Delhi District Court
Avinash Chopra vs Jagtar Singh on 5 January, 2016
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No.520/11
Unique Case Identification No.02401C-0223292007
1. Avinash Chopra, S/o Shri M.M.Chopra,
R/o A-141, Block-A, Sudershan Park,
New Delhi.
........PETITIONER
Versus
1. Jagtar Singh, S/o Shri Jagjit Singh,
R/o Dhobinala Road, Dimapur, Nagaland
(Driver/Bus)
2. Punjab Roadways
Through its Principal Officer,
Station Supervisor Punjab Roadways,
Taran Taran Depot, Punjab
Also at: MGMT Co. Ltd. Chandigarh, Punjab
(Owner/Bus)
3. Ravi Kumar, S/o Shri Vijay Kumar Sehdev
R/o WZ-84, Gali No.27, MBA Nagar, Tilak Nagar
Delhi-18
(Driver/Tavera)
4. Sh.Vineet Kumar, S/o Shri Kishan Kumar
R/o 21/4, Double Storey, Moti Nagar, Delhi
(Owner/Tavera)
5. National Insurance Company Ltd.
2nd Floor, EMCA House, 3/23 B
Ansari Road, Darya Ganj, New Delhi-02
(Insurer/Tavera)
.......RESPONDENTS
Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 1 of 24
Date of filing of claim petition : 01.03.2007
Arguments heard on : 05.01.2016
Award passed on : 05.01.2016
JUDGEMENT
1. Present claim petition has been preferred by the petitioner under Section 166 and 140 of Motor Vehicles Act 1988 (hereinafter referred to as 'the Act') claiming compensation of a sum of Rs.5,00,000/- (Rupees Five Lakh only) in respect of injuries sustained by him in a motor vehicular accident.
In brief, on 31.01.2007 Rohit Arora (since deceased- represented through LRs in Suit No.535/11) along with his friends Sher Singh (petitioner in Suit No.525/11), Ashish Sharma (petitioner in Suit No.526/11), Pawan Raghav (petitioner in Suit No.533/11), Dinesh Chand (petitioner in Suit No.534/11), Avinash Chopra (petitioner in Suit No.520/11), Lakhbir Singh (petitioner in Suit No.532/11), Satish Kumar (petitioner in Suit No.529/11) were going to Jammu from Delhi for Darshana of Mata Vaishno Devi in Tavera car bearing No.DL-4CAD-1252 driven by Ravi. The Tavera was hit near Delhi Morh on Jammu-Lakhimpur road by a Punjab Roadways bus bearing No. PB-02S-9939 coming from the opposite side from Jammu which was driven by Respondent No.1 in a rash and negligent manner at a high speed. Consequently, Rohit Arora suffered fatal injuries in the accident while the other Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 2 of 24 occupants of Tavera sustained simple/grievous injuries. FIR No. 27/2007 dated 31.01.2007 u/s 279/337/304A IPC, PS: Katua, District Katua, J&K was registered regarding the accident.
2. It may be noticed that nine separate claim petitions arising out of the same accident were separately preferred as under:
1. Suit No. 535/11 Harish Arora vs. Jagtar Singh & Ors. (date of filing 28.02.2007)
2. Suit No.520/11- Avinash Chopra vs. Jagtar Singh & Ors.
(date of filing 01.03.2007)
3. Suit No.525/11 - Sher Singh vs. Jagtar Singh & Ors. (date of filing 01.03.2007)
4. Suit No.529/11 - Satish Kumar vs. Jagtar Singh & Ors.
(date of filing 02.03.2007)
5. Suit No.532/11 - Lakhbir Singh vs. Jagtar Singh & Ors.
(date of filing 02.03.2007)
6. Suit No.533/11 - Pawan Raghav vs. Jagtar Singh & Ors.
(date of filing 02.03.2007)
7. Suit No.534/11 - Dinesh Chand Sati vs. Jagtar Singh & Ors.
(date of filing 02.03.2007)
8. Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors.(date of filing 24.03.2007)
