Delhi District Court
Mact No.276/11 Raja Ram Prasad vs . Sultan & Others on 8 October, 2013
1
MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS
IN THE COURT OF SH. B. S. CHUMBAK, PO MACT EAST
DISTRICT : DLEHI
Petition No. 276/11
Date of filing of the petition 10/08/2011
Date of assignment to this court 10/08/2011
Date on which judgment was reserved 07/10/2013
Date of award 08/10/2013
IN THE MATTER OF:
Sh. Rajaram Prasad
S/o Sh. Laxmi Prasad
R/o H.No. 228B, Super MIG
Sector12, Pratap Vihar,
Ghaziabad, UP ....Petitioner
VERSUS
1. Sh. Sultan
S/o Sh. Rameshwar Dass
R/o Village Vaisri, Tehsil & PS Matlauda
District Panipat, Haryana .....Driver
2. The Chairman DTC
I.P. Estate, I.P. Depot
New Delhi .....Owner
3. United India Insurance Co. Ltd.
DOXI, E85, Himalaya House,
23, K.G. Marg, New Delhi ....Insurer
.....Respondents
A W A R D
1. Injured Sh. Rajaram Prasad S/o Sh. Laxmi Prasad R/o H.No. 228B, Super MIG Sector12, Pratap Vihar, Ghaziabad, UP (hereinafter referred 2 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS to as petitioner) filed the present petition u/s 166 & section 140 of the Motor Vehicles Act 1988 (hereinafter referred to as Act of 1988) against Sh. Sultan S/o Sh. Rameshwar Dass R/o Village Vaisri, Tehsil & PS Matlauda District Panipat, Haryana driver (hereinafter referred to as respondent no. 1), The Chairman DTC I.P. Estate, I.P. Depot New Delhi Owner (hereinafter referred to as respondent no.2) and United India Insurance Co. Ltd. DOXI, E85, Himalaya House, 23, K.G. Marg, New Delhi Insurer (hereinafter referred to as respondent no.3) for seeking compensation in lieu of injuries received due to said accident.
2. Petitioner/injured was about 38 years old, working as Freelancer (shaping of all type of Gems and Jewels) and earning Rs.25,000/ per month.
3. The brief facts arising out of this case are that on 08/07/2011 at about 9:30 p.m petitioner/injured was going towards his house on a motorcycle bearing no. UP14BD7308, when he reached at Opposite Hundai Show Room Narwana Road, Near Bus Stand, Delhi in the meantime a DTC bus bearing no. DL1PC9683 which was being driven by the R1 in a rash and negligent manner reached there, overtook the vehicle of the petitioner, applied sudden brakes without any indication and got the bus immediately stopped. Due to the said rash and negligent act of R1 the petitioner entangled with the back wheel of DTC bus, as a result of which he fell 3 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS down and received serious grievous injuries. He was immediately removed to LBS hospital and was got medically examined vide MLC no. 11649/11 but due to serious injuries he was referred to Safdarjung hospital and remained admitted there w.e.f 09.07.2011 to 26.07.2011. These injuries resulted into the amputation of his right hand above the elbow. He was further hospitalized in Prayag hospital from 26.07.2011 to 01.08.2011. Injured spent about Rs.80,000/ on his treatment till the date of filing of petition. It is further alleged that injured/petitioner spent huge amount on conveyance, better diet and attendant and claimed Rs. 55,00,000/ with interest towards all the heads.
4. A criminal case u/s 279/338 IPC was also registered at PS Mandawali Fazal Pur vide FIR bearing no.298/11.
5. R1 is the driver, R2 is the owner and R3 is the insurer of the offending vehicle, therefore, they all are jointly and severally liable to pay the compensation and R3 is liable to indemnify R1 and R2.
6. Notice was served upon all the respondents pursuant to which all the respondents appeared and filed their written statements separately.
