Delhi District Court
Dil Bagh Singh Sh. Heera Singh vs Sh. Ram Avtar S/O Sh. Maliya Singh on 17 December, 2012
IN THE COURT OF MS. REKHA RANI : JUDGE : MACT : DELHI
MACT No. : 400/08
UNIQUE ID NO. : 02404C0078822008
1. Dil Bagh Singh Sh. Heera Singh
S/o Sh. Sardar Major Singh,
R/o Vill. Kirshna Pur Jamniya,
P.O. Mohamadi, PS Pasgama,
Distt. Lakhim Pur Khiri, U.P.
IInd Add: Talvandi Sobha Singh,
Teh. Patti, Distt. Amritsar, Punjab. .....Petitioner
Versus
1. Sh. Ram Avtar S/o Sh. Maliya Singh,
R/o Vill. Kaiya Deh, P.S. Madoli,
P.O. Inayat Nagar,
Distt. Sitapur, U.P.
2. Sh. Nirmal Singh,
S/o Sh. Joginder Singh,
R/o. H.No. 242, Chand Nagar,
Tilak Nagar, Delhi.
3. The Reliance General Ins. Co. Ltd.,
19, Reliance Centre, Walchand Hira Chand Marg,
Ballard Estate, Mumbai400020. ..... Respondents
DATE OF INSTITUTION : 21.04.2008
DATE OF RESERVING ORDER : 07.12.2012
DATE OF PRONOUNCEMENT : 17.12.2012
MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 1 of 38
AWARD:
1.
"A person injured in an accident leaves
his family in greater distress visavis 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 enures 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".
Hon'ble Apex Court thus observed in Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka & Ors. (2009) 6 SCC 1, that serious injuries in motor vehicle accident are worse than the death cases because the victim and his family suffer throughout his life.
2. The petitioner suffered amputation of both his legs resulting into 100% disability. He filed petition U/s 166 and 140 of the Motor Vehicle Act 1988 (in short the Act), claiming
3. MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 2 of 38 compensation of Rs. 20 lacs with interest @ 12% per annum from the date of filing of the petition till realisation of the amount from Ram Avtar, driver (in short R1), Nirmal Singh, owner (in short R2), Reliance General Insurance Company Ltd. (in short R3) pleading that: On 16.02.2008 at about 10:00 p.m, he was sleeping on one side of the road at Azadpur Fruit Mandi, near shed No. 9, Jahangir Puri, Delhi. Suddenly, a truck bearing registration No. HR38J6381 being driven by R1 rashly, negligently and at a very fast speed without taking necessary precautions and without blowing horn violently hit the petitioner with great force and ran over both his legs. Petitioner was removed to BJRM Hospital, where he was given first aid. Thereafter, he was removed to Hindu Rao Hospital, where he remained hospitalised till 10.03.2008. The injuries sustained by the petitioner or having not healed, he is not able to do any work. He was working with M/s J.S. Khera Transport Company, Azad Pur Mandi, Delhi and was earning Rs. 4,500/ per month. He was given Rs. 100/ per day towards food allowance. He has suffered financially, physically and MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 3 of 38 mentally. He is still under treatment and is likely to incur huge medical expenses in future.
4. R1 and R2 filed common written statement. It is pleaded that compensation claimed is highly excessive. It is denied that the accident took place on account of rash and negligent driving of vehicle bearing registration No. HR38J6381 by R1. It is denied that petitioner was earning Rs. 4,500/ per month. It is further stated that R1 was having valid driving licence and R2 had insured the vehicle and as such they are not liable to pay anything to the petitioner.
5. R3 also filed written statement. It is admitted that vehicle bearing registration No. HR38J6381 was insured with R3 vide policy No. 1306772334003907 from 31.12.2007 to 30.12.2008. However, it is denied that R3 is liable to pay any compensation, in case it is found that R1 was not having valid and effective driving licence at the time of accident or that R2 was not holding valid permit and fitness certificate. It is submitted that petitioner must have sustained injuries due to his own carelessness by sleeping on the road and it is also denied that there was any negligence on the part of R1. MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 4 of 38
6. Following issues were framed by my Ld. Predecessor vide order dated 16.02.2009.
(i) Whether on 16.02.2008, at 10:00 a.m, near Shed No.9, Jahangir Puri, truck No. HR38J6381 which was being driven rashly and negligently hit petitioner and caused injuries to him?
