Delhi District Court
) Ravi vs ) Sh. Pradip (Driver) on 21 October, 2013
1
IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS
JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
(M-59A/12)
(Grievous Injury & Simple injury case)
1) Ravi
S/o Sh. Kaval Singh
R/o. H.No. 138-139, Apne Colony,
Alipur, Delhi.
2) Smt. Chandro
W/o Sh. Surtea
R/o. H.No. 138-139, Apne Colony,
Alipur, Delhi.
3) Master Mohit
S/o Sh. Sunil
R/o. H.No. 138-139, Apne Colony,
Alipur, Delhi.
4) Sh. Sunil
S/o Sh. Raghubir Singh
R/o. H.No. 138-139, Apne Colony,
Alipur, Delhi.
............Petitioners
Versus
1) Sh. Pradip (Driver)
S/o Sh. Bhale Ram
R/o. Gumana, Cohana Distt. Sonipat,
Haryana.
2) Sh. Gulab Singh, (Owner)
R/o. Vill. Rabhra, Distt. Sonepat,
Haryana.
3)The New India Assurance Company Ltd.
Level 5, Tower-II,Jeevan Bharti Building,
124, Connaught Circus,
New Delhi.
---------Respondents
2
Date of filing of DAR---25.07.2012
Date of decision------- 21.10.2013
(DAR U/s 166 and 140 of Motor Vehicles Act
for grant of compensation)
******************************************
JUDGMENT:-
1 DAR has been filed with regard to the accident occurred on 27.7.2011 at about 10.15 PM when all the injured persons were travelling on motorcycle No. DL 8SNA 5737 (TVS) and when they reached on red light of 80 foota road then one tempo bearing No. HR 69A 3001 which was being driven in the direction towards Narela while crossing the GT Road hit the motorcycle of injured persons. The said tempo was being driven in rash and negligent manner. The impact of the hit was so forceful that the all the injured persons fell on the road alongwith motorcycle. The accident occurred due to the rash and negligent driving of the respondent No.1 who was driving the offeinding vehicle withut following the norms of the traffic. A criminal case under section 279/338 IPC was registered against respondent no.1 vide FIR No. 260/11 in police station Alipur.
2. Petitioners claimed compensation alongwith interest as compensation from the respondents being driver and owner and insurance company under various pecuniary and non pecuniary heads.
3. Respondents no. 1 and 2 filed their separate written statements wherein they denied all allegations against them. Respondent No. 3/Insurance company filed separate WS wherein it denied all allegations and evaded its liability on technicalities.
34. On the basis of pleadings of the parties, following issues were framed on 22.8.2012:-
1.Whether the Ravi son of Kaval Singh, Chadro wife of Suretea, Mohid son of Sunil and Sunil son of Raghubir Singh suffered injuries due to road accident on 27.7.2011 at about 10.15 PM at 80 Foota Red Light, GTK Road, Delhi within the jurisdiction of PS Alipur due to rash and negligent driving of Tempo bearing No. HR 69A 3001 being driven by its driver ? OPP
2.Whether the injured are entitled to compensation, if so, to what an extent and from which of the respondents? OPP
3.Relief
5. In support of their case the injured/petitioners examined four witnesses in all:
PW1 is Mr. Sunil, PW2 Sunil on behalf of his minor son being natural guardian, PW3 Mr. Ravi and PW4 Smt. Chandro. They all being injured and eye witnesses to the accident tendered their evidence by way of their respective affidavits and deposed the manner in which the accident had taken place. Thereafter PE was closed.
No evidence was led on behalf of respondents despite opportunity being granted. Thereafter RE was closed.
