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. 17/12) Sh. [ENTITY] S/o Sh. [ENTITY] R/o. 863, B Block, J.J.Camp, Suraj Park, Badli, Delhi. Petitioner Versus 1) Sh. [ENTITY] (Driver) S/o Sh. Hari Singh R/o 492/11, Jeewan Park, Siraspur, Delhi. 2) Sh. [ENTITY], (Owner) S/o Sh. Braham Pal Rana R/o 35A, Hans Vihar, Sector 13, Rohini, Delhi. 3) [ENTITY] H-10, 105-106, Express Arcade, Netaji Subhash Palace, Pitampura, New Delhi. (Policy No. 1306712311003479 Valid from 28.6.2011 to 27.6.2012). Respondent Date of institution 13.01.2012 Date of decision 23.05.2013 (Application u/s 166 and 140 of Motor Vehicles Act for grant of compensation) 2 JUDGMENT:
1 On the unfortunate day of 8.10.2011 at about 11.00 AM the petitioner/injured was pulling his cycle rikshaw and when he was turning it, the offending vehicle i.e Car bearing No. DL 2C AM 4726 driven by its driver came from Industrial Area side at very high speed, rashly and negligently without caring the traffic rules and without blowing horn hit the petitioner with forceful impact, as a result of which the petitioner fell down on the road and sustained grievous injuries on his person. He was removed to Baba Saheb Ambedkar Hospital where his MLC was prepared vide No. 9629/11. The accident occurred due to negligence on part of respondent No.1. The FIR was registered in respect of this accident vide FIR No. 382/11, PS Samai Pur Badli, U/[SECTION] [ACT].
2 Respondents No.1 & 2 chose to remain absent and accordingly vide order dt. 14.2.2012 they were proceeded with exparte. Separate written statement was filed on behalf of respondent No.3/insurance company wherein it denied all allegations made by the injured and evaded its liabilities on technicalities.
3 On the basis of the pleadings of the parties following issues were framed on 26.03.2012:-
Issues
1. Whether Shd. [ENTITY] son of Sh. [ENTITY] suffered injuries due to road accident on 8.10.2011 at about 11.00 AM in front of Aggarwal Sweets/ Lal path Lab, sector 18, Rohini, Delhi within jurisdiction of PS Samaipur Badli due to rash and negligent driving of car bearing No. DL 2C AM 4726 being driven by respondent No.1 ? OPP.
2. Whether the petitioner is entitled to compensation, if so to what an extent and from which of the respondents ? OPP.
3. Relief.
4 The petitioner in support of their case examined two witnesses:-
PW1 is Dr. [ENTITY], Sr. Resident, Member of the Board. He deposed that he was member of the board being Sr. Resident and specialist PMR alongwith Dr. [ENTITY], consultant PMR and Dr. [ENTITY], Consultant PMR. He brought the file containing the record on the basis of which the file containing the medical record and the calculation carried out by the which was the basis of their report. He proved the disability certificate of injured as Ex.PW1/1 and copy of the calculation report as Ex.PW1/B. (OSR).
PW1 is Sh. [ENTITY], he is injured/eye witness himself. He tendered his evidence by way of affidavit Ex.PW2/A. He further tendered in evidence the documents i.e. his election I card as Ex.PW2/A, he further relied upon the DAR verification report as Ex.PW2/B to Ex.PW2/D. Thereafter PE was closed.
Respondents No.1 & 2 were already exparte whereas respondent No. 3/insurance company has no statutory defence to offer, hence RE was closed.
5 I have heard Ld. counsels for the parties besides going through the material on record carefully.
ISSUE NO.1:
6 The onus of proving the issue No.1 was on the petitioners. 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.
In case N.K.V. Bros (P) Ltd. vs. M.Karumai Ammal & Ors. (1980) 3 SCC 475 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 As the onus of proving the issue No.1 was on the petitioner who is the injured/eye witness himself. He deposed that on 8.10.2011 at about 11.00 AM the petitioner/injured was pulling his cycle rikshaw and when he was turning it, the offending vehicle i.e Car bearing No. DL 2C AM 4726 driven by its driver came from Industrial Area side at very high speed, rashly and negligently without caring the traffic rules and without blowing horn hit the petitioner with forceful impact, as a result of which the petitioner fell down on the road and sustained grievous injuries on his person. He was removed to Baba Saheb Ambedkar Hospital where his MLC was prepared vide No. 9629/11. The accident occurred due to negligence on part of respondent No.1. He was cross examined by counsel for respondent No.3 but nothing incriminating came out from his cross examination. Further the respondent No.1/driver of the offending vehicle chose not to examine him despite the fact that he was the best witness to corroborate the statement of PW1. Hence adverse inference is to be drawn against him.