OPP
(ii) Whether driver of the offending vehicle did not hold valid and effective DL, permit etc? OPR3.
(iii) Whether petitioner is entitled to compensation as prayed for if so from which of the respondent? OPP
(iv) Relief.
7. Petitioner was examined as PW1. Sh. K.V. Singh, Record Clerk, Hindu Rao Hospital as PW2, Dr. Paramjeet Singh, Medical Officer, Civil Hospital, Patti, District Tarn Taran, Punjab as PW3 and thereafter petitioner closed his evidence. R1 and R2 did not adduce any evidence. R3 examined Navneet Goel, its Assistant Manager as R3W1, and thereafter closed its evidence.
8. I have carefully perused the material available on the record and also heard Sh. R.K. Jain, learned counsel for petitioner and MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 5 of 38 Sh. V.K. Puri, learned counsel for insurance company. Learned counsel for insurance had also filed written arguments.
ISSUE No.1 QUA NEGLIGENCE
8. It has to be borne in mind that Motor Vehicles Act does not stipulate holding a trial for petition preferred under section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal holds 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 as was held in State of Mysore v. S.S. Makapur, 1993 (2) SCR 943 by Hon'ble Apex Court.
9. In Bimla Devi and ors. v. Himachal Road Transport Corporation and Ors (2009) 13 SC 530, Hon'ble Supreme Court held that Claims Tribunals should not insist on strict proof of an accident caused by a particular vehicle in a particular manner and that taking holistic view of the matter, evidence should be examined on the touch stone of preponderance of probability and not beyond reasonable doubt.
10. The Judgment in Bimla Devi (supra) was relied on by Hon'ble Supreme Court in its latest judgments in Parmeswari v. MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 6 of 38 Amir Chand, (2011) 11 SCC 635 and Kusum Lata v. Satbir (2011) 3 SCC 646. Kaushnuma Begum & Ors v. The New India Assurance Co. Ltd. & Ors. Appeal (Civil) 6 of 2001: Special Leave Petition (Civil) 1431 of 2000 decided on 2nd July 2012.
11. In N.K. V. Brothers (P) Ltd Vs M. Karumal Ammal, AIR 1980 SC 1354 Hon'ble Apex Court observed :
" Road accidents are one of the top killers in our country, specially, when truck and bus driver 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 loquitar. 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 and 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".
12. Now keeping in view the fact that negligence is not required to be proved beyond reasonable doubt in an inquiry U/s 166 of the Act as is expected to be done in a Criminal Trial, let evidence on record be analysed on the touchstone of MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 7 of 38 preponderance of probability as per the aforesaid case law.
13. Petitioner deposed that he was working as second driver on truck bearing registration No. HR38J6381 and on 16.02.2008, he alongwith R1 had come to Azadpur Mandi from Assam with ginger in their truck. After unloading ginger from the truck, the same was parked at shed No.9. At about 10:00 p.m, when petitioner was lying on dry grass on one side of the road, near shed No.9, Azadpur Mandi, the same truck being driven by R1 rashly and negligently without blowing horn ran over both the legs of petitioner. Petitioner has placed on record certified copies of criminal case. FIR was registered on the basis of statement of the petitioner. It is alleged in FIR that petitioner was second driver and R1 was first driver on the offending truck bearing registration No. HR38J6381. It is also alleged in the FIR that R1 rashly and negligently drove the truck in question and ran over the legs of the petitioner. Petitioner knew R1 at the time of accident. He had seen him causing the accident. R1 has not given any reason why petitioner would falsely implicate him.
14. R1 & R2 in their written statement denied that accident MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 8 of 38 took place on account of negligence of R1. R1 himself did not step into the witness box to explain why he was charge sheeted for offences punishable U/s 279/338 IPC in the criminal matter for causing the said accident.
