1 IN THE COURT OF MS. BARKHA GUPTA : PO : MOTOR ACCIDENT CLAIMS TRIBUNAL : NORTHWEST DISTRICT ROHINI COURTS: DELHI MACT No. : 357/07 UNIQUE ID No. : 02404C0187322007 Sh. [ENTITY] S/o Sh. [ENTITY] R/o 63, Khaiber Pass, Mess, Civil Lines Delhi54. (Injured/Petitioner) Versus 1. Sh. [ENTITY] S/o Sh. [ENTITY] R/o F1168, Mangolpuri, Delhi83 (Driver/Respondent No. 1)
2. Sh. [ENTITY] S/o Sh. [ENTITY], R/o F1168, Mangolpuri, Delhi83 (Owner/Respondent no. 2) Other details: DATE OF INSTITUTION : 26.04.2007 DATE OF RESERVING ORDER : 17.03.2016 DATE OF PRONOUNCEMENT :31.03.2016 [CASE NUMBER] [ENTITY] Vs. [ENTITY] 1 of 20 AWARD/JUDGMENT
1. The petition under [SECTION] & [SECTION] of the [ACT] has been filed by the petitioner/injured namely Sh. [ENTITY] whereby he has claimed compensation to the tune of Rs. 8 lacs alongwith interest at the rate of 9% per annum from Sh. [ENTITY]/R1, Sh. [ENTITY]/R2, who were the respectively the driver and owner of the offending vehicle at the relevant time from the date of filing of petition till realisation of the compensation amount.
2. Brief facts of the case as revealed from the petition are that on 13.03.2007, the petitioner/injured Sh. [ENTITY] was going from his residence to attend his duty at Wazirpur, Delhi on his bicycle and at about 8:15 pm, when he reached near Celebration restaurant at inner ring road, at Wazirpur Industrial Area, Delhi suddenly, a vehicle Tata 407 bearing registration No. DL1LB 1283 (hereinafter referred to as the "offending vehicle") which at the relevant time was driven by Sh. [ENTITY]/R1 in a rash and negligent manner came from the side of Azadpur, Delhi and R1 turned the offending vehicle without flashing any indicator and in the said process, he hit the offending vehicle against the bicycle of the petitioner due to which the accident occurred wherein the petitioner sustained injuries. The petitioner was [CASE NUMBER] [ENTITY] Vs. [ENTITY] 2 of 20 initially admitted in BSA hospital at Rohini, Delhi from where he was admitted in Sant Parmanand Hospital, Delhi for his further treatment. The petitioner has submitted that he had sustained grievous injuries including various fractures and also got permanently disabled with respect to his left upper limb.
The petitioner has further submitted that at the relevant time, he was 38 years old and was working with DD Motors and was earning Rs. 7,000/ per month. He has also contended that he had spent a huge amount on his medical treatment etc. and has suffered from physical pain, mental torture and huge financial loss as he could not attend to his work for a considerably long time. It is further submitted that with respect to the said accident, FIR No.160/2007 U/[SECTION] [ACT] was registered at P.S. Shalimar Bagh, Delhi against R1 wherein he was prosecuted.
The petitioner has prayed that compensation in sum of Rs.8 lacs alongwith interest at the rate of 9% per annum be awarded in his favour and all the respondents are liable to pay him the said compensation amount jointly as well as severally as Sh. [ENTITY]/R1 and Sh. [ENTITY]/R2 were the driver and owner of the offending vehicle respectively at the relevant time from the date of filing of the claim petition till realisation of the [CASE NUMBER] [ENTITY] Vs. [ENTITY] 3 of 20 said amount and the offending vehicle was not insured.
3. As per record, R1 & R2, who were the driver and owner of the offending vehicle have filed their written statement, wherein they have interalia submitted that no such accident was ever caused by R1 while driving the offending vehicle and moreover, the compensation amount as claimed by the petitioner is highly exhorbitant.
