-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. 705/10/08) 1) [ENTITY] s/o. Sh. Suresh Kumar Srivastva Permanent R/o Village Dabaria, Beri Kuntva, PO Mangolpuri Gudriya, P.S.Notan, Distt. Champaran, Bihar. Local address : C/o. Shri Suresh Rana, House no. 561, Village Ghevra, Delhi Petitioner Versus 1) Sh. [ENTITY] s/o. Sh. Raja Ram R/o. Village Chatha, PO Mahara, Distt. Sonepat, Haryana 2) Sh. [ENTITY] s/o. Sh. Jaipal Singh R/o. Village Akbarpur Barota, PS Kundli, Distt. Sonepat, Haryana 3) ICICI Lombard Motor Insurance Company Ltd. Birla Tower, 5th Floor, 25, Barakhamba Road, New Delhi Respondents Date of institution 15.10.2008 Date of decision 28.05.2012 -2- (Application u/s 166 and 140 of Motor Vehicles Act for grant of compensation) JUDGMENT:
1. Petitioner aged about 21 years filed the present claim petition claiming therein a compensation of Rs. 20 lakhs alongwith interest on the ground that on 03.03.2008 at about 9.30 a.m. the petitioner was driving motorcycle no. DL-4SAG-4894 and Sh.[ENTITY] was sitting on pillion seat while proceedings from Ghevra to Narela. When the petitioner was driving his motorcycle on Narela-Bawana road and reached near school, at that time a truck dumper bearing registration no. HR-69-7292 driven by respondent no. 1 at fast speed in a rash and negligent manner came from back side and hit the motorcycle of the petitioner and due to the forceful impact the petitioner fell down and was injured. Further stated that accident was caused due to negligence on part of respondent no. 1. A criminal case under [SECTION] [ACT] was registered against respondent no.1 vide FIR No. 112/08 in police station Narela.
2. Petitioner alleged that at the time of accident he was painter by profession and used to paint houses and was earning Rs. 4,500/- per month as wages. Further stated that he could not do his painting work after his accident and he remained bedridden and was unable to move. Further stated that he could not do any work for about two years on account of injuries sustained in this accident. He claimed sum of Rs. 20 lakhs alongwith interest as compensation from the respondents being driver, owner and insurance company under various pecuniary and non pecuniary heads.
3. Respondents no. 1 and 2 filed their joint written statement submitting therein that respondent no.1 while driving the truck dumper no. HR-69-7292 has not caused any accident and that the case has been planted against the vehicle of answering respondents by noting its number just to solve the case. Further it is stated that the alleged case has been falsely planted by the police after noting the number of the vehicle just to solve the case. 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 16.02.2010 by my Ld. Predecessor:
1. Whether on petitioner received injuries in the roadside accident occurred on 03.03.2008 at about 9.30 am on Narela-Bawana Road, Near Bharat Mata Public School, Swatantar Nagar, Narela, Delhi due to rash and negligent driving of R-1/driver of offending vehicle No. HR-69-7292? OPP
2. Whether the petitioner is entitled to compensation as prayed for, if so to what extent and from which of the respondents?OPP
3. Relief.
5. Petitioner examined PW1 Sh. [ENTITY], Record Clerk, LNJP Hospital who brought the record pertaining to injured/petitioner. He deposed that injured was admitted in their hospital on 03/03/2008 and discharged on 18/06/2008. Further he proved the attested copies of treatment record Ex. PW1/A and that as per record the treatment was given free of cost and there was no bill raised.
