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[Cites 17, Cited by 0]

Delhi District Court

Sh. Rahul Chauhan vs I. Sh. Vijay S/O Sh. Sita Ram on 30 May, 2015

                IN THE COURT OF SHRI NIKHIL CHOPRA,
       PO: MACT (SE­01), SAKET COURTS, NEW DELHI
Suit No. 519/14/13
FIR No.294/12
Police : Sarita Vihar
Rahul Chauhan V. Vijay & Ors.

       Sh. Rahul Chauhan 
       S/o Sh. Yashpal Chauhan
       R/o Village Chauhan Joshi
       PS Rai, Distt. Sonipat, Haryana .           ........... Petitioner
                     VERSUS
i.     Sh. Vijay S/o Sh. Sita Ram
       R/o Village Chingarpura
       Mauja Lahar Kot. Post. Ganj Muradabad
       Distt. Unnao, UP                            ..........Driver
ii.    Sh. Dharamveer S/o Sh. Chunni Lal
       R/o H.No. 480/2, Thakurbari
       Old Faridabad, Haryana                      ......... Owner 
iii.   M/s Sriram General Insurance  Co. Ltd.
       B­331­32, Opp. Escorts Hospital
       Nehru Ground, Neelam Bata Road
       Faridabad, Haryana.                         .........Insurance Co. 
                                                    .........Respondents

Date of filing of detailed accident Report: 27.02.2013 Date on which Award/Judgment was reserved: : 21.05.2015 Date on which Award/Judgment was pronounced: 30.05.2015 Present : Sh. Neelkanth, Ld. Counsel for the petitioner Sh. G.S. Tiwari, Ld. Counsel for R1 & R2 Mohd. Mustafa, Ld. Counsel for Insurance Company Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...1 of 27 AWARD

1. Order disposes off claim petition petition under Section 166 read with Section 140 of the Motor Vehicle Acts, 1988, filed by injured Rahul Chauhan on account of injuries suffered by him in accident dated 26.09.2012.

2. The case of the petitioner is that on 26.09.2012 at about 4.00 a.m., he was going from Sonipat to Faridabad in a vehicle bearing no.DL­1LK­3895. It is stated that respondent no.1 was driving the offending vehicle in a rash and negligent manner and at a high speed. He advised the respondent no.1/driver to take some rest as it was late in the night but he did not pay any heed to his request. When they reached near Sarita Vihar, Apollo Hospital Flyover, a truck, which was moving in front of their vehicle, suddenly applied brakes and the driver of the offending vehicle could not control the speed and forcibly hit the truck from behind due to which the petitioner was struck/crushed under the truck and became unconscious. The petitioner was removed to AIIMS Trauma Centre. He sustained grievous injuries and his both legs were fractured.

3. Respondent No. 1 filed his written statement denying the averments made in the petition. It is stated that he has been falsely implicated in the present case and that he was driving the said vehicle Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...2 of 27 at a normal speed. It is submitted that at the time of driving the vehicle, he was in full control over the vehicle but suddenly a truck stopped in front of his vehicle which resulted in the said accident.

4. Respondent No. 2/owner in his Written Statement denied that the offending vehicle was being driven in a rash and negligent manner or at a high speed. He further denied that at the time of driving the said vehicle, the driver was sleepy. He further stated that the vehicle bearing No. DL­1LK­3895 has been falsely implicated in this case.

5. Respondent no.3/Sriram General Insurance Co. Ltd., filed the written statement stating that the driver of the vehicle was under the influence of alcohol at the time of the accident. The Insurance Company reserved its right to statutory defences and stated that the vehicle was insured vide policy No. 102019/31/12/018286 valid for the period 21.12.2011 to 20.12.2012.

6. Following issues were framed on 24.01.2014;

i) Whether the petitioner suffered injuries in a road vehicular accident that took place on 26.09.2012 due to rash and negligent driving of vehicle bearing registration no. DL­1LK­3895 by respondent no.1?

ii) Whether the petitioner is entitled for any compensation? If so, to what amount and from whom?

iii) Relief.

Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...3 of 27

7. Petitioner examined himself as PW1 and deposed through affidavit that on 26.09.2012 at about 4.00 a.m., he was going from Sonipat to Faridabad in a vehicle bearing no.DL­1LK­3895 which was being driven by respondent no.1 in a rash and negligent manner and at a high speed. He advised the respondent no.1/driver to take some rest as it was late in the night but he did not pay any heed to his request. It is further deposed that when they reached near Sarita Vihar, Apollo Hospital Flyover, a truck, which was moving in front of their vehicle, suddenly applied brakes. The driver of the offending vehicle could not control the speed and forcibly hit the truck from behind due to which the petitioner was struck/crushed under the truck and became unconscious. He was immediately removed to AIIMS Trauma Centre. PW1 deposed that he sustained grievous injuries and his both legs were fractured in the said accident. He proved the final report along with DAR as Ex.PW1/A (Colly); Medical papers as Ex.PW1/B (Colly); Medical bills as Ex.PW1/C (Colly); School certificate as Ex. PW1/D; Copy of Aadhar card as Ex.PW1/E and Disability report as Ex.PW1/F.

8. In his cross examination by Ld. counsel for respondent no.1&2, he denied that the accident took place on account of his own negligence or that there was no negligence on part of R1 in causing the accident which had taken place on 26.09.2012.

Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...4 of 27

9. In his cross­examination by the Ld. Counsel for respondent no.3, he deposed that he had hired the vehicle bearing registration no. DL­1LK­3895 for transportation of buffaloes from Old Faridabad to Sonepat, Haryana. The accident had taken place on 26.09.2012 at Sarita Vihar Flyover, New Delhi. After the accident, he had became unconscious and removed to AIIMS Hospital, New Delhi. He denied that the medical bills placed on record are forged and fabricated bills.

10. Respondent no. 1 has examined himself as RW1 and deposed through affidavit that there was no negligence on the part of respondent and no accident occurred on 26.09.2012 due to rash and negligent driving of the respondent. It is further deposed that the vehicle bearing No. DL­1LK­3895 has been falsely implicated in the present case. The said vehicle was under full control of the respondent but suddenly a truck stopped in front of the vehicle, which was the sole reason for causing the said accident.

11. In his cross­examination by the Ld. Counsel for the Insurance company, he stated that he hired a vehicle bearing no. DL1LK­3895 from respondent no.2 for transporting goods. He was being paid Rs. 8,000/­ per month as salary by Respondent no.2. He admitted that the petitioner was sitting adjacent to him on the front seat at the time of the accident. He admitted that there was no goods lying Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...5 of 27 in the said vehicle at the time of the accident but he volunteered that they had delivered a buffalo at Sonepat and were coming back after its delivery when the accident had taken place. He further admitted that the address or the place of delivery of goods/buffalo was not given to him by respondent no.2 in writing but it was informed orally. He denied that they have not delivered any buffalo at Sonepat, Haryana or that he had taken the petitioner as a passenger for earning money.

12. In his cross­examination by the Ld. Counsel for the Insurance company, he admitted that before the booking, it was agreed between the petitioner and respondent no.2 that after delivering the buffalo at Sonepat, the petitioner will return on the same vehicle to his residence or that the fare of the trip was fixed at Rs.2,200/­.

13. RW2 is the owner of the vehicle and deposed through affidavit that the vehicle bearing No. DL­1LK­3895 has been falsely implicated in the present case and there was no negligence on the part of respondent no.1 as he was driving the vehicle in a normal speed but all of sudden, a truck stopped in front of the vehicle of respondent no.1 which resulted causing the unfortunate accident. He further deposed that the said vehicle was for commercial purpose and at the time of the alleged accident, it was coming after delivery of the buffalo at Sonepat, Haryana.

14. In his cross­examination by the Ld. Counsel for the Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...6 of 27 Insurance Company, he stated that he had given the said vehicle to Sh. Yashpal Chauhan for dropping the buffalo to Sonepat, Haryana. He admitted that at the time of the accident, the vehicle was empty and only the petitioner and respondent no.1 were sitting in the said vehicle.

