Delhi District Court
Naveen Yadav (Minor) vs . Banwari Lal Meena & on 28 March, 2018
IN THE COURT OF SH. M. K. NAGPAL PRESIDING
OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
PATIALA HOUSE COURTS, NEW DELHI
MACP No. 630/16
NAVEEN YADAV (MINOR) VS. BANWARI LAL MEENA &
ORS.
Naveen Yadav (Minor)
Through his father and natural guardian Sh. Dhan Singh
R/o P-47/5, Kabul Lines,
Delhi Cantt.-110010
C/O Nb Sub/clk (SD) Dhan Singh,
Army Group Insurance Fund
AGI Bhawan, Rao Tula Ram Marg,
PO-Vasant Vihar, New Delhi-110057.
......Petitioner/Injured
Versus
1. Sh. Banwari Lal Meena (Driver)
S/O Sh. Ramesh Chand Meena,
R/O Village-Odhanda, Teh- Hindoli,
Distt. Bundi (Rajasthan)
2. Sh. Gokul Yadav (Owner)
S/O Sh. Rameshwar Lal,
R/O 162 Jodhwali Dhani Rajawala
Jodatan Anatapura, Shri Madhopur,
Distt. Sikar (Rajasthan)
Also at :-
C/O Raj Kumar Jat
Late Ka Bass
Teh Shahpura, Distt. Jaipur (Rajasthan).
3. The Divisional Manager (Insurer)
United India Insurance Co. Ltd.
Mandi Karyalaya Office,
Transport Nagar Distt. Jaipur, Rajasthan.
.....Respondents
MACP No. 630/16
Naveen Yadav Vs. Banwari Lal Meena Page no.1 of 36 Date of filing of claim petition : 07.07.2014 Date of framing of issues : 19.09.2014 Date of concluding arguments : 19.03.2018 Date of decision : 28.03.2018 AWARD/JUDGMENT
1. The claim for compensation raised in the present petition relates to the injury and permanent disability suffered by the petitioner in an accident that took place on 16.01.2014 at about 07:25AM at the crossing of Sectors 25 & 31 Noida, U.P., regarding which one FIR No. 45/14 U/s 279/337/338 IPC was registered at PS Sector 24, Noida. The offending vehicle involved in this case is one truck bearing registration no. RJ-14GE-4164, which at the time of accident was being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3.
2. Facts of the case, briefly stated, are that the petitioner is a minor child aged about 14 years and son of a Naib Subedar of Indian Army and at the time of accident, he was studying in 8th standard in Army Public School, Sector 37 Noida, U.P. On the day and time of accident, the petitioner was on way to his school in one bus bearing registration no. UP-16BT-5770 with some other students, when the above offending truck had struck against their bus at the above place. The accident resulted into injuries on the persons of 7/8 students, including the petitioner, and the nature of injuries suffered by the petitioner was subsequently reported MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.2 of 36 as grievous. It was also assessed subsequently that he had suffered 90% permanent physical disability in relation to his both upper limbs in the said accident. It is alleged that the above accident took place due to rash and negligent driving of the above said truck by respondent no.1.
3. In joint reply to the petition filed by the respondents no.1 & 2, they have admitted the facts that the said truck was owned by respondent no.2 on the date of accident and it was being driven by respondent no.1. However, it has been submitted by them that the said accident did not take place due to rash and negligent driving of respondent no.1 and further that since the same was insured with respondent no.3, the liability to pay compensation to the petitioner, if any, is of respondent no.3 only. The other allegations of the petitioner have also been denied by them as wrong, either on merits or for want of knowledge on their part.
4. Respondent no.3/Insurance Co. in its reply has also claimed that the said accident did not take place due to rash and negligent driving of respondent no.1. However, it is not disputed that the said truck was insured with them in the name of respondent no.2 on the date of accident.
5. I have heard the arguments advanced by Sh. Nirmal Singh, Ld. Counsel for the petitioner, Sh. Sodan Singh, Ld. Counsel for the respondents no.1 & 2 and Sh.
MACP No. 630/16Naveen Yadav Vs. Banwari Lal Meena Page no.3 of 36 Ramesh Sethi, Ld. Counsel representing the respondent no.3. I have also carefully perused the entire record of the case.
6. My issue-wise findings are as under:
ISSUE NO.1 "Whether the petitioner sustained injuries in the accident which occurred on 16.01.2014 at 7.25 am at Crossing of Sector 25-31, Noida, caused by rash and negligent driving of a vehicle bearing no. RJ-14GE-4164, being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no.3? OPP."
It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case.
7. Reference in this regard can be made to the prepositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgment in MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.4 of 36 the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096(Civil Appeal No.1082 of 2011).
