ajay Kumar & Anr., 2011 Volume 1, ACJ 1, Hon'ble Supreme Court of India has observed that the object of awarding damages is to make good the loss suffered as a result of the wrong done as far as money can do in a fair, reasonable and equitable manner. Paras 4 and 5 of the judgment are further extracted below as the same explains the various heads under which the compensation is to be assessed:-
"4. 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 far as money can do so, in a fair, reasonable and equitable manner. The court or 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 his inability to earn as much as he used to earn or could have earned. [See [PRECEDENT], [PRECEDENT] and [PRECEDENT].
5. 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).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be 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 claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
9. Now the important factors relevant for calculation of compensation consequent to accidental injuries sustained by the petitioner may be considered.
LOSS OF EARNING CAPACITY For purpose of assessing the loss of earning capacity, the income of the petitioner/injured needs to be assessed along with the functional disability suffered by him due to the injuries sustained in the accident.
(a) Criteria for taking income of the petitioner At the time of accident the petitioner was working as Foreman with DTC. As per the Salary slip for the month of March 2009 placed on record, the gross salary of the petitioner as on the date of the accident was Rs.35,003/- per month and the same shall be taken as such for calculating the compensation amount. The gross salary for a period of 12 months comes to Rs.4,20,036/- out of which income tax @ 10% for the year 2009 needs to be deducted after exemption limit of Rs.1,80,000/- for purpose of calculating the net income of the petitioner. The net income for the purpose of compensation after deduction of income tax comes to Rs.3,96,033/- [i.e. Rs.35,003/- x 12 - Rs.24,003/- (income tax)] or Rs.33,002/- per month.
(b) Functional Disability It may be observed that in certain cases the permanent disability may not impact the earning capacity of the injured/victim and in such cases the victim may not be entitled to compensation towards loss of earning capacity on account of disability. However, in other cases even on account of less permanent disability, an injured may be completely incapacitated to carry out his vocation and as such the functional disability may be more than the actual disability suffered by the injured/victim. The Hon'ble Supreme Court of India has elucidated with an example that if the left hand of claimant, who is driver by profession is amputated, the actual loss of earning capacity may be virtually 100%.
The observations of the Hon'ble Supreme Court in the case of [ENTITY] Vs. Ajay Kumar, (supra) whereby the methodology for determining the functional disability has been discussed in paragraph 14 may be quoted:-
"14. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry.
On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical function; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."
In the aforesaid context, observations of the Hon'ble High Court of Delhi in the case of [PRECEDENT], in which the claimant had suffered permanent disability in respect of right upper limb and right lower limb to extent of 28% are also apt to be noted. The claimant was employed as a Beldar and no evidence was produced to show that there was loss of any salary til date of his retirement. It was contended by learned counsel for insurance that in view of case of [ENTITY] (supra), in order to get compensation for a permanent disability, it has to be established that the functional disability resulted into loss of earning capacity. It was argued that the claimant was an employee of Municipal Corporation of Delhi and there was no loss of income from date of accident till the date of his retirement and as such he was not entitled to any compensation under the head 'loss of earning capacity'. The Hon'ble High Court of Delhi observed:
"Government employees whether retiring from a high post or a low post, carry out their profession even after the date of superannuation provided he/she possesses good health. The permanent disability in the left upper and lower limb to the extent of 28% would definitely affect his earning capacity. In the absence of any expert evidence led by the first respondent, I would reduce the loss of earning capacity to 14% in respect of whole body and award a compensation of Rs.8,479/- x 12 x 9 x 14/100= 1,28,200/-. The compensation is reduced from Rs.3,13,384/- to Rs.1,28,200/-"
In the present case, the petitioner in his examination has placed and proved the medical record whereby he had suffered fracture of right forearm. The petitioner has not been cross- examined on the aforesaid aspect and there is nothing on record to disbelieve the injuries sustained by the petitioner as a result of the vehicular accident as proved by the medical record. Further, the petitioner in support of the case also proved on record the disability certificate Ex.PW1/7 which was issued by Office of the Chief Medical Officer, Ghaziabad, U.P. As per the disability certificate petitioner/injured had suffered 25% permanent disability in relation to right upper limb, wherein the disability is described as "united fracture of both bones of right forearm without any implant seen with muscle loss flexor aspect right forearm with skin grafting done. Mild diminished range of motion right wrist".
It may be observed that there is no evidence on record in case the petitioner had suffered in any manner in reduction of salary consequent to accidental injuries. The permanent disability did not impact the earning capacity in any manner during the course of his present employment. However, at the same time after retirement at the age of 58-60 years the permanent disability is likely to incapacitate the petitioner to to perform duties similar to a Foreman to considerable extent and it may be difficult for him to perform alternate employment with full efficiency. Considering the totality of facts and circumstances the functional disability is taken as 13%.
In the claim petition the age of the petitioner has been mentioned as 56 years. In view of [PRECEDENT], the relevant multiplier of 09 is applicable for the purpose of assessment in the present case.
The compensation of Rs.4,63,358/- is accordingly assessed towards loss of earning capacity. Rs.4,63,358/-(Rs. 3,96,033/- net income for 12 months after deduction of Income Tax) X 13 % (functional disability) X 09 (applicable multiplier according to age).
