1 IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI (M-31G/11) (Grievous Injury case) Sh. [ENTITY] S/o Sh. S.P.Verma R/o. 45, Amba Enclave, Sector 9, Rohini, Delhi. Petitioner Versus 1) Sh. [ENTITY] (Driver) S/o Sh. Ram Phal Sindhu R/o. Jivani Hospital, Near OBC Kharkhoda, Distt. Sonipat, Haryana. 2) Smt. [ENTITY] R/o. Jivani Hospital, Near OBC Kharkhoda, Distt. Sonipat, Haryana. 3) [ENTITY] Flat No. 101-106, N-I, BMC House, Connaught Place, New Delhi. Respondents Date of filing of DAR 06.09.2011 Date of decision 24.10.2013 (Application u/s 166 and 140 of Motor Vehicles Act for grant of compensation) JUDGMENT:
1 DAR has been filed with brief facts of the case that on 2.7.2009 at about 2.50 PM while the injured was driving his car bearing No. DL 8CH 4284 make Maruti Alto at a very slow speed and following the traffic rules and was going from Si Baba Chowk, Rohini to his home i.e. 45, Amba Enclave, Sector 9, Rohini, Delhi. When the injured reached on the red light of Sukhdham Chowk near Pillar No. 405 and 406, Righala Metro Rail Line, Rohini, Delhi and stopped his said car due to red signal and moved his car from the said red light crossing when the signal turned green and took right turn from the said red light crossing. A car bearing No. HR 10 1588 make Maruti Zen Estilko came from Rithala side, which was being driven by its driver at a very high speed rashly, negligently without blowing any horn in contravention of traffic rules who jumped the red light crossing without looking at the red signal in a rash and negligent manner and hit the above said vehicle of the deponent from the rear back left side as a result the said vehicle of the deponent got crushed and due to which the deponent shocked and sustained severe and multiple injuries due to the said hitting. A criminal case under [SECTION] [ACT] was registered against respondent no.1 vide FIR No. 70/11 in police station South Rohini, Delhi.
2. Petitioner claimed compensation alongwith interest from the respondents being driver and owner and insurance company under various pecuniary and non pecuniary heads.
3. Respondents no. 1 and 2 chose to remain absent and hence vide order dt. 17.12.2011 they were proceeded exparte. Respondent No. 3/Insurance company filed its WS cum reasoned response wherein it denied all allegations and evaded its liability on technicalities, however, it also submitted that they had no statutory defence to offer.
4. On the basis of pleadings of the parties, following issues are to be decided:-
1.Whether the petitioner received injuries due to road accident on 31.3.2011 at about 2.50 PM at Red Light Sukhdham Chowk, near Pillor No. 405-406, Rithala Metro Rail Line, Rohini, Delhi within jurisdiction of PS South Rohini due to rash and negligent driving of R-1/driver of the offending vehicle No. HR 10K 1588 ?
2.Whether the petitioner is entitled to compensation, if so, to what an extent and from which of the respondents? OPP
3.Relief
5. Petitioner examined two witnesses i.e. himself as PW1. He tendered his evidence by way of affidavit Ex. PW1/A1. He relied upon the DAR Ex.PW1/1.
PW2 is Dr. [ENTITY], General Practitioner.
PW3 is Sh. [ENTITY], Income Tax officer and he brought the summoned record i.e. computerized downloaded record of the ITR of the applicant Sh. [ENTITY] for the assessment year 2008-09 to 2011-12 with certificate U/[SECTION] of [ACT] and proved the same as Ex.PW3/A and Ex.PW3/B collectively. Thereafter PE was closed.
No evidence was led on behalf of respondents. Thereafter RE was closed.
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], 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 vehicle i.e. Car bearing No. HR 10K 1588 by filing the charge sheet. PW Mr. [ENTITY] being injured/eye witness of accident in his statement as PW1 in this case 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 vehicle. He was cross examined on behalf of respondents but even in the cross examination nothing substantial came out in favour of respondents and the testimony of PW1 remained unshaken on record regarding negligency. Testimony of PW1 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. Furthermore the police has produced the DAR proceedings wherein the respondent No.1 has been charge sheeted for the offence for causing the accident in question while driving the offending vehicle in rash and negligent manner. R1 was the best witness to contradict the same but he chose not to led any evidence on his behalf. Hence this issue is decided in favour of petitioner and against the respondents.