7. R1 and R2 in their written statement controverted all the allegations as 4 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS alleged in the petition and took preliminary objections such as respondents are not liable to pay any compensation to the petitioner as the vehicle at the time of accident was insured with the United India Insurance Company vide policy no. 0411003110P001069183 valid from 27.09.2010 to 26.09.2011 and at the time of accident R1 was in possession of valid driving licence. It is further alleged that petition is not maintainable as the petitioner has not come before the court with clean hands. It is further alleged that no accident took place due to rash and negligent driving of R1 as injured himself is responsible for the accident and requested for dismissal of the petition.
8. R3 in its written statement controverted all the allegations as alleged in the petition and took preliminary objections such as insurance policy bearing no. 0411003110P001069183 which is valid from 27.09.2010 to 26.09.2011 was issued by the answering respondent against Passenger Carrying Commercial Vehicle Liability Only to insure Passenger Carrying Bus bearing registration no. DL1PC9683 in the name of Delhi Transport Corporation. It is further alleged that liability of the answering respondent shall be subject to the possession of driving license of the driver, permit and fitness being found to be in order upon verification. It is further alleged that driving license of the petitioner also needs to be verified in order to ascertain its validity/entitlement to drive a motorcycle as on the date of the 5 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS alleged accident. It is further alleged that amount claimed by the petitioner is highly exorbitant, excessive and without any basis however, in reply to para no. 18 it is specifically admitted that the vehicle bearing registration no. DL1PC9683 was insured vide policy no. 0411003110P001069183 which is valid from 27.09.2010 to 26.09.2011 subject to the terms and conditions of the policy and requested for dismissal of the petition.
9. After hearing the arguments and on the basis of pleadings from both the parties following issues were framed by the court vide order dated 22.12.2011:
I). Whether petitioner has suffered injuries in road side accident on 08.07.11 involving vehicle i.e DTC Low Floor Bus bearing No. DL1PC9683 being driven allegedly in a rash and negligent manner by R1?
ii) To what amount of compensation, if any, the petitioner is entitled to and from whom?
Iii) Relief
10. After framing of issues case was fixed for petitioner's evidence.
11. Sh. Rajaram Prasad petitioner/injured appeared as PW1 and filed his affidavit Ex.PW1/A stating therein all the facts which were stated by him in his petition. He also relied upon the documents Ex. PW1/1 to Ex.PW1/92.
Ex.PW1/14 are the medical treatment record and investigation report, Ex. 6
MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS PW1/556 are the medical bills amounting to Rs.1,00,000/ but on verification and totaling the medical bills found in order to the extent of Rs. 36,987/, disability certificate is Ex. PW1/57, Ex. PW1/5859 are the copies of quotation and bills issued by M/s Endolite India Ltd., Ex. PW1/6092 are the copy of his income tax returns, receipts in increasing trends, DL, PAN card, Passport, election identity card and ration card.
12. During his cross examination by counsel for R1 and R2 he deposed that the place of accident was on the left side of the road. He also admitted that the bus had stopped at the bus stand but he denied the suggestion that he hit the bus from the rear side due to his own negligent. He also denied the suggestion that bus was stationary at the time of accident rather it was in motion. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
13. During his cross examination by counsel for insurance company he admitted that he was suffering from diabetes. He also admitted that he received treatment from Safdarjung hospital, LBS hospital and Prayag hospital but denied the suggestion that his hand was amputated because of the diabetes he was already suffering. He also admitted that he had not mentioned the nature of business which he was doing in the ITR filed by him and he specifically admitted that he had not mentioned in the ITR that 7 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS he was doing the business of Gems and Jewels and he also could not produce any license for making Gems and Jewels. He also admitted that he had not produced any bank statement/current account statement showing therein the receipt of payments from the customers against the work done by him. He also admitted that he also filed medical bills for purchase of the medicine prescribed for diabetes. He also admitted that he had not filed any record showing the sale and purchase of the goods which were being used in making Gems and Jewels. On the next date of hearing he also produced his matriculation certificate/mark sheet Ex. PW1/93 and 94 in support of his qualifications mentioning therein his date of birth as 25.5.1973. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
14. Dr. Harish Mansukhani, Chief Medical Officer from LBS hospital appeared as PW2 and deposed that he is the Chariman of Medical Board constituted at LBS hospital. On 25.11.2011 medical board issued a permanent disability certificate to Raja Ram s/o Laxmi Prasad mentioning therein 85% permanent disability in relation to right upper limb with amputation right above elbow. The disability certificate is already Ex. PW1/57 bearing his signature at point A and signatures of other members of board namely Dr. Binod Kalita at point B and Dr. Rita Aggarwal at point C and Dr.P.K. Khedwal at point D. 8 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS
15. Ms. Ekta, Prosthetist and Orthotist from M/s Endolite India Ltd. appeared as PW3 and deposed that she has been working as Prosthetist and Orthotist and is authorized by her Branch Manager Sh. Gaurav Sainger to appear before this court and to file the quotation for artificial limb i.e above elbow system. The authority letter is Ex. PW3/A bearing the signature of Manager at Point A. She filed two quotation duly signed by Manager first amounting to Rs.5,61,900/ and the second amounting to Rs.1,19,900/ Ex. PW3/B and C respectively.