6. I have heard counsel for parties and gone through the record. My decision on the above mentioned issues is as under:
Issue no.1:-
7. The proof required in MACT claim petition are less than the proof 4 required to criminal offence or a civil case. The principles to be followed in the case of motor accident claims has been laid down by the Hon'ble High Court of Guwahati in case cited as Renu Bala Paul and Ors. vs. bani Chakraborty and Ors. 1999 ACJ 634 wherein it is held that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
In N.K.V. Bros (P) Ltd. vs. M. Karumai Ammal & Ors. AIR 1980 SCC 1354, Hon'ble Supreme Court has observed as under:-
"Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
8. The police has prosecuted the respondent no.1 for causing the accident due to rash and negligent driving of the offending vehicle i.e. Tempo bearing No. HR 69A 3001 by filing the charge sheet. PW1 to 4 being injured/eye witnesses of 5 accident in their statement as PW1 to PW4 specifically narrated the way and manner in which the accident took place and corroborated their story by way of affidavits. Witnesses have clearly stated that the accident took place due to rash and negligent driving of offending vehicle. Counsel for insurance company as well as driver and owner, has submitted that driver has been falsely implicated in this case. The police has filed the DAR report wherein the driver of the offending vehicle has been prosecuted for driving the offending vehicle in rash and negligent manner and causing the accident in question, but the driver cum owner are disputing the involvement of vehicle with the accident. R1 have not made any complaint to the higher authorities. R1 did not knew the injured members prior to the date of accident. It is not the case either the police official or injured nurtured any grudged against him. He has not lodged any police complaint to any forum superior to the IO or SHO against false implication, R1 being the best witness to depose contrary to the eye witnesses/PW1 to 4 but he chose not to lead any evidence, hence adverse inference is drawn against him. Hence this issue is decided in favour of petitioners and against the respondents.
Issue no.2:-
(Claim regarding injured Ravi and Smt. Chandro)
9 As per the medical documents placed on record both the injured persons namely Ravi and Smt. Chandro received simple injuries on their person due to the accident. Both the injured has placed on record few bills. The MLCs pertaining to both the injured namely Ravi and Smt. Chandro bearing No. Cr No. 22944 and CR No. 22940 contains the status of injury sustained by them as simple injury. Hence in view of same, I grant a lumpsum of Rs. 10,000/- each to both the injured persons as compensation.
(Claim regarding minor injured Master Mohit) 6
10. Minor Injured Mohit was taken to the hospital after sustaining injuries on 27.7.2011 and injuries suffered were grievous in nature.
11. Hon'ble Supreme Court in Govind Yadav vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has observed as under:
"The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term "compensation" used in section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses' make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under Sections 166 of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of the compensation in such cases should invariably include pecuniary andnon- pecuniary damages.
In R.D. Hattangadi v. Pest Control (India) Private Limited MANU/SC/0146/1995: (1995) 1 SCC 551, this Court while dealing with a case 7 involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v. James (1965) - All ER 563, Halsbury's Laws of England, 4th Edition, Volume 12 (page 446) and observed:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance, (ii) loss of earning of profit up to the date of trial, (iii) other material loss. So for non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future, (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e, on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life".
In the same case, the court further observed:
"In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards".
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka MANU/SC/0803/2009: (2009) 6 SCC 1, the three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs. 15 lakhs to Rs. 1 crore, the Bench made the following observations which can appropriately be applied for 8 deciding the petitions filed under Section 166 of the Act:
"At the same time we often find that a person injured in an accident leaves his family in greater distress vis-...-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution ensures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity".
In Reshma Kumari v. Madan Mohan Manu/SC/1303/2009: (2009) 13 SCC 422, this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the Judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
In Arvind Kumar Mishra v. New India Assurance Co. Limited Manu/SC/0777/2010: (2010) 10 SCC 254, the Court considered the plea for enhancement of compensation made by the Appellant, who was a student of final year of engineering and had suffered 70% disablement in a motor accident. After noticing factual matrix of the case, the Court observed:
"We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as ho was insofar as money can. Perfect 9 compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered".
In Raj Kumar V. Ajay Kumar Manu/SC/1018/2010: (2011) 1 SCC 343, the court considered some of the precedents and held:
"The provision of the Motor Vehicles Act, 1988, ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as for as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and hie inability to earn as much as he used to earn or could have earned".
