-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. 367/10/06) 1) [ENTITY] S/o Sh. Dharam Pal Dahiya R/o House no. 523, Ishwar Colony, Bawana, Delhi Petitioner Versus 1) Shri [ENTITY] s/o. Sh. Baldev Singh R/o Village Diwan Garh, PO Dirba, PS & Tehsil Dirba, Distt. Sangrur, Punjab. 2) Sh. [ENTITY] s/o. Sh. Bishan Singh R/o. House no. 163, Village Kamalpur, Teh. Sunam, PS Dirba, Distt. Sangrur, Punjab. 3) The [ENTITY] 12/A, Jeevan Raksha Building, Asaf Ali Road, Darya Ganj, New Delhi. Respondents Date of institution 31.03.2006 Date of decision 23.03.2012 (Application u/s 140 and 166 of Motor Vehicles Act for grant of compensation) JUDGMENT:
1. Petitioner aged about 22 years filed the present claim petition claiming therein a compensation of Rs. 10 lakhs alongwith interest on the ground that on 17.02.2006 petitioner was sitting on motorcycle no. DL-8S- AD-5577 and his friend [ENTITY] was driving the motorcycle at a very normal speed, by observing all the traffic rules, regulations and conventions of the road and they were proceedings towards [ENTITY] from their residence via Kanjhawla Road. At about 1.35 pm when they reached in front of Hero Honda Showroom near Braham Shakti Hospital, Budh Vihar on Kanjhawala Road then a truck bearing registration no. HR- 39/3351 being driven by respondent no.1 at a very high speed, rashly, negligently and without taking necessary precautions, without observing proper look out, violating the traffic rules and without blowing any horn came from behind from Kanjhawala side and violently hit the motorcycle of the petitioner with a great force as a result of this violent impact the petitioner and [ENTITY] alongwith their motorcycle fell down on the road and received serious/grievous injuries all over their bodies. The petitioner was taken to Braham Shakati Hospital from the place of accident and got admitted there and still under treatment. A criminal case under [SECTION] [ACT] was registered against respondent no.1 vide FIR No. 242/06 in police station Sultanpuri.
2. Petitioner alleged that at the time of accident he was doing service with M/s. Balaji Traders and was getting a sum of Rs. 5,500/- per month. He claimed sum of Rs. 10 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 and 2 filed their written statement submitting therein that R-1 did not cause the accident and was in his lane allotted for HTV whereas, petitioner was driving his motorcycle rashly, negligently, carelessly, rashly, recklessly and without following rules of the road. Respondent no. 3/ insurance company admitted that offending vehicle was insured with it but it tried to avoid its liability on some routine technical grounds.
4. On the basis of pleadings of the parties, following issues were framed on 11.08.2006 by my Ld. Predecessor:
1. Whether on 17.02.2006 motorcycle No. DL-8S-AD-5577 on which petitioner was riding was hit by truck no. HR-39-3351 near Braham Shakti Hospital and it caused injuries to the petitioner? OPP
2. Whether petitioner is entitled to compensation as prayed for, if so, from which of the respondents?
3. Relief.
5. In order to prove his case, petitioner examined [ENTITY] as PW-1, [ENTITY] as PW2, Sh.[ENTITY] as PW3, Dr. [ENTITY] as PW4 and Dr. [ENTITY] as PW5. In addition to that petitioner has filed medical treatment record Mark-A to Mark-E(discharge slips) andEx.PW3/2 to Ex.PW3/9 and disability certificate Ex.PW3/1. R-1 has examined R3W1/Driver [ENTITY] in support of their defence.
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]. [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 truck by filing the charge sheet. Petitioner Sh. [ENTITY]/PW-3 being eye witness of accident in his statement 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 car. It is not the case of the R-1 that he has been falsely implicated in this case. No complaint has been lodged against driver and owner of the offending vehicle before any higher authority regarding the fact that R-1 has been falsely implicated in this case at the instance of injured or IO. It is not the case of R-1 that injured or IO of the case nursed grudge or enmity with owner of the vehicle or they are known to each other. No evidence is led on behalf of R-1 and R-2 in support of contention of R-1 that accident did not take place due to rash and negligent driving of the vehicle driven by R-1. Hence adverse inference has to be drawn against them. Nothing has come in cross-examination by insurance company that accident did not take place due to rash and negligent driving of R-1. Testimony of PW6 and PW3 is trustworthy and unimpeachable who deposed that accident took place due to rash and negligent driving of R-1 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 17.02.2006 and injuries suffered were grievous in nature and as per the disability certificate he suffered 40 per cent permanently.
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 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 [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 Arvind Kumar Mishra vs. [ENTITY] (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
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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, nourising 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):
11. It is the claim of the petitioner that at the time of accident he was about 22 years of age and doing service and was getting a sum of Rs. 5,500/- per month from his work. Due to said accident the injured lost his income and got 40% physical permanent disability and the petitioner would not be in a position to work that he used to work. Moreover, he spent some money on his treatment. His job profile has also been hampered/affected badly due to this accident. He was constrained to live in a very tough life for these few months as he could not do anything. The petitioner was not having any permanent job and he has stated that he was earning Rs. 5,500/- per month from his job but he has not filed any
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documentary proof in support of the same. Hence his income is deemed to be the income of a unskilled man drawing minimum wages of Rs. 3719/- per month. Even otherwise he was not having any mediclaim or like facilities for financial assistance in his treatment. Thus, I take the loss of income for six months. As such a sum of Rs. 22314/- is granted to petitioner on account of loss of income (Rs. 3719/- X 6).