16. During her cross examination by counsel for insurance company she deposed that their company is not having any other system which is cheaper than the quotation filed. She also denied the suggestion that the system costing Rs.1,19,900/ can also serve the same purpose as would be served by the system costing Rs.5,61,900/ with regard to functional purpose. Rest of her testimony is reiterated by her as submitted by her during examination in chief. Thereafter, PE was closed and case was fixed for respondents evidence.
17. Sh. Sultan driver of the offending vehicle appeared as R1W1. He deposed that on 08.7.2011 he was driving a bus No. DL1PC9683 which was being plied on the route no. 740 (Uttam Nagar to Anand Vihar). On that day at about 9.30 p.m he was to stop the bus near Mother Diary Bus stand 9 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS in the meantime the petitioner who was driving a motorcycle tried to overtake his bus from the left side and in the process the motorcyclist slipped on the road due to the wetness on the road. He further deposed that petitioner fell down from his motorcycle and his right hand came under the rear left wheel of the bus. He stopped the bus immediately and informed the PCR. He specifically deposed that the accident had taken place due to rash and negligent driving of motorcycle by the petitioner.
18. During his cross examination by counsel for petitioner he admitted that a criminal case on account of this accident is pending against him in the court of Ld. MM. He also admitted that he had not filed any complaint to the senior officials regarding his false implication in this case. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
19. During his cross examination by counsel for insurance company he deposed that he is matriculate and had been driving the DTC bus since one year prior to this accident. He further deposed that before his employment in the DTC he was driving a Canter in various states namely Haryana, Rajasthan etc. He also deposed that he got prepared a D/L through his Ustad Sh. Raghbir Singh in the year 2006 but he never visited the licencing authority for the said purpose. He also admitted that he had 10 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS never undergone any test for obtaining the impugned licence but he denied the suggestion that the license issued to him by Nagaland Authority is neither valid nor effective. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
20. Sh. Malkit Singh, Deputy Manager, United India Insurance Co. Ltd. appeared as R3W1 and brought the attested true copy of insurance policy bearing no. 0411003110P001069183 valid for the period from 27.09.2010 to 26.09.2011 insuring a DTC bus bearing no. DL1PC9683 the same is Ex.R3W1/1. The violation of the policy condition is marked at point A to A. He further deposed that a notice u/o 12 rule 8 CPC were served upon the driver to produce the original driving license and the original insurance policy of bus bearing registration no. DL1PC9683. The copy of the notice is EX. R3W1/2. The original registry slip is Ex. R3W1/3.
21. They have also issued another notice u/o 12 rule 8 CPC upon the owner/DTC to produce the original driving license of driver, Sultan, the original insurance policy of bus bearing registration no. DL1PB5561. The office copy of the notice is EX. R3W1/4 and the postal receipt is Ex. R3W1/5. Both these notices returned unserved. The AD card is Ex. R3W1/6. He further deposed that the DL in this case has not been issued by following the procedure laid down under the MV Act Rules as R1 11 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS neither applied nor visited to the office of concerned licensing authority for obtaining the impugned license. He further deposed that R3 insurance company is not liable to indemnify R1 and R2 for the compensation to be paid in the present case.
