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. 40/12) [ENTITY] S/o [ENTITY] R/o Vill. Gamri, Bhajanpura, Shahdra, Delhi. Petitioner Vs. 1. [ENTITY] S/o Rattan Singh, R/o. 8, Unchi Gali, Vill. Bhadola, P.O. Adarsh Nagar, near Metro Station, Delhi-33. (Driver of offending vehicle) 2. M/s.[ENTITY]. Power Solutions Pvt. Ltd. 129, Transport Centre, Rohtak, Road, Punjabi Bagh, Delhi 26 (Owner). 3. Tata AIG General Insurance Co. Lotus Tower, First floor, Community Centre, New Friends Colony, New Delhi. Respondents Date of institution 16.04.2010 Date of decision 15.09.2012 (Application U/s 166 & 140 of the MACT Act 1988 for grant of Compensation) JUDGMENT:
1 On the fateful day of 5.11.2011 at about 10.30 AM when the petitioner was going towards Shahdra, Delhi from his house on the motorcycle of his friend [ENTITY] bearing registration No. DL 8SN C 3253, make Bajaj Pulsar and reached at Railway Phatak, Holambi Kalan towards Narela, Alipur road and moved ahead 10/15 meters then at the relevant time offending vehicle bearing No. DL 1LK 2550 make Tata Ace which was being driven by its driver in a rash and negligent manner and at a very high speed came from front side and hit the motorcycle of the petitioner due to which petitioner fell down on the road and sustained injuries in his right leg wherein he received fracture and two rods were inserted which was lateron operated and further received on his shoulders also. Initially the petitioner was removed to Khurd Maharishi Valmiki hospital where he was medically examined vide [CASE NUMBER]. The case was registered in respect of this accident vide FIR No. 555/11 U/[SECTION] PS Rohini. The respondent No.1 is entirely responsible for the said accident and is, therefore, liable to pay compensation under the law. the respondent No.2 is the owner of the offending vehicle and respondent No.3 being the insurance company are vicariously liable to pay compensation as per law of torts, being the owner and insurance company of the offending vehicle. The petitioner has claimed a total sum of Rs. 5,00,000/- as compensation with interest @ 12% p.a. 2 No written statement was filed on behalf of respondent No.1 and respondent No.2 as they were proceeded exparte.
3 Further respondent No.3 adopted the reply filed to the DAR proceedings as the its written statement. In reply filed by the respondent No.3/insurance company, it is stated that the aforesaid vehicle was ensured with the answering respondent at the relevant time. The respondent No.3 was also inclined to settle the case for a full and final amount of Rs. 40,000/- alongwith further actual medical expenses bills, if any. On the pleadings of the parties following issues were framed on by my Ld Predecessor:-
Issues I) Whether Sh. [ENTITY] son of Sh. [ENTITY] who was on motorcycle bearing No. DL 8SNC 3253 (Bajaj Pulsar) suffered injuries due to road accident on 6.11.2011 at about 10.30 AM at Railway Phatak, Holambi Kalan towards Narela, Alipur Road, Delhi within the jurisdiction of PS Narela due to rash and negligent driving of [ACT] bearing No. DL 1LK 2550 being driven by respondent no.1 ? OPP.
II) Whether the petitioner is entitled to compensation, if so, to what extent and from which of the respondent ? OPP.
III) Relief.
4 Vide order dt. 21.8.2012 the evidence was closed as the insurance company was found to be admitting the factom of accident, the way it has taken place and that as per the fact that they have no statutory defence of offer, however, the insurance company was disputing the factum of compensation only.
5 I have heard counsel for the parties and perused the material on record. My decision on the above mentioned issues is as under:
ISSUE NO.1:
6 The onus of proving the issue No.1 was on the petitioner. 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] by Hon'ble Guahati High Court 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.
[PRECEDENT] 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".
7 The certified copy of criminal case record shows that respondent no. 1 has been prosecuted by the police for causing the accident in question due to rash and negligent driving of offending vehicle. PW-1, petitioner in his affidavit of evidence disclosed how and in which manner accident had taken place and specifically blamed respondent no. 1 for driving offending vehicle in rash and negligent manner and hitting the petitioner. Apart from vague suggestions nothing substantial in his cross examination has come on record which shows that there was any negligence on the part of the petitioner or the accident had not happened in the manner as alleged. The documents proved on record, prima facie shows that they indirectly admitted negligence of the respondent no. 1 in absence of any specific defence on their part.
8 It is not the case of the respondents that they had lodged any complaint to any higher authority against alleged false implication of respondent no. 1 in criminal case. It is also not their case that they had any previous enmity with petitioner or IO of the case which facilitated them to involve respondent no. 1 in the alleged false case. In absence of any effective cross examination of petitioner / PW1 regarding the manner of accident, I find no ground to disbelieve her statement and accordingly it is held that accident had taken place due to rash and negligent driving of offending canter by respondent no. 1 by which petitioner had suffered grievous injuries and there was no negligence on the part of the petitioner/injured. Accordingly, this issue is thus decided in favour of petitioner and against the respondents.
ISSUE NO.2 9 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 R.D. Hattangadi v. Pest Control (India) Private Limited MANU/SC/0146/1995:
(1995) 1 SCC 551, this Court while dealing with a case involving claim of compensation under the [ACT], referred to the judgment of the Court of Appeal in Ward v. James (1965) - All ER 563, Halsbury's Laws of England, 4th Edition, Volume 12 (page 446) and observed:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance, (ii) loss of earning of profit up to the date of trial, (iii) other material loss. So for non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future, (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e, on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life".
