-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. 742/10/09) 1) Sh. [ENTITY] S/o. Phool Chand R/o House no. C-811, Mangolpuri, Delhi Petitioner Versus Shri [ENTITY] s/o. Sh. Manohar Singh R/o E-5/135, Sultan Puri, Delhi Respondent Date of institution 16.05.2009 Date of decision 12.04.2012 (Application u/s 166 and 140 of Motor Vehicles Act for grant of compensation) JUDGMENT:
1. Petitioner aged about 33 years filed the present claim petition claiming therein a compensation of Rs. 5 lakhs alongwith interest on the ground that on 05.10.2008 at about 11.35 p.m petitioner was going towards his house at Mangolpuri from Rohini alongwith his daughter and wife. Petitioner was driving his motorcycle bearing no. DL-7S-W-8291 at a slow speed on his correct side of the road. When he reached opposite MCD Workshop, E-Block, Mangolpuri, suddenly a motorcycle bearing no. DL-4S- BH-8699 which was being driven by its driver/R-1 at a very high speed, rashly, negligently, without blowing any horn in contravention of the traffic rules, came from behind and hit the motorcycle of petitioner from behind with a great force due to which petitioner, his wife and daughter fell down on the road and sustained serious/grievous injuries on his body and petitioner was brought to Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi. Thereafter he was again admitted in Maharaja Agrasen Hospital, Punjabi Bagh. A criminal case under [SECTION] [ACT] was registered against respondent no.1 vide FIR No. 504/08 in police station Mangolpuri.
2. Petitioner claimed sum of Rs. 5 lakhs alongwith interest as compensation from the respondents being driver under various pecuniary and non pecuniary heads.
3. Respondents no. 1 filed his written statement submitting therein that petitioner has concealed the material facts and file the present petition to extort money from him. Further he stated that petitioner was himself driving his motorcycle rashly and caused the accident himself by coming from wrong side of the driver. Apart from that he tried to avoid his liability on some routine technical grounds.
4. On the basis of pleadings of the parties, following issues were framed on 01.11.2010 by my Ld. Predecessor :
1. Whether petitioner Sh. [ENTITY] suffered injuries due to road accident on 05.10.2008 at 11:35 p.m., Opposite M.C.D. Workshop E-Block, Mangol Puri, Delhi within the jurisdiction of PS: Mangol Puri due to rash and negligent driving of Motorcycle No. DL-4S-BH-8699 being driven by respondent? OPP
2. Whether the petitioner is entitled to compensation, if so, to what an extent? OPP Relief
5. In order to prove his case, petitioner examined himself as PW1. In addition to that petitioner has filed certain documents in support of his case. Respondent examined himself as RW1. Except him no other witness has been examined by respondent in support of his 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 police has prosecuted the respondent no.1 for causing the accident due to rash and negligent driving of the offending motorcycle by filing the charge sheet. Petitioner Sh. [ENTITY] being eye witness of accident in his statement specifically 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 car. It is the case of the R-1 that he has been falsely implicated in this case. No complaint has been lodged against driver and owner of the offending vehicle before any higher authority regarding the fact that R-1 has been falsely implicated in this case at the instance of injured or IO. It is not the case of R-1 that injured or IO of the case nursed grudge or enmity with owner of the vehicle or they are known to each other. No evidence is led on behalf of R-1 and R-2 in support of contention of R-1 that accident did not take place due to rash and negligent driving of the vehicle driven by R-1. Hence adverse inference has to be drawn against them. Nothing has come in cross-examination by insurance company that accident did not take place due to rash and negligent driving of R-1. Testimony of petitioner 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. Hence this issue is decided in favour of petitioner and against the respondents.
Issue no.2:-
9. Petitioner was taken to the hospital after sustaining injuries on 11.12.2010 and injuries suffered were grievous in nature.
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, he can never be compensated in monetary terms.
In Arvind Kumar Mishra v. New India Assurance Co. Limited Manu/SC/0777/2010: (2010) 10 SCC 254, 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, nourising 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.
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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):
Loss of income
11. It is the claim of the petitioner that at the time of accident he was about 33 years of age and was doing agricultural work and running dairy and used to earn Rs. 32,000/- per month from his work and not able to continue his work for several days. Due to said accident the injured would not be in a position to work that he used to work. Moreover, he spent some money on his treatment. His job profile has also been hampered/affected badly due to this accident. He was constrained to live in a very tough life for these few months as he could not do anything. Even otherwise he was not having any mediclaim or like facilities for financial assistance in his treatment. Thus, I take the loss of income for two months. As such a sum of Rs. 64,000/- is granted to petitioner on account of loss of income (Rs. 32,000/- X 2).
Medical Expenses
12. The petitioner has stated that he received grievous injuries all over his body and and remained hospitalized from 06.10.2008 to 09.10.2008 and on 17.11.2009. Further in support of his plea he proved OPD and treatment card as Ex.PW1/1 (23 pages colly.) and medical bills marked as Ex.PW1/2 (25 pages colly.) for total amounting Rs. 39,513/- on record to point out that he had incurred such amount upon his treatment which was verified by insurance company and found to be correct. Apart from that he stated that due to grievous injuries sustained by him his physical fitness is not as good as prior to the accident. As such he is
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granted a sum of Rs. 39,513/- towards medical expenses to which there is no dispute from insurance company.
Special diet and conveyance charges
13. No proof of spending on 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. he must have visited hospital in some transport but in absence of any evidence in this regard and after considering his injuries, period of hospital admission and treatment etc., I am of the view that maximum petitioner can be paid lump sum Rs.5,000/- towards special diet and Rs. 5,000/- towards conveyance charges.
Non-pecuniary damages (General damages):
14. 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 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 man of 33 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Further he stated that his right hand got fractured. Therefore, ends of justice will be met by awarding his a sum of Rs. 30,000/- in lieu of pain, suffering, inconvenience, frustration, hardship and trauma caused due to injuries suffered in accident.
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15. In view of the above discussions, this issue is decided in favour of petitioner by holding that he is entitled to get the following total compensation from the respondent/insurance company only:
A) Pecuniary damages (Special damages):
a) Medical expenses Rs. 39,513/-
b) Special diet Rs. 5,000/-
c) Conveyance charges Rs. 5,000/-
d) Loss of income Rs. 64,000/- B) Non-pecuniary damages (General damages):
a) Pain, suffering, inconvenience Rs. 30,000/-
frustration, hardship and trauma Total Rs.1,43,513/-
Issue no.3 (Relief):-
16. Respondent [ENTITY] is liable to pay the whole compensation alone.
On the basis of findings given above, present petition is disposed off. Respondent is directed to pay sum of Rs. 1,43,513/- to the petitioner alongwith interest at the rate of 7.5 % p.a. from the date of institution of the petition i.e. 16.05.2009 till this amount is fully paid.
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 12.04.2012 JUDGE, MACT (OUTER-II) DELHI