Delhi District Court
Sh. Manoj @ Manoj Lamba vs Sh. Banke Lal S/O Sh. Sohan Lal on 29 January, 2016
IN THE COURT OF SH. RAJ PAUL SINGH TEJI:
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
(WEST-01):DELHI
Case No. 132/14
Sh. Manoj @ Manoj Lamba
s/o Sh. Sharwan Kumar
R/o A-535, Block-A, J.J. Colony,
Madipur, Delhi -110063
.......Petitioner in the First Petition
Case No. 287/14
Sh. Kuldeep Singh @ Vicky
s/o Sh. Manjeet Singh
R/o A-511-C, Block A, J. J Colony,
Madipur, Delhi -110063
.......Petitioner in the Second Petition
VERSUS
1. Sh. Banke Lal s/o Sh. Sohan Lal
R/o C-136, Peeragarhi Camp, Delhi. (Driver)
2. Dixit Roadlines, Shop No.10A, I- Block,
Super Bazar, Paschim Vihar, New Delhi. (owner)
3. Future Generali India Insurance Co. Ltd.
110-115, Krishna Aplra Business Square,
Netaji Subhash Place, Pitam Pura, Delhi -110034( insurer)
.............Respondents in both petitions
Date of institution of both petition : 04/02/2014 Date of reserving judgment/order : 08/01/2016 Date of pronouncement : 29/01/2016 Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 1/18 CONSOLIDATED JUDGMENT-CUM- AWARD:
1. By this judgment- cum- award, I shall dispose of both these petitions bearing suit no. 132/14 AND 287/14, (hereinafter called the first petition and the second petition respectively ), filed by the petitioners u/s 166 and 140 Motor Vehicle Act 1988 amended upto date ( hereinafter referred as 'Act'). Both the petitions have been filed by the petitioner themselves. Since both these petitions arise out of the same motor vehicle accident, they can be conveniently disposed of together.
2. Both these petitions were consolidated vide order dated 01/04/2014 and the first petition bearing No. 132/14 was ordered to be treated as lead case.
3. Brief facts of the present case of the petitioners are that on 09/08/2013, the petitioner in (the first petition) as a pillion rider and petitioner in (the second petition ) were travelling on motorcycle bearing registration No. DL: -6S-AD-7764 which was being driven by petitioner in (the second petition). It is further alleged that at about 11.30 p.m, when they reached at Metro Pillar No. 162, Main Rohtaqk Road, Punjabi Bagh, Delhi, a vehicle Mahindra Champion bearing its registration No. DL -1LQ-0022, which was being driven by its driver/ respondent No.1 in rash and negligent manner hit the aforesaid motor cycle of the petitioners. Resultantly, they both had sustained injuries. In total, both the petitioners have claimed Rs. 25 Lacs each as compensation.
4. Written statements have been filed by the respondent No.1 & 2 wherein they categorically denied the rash and negligent aspect and also denied the contents of the petition.
5. Written statement has been filed by the respondent No. 3/ insurance company wherein it was admitted that the offending vehicle was insured on the date and time of accident but categorically denied the contents of the same. The insurance company has taken the defence that driver of the offending vehicle was Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 2/18 holding driving license for the category scooter, car, Jeep only and he was not authorized to drive the offending vehicle as it comes within the category of the Light Goods Vehicle. Hence, the insurance company is not liable to pay the compensation.
6. On the pleadings of the parties, following consolidated issues were framed in both the petitions by this Tribunal on 01/04/2014 CONSOLIDATED ISSUES
1.Whether the petitioners Sh. Manoj @ Manoj Lamba and Kuldeep Singh@ Vicky suffered injuries in an accident that took place on 09/08/13 at about 11.30 p.m involving Mahindra Champion bearing registration No. DL -1LQ-0022 driven byh respondent No.1, owned by respondent No.2 and insured with respondent No.3? OPP
2.Whether the petitioner/ petitioner are entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. In order to establish its claim, the petitioner Sh Manoj @ Manoj Lamba in (the first petition) has examined himself as PW-1 ; the petitioner Sh. Kuldeep Singh @ Vicky in ( the second petition) has examined himself as PW-2; Sh.Sudhir from Guru Govind Singh Govt. Hospital as PW-3 who has proved the disability certificate of petitioner in (the first petition ); Sh. Parmeet Kaur as PW-4 from Sri Balaji Action Medical Institute who has proved the medical bills and Dr. Jyoti, the Eye Specialist who has proved the disability certificate of the petitioner in the first petition as PW-5.
8. The respondents No. 1/ driver of the offending vehicle has examined himself as R1W1 in its defence.
9. The respondent No.2/ owner of the offending vehicle has not examined any witness despite opportunities being granted to him.
10. The respondent No.3/ insurance company has examined its officer Ms. Khusbu Tyagi as R3W1 in its defence.
Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 3/18
11. I have thoroughly gone through the testimony of the witnesses and perused the record. I have given thoughtful consideration to the arguments addressed by learned counsel for petitioner/ petitioners as well as Ld. Counel for for the insurance company.