22. During his cross examination by counsel for R1 and R2 he deposed that the license bearing no. 23832/TV/Z/2006 was got verified by the police officials and not by the representative of their company. He further deposed that as per the police report, DL was found genuine. During his further cross examination he denied the suggestion that at the time of accident he was not in possession of a valid DL. Rest of his testimony is reiterated by him as submitted by him during examination in chief. Thereafter, respondent's evidence was closed and case was fixed for final arguments.
23. Arguments on behalf of counsel for petitioner as well as on behalf of respondents heard. On the basis of arguments advanced and the evidence adduced by both the parties my findings on the issues are as follows :
ISSUE 1 I). Whether petitioner has suffered injuries in road side accident on 08.07.11 involving vehicle i.e DTC 12 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS Low Floor Bus bearing No. DL1PC9683 being driven allegedly in a rash and negligent manner by R1?
24. On this issue the evidence of PW1 petitioner/injured is very much relevant. In his statement he specifically deposed that on 08/07/2011 at about 9:30 p.m petitioner/injured was going towards his house on a motorcycle bearing no. UP14BD7308, when he reached at Opposite Hundai Show Room Narwana Road, Near Bus Stand, Delhi in the meantime a DTC bus bearing no. DL1PC9683 which was being driven by the R1 in a rash and negligent manner reached there, overtook the vehicle of the petitioner, applied sudden brakes without any indication and got the bus immediately stopped. Due to the said rash and negligent act of R1 the petitioner entangled with the back wheel of DTC bus, as a result of which he fell down and received serious grievous injuries. He was immediately removed to LBS hospital and was got medically examined vide MLC no. 11649/11 but due to serious injuries he was referred to Safdarjung hospital and remained admitted there w.e.f 09.07.2011 to 26.07.2011. These injuries resulted into the amputation of his right hand above the elbow. He was further hospitalized in Prayag hospital from 26.07.2011 to 01.08.2011. A criminal case u/s 279/338 IPC was also registered at PS Mandawali Fazal Pur vide FIR bearing no.298/11.
25. The testimony of PW.1 is further corroborated with the fact that injured was immediately removed to LBS hospital and due to serious injuries he 13 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS was referred to Safdarjung hospital and remained admitted there w.e.f 09.07.2011 to 26.07.2011. He was further hospitalized in Prayag hospital from 26.07.2011 to 01.08.2011 again suggests that petitioner received injuries due to said accident and was taken to hospital for receiving treatment. His testimony is further corroborated by the criminal case record as the IO of this case got the offending vehicle mechanically inspected. He also prepared site plan showing the place of accident, seized the documents belonging to the offending vehicle in possession. All these documents and the statement of PW1 clearly suggests that the accident has taken place and injured received injuries in the said accident.
26. On the other hand R1 and R2 both failed to place an iota of evidence showing thereby that the accident has not taken place due to rash and negligent Act of R1.
27. In view of the aforesaid evidence adduced by the petitioner and investigation conducted by the police official and also in the absence of any evidence contrary to the petitioner's evidence I am of the considered view that there is no reason to disbelieve the testimony of petitioner on this issue and accordingly, I hold that petitioner succeeded in proving that on 08/07/2011 an accident had taken place due to rash and negligent driving of offending vehicle bearing no. DL1PC9683 which was being 14 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS driven by R1.
28. Accordingly, I decide this issue in favour of petitioner and against the respondents.
ISSUE NO.2
ii). To what amount of compensation, if any, the petitioner is entitled to and from whom?
29. As regard the quantum of compensation the petitioner has to be compensated for the actual expenses incurred by him and for the loss of income of his being rendered permanently disabled. Besides non pecuniary losses are to be assessed on the basis of facts proved.