8. The petitioner in support of his claim has examined on record total three witness, i.e. PW-1 Naib Subedar Dhan Singh, who is father of the petitioner, PW-2 Sh.Nasru who was driver of the above school bus and PW-3 is Dr. Satish Kumar of RML Hospital, who was Chairman of the Disability Board of the said hospital, which examined the petitioner. However, it is observed that the testimony of only PW-2 Sh.Nasru is relevant for determining the alleged rashness and negligence on the part of the respondent no. 1 in driving the offending vehicle at the relevant time of accident, though testimony of the other two witnesses and the documents brought in evidence by them may be relevant on the aspect of nature of injuries suffered by the petitioner.
9. On perusal of testimony of PW-2 Sh.Nasru, it is found that he has specifically stated on record that at the place of accident, the light was green for him and he was crossing the road while driving the above bus when the offending truck came from his right side. He has also stated specifically that the said truck came at a very high speed and it hit against his bus from back side on the right, due to which 7-8 students received injuries. He has also stated on record that two children fell down from bus from the emergency gate, which had broken due to accident, and petitioner Naveen MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.5 of 36 Yadav was one of the said two children. He further claims to have called the police and states that the children were taken to hospital by a PCR Van and police recorded his statement.
10. During his cross examination, he has also stated that he was driving the bus at a speed of 20KMPH at the time of accident. Further, though he was not able to tell the speed of the offending truck at the relevant time of accident, but he has also voluntarily deposed on record that the truck was at a high speed as even after hitting the bus it had stopped at a considerable distance. He has further clarified that it was a truck having 12 tyers and his bus had climbed on to the footh path after being hit and then stopped. He also denied the suggestions given to him by Ld. Counsels for respondents that he himself was driving the bus at a high speed or that the said accident took place due to his own negligence or fault or that emergency gate of his bus was already broken and the children fell from the bus due to the said reasons. It is clear from the above that nothing material could be extracted by Ld. Counsels for respondents during the cross examination of this witness, which could have the effect of challenging or controverting the depositions made by the witness with regard to the above manner of accident and his depositions are sufficient to establish on record the fact that the said accident took place only due to the rash and negligent driving of the above offending truck being driven by respondent no. 1.
MACP No. 630/16Naveen Yadav Vs. Banwari Lal Meena Page no.6 of 36
11. Moreover, father of the petitioner/PW-1 has also filed on record and relied upon various documents including, inter-alia, the certified copies of the charge-sheet filed in the above criminal case and copy of FIR of the said case as Ex.PW1/6, site plan prepared at the spot of accident as Ex.PW1/7 and the mechanical inspection reports of the above two vehicles involved in the accident as Ex.PW1/8 & Ex.PW1/9 and these documents duly corroborate the testimony of PW2 with regard to the above manner of accident. Even otherwise, the fact that the respondent no. 1 has already been charge sheeted for the offences punishable under Sections 279/337/338 IPC for causing simple and grievous injuries to different persons by his rash and negligent manner of driving of the said truck is also a circumstance to corroborate the above oral evidence.
12. The facts that the petitioner suffered grievous injury as well as permanent physical disability to the extent of 90% in respect of his both upper limbs are not disputed by the respondents and even otherwise, the same duly stand proved on record from the oral depositions made by PW-1 as well as the medical record/treatment documents of the petitioner, his discharge summary and disability report, which have been brought in evidence.
13. Hence, in view of the above factual and legal background, it is held that the evidence led on record is MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.7 of 36 sufficient to hold that the above accident has taken place due to rash and negligent driving of the respondent no.1 in driving the above said offending vehicle bearing registration no. RJ- 14GE-4164, which was owned by the respondent no.2 and insured with the respondent no.3 and it resulted into grievous injuries and disability on the person of the petitioner. Therefore, this issue is accordingly decided in favour of the petitioner and against the respondents.
ISSUE NO.2 "Whether the injured is entitled for compensation? If so, to what amount and from whom"
As the issue no.1 has been proved in affirmative and in favour of the petitioner, the petitioner has become entitled to be compensated for the injuries suffered in the above accident, but the computation of compensation and liability to pay the same are still required to be decided.
In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In the injury cases a claimant is entitled to two different kinds of compensations i.e. pecuniary as well as non-pecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being calculated in terms of money and the object of MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.8 of 36 awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident. The non-pecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the expenses incurred by the claimant towards his treatment, special diet, conveyance, cost of nursing/attendant, loss of income/earning capacity etc. and the non-pecuniary damages generally include the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. It is also necessary to state here that no amount of money or compensation can put the injured/claimant exactly in the same position or place where he was before the accident and an effort is to be made only to reasonably compensate him or to put him almost in the same place or position where he could have been if the alleged accident had not taken place and this compensation is to be assessed in a fair, reasonable and equitable manner. The object of compensating him is also not to reward him or to make him rich in an unjust manner. It is also well settled that the 'just' compensation to be awarded to the claimant has to be calculated objectively and it may involve some guess work MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.9 of 36 in calculating the different amounts which the claimant may be entitled under the different heads of compensation. Reference in this regard can be made some of the important judgments on the subject like the judgment in the case of R.D.Hattangadi Vs. Pest Control (India) Pvt. Ltd., AIR 1995, SC 755, Arvind Kumar Mishra vs. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr.,(2011)1 SCC 343.