4. As per record, after completion of pleadings of parties, following issues were framed by my Ld. Predecessor vide order dt. 27.09.2008:
1. Whether on 13.03.07 at about 8:15 pm near Celebration Restaurant, vehicle No. DL1LB1283 which was being driven in a rash and negligent manner hit petitioner's bicycle and caused injuries to him? OPP
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP
3. Relief.
5. The petitioner in support of his case has examined himself as PW1 and has further examined Dr. [ENTITY] (HOD, Ortho, Aruna Asaf Ali Hospital, Delhi) as PW2 to prove his permanent disability and has also examined Sh. [ENTITY], (Manager, Bawa Detective) as PW3.
[CASE NUMBER] [ENTITY] Vs. [ENTITY] 4 of 20 As per record, the Sh. [ENTITY]/R1, who was the driver of offending vehicle has also examined himself as R1W1 and the other respondent i.e. R2 has not adduced any evidence.
6. I have heard final arguments as advanced by Advocate Sh. [ENTITY], Ld. Counsel for the petitioner & Advocate Sh. [ENTITY], Ld. Counsel for driver/R1 and owner/R2 of offending vehicle. Now, I proceed to discuss the issues in the succeeding paragraphs.
7. Issue no. 1 "Whether on 13.03.07 at about 8:15 pm near Celebration Restaurant, vehicle No. DL1LB1283 which was being driven in a rash and negligent manner hit petitioner's bicycle and caused injuries to him?"
8. The petitioner has examined himself as PW1 and has adduced his evidence by way of affidavit which is proved as Ex.PW1/A wherein he has interalia testified that the said accident was caused on 13.03.07 while he was going on his bicycle at about 8:15 pm by the offending vehicle which at the relevant time was driven by R1 in rash and negligent manner and it hit him from behind due to which he fell down and his left hand got crushed under the front and rear wheels of the offending vehicle. He has also testified that initially he was admitted him in BSA hospital [CASE NUMBER] [ENTITY] Vs. [ENTITY] 5 of 20 but thereafter, he was also treated in Dr. Aruna Asif Ali Hospital, Delhi During his cross examination on behalf of R1 & R2, he has stated that he was riding the bicycle on the extreme left side of the road and the offending vehicle came from behind and the front portion of the driver side of the offending vehicle hit his bicycle.
9. As such, during cross examination of petitioner there is nothing on record to show if R1 was not driving the offending vehicle at the relevant time or if he was not driving it in a rash and/or negligent manner or while driving so, he did not cause the said accident in the manner as testified by petitioner. After going through the entire testimony of PW1, who is the most material witness of the occurrence/accident being the petitioner/injured, there is nothing on record to disbelieve his version. In fact, PW1 has testified before the court in a cogent and convincing manner and there is no reason to doubt either his presence at the spot or to doubt his witnessing the said occurrence. The testimony of PW1 does not seem to suffer from any inherent infirmity or artificiality or exaggeration and there is nothing on record to doubt the authenticity of his deposition in as far as he has come forward with true picture of [CASE NUMBER] [ENTITY] Vs. [ENTITY] 6 of 20 the said occurrence/accident.
Further, the copies of the criminal case are also placed on record including the copies of FIR No.160/07, U/[SECTION] [ACT] at P.S. Shalimar Bagh, Delhi and charge sheet u/[SECTION] [ACT] which are not challenged or disputed by any of the respondents which clearly show that R1 was prosecuted in the said case regarding causing the said accident wherein the petitioner/injured also sustained various injuries. Admittedly, R1 has not lodged any complaint to any higher authority regarding his alleged false implication in the said criminal case and has not alleged or submitted that he had any enmity with the deceased or his family members or with the investigating officer and so, the possibility of his false implication in criminal case is ruled out.
10. Accordingly, in the given facts & circumstances, on the basis of material produced and proved before the court and in view of aforesaid discussion, in considered opinion of the court, the said accident was caused by R1 while driving the offending vehicle in a rash and/or negligent manner at the relevant date, time and place wherein the petitioner sustained injuries and hence, Issue No.1 is decided in favour of the petitioner and against the respondents.
[CASE NUMBER] [ENTITY] Vs. [ENTITY] 7 of 20
11. Issue No.2 Qua Quantum of Compensation "Whether petitioner is entitled to compensation, if so, to what amount and from whom?"
