Delhi District Court
Dar - Rawani Khatoon vs Ram Babu Mehto on 14 December, 2023
IN THE COURT OF DR. TARUN SAHRAWAT
PRESIDING OFFICER
MOTOR ACCIDENT CLAIMS TRIBUNAL, SHAHDARA
KARKARDOOMA COURTS, DELHI
In the matters of:
I). MACT no. 382/2018; Rawani Khatoon & Ors. v. Ram Babu Mehto &
Ors.
II). MACT no. 381/2018; Gulnaz v. Ram Babu Mehto & Ors.
(I). MACT no. 382/2018
1. Rawani Khatoon @ Ravani Khatun
W/o Sh. Firoj Mohammad
2. Firoj Mohammad
S/o Sh. Md. Daud
Both R/o E-56/19, Swami Daya Nand Hospital
Village Khera, Shahdara, Delhi-110095. ........Petitioners
versus
1. Ram Babu Mehto (Driver)
S/o Sh. Shyam Karan
R/o Flat no. 289, Shop no.7, Pratap Khand,
Jhilmil, Vishwakarma Nagar, Delhi-110095.
Permanent Address : Village & PS Ikma, Chhapra, Bihar.
2. Rajeev Kumar (Regd. Owner)
S/o Sh. Shatrughan Prasad
R/o Flat no. 289, Shop no.7, Pratap Khand,
Jhilmil, Vishwakarma Nagar, Delhi-110095.
3. Shri Ram General Insurance Co. Ltd. (Insurer)
506, 507, 5th Floor, Pragati Building, Laxmi Nagar,
Delhi. ......Respondents
________________________________________________________________________________ MACT nos.382/2018 & 381/2018 1 of 25 Pages (II). MACT no. 381/2018 Gulnaz D/o Istakar R/o Jhuggi E-56/260, Khera Village, G.T. Road, Shahdara, Delhi-110095. .......Petitioners versus
1. Ram Babu Mehto (Driver) S/o Sh. Shyam Karan R/o Flat no. 289, Shop no.7, Pratap Khand, Jhilmil, Vishwakarma Nagar, Delhi-110095.
Permanent Address : Village & PS Ikma, Chhapra, Bihar.
2. Rajeev Kumar (Regd. Owner) S/o Sh. Shatrughan Prasad R/o Flat no. 289, Shop no.7, Pratap Khand, Jhilmil, Vishwakarma Nagar, Delhi-110095.
3. Shri Ram General Insurance Co. Ltd. (Insurer) 506, 507, 5th Floor, Pragati Building, Laxmi Nagar, Delhi. ......Respondents Date of filing DARs : 07.06.2018 Final arguments concluded on : 08.12.2023 Date of Award : 14.12.2023 AWAR D
1. Vide this common award, I shall decide two DAR (Detailed Accident Reports) cases, filed with respect to death of Nazia Khatoon (minor girl aged 12 years) and injuries to Gulnaz (minor girl aged 13 years) on account of same motor vehicular accident. The DARs have been treated as claim petition for grant of compensation under Section 166 of the Motor Vehicle Act, 1988 to the claimants/ legal heirs of deceased and injured. ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 2 of 25 Pages
2. Briefly stated the facts of the cases as from the DARs are that on 04.04.2018 at about 01:00 p.m., petitioner/ injured Gulnaz and her cousin Nazia Khatoon (since deceased), students of class 9th and 8th respectively of the same school i.e. Govt. School, Dilshad Garden, Delhi, after attending the school, were going to their house on e-rickshaw and when they reached in front of Peer Baba Mazar, SDN Hospital, Shahdara, all of a sudden, an Eicher Tempo vehicle bearing registration no. DL1LY- 2682 (in short 'offending vehicle'), being driven by respondent no.1 rashly, negligently and at a fast speed came from behind and hit the e- rickshaw on its left side with a great force and made the e-rickshaw toppled. Both, Gulnaz and Nazia Khatoon got injured and they were taken to GTB Hospital, Delhi, where their MLCs were prepared. In connection with the accident, FIR no.123/2018 under sections 279/337 IPC was lodged at PS GTB Enclave, Delhi. Offending vehicle was seized and its driver/ respondent no.1 was apprehended from the spot. As per DARs filed by the Investigating Agency, the accident occurred due to rash and negligent driving of the offending vehicle by respondent no.1, which was owned by respondent no.2 and insured with respondent no.3 at the time of accident.