My findings on various issues are as under :-
ISSUE NO.1 IN BOTH PETITIONS
12. Since the present petition is under Section 166 of M V Act, it was the bounden duty of the petitioners to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
13. The police has filed the Detailed Accident Report (DAR) on record pertaining to case FIR No. 331/13; P. S. Punjabi Bag u/s 336/338 IPC r/w Section 122/177 M. V. Act.
14. On the aspect of negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent.
It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard.
Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 4/18 petition maintainable under section 166 and 140 of the Act.
It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
Further the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 had held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
In the light of the law discussed above and after going through all the documents i.e. FIR; final report u/s 173 Cr.PC; site plan and MLC of both the petitioners; photographs of the accident in question; mechanical insepction reports of both involved vehicles; seizure memo of verified DL; RC; fitness; cover note of insurance policy; seizure memo of both involoved vehicles; petitioner in the second petition; post mortem of the deceased; copy of the driving license of driver of the offending vehicle; copy of permit, fitness certificate and insurance Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 5/18 policy of the offending vehicle filed by the police in DAR as well as documents filed by the petitioners as a whole it is clear that respondent no. 1 was driving the vehicle in rash and negligent manner.
The issue No:1,therefore, stands decided in favour of the petitioner/petitioners and against the respondents. COMPENSATION IN FIRST PETITON (Suit No. 132/14)FOR INJURED SH MANOJ
15. Nature of injuries and reimbursement of medical bills The entire medical record of the petitioner more particularly, the discharge summary issued by Sri Balaji Action Medical Institute, Ex. PW1/3 (colly.) suggests that petitioner has sustained injury i.e. TBI ( Poly Trauma with contusion with fracture F. Orbital Nasal Bone with multipler fractgure fact with fracture B. Bones right arm & fracture radius left arm) with CSF Rhinorrhoea with meningitis.
In order to prove the bills, the petitioner in the first petitoin has examined Sh. Parmeet Kaur, Senior Medical Record Executive who has proved the medical bills vide Ex. PW1/3 & PW1/4. The petitioner has filed the bill summary to the tune of Rs. 5,66,515/-. The respondents have not filed the bills on record. Hence, the petitioner is entitled the compensation of Rs. 5,66,515/- towards medical bills.
16 . Pain & sufferings & loss of amenities of life It is settled law that a particular amount can not be fixed on pain and sufferings for all cases as is varies from case to case. Judicial notice can be taken on the fact that since the petitioner had got injuries/fracture as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy dose of anti-biotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision: 2.2.2007, Delhi High Court by Hon'ble Mr. Justice Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 6/18 Pradeep Nandrajog wherein it was held that:-
"On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
© Duration of the treatment."
Keeping in view the said guidelines; in view the aforesaid observation made by this court and nature of injuries, I hereby allow Rs. 1,00,000/- towards pain and sufferings.
17. Compensation for conveyance & special diet Though there is no cogent evidence on record for the money spent by the petitioner for conveyance, yet considering the nature of injuries suffered by the petitioner, his treatment papers on record and the material placed, I am of the opinion that petitioner must have spent some sum under this head. Petitioner is accordingly entitled for sum of Rs. 30,000/- for expenses incurred on special diet.
18. Loss of income during treatment period The petitioner has the copy of his driving license vide Ex.PW1/1 which suggests his date of birth as 04/09/1987. The police has also filed the copy of Senior Secondary School Examination Certificate of the petitioner in DAR. The date of accident is 09/08/2013. Accordingly, the petitioner was about 26 years on the date of accident.
19. The petitioner is stated to be Property Dealer and is stated to be earning Rs. 15,000/- per month. The petitioner has neither proved nor filed his income proof on record. The petitioner has also not proved his income tax return on recorfd. In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 09/08/2013 on which the minimum wages for a matriculate person for the relevant period were Rs. 9386/-. Considering the facts and Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 7/18 circumstances as well as nature of injuries as elicited above, the court is of the opinion that petitioner could not have worked for about 6 months. Accordingly, I award Rs. 56,316/-( Rs. 9386/-x 6) towards loss of income during treatment period.
20. Compensation on account of disability In order to prove the permanent disability certificate, the petitioner has examined PW-5 Dr. Jyoti, Eye Specialist, Guru Gobind Singh Govt. Hospital. She has has proved the record of permanent disability certificate issued to petitioner Sh. Manoj vide Ex. PW3/1 which suggests that it is a case of Right eye normal, Left eye traumatic optic atrophy. He is visuyally disabled and has 30% permanent in relation to his left eye.