9. Suit No.526/11 - Ashish Sharma vs. Jagtar Singh & Ors.
(date of filing 30.04.2007) In the eight suits referred to above (except Suit No. Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 3 of 24 531/11 filed by injured driver of Tavera car titled as Ravi Kumar vs. Jagtar Singh & Ors.), Respondent No. 1 Jagtar Singh (driver of offending bus), Respondent No.2 Punjab Roadways (owner of the offending bus), Respondent No.3 Ravi Kumar (driver of Tavera car in which the petitioners were travelling), Respondent No.4 Vineet Kumar (owner of Tavera car in which the deceased/petitioners were travelling) were initially impleaded as respondents. Subsequently vide application u/o 1 Rule 10 r/w Section 151 CPC, National Insurance Company Ltd. (insurer of Tavera car) was also impleaded as one of the respondents vide order dated 30.04.2007 passed in Suit No.520/11 (Avinash Chopra vs. Jagtar Singh & Ors) and the same has been followed in the remaining seven suits except for Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. Further, all the suits were consolidated vide order dated 09.03.2010 whereby evidence was directed to be led in the lead case bearing no. 847/08- Harish Arora & Anr. vs. Jagtar Singh & Ors. and a copy of order was accordingly placed in the respective suits.
At the stage of final arguments, cases have been de- consolidated for the purpose of fair assessment of compensation in the respective cases since Respondent No.4 Vineet Kumar (owner of Tavera car) has not been impleaded as respondent in Suit No. 531/11-Ravi Kumar vs. Jagtar Singh & Ors. Also, Ravi Kumar (driver of Tavera car) himself being the petitioner obviously could not have been a respondent in Suit No.531/11. Also, National Insurance Company Ltd. (insurer of Tavera car) was separately impleaded as Respondent No.3 vide order dated 18.08.2007 in Suit Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 4 of 24 No.531/11 and the amended memo of parties has been directed to be accordingly placed at the stage of final arguments.
It may also be noticed that in various orders, the presence of Respondent No.3 Ravi Kumar (driver of Tavera) and Respondent No.4 Vineet Kumar (owner of Tavera) stands reflected in routine in Suit No.531/11-Ravi Kumar vs. Jagtar Singh & Ors. as a common order was placed on the record of respective files after consolidation of the cases but the same needs to be read in the light of aforesaid factual position, as clarified above.
Further, Respondent No.3 Ravi Kumar (driver of Tavera) and Respondent No.4 Vineet Kumar (owner of Tavera) stand proceeded ex parte during course of proceedings as also reflected in orders dated 03.05.2014 and 25.07.2008 in the eight suits except Suit No.531/11 (Ravi Kumar vs. Jagtar Singh & Ors.).
3. In the separate Written Statements filed on behalf of Respondent No.1 Jagtar Singh/driver of the offending bus No.PB-02S-9939 & Respondent No.2 Punjab Roadways/owner of bus No.PB-02S-9939, it was submitted that the accident took place due to sole negligence and carelessness of the driver of Tavera car No. DL-4CAD-1252. It was denied that the accident took place due to rash and negligent driving of bus No. PB-02S-9939 by Respondent No.1 and the bus was stated to be driven by Respondent No.1 at a normal speed on the correct side. Further, the amount claimed by the petitioners was stated to be excessive and exaggerated.
Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 5 of 24 In the Written Statement filed on behalf of Respondent No.4 Vineet Kumar/owner of Tavera car No. DL-4CAD-1252, it was submitted that there was no cause of action against Respondent No.4 but the same was against bus No.PB-02S-9939. Further, Tavera car No. DL-4CAD-1252 was insured vide policy No.361500/31/06-610000-1675 effective from 10.08.2006 to 09.08.2007 with National Insurance Company Ltd., Division No.26, 2nd Floor, EMCA House, Ansari Road, Darya Ganj, New Delhi - 110 002. The suit was stated to be bad for non- joinder of National Insurance Company Ltd. (insurer of Tavera) as a proper and necessary party. It was further averred that driver of the Tavera car was holding a valid and effective driving licence at the time of accident and the occupants of the car were family friends of the owner of the offending vehicle on a religious trip to "Vaishno Devi". The accident was further claimed to have been caused due to negligence of the driver of the offending bus.
In the Written Statement filed on behalf of Respondent No.5 National Insurance Company Ltd. (insurer of Tavera Car) which was subsequently impleaded as respondent, it was submitted that the insurance company is not liable to indemnify the insured/Respondent No.4 until and unless the driver of the Tavera was holding a valid and effective driving licence on the date of accident and was not disqualified from holding the same and the vehicle was being used in conformity with conditions as per proposal form/policy. However, it was admitted that vehicle bearing registration No.DL-4CAD-1252 Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 6 of 24 (Tavera) was insured vide insurance cover note bearing No. 361500/31/06/6100001675 from 10.08.2006 to 09.08.2007 in the name of Vineet Kumar. Further, the amount claimed towards compensation was stated to be excessive. It was also submitted that Respondent No.5 is not liable since the accident took place due to sole negligence of Respondent No. 1 who was driving the bus at a high speed in violation of traffic rules.
