Delhi District Court
Sh.Vikram @ Vikramjeet vs Sh.Abhishek S/O Sh.Sunil Kumar Gupta on 31 August, 2016
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No.42/10
Unique Case ID No.02401C-0064082010
Sh.Vikram @ Vikramjeet
S/o Shri Avtar Singh,
R/o E-16/125, Khalsa Nagar,
Padam Singh Road, Karol Bagh, New Delhi
......PETITIONER
VERSUS
1. Sh.Abhishek S/o Sh.Sunil Kumar Gupta,
R/o B-5/88, Sector-3, Rohini, Delhi ........Driver
2. Sh.Sunil Kumar Gupta S/o R.S.Gupta,
R/o B-5/88, Sector-3, Rohini,
Delhi ........Owner
3. The New India Assurance Company Ltd.
2nd Floor, Jeevandeep Building No.8,
Parliament Street, New Delhi-110 001 ........Insurer
.......RESPONDENTS
Date of filing of Claim Petition : 09.09.2010
Arguments heard on : 23.08.2016
Judgment pronounced on : 31.08.2016
JUDGMENT
1. Present claim petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs.37,00,000/-
Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 1 of 47(Rupees Thirty Seven Lakh Only) in respect of injuries sustained by petitioner in a motor vehicular accident.
As per case of petitioner, on 05.08.2009 at about 11.00PM he was proceeding on motorcycle bearing registration No.DL 4 SAC 3375 along with his friend for purchasing vegetables. Near Kundan Dhaba within the jurisdiction of PS Prasad Nagar, the motorcycle on which petitioner was riding was hit by a car bearing registration no.DL 8CNA 2313 driven by respondent no.1(minor) in a rash and negligent manner. Consequently, the petitioner sustained grievous injuries and was admitted at Sir Ganga Ram Hospital. DD No.9A dated 06.08.2009 U/s 279/338 IPC r/w Section 4/181 M.V. Act was registered at PS: Prasad Nagar, Delhi regarding the accident.
It is further the case of petitioner that he was aged about 24 years at the time of accident and earning Rs.23,000/- per month as a Railway Contractor.
2. In the Written Statement filed on behalf of Respondent No.1 & 2 (driver and owner of the offending vehicle No.DL 8CNA 2313), the manner of accident as alleged by the petitioner was denied. It was submitted that when the car of Respondent No.2 reached near Saraswati Marg Chowk, it was stopped due to some technical fault. Further, the motorcycle of petitioner bearing registration no. DL-4S-AU-3375 which was driven in a rash and negligent manner struck the stationary car. Consequently, car of Respondent No.2 was damaged from left Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 2 of 47 side and the petitioner fell down and sustained injuries due to his own negligence. It was further claimed that Respondent No.1 has been falsely implicated despite the fact that he was sitting near the seat of driver and the car was stationary due to technical fault at the relevant time. The accident was further stated to have been caused as the petitioner was not having a driving licence and had consumed liquor at the time of alleged accident as per MLC. It was also submitted that petitioner was not wearing a helmet at the time of accident. It was also claimed that petition is bad for non-joinder and misjoinder of necessary parties as insurer of motorcycle had not been impleaded. The offending vehicle was further stated to be insured with respondent no.3.
In the written statement filed on behalf of Respondent No.3 The New India Assurance Company Ltd. , it was submitted that the insurance company shall not be liable if the driver was not holding a valid driving licence or was otherwise disqualified from possessing the same. The petition was further stated to be bad for mis-joinder and non-joinder of owner, driver and insurer of the motorcycle. However, it was admitted that a vehicle with Engine No.1147423 and Chassis no.133934 was insured for the period 09.11.2008 to 08.11.2009 which covers the date of accident. It was further submitted that the compensation claimed was excessive and exorbitant.
3. On the pleadings of the parties, following issues were Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 3 of 47 framed for consideration vide order dated 20.10.2010 by ld. Predecessor:
(i) Whether the petitioner had suffered grievous injuries in road traffic accident on 05.08.2009 due to rash and negligent driving of the vehicle No.DL 8 CNA 2313 by Respondent no.1?
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
4. In support of the claim, four witnesses were examined, namely PW1 Vikram; PW2 Manoj Kumar (alleged eyewitness); PW3 ASI Khem Chand and PW4 Roshan Lal, Asstt. Ahlmad, Juvenile Justice Board-II.
PW1 Vikram testified on the lines of claim petition and further proved the attested copies of criminal case record (Ex.PW1/1 colly.), medical bills (Ex.PW1/2-colly) and disability certificate (Ex.PW1/7).
On cross-examination, he testified that he left his house at about 10:30PM for purchasing vegetables. Further he was a pillion rider on the motorcycle at the time of accident and Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 4 of 47 the victim vehicle was parked and was not driven by anyone. He denied the suggestion that the motorcycle was not parked at the time of accident and was driven by its driver in a drunken state as a result of which the accident had been caused. He further denied the suggestion that the driver of the offending vehicle has been falsely implicated as an accused in place of his father.
On cross-examination by counsel for insurance company he admitted that he had not filed any document to show his vocation or that he was earning Rs.25,000/- per month. He further stated that he had studied upto 12 th class and after 2009 had visited Ganga Ram Hospital once or twice. He admitted that he had not placed on record any document pertaining to treatment taken from Dr. Suresh Gupta and had no document to support that he was advised rest for one year.