15. Insurance company examined Sh. Rohit Sharma, Legal Officer as R3W1. He proved his authorisation letter is Ex.R3W1/1 and the policy No.102019/31/12/018286, valid from 21.12.2011 to 20.12.2012 in respect of vehicle No. DL­1LK­3895 in the name of Sh. Dharamvir Singh, as Ex. R3W1/2. He deposed that notice under order 12 Rule 8 CPC was issued the owner/driver through registered AD, and proved copy of notice as Ex.R3W1/3, AD postal receipts as Ex.R3W1/4­5. He further stated that no driving licence has been produced despite service of notice. He deposed that at the time of the accident, the petitioner was travelling in a goods vehicle as a gratuitous passenger and hence, the insurance company is not liable to indemnify the insured.

16. In his cross­examination, the witness denied that the passenger was not a gratuitous passenger or that he was to pay hire/charges to the driver.

17. I have heard learned counsels for the parties and have gone through the relevant records.

18. Time now to deal with the issues.

Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...7 of 27 ISSUE NO. 1 Whether the petitioner suffered injuries in a road vehicular accident that took place on 26.09.2012 due to rash and negligent driving of vehicle bearing registration no. DL­1LK­3895 by respondent no.1?

19. As far as issue no.1 is concerned, the petitioner, in categorical terms, has stated that the vehicle bearing no.DL­1LK­3895 which was being driven by respondent no.1 in a rash and negligent manner and at a high speed. Nothing could be elicited in his cross­ examination, rendering the testimony of the petitioner as incorrect or incredible. The investigation report in FIR No. 294/12 also shows that a triable case under section 279/337/338 IPC was found to be existing against respondent no.1. Even otherwise, it has been held by Hon'ble Supreme Court that 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 injury or death to a human being or damage to property, would make the petition maintainable under section 166 and 140 of the Motor Vehicle Act.1 No roving inquiry into rashness or negligence on the part of the driver, is to be made. In the case of Basant Kaur and others vs. Chattar Pal Singh and Ors.­ 2003 ACJ 369 MP (DB), it was observed that registration of criminal case 1 Kaushnamma Begum and others Vs New India Assurance Company Limited ­2001 ACJ 421 SC Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...8 of 27 against driver of offending vehicle is enough to record finding that the driver of the offending vehicle is responsible for causing the accident. The issue no. 1 is accordingly decided in favour of the Petitioner. ISSUE NO.2:

Whether the petitioner is entitled for any compensation? If so, to what amount and from whom?
20. Since, the Issue No. 1 has been decided in favour of the petitioner, his entitlement as to compensation needs to be worked out.
21. Before proceeding further, the nature and extent of injuries needs to be dilated upon.
22. As per the discharge report dated 11.10.2012, the petitioner was treated for "fracture left femur subtrochant eric closed with fracture shaft femur right". In the CT Scan report dated 23.10.2012, the petitioner was also diagnosed of "communited depressed fracture of right frontal bone" as far as injuries of his head are concerned.
23. As per the discharge report, the petitioner remained in hospital from 26.09.2012 to 11.10.2012 and was operated upon on 26.09.2012 and 03.10.2012 for his left and right femur, respectively.
24. Considering the nature of the injuries, the limbs involved and the resultant inconvenience and pain, a sum of Rs.1,00,000/­ is Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...9 of 27 awarded to the petitioner on account of pain and suffering.
25. Ld. Counsel for the petitioner has contended that the petitioner has suffered 13% permanent disability in relation of both lower limbs and the petitioner is rendered disabled for the rest of his life as he is not able to drive any two­wheeler, run or squat. Ld. Counsel for the petitioner has further contended that his functional disability is as high as 50% as the petitioner is not qualified to secure a desk job and would not be able to secure his career.
26. It is contended by the ld. Counsel for the petitioner that the petitioner was 16 years old at the time of the accident and his career prospects have been substantially diminished.
27. Ld. Counsel for the Insurance on the other hand has contended that the 13% disability of both limbs would imply half the disability in relation to whole body, which is negligible and as such there is no loss of his earning capacity. Ld. Counsel for the Insurance has further contended that the petitioner has not proved any special skill or capability and as such it cannot be said that he would have secured some employment, but for the accident.
28. There is no evidence on record leading to assessment of compensation on this count and certain amount of guestimation cannot be ruled out. However, before proceeding further, case law relating to permanent disability in relation with minors needs to be referred to:
Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...10 of 27
29. In V. Mekhla Vs. M. Malthi Ors.­ 2014, ACJ 1441, Hon'ble Supreme Court, while dealing with a case of 16 years old girl child with 70% permanent disablement, granted a sum of Rs.