Written Statement was not filed on behalf of Respondent No.3 Ravi Kumar (driver of Tavera) despite opportunity.
4. On the pleadings of the parties, following issues were framed for consideration by ld. Predecessor:-
(i) Whether the petitioner has received injuries in road side accident due to rash and negligent driving of vehicle No.PB-02AS-9939 by R1?
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
(iii) Whether R5 is not a necessary party to the proceedings as contended in para 2 of the preliminary objections in its WS and if so, the consequences thereof?
(iv) Relief.
5. In support of the claim, petitioner relied upon statement Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 7 of 24 of PW1 ASI Najir Ahmed, PS: Kathua Kotwal, Distt. Kathua, J&K; PW2 Harish Arora (father of deceased Rohit Arora); PW3 Avinash Chopra; PW4 Lakhbir Singh; PW5 Sher Singh; PW6 Dinesh Chand Sati; PW7 Satish, PW7 Pawan Raghav (re- numbered as PW7A) and PW9 Ashish Sharma.
PW1 ASI Najir Ahmed, PS Kathua Kotwal, Distt. Kathua, J&K on the basis of the record of the criminal case pertaining to FIR No.27/07 dated 31.01.2007 proved copy of FIR (Ex.PW1/1) and its English translation (Ex.PW1/2), copy of Site Plan (Ex.PW1/3) and its English translation (Ex.PW1/4), copy of DD entry (Ex.PW1/5) and its English translation (Ex.PW1/6), copy of receipt of dead body and belongings of deceased Rohit Arora (Ex.PW1/7) and its English translation (Ex.PW1/8), Superdaginama of bus (Ex.PW1/9) and its English translation (Ex.PW1/10), Mechanical Inspection Report of bus No.PB-02S-9939 (Ex.PW1/11) and its English translation (Ex.PW1/12), copy of DL driver of the offending bus of Jagtar Singh (Ex.PW1/13), copy of RC of offending bus (Ex.PW1/14) and copy of postmortem report (Ex.PW1/15).
PW1 further proved discharge card in respect of injured Ashish Sharma (Ex.PW1/16) and prescription slip issued by the treating physician (Ex.PW1/17).
PW2 Shri Harish Arora, father of deceased Rohit Arora (petitioner in Suit No.535/11) testified on the lines of claim petition bearing Suit No.535/11 and proved the photocopy of ration Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 8 of 24 card (Ex.PW2/1), photocopy of I-card of deceased issued by the employer (Ex.PW2/2), photocopy of educational certificates of deceased (Ex.PW2/3) and photocopy of Voter's I-card of deceased (Ex.PW2/4).
During cross-examination, he clarified that he was not an eyewitness to the accident. He further deposed that deceased Rohit Arora was unmarried and aged about 21 years at the time of accident. He further admitted that he had no documentary proof as to the employment and earning of the deceased though he was stated to be employed and earning Rs. 5,500/- per month.
PW3 Avinash Chopra (petitioner in Suit No.520/11 and whose affidavit is placed in Suit No.520/11) testified on the lines of the claim petition and proved copy of his Election I-card (Ex.PW3/1), copy of ration card (Ex.PW3/2), discharge card containing 10 pages (Ex.PW3/3), OPD tickets (Ex.PW3/4), copy of MLC (Ex.PW3/5), medical bills containing 11 pages (Ex.PW3/6) and copy of education documents containing 3 pages (Ex.PW3/7).
During cross-examination, he stated that there were nine persons including the driver in the Tavera car bearing No. DL-4CAD-1252 and the same was driven by Ravi. Further, he was sitting on the front seat of the Tavera along with the driver and rest of the persons were sitting behind him. He further stated that he sustained collar bone fracture of right shoulder, grievous injuries on abdomen, abrasions on neck and upper part of the body and one of the occupants of the Tavera sustained fatal injuries. He Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 9 of 24 further stated that he remained admitted from 31.01.2007 to 09.02.2007 at Government Hospital Jammu and thereafter from 12.02.2007 to 17.02.2007 at Dr. Ram Manohar Lohia Hospital.