PW2 Manoj Kumar (eyewitness) tendered in evidence his affidavit (Ex.PW2/A) and testified that on 05.08.2009 at about 11:00PM he was driving motorcycle bearing registration no.DL 4 SAU 3375 and after stopping the engine had parked it on the left side of the road which was going from Karol Bagh side towards Bapa Nagar. He further testified that Vikram (petitioner) was sitting on the motorcycle and he left to bring the vegetables. Further, in the meantime, the motorcycle was hit by a Swift Dzire Car bearing registration No.DL 8CNA 2313 which came from Dev Nagar side and Vikram was dragged by the offending vehicle. Further, the offending vehicle was stopped with the help of other boys from Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 5 of 47 the locality and injured was shifted to Ganga Ram Hospital without waiting for police. He further testified that DD No.9A was registered at PS: Prasad Nagar and he was called on 06.08.2009 at the police station wherein his statement was recorded by ASI Khem Chand.
On cross-examination he testified that he was the owner of motorcycle bearing registration no.DL 4 SU 3375 and on the day of accident his motorcycle was standing at a little distance from his house i.e. outside the sweet shop. He denied the suggestion that he was not an eyewitness to the accident and stated that he along with 3-4 friends had taken Vikram to Sir Ganga Ram Hospital. He further stated that the offending car was stopped with the help of public persons and denied the suggestion that the accident had not been witnessed by him. He further denied the suggestion that Vikram was driving the vehicle alone under the influence of liquor and had caused the accident.
PW3 ASI Khem Chand proved the record of DD Entry No.9A dated 06.08.2009, PS: Prasad Nagar (already Ex.PW1/1) and original report on Form-54, PS: Prasad Nagar in respect of the accident under the signatures of the SHO (Ex.PW3/1).
PW4 Roshan Lal proved the record of the judicial file of DD 9A dated 06.08.2009, PS: Prasad Nagar, U/s 279/338 IPC (Ex.PW4/1 to Ex.PW4/45).
Respondent No.2 led his evidence as R2W1.
Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 6 of 47R2W1 Sunil Kumar Gupta tendered in evidence his affidavit Ex.RW2/X and testified that the accident had not been caused by his son. He further stated that he along with his son namely Abhishek were going from their house to meet a relative. When the car reached near Saraswati Marg Chowk it was stopped due to some technical problem. In the meanwhile the petitioner came on his motorcycle in a rash and negligent manner and struck against the stationary car. He further testified that he had a valid and effective licence and just before the accident the car was driven by him. Further, his son Abhishek was seated in the car on another seat. He further testified that on raising objections regarding impleadment of his son, the police advised that in case of a minor the case would be easily disposed of. He further proved photocopy of his driving licence (Ex.R2W2/Y).
On cross-examination, he deposed that he had admitted before the Juvenile Court that his son had committed the accident. He further admitted that no complaint had been made to SHO, DCP and Commissioner in respect of the submissions in the affidavit or in respect of the fault of the petitioner or that he was himself driving the car at the time of the accident. He further admitted that his son had pleaded guilty before the Juvenile Justice Board and paid a fine amount of Rs.5,000/-.
Respondent No.3 The New India Assurance Company examined Shri N.K. Saxena, Assistant as R3W1.
Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 7 of 47R3W1 Shri N.K. Saxena, Assistant, M/s The New India Assurance Company Ltd. testified that vehicle bewaring no., DL 8CNA 2313 was insured with respondent insurance company for the period 09.11.2008 to 08.11.2009. He further proved the notice u/o 12 Rule 8 CPC issued to Shri Sunil Gupta and driver for producing the original driving licence and policy (Ex.R3W1/2), original postal receipts (Ex.R3W1/3 & Ex.R3W1/4) and certified copies of criminal case record (Ex.R3W1/5).
On cross-examination, he deposed that the vehicle in question was insured with the insurance company covering the date of accident.
5. I have heard arguments addressed on behalf of the petitioners, counsel for respondents and perused the record.
Both the counsel for petitioner as well as Respondent No.1 & 2 have placed written submissions on record.
Reliance was further placed upon by counsel for petitioner on United India Insurance Company Ltd. v. Bharat Kumar Lohar & Others 2011 (1) CgLRW 470, 2011 (3) RCR (Civil) Jawahar Singh v. Bala Jain & Ors.(SC) and 20112 ACJ 1052 National Insurance Company Ltd. Vs. Anshu Gupta & Anr. and 2011 1 SCC 343 Raj Kumar v. Ajay Kumar & Anr. in support of the contentions.
Counsel for insurance company referred to III (2013) Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 8 of 47 ACC 918 (SC) United India Insurance Co. Ltd. v. Sujata Arora & Ors.; IV (2015) ACC 160 (Cal.) Santi Hazra v. New India Assurance Co. Ltd. & Anr.; I (2015) ACC 756 (Raj.) Oriental Insurance Co. Ltd. v. Parmanand & Ors. to contend that insurance company be exonerated of the liability since the vehicle was driven in violation of terms and conditions of Insurance Policy by a minor.
On the other hand, counsel for Respondent No.1&2 in support of the contentions placed reliance on 2016 ACJ 38 Branch Manager, United India Insurance Co. Ltd. v. Biresh Giri & Others and 2012 (2) T.A.C. 180 (Del.) Ramesh Chand Dheer v. Jang Bahadur Singh & Another.
My Issue-wise findings are as under :-
Issue No. (i) Whether the petitioner had suffered grievous injuries in road traffic accident on 05.08.2009 due to rash and negligent driving of the vehicle No.DL 8 CNA 2313 by Respondent no.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 Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 9 of 47 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 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 Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 10 of 47 in courts."