In our view, the principles laid down in Arvind Kumar Mishra vs. New India Assurance Company Ltd. (supra) and Raj Kumar vs. Ajay Kumar (supra) must be followed by all the Tribunals and the High Court in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident".
The heads under which compensation is awarded in personal injury cases are the following:
10Pecuniary damages (Special damages) I)Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure.
II)Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising;
a) Loss of earning during the period of treatment;
b) Loss of future earnings on account of permanent disability.
iii)Future medical expenses.
Non Pecuniary damages (General damages)
iv)Damages for pain suffering and trauma as a consequence of the injuries.
v)Loss of amenities (and/or loss of prospects of marriage).
Loss of expectation of life (shortening of normal longevity).
Pecuniary damages (Special damages):
Medical Expenses
12. The minor injured received grievous injuries all over his body. After the accident the injured fell down and received serious injuries over whole of the body particularly wound over right side of forehead and abrasion and swelling on nose.
The injured was taken to Satyawadi Raja Harish Chandra hospital, Narela, Delhi and ws treated vide MLC No. 840/2011. The petitioner has placed on record the medical bills on the record which are amounting to Rs. 2120/- which remained unchallanged on record. In view of same, the actual medical expenses Rs. 2120/- is granted to the minor injured/petitioner.
Special diet and conveyance charges
13. No proof of spending on conveyance and special diet are brought on record. However, it is a fact that normally in case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc is provided instead of or in 11 addition to the normal food. He must have visited hospital in some transport but in absence of any evidence in this regard and after considering her injuries, period of hospital admission and treatment etc., I am of the view that maximum petitioner can be paid lump sum of Rs. 5,000/- towards special diet and Rs. 5,000/- towards conveyance charges.
Loss of Income:
14. Petitioner has suffered grievous injuries all over his body as per MLC and other medical documents placed on record. After the accident the injured fell down and received serious injuries over whole of the body particularly wound over right side of forehead and abrasion and swelling on nose. The injured was taken to Satyawadi Raja Harish Chandra hospital, Narela, Delhi and was treated vide MLC No. 840/2011. It is submitted that the injured was a student of fourth class and due to the accident he suffered the loss of his studies for several months but no proof regarding the contention has been proved on record by the PW4 who deposed on behalf of minor injured being his father and natural guardian. Further it is stated that he was possessing a very good health at the time of accident and due to the said accident, the physique of the petitioner was deteriorated. The petitioner has failed to prove any proof pertaining to his loss of studies. In such situation, relying upon the Judgment passed by Hon'ble Mr. Justice G.S.Singhvi and Hon'ble Mr. Justice V.Gopala Gowda of Hon'ble Supreme Court in case titled Kishan Gopal & Anr. Vs. Lala & Ors. In Civil Appeal No. 7137 of 2013 passed on 26th August 2013 wherein the notional income of victim is considered to be 30,000/-. Hence in view of above, I consider the yearly notional income to be Rs. 30,000/- and I grant him loss of notional income for the period of 3 months i.e. Rs. 7500/- (30,000 divided by 12 X 3 = 7500/-).
Non-pecuniary damages (General damages):
12Pain and Sufferings etc:
15 As per the case of Govind Yadav (Supra), it is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person as a result of accident. Even if the victim of accident gets out of grievous injuries, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the injured was a boy of 10 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, ends of justice will be met by awarding him a sum of Rs. 30,000/- in lieu of pain, suffering, inconvenience, frustration, hardship and trauma caused due to injuries suffered in accident. In view of above, the injured is entitled to the compensation amounting to Rs 49,620 which in detail are as follows:
A) Pecuniary damages (Special damages):
a) Medical expenses-----------------------------------------Rs. 2,120/-
c) Special diet ------------------------------------------------ Rs. 5,000/-
d) Conveyance charges ------------------------------------Rs. 5,000/-
e) Loss of income---------------------------------------------Rs. 7,500/-
B) Non-pecuniary damages (General damages):
a) Pain, suffering, inconvenience-------------------------Rs. 30,000/-
frustration, hardship and trauma
__________________
Total Rs. 49,620/-
13
(Claim regarding injured Sunil)
16 Injured/Petitioner Sunil was taken to the hospital after sustaining injuries on
27.7.2011 and injuries suffered were grievous in nature.