Petitioner tendered his own affidavit Ex. PW2/A and relied upon the documents Ex. P-1 to Ex. P-29 i.e. certified copies of criminal case record, discharge slip, MLC Sheet, X-Ray Report, OPD Ticket and his Voter I- Card. Apart from that he also tendered his disability certificate Ex.P-A. In his cross-examination witness deposed that he has not placed on record any documents showing his monthly income as Rs. 4,500/- per month as he was doing the work of white washing on daily basis. He further averred that he had spent expenses for putting the plates in his leg and spent money for medicines as directed by LNJP Hospital from which he was getting treatment. Further,he deposed that he has placed some of the bills of medical expenses incurred by him after he was discharged from hospital. He further stated that he also got treatment thereafter but he has not brought any documents as these were lost due to shifting of room when he went to Bihar. He denied the suggestion put to him that he has not spent any money at the time he was taking treatment or thereafter. He mentioned that the disability certificate has been issued by the hospital in my favour. He also denied that the accident took place due to negligence on his part and that he is not entitled to any compensation. Respondents did not produce any witness 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 averments made in the claim petition about the manner of accident have already been discussed above. The certified copies of criminal case record Ex. P-1 to Ex. P-11 for the offences punishable u/[SECTION] [ACT] against the respondent no. 1/driver has been filed by the counsel for the petitioner, which reveals that he was prosecuted by the police for causing injuries to the petitioner. The petitioner appeared and entered into witness box and in his affidavit of evidence disclosed how and in which manner accident had taken place. He specifically blamed respondent no. 1 for driving offending bus in rash and negligent manner and hitting his injured son. No effective cross-examination of the PW-1 had taken place and I find nothing in his statement to discard his version. It is the case of the respondent nos 1 & 2 that the present case has been falsely planted by the police after noting the number of the vehicle just to solve the case. On the other hand, it is also not the case of respondents that they had any previous enmity with the father of the deceased or IO or knew them prior to the date of accident. So possibility of false implication of respondent no. 1 in criminal case is also ruled out. I find no ground to disbelieve the statement of PW-1 which is supported by criminal case record so it is held that accident had taken place due to rash and negligent driving of offending bus by respondent no. 1 by which the petitioner had suffered injuries and there was no negligence on the part of the deceased. These issues are thus decided in favour of petitioners and against the respondents.
Issue no.2:-
9. Petitioner was taken to the hospital after sustaining grievous injuries and sustained fractures, dislocation of hip region with left SI Joint disruption with grievous injuries on abdomen and over the body on 03/03/2008 and suffered 48% permanent disability.
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
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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 Raj Kumar vs.
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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):
Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
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.
c) Future medical expenses. Non Pecuniary damages (General damages): a) Damages for pain suffering and trauma as a consequence of the injuries. b) Loss of amenities (and/or loss of prospects of marriage). c) Loss of expectation of life (shortening of normal longevity). - 12 -
In routine personal injury cases, compensation will be awarded only under heads (i), iii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
We shall now consider whether the compensation awarded to the petitioner is just and reasonable or he is entitled to enhanced compensation under any of the following heads:
i) Loss of earning and other gains due to the amputation of leg.
ii) Loss of future earnings on account of permanent disability.
iii)Future medical expenses.
iv)Compensation for pain, suffering and trauma caused due to the accident.
v) Loss of amenities including loss of the prospects of marriage.
vi)Loss of expectation of life.
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 further observed as under:
"In this view of the matter, in our view, it would be difficult to hold that for future medical expenses which are required to be incurred by a victim, fresh award could be passed. However, for such medical treatment, the court has to arrive at a reasonable estimate on the basis of the evidence brought on record."
"After the aforesaid judgment, the cost of living as also the cost of artificial limbs and expenses likely to be incurred for periodical replacement of such limb has substantially
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increased. Therefore, it will be just and proper to award a sum of Rs. 2,00,000/- to the appellant for future treatment. If this amount is deposited in fixed deposit, the interest accruing on it will take care of the cost of artificial limb, fees of the doctor and other ancillary expenses."
"The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, 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 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met awarding him a sum of Rs. 1,50,000/- in lieu of pain, suffering and trauma caused due to the amputation of leg."
"The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the appellant will have to live for the rest of life with one artificial leg. 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. 1,50,000/- for the loss of amenities and enjoyment of life."
Pecuniary damages (Special damages):
Loss of income
11. Petitioner has stated that he remained admitted in the hospital from 03/3/2008 to 18/06/2008 and that his treatment in all continued for
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about two years. Apart from that he filed OPD slips dated 05/03/2009, 03/05/2010. It is not the case of the petitioner that in his absence any other person had not looked after his alleged work of painter. Further petitioner stated that due to this accident he remained admitted in the hospital for about three and half months. In such circumstances, the petitioner is presumed to be lost his earning for the sum of Rs. 3,799/- per month taking his salary in view of minimum wages schedule under the category of semi skilled worker thus I am granting the loss of income of six months only. Petitioner is thus entitled to sum of Rs. 22,794/- towards loss of income (Rs. 3,799 X 6 months).