30,93,000/­ including Rs. 22,68,000/­ towards loss of earning capacity. The Hon'ble Supreme Court observed as under.:

"The claimant­appellant is aggrieved by the determination of monthly notional income of the deceased by the High Court by taking a meager sum of Rs. 6,000 instead of Rs. 18,000 per month as she is a student studying in the XI Standard holding first rank in her school. She had an excellent career ahead of her but for the accident in which she has sustained grievous injuries and has become permanently disabled. Both the Motor Accidents Claims Tribunal, Poonamallee (for short ' the Tribunal') as well as the High Court of Judicature at Madras failed to take into consideration all the relevant legal aspects of the matter, namely, having arrived at the conclusion that on account of permanent total disablement suffered by the claimant­appellant on account of injuries sustained in the accident her future loss of income should have been assessed taking into consideration her age at the time of accident which was 16 and that she is a brilliant student and could have acquired professional degree and procured a well­paid job either in public or private sector thereby at least she would have earned a sum of Rs. 18,000 per month. Also, the future prospects of revision of wages, dearness allowance, increments and promotional benefits could have been earned by her. However, because of the accident caused by rash and negligent act of the driver of the offending vehicle of the owner­respondent she has been deprived of her potential income to eke out a comfortable livelihood as she has become permanently disabled, this legal and factual aspect has not been taken into consideration both by the Tribunal and the High Court. Therefore, she placed reliance upon the law laid down by this court in the case of Santosh Devi vs. National Insurance Co. Ltd. 2012 ACJ 1428 (SC), having prospects should have been added by both the Tribunal and appellate court to the national monthly income that could be fixed for Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...11 of 27 determination of the loss of earnings as she has become permanently disabled. Therefore, the compensation under this head of loss of earnings is required to be enhanced considerably.
The Ld. Counsel for the appellant further submitted that claimant­appellant has been deprived of the enjoyment of life as well as the marital prospects. Further, the concurrent finding recorded by the High Court in the impugned judgment shows that the appellant on account of the knee injuries and permanent disablement and mal­united knee bones is unable to walk without crutches and she is suffering from severe pain while walking and further the thickness of both the legs is also reduced due to the injuries sustained by her in accident and multiple surgeries were conducted on her. This relevant aspect should have been taken into consideration both by the Tribunal and the High Court. Further, she has to use crutches throughout her life for mobility which she is required to periodically purchase, the cost of which has not been awarded either by the Tribunal or by the High Court. Therefore, the learned counsel for the appellant has requested this court to award a suitable compensation keeping in view the above mentioned facts.
XXXXXXX
17. The fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding the compensation to her. Therefore, taking Rs. 6,000 as monthly national income by the Tribunal for the purpose of awarding compensation under this head is too meager an amount. The Ld. Counsel appearing for respondent No. 2 contended that the appellant can still finish her education and find employment and, therefore, there is no necessity to enhance the amount of compensation under the head of 'loss of income' and 'future prospects'. It is pertinent to reiterate here that the claimant­appellant has undergone and is undergoing substantial pain and suffering due to the accident which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially.
XXXXXX
19. Therefore, in the light of the principles laid down in the aforesaid case, it would be just and proper for this court and keeping in mind her past results, to take Rs. 10,000 as her Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...12 of 27 monthly national income for computation of just and reasonable compensation under the head of loss of income. Further, the High Court has failed to take into consideration the future prospects of income based on the principles laid down by this court in catena of judgment referred to supra. Therefore, the appellant is justified in seeking for re­ enhancement under this head as well and we hold that the claimant­appellant is entitled to 50 per cent increase under this head as per the principle laid down by this court in the case of Santoshi Devi, 2012 ACJ 1428 (SC).
XXXXXXXX The amount of compensation awarded under the head of 'loss of enjoyment of life and marriage prospects' at Rs. 2,00,000 is totally inadequate since her marriage prospects has substantially reduced and on account of permanent disablement she will be deprived of enjoyment of life. Therefore, it would be just and proper to enhance the compensation from Rs. 2,00,000 to Rs. 3,00,000. Insofar as the purchase of crutches periodically, it would be just and proper to award a sum of Rs. 50,000.
Thus, the claimant­appellant in this appeal is entitled to a total amount of Rs. 30,93,000 as compensation with an interest at the rate of 9 per cent per annum based on the principle laid down by this court in Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC), from the date of filing of the application till the date of payment."

