+IN THE COURT OF MS. REKHA RANI : JUDGE : MACT : DELHI MACT No. : 108/11 UNIQUE ID NO. : 02404C0154072011 [ENTITY] S/o Sh. Ram Prasad, R/o H.No. 018, MCD Colony, Roop Nagar, Delhi. Petitioner Versus 1. [ENTITY] S/o Sh. Jaipal, R/o H.No. 78, Gali No. 11B, Swatantra Nagar, Narela, Delhi. (Driver) 2. [ENTITY] S/o Sh. Ram Dhan, R/o 602 D/11B, Ward3, Mehrauli, New Delhi. (Owner) 3. The [ENTITY], Green House, D.B.G Road, Karol Bagh, Delhi. (Insurance) Respondents
DATE OF INSTITUTION : 17.03.2011 DATE OF RESERVING ORDER : 02.08.2013 DATE OF PRONOUNCEMENT : 23.08.2013 MACT No. 108/11 [ENTITY] v. [ENTITY] 1 of 20 AWARD:
1. [ENTITY] sustained grievous injuries in a road side accident on 03.02.2011 at about 1:45 p.m at G.T.K. Road, Azadpur within the jurisdiction of PS Model Town. FIR No. 44/11 was registered and after completion of investigation [ENTITY] filed DAR.
2. The New India Assurance Company filed reasoned offer, which was not accepted by the injured. Counsel for insurance company deducted 50% towards alleged contributory negligence of injured and my Learned Predecessor vide his order dated 10.02.12 listed the case for evidence on this point. Petitioner examined himself as PW1. Respondents did not bring any evidence.
2. I have carefully perused the material available on record and I have also heard learned counsel for both sides. Issue No.1 Qua Negligence
3. Petitioner has deposed that on 03.02.2011 he was coming from his duty to his residence. It is further stated that at about 1:15 p.m, he was boarding a bus bearing registration No. 1PB4290 (in short the offending vehicle) at Azadpur bus stand alongwith MACT No. 108/11 [ENTITY] v. [ENTITY] 2 of 20 other passengers but in the meantime the driver of the bus without caring for safety of the passengers suddenly started the bus and due to heavy jerk he fell down and his toes were crushed under rear wheel of the bus and he sustained permanent disability.
4. Opportunity was given to driver and owner to cross examine the petitioner, but they did not. My Learned Predecessor allowed counsel for insurance company to cross examine the petitioner. It was suggested to the petitioner by counsel for insurance that he was under the influence of alcohol on account of which he fell down from the bus.
5. It has to be borne in mind that [ACT] does not stipulate holding a trial for petition preferred under [SECTION] of the Act. Under [SECTION] of the Act, a Claims Tribunal holds an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. In [PRECEDENT]. Hon'ble Apex Court held " that tribunal exercising quasijudicial functions are not courts and that therefore they are not bound to follow the procedure MACT No. 108/11 [ENTITY] v. [ENTITY] 3 of 20 prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts"
6. In [PRECEDENT], Supreme Court held that " In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary 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 claimants. The claimants were merely to establish their case MACT No. 108/11 [ENTITY] v. [ENTITY] 4 of 20 on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
7. In [PRECEDENT]. Hon'ble Delhi High Court observed that "The last contention of the appellant insurance company is that the respondents claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Supreme Court in [PRECEDENT]. On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (1) certified copy of the criminal record of criminal case in FIR No. 955/2001, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under [SECTION], [ACT] against the driver,
(iii) certified copy of FIR, 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 MACT No. 108/11 [ENTITY] v. [ENTITY] 5 of 20 proofs to reach the conclusion that the driver was negligent. Proceedings under [ACT] are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down."
8. Driver of the offending bus did not file any reply nor cross examined the petitioner nor stepped into the witness box to explain the manner in which the accident took place. Petitioner stated that when he was in the process of boarding the bus when its driver suddenly and negligently raced the same without caring for his safety and due to sudden and heavy jerk, he fell down and toes of his feet were crushed under the rear wheel of the bus. This part of the testimony of petitioner has remained unchallenged and as such I have no reason to disbelieve the same.