Reference may also be made to observations in Ranu 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 Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 11 of 47 court is bound to take broad view of the whole matter."
7. On the point of contributory negligence, observations of the Hon'ble Apex Court in Municipal Corporation of Greater Bombay v. Laxman Iyer, 2004 ACJ 53 (SC) are apt to be noted:
"(6) ........Where an accident is due to the negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which the liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. [See Charesworth on Negligence, 3 rd Edn., para 328]. It is now well settled that in case of contributory negligence, courts have power to apportion the loss between the parties as seems just and equitable.
Apportionment in that context means that damages are reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the part of victim, the question of apportionment does not arise."
8. In the instant case, the rash and negligent driving on Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 12 of 47 behalf of Abhishek has been vehemently disputed on behalf of counsel for Respondent No.1/driver as well as Sunil Kumar Gupta/owner of the offending vehicle and it is urged that the vehicle in fact was driven by Sunil Kumar Gupta prior to accident and at the time of accident the car was stationary due to some technical fault. It is further claimed that the car was hit by the motorcycle bearing no. DL 4SAU 3375 driven by the petitioner at a high speed without bearing a helmet and as such the injuries were sustained by the petitioner due to his own negligence. Reliance is further placed upon testimony of R2W1.
9. To appreciate the factual position as revealed on record, the facts disclosed in Annexure-I of the petition filed on behalf of the petitioner may be noticed :
"On 05.08.2009 at about 11 A.M. the petitioner was going to bring vegetables alongwith his friend from his house to nearby vegetable shop by the bike bearing No.DL4SAC 3375 and the bike was driven at the left side of road from Karol Bagh side to Padam Singh Road near Kundan Dhaba. In the meantime the respondent No.1 mindlessly driving the car bearing No. DL 8C NA 2313 (SWIFT DZIRE LDI) with terrific speed without blowing any horn crashed the bike on which the petitioner was riding."
The facts as disclosed in the kalandra filed before the Juvenile Justice Board u/s 279/338 IPC against the driver of the Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 13 of 47 offending car Respondent No.1 which was filed on the basis of statement of an eyewitness namely Manish S/o Puran may be further noticed. As per statement of Manish, on 05.08.2009 about 11.00PM, while he was sitting at Kundan Dhaba, he saw that Swift car No. DL-8CNA-2313 driven in a rash and negligent manner hit motorcycle no. DL 4SAU 3375 at a crossing near Kundan Dhaba. Consequently, Virkam fell from the motorcycle and was taken to Bali Nursing Home in the same car by Abhishek along with his father Sunil Kumar Gupta, who subsequently reached the spot. However, since the injured was refused to be admitted at Bali Nursing Home, he took him to Sir Ganga Ram Hospital in a three-wheeler. It is further disclosed in the kalandra that thereafter Manish along with ASI Khem Chand returned to the spot wherein the site plan was prepared and the driver of the offending vehicle Abhishek being a minor was handed over in custody of his father Sunil Kumar Gupta. Further, as per kalandra, Abhishek was challaned u/s 4/181 M.V. Act and his father Sunil Kumar Gupta was challaned u/s 5/180 M.V. Act and also the proceedings were initiated u/s 279/338 IPC before the Juvenile Justice Board against driver of the offending vehicle Abhishek.
It may be observed that as per evidence of PW1 Vikram and PW2 Manoj Kumar, the accident had taken place after the motorcycle was parked on the left side of the road and in the meantime was hit by Swift Dzire car driven by Respondent No.1 which is contrary to stand taken by petitioner in the petition and the same cannot be accepted. The same is Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 14 of 47 also contrary to facts disclosed in Kalandra.
It may further be noticed that vide order dated 08.03.2010, driver of the offending vehicle/ Respondent No.1 who was a juvenile at the relevant time admitted his involvement on the notice u/s 279/338 IPC. The plea of guilt was in fact made in the presence of Sunil Kumar Gupta who was duly represented by a counsel.
In the aforesaid background, the version as propounded in the kalandra stands admitted by Respondent No.1 & 2 in view of plea of guilt by Respondent No.1 that the motorcycle was hit by the Swift Dzire car driven by Respondent No.1.
As such, it is not possible to accept the plea raised by counsel for Respondent No.1 & 2, at this stage, that the vehicle was not driven by Respondent No.1 at the relevant time. The same may also be viewed in the light of the fact that it has been admitted by R2W1 during his cross-examination that no complaint was ever made at any point of time claiming that he was driving the vehicle before the accident and the same was stationary at the time of accident. Rather, the facts as disclosed in the kalandra as admitted in the plea of guilt reflect that the Swift Dzire car had hit the motorcycle.
The only other aspect which needs to be considered is whether the accident was caused due to contributory negligence of the petitioner as has been vehemently claimed by counsel for Respondent No.1 & 2 in view of history of Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 15 of 47 consumption of alcohol recorded in MLC. Reference was also made by Respondent No.1&2 to the mechanical inspection report, site plan and photographs of the car placed along with kalandra to contend that the motorcycle had struck against the left side/door of the car as visible from the dents reflected in the photographs. It was further submitted that even the petitioner was not in possession of a driving licence.
It has already been observed that as per the kalandra the Swift Dzire car driven by Respondent No.1 had hit the motorcycle driven on road and as such the contention raised by counsel for Respondent No.1 & 2 relying upon the photographs that the motorcycle had hit the stationary left side of the door of the car cannot be accepted. The dents on the car may be on account of other factors and in the absence of any corroboratory evidence in investigation, it cannot be held that the accident had taken place, as contended by Respondent No.2. It may be noticed that even Respondent No.2 had subsequently reached the spot as per the facts disclosed in the kalandra and as such his testimony is untrustworthy.