10. Loss of Income on account of leave The petitioner has placed and proved on record certified copies of leave record for various dates on which the leave was availed by him. As per the documents, petitioner remained on leave for 34 days from 12.03.2009 to 02.04.2009 (22 days Medical leave), 04.11.2009 to 05.11.2009 (two days casual leave), 22.12.2009 to 23.12.2009 (two days casual leave), 24.12.2009 (one day Restricted Holiday), 29.12.2009 to 31.12.2009 (3 days Casual Leave), 04.01.2010 ( one day Casual leave), 18.01.2010 and 19.01.2010 (two days Casual leave) and 08.02.2010 (one day casual leave) for treatment of injuries sustained in the accident.
Ld. counsel for Respondent Nos.1 & 2 urged that since the petitioner is in government service, there was no loss of income to the petitioner for availing leave.
I am of the considered view that the objection is without any merit since the petitioner could have utilised the aforesaid leave in future, if he had not met with the accident. Considering the facts and circumstances irrespective of the fact whether the leave is paid or without pay, he cannot loose the benefit of paid leave and is awarded compensation of Rs.37,400/- for a period of salary of 34 days (i.e. 37,400/-[Rs.1,100/-(approximate salary of one day) X 34 days =Rs.37,400/-).
11. Loss of amenities of life and Deformity due to Permanent Disability The amount of compensation towards amenities should be bring to amenities and restoration of health to the petitioner. In the facts and circumstances considering the injuries/permanent disability of 25% suffered by the petitioner in the right upper limb he is awarded a sum of Rs.1,00,000/- (Rupees One Lac only) on account of loss of amenities, expectation of life and deformity.
12. Pain and Suffering & Mental Agony As the petitioner suffered permanent disability of 25% in respect of his right upper limb, he remained incapacitated from performing normal activities. In view of above he is entitled to a sum of Rs.50,000/- towards pain and suffering and mental agony.
13. Medicines and Medical Treatment Petitioner has testified in his evidence testified that a sum of Rs.94,226/- has been reimbursed to him from the his office and remaining medical bills are on record. The bills are not objected to by Ld. counsel for Respondent Nos.1 & 2. The petitioner has proved and placed on record medical bills for a sum of Rs.16,423/- and accordingly the aforesaid sum is granted towards medicines and medical treatment.
14. Conveyance & Special Diet In view of the injuries sustained by the petitioner and considering the fact that he remained on leave for period of about 34 days for treatment, a sum of Rs.10,000/-each is granted towards conveyance and special diet.
15. Future Treatment Petitioner has placed on record a certificate dated 10.08.2010 (Ex.PW1/8) obtained from Dr. [ENTITY], Plastic Surgeon, Narendra Mohan Hospital, Ghaziabad, U.P. placing an estimate of Rs.1.25 lacs to Rs.1,5 lac for excision of adhered scar which is stated to a two stage operation at interval lock 2 to 3 months.
I am of the considered view that since the aforesaid medical certificate has not been proved by summoning the concerned doctor/Plastic Surgeon from Narendra Mohan Hospital, who has given this estimate, to explain the nature of surgeries requires and also since the petitioner has neither undergone any such surgery over a period of last four years, it may not be prudent to accept the same. As such I am not inclined to award the compensation for future treatment for want of examination of the doctor concerened, who assessed the cost of operation to the extent of Rs.1.25- Rs.1.5 lacs.
16. Attendant Charges Hon'ble High Court of Delhi in [PRECEDENT] held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
Further, in the case of [PRECEDENT] (Supra), value of gratuitous services rendered by family member of the claimant was assessed at Rs. 2,000/- per month.
I am of the considered view that even if the gratuitous services were rendered by some or the other family members, the claimant cannot be deprived of its benefit on the gain of the tortfeasor. Considering the nature of injuries and the period 34 days for which the petitioner remained on leave, the compensation of Rs. 5,000/- is awarded in lump-sum towards the attendant charges/gratuitous services rendered by the family members.
17. As discussed above, the overall compensation is tabulated as under:
Loss of Earning Capacity Rs.4,63,358/- Loss of Income on Account of Leave Rs.37,400/- Loss of amenities of life and deformity Rs.1,00,000/- Pain and Suffering Rs.50,000/- Medicines & Medical Treatment Rs.16,423/- Conveyance Rs.10,000/- Special Diet Rs.10,000/- Future Treatment -Nil- Attendant Charges Rs.5,000/- Total Rs.6,92,181
(Rupees Six Lac Ninety Two Thousand One Hundred and Eight One only).
The claimant/petitioner is also entitled to get interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 12.03.2009 till realization (except for the period 22.09.2011 to 16.10.2012 in view of order dated 22.09.2011 passed by the ld. Predecessor).
18. Respondent No.1 being driver and Respondent No.2 being owner of the offending vehicle are jointly and severally liable to make the payment of compensation to the petitioner/claimant.
Relief Respondent Nos.1 & 2 are directed to deposit the award amount of Rs.6,92,181/- with interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 12.03.2009 till realization (except for the period 22.09.2011 to 16.10.2012 in view of order dated 22.09.2011 passed by the ld. Predecessor) with the Nazir of this Court within 30 days under intimation to the claimants/Legal Heirs, failing which they shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Respondents are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount with the Tribunal to the claimants and complete details in respect of calculations of interest etc. in the court within 30 days from today.
A copy of this judgement be forwarded to Respondent No. 2 for compliance.
Nazir of this court is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
Announced in open court ([ENTITY]) on 25th February, 2015 Judge ,MACT-1 (Central), Delhi