9. Driver of the offending bus was prosecuted by the investigating officer for having caused the said accident for offences punishable under [SECTION] [ACT]. The driver has not appeared in the witness box to explain why he was prosecuted for having caused the said accident.
MACT No. 108/11 [ENTITY] v. [ENTITY] 6 of 20 MLC of the injured dated 03.02.2011 shows that he was brought to the hospital with crush injuries on both foot with alleged history of road traffic accident.
10. Although insurance made an offer of Rs. 2,00,207/ towards compensation to the injured, it deducted 50% of the same by alleging that injured himself contributed to the accident being under the influence of alcohol.
11. Learned counsel for insurance has referred to report of Tirath Ram Shah Charitable Hospital, where injured was diagnosed as having sustained crush injury on both feet with alcohol withdrawal syndrom. Learned counsel for insurance has argued that since injured had consumed alcohol and was under its influence, he contributed to the cause of accident and accordingly it is entitled to deduct 50% of the compensation. I do not agree with counsel for insurance in view of the case law discussed below.
12. In [PRECEDENT], the driver smelled of liquor, his gait was unsteady and speech incoherent. It was held that a person could smell of alcohol without being under its influence and that urine MACT No. 108/11 [ENTITY] v. [ENTITY] 7 of 20 and blood reports ought to have been brought on record.
13. In [PRECEDENT], it was held that mere smelling of alcohol or dilation of pupils or inchoherence in speech do not prove drunkenness. It was held that blood and urine test reports are must to prove drunkenness.
14. In [PRECEDENT], it was held that mere taking of alcohol is not sufficient to prove that the driver was intoxicated which affected his driving. It was held that consumption of alcohol must exceed 30 mg. per 100 ml. of blood.
15. In [PRECEDENT], it was held that mere mention of smell of alcohol in MLC is not sufficient to hold that deceased contributed to the accident when no breath analysis test was done and no evidence of detection of quantity of alcohol exceeding permissible limit was produced.
16. So it is not proved that the petitioner was under the influence of liquor which contributed to the cause of accident.
17. Keeping in view of the aforesaid judgments and evidence on record preponderance of probability is that R1 caused the said accident by driving the offending vehicle rashly and negligently, MACT No. 108/11 [ENTITY] v. [ENTITY] 8 of 20 which resulted in causing grievous injuries to the petitioner. This issue is decided accordingly in favour of the petitioner and against the respondents.
ISSUE No.2 Qua Compensation
18. As per disability certificate issued by Dr. Baba Sahed Ambedkar Hospital petitioner is having 13% permanent disability on account of traumatic amputation of second and third toe of right foot and third toe of left foot. Lose of Income/leave
19. Injured had to take leave on account of this accident. He would have utilized this leave for some other purpose. As such he is entitled to compensation for the loss of leave. He was on leave w.e.f 04.02.11 to 03.05.11 as per details of leave account.
20. His, income was Rs.17,880/ as per pay slip for the month of January, 2011. R3 has taken only basic pay, G.P and dearness allowance while computing monthly income of the injured. It has not considered other perks.
21. In National Insurance Co. Ltd. v. [ENTITY] & Ors., 2008 (2) SCC 763, it was held that all the perks paid to an MACT No. 108/11 [ENTITY] v. [ENTITY] 9 of 20 employee by employer should be included for computation of the deceased's income. Para 10 of the judgment is relevant & is extracted hereunder: "10. [SECTION] of the Act uses the word "just compensation" which, in our opinion, should be assigned a broad meaning. We cannot, in determining the issue involved in the matter, lose sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory Provident Fund, gratuity and other perks to attract the people who are efficient and hardworking. Different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family. If some facilities are being provided whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined "
22. In [PRECEDENT]; while relying on [ENTITY] (supra), Hon'ble Supreme Court reiterated that apart from Dearness Allowance other allowances payable for the benefit of the family, have to MACT No. 108/11 [ENTITY] v. [ENTITY] 10 of 20 be considered for the computation of the annual income.