Further mere disclosure of history of consumption of alcohol which was not given by the petitioner cannot lead to the assumption that he was in inebriated condition. The presence of alcohol in the blood of petitioner is not confirmed in the MLC or any documents on record. Also the mere absence of driving licence by the petitioner also does not lead to an inference of contributory negligence since it has been held that the offending vehicle was driven by Respondent No.1 who was a minor at Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 16 of 47 relevant time and the accident had been caused as the Swift Dzire hit the motorcycle, as disclosed in kalandra.
Considering the fact that negligence is to be assessed on touchstone of preponderance of probability, I am of the considered opinion that it has been established that the accident was caused due to rash and negligent driving of Swift Dzire car bearing No.DL 8CNA 2313 by Respondent No.1. Issue No. 1 is decided in favour of the petitioner and against the respondents.
11. Issue No. (ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
In a petition u/s 166 Motor Vehicles Act, 1988, the Claim Tribunal is to award full and fair compensation.
In Raj Kumar v. Ajay Kumar & Anr., 2011 Volume 1, ACJ 1, Hon'ble Supreme Court of India observed that the object of awarding damages is to make good the loss suffered as a result of the wrong done as far as money can do in a fair, reasonable and equitable manner. Paras 4 and 5 of the judgment are further extracted below as the same explains the various heads under which the compensation is to be assessed:-
"4. The provision of the Motor Vehicles Act, 1988 ('the Act' for short) makes it clear that the award must be just, which Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 17 of 47 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 far as money can do so, in a fair, reasonable and equitable manner. The court or 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 his inability to earn as much as he used to earn or could have earned. [See C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, R.D. Hattangadi v. Pest Control (India) (P) Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467.
5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary 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.Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 18 of 47
(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).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
Now the important factors relevant for calculation of compensation consequent to accidental injuries sustained by the petitioner may be considered.
LOSS OF EARNING CAPACITY For purpose of assessing the loss of earning capacity, the income of the petitioner/injured needs to be assessed along with the functional disability suffered by him due to the injuries sustained in the accident.
(a) Criteria for taking income of the petitioner Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 19 of 47 Though it has been claimed in the petition that petitioner was working as a contractor and earning about Rs.23,000/- per month but counsel for petitioner fairly conceded that in absence of any documentary evidence, income of the petitioner may be assessed on the basis of minimum wages of an unskilled worker as notified by the government of NCT of Delhi for the relevant time.
In the facts and circumstances, the income of the petitioner is assessed on the basis of minimum wages of an unskilled worker @ Rs.3,683/- per month, as notified by government of NCT of Delhi for the relevant period.
(b) If addition in income towards future prospects is to be made Counsel for petitioner urged that addition towards future prospects be made by 50% while assessing the income of petitioner but the same has been opposed by counsel for insurance company.
It may be observed that in Shashikala & Ors. v. Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC), separate judgements were passed by Hon'ble Mr. Justice R. Banumathi and Hon'ble Mr. Justice V. Gopala Gowda on the point of assessment of addition to the income of the deceased towards the future prospects in case of salaried persons vis-a-vis where the deceased was self employed or on fixed wages. The case was directed to be placed before the Hon'ble Chief Justice of India for appropriate orders towards constitution of a suitable Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 20 of 47 larger Bench since the issue already stood referred to a larger Bench in the case of National Insurance Company Ltd. v. Pushpa S.L.P. (C) No. 16735/2014. Hon'ble Apex Court in aforesaid case adverted to the judgements passed in Reshma Kumar & Ors. v. Madan Mohan & Anr., VII (2013) S.L.T. 489 (rendered on 2nd April, 2013) and Rajesh vs. Rajbir Singh, (2013) 9 S.C.C. 54 (rendered on 12th April, 2013 in which the judgement passed in Reshma Kumari's case was not noticed). Reference was also made to the judgements passed in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., 162 (2009) D.L.T. 278, Santosh Devi v. National Insurance Co. Ltd. & Ors., 2012 6 S.C.C. 421, Sanjay Verma v. Haryana Roadways, (2014) 3 S.C.C. 210, National Insurance Co. Ltd. v. Pushpa, S.L.P. (C) No. 16735/2014 (whereby the matter in relation to future prospects was referred to larger Bench). It may further be noticed that Hon'ble Apex Court in Shashikala's case did not provide addition towards future prospects pendente lite the aforesaid issue, wherein the deceased was an income tax payee carrying business of newspapers and had relied upon Income Tax Returns for the Assessment Years 2005-06 and 2006-07.
In the aforesaid context, reliance may be further placed upon MAC 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court) wherein the judgements passed by the Hon'ble Apex Court in Munna Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors., Civil Appeal Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 21 of 47 No.4497 of 2015 decided on 15.05.2015 {II (2015) ACC 806 (SC)} was also duly referred but the addition towards future prospects was denied in the absence of any evidence of bright future prospects. Reliance was therein placed upon Reshma Kumari & Others vs. Madan Mohan & Anr. (2013) 9 SCC 65 and HDFC Ergo General Insurance Company Ltd. vs. Smt. Lalta Devi & Others MAC APP No.189/2014 decided on 12.01.2015.