14. In light of the above legal propositions, the amount of compensation which can be considered to be 'just' in the opinion of this tribunal shall be as under:-
(i) Medical or Treatment Expenses As stated above, the petitioner was a minor at the time of accident and he is son of PW1 who was working as a Naib Subedar with the Indian Army. Though, the petitioner was initially taken for treatment to Kailash Hospital, Sector-27, Noida, but he was shifted subsequently to Army Base Hospital, Delhi Cantt., where most of his treatment had taken place and he also underwent few surgeries on both his upper limbs in the said hospital. However, admittedly, no expenses in connection with treatment of the petitioner from the Army Base Hospital have been borne by his father from his own pocket. Though, his father/PW1 in his affidavit claims to have spent an amount of Rs. 11,619/- in connection with treatment of MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.10 of 36 his minor son from the Kailash Hospital and he has also tendered on record photocopies of some bills of purchase of medicines in this regard as Mark A, but the originals of these bills have not been brought in evidence or proved on record and the possibility cannot be ruled out that the same were reimbursed to PW1 from his office, as has also been submitted by the Ld. Counsel for R-3. Hence, in the absence of their being any original bills of the petitioner on record or actual proof of any expenses borne in connection with his treatment, this tribunal is constrained not to award any amount to him under the present head.
(ii) Loss of future earnings As discussed above, the petitioner was a minor at the time of accident and as per copy of his birth certificate brought in evidence as Ex. PW1/1 during the depositions made by his father/PW1, his date of birth is 16.06.2000. The date of accident in this case is 16.01.2014 and hence, the petitioner was aged around 13½ years at the time of accident and he was studying in 8th standard in Army Public School, Noida, as per the depositions made by PW1. Being a minor and a student, the petitioner was admittedly not having any actual earnings on the date of accident.
The Second Schedule of the MV Act lays down the framework and scheme for grant of compensation for MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.11 of 36 third party fatal/injury cases instituted under Section 163A of the MV Act dealing with no fault liability. Clause 6 of the said Schedule deals with notional income to be taken for calculations of compensation in such cases in respect of those persons who had no actual income on the date of accident and as per sub-clause (a) thereof, a non earning person shall be deemed to be having a notional income of Rs. 15,000/- per annum, except in case of 'spouse' whose earnings as per sub-clause (b) shall be taken as 1/3rd of income of a earning/surviving spouse. Otherwise, the ceiling of Rs. 40,000/- per annum as earnings/income of such persons is fixed for the purposes of calculations as per the procedure and structured formula given in the above Schedule.
Ld. Counsel for the petitioner has relied upon the judgment of the Hon'ble Delhi High Court in case of Ritu (Minor) Vs. Regional Manager Uttranchal State Road Transport Corporation, MAC.App.No.672/2012, decided on 07.12.2012 in support of his submission that the notional earnings of the minor petitioner in this case should be taken as per the above judgment, which in turn is based upon the judgment of the Hon'ble Supreme Court of India in the case of Municipal Corporation of Delhi Vs. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100, and it is his contention as the notional earnings of minor petitioner as per MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.12 of 36 the above judgments should be taken as Rs. 6249/- per month and annual earnings to be Rs. 74,988/- as he was less than 20 years of age at the time of accident. However, it is observed that the law with regard to grant of compensation in respect of cases of children was well settled subsequently by the Hon'ble Delhi High Court in the case of Chetan Malhotra Vs. Lala Ram & Ors., MAC App. No. 554/10, decided on 13.05.2016, wherein not only the entire existing law on the subject was discussed but it was also laid down that such notional earnings to be presumed or taken in respect of children should also take into calculations the effect of Cost Inflation Index (CII) as well as the composite non pecuniary damages taking care of not only of the conventional heads but also the future prospects as awarded in the celebrated case of R.K. Malik Vs. Kiran Pal (2009) 14 SCC 1, which should be added to the pecuniary loss of estate calculated on the basis of said notional income in respect of death of a child in a road accident. The relevant observations made by his lordship and the formula given for calculation of compensation in case of death of a child in the above said case is as under :-
"65.Having regard to the fluctuating trends in CPI (IW), this court finds the Cost Inflation Index (CII) determined and notified by the Ministry of Finance in Government of India under Section 48 of Income Tax Act, 1961 for each financial year, to be a better method to off-set the effect of inflation on the real value of money. This approach, if followed, would ensure that there is no inconsistency in MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.13 of 36 the awards of compensation in cases of death of children. [R.K.Malik (supra) and Balram Prasad v. Kumar Saha (2014) 1 SCC. Since the amount which requires to be subjected to correction was determined by decision in R.K.Malik wherein cause of action had arisen on 10.11.1997, the financial year 1997-98 is taken as the "base year".