15. Learned counsel for R3 contended that petitioner himself contributed to the cause of accident by sleeping on the road. Petitioner deposed that he was lying on dry grass near the shed No.9 on the side of the road, when accident occurred. R1 has not proved that petitioner was on the road, where traffic was going on. There was no crossexamination that petitioner was lying on the side of the road. There is further no cross examination that R1 was driving the offending truck at fast speed rashly and negligently. That is why he did not observe the petitioner lying on the side of the road.
16. R1 was charge sheeted for offences punishable under section 279/338 IPC. R1 has not explained as to why he was charge sheeted for causing the said accident. In view of the testimony of the petitioner, certified copies of report under section 173 Cr. PC, FIR, site plan of the accident, MLC of the injured, mechanical inspection report of the offending vehicle, MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 9 of 38 preponderance of probability is that R1 caused the said accident by driving the offending truck rashly and negligently, which resulted in causing crush injuries on the body of the petitioner necessitating amputation of both his legs.
This issue is decided accordingly in favour of the petitioner and against the respondents.
ISSUE No.2
17. R3 examined Navneet Goel, its assistant manager as R3W1. He deposed that as per their investigation report driving licence of R1 had expired on 08.02.2008 and it was renewed from 24.01.2009 to 23.01.2012.
18. R3 also served notice under order 12 Rule 8 of the Civil Code Procedure on R1 and R2 calling upon them to produce driving licence of R1 and permit to ply the vehicle in Delhi vide Ex.R3W1/1 and Ex.R3W1/2 dispatched vide postal receipts Ex.R3W1/3, Ex.R3W1/4 and A.D duly served on R2 as Ex.R3W1/5.
19. Ld. Counsel for R3 contended that insurance is not liable to pay any compensation in view of the fact that R1 did not have a driving licence, which was valid and effective on the date of MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 10 of 38 accident. As per investigation report of R3, Ex.R3W1/7, which is not disputed, driving licence of R1 was valid from 09.02.2005 to 08.02.2008 and from 24.01.2009 to 23.01.2012. Admittedly driving licence of R1 had expired on the date of accident.
20. Counsel for R3 has relied upon National Insurance Company Ltd. v. Vidhyadhar Mahariwala & Ors., IV(2008) ACC 714 (SC), in which date of accident was 11.06.2004. Driving licence was initially valid from 15.12.1997 to 14.12.2000 and thereafter from 29.12.2000 to 14.12.2003. It was again renewed from 16.05.2008 to 15.05.2008. Hon'ble Apex Court held that insurance company had no liability.
21. Learned counsel has further relied upon New India Assurance Company Ltd. v. Suresh Chandra Aggarwal, III (2009) ACC 895 (SC), in which accident occured on 29.02.1992. Driving licence of the driver expired on 25.10.1991, four months prior to the accident and it was renewed subsequently from 23.03.1992. No application for renewal of licence was made within 30 days of date of its expiry. So, it was held that licence could not be renewed with effect from the date of its expiry, but only with effect from the MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 11 of 38 date of its renewal and accordingly driver had no valid and effective licence on the date of accident. Learned counsel for R3 had taken me through observations of Hon'ble Apex Court made in para 16, which are extracted hereunder: "From a plain reading of Section 15 of the Act, it is clear that if an application for renewal of licence is made within 30 days of the date of its expiry, the licence continues to be effective and valid without a break as the renewal dates back to the date of its expiry. Whereas, when an application for renewal is filed after more than 30 days after the date of its expiry, Proviso to Subsection (1) of Section 15 of the Act, gets attracted and the licence is renewed only with effect from the date of its renewal, meaning thereby that in the interregnum between the date of expiry of the licence and the date of its renewal, there is no effective licence in existence".
22. Ld. Counsel has further referred to Ishwar Chandra & Ors. v. Oriental Insurance Co. Ltd. & Ors., II (2007) ACC 63 (SC), in which accident took place on 28.04.1995. Licence of driver of the offending vehicle expired on 27.08.1994. Learned Counsel has referred to observations made by Hon'ble Apex Court in para 8, 9 and 10 of the judgment, which are extracted MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 12 of 38 hereunder: "8. Section 15(1)of the Act and the first proviso appended thereto reads as under:
"15. Renewal of driving licence.(1) Any Licensing Authority may, one application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry:
Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal."