12. Loss of earning capacity As per record, Dr. [ENTITY] (HOD, Sr. Ortho Specialist, Aruna Asaf Ali Hospital, Delhi) is examined by the petitioner as PW2, who has proved the permanent disability certificate No.7513, dt. 20.02.2008 pertaining to the petitioner as Ex.PW2/A . He has further deposed that as per Ex.PW2/A, the petitioner had suffered from 60% permanent disability in relation to his left upper limb.
During his crossexamination on behalf of R1 & R2, he has stated that he cannot tell the percentage of disability towards full body of the petitioner.
After going through the entire testimony of PW2, as such there is nothing on record to disbelieve the version of Dr. [ENTITY]/PW2 or to doubt the extent of permanent disability as suffered by the petitioner with respect to his left upper limb as nothing is shown during cross examination of PW2 if he has deposed falsely or the petitioner did not suffer from the said permanent disability.
13. It would be appropriate to discuss here that in the case of [CASE NUMBER] [ENTITY] Vs. [ENTITY] 8 of 20 [ENTITY] v. Ajay Kumar & Anr. 2011(1) SCC 343, Hon'ble Supreme Court has discussed about the aspect of permanent disability and functional disability resulting in the loss of earning capacity. It has held that the compensation on account of loss of earning capacity has to be granted keeping in view the nature of work performed by the victim of motor accident and the effect of the permanent disability on his earning potential.
14. Same issue arose before Hon'ble High Court of Delhi in the case of [PRECEDENT], in which the claimant had suffered from permanent disability in respect of right upper limb and right lower limb to extent of 28%. The claimant was employed as a Beldar and no evidence was produced to show that there was loss of any salary till date of his retirement. It was contended by Learned counsel for insurance that in view of case of [ENTITY] (supra), in order to get compensation for a permanent disability, it has to be established that the functional disability resulted into loss of earning capacity. It was argued that the claimant was an employee of Municipal Corporation of Delhi and there was no loss of income from date of accident till the date of his retirement and therefore, he was not entitled to [CASE NUMBER] [ENTITY] Vs. [ENTITY] 9 of 20 any compensation under the head 'loss of earning capacity'.
The Hon'ble High Court of Delhi has laid down that: "Government employees whether retiring from a high post or a low post, carry out their profession even after the date of superannuation provided he/she possesses good health. The permanent disability in the left upper and lower limb to the extent of 28% would definitely affect his earning capacity. In the absence of any expert evidence led by the first respondent, I would reduce the loss of earning capacity to 14 % in respect of whole body and award a compensation of Rs. 8,479/ x 12 x 9 x 14/100= 1,28,200/. The compensation is reduced from Rs. 3,13,384/ to Rs. 1,28,200/."
15. Accordingly, in case in hand, in view of the aforesaid judgments and observations of superior courts as discussed above, the over all loss of future earning capacity of the petitioner namely Sh. [ENTITY] is assessed as 30% in relation to his whole body as it is fairly admitted by petitioner that he had suffered from permanent disability with respect to his left upper limb only and he did not suffer from any disability or permanent injury on any other part of his body. Admittedly, he was properly functional and capable to work except from his upper left limb.
16. The Petitioner has also placed on record the copy of his [CASE NUMBER] [ENTITY] Vs. [ENTITY] 10 of 20 ration card wherein his year of birth is shown as 1968 which is not dispute and so, the petitioner was about 39 years old as on the date of said accident. Hence, in view of above, as per observations made in case of [PRECEDENT], the multiplier of '15' is applicable in the present case.
17. Loss of income The petitioner, so as to prove his income has examined Sh. [ENTITY] (Manager, Bawa Detectives) as PW3 who has testified that the petitioner was working with M/s DD Motors, Wazirpur Industrial Area, Delhi as a security guard from which he used to earn Rs. 3,500/ per month which payment was made through vouchers.
During his cross examination on behalf of R1 and R2, he has clearly stated that he has no document to show the said earnings of petitioner and/or appointment etc of the petitioner.
After going through the testimony of PW3, it is amply clear that PW3 is not able to prove either the employment of petitioner with DD Motors and could not prove the income of the petitioner. Further, though he has stated that petitioner was earning Rs. 3,500/ but did not produce any document in this regard and the same is only a verbal contention.