3. Respondent nos.2 and 3 filed their written-statements. Respondent no.1 did not appear despite service of notice of DAR and was proceeded ex-parte vide order dated 28.08.2018.
3.1 In the written-statement filed by respondent no.2, it is stated that the police had registered a false case against the driver of the answering respondent. Further, it is stated that answering respondent had got the driving test of the respondent no.1 taken through a very experienced driver after seeing his driving license at the time of his appointment as driver on ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 3 of 25 Pages his vehicle and the vehicle was duly insured with the respondent no.3 at the time of accident.
3.2 In the written-statement filed by the insurance company/ respondent no.3, it has been admitted that the offending vehicle was insured with it on the date of accident, however, it contended that its liability was subject to compliance of terms and conditions of the insurance policy. It has been contended that as per DAR, the driver of the offending vehicle was holding a fake driving license and thus, there is violation of the provision of section 149(2)(a)(ii) of Motor Vehicles Act and therefore, insurance company is not liable to pay compensation. Further, it is contended that the accident was caused due to negligence of driver of the battery rickshaw but said vehicle had not been searched, seized and implicated as respondent in the DAR.
4. Upon completion of pleadings of the parties, my learned predecessor framed the issues on 28.08.2018, as under:
In MACT no. 382/2018 (In re: deceased Nazia Khatoon)
i). Whether respondent no.1 was driving the offending vehicle no.
DL-1LY-2682 on 04.04.2018 at about 01:00 p.m., in front of SDN Hospital, Opposite Peer Baba Mazar, SDN Hospital Road, Delhi in rash and negligent manner and caused the death of deceased Nazia Khatoon? OPP
ii). Whether the petitioners are entitled for compensation, if so, to what extent and from whom? OPP.
iii). Relief.
________________________________________________________________________________ MACT nos.382/2018 & 381/2018 4 of 25 Pages In MACT no. 381/2018 (In re: injured Gulnaz)
i). Whether respondent no.1 was driving the offending vehicle no.
DL-1LY-2682 on 04.04.2018 at about 01:00 p.m., in front of SDN Hospital, Opposite Peer Baba Mazar, SDN Hospital Road, Delhi in rash and negligent manner and caused injuries to the petitioner Gulnaz? OPP
ii). Whether petitioner is entitled for compensation, if so, to what extent and from whom? OPP
iii). Relief.
5. Vide said order dated 28.08.2018, my learned predecessor consolidated both the cases with the direction that claim petition bearing MACT no.382/2018 (in re: deceased Nazia Khatoon) shall be treated as main case and common evidence in both the claim cases would be recorded and kept in the main case.
6. In order to establish their cases, the petitioners adduced common evidence in main case and examined following witnesses:
(i) PW1 Smt. Rawani Khatoon, mother of deceased Nazia Khatoon (in MACT no.382/2018) testified on the strength of affidavit Ex.PW1/X regarding the manner of accident in which the deceased suffered fatal injuries and regarding the losses suffered as a result of her death and relied upon the following documents:-
• Copy of death certificate of deceased Nazia Khatoon as Ex.PW1/1.
• Copy of Aadhaar Card of petitioner no.1 as Ex.PW1/2. ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 5 of 25 Pages • Copy of DAR as Ex.PW1/3 (colly).
• Receipt regarding handing over dead body of deceased as Ex.PW1/4.
• School result of class VII exams of deceased as Ex.PW1/5. • Copy of School Leaving Certificate of deceased as Ex.PW1/6. • Copy of Aadhaar Card of deceased as Ex.PW1/7.