Loss of future income
12. The petitioner/injured was a self employed person. He was aged about 21 years at the time of accident. Hon'ble Delhi High Court in [PRECEDENT] and [PRECEDENT]. [CASE NUMBER] decided on 25.8.2009 held that keeping in view the trend of increase of minimum wages of semi skilled worker from time to time and rises in price index and inflation, it can be said that minimum wages of unskilled worker would get almost double over a period of next ten years and thus future prospects should be given upon minimum wages also. In this regard the petitioner has relied upon the judgment of Hon'ble High Court in case titled [PRECEDENT]. Thus applying the formula given in these judgments, the monthly income of the petitioner can be held at Rs. 5,699/- (3799/- + 50%).
As per the case of injured, he has suffered disability to the extent of 48%. He is not working because being not capable of working and in that very nature of the things the functional disability is 100%. In this regard reliance is taken upon the judgment passed by Hon'ble Supreme
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Court of India titled as [PRECEDENT] decided on 16.08.2011.
Petitioner in the petition described his age as 21 years though as per his MLC his age was 20 years at the time 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.
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. 5,90,872/- (in round figure) as per the formula ( 5,699 X 12 X 18 X 48%). Accordingly petitioner is granted loss of future income at Rs. 5,90,872/- (in round figure).7 Future Medical expenses
13. The petitioner has stated that he was admitted in Lok Nayak Hospital from 03.03.2008 to 18.06.2008 and during this period an operation was conducted for RTA with fracture distabulium with post dislocation of hip with post abd. wall hametime and that he visit the hospital time to time for his treatment and that due to stiffness in hip region and shortening of his left leg his life has been ruined. As such he is granted a sum of Rs. 75,000/- against future medical expenses.
Special diet and conveyance charges
14. No proof of spending upon 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. Accordingly I am of
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the view that maximum petitioner can be paid lump sum Rs. 20,000/- towards special diet and Rs. 20,000/- conveyance charges.
Pain and suffering
15. 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 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 boy of 21 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. 1,50,000/- in lieu of pain and suffering caused due to injuries suffered in accident.
Loss of amenities of life and inconvenience
16. It can only be a matter of imagination as to how the appellant will have to live for the rest of life with 48% 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. 2,00,000/- for the loss of amenities of life and inconvenience 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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17. 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) Future Medical expenses Rs. 75,000/-
b) Special diet Rs. 20,000/-
c) Conveyance charges Rs. 20,000/-
d) Loss of income Rs. 22,794/-
e) Loss of future income Rs. 5,90,872/-
B) Non-pecuniary damages (General damages):
a) Pain and sufferings Rs. 1,50,000/-
b) Loss of amenities to life and inconvenience Rs. 2,00,000/-
Total Rs. 10,78,666/-
Issue no.3 (Relief):-
18. On the basis of findings given above, present petition is disposed off and respondent no. 3 insurance company is directed to pay sum of Rs. 10,78,666/- to the petitioner alongwith interest at the rate of 9% p.a. from the date of institution of the petition i.e. 15.10.2008 till this amount is fully paid in view of judgment of Hon'ble Supreme Court in case titled as [PRECEDENT]. Reported as [CASE NUMBER].
19. In addition to that Rs. 75,000/- as layers fees and Rs.15,000/- towards out of pocket expenses be given to counsels for petitioner Ms. [ENTITY], as per judgment of Justice [ENTITY] titled as [PRECEDENT] by insurance company by making
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separate cheques in the name of counsel for petitioner in addition to the award of compensation.
20. Further it is directed that entire amount of award alongwith upto date interest be deposited in form of FDR initially for period of five years to be renewed from time to time in the name of petitioner with SBI, Rohini Court Complex Branch with liberty to withdraw monthly interest from saving bank account.
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 28.05.2012 JUDGE, MACT (OUTER-II) DELHI