30. Ld. counsel for the Respondent No.3 has contended that since the petitioner was not earning, there is no loss of earning and as such there is no necessity for any compensation to be granted on this count. The petitioner side, on the other hand, have contended that the petitioner has lost future prospects to lead a dignified life, as well as future income, on account of disability in both legs. Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...13 of 27

31. Ld. counsel for the petitioner contended that simply because the petitioner was 16/17 years old at the time of the accident, it cannot be assumed that he did not have any future prospects and thus, he can not be deprived of compensation on this count. He further contended that the case like that of petitioner, warrant assessment of notional income and he cannot be treated as non earning person for the purpose of assessment of compensation.

32. In The Divisional Controller, KSRTC Vs. Mahadeva Shetty and Anr.2003/ACJ/1775, Hon'ble Supreme Court observed as under:­ "14. The main principles of law on compensation for injuries were worked out in 19th Century, where railways accidents were becoming common and all actions were tried by Jury. Though the cases have antiquated air it is still useful to refer to them. The necessity that damages should be 'full' and 'adequate' was stresses by the court by Queen's bench in Fair v. London and North­Western Railway Co. 1869) 21 LT 326. The word 'compensation' is derived from Latin work "compensate" meaning "weigh together" or "balance". In Rushton v. National Coal Board (1953) 1 AII. E.R.314 it was observed".

"Every member of this Court is anxious to do all he can do to ensure that the damages are adequate for the injuries suffered, so far as they can be compensated for an injury, and to help the parties and others to arrive at a fair and just figure."

15. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which to it appears to be 'just'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...14 of 27 injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance to the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for the mental and physical loss, his or her life may h ave been shortened or that he or she cannot in joy life which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has be to be borne in mind that the compensation is not expected to be a wind fall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measures of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression 'which appears to it to be just" a side discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and nor­arbitrary. If it is not so it cannot be just"

33. In R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and OthersI (1995/ACC/281, Hon'ble Supreme Court observed as under:­ Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...15 of 27 "9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non­pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non­pecuniary damages are concerned, they many include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment frustration and mental stress in life.
10. It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a life long handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.

In the case Ward v. James [1995] 1 AII E.R. 563 it was said:

Although you cannot give a man so gravely injured much for his "lost years", you can, however, Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...16 of 27 compensate him for his loss during his shortened span, that is, during his expected "years of survival". You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may owing to brain injury, be rendered unconscious for the rest of his days, or, owing to back injury, be unable to rise from his bed. He has lost everything that makes life worth­while. Money is no good to him. Yet judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well high insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern, and they keep it in line with the change in the value of money."
34. In R. Venkata Ramana and Anr. Vs. The United India Insurance Company Ltd. and Ors.
2013/ACJ/2641, Hon'ble Supreme Court observed as under:
"4. After considering the evidence and looking at the injuries suffered and physical condition of the injured, namely, Rajanala Ravi Krishna, who was hardly 17 years old at the time of the accident, by way of compensation, the tribunal awarded a sum of Rs. 18,75,800/­ with the interest @ 7.5% from the date of presentation of the petition till realization of the said amount.
7. The learned Counsel appearing for the Appellants had submitted that the Tribunal had awarded just and proper compensation which ought not to have been reduced by the High Court. The learned Counsel had taken us through the order passed by the Tribunal and the relevant evidence. Upon perusal of the evidence, we find that the son of the Appellants, as a result of the accident, is suffering from 80% permanent disability. The Neurologist who had been examined by the Tribunal had stated that there was no chance of any improvement in the health of the injured. Upon perusal of the evidence, we find that Rajanala Ravi krishna, as a Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...17 of 27 result of the accident, tracheotomy and other surgeries performed on him, he has practically become bedridden, except for the fact that he can be moved in a wheel chair. He requires continuous nursing because he is unable to perform his day to day activities. In the circumstances, the learned Counsel had submitted that the amount of compensation awarded by the Tribunal was just and proper.
8. On the other hand, the learned Counsel appearing for the Respondent Insurance Company had submitted that the Tribunal had awarded huge amount of compensation to a person who was not having any income and was only a student, whose future was not known to anyone. In the said circumstances, according to the learned Counsel, the High Court had rightly considered the judgment delivered by this court in the case of Sarla Verma v. Delhi Road Transport Corporation MANJU/SC/0606/2009 : 2009 (6) SCC 121 while awarding just amount of compensation. He had supported the judgment delivered by the High Court and had submitted.
9. Upon hearing the learned Counsel and looking at the impugned judgment and the order of the Tribunal as well as the evidence adduced on behalf of the claimants, we are of the view that the Tribunal was not at all lenient in the matter of awarding the compensation and the compensation awarded by the Tribunal was just and proper. "

35. In view of the above Judicial Pronouncements, the contentions of the ld. Counsel for the respondent no. 3 that the petitioner is not entitled to any compensation on account of loss of future prospectus/income, can not be accepted. In V. Mekla the Hon'ble Supreme Court, while dealing case of 16 years old student, rejected the contention of the insurance company vis­a­vis the compensation under the head of loss of income and future prospectus Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...18 of 27 while holding that the accident had rendered both the legs as dysfunctional, the scope of her future prospects have been affected substantially. The Hon'ble Supreme Court further observed that it would be just and proper to take Rs.10,000/­ as the monthly notional income, for the purpose of compensation under the head of loss of income. The Hon'ble Supreme Court further held that the petitioner is also entitled to 50% increase under the said head.

36. Considering the above, absence of any evidence in relation with the earning capacity of the petitioner cannot be a ground to non­suit the petitioner insofar as claiming for losses of future income is concerned. At the same time, the contention of Ld. Counsel for the Insurance cannot be overlooked insofar as the earning capacity of the petitioner is concerned. True that the petitioner has not been able to prove any special skill, knowledge or capability or any qualification, the fact that the petitioner could have secured an employment and earned his livelihood, using his four limbs, cannot be lost in oblivion. Even if the petitioner is considered to be not qualified enough to secure any desk job/office job, the petitioner's chances of getting employment involving physical labour cannot be neglected. Having regard to the age of the petitioner, it can safely be concluded that petitioner could have, for the least, secured a job earning him minimum wages for an unskilled person. As such the minimum Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...19 of 27 wages for an unskilled person as applicable to the territory of Delhi, on the date of the accident i.e. Rs. 7,020/­ is treated as notional income of the petitioner.

37. Considering that the petitioner was 17 years old at the time of the accident and having regard to the guidelines of the Hon'ble Supreme Court in Sarla Devi V. DTC, the petitioner is also entitled to future prospects, thereon, to the tune of 50%. As such the notional income comes to Rs.10,530/­.

38. Adverting to loss of future income, the functional disability of the petitioner needs to be assessed. As per the disability certificate placed on record, the petitioner has suffered 13% disability in relation of both lower limbs. Having regard to the fact that the petitioner is not qualified enough to secure a desk job and considering the fact that he would have to earn his livelihood with the use of his limbs and further taking into consideration the fact that the lower limbs of the petitioner have been affected, the functional disability is assessed to be 25%. The net loss of future income per month accordingly comes to Rs.2,632.50.