"9. From a bare perusal of the said provision, it would appear that the licence is renewed in terms of the said Act and the rules framed thereunder. The proviso appended to Section 15(1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place 28.04.1995. As on the said date, the renewal application had not been filed, the MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 13 of 38 driver, did not have a valid licence on the date when the vehicle met with the accident.
"10. In Swaran Singh (supra), whereupon the learned Counsel appearing on behalf of the appellants relied upon, it is stated:
"45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 14 in unequivocal terms states that the licence remains valid for a period of thirty days from the day of its expiry".
23. I have carefully applied my mind to the judgments quoted above and the facts of the present case, which are different from the facts of the cited cases.
24. In the present case, driving licence of R1 was valid from 09.02.2005 to 08.02.2008 and thereafter from 24.01.2009 to 23.01.2012. Accident occurred on 16.02.2008. By virtue of Proviso to section 14 of the Act, the licence was valid for a period of 30 days from the date of its expiry. Section 14 of the MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 14 of 38 Act is extracted hereunder: "14. Currency of licences to drive motor vehicles.
1) A learner's licence issued under this Act shall, subject to the other provisions of this Act, be effective for a period of six months from the date of issue of the licence.
(2) A driving licence issued or renewed under this Act shall,
(a) in the case of a licence to drive a transport vehicle, be effective for a period of three years:
[Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and]
(b) in the case of any other licence,
(i) if the person obtaining the licence, either originally or on renewal thereof, has not attained the age of [fifty years] on the date of issue or, as the case may be, renewal thereof, (A) be effective for a period of twenty years from the date of such issue or renewal; or MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 15 of 38 (B) until the date on which such person attains the age of [fifty years], whichever is earlier;
[(ii) if the person referred to in sub clause (i), has attained the age of fifty years on the date of issue or as the case may be, renewal thereof, be effective, on payment of such fee as may be prescribed, for a period of five years from the date of such issue or renewal:] Provided that every driving licence shall, notwithstanding its expiry under this subsection continue to be effective for a period of thirty days from such expiry." (emphasis supplied) 25 Hon'ble Apex Court in Ishwar Chandra (supra), the judgment relied on by learned counsel for R3, quoted with approval its earlier judgment in Swaran Singh and stated that as per proviso to Section 14 of the Act licence remains valid for a period of 30 days from the date of its expiry.
26. In none of the cases relied by learned counsel for R3, benefit of grace period of 30 days was available to the driver.
27. Facts of the present case are similar to the facts in the following cases: In Sunita Yadav v. Laxman & Anr. MAC. APP. No. MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 16 of 38 508/2012. driver of the offending vehicle possessed driving licence, which was valid from 09.06.2003 to 08.06.2006.
Accident occurred on 02.07.2006. Hon'ble Delhi High Court vide its order dated 26th September, 2012 observed that by virtue of Proviso to section 14 of the Act licence was valid for a period of 30 days from the date of its expiry.
28. In Haryana Roadway v. National Insurance Co. Ltd. MAC APP. 7/2012, accident took place on 06.05.2005. Driving licence was valid upto 08.04.2005. Hon'ble Delhi High Court vide its order dated 09.07.2012 held that since driving licence expired on 08.04.2005, it was valid upto 08.05.2005, as it continues to be effective for a period of 30 days from the date of its expiry. So, driving licence was valid and effective on the date of accident.
29. Similarly in National Insurance Co. Ltd. v. Chimna Driv & Ors. 2010 ACJ 1854, accident occurred on 14.01.2004. Licence was valid upto 07.01.2004. It was held that licence was valid .
30. Likewise in P. Rohini & another v. P. Kumaran & another 11 (2006) ACC 470, licence was valid upto 09.12.1995, it was MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 17 of 38 renewed on 15.01.1996. Accident occurred on 06.01.1996. Contention of insurance that licence renewed after 30 days was effective from date of renewal and as such the same was not valid at the time of accident was repelled and it was held that licence was valid for 30 days after expiry and so it was valid till 08.01.1996.