21. It is now the settled law that it is the percentage of functional disability arising out of physical disability which matters while assessing the compensation arising out of disability. On this aspect, I gain support from judgment of Hon'ble Supreme Court in "Raj Kumar Vs. Ajay Kumar & Ors, reported as 2011 ACJ" I in which it was held as under:-
"Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss,that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent ( percentage ) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent ( percentage) of loss of earning capacity to the extent percentage of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 8/18 quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment , the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation(See for example, the decisions of this court in Arvind Kumar Mishra V New India Assurance Co. Ltd.-2010(10) SCALE 298 and Yadava Kumar V. DM., National Insurance Co. Ltd. -2010(8) SCLE 567)"
22. The petitioner mentioned in his petition that he was a Property Dealer at the time at the time of accident. It appears me from overall circumstances and visuyally disabled to the extent of 30% in relation to his left eye shall affect 10% towards his working capacity.
23. Ld. Counsel for petitioner requested for balancing the income of the victim on the basis of inflation trends and requested that 50% increase be made in the income of the victim on the basis of judgment of Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563 , but per contra Ld. counsel for the insurer objected to same.
I have heard the submissions of the Ld. Counsel for petitioner and have perused the record.
Initially, the Hon'ble Supreme Court of India in 'Santosh Devi Vs National Insurance Company Ltd. & Ors' in Civil Appeal No. 3723 of 2012 decided on 23/04/2012 case had held as under:-
"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death a departure from this rule should be made only in rare and exceptional cases involving special circumstance. In our view, it will be nave to say that the wages or total emoluments/income of a person who is self- employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 9/18 fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of this fact that with a view to meet the challenges posed by high cost of living, the persons falling on the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserved to be applied for calculating the amount of compensation".
However,in a case Rajesh & Ors (supra) decided by Three Hon'ble Judges bench of Hon'ble Supreme Court of India has laid down the age wise criteria for giving appreciation of future income. The relevant portion of the aforesaid judgment is reproduced as under:
11. Since, the court in Santosh Devi's case (Supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (Supra) and to make it applicable also to Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 10/18 self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 % always; it will also have a reference to the age. In other words, in the case of self-
employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50 % to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30 % in case the deceased was in age group of 40 to 50 years.
12. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on the fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15 % in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
24. Since the injured / petitioner was about 26 years of age as on the date of accident, 50% of income towards the future prospects is required to be added in terms of aforesaid judgment in Rajesh's case(supra). Hence after averaging out, the monthly income of injured comes out to be Rs. 14,079/- ( Rs. 9386/- + 50%)
25. Accordingly the petitioner was about 26 years of age as on the date of accident for which the relevant multiplier 17 ( for the age group of 26 to 30 years) as mentioned in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08. Therefore, the total loss of earning capacity comes out to be (Rs. 14,079/-X 12 X 17 x 10 /100) = Rs. 2,87,211. 6 p. rounded off to Rs. 2,87,212/-.
Considering the nature of permanent disability and facts and circumstances of the present case as elicited above, I also grant Rs. 50,000/- compensation towards loss of amenities of life and enjoyment of life.
26. Compensation for attendance charges Though there is no cogent evidence on record for the money spent by the petitioner on attendant charges, yet considering the nature of injuries suffered by the petitioner and his condition later to the occurrence, elicited Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 11/18 above, I am of the considered opinion that petitioner must have spent some sum under this head. Petitioner is accordingly entitled for sum of Rs. 20,000/- for expenses incurred on attendant charges.
The total compensation is assessed as under:-
Treatment expenses: Rs. 5,66,515/-
Pain and sufferings: Rs. 1,00,000/-
Conveyance charges
Special diet charges Rs. 30,000/-
Loss of income during
treatment period Rs. 56,316/-
Compensation on account of
disability: Rs. 2,87,212/-
Compensation on account of
loss of amenities of life and
enjoyment of life Rs. 50,000/-
Compensation on account
of attendant charges Rs. 20,000/-
Total: Rs 11,10,043/-
27. RELIEF:
I award Rs. 11,10,043/- (Rupees Eleven Lacs Ten Thousand Forty Three Only)as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e. 04/02/2014 (DAR) till the notice under Order XXI Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several.
28. As per the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, fifty percent (50%) of the amount awarded to petitioner shall be kept in FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. Petitioner can withdraw the interest quarterly from his FDRs.
Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 12/18 COMPENSATION IN SECOND PETITON (Suit No. 287/14) FOR THE INJURED KULDEEP SINGH
29. Nature of injuries and reimbursement of medical bills The entire medical documents more particularly the discharge summary issued by Sri Balaji Action Medical Institute, Ex. PW2/3(colly.), the petitioner had sustained RTA with head injury with fracture right wrist with parifacial injury. The petitioner has filed the bill summary of Rs. 2,38,000/- on record. The respondents have not disputed the said bills. Accordingly, I hereby grant total sum of Rs. 2,38,000/- to the claimant for medical expenses. 30 . Pain & sufferings Considering the abovesaid said guidelines; in view the aforesaid observation made by this court and nature of injuries as elicited above, I hereby grant compensation of Rs. 50,000/- towards pain and sufferings and loss of amenities of life.