(ii) PW2 Istkar, father of injured Gulnaz (in MACT no.382/2018) on the strength of his affidavit Ex.PW2/X, regarding injuries suffered by her daughter, treatment taken, expenses incurred and losses suffered as a result of her injuries and relied upon the following documents:-
• Treatment record as Ex.PW2/1 (colly).
• His Aadhaar Card as Ex.PW2/2.
• DAR filed by the IO as Ex.PW2/3 (colly).
• Birth certificate of injured Gulnaz as Ex.PW2/4. • Aadhaar Card of injured Gulnaz as Ex.PW2/5. • Copy of School result of class-8th of injured Gulnaz. As Ex.PW2/6.
(iii) PW3 Gulnaz testified being injured (in MACT no.381/18) as well as eye-witness of the accident. Being child victim, her statement was recorded through video conferencing in camera proceedings wherein she narrated the manner of accident.
7. On the other hand, respondents got examined the following witnesses:
________________________________________________________________________________ MACT nos.382/2018 & 381/2018 6 of 25 Pages
(i). R2W1 Rajeev Kumar, the owner of the offending vehicle examined himself on the strength of his affidavit Ex.R2W1/A. He relied upon the following documents:
• Copy of RC of the offending vehicle as Ex.R2W1/1. • Copy of Permit of the offending vehicle as Ex.R2W1/2. • Copy of Fitness Certificate of the offending vehicle as Ex.R2W1/3.
• Copy of certificate-cum-policy schedule of the offending vehicle as Ex.R2W1/4.
(ii) R3W1 Sh. Shivam Raj, Legal Officer of Shriram General Insurance Co. Ltd. deposed on the strength of his affidavit Ex.R3W1/A and relied upon the following documents:
• Copy of notice under order 12 Rule 8 r/w section 151 CPC and postal receipts as Ex.R3W1/1 to Ex.R3W1/4. • Letter received from counsel for respondent no.1 as Ex.R3W1/5 to Ex.R3W1/6.
• Attested copy of insurance policy as Ex.R3W1/7. • DAR already exhibited as Ex.PW1/3.
8. No other witness was examined in these cases. The evidence was closed and thereafter, I heard the final arguments advanced by learned counsel for the parties and perused the entire evidence and other material placed on record. My findings on the issues are as under:-
ISSUE NO.1 (in both cases):
9. Issue no.1, being interlinked in both the cases, shall be decided ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 7 of 25 Pages here together by my common findings. It is the settled proposition of law that in an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is to be tested on the touchstone of preponderance of probabilities. Holistic view is to be taken while dealing with the Claim Petition based upon negligence. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Reference may be made to the judgments titled as New India Assurance Co. Ltd. v. Sakshi Bhutani & Others., MAC APP. No. 550/2011 decided on 02.07.2012, Bimla Devi & Others v. Himachal Road Transport Corporation & Others (2009) 13 SC 530, Parmeshwari v. Amirchand & Others 2011 (1) SCR 1096 & Mangla Ram v. Oriental Insurance Company Ltd. & Others 2018, Law Suit (SC) 303.
10. Coming back to the issue, I may observe that the testimony of PW3 Gulnaz (victim child) who witnessed the incident being injured in the accident, is most relevant. PW3 testified that the accident had taken place on 04.04.2018 at around 12:00- 01:00 p.m, when she was returning home from school along with her sister namely Sumairya and cousin Nazia Khatoon on e-rickshaw. She stated that when their e-rickshaw reached near SDN Hospital, a truck bearing no. DL-1LY-2682 came from behind and hit their e-rickshaw from back side. PW3 categorically deposed that the truck was being driven at a high speed when it had hit the e-rickshaw from behind and due to the impact, they fell down on the road and e-rickshaw fell over her. Her sister Sumairya sustained injury on her leg and cousin Nazia Khatoon suffered injuries on her head due to which Nazia Khatoon ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 8 of 25 Pages started bleeding and became unconscious. They were taken to GTB Hospital by public persons. During the course of cross-examination, few suggestions were put to PW3 that the e-rickshaw driver was driving his vehicle at a high speed and in rash and negligent manner or that the accident had taken place due to negligence of e-rickshaw driver or that there was no negligence on the part of the driver of offending vehicle, however, she promptly denied all these suggestions.