31. In Oriental Insurance Co. Ltd. v. Kali & Ors. 2005 ACJ 1604, licence expired on 14.03.1995. Date of accident was 28.03.1995. It was held that going b y proviso to section 14 of the Act one month period had not run out so the licence was, notwithstanding it expiry, effective on the date of accident.
32. In the present case driving licence of R1 admittedly expired on 8th February, 2008. Accident occurred on 16th February, 2008. So, it was valid till 8th March, 2008 in view of Proviso to Section 14 of the Act.
33. Ld. Counsel for R3 has further contended that R1 and R2 had not produced permit of the offending vehicle for plying the same in Delhi on the date of accident.
34. Hon'ble Karnataka High Court in Ramakrishana Reddy v. Manager, HMT Ltd., 2003 ACJ 105 had denounced tendency of MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 18 of 38 insurance companies to take each and every defence without bothering to verify the same before filing their written statement. Such attitude of Insurance Companies was termed as "play it safe" "deny everything await the award".
35. R1 and R2 have placed on record copy of permit of the offending vehicle, issued by District Transport Officer, Faridabad, Haryana, vide which R2 was authorized to ply the offending vehicle in the state of Delhi from 15.01.2008 to 14.01.2009. R3 did not bother to verify the genuineness of this document.
36. R1 and R2 have further placed on record copy of certificate of fitness of the offending vehicle, which was issued on 28.01.2008 and was valid till 27.01.2009. R3 did not bother to have even this document verified.
37. In The New India Assurance Co. Ltd. v. Kumud Devi & Ors. MAC A PP. 520/2010, the offending vehicle did not possess fitness certificate on the date of accident. Hon'ble Delhi High Court held that absence of fitness certificate does not empower insurance company to avoid its liability under section 149(2) of the Act.
MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 19 of 38
38. In New India Assurance Co. Ltd. v. Sanjay Kumar & Ors. ILR 2007 (II) Delhi 733, it was held that initial onus to prove breach of conditions of insurance policy is on the insurance company R3 has not adduced any evidence to prove that R1 & R2 did not have a valid driving licence or permit for plying the offending vehicle in Delhi on the date of accident.
This issue is accordingly decided against R3. ISSUE NO.3 QUA QUANTUM OF COMPENSATION:
39 "No amount of money can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of life a limb can never be eliminated or ameliorated completely". (Hon'ble Apex Court in R.K. Malik & another v. Kiran Pal 2009 ACJ 1924).
40. It is true that no amount of money can restore the limb lost or mutilated but at the same time law recognizes and aims at making good loss suffered in a road accident as far as money can do so in a fair and reasonable manner.
41. Section 166 of the Act mandates payment of just compensation. In General Manager, Kerala Road Transport Corporation, Trivandrum v. Susamma Thomas & Ors., (1994) 2 MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 20 of 38 SCC 176, Hon'ble Supreme Court observed: "5...... The determination of the quantum must answer what contemporary society "would deem to be a fair sum such as would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing". The amount awarded must not be niggardly since the law values life and limb in a free society in generous scales'. All this means that the sum awarded must be fair and reasonable by accepted legal standards."
42. In Arvind Kumar Mishra v. New India Assurance Company Limited, (2010) 10 SCC 254. Hon'ble Supreme Court observed that while awarding compensation in personal injury cases, an attempt should be made to put the injured in the same position as he was as far as money can do.
"9. 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 he was insofar as money can. Perfect compensation is hardly possible but one MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 21 of 38 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."
43. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, Supreme Court held that compensation on account of loss of earning capacity has to be granted in accordance with the nature of job of the victim of motor accident.
"11. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 22 of 38 compensation (see for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. 2010 (10) SCC 254 and Yadava Kumar v. D.M., National Insurance Co. Ltd. 2010 (10) SCC 341.
x x x x
14. 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 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 functions; 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 MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 23 of 38 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."
44. In Kavita v. Deepak & Ors., Civil Appeal No. 5945/2012 decided on 22.08.2012, Hon'ble Supreme Court held that an attempt should always be made to award adequate compensation not only for the physical disability but also for the loss of earning and inability to lead a normal life and enjoy usual amenities of life.