31. Compensation for conveyance & special diet Though there is no cogent evidence on record for the money spent by the petitioner for conveyance, yet considering the nature of injuries suffered by the petitioner, his treatment papers on record and the material placed, I am of the opinion that petitioner must have spent some sum under this head. Petitioner is accordingly entitled for sum of Rs. 15,000/- for expenses incurred on conveyance and special diet
32. Compensation towards Loss of income during treatment period The petitioner is stated to be Field Executive and is stated to be earning Rs. 15,000/- per month. The petitioner has neither proved nor filed his income proof on record. The petitioner has proved the School Leaving Certificate of petitioner which suggests that he was studying in 8 th standard. He has also proved his identity Card issued by National Institute of Open Schooling Student Ex. PW2/5 which suggests that he was pursuing Secondary /10 th class. In these circumstances, the income of the deceased can very well be assessed on the Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 13/18 basis of the chart available in the Minimum Wages Act. The date of accident was 09/08/2013 on which the minimum wages for a non-matriculate person for the relevant period were Rs. 8528/- Considering the facts and circumstances as well as nature of injuries as elicited above, the court is of the opinion that petitioner could not have worked for about 3 months. Accordingly, I award Rs. 25,584/- ( Rs. 8528/- x 3) towards loss of income during treatment period.
The total compensation is assessed as under:-
Treatment expenses: Rs. 2,38,000/-
Pain and sufferings and
loss of amenities of life Rs. 50,000/-
Conveyance charges
Special diet charges Rs. 15,000/-
Loss of income during
treatment period Rs. 25,584/-
Total: Rs. 3,28,584/-
33. RELIEF:
I award Rs. 3,28,584/- (Rupees Three Lacs Twenty Eight Thousand Five Hundred Eighty Four Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e. 04/02/2014 (DAR) till the notice under Order XXI Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several.
APPORTIONMENT OF LIABILITY
34. The insurance company has taken the defence that driver of the offending vehicle was holding driving license for the category scooter, car, Jeep only and he was not authorized to drive the offending vehicle as it comes within the category of the Light Goods Vehicle. Hence, the insurance company is not liable to pay the compensation.
35. In order to prove its defence, the insurance company has examined its officer Ms. Khushbu Tyagi as R3W1. He has proved the terms and conditions Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 14/18 of the policy Ex. R3W1/1; copy of notice issued to owner by its counsel, Ex. R3W1/2; postal receipt Ex. R3W1/3; AD Card Ex. R3W1/4. He has also proved the DL Verification Report given by the Licensing Authority Taran Tarn(Punjab) vide Ex. R3W1/5.
36. On the other hand, respondent No.1/ driver of the offending vehicle has exmained himself as R1W1. He has proved his Driving License vide Ex. R1W1/1. He has admitted that the said driving license Ex. R1W1/1 was given by him to the police during investigation and the same has been filed by the police in DAR.
37. I have taken the note of the submissions of the Ld. Counsel for insurer for recovery rights for the breach of the terms and condition of the policy. I have also perused the record.
38. During the course of arguments, Ld. Counsel for the insurance company vehemently argued that driver of the offending vehicle was holding driving license for the category scooter, car, Jeep only and he was not authorized to drive the offending vehicle as it comes within the category of the Light Goods Vehicle. Hence, the insurance company is not liable to pay the compensation. It was further submitted by Insurance Company that because of the reason that the owner of the offending vehicle has committed breach of the terms and conditions of the policy (as the driver of the offending vehicle was driving the vehicle for which he was not authorized to drive), the insurance company be absolved of the liability. It is further argued that The DL report filed in DAR is admissible in evidence without formal proof in view of section 7 of Delhi Motor Tribunal Rules,2008.
39. The Hon'ble Supreme Court in its detailed judgment in Swaran Singh Vs National Insurance Company, 2004 ACJ 1(SC) had held that in para no. 12 which is reproduced as under:-
" A person possessing a driving license for 'motor cycle without gear' (Sic may be driving a vehicle) for which he has no license. Cases may also arise where holder of driving license for 'light motor Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 15/18 vehicle' is found to be driving a 'maxi cab, motor cab or omnibus for which he has not license. In each case, on evidence led before the Claims Tribunal, a decision has to be taken whether the fact of the driver possessing license for one type of vehicle, but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of license, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving license."
On careful reading of the aforesaid judgment, it is clear that in case the accident is caused by some unforeseen or intervening causes, the carrying or the non-carrying of the driving license hardly matters. However, the Hon'ble Supreme Court of India again in National Insurance Company Limited Vs Kusum Rai and others, 2006 ACJ 1336 while discussing aforesaid judgment in Swaran Singh's case, 2004 1(SC) (supra) had held in para 9 which is reproduced as under:-
"It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said, thus, was required to hold an appropriate license therefor. Ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed herein before, was holder of a license to drive a light motor vehicle. He did not possess any license to drive a commercial vehicle. Evidently, therefore there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defence".