67. In the considered view of this Court, the cases for compensation on account of death of children in motor vehicular accident cases ought to be dealt with by considering the claim towards pecuniary damages (towards loss to estate), in accordance with the age-group wise categories as in R.K.Malik (supra); the first category being of children less than 10 years ‟ in age, the second category being of children more than 10 years‟ and up to 15 years‟ in age, and the third category of children more than 15 years‟ but not having attained the age of majority (18 years). The children in the third category would ordinarily be of such age group as is generally receiving formal school education or those that are (being) imparted special training so as to be equipped with requisite skills to be gainfully employed in a variety of trades. They are after all nearing adulthood and thus, on the threshold of becoming self-reliant. In such cases, the prospects of their employability and earnings in future or present, based on evidence adduced about their academic track record or training in special talents or skills, would need to be borne in mind. As in Lata Wadhwa (supra), the claim for pecuniary damages arising out of death of children of this age group cannot be at par with the lower age groups falling in the first and second category. Therefore, the pecuniary loss to estate due to their death would deserve to be worked out by applying a higher multiplier on the notional income (of non-earning persons) unless, of course, case is properly made out for higher considerations. Noticeably, in Sarla Verma (supra) the Supreme Court specified the multiplier of 18 for cases where the deceased was in the age-group of 15 years‟ to 20 years‟ old. For the first and second category, however, the multiplier of 10 and 15 respectively, as used in R.K. MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.14 of 36 Malik (supra), would hold good.
68. Since in the claims arising out of death of children, generally speaking, (non-earning hands), the income is to be notionally assumed on the basis of the second schedule to the MV Act, the general practice of deduction of one-half (50%) towards personal & living expenses, as applied in case of bachelors above the age of 18 years would be unfair. Pertinently, the notional income specified for non-earning persons in the second schedule is very low as compared to the rates of minimum wages. Therefore, the deduction of one-third (1/3rd) on this account, as provided by the first note below the second schedule would only be appropriate.
69. The award of compensation must necessarily take into account non-pecuniary damages. In R.K. Malik (supra), ₹75,000/- awarded by this Court as the "conventional compensation" was enhanced by the Supreme Court by further similar amount (₹75,000/-) as the "compensation for future prospects". For the reasons set out earlier, in the context of pecuniary loss to estate, the composite sum of non- pecuniary damages of ₹1,50,000/- [as awarded in R.K. Malik (supra)] would deservedly be added, but with suitable correction so as to ensure that the deficiency in the real value of money is made good. As noted (in para 46) earlier, the Supreme Court justified the addition of `75,000/- towards compensation for "future prospects" by noting that the said amount was "roughly half of the amount given on account of pecuniary damages". Since the court had also upheld the award of similar sum (`75,000/-) by this court as "conventional compensation", both amounts of non- pecuniary damages, put together, account for roughly an amount equivalent to the sum computed as pecuniary loss to estate. Thus, this court is of the view that a composite sum equal to the amount computed as pecuniary loss to estate may be added as non- pecuniary damages (inclusive of conventional compensation and for future prospects), in such cases as at hand to arrive at the appropriate figure of „just compensation‟.
70. It has been noticed by this Court that the tribunals have been assessing the compensation and awarding it to the last rupee, at MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.15 of 36 times even in the fraction of a rupee, not bothering to follow the practice of rounding off. Awards in at least two of the cases from which the appeals at hand arise provide ready illustration. This seems to be not correct. It must be added here that human misery cannot be calculated with such mathematical precision. Even otherwise for convenience of accounting, it is desirable that the amount of award is rounded off to the nearest (if not next) thousands of rupees.
71. Subject to all other requisite conditions being fulfilled, for the foregoing reasons, in order to bring about consistency and uniformity in approach to the issue, it is held that claims for compensation on account of death of children shall be determined as follows :
(i). Till such time as the law is amended by the legislature, or the Central Government notifies the amendment to the Second Schedule in exercise of the enabling power vested in it by Section 163-A (3) of the Motor Vehicles Act, 1988, and except in cases wherein the prospects of employability and earnings (in future or present) of the deceased child are proved by cogent and irrefutable evidence, this having regard, inter alia, to the academic record or training in special talents or skills, for computing the pecuniary damages on account of the loss to estate, the notional income of non-earning persons (`15000/- p.a.) as specified in the Second Schedule (brought in force from 14.11.1994), shall be assumed to be the income of the deceased child, and taken into account after it is inflation- corrected with the help of Cost Inflation Index (CII) as notified by the Government of India from year to year under Section 48 of the Income Tax Act, 1961, by applying the formula indicated hereinafter.