30. As regards the medical expenses incurred by the petitioner the medical bills to the tune of Rs.36,987/ are brought on record, therefore, the petitioner has become entitled for Rs.36,987/towards the head of medical expenses.
31. On perusal of the medical treatment record it is established that petitioner received grievous injuries which has been resulted in permanent physical disability of 85% towards right upper limb with amputation above elbow, therefore, for assessing the future compensation in the present case 15 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS reference is being had to the provisions of Second Schedule Clause (5) and (6) of the Motor Vehicle Act which provided as under: Clause 5: Disability in nonfatal accidents: The following compensation shall be payable in case of disability to the victim arising out of nonfatal accidents.
Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.
Plus either of the following:
(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.
Injuries deemed to result in Permanent Total Disablement/ Permanent Partial Disablement and percentage of loss of earing capacity shall be as per Schedule I under Workman's Compensation Act, 1923.
(6)Notional income for compensation to those who had no income prior to accident Fatal and disability in nonfatal accidnts:
(a) Nonearning persons Rs.15,000/ p.a
(b) Spouse Rs.1/3rd of income of the earning/ surviving spouse.
In case of other injuries only " General damages as applicable".
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32. I also placed my reliance on a decided case cited as "Sarla Verma Vs. Delhi Transport Corporation 2009 ACJ 1298".
33. On the issue of assessing future damages Ld. counsel for insurance company submitted that the nature of injuries was opined as grievous which has been resulted into permanent disability @ 85% towards right upper limb which should have been considered as 50% towards whole body. On the other hand Ld. counsel for petitioner submitted that the nature of injury in the present case is grievous in right upper limb with amputation above elbow. It is also brought on record that injured was doing the work of Gems and Jewels, pursuant to the said accident the injured has become permanently disabled to do his work, in such circumstances the functional disability is to be taken as 100% despite of the fact that the permanent disability opined as 85% towards right upper limb as mentioned in the disability certificate Ex. PW1/57.
34. In view of the rival contentions of Ld. counsel for both the parties and on considering the nature of injuries discussed above coupled with the fact that petitioner received grievous injuries in the right upper limb with amputation above elbow, I am of the view that petitioner has become entitled for seeking future losses to the tune of 100% of 85% as functional 17 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS disability.
35. In support of age proof he filed the copy of Mark Sheet issued from Bihar Vidhayalya Priksha Smiti mentioning therein date of birth of injured as 25.05.1973. The accident has taken place on 08.07.2011, thereby it is established that on the day of accident injured was about 38 years old, therefore, for the purpose of assessing the future loss the multiplier of 15 would be applicable.
36. To prove his income the petitioner admittedly failed to file any document on record except the ITR for the year 20022003 till the year 20102011 but admittedly in all these ITR's it is no where mentioned that as what nature of business he was doing. He also failed to file the statement of account, any other proof of doing business as well as current account of doing any business. In such circumstances alone filing of ITR is not enough to prove his income. However, he produced photocopy of certificate issued from Bihar Vidhalaya Priksha Smiti and mark sheet mentioning therein that petitioner/injured passed the 10th class.
37. Reliance is also placed on a decided case cited as Kiran Devi & another Vs. Surjeet Yadav and anothers II (2010) ACC 289 wherein it is observed as under :
18
MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS "while assessing the income of the deceased in motor accident cases, the Tribunal should bear in mind that the same should be assessed on the basis of cogent and reliable evidence produced and duly proved on record. In this regard the thumb rule is that where there is no cogent evidence on record to prove the monthly income at the time of accident then the minimum wages notified under the minimum wages act prevalent at the time of accident can be taken into consideration."
38. In the absence of any cogent evidence in support of income the petitioner has become entitled to claim his income on the basis of Minimum Wages Chart being matriculate prevalent in the State of UP which comes to Rs. 5269/ per month.