The observations made by the Hon'ble High Court on the aspect of addition of future prospects as discussed in para 21 to 23 of MAC No. 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 (supra) may be beneficially quoted:
21. As far as future prospects are concerned, there is no evidence on record that the deceased had bright future prospects. The question of grant of future prospects was dealt with by this Court at great length in HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors., MAC APP No. 189/2014, decided on 12.01.2015. Paras 8 to 21 of the report in Lalta Devi (supra) are extracted hereunder:
8.It is no gainsaying that in appropriate cases some addition towards future prospects must be made in case of death or injury of a person pursuing a professional course. At the same time, it cannot be laid down as a uniform principle that every person pursuing professional course will have a bright future. There may be a student pursuing engineering from the reputed engineering colleges like Indian Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 22 of 47 Institute of Technology (IIT), Regional Engineering College or any other reputed college. At the same time, a number of engineering Colleges have mushroomed where an engineering graduate may find it difficult to secure a job of an engineer. In the instant case, deceased Aditya, as stated earlier was a student of an unknown engineering college, i.e. Echelon Institute of Technology, Faridabad which is claimed to be affiliated to Maharshi Dayanand University, Rohtak. The Claimants have placed on record result-cum-detailed marks card of First and Second Semester.
It may be noted that the deceased had secured just ordinary marks in seven subjects and he had to re-appear in papers 1002 (Mathematical-I), 1006 (Foundation of Computer & Programming) and 1008 (Basics of Mechanical Engineering).
Similarly, in the Second Semester the deceased was absent in one of the 12 papers and out of 11 subjects for which he had taken examination, he was to re-
appear in four subjects. Thus, it will be difficult to say that the deceased was a brilliant student or that he was pursuing engineering from a well known or even mediocre college.
"7. As far as addition towards future prospects is concerned, the issue has been examined at great length by this Court in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. (supra). Paras 9 to 21 of the report in Lalta Devi are extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench deci-
sion of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to contend that the future prospects have to be added in all cases where a person is get-
Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 23 of 47ting fixed wages or is a seasonal employee or is a student.
10. It is urged by the learned counsel for the Claimants that the law laid down in Sarla Verma (Smt.) & Ors. v. Delhi Trans- port Corporation & Anr., (2009) 6 SCC 121 was extended in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extended in all cases.
11. On the other hand, the learned counsel for the Insurance Company refers to a three Judge Bench decision of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while ap-
proving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors.
(supra) and relying on General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; Sarla Dixit v.
Balwant Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geological Survey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under:-
"38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v.
DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002], this Court has noted the earlier deci-
sions in Susamma Thomas [Ker-
ala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 24 of 47 para 24 of the Report held as un- der: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002] , SCC p. 134):
"24. ... In view of the imponder- ables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words „ac- tual salary‟ should be read as „ac- tual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may in- dicate a different percentage of increase, it is necessary to standard- ise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involv- ing special circumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriv-
ing at appropriate compensation.
We approve the method that an ad-
dition of 50% of actual salary be Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 25 of 47 made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years.
Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be jus-
tified in extraordinary circum-
stances and very exceptional cases."
12. The learned counsel for the Insurance Company relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr.
v. State of Maharashtra & Anr., (2005) 2 SCC 673; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 to contend that in case of diver- gence of opinion in judgments of benches of co-equal strength, earlier judgment will be taken as a binding precedent.
13. It may be noted that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a reference made by a two Judge Bench (S.B. Sinha and Cyriac Joseph, J.J.). The two Hon'ble Judges wanted an authoritative pronouncement from a Larger Bench on the question of applicability of the multiplier Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 26 of 47 and whether the inflation was built in the multiplier. The three Judge Bench approved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selec- tion of multiplier. It further laid down that addition towards future prospects to the ex- tent of 50% of the actual salary shall be made towards future prospects when the de- ceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 40-50 years. No addition towards future prospects shall be made where the deceased was self-employed or was getting a fixed salary without any provision of annual in- crement.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Ra- jesh relying on Santosh Devi v. National In- surance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be addi- tion of 30% and 50%, depending upon the age of the deceased, towards future prospects even in the case of self-employed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lordships.
15. The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Road-
ways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under:-
"14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 :
(2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044], a two-Judge Bench of this Court while considering the following ques-
tions took the view that the issue(s) needed Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 27 of 47 resolution by a larger Bench: (SCC p. 425, para 10) "(1) Whether the multiplier speci-
fied in the Second Schedule ap-
pended to the Act should be scrupu-
lously applied in all the cases?
(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as re-
gards determination of future prospects?"
15. Answering the above reference a three- Judge Bench of this Court in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] (SCC p.
88, para 36) reiterated the view taken in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the effect that in respect of a person who was on a fixed salary without provision for annual increments or who was self-
employed the actual income at the time of death should be taken into account for determining the loss of income un- less there are extraordinary and excep- tional circumstances. Though the ex-
pression "exceptional and extraordi-
nary circumstances" is not capable of any precise definition, in Shakti Devi v. New India Insurance Co. Ltd. [(2010) 14 SCC 575 : (2012) 1 SCC (Civ) 766 :
(2011) 3 SCC (Cri) 848] there is a practical application of the aforesaid principle. The near certainty of the reg-
ular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of in-
come by taking into account the possi-
ble future earnings. The said loss of in-
Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 28 of 47come, accordingly, was quantified at double the amount that the deceased was earning at the time of his death."
16. Further, the divergence of opinion in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v.
Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another lat- est judgment in National Insurance Com- pany Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, the Supreme Court held as under:-
"Be it noted, though the decision in Reshma (supra) was rendered at earlier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as regards the manner of addition of income of future prospects there should be an authoritative pro- nouncement. Therefore, we think it appropriate to refer the matter to a larger Bench."