(ii) For inflation-correction, the financial year of 1997- 1998 shall be treated as the "base year" and the value of the notional income relevant to the date of cause of action shall be computed in the following manner :-MACP No. 630/16
Naveen Yadav Vs. Banwari Lal Meena Page no.16 of 36 ` 15,000/- x A ÷331 [wherein the figure of „`15,000/-‟ represents the notional income specified in the second schedule requiring inflation-correction; „A‟ represents the CII for the financial year in which the cause of action arose (i.e. the accident / death occurred); and the figure of „331‟ represents the CII for the „base year‟]
(iii). After arriving at an appropriate figure of the present equivalent value of the notional income (i.e. inflation-
corrected amount), it shall be rounded off to a figure in next thousands of rupees.
(iv). The amount of notional income thus calculated shall be reduced to two-third, the deduction to the extent of one- third being towards personal & living expenses of the deceased, the balance taken as the annual loss to estate (hereinafter also referred to as "the multiplicand").
(v). For assessment of the pecuniary damages on account of the death of children upto the age of 10 years, the loss to estate shall be calculated, capitalizing the multiplicand, by applying the multiplier of ten (10).
(vi). For children of the age-group of more than 10 years upto 15 years, the loss to estate shall be calculated by applying the multiplier of fifteen (15).
(vii). For children of the age-group of more than 15 years but less than 18 years, the loss to estate shall be calculated by applying the multiplier of eighteen (18).
(viii). After the pecuniary loss to estate has been worked out in the manner indicated above, an amount equivalent to the amount thus computed shall be added to it as the composite non-pecuniary damages Ztaking care of not only the conventional heads but also towards future prospects as awarded in R.K. Malik v. Kiran Pal (2009) 14 SCC 1.
(ix). The final sum thus arrived at, appropriately rounded off, if so required to the nearest (if not next) thousands of rupees, shall be awarded as compensation for the death of the child.
72. The ruling in National Insurance Company Ltd. v. Farzana MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.17 of 36 (2009 ACJ 2763) was rendered by a learned single Judge of this Court on 14.07.2009. Though it had built upon the dispensation in R.K.Malik (supra), given the effect of inflation elaborately discussed above, it has outlived its utility for cases relating to later years. At the same time, it must be noted, that the view in Farzana (supra) has governed the field till date, inasmuch as it has been followed by other single benches of this Court as also by tribunals in various cases. Given the modified method of calculation as is being determined by this judgment, it is possible that in some of the earlier decided cases, the compensation computed on revised lines may fall below the amount of ₹3,75,000/- computed in Farzana (supra). Since the awards in such earlier decided cases were granted with reference to the ratio in Farzana (supra), it will not be fair to order any modification in cases that relate to the period on or after 10.05.2000 (the date of cause of action in Farzana) so as to reduce the awards below the said amount of ₹3,75,000/-, particularly as some of such awards may already have been satisfied, including on account of interim orders of this Court.
73. Thus, in cases founded on cause of action arising on or after 10.05.2000, the amount of compensation shall not in any case be less than ₹3,75,000/- which was awarded in the case of National Insurance Co. Ltd. v. Farzana (2009 ACJ 2763).
Though, the above observations have been made by his lordship in case of death of a child victim, but the propositions of law laid down in the said case for determining the notional income of a child can also be well applied in a case of child disability as it is now well settled that future prospects are required to be given even in a disability case and further that the same can be given even in cases of persons working on contract basis or on fixed salary, as has been held in the Constitutional Bench decision of the Hon'ble Supreme Court in case National Insurance Co. Ltd. Vs. Pranay Sethi & Ors., MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.18 of 36 Special Leave Petition (Civil) No. 25590 of 2014. Since the petitioner in this case was aged around 13½ only at the time of accident, the multiplier of 15 is applicable as per the above case law and further since it is an injury case only and not a death case, no deductions are required to be made towards his personal and living expenses from his notional earnings or in calculating the loss of future earnings to him.
As already discussed, the petitioner has suffered permanent physical disability in the above accident as his both hands were crushed in the accident. His father/PW1 has specifically deposed on record that the petitioner remained hospitalized in Army Base Hospital on different occasions and had undergone various surgeries for the said injuries and as per the depositions made by him, the petitioner remained admitted in the said hospital for the periods w.e.f. 16.01.2014 to 21.03.2014, 11.06.2014 to 19.06.2014 and 09.07.2014 to 11.07.2014. The discharge summaries of the said hospital brought in evidence as Ex. PW1/4 to Ex. PW1/6 in this regard duly corroborate the oral depositions made by PW1. The original disability certificate of the petitioner given by the disability board of Dr. RML Hospital has also been brought in evidence as Ex. PW3/1 and proved on record during the statement of PW3 Dr. Satish Kumar, Consultant, Orthopedics Surgeon, who was Chairman of the above said board. As per this certificate, the patient was a case of crush injury both MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.19 of 36 sides (B/L) upper limbs with multiple deformities of wrist, hand and elbow joints. He had complete loss of functions B/L hand which affect his day to day functioning. PW3 has also specifically stated on record during his cross-examination that there were no chances of improvement in the disability suffered by the petitioner.