39. Having regard to the fact that the petitioner was 17 years old at the time of the accident, the multiplier of 18 is to be applied. The net loss comes to Rs.5,68,620/­ (2,632.50 x 12 x 18).

40. A sum of Rs.50,000/­ is awarded to the petitioner on the Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...20 of 27 account of loss of enjoyment of life.

41. Petitioner has proved medical expenses of Rs.21,072/­ and as such, is entitled to the same.

42. Considering the nature of injury and the limbs involved, the necessity of an attendant for atleast 8 months can be inferred. The petitioner is awarded a sum of Rs.40,000/­ towards attendant charges.

43. A sum of Rs.20,000/­ is awarded towards special diet and a sum of Rs.10,000/­ is awarded towards conveyance.

44. The petitioner claimant is, thus, entitled to following compensation:­ Head of compensation Amount (in Rs.) Loss of Income 5,68,620/­ Pain & Suffering 1,00,000/­ Medical Expenses 21,072/­ Attendant charges 40,000/­ Special Diet 20,000/­ Conveyance Charges 10,000/­ Loss of enjoyment of life 50,000/­ Total 8,09,692/­

45. Before proceeding further, the contention of Ld. Counsel for the insurance needs to be dilated upon. It is the contention of the Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...21 of 27 Ld. Counsel for the Insurance Company petitioner can not be regarded as the owner of goods for the purpose of compensation and liability under the contract of Insurance inasmuch as there were no goods lying at the time of the accident. He has relied upon a judgment National Insurance Co. Ltd. Vs Aishabi and Anr.­AIR 2007 Kant 155, contending that even if the petitioner was returning after delivering the goods, the petitioner can not be treated as traveling as owner of the goods in the vehicle and as such the liability cannot be saddled upon the insurance.

46. In National Insurance Co. Ltd. Vs Aishabi and Anr., while dealing with the claiming of the compensation filed by the mother of the deceased, who was returning in the same vehicle after unloading fish boxes, the Hon'ble High Court of Karnataka observed that the same cannot be treated as continuation of his journey.

47. Ld. Counsel for the petitioner, on the other hand, has contended that there was a clear understanding between the petitioner and the transporter that the petitioner would be returning in the same vehicle and has further relied upon the decision in the matter of Vasant Waman Aher Vs Kalu Jana Gaveet And Ors­ in 1997(2) T.A.C. 865 (Bom.). He has further contended that considering the nature of the enactment, liberal view, favourable to the petitioner is to be taken. However, having regard to the observations made in the Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...22 of 27 National Insurance Co. Ltd. Vs Aishabi and Anr., it cannot be accepted that the petitioner was travelling as owner of goods, in the vehicle.

48. Ld. Counsel for the Insurance has contended that the Insurance is entitled to complete exoneration.

49. The Apex Court in the matter of National Insurance Co. Ltd. V. Baljit Kaur and other - 2004 ACJ 428, has observed as under:­ "In Asha Rani, 2003 ACJ 1 (SC), it has been noticed that sub­clause (i) of clause (b) of sub­section (1) of section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a thrird party caused by or arising out of the use of vehicle in a public place. Furthermore, an owner of a passenger­carrying vehicle must pay premium for covering the risk of the passengers travelling in the vehicle. The premium in view of the 1994 amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise.

It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in section 147 with respect to persons other than the owner of the goods or his authorised representative remains the same. Although, the owner of the goods or his authorised representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people.

The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...23 of 27 fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this court in Satpal Singh, 2000 ACJ 1 (SC). The said decision has been overruled only in Asha Rani, 2003 ACJ 1 (SC). We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of section 168 of the Motor Vehicles Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding."

50. As such the insurance would be at liberty to recover the amount of compensation and interest thereon, from respondent no. 1 & 2 after it is paid to the petitioner.