17. Hon'ble Supreme Court in Govind Yadav vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has observed as under:
"The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term "compensation" used in section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses' make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under Sections 166 of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of the compensation in such cases should invariably include pecuniary andnon- pecuniary damages.
In R.D. Hattangadi v. Pest Control (India) Private Limited 14 MANU/SC/0146/1995: (1995) 1 SCC 551, this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v. James (1965) - All ER 563, Halsbury's Laws of England, 4th Edition, Volume 12 (page 446) and observed:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance, (ii) loss of earning of profit up to the date of trial, (iii) other material loss. So for non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future, (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e, on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life".
In the same case, the court further observed:
"In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards".
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka MANU/SC/0803/2009: (2009) 6 SCC 1, the three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs. 15 lakhs to Rs. 1 crore, the 15 Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
"At the same time we often find that a person injured in an accident leaves his family in greater distress vis-...-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution ensures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity".
In Reshma Kumari v. Madan Mohan Manu/SC/1303/2009: (2009) 13 SCC 422, this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the Judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
In Arvind Kumar Mishra v. New India Assurance Co. Limited Manu/SC/0777/2010: (2010) 10 SCC 254, the Court considered the plea for enhancement of compensation made by the Appellant, who was a student of final year of engineering and had suffered 70% disablement in a motor accident. After noticing factual matrix of the case, the Court observed:
"We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in 16 the same position as ho was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered".
In Raj Kumar V. Ajay Kumar Manu/SC/1018/2010: (2011) 1 SCC 343, the court considered some of the precedents and held:
"The provision of the Motor Vehicles Act, 1988, ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as for as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and hie inability to earn as much as he used to earn or could have earned".
In our view, the principles laid down in Arvind Kumar Mishra vs. New India Assurance Company Ltd. (supra) and Raj Kumar vs. Ajay Kumar (supra) must be followed by all the Tribunals and the High Court in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident".
The heads under which compensation is awarded in personal injury cases are the following:
17Pecuniary damages (Special damages) I)Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure.
II)Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising;
a) Loss of earning during the period of treatment;
b) Loss of future earnings on account of permanent disability.
iii)Future medical expenses.
Non Pecuniary damages (General damages)
iv)Damages for pain suffering and trauma as a consequence of the injuries.
v)Loss of amenities (and/or loss of prospects of marriage).
Loss of expectation of life (shortening of normal longevity).
Pecuniary damages (Special damages):
Medical Expenses
18. The petitioner has stated that he received grievous injuries all over his body as per MLC No. 839/2011 and other medical documents placed on record. Due to the accident petitioner suffered serious injuries as per MLC placed on record with DAR report. After the accident he was shifted to Satyawadi Raja Harish Chandra Hospital, Narela, Delhi where he got medical treatment. Though he got medical treatment from government hospital but he spent money on medicines for which he has placed on record certain medicine bills which are proved on record collectively as Ex.PW1/1 amounting to Rs. 3466/- which remained unchallanged on record. In view of same the amount of Rs. 3466/- is granted to the injured towards actual medical expenses.
Special diet and conveyance charges 18
19. No proof of spending on conveyance and special diet is brought on record but it is a fact that normally in case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc is provided instead of or in addition to the normal food. He must have visited hospital in some transport but in absence of any evidence in this regard and after considering her injuries, period of hospital admission and treatment etc., I am of the view that maximum petitioner can be paid lump sum of Rs. 7,000/- towards special diet and Rs. 7,000/- towards conveyance charges.