It is well settled that the physical disability and functional disability of a person are not one and the same things and functional disability of a person refers to his loss of earning capacity due to the said disability. This functional disability or loss of earning capacity of a person is required to be assessed separately by the claims tribunal with reference to the nature of work or profession etc. of the said person and it has no reference to the percentage of permanent disability given in his disability certificate.
In Raj Kumar Vs. Ajay Kumar & Anr.,(2011) 1 SCC 343, Hon'ble Supreme Court has held that :
"4..........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 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 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 enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as mush as he used to earn or could have earned as much as he used MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.20 of 36 to earn or could have earned. Thus tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6.Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation''. "8.......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)."
On being asked by this tribunal, the petitioner has also filed on record two photographs showing the present condition of his hands. He was also physically observed by MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.21 of 36 this tribunal at the time of his examination in terms of the directions given by the Hon'ble High Court on 11.01.2013 in MACA No. 792/2006 titled as Oriental Insurance Co. Ltd. Vs. Ranjit Pandey & Ors. Though, these photographs are not the part of evidence led on record but can certainly be seen by this tribunal to have a correct view regarding the functional disability of the petitioner and to arrive at a just compensation as the same have been filed on record on directions of the tribunal itself. During his above examination, the petitioner has also specifically stated that he has almost lost both his hands due to the said accident as he is unable to do his day to day activities with his hands and is not be able to work with his right hand though, he was able to write his exams with left hand, but at a very slow speed and within the extra time provided by the school authorities. He further stated that due to the above injuries suffered on his right hand and starting from elbow joint, he was not able to straighten his right hand and he requires the assistance of somebody from his family in doing day to day activities. He further submitted that during the process of undergoing multiple surgeries on his hand, his skin was taken from different portions of his body for grafting of his hands. Hence, after going through the above legal propositions, the evidence led on record, photographs of both the hands of the petitioner and the above submissions made by him, this tribunal is of the opinion that the functional MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.22 of 36 disability of the petitioner has to be taken as 100% in the present case.
Therefore, the loss of future earnings to which the petitioner is held entitled in the present case and as per the formula laid down in case of Chetan Malhotra (supra) comes to Rs. 12,90,000/- [(Rs.15000x939/331=Rs. 42,552.87/- rounded off to Rs. 43,000/- X15=Rs. 6,45,000/- + Rs. 6,45,000/-) (The figure '15,000/-' represents the notional income given in the Second Schedule requiring inflation-correction; the figure '939' represents the CII for the financial year in which the cause of action arose/accident occurred and the figure of '331' represents the CII for the base year 1997-98 as per the judgment in case Chetan Malhotra (supra)].
(iii) Mental and Physical Shock, Pain and Sufferings.
As stated above, both hands of the petitioner were crushed and various corrective surgeries had to be performed on his hands, which also included plastic surgeries for grafting of the skin. The petitioner is also stated to have remained hospitalised on different occasions for a total period of around 2½ months. The documentary evidence brought on record, coupled with the photographs showing the condition of hands of the petitioner and the submissions made by him during his examination before this tribunal clearly show that MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.23 of 36 the petitioner will not be able to use his hands properly for even performing the day to day functions. There cannot be any doubt with regard to the fact that the petitioner might have undergone immense mental and physical shock & pain and sufferings during the above process of his treatment, which cannot be compensated by way of money. Moreover, the same will even continue throughout his remaining life as he has to live his remaining life only with the above disability. Though, as per the disability certificate Ex. PW3/1 he had suffered 90% permanent physical disability, but his functional disability has taken as 100% by this tribunal, as already stated above. Hence, keeping in view the nature and extent of the injuries and disability suffered by the petitioner and the treatment taken by him, this tribunal considers it just and reasonable to award a lumsum amount of Rs. 2,50,000/- each towards mental and physical shock & pain and sufferings, i.e. a total amount of Rs. 5,00,000/- under the present head.
(iv) Loss of amenities of life.
There is no doubt that due to the above permanent disability, the petitioner has lost several pleasures of his childhood, which may include his ability to run, dance, travel or play freely, to drive or to do many other acts involving the use of hands and he has also stated before this tribunal during his examination that he is MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.24 of 36 even not able to do his day to day jobs without the assistance of someone. It follows from the records that the petitioner will never be able to live a normal life. Hence, it is felt just and reasonable also to award a lumsum amount of Rs. 3,00,000/- to the petitioner towards the loss of amenities.