Issue no.2:-
9. Petitioner was not taken to the hospital by the police but he went to Dr.[ENTITY] on 31.5.2011 himself who opined the injuries to be simple in nature but suffered soft tissue injury and advised for rest for 4 weeks. Petitioner examined the said doctor [ENTITY] as PW2. Dr. [ENTITY] as PW2 deposed in his examination in chief that he had perused the Xray report and found though on the report of the Xray given by the radiology it was given that it was a case of fracture but to him it seems to be a case of doubtful fracture and it seems to be a case of hairline crack injuries to the right shoulder grater tuprosity hence the report in his view as of doubtful report of the radiologist and hence he opined the injuries to be simple. During his cross examination he deposed that in medical language the injuries are opined as mild, moderate and severe. As per the dictum of law, the injuries where a fracture has been suffered by the injured though it may be a hairline fracture it is stated to be grievious injury.
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 andnon- 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 [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, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure.
II)Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising;
a) Loss of earning during the period of treatment; b) Loss of future earnings on account of permanent disability. iii)Future medical expenses. Non Pecuniary damages (General damages)
iv)Damages for pain suffering and trauma as a consequence of the injuries.
v)Loss of amenities (and/or loss of prospects of marriage).
Loss of expectation of life (shortening of normal longevity).
Pecuniary damages (Special damages):
Medical Expenses
11. The petitioner has stated that he received grievous injuries all over his body. After the accident the petitioner fell down and received serious injuries over whole of the body. He was not taken to the hospital by the police but he himself went to Dr. [ENTITY] on the next day i.e. 31.5.2011 where his injuries were opined to be simple by the said doctor but observed the injury soft tissue of his right shoulder and was advised rest for four weeks. The petitioner has failed to produce or prove any medicine bills on record, hence he is not entitled to any actual medical expenses.
Special diet and conveyance charges
12. No proof of spending on conveyance and special diet are brought on record, 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, however, in absence of any other evidence in this regard and after considering her injuries, period of hospital admission and treatment etc., I am of the view that maximum petitioner can be paid lump sum of Rs. 5,000/- towards special diet and Rs. 5,000/- towards conveyance charges.
Loss of Income:
13. Petitioner has suffered grievous injuries all over his body as per MLC and other medical documents placed on record. After the accident the petitioner fell down and received serious injuries over whole of the body. He was not taken to the hospital by the police but he himself went to Dr. [ENTITY] on the next day i.e. 31.5.2011 where his injuries were opined to be simple by the said doctor but observed the injury soft tissue of his right shoulder and was advised rest for four weeks. The petitioner has further submitted that at the time of accident he was working as insurance agent earning monthly income of Rs. 50000/- per month. In support of his claim he examined PW3 Sh. [ENTITY], Income Tax officer who proved the ITR of petitioner for the assessment year 2008 -09 to 2011-12 as Ex.PW3/B collectively as per which his total income for the assessment year 2011-12 has been shown to be Rs. 4,16,990/-. Hence keeping in view of the nature of injury sustained by the injured I grant him loss of income for the period of one month which comes to Rs. 34,749/-.
Non-pecuniary damages (General damages):
Pain and Sufferings etc:
14 As per the case of [ENTITY] (Supra), it is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person 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 injured was a young man of 34 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. 30,000/- in lieu of pain, suffering, inconvenience, frustration, hardship and trauma caused due to injuries suffered in accident.
15 As admittedly the driver/respondent No. 1 was holding the valid licence and offending vehicle i.e car bearing No. HR 10 1588 and was duly insured with the respondent No.3/Insurance company on the date of accident. No breach of terms of policy has been proved on record by the R3. Hence in the absence of any statutory defence, the insurance company/R3 is only liable to give compensation to the petitioner.
16 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. insurance company only.
A) Pecuniary damages (Special damages): a) Medical expenses Rs. Nil
c) Special diet Rs. 5,000/-
d) Conveyance charges Rs. 5,000/-
e) Loss of income Rs. 34,749/-
B) Non-pecuniary damages (General damages):
a) Pain, suffering, inconvenience Rs. 30,000/-
frustration, hardship and trauma Total Rs. 74,749/- Relief 17 On the basis of findings given above, present petition is disposed off.
Respondent no. 3 is directed to pay within 30 days a sum of Rs. 74,749/- to the petitioner alongwith interest at the rate of 9% p.a. as per the judgment in case [PRECEDENT] from the date of filing of the DAR i.e 6.9.2011 till realization with accrued interest with the right to the insurance company to recover the same from owner and driver of offending vehicle. It be deposited in the account of the petitioner and be released to him through his saving bank account.
18 Copy of this judgment be given to the parties for compliance.
19 Put up for payment on 23.11.2013.
Announced in the open (D.K.MALHOTRA) Court on 24.10.2013 JUDGE, MACT North -II Rohini DELHI M-31G/11 24.10.2013 Pr. Counsel for the parties. Final arguments heard.
Vide separate judgment, petition stands disposed off. Put up for payment on 23.11.2013.
Announced in the open (D.K.MALHOTRA) Court on 24.10.2013 JUDGE, MACT (NORTH-II) DELHI