In view of the aforesaid judgment of the Hon'ble Supreme Court of India in Kusum Rai's case (Supra) in which the earlier decision of Apex Court in Swaran Singh case (Supra) was also discussed, itis now clear that in case driver of the offending vehicle is driving a Light Goods Vehicle while he was holding a driving license for Scooter; Car and Jeep Only there is clearly a breach of the terms and conditions of the policy and in these cirucmstances, the insurance company is entitled to recovery rights from the driver and owner Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 16/18 but only after the disbursement of claim to the claimants in terms of the judgment of the Hon'ble Supreme Court in Swaran Singh's case, 2004 ACJ 1 (SC) (Supra) as there are breach of terms and conditions of the policy .
40. The respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, respondent No.3 is directed to deposit the award amount within a period of 30 days under the intimation to this court. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
41. The Hon'ble High Court of Delhi in its latest judgment in MACA 682/05 dated 13.1.2010 'Union of India Vs. Nanisiri' have laid certain guidelines regarding depositing of award amount. In terms of the order of the Hon'ble High Court of Delhi the insurance company shall deposit the award amount in the State Bank of India, Tis Hazari Branch in the name of the petitioner/ petitioners in terms of the award and shall file the compliance report . It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Branch for opening the account.
42. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioner. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
43. The parties are at liberty to contact in State Bank of India through its nodal officer Mr. Chandra Mohan Ojha, Relationship Manager, Tis Hazari Branch,Delhi (Mb: 9412341376 and Tel. No. 011-23987332) for their Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 17/18 convenience.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 29/03/2016.
Announced in the open court
On 29th of Janunary, 2016 ( RAJ PAUL SINGH TEJI )
Judge, MACT (WEST-01)
Delhi 29/01/2016
Consolidated cases bearing
Suit No. 132/14 & 287/14 Page No. 18/18
Suit No. 132/14 & 287/14
08/01/2016
Present: None
Orders not ready..
Put up for orders on 29/01/2016
(RAJ PAUL SINGH TEJI)
(PO: MACT (WEST-01):
DELHI 08/01/2016
29/01/2016
Present: None
Consolidated Judgment in Suits No. 132/14 & 287/14 are announced separately.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 29/03/2016.
(RAJ PAUL SINGH TEJI) (PO: MACT (WEST-01):
DELHI(29/01/2016) Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 19/18 IN THE COURT OF SH. RAJ PAUL SINGH TEJI:
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
(WEST-01):DELHI Case No. 132/14 Master Vardan Verma s/o Sh. Sanjeev Verma R/o A-105, Second Floor, Block -A, Sharda Puri, Ramesh Nagar, Delhi (petitioner / injured being minor, petition filed under natural guardian i.e. Sh. Sanjeev Verma father of the petitioner / injured) .......Petitioner in the First Petition Case No. 434/12 Master Yashwardhan Parakh s/o Sh. Narindra Parakh R/o FA-134, Second Floor, Mansarovar Garden, New Delhi (Petitioner / injured being minor petition filed under natural guardian i.e. Sh. Narindra Parakh, father of the petitioner/ injured) .......Petitioner in the Second Petition VERSUS
1. Sh. Amit Bhalla s/o Sh. S. K. Bhalla R/o A-58, Om Vihar, Uttam Nagar, Delhi -110059(driver)
2. Sh. Sumit Bhalla s/o Sh. S. K Bhalla R/o A-58, Om Vihar, Uttam Nagar, Delhi -110059 (owner)
3. The ICICI Lombard General Insurance Co. Ltd.
Zenith House, Keshavrao Khade Marg, Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 20/18 Mahalaxmi, Mumbai-400034 ( Insurer) .............Respondents in both petitions Date of institution of all petition : 31/03/2012 Date of institution of Second petition : 31/03/2012 Date of reserving judgment/order : 30/03/2015 Date of pronouncement : 15/04/2015 AWARD:
1. By this judgment- cum- award, I shall dispose of both these petitions bearing suit no. 206/12 and 434/12 (hereinafter called the first petition and the second petition respectively ) filed by the petitioners u/s 166 and 140 Motor Vehicle Act 1988 amended upto date ( hereinafter referred as Act). The first and second petitions have been filed by the natural guardian/ fathers for injuries sustained by the minor claimants/ injured in the vehicular accident. Since both these petitions arise out of the same motor vehicle accident, they can be conveniently disposed of together.
2. Both these petitions were consolidated vide order dated 02/07/2012 and the first petition bearing No. 206/12 was ordered to be treated as lead case.
3. Brief facts of the case of the petitioners is that on 06/01/2012 the injured in the first petition alongwith his friends, injured in second petition as pillion rider were returning back to their home after taking tuition on Scooty bearing No. DL 4SM-8264. When they reached at Tanki Wala Chowk, M. S. Garden, then an offending vehicle bearing No. DL -2C-AN-4647 which was being driven by its driver/ respondent No.1 in rash and negligent manner hit the scooty of the petitioners. Resultantly, both minor injured fell down and sustained injuries. In total, the petitioner in the first petition has claimed total sum of Rs. 15 lakhs and petitioner in the second petition has claimed Rs. 20 Lakhs for the injuries sustained by them in the vehicular accident.
Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 21/18
4. Both the cases were consolidated vide order dated 02/07/2012 and the main case bearing No. 206/12 was ordered to be the lead case.
5. The written statement was not filed by respondents No.1 and 2 wherein they categorically denied the rash and negligent aspect and also termed the contents of the petition to the false one.
6. The written statement was filed by respondent no.3, insurance company wherein it was admitted that the offending vehicle was insured on the date and time of accident but categorically denied the contents of the same. The insurer has taken the defence that driver of the scooty was minor and he was not having valid and effective driving license to driver the scooty.
7. On the pleadings of the parties, the following modified consolidated issues were framed for consideration in first petition and second petition by this Tribunal on 15/04/2015.
1.Whether the petitioners Sh. Vardan and Sh.
Yashwardhan suffered injuries an accident which took place on 06/01/2012 at about 02.10 p.m due to rash and negligent driving of respondent No.1 of vehicle No. DL- 2C-AN-4647 (Swift Dzire Car) owned by the respondent No.2 and insured with the respondent No.3? OPP
2. Whether the petitioner/petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief.
8. In order to establish its claim, the petitioner being the father of minor injured in first petition examined himself as PW-1; Sh. Ghan Shyam , Medical Record Clerk, Kalra hospital, Kirti Nagar who has proved the treatment record of the injured Master Yashvardhan Parekh, injured in second petition; PW-3 Sh. Sanchit Sr. Technician, BLK Super Specialist Hospital, Delhi who has proved the bill dated 11/02/2012 pertaining to injured Master Yashvardhan Parekh; the Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 22/18 petitioner Sh. Narindra Parekh,being the father of minor injured in the second petition examined himself as PW-4 ; Sh. Roop Chand, Assistant Medical Record Officer, MAX Super Specialty Hospital as PW-5 who has proved the bills pertaining to the injured in the first petition; Dr. Navneet Rustagi as PW-6 who has proved as to disability of injured Master Vardan Verma.
9. Ld. Counsel for petitioners have filed the judgments of Hon'ble Supreme Court of India in Master Mallikarjun Vs Divisional Manager, the National Insurance Company Limited & Anr. Civil Appeal No. 7139 of 2013 (Arising out of S.L.P. (Civil) No. 1676 of 2012) and also filed another judgment for contribution aspect in Sundhir Kumar Rana Vs. Surinder Singh & Ors Appeal (civil) 3321 of 2008 dated 06/05/2008.
10. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also gone through judgments placed on record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the insurance company.
My findings on various issues are as under :-
ISSUE NO.1 IN BOTH PETITIONS
11. Since the present petition is under Section 166 of M V Act, it was the bounden duty of the petitioners to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
12. The police have filed the Detailed Accident Report (DAR) on record i. e the copy of FIR etc of bearing No. 5/12, P.S. Kirti Nagar u/s 279/338 IPC.
13. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the competition of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 23/18 certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
14. Further recently the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Mr. Justice G. P. Mittal, held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 24/18 Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
15. In the light of the law discussed above and after going through all the documents i.e. FIR; final report u/s 173 Cr.PC; site plan and MLC of minor claimants; seizure memo of petitioner's vehicle and offending vehicle etc filed by the police in DAR as well as documents filed by the petitioners as a whole it is clear that respondent no. 1 was driving the vehicle in rash and negligent manner.
The issue No:1 ,therefore, stands decided in favour of the petitioner/petitioners and against the respondents.
COMPENSATION IN FIRST PETITON (Suit no. 206/12) NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
16. As per the medical documents of the petitioner more particularly the discharge summary issued by MAX Hospital, Ex. PW1/7 suggests that he had got fracture Hypertrophic non -union of shaft right tibia he has got fracture shaft right femure fat embolism syndrome ARDS. PW-5 has proved the medical treatment record of the petitioner and bills. The petitioner had filed the bills to the tune of Rs. 1,87,124/- and Rs 97,249/- vide bill summary Mark Z and Mark Z1 respectively. Accordingly, I hereby grant total sum of Rs. 2,84,373/- to the claimant for medical expenses.
COMPENSATION TOWARDS EXPENSES INCURRED ON EQUIPTMENTS Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 25/18
17. The petitioner has incurred Rs. 18,820/- towards purchasing of PTB Brace heal Cap(moulded) and pair boot right BK. Caliper lateral wedge fixed socket rais by 2.5 ". He has proved the said bill issued by Lachman Pershad Surgical Aids (Regd.). Accordingly, I hereby grant total sum of Rs. 18,820/- to the injured under this head. Considering the nature of injuries and three times admission in the hospitals, I also grant Rs. 40,000/- towards conveyance and special diet.
COMPENSATION TOWARDS LOSS OF MARRIAGE PROSPECTS
18. The petitioner has received 28% permanent physical disability in relation to his right lower limb, Ex. PW6/1 and it is a operated case of pilon fracture right leg with congenital shortening right lower limb and absent toe. Considering the nature of injuries and facts and circumstances, I hereby grant total sum of Rs. 1,00,000/- towards loss of marriage prospects.