(v) Loss of education.
As stated above, the petitioner was a student of 8th standard in Army Public School, Noida at the time of accident and when the affidavit of his father/PW1 was filed on record in evidence, the petitioner was stated to be studying in 9th standard. At the time when the examination of the petitioner in terms of the directions given by the Hon'ble High Court on 11.01.2013 in MACA No. 792/2006 titled as Oriental Insurance Co. Ltd. Vs. Ranjit Pandey & Ors. was recorded, the petitioner was studying in 12th standard in commerce stream in APS, Noida and he also stated that despite his above disability, he was able to write his exams only with his left hand, at a very slow speed and within the extra time which was permitted to him by the school authorities. This shows that somehow, the petitioner has managed to continue his academic career, but still his above disability will not permit him to continue his education and pursue his career for various specific fields MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.25 of 36 like engineering, medical profession etc. involving the effective use of hands. Hence, an amount of Rs. 5,00,000/- is also awarded to the petitioner towards the loss of educational prospects under the present head.
(vi) Disfiguration The above photographs of the petitioner and his physical examination by the petitioner at the time of his examination in terms of the above directions given by the Hon'ble High Court reveals that his both hands, stomach as well as some other portions of his body have been totally disfigured due to the above accident and as a result of various corrective surgeries performed on his body. Hence, it is felt just and reasonable to award him also an amount of Rs. 3,00,000/- under the present head.
(vii) Conveyance, Special Diet and Attendant Charges Though, no specific evidence has led on record on behalf of the petitioner towards the expenses borne by his family members on transportation and providing of special diet to the petitioner during the period of his hospitalization and treatment, but this tribunal can take note of these requirements in view of the evidence led on record with regard to the nature and extent of injuries suffered by the petitioner and the treatment taken by him. Hence, the MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.26 of 36 petitioner is also awarded an amount of Rs. 25,000/- towards conveyance and Rs. 75,000/- towards special diet. Besides this, the petitioner is also being awarded a lump- sum amount of Rs.50,000/- under this head towards the gratuitous services which might have been rendered by any of his family members or relatives to help him during the above said period of his treatment and immobility. Hence, a consolidated amount of Rs.1,50,000/- is being awarded to him under this head.
(viii) Loss of marriage prospects.
As discussed above, the body of the petitioner has been totally disfigured due to above injuries and surgeries and this disfigurement will certainly reduce and adversely affect his marriage prospects and hence, the petitioner is also awarded an amount of Rs. 3,00,000/- towards loss of his marriage prospects.
(ix) Future attendant charges From the evidence led on record and from the physical examination of the petitioner, it is clear that with the above permanent disability in respect of his both hands, he will not be able to lead a normal life and will not be able to even do his day to day activities without the assistance of someone from his family or that of a professional attendant.
MACP No. 630/16Naveen Yadav Vs. Banwari Lal Meena Page no.27 of 36 Though, no evidence has been led on behalf of the petitioner regarding engagement of any attendant by him, but it is well settled that he is even also required to be compensated for the gratuitous services which any of his family members might render in future in taking care of him. Hence, in terms of the law laid down by the Hon'ble Delhi High Court in case of United India Insurance Co. Ltd. Vs Ram Ashish Singh & Ors., decided on 09.01.2013, the petitioner is also held entitled to future attendant charges as per the minimum wages fixed for semi skilled workers at the time of accident, which at the relevant time were Rs. 8,918/- per month. Thus, under this head, the petitioner is held entitled to an amount of Rs. 16,05,240/- (Rs.8918/-X15X12), which is equivalent to loss of future attendant charges calculated at the above rate and as per the above multiplier.
The petitioner is thus entitled to the following compensation as per the given format :-
SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM-IVB.
1. Date of accident : 16.01.2014
2. Name of the injured : Naveen Yadav (minor)
3. Age of the injured : 13½ years
4. Occupation of the injured : Student
5. Income of the injured : Nil.
6. Nature of injury : Grievous & disability
7. Medical treatment taken by the injured : Kailash Hospital, Noida and Army Hospital(R&R), Delhi Cantt.
8. Period of hospitalization : 2½ months MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.28 of 36
9. Whether any permanent disability? If yes, give details : 90% in respect of his both upper limbs
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Nil
(ii) Expenditure on conveyance Rs.25,000/-
(iii) Expenditure on special diet Rs.75,000/-
(iv) Cost of nursing/attendant Rs.50,000/-
(v) Loss of earning capacity Nil
(vi) Loss of Income Nil
(vii) Any other loss which may require Nil
any special treatment or aid to the
injured for the rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental and Rs.2,50,000/-
physical shock
(ii) Pain and suffering Rs.2,50,000/-
(iii) Loss of amenities of life Rs.3,00,000/-
(iv) Disfiguration Rs.3,00,000/-
(v) Loss of marriage prospects Rs.3,00,000/-
(vi) Loss of earning, incovenience, Rs.5,00,000/-
hardships, disappointment,
frustration, mental stress, dejectment and unhappiness in future life, loss of education etc.