45. Now turning to the evidence in this case, petitioner was examined as PW1. He deposed that both of his legs were run over by the offending vehicle driven by R1. He was removed to BJRM Hospital. He was given first aid there. Then, he was shifted to Hindu Rao Hospital, where he remained admitted and was discharged on 10.03.2008. During his stay at Hindu Rao Hospital, his right leg was amputated and treatment of his left MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 24 of 38 leg was done. He was referred to Safdarjang Hospital for further treatment. He visited OPD of Safdarjang Hospital on 10.03.2008, 11.03.2008 and 13.03.2008. Thereafter, on 09.04.2008, he was admitted in The Punjab Health Systems Corporation, Civil Hospital at Patti, District Tarn Taran, Punjab. He was discharged on 02.06.2008. During his stay at Civil Hospital, Patti, his left leg was also amputated and revision amputation on right thigh was also done. Due to amputation of both of his legs he would not walk or do any work and has lost his earning capacity to the extent of 100% disability as per disability certificate. History of medical treatment was proved as Ex.PW1/2 to Ex.PW1/7 and Ex.PW1/36 to Ex.PW1/37. Medical bills and receipts were proved as Ex.PW1/8 to Ex.PW1/35.
LOSS OF INCOME
46. Petitioner deposed that at the time of accident, he was working as second driver with M/s J.S. Khera Transport Company Azad Pur Mandi, Delhi and he was earning Rs. 4,500/ per month and Rs. 100/ per day as food allowance. In his crossexamination, he stated that he did not have any MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 25 of 38 document to prove that he was second driver of the offending truck. He further stated that he did not have any documentary proof of his working with M/s J.S. Khera Transport Company Azad Pur Mandi, Delhi. He also stated that he did not have any proof of his salary.
47. In ICICI Lombard General Insurance Company Ltd. v. Hari Singh & Ors. MAC APP No. 122/2011, it was urged by LRs of the deceased that she used to sell milk and milk products at her house and was earning Rs.15,000/ per month. It was contended by Ld. Counsel for LRs of the deceased that Claims Tribunal ought to have accepted the deceased's income at Rs. 15,000/ per month. Since no documentary evidence with regard to deceased's profession was produced, Claims Tribunal was held right in awarding loss of dependency on minimum wages.
48. In New India Assurance Company Ltd. v. Maya Devi & Ors. MAC.APP.627/2011 there was no documentary evidence with regard to the employment of the deceased as a cook at M/s Aman Deep Dhaba or his salary at Rs.8,000/ per month. Dhaba was not registered with the Sales Tax/Vat Department. No MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 26 of 38 register for payment of wages was maintained. No receipt regarding payment of any salary to the deceased was produced. In absence of any evidence regarding employment of the deceased with the said Dhaba or his salary at Rs.8,000/ per month, Hon'ble High Court vide its order dated 27.08.2012 held that the only option left is to award loss of dependency on minimum wages.
49. Accordingly, in absence of any documentary evidence regarding the occupation of the petitioner or his income, loss of earning has to be calculated on the basis of minimum wages. Petitioner has further not proved that he possessed driving licence. As such minimum wages of unskilled have to be taken into account, which were Rs. 3633/ at the time of accident.
50. In Santosh Devi V. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559, it was held by Apex Court that even in the absence of any evidence as to future prospects an increase of 30% in the income has to be provided where the victim had fixed income or was a self employed person. Relevant portion of Santosh Devi is extracted hereunder :
"14........In our view, it will be naive to say that the wages or total MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 27 of 38 emoluments/income of a person who is self employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of the rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are selfemployed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 28 of 38 employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are selfemployed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 29 of 38 fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
Accordingly, petitioner is entitled to an addition of 30% towards inflation.
51. Petitioner suffered amputation of both his legs resulting into 100% disability. Petitioner deposed that on account of amputation of both of his legs, he is unable to walk or do any work.
52. Dr. Paramjeet Singh, Medical Officer, Civil Hospital, Patti as PW3 stated that "On 09.04.2008 with a history of accident sustained in Delhi. Initially he was treated at a hospital in Delhi where an amputation was done through the right thigh and a external fixator was applied to his badly crushed left leg. On examination it was found that the wound in the leg was not healed and was discharging pus. After his hemogolobin was brought to normal level then an amputation was done below the left knee and a revision amputation was then done on the right thigh. In my opinion permanent MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 30 of 38 disability of patient Sh. Dilbagh Singh is 100 per cent".