In the same case, the court further observed:
"In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards".
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka MANU/SC/0803/2009: (2009)6 SCC 1, the three-Judge Bench was dealing with a case arising out of the complaint filed under the [ACT]. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs. 15 lakhs to Rs. 1 crore, the Bench made the following observations which can appropriately be applied for deciding the petitions filed under [SECTION] of the Act:
"At the same time we often find that a person injured in an accident leaves his family in greater distress vis- -vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution ensures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity".
In [PRECEDENT], this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the Judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
In [PRECEDENT], the Court considered the plea for enhancement of compensation made by the Appellant, who was a student of final year of engineering and had suffered 70% disablement in a motor accident. After noticing factual matrix of the case, the Court observed:
"We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as ho was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered".
In [PRECEDENT], the court considered some of the precedents and held:
"The provision of the [ACT], ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as for as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and hie inability to earn as much as he used to earn or could have earned".
In our view, the principles laid down in [PRECEDENT] (supra) and [PRECEDENT] (supra) must be followed by all the Tribunals and the High Court in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident".
The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages):
(i) Expenses relating to treatment, 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).
Pecuniary damages (Special damages):
10 Petitioner alleged that he was running the factory of Chuna and was earning Rs. 15,000/- per month but he has not disclosed details of the same. There is no proof on record to show that petitioner was running the said factory and was earning a sum Rs. 15000/- per month. In such situation, the loss of income has to be given according to rates of minimum wages of unskilled person. Accident took place on 5.11.2011 and at that time, minimum wages of unskilled worker was Rs.
6422/- per month.
11 In view of the injuries sustained by the injured/petitioner as per the treatment medical record placed on record, I grant him the loss of income for the period of three months. Hence the loss of income of injured/petitioner comes to Rs. 19,266/- (6422/- x 3). Accordingly the petitioner is granted loss of income of Rs. 19,266/-.
12 Petitioner has alleged that he spent money on his medicines as well as conveyance and special diet. Petitioner has placed on record the prescription slips alongwith the medicine bills Ex.PW1/1 (colly) which are amounting to Rs. 88,389/-, hence I grant the said amount to the petitioner towards medical bills. However, no proof of spending upon special diet is brought on record. In case of sickness and serious injury, medicines as well as special diet in the form of healthy food, juices, milk etc. is provided instead of or in addition to the normal food. Normally each receipt or bill in respect of conveyance and special diet is not retained by the people. Hence in absence of any sufficient evidence and complete documentary evidence, I am of the view that maximum petitioner can be paid Rs.5000/- towards special diet and Rs. 5000/- towards conveyance charges.
Non-pecuniary damages (General damages) 13 As proved on record the petitioner suffered grievious injury on his person due to the accident, hence judicial notice can be taken of the fact that due to such type of injury as is suffered by the petitioner, she could not eat or drink properly. Difficulty and inconvenience must have arisen to her to perform even daily personal routine acts due to said accident. She must have suffered great pain and sufferings and also had undergone some shock of accident. Such type of non pecuniary losses cannot be assessed in terms of money but keeping in view the age, status and condition of the petitioner, hospital visits etc. he is granted lump sum amount of Rs. 50,000/- towards pain and sufferings, inconvenience, mental shock, temporary loss of amenities etc. as per the judgment of [ENTITY]'s case of Hon'ble Supreme Court (Supra).
14 Respondent No.3/insurance company had stated in its reply, that the aforesaid vehicle was insured with the answering respondent at the relevant time and further the respondent No.3 was also inclined to settle the case for a full and final amount of Rs. 40,000/- alongwith further actual medical expenses bills, if any. Accordingly in such circumstances respondent No. 3 alone becomes liable to pay entire compensation amount to the petitioner.
15 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 respondent no. 3:
Pecuniary damages (Special damages):
Loss of income Rs. 19,266/- Medical expenses Rs. 88,389/- Special diet expenses Rs. 5,000/- Conveyance charges Rs. 5,000/-
Non-pecuniary damages (General damages) Pain, suffering, mental shock and trauma Rs. 50,000/-
Total Rs. 1,67,655/-
ISSUE No. 3 (Relief):-
16 Petitioner is entitled to a sum of Rs.1,67,655/- alongwith interest @ 9% as per the judgment in case [PRECEDENT], from 7.1.2012 till the payment is made by the insurance company within 30 days from the date of this award alongwith accrued interest.
17 It is further ordered that 10% compensation amount be released in cash and remaining 90 % compensation amount be kept in the form of FDR in the name of petitioner for the period of five years with HDFC bank, Rani Bagh branch, Delhi, with liberty to withdraw the monthly interest on the said FDR by way of saving bank account of the petitioner. The FDR shall not be encashed without permission of the court. No loan or advance shall be granted to the petitioner on the FDR.
18 Copy of this judgment be given to petitioner and counsel for respondents.
File be consigned to record room.
Announced in the open (D.K. MALHOTRA) Court on 15.09.2012 JUDGE, MACT (OUTER-II) DELHI 15.9.2012 Pr. Counsels for the parties. Final arguments heard.
Vide separate judgment, petition stands disposed off. File be consigned to RR.
Announced in the open (D.K.MALHOTRA) Court on 15.09.2012 JUDGE, MACT (OUTER-II) DELHI