17. Now, the question is which of the judg- ments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18. In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under:-
"12. Having carefully considered the submissions made by the learned Se- nior Counsel for the parties and hav- ing examined the law laid down by the Constitution Benches in the abovesaid Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 29 of 47 decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any sub-
sequent Bench of lesser or coequal strength.
(2) [Ed.: Para 12(2) corrected vide Official Corrigendum No. F.3/Ed.B.J./21/2005 dated 3- 3-2005.] A Bench of lesser quorum can- not disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose deci- sion has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correct- ness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) [Ed.: Para 12(3) corrected vide Official Corrigendum No. F.3/Ed.B.J./7/2005 dated 17- 1-2005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench it- self feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 30 of 47 and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispens- ing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the sit- uation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vaja- hath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as un- der:-
"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judicata, we are to observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a coordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regarding the interpre- tation of Section 2(c) of the Act and its application to the petition sched- ule property, judicial discipline and practice required them to refer the is- sue to a larger Bench. The learned Judges were not right in overruling the statement of the law by a coordi- nate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the de- cision of the Co- ordinate Bench is binding Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 31 of 47 on the subsequent Bench of equal strength, held that the Bench of Co-ordinate strength can only make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under:-
"9. It may be noted that the decision in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98] . It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the de-
cision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Pa-
tel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] , the latter decision is a judgment per incuriam. The deci-
sion in S.N. Narula case [(2011) 4 SCC 591] was binding on the subse-
quent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judg-
ments of this Court."
21.This Court in New India Assurance Co. Ltd. v. Harpal Singh & Ors., MAC APP.138/2011, decided on 06.09.2013, went into this question and held that in view of the report in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors. (supra) shall be taken as a binding precedent."
21.In the instant case, the deceased's actual or potential income is taken as Rs.20,000/- per month. Even if it is taken that the deceased was working with 'Dainik Janwani Samachar Patra', there was no evidence with regard to his good future prospects or that the deceased was in permanent employment.
Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 32 of 4722.Thus, in absence of any evidence of good future prospects, no addition towards future prospects ought to have been made by the Claims Tribunal."
Reliance may also be placed upon MAC Appeal No.544/07 decided on 06.05.2016 by Hon'ble Mr.Justice R.K.- Gauba in ICICI Lombard General Insurance Company Ltd. vs. Smt. Nagina Begum & Anr. on the point of addition of future prospects and relevant observations may be noticed.
"4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the ele- ment of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors. vs. Madan Mohan & Anr., (2013) 9 SCC 65, on ac- count of divergence of views, as arising from the rul- ing in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in Na- tional Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No.956/2012 (Sunil Kumar vs. Pyar Mohd.), this Court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No.189/2014 (HDFC Ergo General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-
employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court.
In the facts and circumstances in the instant case, I am of the considered view that in view of the aforesaid legal Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 33 of 47 position as pointed out the Hon'ble High Court, in absence of any evidence with regard to good future prospects of the peti- tioner whose income has been computed on the basis of mini- mum wages, the addition of income towards future prospects cannot be made for the purpose of compensation.
(c) Functional Disability Counsel for petitioner urged that for purpose of assessment of compensation, functional disability may be assessed at 50% as assessed in the disability certificate dated 12.09.2012.
On the other hand, counsel for respondents contended that functional disability of the petitioner qua the entire body be assessed at lower side.
It may be observed that in certain cases the permanent disability may not impact the earning capacity of the injured/victim and in such cases the victim may not be entitled to compensation towards loss of capacity on account of disability. However, in other cases even on account of less permanent disability, an injured may be completely incapacitated to carry out his vocation and as such the functional disability may be more than the actual disability suffered by the injured/victim. The Hon'ble Supreme Court of India has elucidated with an example that if the left hand of claimant, who is driver by profession is amputated, the actual loss of earning capacity may be virtually 100%.
The observations of the Hon'ble Supreme Court in Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 34 of 47 the case of Raj Kumar Vs. Ajay Kumar, (supra) whereby the methodology for determining the functional disability has been discussed in paragraph 14 may be quoted:-
"14. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or
(iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 35 of 47 claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical function; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand.
Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 36 of 47 duplication in the award of compensation. Be that as it may."
In the instant case, petitioner has relied upon Disability Certificate issued by Dr. Ram Manohar Lohia Hospital, New Delhi whereby it has been observed as under:
"He is a case of head injury with residual deficits in the form of moderate global lobar cognitive deficits and right spastic hemiparesis with partial permanent motor disability of 50% (fifty) in relation to right sided limbs."
The certificate has been challenged by the counsel for Respondent No.1 & 2 on the ground that the concerned doctor has not been examined. However, it may be noticed that the assessment for issuance of disability certificate was directed by the Tribunal vide order dated 15.02.2012 and pursuant to the same the disability certificate has been issued which completely co-relates to the injuries suffered in the accident as per documents of treatment filed on record. In the facts and circumstances, the same cannot be ignored merely on the ground that the concerned doctor has not been summoned by the petitioner to prove the same.
Considering the facts and circumstances, nature of injuries, treatment undertaken & disability suffered by the petitioner and the principles laid down in Raj Kumar Vs. Ajay Kumar, (supra), the functional disability is assessed at 30% for purpose of assessment of compensation qua the entire body.
As per copy of Aadhar Card placed on record, year of Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 37 of 47 birth of the petitioner is reflected as 1983. As such, on 05.08.2009 (date of accident) age of petitioner was about 26 years. In view of Sarla Verma & Ors. v/s Delhi Transport Corporation 2009, ACJ 1298, the relevant multiplier of 17 is applicable for the purpose of assessment in the present case.