53. During cross examination PW3 clearly stated that petitioner cannot perform any ambulatory job. He denied the suggestion of counsel for R3 that disability is 50% in relation to whole body.
54. Learned Counsel for R3 argued that since upper part of body of petitioner was normal 50% disability should be taken qua whole body. I tend to disagree. Vide medical certificate Ex.PW1/1, dated 24.06.2009, issued by Orthopadic Surgeon Civil Hospital Tarn Taran, petitioner suffered 100% permanent disability on account of amputation of both lower limbs below knee.
55. Petitioner as PW1 had deposed that he was working as second driver on the offending truck with R1. In absence of any driving licence, he could not prove the same but there is no crossexamination that he was working with R1 on the said truck. There is no crossexamination that they had come from Deemapur (Assam) with ginger in the said truck, which was unloaded at Azad Pur Mandi. In absence of documentary proof that petitioner was working as a second driver on the offending MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 31 of 38 truck, it can reasonably be inferred that he must at least be working as a helper. After having suffered amputation of both his legs, he cannot work even as a labourer because job of labourer demands movement from one place to another which he will not be able to do. He will be virtually confined at home. Learned Counsel for R3 could not convince me that petitioner was still able to work. What work he could do at home so that he could earn his livelihood? I tend to believe the petitioner that he is not able to carry out any work to be able to earn his living. Thus, he is entitled to compensation for loss of 100% earning capacity towards loss of future earning capacity.
56. As per Ex.PW1/1, age of applicant was 36 years on 24.06.2009. Accident occurred on 16.02.2008, so he was 35 years at the time of accident. As such multiplier of 16 is applicable as per Sarla Verma v. DTC (2009) 6 SCC 121 and loss of earning capacity is of Rs. 9,06,797/ (3633+30%x12x16).
CONVEYANCE CHARGE AND SPECIAL DIET
57. With the nature of disability suffered by the petitioner, he would be unable to move in any public transport. He would MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 32 of 38 always require a taxi or personal vehicle to go to the doctor or to do any other work outside home.
58. In Harmohinder Singh v. Mangla Prasad & Ors., MAC. APP.815/2010, decided on 27th August, 2012, on similar facts, Hon'ble Delhi High Court awarded compensation of Rs. 1,32,000/ ( Rs. 1000/ x 12 x 11) towards conveyance and Rs. 15,000/ towards diet. Accordingly, in this case compensation of Rs.1,92,000/ (1000X12x16) is granted towards conveyance charges from the period of his treatment till he survives and Rs. 15,000/ towards special diet.
ATTENDANT CHARGES
59. With the nature of disability suffered by the petitioner he would need an attended to carry out his day to day work. Hon'ble Delhi High Court in DTC v. Lalit AIR 1981 Delhi 558 held that victim is entitled to compensation even if no attendant is hired and some family member renders gratuitous services.
60. On similar facts, Hon'ble Delhi High Court in Harmohinder Singh (supra) awarded Rs. 50,000/ as lumpsum compensation towards attendant charges. Therefore, an amount of Rs. 50,000/ is granted towards attendant charges. MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 33 of 38 NONPECUNIARY DAMAGES
61. Having suffered 100% permanent disability, petitioner will not be able to enjoy usual amenities of life. On similar facts Hon'ble Delhi High Court in Harmohinder Singh (supra) awarded Rs. 1,50,000/ towards pain and suffering and Rs. 2,00,000/ towards loss of amenities in life and disfigurement. I quote the relevant para of the order:
"26. It is difficult to measure in terms of money the pain and suffering which is suffered by the claimant on account of serious injuries caused to him in a motor accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim of a motor accident. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the parts of the body where the injuries were sustained; surgeries (if any) underwent by the victim; confinement in the hospital and the duration of the treatment.
27. In case of Govind Yadav v. New India Insurance Co. Ltd. (2011) 10 SCC 683, where a victim aged about 24 years suffered amputation of one leg above knee, a compensation of Rs. 1.5 lacs was awarded towards pain and suffering and MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 34 of 38 another sum of Rs. 1.5 lacs was awarded towards loss of amenities in life and loss of marriage prospects.