39. Ld. counsel on behalf of petitioner also submitted that the petitioner was below 40 years old on the day of accident therefore, he has become entitled for 50% increase in his minimum wages and also relied upon the observation given by their lordship in a decided case cited as Rajesh and others Vs. Rajbir Singh and others 2013 (6) Supreme Court 563 wherein it is observed as under :
"Since the court in Santosh Devi's case actually intended to follow the principle in the 19 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS case of salaried persons as laid in Sarla verma's case and to make it applicable also to the 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 the age group of 40 to 50 years.
In Sarla Verma's case, 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 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."
40. On the other hand Ld. counsel on behalf of insurance company submitted that the petitioner was not in regular employment, therefore, he is not 20 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS entitled for any future increase and relied upon a decided case cited as cited as New India Assurance Co. Ltd. Vs. Harpal Singh & others MAC. App. 138/11, New India Assurance Co. Ltd. Vs. Satto & Ors. MAC. App. 143/11, Satto and others vs. New India Assurance Co. Ltd. MAC. App. 744/11 and Harpal Singh & Ors vs. New India Assurance Co. Ltd. MAC. App. 30/12 decided on 06.09.2013 vide common order wherein it is observed as under :
"Of course, three Judge Bench of the Supreme Court in its later judgment in Rajesh relying on Santosh Devi Vs. National Insurance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be addition of 30% and 50%, depending upon the age of the deceased, towards future prospects even in the case of self employed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari was not brought to the notice of their Lordships. Therefore, in view of Union of India & Ors. Vs. S.K. Kapoor (2011) 4 SCC 589, the three Judge Bench decision in Reshma Kumari shall be taken as binding precedent. Since the deceased was not in permanent or regular employment, therefore, he would not be entitled to any addition towards future prospects."
41. In view of the rival contentions on behalf of Ld. counsel for both the parties 21 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS I also carefully perused the observation given by his lordship in a decided case cited as ICICI Lombard General Insurance Co. Ltd. vs. Angrej Singh and others MAC.A. 846/ 2011 decided on 30.09.2013 wherein the court relying upon the dictum laid down by the Constitution Bench of Apex Court in Central Board of Dawoodi Bohra Community and another Vs. State of Maharashtra and another (2005) 2 SCC 673 wherein it is held as under :
"12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength (2) A Bench of lesser quorum cannot doubt the correctness of 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 22 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted."
42. Hon'ble Judge relying upon the aforesaid observation it is further observed that in Reshma Kumari the Apex Court affirm the findings of Sarla Verma and in Rajesh the Hon'ble Supreme Court has agreed with the dictum of Santosh Devi specifically for the assessment of future prospectus in respect of persons falling under the category of self employment/fixed wages, this court is guided by the dictum laid down in Rajesh.
43. It is held that there is no contradiction in the dictum laid down by the Apex Court in the cases of Reshma Kumari and Rajesh.
44. Reliance is also placed on a decided case cited as National Insurance Co. Ltd. Vs. Raja Ram decided by this court on 25.08.2009 in MAC. App. 175/2006 and Sajha Vs. National Insurance Co. Ltd. 2010 ACJ 627 wherein it was held that the schedule of minimum wages shows the wages slightly increases from time to time after every six months and within ten years wages would have become double. Therefore, the increase in the minimum wages has to be taken into consideration while assessing the compensation on account of future prospects." 23
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45. Therefore, on relying upon the latest judgment of Hon'ble High court of Delhi relied upon by this court, I am of the view that petitioner has become entitled for addition of 50% increase in his minimum wages prevalent on the date of accident while assessing the future prospectus. On applying the multiplier of 15 the future loss comes to Rs.7903/ x 15 x 12 x 85 / 100 = Rs.12,09,235/.
46. On considering the nature of injury and the medical treatment record in the absence of any evidence I am of the considered view that petitioner might have taken six months time in healing the injuries and resuming his health, therefore, petitioner has also become entitled for six months salary @ Minimum Wages which comes to Rs.5269 x 6 = Rs.31,614/.