[CASE NUMBER] [ENTITY] Vs. [ENTITY] 11 of 20 It needs to be discussed that the petitioner, in his affidavit has interalia stated that he was earning Rs. 7,000/ per month prior to the said accident, however, during his cross examination on behalf of R1 and R2, he has stated that besides working as security guard, he also used to run a khokha for selling biris and cigarettes, which khokha he took on rent but it was demolished by MCD and thereafter, he could not get another khokha. He could not show any document regarding his earning Rs. 7,000/ per month. Further, the petitioner could not show any document regarding his educational qualification as well. Therefore, in the given facts and circumstances, the minimum wage of an unskilled worker which was Rs. 3,470/ as on the date of said accident is taken up as income of the petitioner at the relevant time.
18. Further, as per treatment record of the petitioner which are the prescriptions slips, disability certificate, OPD card and medical bills which show that treatment of the petitioner/injured had continued upto the month of July, 2007 but he has not filed any other document of his further treatment on record. Therefore, in the given facts and circumstances and on the basis of material as placed on record, the petitioner would be entitled for loss of income for 5 months and accordingly, he is granted [CASE NUMBER] [ENTITY] Vs. [ENTITY] 12 of 20 an amount of Rs.17,350/ (Rs.3,470 x 5) towards loss of his income for 5 months.
19. It needs to be discussed that in view of law laid down by Hon'ble High Court in the case of [PRECEDENT] pronounced by Hon'ble High Court on 12.01.2015 in [CASE NUMBER] wherein Hon'ble High Court has discussed the divergent judgments given by Hon'ble Supreme Court in the case of [PRECEDENT] [PRECEDENT] [PRECEDENT] held that since the deceased was not the salaried person, his LRs are not entitled to future prospects. In para16 of the judgment Hon'ble High Court held: "16 Further the divergence of opinion in [PRECEDENT] [PRECEDENT] noticed by the Supreme Court in another latest judgment in National Insurance Company Ltd. Vs. [ENTITY] & Ors : CC No. 8058/2014 decided on 02.07.2014 and in concluding paragraph while making reference to the larger bench, the Supreme Court held has under [CASE NUMBER] [ENTITY] Vs. [ENTITY] 13 of 20 "be it noted though the decision in [ENTITY]) was rendered at the earlier point of time, as is clear, the same has not been noticed in Rajesh(Supra) and that is why the divergent opinion has been expressed. We are of the considered opinion that as regard the manner of addition of income of future prospects, there should be an authoritative pronouncement. Therefore, we think it appropriate to refer the matter to larger bench."
In para 17 & 18 Hon'ble High Court further held "17 now, the question is which of the judgment ought to be followed awaiting answer to the reference to the Supreme Court in [ENTITY] & Ors (Supra)".
"18 In [PRECEDENT] Para 12, the Supreme Court observed as under: "12 having carefully considered the submissions made by Ld Senior Counsel for parties and having examined the law laid down by the constitution benches in the aforesaid decisions, we would like sum up the legal position in following terms"
1. The law laid down in this court in a decision delivered by bench of larger strength is binding on any subsequent bench of [CASE NUMBER] [ENTITY] Vs. [ENTITY] 14 of 20 lesser or coequal strength.
2.[Ed.: Para 12(2) corrected vide Official Corrigendum No. F.3/Ed.B.J./21/2005 dated 332005.] A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
3. Ed.: Para 12(3) corrected vide Official Corrigendum No. F.3/Ed.B.J./7/2005 dated 1712005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and [CASE NUMBER] [ENTITY] Vs. [ENTITY] 15 of 20
(ii) in spite of the rules laid down herein above, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in [PRECEDENT] and [PRECEDENT]". In Para 20, Hon'ble High Court further observed: 20 "in [PRECEDENT] holding that the decision of the coordinate bench is binding on the subsequent bench of equal strength held that the bench of coordinate strength can only make reference to the larger bench."
It is was further held Para 21 & 22:
21 "This court in [PRECEDENT] decided on 06.09.2013, went into this question and held that in view of the report in [ENTITY]), the three judge bench decision in Reshma [CASE NUMBER] [ENTITY] Vs. [ENTITY] 16 of 20 Kumari & Ors (Supra) shall be taken as a binding precedent". "22 Consequently it cannot be said that every person including the student would be entitled to addition of 50% towards future prospects".