11. Having gone through the entire evidence of PW3, I find that her deposition on the aspect of rash and negligent act of the respondent no.1 remained intact and could not be shattered in any manner during her cross- examination and hence, the same has to be accepted on its face value itself. Further, her testimony is also corroborated by the documentary evidence brought on record by way of DAR comprising of FIR, Arrest Memo of driver/ respondent no.1, Site Plan, Seizure Memo and Mechanical Inspection Report of the offending vehicle and charge-sheet, etc.
12. Moreover, it is evident from DAR that FIR was registered in the matter on the same day without any delay and registration number of the offending vehicle finds its clear mention in the FIR itself. Seizure memo of offending vehicle which is part of the DAR shows that the offending vehicle was taken into police custody from the spot itself in accidental condition and its driver/ respondent no.1 was also arrested from the spot for causing the accident. Not only this, the respondent no.1 has also been charge-sheeted under Sections 279/338/304-A/408/471 IPC and 3/181 of Motor Vehicles Act in the criminal case by the police after detailed investigation and in a motor vehicle accident claim case, the contents of ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 9 of 25 Pages charge-sheet are admissible in evidence and deemed to be correct under Rule 7 of Delhi Motor Accident Tribunal Rules, 2008, which support the version of petitioners regarding rash and negligent driving of the offending vehicle by respondent no.1.
13. Thus, the facts that FIR had been registered and charge sheet had also been filed against the respondent no.1 by the police, are sufficient proof to conclude that respondent no.1 was negligent. Reliance is placed upon the judgment of Hon'ble Delhi High Court in the case titled as Shabina v. Satvir & Ors. MAC. APP. 980/17 dated 24.01.2020, wherein Hon'ble Delhi High Court observed that in so far as FIR has been registered, criminal case has been initiated against driver of offending vehicle and vehicle was seized, the requirement of proving the preponderance of probability of accident having been caused by rash and negligent driving of the offending vehicle has been established. In the aforesaid case, Hon'ble Delhi High Court referred to the judgment titled as National Insurance Company Pvt. Ltd. v. Smt. Pushpa Rana & Ors. (2008) 101 DRJ 645, wherein it was observed:
"12. The last contention of the appellant insurance company is that the respondents claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. Vs. Meena Variyal: 2007 (5) SCALE 269. ON perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (i) certified copy of the criminal record of criminal case in FIR No. 955/2004, pertaining to involvement of the offending vehicle, (ii) Criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304-A IPC against the driver, (iii) certified copy of FIR, ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 10 of 25 Pages wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel of the appellant also falls face down. There is ample evidence on record to prove negligence on the part of driver."
14. Apart from above, the respondent no.1, the driver of the offending vehicle was the best witness, who could have stepped into the witness box to challenge the testimonies of eye-witness PW2 regarding the above accident and its manner but he preferred not to enter into the witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of the offending vehicle by him in view of the law laid down in case of Cholamandalam M.S. General Insurance Company Ltd. v. Kamlesh, 2009(3) AD (Delhi) 310.
15. The MLC of deceased Nazia Khatoon prepared at GTB Hospital, Delhi, which is also part of the DAR Ex.PW1/3 (colly), reflects that she was brought to the hospital with the history of road traffic accident and was found to have suffered profuse nasal bleeding with swelling over occipital region. Further, her postmortem report shows that she died due to shock as a result of antemortem injury to head produced by blunt force impact.
16. The MLC of injured Gulnaz, prepared at GTB Hospital, Delhi, which is part of the DAR Ex.PW2/3 also shows that she was brought to the ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 11 of 25 Pages hospital with alleged history of road traffic accident and the injuries sustained by her in the accident opined to be grievous in nature.