12. Petitioner was aged about 22 years at the time of accident. Hon'ble Delhi High Court in [PRECEDENT] and [PRECEDENT] [ENTITY] MAC. [CASE NUMBER] decided on 25.8.2009 held that keeping in view the trend of increase of minimum wages from time to time and rises in price index and inflation, it can be said that minimum wages would get almost double over a period of next ten years and thus future prospects should be given upon minimum wages also. Thus applying the formula given in these judgments, the monthly income of the petitioner can be held at Rs. 5578.5 (3719 + 50%).
13. As per the case of injured, petitioner at the time of accident he was about 22 years of age and was getting Rs. 5,500/- per month. Due to said accident the injured lost his income and got 40%. Moreover, he spent on his treatment and the same is still going on. His job profile has also been hampered/affected badly due to this accident. The life of the petitioner has become hell due to the conduct of respondent No.1 & 2 besides severe economic loss. The income of petitioner has also affected and he would not be able to live a normal life and most likely he would be entirely dependent upon his parents/brothers and other relations. However, I take the disability to 40% functional disability as per the judgment of Hon'ble Supreme Court reported in 2012 STPL (Web) CC Cases 12 SC.
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14. Petitioner in the petition described his age as 22 years on the date of accident. Hence in view of decision of Hon'ble Supreme Court of India in [PRECEDENT], multiplier of 18 has to be applied to count loss of earning capacity.
15. As no deduction from income has to be taken towards personal expenses in case of injury as per decision of Delhi High Court in [PRECEDENT]. [CASE NUMBER] decided on 22.3.2010 so the total loss of future income or earning capacity comes to Rs. 4,81,982/- (in round figure) as per the formula (Rs.5578.5 X 12 X 18 X 40%). Accordingly petitioner is granted loss of future income at Rs. 4,81,982/-.
16. The petitioner has filed medical bills for total amounting Rs. 14,885/- on record to point out that he had incurred such amount upon his treatment which was verified by insurance company and found to be correct. Further petitioner stated that he could not work from the date of accident till today as now he cannot stand continuously for long time which is required for a draftsman. As such he is granted a sum of Rs. 14,885/- against medical expenses to which there is no dispute from insurance company. .
17. 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 his injuries, period of hospital admission and treatment etc., I am of the view that maximum petitioner can be paid lump sum
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Rs.10,000/- towards special diet and Rs. 10,000/- towards conveyance charges.
Non-pecuniary damages (General damages):
18. As per the case of [ENTITY] it is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person suffered 40% permanent disability as a result of 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 Appellant was a young man of 22 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 him a sum of Rs. 70,000/- in lieu of pain, suffering, inconvenience, frustration, hardship and trauma caused due to injuries suffered in accident.
19. It can only be a matter of imagination as to how the appellant will have to live for the rest of life with 40% disability. The Appellant can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs. 50,000/- for the loss of amenities and enjoyment of life and Rs. 70,000/- on account of loss of marriage prospects and shortening of life as per the judgment of Hon'ble Delhi High Court given in case [PRECEDENT] and [ENTITY] vs. The New India Insurance Company Limited.
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20. 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/insurance company only:
A) Pecuniary damages (Special damages): a) Medical bills and expenses Rs. 14,885/-
b) Special diet Rs. 10,000/-
c) Conveyance charges Rs. 10,000/-
d) Loss of income Rs. 22,314/-
e) Future loss of income Rs. 4,81,982/-
B) Non-pecuniary damages (General damages):
a) Loss of amenities and enjoyment of life Rs. 50,000/-
b) Loss of marriage prospects and Rs. 70,000/- shortening of life
c) Pain, suffering, inconvenience Rs. 70,000/-
frustration, hardship and trauma Total Rs. 7,29,181/- Issue no.3 (Relief):-
21. Insurance company has not taken any plea and not taken any defence that driving license of the driver of the offending vehicle was not valid. Hence insurance company has no defence and is liable to pay the whole compensation alone.
On the basis of findings given above, present petition is disposed off. Respondent no. 3 insurance company is directed to pay sum of Rs. 7,29,181/- to the petitioner alongwith interest at the rate of 7.5 %
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p.a. from the date of institution of the petition i.e. 31.03.2006 till this amount is fully paid.
22. Out of the total amount Rs. 5 lakhs be kept in the form of FDR for a period of 5 years to be renewed from time to time. Remaining amount alongwith accrued interest will be kept in the saving bank account of the injured with liberty to withdraw Rs. 5,500/- per month towards his routine expenses and day to day business. FDR be kept in the in State Bank of India, Rohini Court Complex Branch. FDR be not broken without permission of the Tribunal. No loan or advance shall be granted to the petitioner on the FDR.
Copy of this judgment be given to petitioner and counsel for respondent no.3 Insurance Company and file be consigned to record room.
Announced in the open (D.K. MALHOTRA) Court on 23.03.2012 JUDGE, MACT (OUTER-II) DELHI