47. Ld. counsel for petitioner submitted that the present case is a case of amputation with 85% disability, therefore, petitioner has become entitled for compensation of Rs.3,00,000/ towards non pecuniary heads and placed his reliance on the decided case cited as Arun Sondhi Vs Delhi Transport Corporation, I (2001) ACC 615, and Siddhi Gopal Dixit @ Siddh Gopal Dixit Vs Siya Ram & Ors. MACT appeal no. 573/2009 decided on 03.03.2010. However, Ld. counsel for insurance company submitted that future damages has already been granted on the basis of permanent disability caused pursuant to the injuries sustained in the 24 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS accident and no further non pecuniary damages is required to be granted.
48. In view of the rival contentions of Ld. counsel for both the parties I carefully perused the observations given by their lordships in the aforesaid decided case wherein it is observed as under: "A trend which emerges is that between the years 1985 and 1990, the courts have been awarding about Rs. 3,00,000/ under the head 'nonpecuniary damages' for amputation of leg resulting in permanent disability of 50 % and above".
49. In view of the aforesaid observation and on considering the nature of injury i.e grievous, resulted into permanent disability @85% towards right upper limb with amputation above elbow, I am of the considered view that petitioner has also become entitled for Rs.3,00,000/ towards non pecuniary head i.e mental pain and agony, conveyance, better diet and attendant etc. I accordingly assess Rs.3,00,000/ towards above mentioned non pecuniary heads.
LIABILITY
50. On the issue of deciding liability by whom the amount of compensation is payable Ld. counsel on behalf of R1 and R2 submitted that 25 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS the offending vehicle was admittedly insured with R3, R1 was the driver who was having valid D/L to drive the offending vehicle and R2 is the registered owner. The factum of validity of the driving licence is duly proved by the IO who had filed his report mentioning therein that the DL was valid, in such circumstances R3 insurance company has become liable to make the compensation to the petitioner and also to indemnify R1 and R2.
51. On the other hand ld. counsel for the insurance company submitted that during the course of cross examination of driver/R1 he admitted that he got prepared his DL through his Ustad Raghbir Singh. He further admitted that he never visited the licensing authority at Nagaland in the year 2006 and he had also never undergone any test before obtaining the impugned license thereby it is established that the DL bearing no. 23832/TV/Z/2006 was not valid and by virtue of the said license R1 was not competent to drive the alleged offending vehicle and requested for exoneration of R3 for making payment of compensation and also relied upon a decided case cited as FAO No. 654 of 1989 titled as Manjit Kaur & Ors Vs. H.S. Atwal and FAO NO. 655 of 1989 titled as Ajit Kaur Vs. H.S. Atwal wherein it is observed as under :
"In this case, the licence was said to have been issued from the DTO Guwahati, Assam. The copy of the licence had been produced before the court and the driver was 26 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS cross examined on this aspect. The Tribunal has observed that even if there was an objection regarding the report of the local commissioner, the statement of Karamjit Singh himself could be linked up on the apect of validity of the licence. He had stated in the cross examination that he did not know where Guwahati was situate and that all what he knew was that it was in India. He also admitted that he did not ever appear before the licensing authority at all. A person that cannot remember whether he appeared before any authority to secure a driving license and a person, who probably did not go out of frontiers of Punjab that he had secured a licence from Guwahati was surely exposing himself that he was producing a document, which was not genuine. It does not require elaborate forensic skills of reasoning that even if the Tribunal eschewed the report of the local commissioner, the evidence of the driver himself brings out the fact that the licence cannot be true. Learned counsel appearing on behalf of the driver pleads with passion that it was possible in parts of Punjab to secure driving licence even without going to the driving licence office. I would find this contention to be outlandish to deserve to be rejected as a submission that makes violence to the provisions of the Motor Vehicles Act and the Rules that set out a procedure for securing a licence by personal appearance and test of driving skills. I would hold therefore that the driving licence produced was not a genuine one and the burden that was cast on the insurer gets discharged by the quality of evidence adduced by the driver himself."