23. In [PRECEDENT], it was held that dearness allowance, conveyance allowance and other allowances are to be treated as part of the deceased's income.
Hence he is entitled to compensation of Rs. 17,880 x 3= Rs. 53,640/ towards loss of actual income. Loss of earning capacity
24. Petitioner deposed that he received multiple grievous injuries in the accident and was permanently disabled. Petitioner placed on record discharge slip of Tirath Ram Shah Charitable Hospital. The date of admission is 03.02.2011 and the date of discharge is 07.02.2011 as per final bill.
25. In [ENTITY] v. Ajay Kumar & Anr. 2011(1) SCC 343, Hon'ble Supreme Court brought out the difference between permanent disability and functional disability resulting in the loss of earning capacity. It was laid down that the compensation on account of loss of earning capacity has to be granted keeping in view the nature of work performed by the victim of motor accident and the effect of the permanent disability on his MACT No. 108/11 [ENTITY] v. [ENTITY] 11 of 20 earning potential.
26. Learned counsel for R3 contended that petitioner has not suffered any loss of salary on account of injury sustained and as such he is not entitled to any compensation under this head. Same issue arose before Hon'ble High Court of Delhi in [PRECEDENT], in which claimant suffered permanent disability in respect of right upper limb and right lower limb to extent of 28%. Claimant was employed as a Beldar. No evidence was produced to show that there was loss of any salary till date of his retirement. It was contended by Learned counsel for insurance that in view 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. Therefore, he was not entitled to any compensation under the head 'loss of earning capacity'.
Hon'ble Delhi High Court observed: MACT No. 108/11 [ENTITY] v. [ENTITY] 12 of 20 "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/."
27. In [PRECEDENT], decided on 29.11.2012, the appellant suffered 70% permanent locomotor impairment with respect to his left lower limb. It was proved on record that appellant would have difficulty in moving walking, climbing and sitting which would definitely affect his earning capacity. Hon'ble Delhi High Court relying on [ENTITY] (supra) wherein Supreme Court took 45% disability in respect of left lower limb as 20% loss of future earning capacity, Hon'ble Delhi High Court took 70% locomotor impairment in relation to left lower limb as 35% loss of earning capacity.
MACT No. 108/11 [ENTITY] v. [ENTITY] 13 of 20
28. In [PRECEDENT] decided on 03.12.2012 the appellant was working as a welder. He suffered 38% physical impairment in relation to his right lower limb on account of post traumatic stiffness of right knee, ankle with puss discharge while observing that the job of welder requires constant sitting and frequent movement of the knees. Hon'ble Delhi High Court took loss of earning capacity as 19%.
29. In [ENTITY] v. Deepak Kumar & Ors. MAC.APP.675/2011, decided on 10.10.2012, injured was admittedly a manual worker. He suffered 44% locomotor impairment in relation to his right lower limb. Hon'ble Delhi High Court assessed his functional disability to the extent of 22%.
30. In the present case petitioner suffered 13% disability on account of "traumatic amputation of second and third toe of right foot and third toe of left foot". In view of judgments discussed above, loss of future earning capacity is assessed at 7%. As per identity card issued by Delhi Jal Board date of birth of petitioner was 29.08.1953, so he was 57 years at the time of MACT No. 108/11 [ENTITY] v. [ENTITY] 14 of 20 accident, which is not disputed in his cross examination.
31. In [PRECEDENT], deceased was around 33 years of age at the time of accident. He was survived by his widow and minor children. He was working as a clerk in a Government School. Claims Tribunal awarded total compensation of Rs. 8,96,500/. On appeal Hon'ble High Court enhanced the total compensation to Rs. 10,17,000/. On further appeal to Hon'ble Apex Court total compensation was enhanced to Rs. 22,81,320/. Hon'ble Apex Court observed that compensation under [SECTION] has to be "just, fair and equitable" to make good the loss suffered as a result of the wrong as far as money can do.