The compensation is accordingly assessed towards loss of earning capacity at Rs.2,41,923.60 {i.e. Rs.3,953/- (notional income per month) X 12 (months) X 30% (functional disability) X 17 (applicable multiplier according to age)}. (Rounded off to Rs.2,41,924/-).
(d) Loss of Income on account of accident As per treatment record, petitioner remained admitted from 06.08.2009 to 03.09.2009 at Sir Ganga Ram Hospital and, thereafter, remained under treatment for considerable period. Considering the nature of injuries, period of admission as indoor patient and treatment undertaken as well as disability suffered by the petitioner, it can be reasonably presumed that on account of injuries and disability, the petitioner may not have been in a position to attend his work for a period of about 06 months.
In the facts and circumstances, petitioner is accordingly awarded damages of Rs.23,718/- for a period of 06 months for which he was not able to perform his job i.e. [Rs.3,953/- (notional income for one month) X 06 months].
(e) Loss of amenities and loss of expectation of life Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 38 of 47 due to Permanent Disability The amount of compensation towards amenities should be to bring amenities and restoration of health to the petitioner. In the facts and circumstances, considering the injuries/permanent disability suffered by the petitioner, he is awarded a sum of Rs.80,000/- (Rupees Eighty Thousand Only) on account of loss of amenities and loss of expectation of life due to permanent disability.
(f) Pain and Suffering & Mental Agony As the petitioner suffered permanent disability and remained incapacitated from performing normal activities for a considerable period of treatment, he is awarded a sum of Rs.80,000/- (Rupees Eighty Thousand Only) towards pain and suffering and mental agony.
(g) Medicines and Medical Treatment Counsel for petitioner contended that an amount of Rs.3,92,231/- has been claimed towards the medical bills/treatment. However, the bill amount for Rs.396/, Rs.792/- Rs.594/- and Rs.1,188/- disputed by the counsel for Respondent No.1 & 2 have been fairly conceded for being excluded.
A bill for physiotherapy for Rs.13,500/- dated 20.10.2009 has been further disputed by the counsel for Respondent No.1 & 2. It is contended by counsel for Respondent No.1 & 2 that the said bill has not been proved by summoning the concerned witnesses.
Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 39 of 47I am of the considered opinion that since original bills of Sir Ganga Ram Hospital for substantial amount of Rs.3,79,416/- have been filed on record and the factum of treatment undertaken after the accident cannot be disputed, the amount towards medical expenses cannot be denied for want of summoning the witness from concerned hospital. It cannot be ignored that the said medical bills are duly supported by the treatment record and the same cannot be ignored on technical niceties. Nothing could be elicited in the cross-examination to doubt the aforesaid bills.
Further even the physiotherapy bill for Rs.13,500/- does not appear to be exaggerated considering the nature of injuries and treatment undertaken by the petitioner. In the facts and circumstances, I am not inclined to disallow the same for want of examination of the concerned physiotherapist in absence of any circumstances which may cast a doubt as to the authenticity of the same.
Accordingly, petitioner is awarded a sum of Rs.4,02,761.29 (rounded off to Rs.4,02,762/-) towards medical bills/treatment.
(h) Conveyance & Special Diet Though no conveyance bills have been filed on record by the petitioner but it can be presumed that petitioner must have spent some amount during the period of treatment. In view of above, an amount of Rs.20,000/- (Rupees Twenty Thousand Only) is awarded towards conveyance for the period Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 40 of 47 of treatment.
Petitioner is further awarded an amount of Rs.20,000/- (Rupees Twenty Thousand Only) towards special diet.
(i) 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 2012 (2) T.A.C. 34 (Del.), 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.15,000/- is awarded in lump-sum towards the attendant charges/gratuitous services rendered by the family members (i.e. Rs.2,500/- X 06 months).
9. As discussed above, the overall compensation is tabulated as under:
Loss of Earning Capacity Rs.2,41,924/- Loss of Income on Account of accident Rs.23,718/- Loss of amenities of life and deformity Rs.80,000/-Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 41 of 47
Pain and Suffering Rs.80,000/-
Medicines & Medical Treatment Rs.4,02,762/-
Conveyance Rs.20,000/-
Special Diet Rs.20,000/-
Attendant Charges Rs.15,000/-
-----------------
Total Rs.8,83,404/-
-------------------
(Rupees Eight Lakh Eighty Three Thousand Four Hundred & Four Only) The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 09.09.2010 till realization (except for the period 10.05.2011 to 23.01.2013 as directed vide order dated 10.05.2011 by ld. Predecessor).
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
10. For the purpose of disbursement, on realization, 20% of the award amount along with up-to-date interest shall be released to petitioner and the remaining amount of 80% shall be kept in ten fixed deposits of equal amount in his name for a period of one year, two years, three years, four years, five years, six years, seven years, eight years, nine years and ten years respectively, without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in his account.
11. Liability to satisfy the award It was contended by counsel for Respondent No.1&2 that Respondent No.2/registered owner of the offending vehicle Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 42 of 47 be exonerated since the vehicle was driven by Respondent No.2 prior to the accident and the petitioner had hit against the stationary vehicle at the time of accident. Reliance was further placed upon 2016 ACJ 38, Branch Manager, United India Insurance Co. Ltd. v. Biresh Giri & Others.