51. Respondent no.1 is the driver and principal Tort Feasor and respondent no.2 is the owner. They are jointly and severally liable to pay the compensation to the petitioners. The insurance company, being the indemnifier/insurer of the offending vehicle at the time of the accident, is directed to deposit the said compensation in the name of the petitioner together with interest @ 9% per annum from the date of filing of the DAR petition i.e. 27.02.2013 till the actual date of Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...24 of 27 payment, with SBI, Saket Court Complex Branch, New Delhi, within 45 days, failing which the insurance company would also be liable to pay interest @ 12% per annum for the period of delay. Relief

52. Accordingly, a compensation of Rs.8,09,692/­ is awarded to petitioner with interest @ 9% per annum from the date of filing of DAR petition i.e. 27.02.2013.

53. Respondent no.3/Insurance company is directed to directly deposit the cheques with State Bank of India, Saket Court branch 45 days from today and in case of default, penal interest @12% per annum shall be payable for the period of delay. The Bank shall be obliged to open a savings account in the name of Petitioner, upon completion of necessary formalities by the Petitioner. Upon deposit by the Insurance, the Insurance company would be at liberty to recover the amount, together with interest @9% per annum, from the date of deposit till the date of actual realisation, from the respondent no.1&2, without filing any fresh suit/proceedings.

54. Out of the above amount, a sum of Rs.2,00,000/­ be released to the petitioner and the rest be maintained in the form of FDRs, in the manner, provided hereinafter, in the tabulated form :­ Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...25 of 27 Sr Name of Amount Amount to Amount to be Interest­ Whether no the Awarded be released deposited /maintained in payable or liable to Petitioner / to the the FDR­ with break up be credited in the A/c Claimant Petitioner/ and duration of the Claimant Petitioner/Claimant on monthly basis 1 Rahul Rs. Rs. Rs.6,09,692/­ + interest Yes 8,09,692/­ 2,00,000/­ amount accrued on Rs. 

                      +                              8,09,692/­   i.e.   the     amount 
                      Interest   @                   awarded to Petitioner 
                      9%                              Amount   of   the  Term
                      accrued   on                    fixed Deposit
                      the     said 
                                                      30%   of   the  3 years
                      amount 
                                                      above amount­
                      awarded to 
                      the                             30%   of   the  5 year
                      Petitioner                      above amount­

                                                      40%   of   the  7 years
                                                      above amount­

55. The Bank Account/Fixed Deposits are subject to and to be regulated by the following conditions :­

a) Interest on the fixed deposit be paid to the Petitioner / Claimant by automatic credit of interest in their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.

b) Half yearly statements of account to be filed by the bank, with this court.

c) Bank to issue Photo Identity card to Petitioner(s) / Claimant(s) for facilitating their identity and the withdrawal from the said account be permitted subject to due verification and submission of age proof of the minors.

d) No cheque book be issued to Petitioner / Claimant without permission of the Court. Original Pass book shall be given to the Petitioner(s) / Claimant(s) together with the copies of the Suit No.519/14 Rahul Chauhan V. Vijay & Ors. Page...26 of 27 FDRs.

e) Original Fixed Deposit Receipts to be retained by the bank in safe custody and be handed over to Petitioner(s) / Claimant(s) on expiry of the term/maturity of the Fixed Deposit.

f) No loan, advance or withdrawal to be permitted/allowed in respect of the Fixed Deposits, without the permission of the Court.

g) The Bank Shall transfer the savings account to any other branch of the State Bank of India, as per the request and convenience of the Petitioner / Claimant.

h) Petitioner / Claimant to furnish all relevant documents for opening of the saving Bank Account and Fixed Deposit Receipts, with the Branch Manager, State Bank of India, Saket Courts Complex Branch.

56. Copy of this award be given to the respondents as well as to the petitioner free of cost. Copy of this award be also sent to SBI, Saket Court Complex Branch for Record and compliance.

57. List on 17.07.2015 for compliance.

Announced in open Court. 

Dated: 30.05.2015                           (NIKHIL CHOPRA)
                                  PO: MACT­01 (SE)/SAKET COURTS,
                                               NEW DELHI




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