COMPENSATION ON ACCOUNT OF DISABILITY& OTHER HEADS.
19. It is now settled law that it is the percentage of functional disability arising out of physical disability which matters while arising the compensation arising out of disability. On this aspect, I gain support from judgment titled as Arvind Kumar Mishra v. New India Assurance Company Limited, (2010) 10 SCC 254 wherein the Hon'ble Supreme Court dealt with the case of disability of an engineering student. The Supreme Court observed that while awarding compensation in personal injury cases, an attempt should be made to put the injured in the same position as he was as far as money is concerned. In para 9 of the report, the Supreme Court held as under:-
"9.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 he was insofar as money can. Perfect compensation is hardly possible but Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 26/18 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."
Further in Niazam's Institute of Medical Sciences v. Prasanth S. Dhananka & Ors; (2009) 6 SCC 1, the Supreme Court emphasized that cases of serious injuries in motor vehicle accident are worse than the death cases because the victim and his family suffers throughout life. Para 90 of the report is extracted hereunder:-
"90. At the same time we often find that a person injured in an accident leaves his family in greater distress vis-a-viz a family in greater distress vis-a-vis a family in a case of death. I n 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 ad 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 enourmous 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."
The Hon'ble Supreme Court of India in Raj Kumar v Ajay Kumar & Anr., reported in 2011(1) SCC 324 also held as under:
"11. What requires to be assessed by the Tribunal is the effect of th permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings(by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation ( see for example, the decisions of this Court in Arvind Kumar Mishra v New India Assurance Co. Ltd. 2010(10) SCC 254 and Yadava Kumar v D. M. National Insurance Co. Ltd. 2010(10) Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 27/18 SCC 341."
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry . On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of ' loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emolument, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."
20. In this case, the minor injured was examined by the Disability Examination Board and the members of the board assessed the disability of minor injured to be as 28% permanent physical disability in relation to his right lower limb.
21. PW-2 Dr. Naveen Rustagi being one of the member of the Board was examined by the petitioner wherein he proved the reassessed disability certificate, Ex. PW6/1.
22. The Hon'ble Supreme Court of India in the case of Mallikarjun Vs. Divisional Manager, National Insurance Co.Ltd. reported as 2013 ACJ 2445 has laid down principles of assessment in case of children suffering disability which is as follows:-
"Though it is difficult to have an accurate assessment of compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 28/18 approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to actual expenditure towards treatment, attendant etc. should be, if the disability is above 10 per cent and up to 30 per cent to the whole body, Rs.3,00,000; up to 60 per cent, Rs. 4,00,000; upto 90 per cent Rs. 5,00,000/- and above 90 per cent, it should be Rs. 6,00,000/-. For permanent disability up to 10 per cent, it should be Rs. 1,00,000/- unless there are exceptional circumstances to t ake a different yardstick" .
23. In the present case, injured has suffered 28 % permanent disability in relation to his right lower limb.
24. In view of judgment the Hon'ble Supreme Court of India in case titled Mallikarjun (supra), I award compensation as tabulated as herein under:-
Sr. Compensation under various Awarded by
No. heads this Court
1. Medical bills & medical equipments Rs. 3,03,193/-
(Rs. 2,84,373/- + Rs. 18,820/-)
2. Loss of marriage prospects Rs. 1,00,000/-
3. Special diet and conveyance Rs. 40,000/-
4. Compensation towards pain and Rs. 3,00,000/-
suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomfort , etc and loss of amenities in life on account of permanent disability
5. Discomfort, inconvenience and loss Rs. 50,000/-
of earnings to the parents during the period of hospitalization
6. Future medical expenses Rs. 25,000/-
Consolidated cases bearing
Suit No. 132/14 & 287/14 Page No. 29/18
Total ----- Rs. 8,18,193/-
RELIEF:
25. I award Rs. 8,18,193/- (Rupees Eight Lacs Eighteen Thousand One Hundred Ninety Three Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e. 31/03/2012 (DAR) till the notice under Order XXI Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several.
26. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, fifty percent(50%) of the amount awarded to petitioner shall be kept in 5 FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. Petitioner can withdraw the interest quarterly from the said FDRs.
COMPENSATON IN SECOND PETITION (Master Yashwardhan Parakh) NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
27. As per the medical record of the injured Master Yashwardhan, more particularly the discharge summary issued by Kalra Hospital SRCNC, he got fracture shaft right femur fat emboolism syndrome ARDS. The petitioner has filed the medical bills to the tune of Rs. 8,30,763/-. PW-3 has proved the treatment record and bills , Ex. PW3/1. The respondents have not disputed the bills. Therefore, I hereby award a sum of Rs. 8,30,763/- towards medical bills keeping in view the nature of injuries and medical bills placed on record. PAIN AND SUFFERINGS :
28. It is settled law that a particular amount can not be fixed on pain and Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 30/18 sufferings for all cases as is varies from case to case. Judicial notice can be taken on the fact that since the petitioner had got injuries/fracture as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy dose of anti-biotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision: 2.2.2007, Delhi High Court by Hon'ble Mr. Justice Pradeep Nandrajog wherein it was held that:-
"On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
© Duration of the treatment."