17. In the light of above discussion, this Tribunal is of the opinion that petitioners have been able to prove on the basis of preponderance of probabilities that the accident had occurred due to rash and negligent driving of the offending vehicle by respondent no.1 and that resulted into death of deceased Nazia Khatoon (in MACT no.382/2018) and grievous injuries to Gulnaz (in MACT no. 381/2018) Issue no.1 in both the cases is, accordingly, decided in favour of petitioner(s).
ISSUE NO.2
18. In view of the finding on issue no.1, petitioners in all the cases are entitled to get compensation, however, the quantum of compensation still needs to be adjudicated. Section 168 of Motor Vehicles Act, 1988 enjoins upon the claim Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation, which appears to be just and reasonable. As per settled law, compensation is not expected to be windfall or a bonanza nor it should be pittance A man is not compensated for the physical injury, he is compensated for the loss which he suffers as a result of that injury (Baker v. Willoughby (1970) AC 467 at page 492 per Lord Reid).
COMPUTATION OF COMPENSATION In MACT no. 312/2018 (In re: deceased Nazia Khatoon)
19. The present case pertains to the death of minor child. For ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 12 of 25 Pages calculating the amount of compensation, in case fatal injury case of a minor child as in the present case, it becomes a challenge for Tribunal to decide a just and fair amount of compensation and thus, it is extremely difficulty to quantify a compensation, in case of death of a child in an accident. It has been observed by Hon'ble Apex court in case of 'R.K. Malik & Another vs. Kiran Pal and Others (2009) 14 SCC 1' as under :
"23. Human life cannot be measured only in terms of loss of earning or monetary losses alone. There are emotional attachments involved and loss of a child can have a devastating effect on the family which can be easily visualised and understood. Perhaps, the only mechanism known to law in this kind of situation is to compensate a person who has suffered non-pecuniary loss or damage as a consequence of the wrong done to him by way of damages/monetary compensation. Undoubtedly, when a victim of a wrong suffers injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness, etc., which is sometimes described as compensation paid for "loss of expectation of life".
20. In 'New India Assurance Co. Ltd. vs. Statender and Ors., AIR 2007 SCC 324', which was also a case relating to compensation for death of a child, wherein Apex Court observed as :
"..12. In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death, nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 13 of 25 Pages neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation."
21. Hon'ble Delhi High Court in Chetan Malhotra vs. Lala Ram (MAC Appeal No.554/2010 decided on 13.05.2016), after examining the precedents on the issue of computation of compensation for death of a child in a road side accident, formulated guidelines for computation of just and fair amount of compensation in case of death of child in an accident. Para 71 lays down the steps to be taken for computation of compensation in this regard. Such guidelines have been binding force for Tribunals in Delhi for calculating the amount of compensation in case of death of child in an accident. However, recently Hon'ble Apex Court in Meena Devi vs. Nunu Chand Mahto (SLP (Civil) No.5435/2019 decided on 13.10.2022) while considering the question of amount of compensation in case of death of a child in a road side accident as in that case also child died in the accident was 12 years, Apex court after taking note of judgments of R.K. Malik and another vs. Kiran Pal and others (2009) 14 SCC 1, Kishan Gopal and Another vs. Lala and others (2014) 1 SCC 244, Sarla Verma vs. DTC (2009) 6 SCC 121, Lata Wadhwa vs. State of Bihar (2001) 8 SCC 197, M.S. Greval vs. Deep Chand Sood (2001) 8 SCC 151 as well as Kurvan Ansari @ Kurvan Ali vs. Shyam Kishore Murmu, (2022) 1 SCC 317, held that in case of a child at the age of 12 years in view of principle laid down in case of Kishan Gopal's case (supra) notional income of Rs.30,000/- was fixed including future prospects applying multiplier of 15. In view of decision of Hon'ble Apex Court in Sarla Verma's case (supra) counted the loss of dependency to Rs.4,50,000/-. In ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 14 of 25 Pages the present case also the ratio of Meena Devi's case (supra) are squarely applicable.