20. In view of above judgments, in the case in hand, in view of aforesaid discussion, the petitioner is not entitled for future prospects. Thus, the amount of Rs.1,87,380,/ (3470x12x15x30%) is granted towards loss of earning capacity of the petitioner to him.
21. Attendant Charges In the case in hand, though the petitioner has not examined any witness who attended him, however, it cannot be lost sight off that his family members must have attended him during his treatment for about 5 months and therefore, in the case in hand, a lump amount of Rs. 30,000/ is also granted towards attendant charges to the petitioner.
22. Pain, Suffering, Conveyance and Special diet.
For this purpose, the nature of injuries, the parts of the body where the injuries were sustained, surgery if any, underwent by the victim, his confinement in the hospital and the duration of the treatment are to be considered. As per record and as already discussed, the petitioner had suffered from 60% permanent [CASE NUMBER] [ENTITY] Vs. [ENTITY] 17 of 20 disability with respect to his upper left limb and he remained under treatment for about 5 months and during this period, he was unable to look after himself. As such, the testimony of the petitioner to this effect has not been challenged in his cross examination and nothing is shown on record to the contrary and there is no reason to disbelieve his version.
In view of the nature of injuries sustained by the petitioner in the present case, an amount of Rs. 40,000/ is granted to him towards his pain and sufferings and further, an amount of Rs. 30,000/ is also granted to the petitioner towards his conveyance and special diet. Further, keeping in view the permanent disability suffered by the petitioner, it is clear that his left upper limb is permanently effected and hence, an amount of Rs. 40,000/ towards loss of enjoyment of amenities of life is also granted to him. It also needs to be discussed that the petitioner has also relied upon various medical bills which are on record and as per which, the petitioner had spent an amount of Rs. 5,743/ towards medical expenses which are not disputed and accordingly, the said amount be also given to the petitioner towards medical expenses as per rules.
23. The over all compensation is tabulated as below: [CASE NUMBER] [ENTITY] Vs. [ENTITY] 18 of 20 Sl. No Compensation under various heads Amount awarded
1. Loss of income Rs. 17,350/ 2 Loss of future earning capacity Rs. 1,87,380/
3. Pain and suffering Rs. 40,000/
4. Loss of enjoyment of amenities of life Rs. 40,000/
5. Conveyance and special diet Rs. 30,000/
6. Medical expenses Rs. 5,743/
7. Attendant charges Rs. 30,000/ Total Rs. 3,50,443/ Accordingly the over all compensation to be paid to the petitioner thus comes to Rs.3,25,443/ (after deduction of interim award of Rs. 25,000/)
24. Issue no. 3Relief It needs to be discussed that admittedly the offending vehicle was without insurance i.e. not insured at the relevant time. It is the duty of owner to get his vehicle insured but as per record, Sh. [ENTITY]/Owner/R2 did not get the offending vehicle insured. Accordingly, in the case in hand, Sh. [ENTITY]/R2 is directed to deposit with this Tribunal within 30 days from today the awarded amount of Rs.3,25,443/ alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposit of award amount to be given by R2 to the petitioner and his counsel as per rules.
[CASE NUMBER] [ENTITY] Vs. [ENTITY] 19 of 20
25. I have heard the petitioner and his counsel regarding his financial needs. In view of the submissions made and further in view of observations in the case of [PRECEDENT], following arrangements is hereby ordered: An amount of Rs.2,00,000/ be released to the petitioner in cash as per rules and remaining amount with interest be kept in [ENTITY] in his name for a period of 3 years in any nationalised bank as per rules.
26. It is further directed that interest on the aforesaid fixed deposits shall be paid quarterly by automatic credit of interest in the Saving Accounts of the petitioner as per rules. Further, the petitioner shall not have any facility of loan or advance on the [ENTITY], however, in case of emergent needs, he may approach this Tribunal for premature encashment of [ENTITY]'s as per rules.
27. The Petition is accordingly disposed of. File be consigned to record room as per rules after compliance of necessary legal formalities as per rules. Copy of this order be given to parties as per rules. ([ENTITY]) Announced in the open Court Judge MACT/NW District today i.e.31.03. 2016 Rohini Courts, Delhi [CASE NUMBER] [ENTITY] Vs. [ENTITY] 20 of 20