8 The DAR/copies of the criminal case record is also placed and proved on the record as Ex.PW2/B to 2/D which shows that the police has prosecuted the respondent No.1/driver of the offending vehicle for driving the offending vehicle in rash and negligent manner and causing the accident in question. 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 PW2 regarding the manner of accident, I find no ground to disbelieve his statement and accordingly it is held that accident had taken place due to rash and negligent driving of offending vehicle No. DL 2C AM 4726 by respondent no. 1 by which injured had suffered grievous injuries and there was no negligence on his part. 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 [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 [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 [ENTITY] V. Ajay Kumar Manu/SC/1018/2010: (2011) 1 SCC 343, 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 [ENTITY] vs. Ajay Kumar (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):
Loss of Income 10 Petitioner/injured submitted that on the date of accident i.e. 8.10.2011 he was 48 years old and was self employed and doing the job of cycle rikshaw puller and earning Rs. 8000/- per month. Due to the accident he suffered serious fracture on right leg, serious injury on stomach and other multiple injuries all over body and other injuries as per the Medical record. He become permanently disabled vide disability certificate Ex.PW1/1. Due to his injuries sustained in the accident, the petitioner failed to do his work for a long time. The petitioner has however, not placed on record any documentary proof to show that he was plying cycle rikahsw and was earning Rs. 8000/- per month. In these circumstances in the absence of any proof, I consider the injured/petitioner to be unskilled labour and grant him income as per minimum wages rates existed at the time of accident. Hence keeping in view the nature of injuries sustained by the inured and facts and circumstance of the case I grant a sum of Rs. 6656/- per month to the petitioner considering him to be unskilled labour as per minimum wages rates and grant him the loss of income for the period of four months which comes to Rs. 26,624/- ( 6656 X 4).
Loss of future prospects:
11 Petitioner alleged that on 8.10.2011 he was 48 years old and was self employed and as held above he was earning Rs. 6656/- per month being unskilled labour. Due to the accident he suffered serious fracture on right leg, serious injury on stomach and other multiple injuries all over body and other injuries as per the Medical record. He become permanently disabled vide disability certificate Ex.PW1/1. Due to his injuries sustained in the accident, the petitioner failed to do his work for a long time. But the sudden disaster brought a great shock and suffering to the petitioner. He suffered 40% physical impairment in relation to right lower limb as per disability certificate Ex. PW1/A issued by AIIMS, Delhi. Moreover, the injured 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 besides severe economic loss. The income of petitioner has also affected and he would not be able to live a normal life.
12 Since injured was 48 years as per the material on record, so keeping in view his age about 48 years at the time of accident, future prospectus of 15% has to be added in his income as per [PRECEDENT]. judgment of Hon'ble Supreme Court's decision reported in [CASE NUMBER] arising out of [CASE NUMBER] decided by Hon'ble Mr. Justice [ENTITY], Hon'ble Mr. Justice [ENTITY] and Hon'ble Mr. Justice [ENTITY] on 12th April 2013. Hence the monthly income of injured comes to Rs. 7654.4 paise. (6656/- + 15%).
13 As proved above, the age of the petitioner was 48 years on the date of accident. Hence in view of decision of Hon'ble Supreme Court of India in [PRECEDENT], multiplier of 13 has to be applied to count loss of earning capacity.
14 Counsel for the petitioner has cited judgment passed by Hon'ble Supreme Court of India titled as [PRECEDENT] decided on 16.08.2011. It is the claim of the petitioner that at the time of accident he was about 48 years of age with good health and got 40% physical disability as per disability certificate proved on record issued by AIIMS as Ex.PW1/A which amounts to complete functional disability of 100%, permanent disability in relation to his right lower limb. 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. His parents is still spending on his treatment and compelled to travel by auto or taxi to cover the distance and the said expenses will be a permanent expenses in future. 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. However, in view of the disability certificate issued by AIIMS, Hospital as Ex.PW1/A, I take the disability to 100% permanent physical disability as per the judgment of Hon'ble Supreme Court reported in 2012 STPL (Web) CC Cases 12 SC.
15 As no deduction from notional income has to be taken towards personal expenses in case of injury as per decision of Delhi High Court in [PRECEDENT] decided on 22.3.2010 so the total loss of future income or earning capacity comes to Rs. 4,77,634.56 paise as per the formula (7654.4 X 12 X 13 X 40%). Accordingly petitioner is granted loss of future prospects at Rs. 4,77,634/-. (in round figure).