52. In view of the rival contention of Ld. counsel for both the parties and 27 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS also on considering the observation given by his lordship in the aforesaid decided case and also on considering the evidence adduced by both the parties I am of the considered view that impugned DL is obtained in violation of the MV Act Rules and is held to be fake. In view of these observations, I further held that the insurance company would still be liable consistent with the reasoning already made about the fact of transfer and the contract of insurance that admittedly exists for the vehicle that was involved in the accident. However, in terms of judgment of Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh (2004) 3 SCC 297 where the driving license is fake, the liability shall be upon the insurer in terms of Section 149 (4) proviso and 149(5) of MV Act and by invoking the principle of law laid down by the supreme Court in New India Assurance Co. Shimla Vs. Kamla (2001) 4 SCC 342 the insurance company would pay the amount and recover the same from the respondent no.1 and 2 namely the insurer and the driver. Accordingly, R3/Insurance co. is liable to make the payment of compensation to the petitioner/injured subject to right of recovery from R1 and R2. This issue is decided accordingly.
53. After hearing arguments on behalf of Ld. counsel for both the parties, I carefully perused the evidence adduced by both the parties and the observation given by their lordships in the aforesaid case, the petitioner is become entitled for the total amount of compensation towards all the heads as 28 MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS follows: Sl.No. On Account of Amount (Rs.) 1 Towards medical expenses. Rs.36,987/ 2 Towards six months salary Rs. 31,614/ 3 Towards future loss of income Rs.12,09,235/ 4 Towards non pecuniary heads Rs.3,00,000/ Total Rs. 15,77,836/
54. I accordingly, grant a compensation to the tune of Rs. 15,77,836/ to the petitioner with interest @ 7.5% p.a. from the date of filing of the petition till its realization minus the amount of interim compensation, if any, and interest excepted if any, with the responsibility of insurance company to make the payment of the award amount subject to right of recovery from R1 and R2.
55. United India Insurance Company Ltd. is hereby directed to deposit the award amount with upto date interest in Oriental Bank of Commerce branch, F21, Preet Vihar Main Vikas Marg Delhi1 branch in the name of the petitioner within 30 days from the date of award under the intimation to this court and bank would keep this amount in an account in the name of Judge MACT East and would wait for the further directions as to the disbursement of the same till the compliance is reported. 29
MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS
56. Out of total amount of compensation 50% shall be released to the petitioner and remaining 50% shall be kept in FDR for the period of five years with release of periodical interest.
57. An attested copy of this award alongwith two recent photographs of the petitioner with court stamp be also sent to the bank for facilitating the compliance. File be consigned to the Record Room.
Announced in the open court (B.S. CHUMBAK)
on 08/10/2013 PO MACT/EAST DISTT
DELHI
30
MACT NO.276/11 RAJA RAM PRASAD VS. SULTAN & OTHERS Suit No.:276/11 08.10.2013 Present: None.
Final arguments already heard.
Written arguments filed on behalf of R1 and R2.
Final award to the tune of Rs. 15,77,836/ is passed in favour of the petitioner with interest @ 7.5% p.a. from the date of filing of the petition till its realization minus the amount of interim compensation, if any, and interest excepted if any, with the responsibility of insurance company to make the payment of the award amount subject to right of recovery from R1 and R2.
United India Insurance Company Ltd. is hereby directed to deposit the award amount with upto date interest in Oriental Bank of Commerce branch, F21, Preet Vihar Main Vikas Marg Delhi1 branch in the name of the petitioner within 30 days from the date of award under the intimation to this court and bank would keep this amount in an account in the name of Judge MACT East and would wait for the further directions as to the disbursement of the same till the compliance is reported.
Out of total amount of compensation 50% shall be released to the petitioner and remaining 50% shall be kept in FDR for the period of five years with release of periodical interest.
An attested copy of this award alongwith two recent photographs of the petitioner with court stamp be also sent to the bank for facilitating the compliance. File be consigned to the Record Room.
(B.S. CHUMBAK) PO MACT EAST DISTT/DELHI 08.10.2013