22. In the present case, PW1 Rawani Khatoon, mother of deceased, during her evidence placed on record School Leaving Certificate (Ex.PW1/6) of deceased child Nazia Khatoon, which shows her date of birth as 23.10.2005 and accordingly, she was 12 years of age on the date of accident (04.04.2018). As per Ex.PW1/6, she was studying in class VII during academic session 2017-18 n Govt. Girls Senior Secondary School, Dilshad Garden, Delhi. PW1 in her affidavit of evidence proved the documents i.e. death certificate of deceased as Ex.PW1/1, result of class VII exams of deceased as Ex.PW1/5, her Aadhaar Card of deceased as Ex.PW1/7. As such it is proved on the record that at the time of accident, deceased was a student aged 12 years. Thus, in view of the above discussion the notional income of the deceased is assessed to be Rs.30,000/- as laid down by Apex Court in Meena Devi's case (supra) and on the basis of the same, the amount of compensation payable to the petitioners in the present case is calculated to be Rs.4,50,000/-.
NON-PECUNIARY DAMAGES
23. In the light of the decision of Hon'ble Supreme Court, dated 31.10.2017, in case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (AIR 2017 SC 5157), a compensation of Rs. 40,000/-, 15,000/- and Rs.15,000/- respectively has been fixed on account of loss of consortium, loss of estate and funeral expenses. Further, in view of recent decisions in case of United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors., Civil Appeal no. 2705 of 2020, decided on ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 15 of 25 Pages 30.06.2020 and in case of Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhur Ram & Ors., Civil Apeal no. 9581/2018, decided on 18.09.2018, Hon'ble Supreme Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium and filial consortium. Accordingly, petitioner nos. 1 and 2, who are parents of deceased shall be entitled to filial consortium. Considering the aforementioned factors, the total compensation is calculated as under:
S. No. Head Amount Awarded
1. Loss of Income of deceased Rs.4,50,000/-
2. Loss of Filial Consortium (40,000 X 2) Rs.80,000/-
3. Compensation for loss of estate Rs.15,000/-
4. Compensation for funeral expenses Rs.15,000/-
Total compensation Rs.5,60,000/-
Thus, the total compensation in the instant matter comes to Rs.5,60,000/-.
In MACT no. 381/2018(In re: injured Gulnaz)
24. The present case pertains to injury and scope of compensation in injury cases has been considered by Hon'ble Supreme Court in case titled as Mr. R.D. Hattangadi v. M/S Pest Control (India) Pvt. Ltd., 1995 AIR
755. The relevant extract is as under:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 16 of 25 Pages those which the victim has actually incurred and which is capable of being calculated in terms of money-, whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may, include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit;
(iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, discomfort, disappointment, hardship, frustration and mental stress in life."
25. Further, in Raj Kumar v. Ajay Kumar & another (2011) 1 SCC 343, Hon'ble Supreme Court of India laid down general principles for computation of compensation in injury cases. The relevant paras of the judgment are reproduced as under:
5. The provisions of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner.
The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 17 of 25 Pages 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.
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary Damages (special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment.
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-Pecuniary Damages (general damages)
(iv) Damages to 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.
________________________________________________________________________________ MACT nos.382/2018 & 381/2018 18 of 25 Pages
26. In the instant matter, perusal of record shows that immediately after the accident on 04.04.2018, injured Gulnaz was taken to GTB Hospital, Delhi, where she was medically attended vide MLC no.A0058/11/18, dated 04.04.2018. As per MLC, she was conscious and oriented and was found to have sustained abrasion of right arm with mild tenderness of left hip. On further perusal of MLC, I may note that the aforesaid injuries suffered by the petitioner were opined to be 'grievous' in nature as per clinical records.