32. Hon'ble Apex Court referred to [ENTITY] v. National Insurance Company Ltd. & Others 2012(4) SCALE 559 in which it was observed that even in absence of any evidence as to future prospects and increase of 30% in the income has to be provided where the victim had fixed income or was a self employed person. Relevant extract of the order is as follows: "18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of [ENTITY]'s judgment, MACT No. 108/11 [ENTITY] v. [ENTITY] 15 of 20 the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is selfemployed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
33. However to make compensation just fair and equitable Hon'ble Apex Court observed:
11. Since, the Court in [ENTITY]'s case (supra) actually intended to follow the principle in the case of salaried persons as laid in [ENTITY]'s case (supra) and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be MACT No. 108/11 [ENTITY] v. [ENTITY] 16 of 20 30% in case the deceased was in the age group of 40 to 50 years. In [ENTITY]'s case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter".
As such petitioner is entitled to addition of 15% while computing the loss of future earnings on account of permanent disability. Thus loss of earning capacity comes to Rs.1,55,449/ (17880/+15%x12 x9x7%).
ATTENDANT CHARGES
34. Hon'ble Delhi High Court in [PRECEDENT] held that victim is entitled to compensation even if no attendant is hired and some family member renders gratuitous services.
35. [PRECEDENT] (supra) value of gratuitous services rendered by family members of the claimant was assessed at Rs. 2,000/ per month. In view MACT No. 108/11 [ENTITY] v. [ENTITY] 17 of 20 of the same compensation towards attendant charges is assessed at Rs. 6,000/ (2,000 x 3) in this case.
Pain and Suffering
36. For this purpose, nature of injuries, the parts of the body where the injuries were sustained, surgery if any under went by the victim, confinement in the hospital and the duration of the treatment are considered. Petitioner remained under treatment for three months as per record.
In view of [PRECEDENT] (supra) and in view of the nature of injuries sustained and disability suffered Rs. 25,000/ lac is granted towards pain and suffering and Rs. 20,000/ towards conveyance and special diet, Rs. 25,000/ towards loss of enjoyment of amenities of life.
37. The over all compensation is tabulated below: Sl. No Compensation under various heads Amount awarded
1. Loss of income Rs. 53,640/ 2 Loss of future earning capacity Rs.1,55,449/
3. Pain and suffering Rs. 25,000/
4. Loss of enjoyment of amenities of life Rs. 20,000/
5. Conveyance and special diet Rs. 20,000/
6. Medical expenses Rs. 55,136/ MACT No. 108/11 [ENTITY] v. [ENTITY] 18 of 20
7. Attendant charges Rs. 6,000/ Total Rs.3,35,225/ The over all compensation comes to Rs. 3,35,225/
38. R3 is, accordingly directed to deposit the awarded amount of Rs. 3,35,225/ with interest at the rate of 7.5 % per annum from the date of filing of claim petition till notice of deposit of award amount to be given by R3 to petitioners and their counsel within 30 days from today.
39. I have heard injured regarding his financial needs. In view of the submissions made and further in view of the judgment in [PRECEDENT] following arrangements are hereby ordered:
40. Rs. 1,35,225/ be released to petitioner and remaining amount with proportionate interest be kept in [ENTITY] in his name for 5 years.
41. The interest on the aforesaid fixed deposit shall be paid monthly by automatic credit of interest in his Saving Account.
42. The petitioner shall not have any facility of loan or advance on the [ENTITY]. However, in case of emergent need, he may approach MACT No. 108/11 [ENTITY] v. [ENTITY] 19 of 20 this Tribunal for premature encashment of [ENTITY].
43. The DAR is accordingly disposed of. File be consigned to record room. Copy of order be given to parties for compliance.
Announced in the open Court Judge MACT (N/W) today i.e. 23.08.2013 Rohini Courts, Delhi MACT No. 108/11 [ENTITY] v. [ENTITY] 20 of 20