On the other hand, counsel for insurance company submitted that liability cannot be fastened upon the insurance company since the vehicle was driven by a minor at the time of the accident in violation of the terms and conditions of the insurance policy. Reliance was further placed upon III (2013) ACC 918 (SC), United India Insurance Co. Ltd. v. Sujata Arora & Ors.; IV (2015) ACC 160 (Cal.) Santi Hazra v. New India Assurance Co. Ltd. & Anr.; I (2015) ACC 756 (Raj.) Oriental Insurance Co. Ltd. v. Parmanand & Ors.
Counsel for the petitioner on the other hand contended that insurance company be directed to pay the compensation in the first instance and, thereafter, recover the same from the owner. Reliance in support of the contentions was placed upon 2011 (3) RCR (Civil) Jawahar Singh v. Bala Jain & Ors.(SC) and 2012 ACJ 1052 National Insurance Company Ltd. V. Anshu Gupta & Anr.
It may be noticed that in the present case, it has already been held that the accident had been caused due to rash and negligent driving of Respondent No.1, who was a minor at the relevant time and was not in possession of a valid driving licence. It is not the case of Respondent No.2/registered owner of the offending vehicle/father of Respondent No.1 that vehicle Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 43 of 47 had been taken by Respondent No.1 unauthorizedly without his knowledge and permission. Rather, it has been contended by Respondent No.2 that the vehicle was not driven by Respondent No.1 at the time of accident which has not been accepted as observed in Issue No.1. In the facts and circumstances, the authority relied upon by counsel for Respondent No.1&2 of 2016 ACJ 38 Branch Manager, United India Insurance Co. Ltd. v. Biresh Giri & Others is distinguishable on facts. It may further be observed that apart from the judgments referred to by counsel for the petitioner and insurance company, the issue in question is also squarely covered by judgment passed by the Hon'ble High Court in MAC APP 339/2005 National Insurance Co. Ltd. vs. Sanjay Singharia & Others decided on 14th October, 2014 by Hon'ble Mr. Justice Jayant Nath. In the aforesaid case, claimant/Respondent No.1 had suffered injuries in a motor vehicular accident after being hit by a Matiz car allegedly driven by Respondent No.1 who was a minor. Stand was further taken on behalf of Respondent No.3/owner of the offending vehicle that the car had been taken by Respondent No.2 (driver) without his consent. Relying upon National Insurance Company Ltd. vs. Swaran Singh & Ors., (2004) 3 SCC 297, the Tribunal concluded that insurance company cannot avoid the liability as Respondent No.3 had not willfully permitted Respondent No.2 to drive the car. However, the Hon'ble High Court relying upon Jawahar Singh vs. Bala Jain and others, AIR 2011 SC 2436 and United India Insurance Company Limited vs. Rakesh Kumar Arora and others, (2008) Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 44 of 47 13 SCC 298 partly allowed the appeal filed by the insurance company and held that appellant shall be entitled to recovery rights against Respondent No.3/owner of the offending vehicle.
Reference may also be made to 2015 ACJ 2711 Kasthuri and others vs. M. Gopu and others wherein the insurance company disputed its liability on the ground that the motorcyclist (offending vehicle) had no licence and was driving the vehicle under influence of alcohol. It was therein held that once certificate of insurance is issued liability of insurance company towards a third party victim to satisfy the award against the owner of the vehicle shall not vanish on the ground of any breach of conditions of policy by the insured and the insurance company was directed to pay the amount and then recover the same from the insured. Reliance in the aforesaid case was further placed upon judgments passed in Jawahar Singh v. Bala Jain 2011 ACJ 1677 (SC), Sohan Lal Passi v. P.Sesh Reddy 1996 ACJ 1044 (SC), United India Insurance Co. Ltd. v. Lehru 2003 AJ 611 (SC), Manager, National Insurance Co. Ltd. v. Saju P. Paul 2013 ACJ 554 (SC) and S. Iyyapan v. United India Insurance Co. Ltd. 2013 ACJ 1944 (SC).
In the facts and circumstances of the present case, in view of judgments referred to above (i.e. National Insurance Co. Ltd. vs. Sanjay Singharia & Others) (supra) liability cannot be avoided by the insurance company and shall be liable to pay the compensation amount to the petitioner in the first instance and, thereafter, shall be entitled to recover the same from Respondent No.2 Sunil Kumar Gupta/registered owner of the offending vehicle only since Respondent No.1 was a minor Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 45 of 47 at the time of the accident.
12. Relief In view of the findings given in preceding paragraphs, Respondent No.3 The New India Assurance Company Ltd. is directed to deposit the award amount of Rs.8,83,404/- with interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 09.09.2010 till realization (except for the period 10.05.2011 to 23.01.2013 as directed vide order dated 10.05.2011 by ld. Predecessor) with Nazir of this Court within 30 days under intimation to the petitioners, failing which they shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days. Respondent No.3 is further granted right to recover the same from Respondent No.2 Sunil Kumar Gupta/registered owner of the offending vehicle only since Respondent No.1 was a minor at the time of the accident.
Respondent No.3/insurance company is 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.
A copy of this judgment be sent to Respondent No.3 The New India Assurance Company Ltd. for compliance within the time granted.
Nazir is directed to place a report on record in the Suit No.42/10Vikram @ Vikramjeet vs. Abhishek & Ors. Page 46 of 47 event of non-receipt/deposit of the compensation amount within the time granted.
A copy of this award be forwarded to the concerned Metropolitan Magistrate in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
File be consigned to Record Room.
Announced in open court (Anoop Kumar Mendiratta) on 31st August, 2016 Judge MACT-1 (Central), Tis Hazari Courts, Delhi.
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