PW4 Lakhbir Singh (petitioner in Suit No.532/11) testified on the lines of the claim petition and proved copy of his driving licence (Ex.PW4/1), observation sheet containing four pages (Ex.PW4/2), bills (colly Ex.PW4/3), medical prescription containing two pages (Ex.PW4/3A), MLC (Ex.PW4/4) and educational qualification documents (Ex.PW4/5).
During cross-examination, he clarified that he had studied B.Com, LLB and had suffered grievous injuries on the forehead which required eighteen stitches. Further, he also suffered fracture of right shoulder, fracture of right knee and abrasions on other parts of the body. He further deposed that he had undertaken treatment after preparation of MLC at Government Hospital, Jammu and at DDU Hospital, Delhi and the treatment continued for about three to four months.
PW5 Sher Singh (petitioner in Suit No.525/11) testified on the lines of claim petition and proved copy of driving licence (Ex.PW5/1), copy of medical summary & MLC (Ex.PW5/2) and copy of educational documents (Ex.PW5/3).
During cross-examination, he stated that his treatment was carried at Government Medical College Jammu and thereafter at Verma Nursing Home at Delhi.
Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 10 of 24 PW6 Dinesh Chand Sati (petitioner in Suit No. 534/11) testified on the lines of claim petition and proved copy of driving licence (Ex.PW6/1), copy of medical summary & MLC (Ex.PW6/2) and discharge card (Ex.PW6/3), medical prescription cum bill (Ex.PW6/4) and documents of educational qualification (Ex.PW6/5).
During cross-examination, he clarified that he had passed his 12th class but had not brought the certificate. He further stated that he had placed some of the bills available with him on record but the rest of the bills were not traceable and denied the suggestion that expenses of Rs.30,000/- were not incurred on medical treatment. He further stated that he had no documentary proof as to the earning of Rs.5,500/- per month.
PW7 Satish (petitioner in Suit No.529/11) testified on the lines of claim petition and proved copy of his Election I-card (Ex.PW7/1), medical summary & MLC (Ex.PW7/2) and documents of educational qualification (Ex.PW7/3).
During cross-examination, he denied the suggestion that expenses of Rs.15,000/- were not incurred on medical treatment along with expenses on conveyance, special diet and nursing, as claimed. He further admitted that he had no documentary proof as to the earning of Rs.6,000/- per month. He also denied the suggestion that he had not remained bed ridden for about five months due to accidental injuries.
PW7 Pawan Raghav (re-numbered as PW7A vide Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 11 of 24 order dated 22.12.2015) (petitioner in Suit No.533/11) testified on the lines of claim petition and proved copy of his driving licence (Ex.PW7/1), patient observation sheet (Ex.PW7/2), attested copy of medical summary (Ex.PW7/3), copy of I-card issued by his employer (Mark X), original salary/appointment letter running into 4 sheets (Ex.PW7/4 colly) and documents of educational qualification (Ex.PW7/5).
PW9 Ashish Sharma (petitioner in Suit No.526/11) testified on the lines of claim petition and proved copy of his PAN card (Ex.PW9/1), original medical treatment record (Ex.PW9/2- colly 2 sets), original estimate of future medical expenses (Ex.PW9/3) and copy of documents of educational qualification running into two sheets (Ex.PW9/4 colly).
During cross-examination, he admitted that he had not placed on record any proof of salary @ Rs.8,000/- per month. He further admitted that he had no other bills for treatment except which had been placed on record.
Respondent No.1 driver of the offending vehicle Jagtar Singh examined himself as R1W1 and testified on the lines of written statement.
During cross-examination, he stated that he could not tell as to what had been written in his affidavit which was filed by way of evidence for purpose of examination-in-chief. He admitted that he was driving the bus on the date of accident and FIR No. 27/07 is pending adjudication at Katua Courts. Further, he had Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 12 of 24 been named as accused in the chargesheet being the driver of the offending bus. He further clarified that the offending bus was seized by the police in FIR No.27/07 and admitted that he had not filed any protest petition against the FIR in question.
Evidence was not led on behalf of remaining respondents.
6. I have heard arguments addressed by the counsel for the parties and perused the record.
My Issue-wise findings are as under :-
(i) Whether the petitioner has received injuries in road side accident due to rash and negligent driving of vehicle No.PB-02-AS-9939 by R.1?