1. In the instant case, the Appellant is a married person aged about 52 years. Of course, he has suffered amputation of both of his legs below knee. Considering the facts and circumstances of this case, I would award a compensation of Rs. 1,50,000/ towards pain and suffering and Rs. 2,00,000/ towards loss of amenities in life and disfigurement."
Accordingly, petitioner is granted Rs. 1,50,000/ towards pain and suffering and Rs. 2,00,000/ towards deprivation of amenities in life and disfigurement.
PURCHASE OF ARTIFICIAL LIMBS
62. In para 8 of his affidavit, petitioner deposed that in future he will have to use artificial limb which will also require day to day repair and replacement after sometime. There is no cross examination on this. In Harmohinder (supra) Hon'ble Delhi High Court awarded Rs. 4,00,000/ towards cost of purchase of artificial limb. Accordingly, petitioner is granted Rs. 4,00,000/ towards purchase of artificial limb.
MEDICAL TREATMENT EXPENSES MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 35 of 38
63. Petitioner proved his medical bills and receipts as Ex.PW1/8 to Ex.PW1/34. The total bills are in the sum of Rs. 10,783/. There is no cross examination on this. As such said sum of Rs. 10,783/ is awarded towards treatment expenses.
64. The compensation awarded is tabulated below: Sl. No Compensation under various heads Amount awarded
1. Medical Treatment Expenses Rs. 10,783/ 2 Loss of Earning Capacity Rs. 9,06,797/
3. Attendant Charges Rs. 50,000/
4. Purchase of Artificial Limb Rs. 4,00,000/
5. Loss of Amenities in Life & Rs. 2,00,000/ Disfigurement
6. Pain and Suffering Rs. 1,50,000/
7. Conveyance Rs. 1,92,000/
8. Special Diet Rs. 15,000/ Total Rs. 19,24,580/ The over all compensation comes to Rs. 18,99,580/ (19,24,58025,000) after deduction of interim award.
65. R3 is, accordingly directed to deposit the awarded amount of Rs.18,99,580/ with interest at the rate of 7.5 % per annum from the date of filing of claim petition till its realisation in Punjab National Bank, Madhuban Chowk Branch, Sector14, MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 36 of 38 Rohini Delhi85 through its Branch Manager in the accounts to be opened by the petitioners, within 30 days from today.
66. In view of the judgment in Susamma Thomas & Others (supra) for appropriate investments to safeguard the amount from being frittered away by the petitioner owing to his ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered:
An amount of Rs. 3,99,580/ be released to him out of his share. Remaining amount of Rs. 15,00,000/ be kept in three FDRs of Rs. 5,00,000/ each (FDR of Rs.5,00,000/ for five years, FDR of Rs.5,00,000/ for ten years and FDR of Rs.
5,00,000/ for fifteen years.
67. The fixed deposit on its maturity may be renewed at the discretion of the petitioner or deposited in his saving bank accounts.
68. The interest on the aforesaid fixed deposits shall be paid quarterly by automatic credit of interest in his Saving Account.
69. The petitioner shall not be having any facility of loan or advance on these FDRs. However, in case of emergent need, he may approach this court for premature withdrawal of amount. MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 37 of 38
70. No cheque book be issued to the petitioner without the permission of this court.
71. The Bank shall issue Fixed Deposit Pass Book instead of the FDRs to petitioner and the maturity amount of the FDRs be automatically credited to the Saving Bank Account at the end of the FDRs.
72. On the request of the petitioner, Bank shall transfer the Saving Account to any other branch according to his convenience.
73. The petitioner shall furnish all the relevant documents for opening of the Saving Bank Account to the Branch Manager of the said bank.
74. Copy of this order be given to parties for compliance. Copy of this order be also sent to Branch Manager of the said bank.
75. The petition is accordingly disposed of. File be consigned to record room.
Announced in the open Court Judge MACT
today i.e.17.12. 2012 Rohini Courts,
Delhi
MACT No. 400/08 Dilbagh Singh Vs. Ram Avtar 38 of 38