29. Keeping in view the aforesaid guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs. 50,000/- towards pain and sufferings and loss of amenities of life. Besides this, considering the nature injuries and treatment record of petitioner, I hereby award a sum of Rs. 20,000/- towards special diet and conveyance.
30. COMPENSATION FOR ATTENDANT CHARGES Though there is no cogent evidence on record for the money spent by the petitioner on attendant charges, yet considering the nature of injuries suffered by the petitioner and his condition later to the occurrence, elicited above, I am of the considered opinion that petitioner must have spent some sum under this head. Petitioner is accordingly entitled for sum of Rs. 20,000/- for expenses incurred on attendant charges.
LOSS OF STUDIES & PLAY AND ENJOYMENT OF LIFE
31. The injured was studying in 10th class at the time of accident. He has to Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 31/18 take private tuitions at home during 10 th examination. Hence, he has suffered loss of studies and also suffered enjoyment of play and childhood life. Considering the nature of injuries and medical documents placed on record, I hereby grant Rs. 50,000/- under this head.
The total compensation is assessed as under:-
Treatment expenses: Rs. 8,30,763/-
Pain and sufferings: Rs. 50,000/-
Special diet and
conveyance : Rs. 20,000/-
Attendant charges Rs. 20,000/-
Loss of studies and
loss of play and enjoyment
Life. Rs. 50,000/-
__________
Total: Rs. 9,70,763/-
RELIEF IN SECOND PETITION
32. I award Rs. 9,70,763/- ( Rupees Nine Lacs Seventy Thousand Seven Hundred Sixty Three Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e. 31/03/2012 (DAR) till the notice under Order XXI Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several. APPORTIONMENT OF LIABILITY
33. The insurer has taken the defence that driver of the scooty was minor and he was not having valid and effective driving license to driver the scooty. However, the insurance company have utterly failed to lead evidence Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 32/18 regarding the mode and manner of the accident and have utterly failed to prove the fact that the the minor contributed to the very cause of accident. Mere non- carrying of the driving license of the injured persons ipso facto does not lead to the conclusion that while the minor injured was driving vehicle, he might have contributed the very cause of accident. The Hon'ble Supreme Court of India in case titled as 'National Insurance Company Ltd Vs. Swaran Singh , reported in 2004 ACJ 1' has held that mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. Here the minor was third party and hence the insurance company simply cannot take the defence that minor contributory to the very cause of action. Moreover the violations are so fundamental as are found to have contributed the cause of the accident. This being a benevolent legislation and rules of the main purpose will apply. Further the driver of the offending vehicle / respondent No.1 has already been charge sheeted for the offence u/s 279/338IPC. The respondent No.1 has even not filed any complaint against police authority for his false implication in the criminal case before any authority. Hence the plea of insurer stands rejected.
34. The respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, the respondent No.3 is directed to deposit the award amount within a period of 30 days under intimation to this court. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
35. The Hon'ble High Court of Delhi in its latest judgment in Union of India and Another Vs. Nanisari and Others MACA 682/2005 decided on 13.1.2010 have given certain guidelines and directions to the Motor Accident Tribunals to the effect that henceforth the Tribunals shall direct the insurance companies to deposit the award amount in the bank within 30 days with further direction as to the disbursement of the same in terms of the award and case be Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 33/18 kept pending till the compliance is placed on record. It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its nodal officer Mr. Chanra Mohan Ojha, Relationship Manager, Tis Hazari Branch,Delhi (Mb: 9412341376 and Tel. No. 011-23987332).
36. In terms of the order of the Hon'ble High Court of Delhi the insurance company shall deposit the award amount in the State Bank of India, Tis Hazari Court Complex Branch, Delhi in the name of the petitioner/ petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
37. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Court Complex Branch, Delhi for opening the account.
38. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
39. The parties are at liberty to contact in State Bank of India through its nodal officer Mr. Chanra Mohan Ojha, Relationship Manager, Tis Hazari Branch,Delhi (Mb: 9412341376 and Tel. No. 011-23987332) for their convenience.
File be consigned to Record Room.
Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 34/18 A separate file be prepared for compliance report and put up the same on 15/07/2015.
Announced in the open court on 15th of April,2015 ( RAJ PAUL SINGH TEJI ) Judge, MACT (WEST-01) Delhi 15/04/2015 Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 35/18 Suit No. 206/12 ( Also in Suit No. 434/12 ) 15/04/2015 4.00 p.m Present: None Consolidated Judgment in Suits No. 206/12 and 434/12 are announced separately.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 15/07/2015, to be fixed by insurance company.
(RAJ PAUL SINGH TEJI) PO: MACT (WEST)DELHI Consolidated cases bearing Suit No. 132/14 & 287/14 Page No. 36/18