In Bimla Devi and Ors. V. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, it was held that in a petition u/s 166 of the Motor Vehicles Act, 1988 the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition. In New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), it was observed that it has to be borne in mind that the Motor Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 13 of 24 Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence. The relevant portion of the report is extracted hereunder:
".......that tribunals exercising quasi-judicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources, and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts."
Reference may also be made to observations in Ranu Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 14 of 24 Bala Paul & Others vs. Bani Chakraborty 1999 ACJ 634 Gauhati wherein the claim was allowed after consideration of FIR before the Tribunal.
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accident Claim Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary enquiry and this is a legislation for the welfare of the society. In N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), the Supreme Court pointed out that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter."
In the instant case, testimony of PW3 to PW9 who Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 15 of 24 were occupants of Tavera car and suffered injuries in the accident is categorical to the effect that Punjab Roadways bus No. PB-02S-9939 coming from opposite side in violation of lane driving abruptly jumped to the lane of Tavera without any signal resulting in unfortunate accident and injuries to the occupants of Tavera car. The testimony on the point of rash and negligent driving on the part of offending bus could not be dented during cross-examination of any of the witnesses and has remained uncontroverted on record.
It may further be noticed that though Respondent No. 1 Jagtar Singh led his evidence as R1W1 but during cross- examination he admitted that he was even not aware as to what had been written/testified in the affidavit which was tendered in examination-in-chief. He also admitted that the chargesheet had been filed against him with reference to FIR No.27/07 which is pending adjudication at Kathua Courts. It is also pertinent to observe that Respondent No.1 did not file any complaint regarding false implication by the police. In the facts and circumstances, it appears to be a last ditch effort by Respondent No.1 to shift the liability and I do not find any cogent grounds to rely upon his testimony.
Since the negligence is to be determined on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition, it has been proved on record that the accident was caused due to rash and negligent driving by driver of offending bus bearing registration no. PB-02S-9939. Issue No. 1 is accordingly decided in favour of Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 16 of 24 the petitioner.
7. Issue No. (ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
It may be observed that for the purpose of assessment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
Petitioner/injured Avinash Chopra (PW3) in his examinationinchief exhibited the copy of his Election I-card (Ex.PW3/1), copy of ration card (Ex.PW3/2), discharge card containing 10 pages (Ex.PW3/3), OPD tickets (Ex.PW3/4), copy of MLC (Ex.PW3/5), medical bills containing 11 pages (Ex.PW3/6) and copy of education documents containing 3 pages (Ex.PW3/7). He testified that he had suffered hemoperitoneum, coupled with right clavicle fracture, grievous injury on chest, fracture of collar bone, several stitches on abdomen and remained admitted at Govt. Hospital Jammu from 31.01.2007 to 09.02.2007. Thereafter, he was shifted to Delhi and remained admitted at Dr. Ram Manohar Lohia Hospital from 12.02.2007 to Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 17 of 24 17.02.2007. He further testified that he had to visit the hospital for routine checkups for about 3 months till April, 2007.
Further, about Rs.60,000/ were spent on medical treatment but only the available bills amounting to Rs.4,821/ were exhibited as Ex.PW1/6 and rest of the bills were untraceable. He also testified that about Rs.12,000/ were spent towards ambulance charges from Jammu to Delhi after the accident. Further, prior to accident, he was gainfully employed with M/s Vision Solutions, Delhi and getting salary of Rs.6,000/ per month.
Admittedly, as per documents of treatment on record, petitioner is reflected to have suffered Hemoperitoneum, # right clavicle, laceration on lips. The injury is further opined to be grievous in nature.
Considering the fact that the petitioner suffered grievous injuries and remained hospitalised from 31.01.2007 to 09.02.2007 and from 12.02.2007 to 17.02.2007, the loss of income for 03 months is considered on approximation for purpose of compensation.
Petitioner has failed to prove by leading some cogent evidence as to his employment and salary/income earned therefrom. In the facts and circumstances, the assessment of loss of wages for 03 months is to be considered on the basis of Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 18 of 24 minimum wages of a matriculate as notified by Govt. of NCT of Delhi for the relevant period @ Rs.3,760/ per month. Petitioner is accordingly granted compensation of Rs.11,280/ (i.e. Rs.
3,760/ X 03) for loss of wages for 03 months.
Though an amount of Rs.60,000/ has been claimed to have been spent on medical treatment but only the medical bills amounting to Rs.4,857.22 have been placed and proved on record by the petitioner which have not been disputed on behalf of the respondents. Petitioner is accordingly awarded Rs.4,858/ towards medical bills.