27. I may note that during her cross-examination, injured (PW3) admitted that she remained hospitalized for 2-3 hours at GTB Hospital. Further, it is evident from her treatment documents (Ex.PW2/1), which has been proved by her father PW2 Istkar during his evidence, that she did not require any hospitalization. Treatment record shows that she made two further visits to the doctor, one at Shreya Hospital, Sahibabad, Ghaziabad on 09.04.2018 when she was advised rest for one month and another at GTB Hospital, Delhi on 05.05.2018.
28. Though no document has been placed on record to show the expenses incurred on medical treatment, conveyance, special diet and attendant charges, if any, however, considering the grievous nature of injury and period of treatment, it cannot be ignored that the petitioner must have suffered pain and sufferings to a considerable extent. In the circumstances, I am of the opinion that interest of justice would be served if the petitioner Gulnaz is awarded a lump sum compensation of Rs.70,000/- on account of pain and sufferings and loss of her studies for the treatment period. Ordered accordingly.
________________________________________________________________________________ MACT nos.382/2018 & 381/2018 19 of 25 Pages INTEREST ON AWARD
29. Petitioner(s) in both the cases shall also be entitled to interest @ 8% per annum on the award amount from the date of filing till realization.
LIABILITY
30. Now, the question arises as to which of the respondents is liable to pay the compensation amount. The insurance company has contractual and statutory liability to indemnify the insured, in case, it fails to prove on record that any term or condition of the insurance policy has been violated by the insured. In the instant case, learned counsel for insurance company argued that at the time of accident, insured/ respondent no.2, the owner of the offending vehicle had entrusted the said vehicle to respondent no.1/ driver knowing well that he was not holding a valid or effective driving license as per DAR placed on record and therefore, respondent no.2/ owner is solely liable to pay the compensation to the petitioners on account of violation of the provisions of Motor Vehicle Act and that of the Driver's Clause of the insurance policy.
31. Per contra, learned counsel for the respondent no.2/ owner contended that respondent no.2 had taken proper care and precaution with regard to engagement of respondent no.1 as driver of the offending vehicle and in case, insurance company has serious doubts upon the validity and effectiveness of driving license produced by respondent no.1, the burden is upon the insurance company that there was breach on the part of the owner/ respondent no.2 in carrying out due diligence in relation to such driving license before employing that person to drive the vehicle. In support of his submissions, learned counsel for the respondent no.2 placed reliance upon ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 20 of 25 Pages the decision of Hon'ble Supreme Court in case of 'IFFCO Tokio General Insurance Co. Ltd. v. Geeta Devi & Ors.', decided on 30.10.2023, wherein Hon'ble Supreme Court while referring the case of 'Ram Chandra Singh v. Rajaram & Ors. (2018) 8 SCC 799', which holds that "it is only if the owner was aware of the fact that the license was fake but still permitted such driver to drive the vehicle then the insurer would stand absolved. It was unequivocally held that the mere fact that the driving license was fake, per se, would not absolve the insurer." After referring the aforesaid case law, Hon'ble Apex Court held as under :
"15. As already pointed out supra, once a seemingly valid driving license is produced by a persons employed to drive a vehicle, unless such license is demonstrably fake on the face of it, warranting any sensible employer to make inquiries as to its genuineness, or when the period of the license has already expired, or there is some other reason to entertain a genuine doubt as to its validity, the burden is upon the insurance company to prove that there was a failure on the part of the vehicle owner in carrying out due diligence apropos such driving license before employing that person to drive the vehicle. Presently, no evidence has been placed on record whereby an inference could be drawn that the deceased vehicle owner ought to have gotten verified Ujay Pal's driving license. Therefore, it was for the petitioner-insurance company to prove willful breach on the part of the said vehicle owner. As no such exercise was undertaken, the petitioner- insurance company would have no right to recover the compensation amount from the present owners of the vehicle. The impugned order passed by the Delhi High Court holding to that effect, therefore, does not brook interference either on facts or in law."