Loss of Income:
20. Petitioner has stated that he received grievous injuries all over his body as per MLC No. 839/11 and other medical documents placed on record. Due to the accident petitioner suffered serious injuries as per MLC and medical treatment papers placed on record. After the accident he was shifted to Satyawadi Raja Harish Chandra Hospital, Narela, Delhi where he got medical treatment. Furthermore it is submitted by the petitioner that at the time of accident was working but no proof regarding the qualification, occupation or his earnings has been proved on record by the PW2. Hence as no relevant proof of income has been proved on record by the counsel of the injured at the time of accident, in these circumstances relying upon the precedent of Hon'ble Delhi High Court in Sajha Vs. National Insurance Co. 2010 ACJ 627 and New India Assurance Co. Vs. Raja Ram MAC. APP. No. 175/06 decided on 25.8.2009 raising a legal fiction, the assumed income of injured is treated based upon Minimum Wages applicable to a unskilled labour. Hence I consider the deceased to be earning minimum wages of Rs. 6422/- per month for the purpose of calculation of loss of income and in view of the nature of injuries sustained by the injured, I grant him loss of income for the period of 3 months which comes to Rs. 19,266/- (6422 X 3 = 19,266/-).
19Non-pecuniary damages (General damages):
Pain and Sufferings etc:
21 As per the case of Govind Yadav (Supra), it is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person as a result of accident. Even if the victim of accident gets out of grievous injuries, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the injured was a man of 32 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, ends of justice will be met by awarding her a sum of Rs. 30,000/- in lieu of pain, suffering, inconvenience, frustration, hardship and trauma caused due to injuries suffered in accident.
22 In view of above, the injured is entitled to the compensation amounting to Rs. 66,732/- which in detail are as follows:
A) Pecuniary damages (Special damages):
a) Medical expenses-----------------------------------------Rs. 3,466/-
c) Special diet ------------------------------------------------ Rs. 7,000/-
d) Conveyance charges ------------------------------------Rs. 7,000/-
e) Loss of income---------------------------------------------Rs. 19,266/-
B) Non-pecuniary damages (General damages):
a) Pain, suffering, inconvenience-------------------------Rs. 30,000/-
frustration, hardship and trauma
20
__________________
Total Rs. 66,732/-
23 As admittedly, the offending vehicle i.e bearing No. HR 69A 3001 was
duly insured vehicle with the insurance company i.e. respondent No.3 at the time of accident. Furthermore the driver of the offending vehicle i.e. respondent No.1 was having a valid driving licence to ply the offending vehicle. Hence there is no breach of terms of policy at the time of accident. In view of same, the insurance company/R3 is liable to give the compensation amount to all the four injured persons.
24 In view of the above discussions, this issue is decided in favour of petitioners/injued persons by holding that they are entitled to get the above mentioned total compensation from the respondent No.3/insurance company only, hence this issue is accordingly decided in favour of all the four injured persons and against the insurance company.
Relief 25 Petitioners are entitled to a sum of Rs. 10,000/- to injured Ravi, Rs. 10,000/- to injured Chandro, Rs. 49,620/- to minor injured Mohit and Rs. 66,732/- to injured Sunil alongwith interest @ 9% as per the judgment in case New India Assurance Co. Ltd Vs Bhudhia Devi and others reported in 2010 ACJ 2045, from filing of DAR i.e 25.7.2012 till the payment is made by the respondent No. 3/insurance company within 30 days from the date of this award alongwith accrued interest. The said amount be deposited and it be paid to the injured persons through their saving bank accounts.
2126 Copy of this judgment be given to petitioner and counsel for respondents.
27 Put up for payment on 19.11.2013.
Announced in the open (D.K. MALHOTRA)
Court on 21.10.2013 JUDGE, MACT (NORTH-II)
DELHI
22
M-59A/12
21.10.2013
Pr. Counsel for the parties.
Evidence closed.
Final arguments heard.
Vide separate judgment, petition stands disposed off. Put up for payment on 19.11.2013.
Announced in the open (D.K.MALHOTRA)
Court on 21.10.2013 JUDGE, MACT (NORTH-II)
DELHI