Petitioners is further awarded an amount of Rs.
10,000/ towards special diet and Rs.10,000/ for conveyance during the period of treatment.
Though an amount of Rs.12,000/ has been claimed to have spent on ambulance charges for shifting from Jammu to Delhi but no conveyance bills have been filed on record.
However, it can be presumed that petitioner must have spent considerable amount for purpose of conveyance for shifting from Jammu to Delhi in ambulance after the accident considering his precarious condition. In view of above, an amount of Rs.4,000/ is awarded towards conveyance from Jammu to Delhi.
Considering the nature of injuries suffered by the Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 19 of 24 petitioner and the period of hospitalisation, petitioner is also awarded a sum of Rs.50,000/ towards the pain and suffering for injuries sustained by him in the accident.
Attendant Charges Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 Delhi 558 held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
Further, in the case of United India Insurance Co. Ltd. V/s Rama Swamy and Others (Supra), value of gratuitous services rendered by family member of the claimant was assessed at Rs. 2,000/- per month.
I am of the considered view that even if the gratuitous services were rendered by some or the other family members, the claimant cannot be deprived of its benefit on the gain of the tortfeasor. Considering the nature of injuries, the compensation of Rs.7,500/- is awarded in lump-sum towards the attendant charges/gratuitous services rendered by the family members (i.e. Rs.2,500/- X 03 months).
8. As discussed above, the overall compensation is tabulated as under:
Loss of wages Rs.11,280/
Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 20 of 24
Pain and suffering Rs.50,000/
Transportation charges from
Jammu to Delhi Rs.4,000/
Special Diet Rs.10,000/
Conveyance Rs.10,000/
Attendant Charges Rs.7,500/
Medical Bills Rs.4,858/
___________
Total Rs.97,638/
________________
(Rupees Ninety Seven Thousand Six Hundred & Thirty Eight Only) The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 01.03.2007 till realization.
9. Issue No.3 Whether R5 is not a necessary party to the proceedings as contended in para 2 of the preliminary objections in its WS and if so, the consequences thereof?
In the present case, Respondent No.5 (National Insurance Company Ltd.-insurer of Tavera car) had been Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 21 of 24 impleaded to avoid any technical objection at the later stages on the point of apportioning the liability as two vehicles were involved in the accident and stand had been taken by Respondent No.1 & 2 that accident was caused due to negligence of driver of Tavera. In view of above, Respondent No.5 remained necessary party to the proceedings for purpose of assessment.
10. Liability It may further be observed that since the injuries were caused to the petitioner who was merely an occupant/third party (other than the driver), the principle of contributory negligence so as to apportion the liability between the drivers and owners of the two vehicles would not be relevant for the purpose of assessment of claim in respect of petitioner. Even otherwise, the case has not been proved to be of composite negligence as the accident was caused due to sole negligence of driver of the offending bus. In case of composite negligence each wrongdoer is jointly and severally liable to the petitioners for payment of entire damages and they have the choice of proceeding against all or any of them. Further, the petitioners need not establish the extent of responsibility of each wrongdoer separately, nor is necessary for the court to determine the extent of liability of each wrongdoer separately. Observations of the Hon'ble Supreme Court in T.O. Anthony v. Karvarnan, 2008 ACJ 1165 (SC) are apt to be noted.
"(6) 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 22 of 24 two or more wrongdoers, it is said that the person was injured on account of composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately. On the other hand, where a person suffers injury, partly due to negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence."
Accordingly, in the present case it is held that the liability to satisfy the claim shall be jointly and severally on the part of Respondent No.1 & 2 who are the driver and owner of the offending bus.
11. Relief In the facts and circumstances, Respondent No.1 & 2 are directed to deposit the award amount of Rs.97,638/- with interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 01.03.2007 till realization with Nazir of this Court within 30 days under intimation to the petitioner, failing which they shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Suit No.520/11 - Avinash Chopra vs. Jagtar Singh & Ors. 23 of 24 A copy of this judgement be sent to Respondent No.1 & 2 for compliance within the time granted.
Respondent No.1 & 2 are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount with the Tribunal to the claimant and complete details in respect of calculations of interest etc. in the court within 30 days from today.
Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
Announced in open court (Anoop Kumar Mendiratta) on 05th January, 2016 Judge MACT-1 (Central), Tis Hazari Courts, Delhi.
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