Medical Expenses/Future medical treatment:
16 Petitioner got medical treatment from the government hospitals and has not produced or proved any documents regarding expenditure on the medicines/treatment etc or any future medical treatment under which the injured is required. in view of same in the absence of any proof, the claim of injured regarding medical expenses and future treatment stands rejected.
Special diet and Conveyance charge:
17 Petitioner has alleged that he spent money on conveyance and special diet. Though no proof of spending upon special diet is brought on record. 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. 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 in support of special diet and conveyance, I am of the view that maximum petitioner can be paid Rs. 10,000/- towards special diet and a sum of Rs. 10,000/- towards conveyance charges.
Non-pecuniary damages (General damages) Pain and Sufferings etc:
18 As proved on record the petitioner suffered grievous injuries and suffered 40% permanent physical disability in relation to his right lower limb.
Hence judicial notice can be taken of the fact that due to such type of injuries as is suffered by the petitioner, he could not perform his daily routine work properly. Difficulty and inconvenience must have arisen to him to perform even daily personal routine acts due to said accident. He 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 etc. as per the judgment of [ENTITY]'s case (Supra).
Loss of amenities, shortening of life etc. 19 As held above the petitioner was 48 years of age at the time of accident. He suffered permanent physical disability, it is opined as per Ex. PW1/A he suffered physical disability of 40% in relation to right lower limb. His routine work has also been hampered/affected badly due to this accident. Difficulty and inconvenience have arisen to him to perform even daily personal routine acts due to said accident. During the rest of his life he will not be able to live like normal human being and will not be able to enjoy the life and he has to live with the stigma of accident for the rest of his life and he might be alive 30-40 more years. Hence I award him a sum of Rs. 1,00,000/- for the loss of amenities and enjoyment of life etc. as per the judgment of [ENTITY]'s case (supra).
20 As it is admitted that the offending vehicle i.e bearing No. DL 2C AM 4726 was duly insured with the insurance company/respondent No. 3 vide policy No. 1306712311003479 valid from 38.6.2011 to 27.6.2012 at the time of accident and the respondent No.1 was having a valid driving licence. Hence in the absence of any statutory defence of insurance company and breach of the terms of the policy, the same is liable to give compensation to the petitioner.
21 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 i.e. insurer of offending vehicle only.
Pecuniary damages (Special damages):
Loss of income Rs. 26,624/- Loss of future prospects Rs. 4,77,624/ Special diet expenses Rs. 10,000/- Conveyance charges Rs. 10,000/-
Non-pecuniary damages (General damages) Pain, suffering, mental shock and trauma Rs. 50,000/- Loss of amenities etc. Rs. 1,00,000/-
Total Rs. 6,74,248/- 22 Vide order dt. 3.10.2012 a sum of Rs. 25,000/- was granted to the petitioner
by way of interim award passed in his favour. A sum of Rs. 25,000/- is to be deducted from 6,74,248/- which now comes to Rs. 6,49,248/- per month.
ISSUE No. 3 (Relief):-
23 Petitioner is entitled to a sum of Rs. 6,49,248/- alongwith interest @ 9% as per the judgment in case [PRECEDENT], from filing of DAR petition i.e 16.12.2011 till the payment is made by the respondent No. 3/insurance company within 30 days from the date of this award alongwith accrued interest.
24 It is further ordered that out of the total compensation amount Rs. 10,000/- in cash be released to the petitioner and remaining compensation amount with upto date interest be kept in the form of FDR in the name of petitioner initially for the period of five years (thereafter it be renewed from time to time) with SBI, Tis Hazari Court branch, Delhi, with liberty to the petitioner to withdraw the monthly interest on the said FDR by way of saving bank account of the petitioner. The said FDR shall not be encashed without permission of the court. No ATM facility, loan or advance shall be granted to the petitioner on the FDR. The original FDR be kept by the bank itself and only the attested copy of said FDR be handed over to the petitioner.
25 Copy of this judgment be given to petitioner and counsel for respondents.
26 Put up for payment on 10.7.2013.
Announced in the open (D.K. MALHOTRA) Court on 23.05.2013 JUDGE, MACT (NORTH-II) DELHI 23.05.2013 Pr. Counsel for the petitioner. Counsel for insurance company. Respondents No.1 & 2 are exparte. Final arguments heard.
Vide separate judgment, petition stands disposed off.
Put up for payment on 10.7.2013.
Announced in the open (D.K.MALHOTRA) Court on 23.05.2013 JUDGE, MACT (NORTH-II) DELHI