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32. In the instant matter, the insurance company has alleged that driving license produced by respondent no.1/ driver of the offending vehicle was fake but insurance company did not place on record any such document which may show that there was willful breach on the part of the owner of the offending vehicle in getting the driving license of respondent no.1 verified from concerned authority.
33. It is discernible that the insurance company has not been able to prove on record that respondent no.2/ owner of the offending vehicle was not diligent in verifying the genuineness of the driving license of the respondent no.1 and further, respondent no.2 as R2W1 has categorically deposed that he had appointed respondent no.1 as driver after taking his driving test through an experienced driver and after seeing that respondent no.1 was driving the vehicle very well and that he had shown his driving license to him and to his experienced driver. Besides, even during cross- examination, R2W1 stated that he had seen the driving license of the respondent no.1. Insurance company also did not take any such exercise so as to show willful breach on the part of the owner of the offending vehicle.
34. In view of above, it is held that in this case, the insurance company has no right to recover the compensation amount from the respondent no.2/ owner of the offending vehicle. Resultantly, the insurance company shall pay the entire compensation and it would not be entitled to recover the same from the insured/ respondent no.2.
________________________________________________________________________________ MACT nos.382/2018 & 381/2018 22 of 25 Pages RELIEF In MACT no. 382/2018 (In Re: deceased Nazia Khatoon)
35. This Tribunal awards a compensation of Rs.5,60,000/- (Rs. Five Lakhs Sixty Thousand Only) to the petitioners along with interest @ 8% per annum from the date of filing of petition till realization to be paid by the respondent no3/ insurance company. Amount of interim award, if any, be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case.
Entitlement, Apportionment and Disbursement
36. The parents of deceased are petitioners in the present claim case. It has nowhere came in evidence that father of deceased is/was not earning and hence, petitioner no.1 Rawani Khatoon, mother of deceased shall be entitled to the entire compensation amount.
37. Manager, UCO Bank, Karkardooma, Delhi is directed that after deposit of the award, a sum of Rs.1,60,000/- along with the corresponding interest shall be forthwith released to the petitioner no.1 Rawani Khatoon by way of transferring the said amount into her MACT Saving Account. Further, the remaining amount of Rs.4,00,000/- along with the interest thereon shall be kept with UCO Bank, Karkardooma Courts, Delhi in MACAD (Motor Accident Claims Annuity Deposit) in the form of 40 monthly FDRs (fixed deposit receipts) to be prepared in the name of petitioner Prem Chand, payable to him in equal amounts for a period of 1 to 40 months in succession, as per the scheme formulated by Hon'ble Delhi High Court vide order dated 07.12.2018 in FAO No. 84/2003, titled as ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 23 of 25 Pages Rajesh Tyagi & Others v. Jaibir Singh & Others. The amount of FDRs on maturity shall directly be released in petitioner's MACT Saving Bank Account without any further order.
RELIEF In MACT no. 381/2018 (In Re: injured Gulnaz)
38. This Tribunal awards a compensation of Rs.70,000/- (Rs. Seventy Thousand Only) to the petitioner/ injured Gulnaz along with interest @ 8% per annum from the date of filing of petition till realization to be paid by the respondent no3/ insurance company.
Disbursement :
39. The entire award amount of Rs.70,000/- along with the interest thereon shall be secured in the form of an FDR to be prepared in the name of petitioner Gulnaz for the period till she attains the age of majority. The amount of FDR on maturity shall directly be released in petitioner's MACT Saving Bank Account without any further order.
Direction to the petitioner(s)
40. The petitioner(s) shall open a saving bank account near the place of his resident. Further, the bank of petitioner is directed to comply with the following conditions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e., the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR ________________________________________________________________________________ MACT nos.382/2018 & 381/2018 24 of 25 Pages amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
41. With these observations, all the three claim petitions are disposed of. Files be consigned to Record Room.
Announced in the open (Dr. Tarun Sahrawat)
Court on 14.12.2023 Presiding Officer-MACT (Shahdara)
Karkardooma Courts, Delhi
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