(vii) Future attendant charges Rs. 16,05,240/- 13 Disability resulting in loss of earning capacity
(i) Percentage of disability assessed N/A and nature of disability as permanent or temporary MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.29 of 36
(ii) Loss of amenities or loss of N/A expectation of life span on account of disability.
(iii) Percentage of loss of earning N/A
relation to disability
(iv) Loss of future income - (Income X % Rs.12,90,000/-
Earning X Multiplier)
14. Total Compensation Rs.49,45,240/-
15 Interest Awarded 9% p.a. from the
date of filing of
claim petition, i.e.
07.07.2014 till
deposit, except the
period of
adjourned sine die
from 21.11.2014 to
04.10.2016.
16 Interest amount up to the date of Rs.8,23,077.62/-
award (excluding interest
for the period from
21.11.2014 to
04.10.2016)
17 Total amount including interest Rs.57,68,318/-
(rounded off)
18 Award amount released Rs.7,68,318/-
19 Award amount kept in FDRs Rs.50,00,000/-
20 Mode of disbursement of the award Through Bank
amount to the claimant (s)
21 Next date for compliance of the 04.07.2018
award
Therefore, the petitioner is awarded a sum of Rs. 57,68,318/- (Rupees Fifty Seven Lakhs Sixty Eight Thousand Three Hundred Eighteen only), including MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.30 of 36 interest @ 9% per annum from the date of filing of claim petition, i.e. 07.07.2014 till date, and interest at the same rate till notice of deposit of the above said amount is given to the petitioner. The award amount shall also include the amount of interim award, if any, already passed in his favour but it does not include interest for the period from 21.11.2014 to 04.10.2016 during which this claim petition had remained adjourned sine die awaiting determination of permanent disability of the petitioner on orders passed by this tribunal and it shall also exclude interest for the other suspended period, if any, during the course of this inquiry.
RELEASE Out of the above awarded amount, an amount of Rs. 50,00,000/- is directed to be kept in 250 FDRs of Rs.20,000/- each for a period of 1 to 250 months in succession with cumulative interest and the remaining amount is directed to be released. The petitioner has already filed on record a copy of his passbook of savings account bearing no. 712210110007963 opened with the Bank of India, Sector-62, Noida, Gautam Budh, Uttar Pradesh branch, having IFSC code no. BKID0007122, along with a letter of the bank concerned that no cheque book/ATM or internet facility has been issued in the above said account in terms of the directions already given by this tribunal, in compliance of the directions dated 15.12.2017 of the Hon'ble High Court given in the case of MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.31 of 36 Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors., FAO No. 842/2003. Hence, it is directed that the amount of FDRs on maturity would be released in the above savings bank account of the petitioner and the remaining amount is also directed to be released to him by transferring into the same account.
The banks 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 individual savings bank account(s) and not a joint account(s).
The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDRs numbers, FDRs amounts, dates of maturity and maturity amounts shall be furnished by bank to the claimant(s).
The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the above savings bank account of the claimant(s) opened near the place of his/her/their residence.
No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
LIABILITY Though, all the respondents are held jointly and MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.32 of 36 severally liable to pay the awarded amount of compensation, but since R-3 has not proved any violation of the terms and conditions of insurance policy, R-3 is directed to deposit the above awarded amount with UCO Bank, Patiala House Courts, New Delhi alongwith upto date interest @ 9% per annum, by way of crossed cheques/ DDs in name of the petitioner within 30 days from today failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, R-3 fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5000/-.
R-3 shall inform the petitioner and his counsel through registered posts that the cheques/DDs of the awarded amount are being deposited so as to facilitate the petitioner to collect his cheques/DDs.
A copy of this award be given to the parties free of cost. Ahlmad is directed to send a copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.33 of 36 dated 12.12.2014.
Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:
1. Date of the accident 16.01.2014
2. Date of intimation of the accident by the NA as it is an outstation Investigation Officer to the Claims matter.
Tribunal.
3. Date of intimation of the accident by the Investigating Officer to the Insurance NA company.
4. Date of filing of Report under Section 173 Cr.PC before the Metropolitan NA Magistrate.
5. Date of filing of Details Accident Report (DAR) by the Investigating Officer NA before Claims Tribunal.
6. Date of service of DAR on the NA Insurance Company.
7. Date of service of DAR on the NA claimant(s).
8. Whether DAR was complete in all NA respects?
9. If not, state deficiencies in the DAR ......
10. Whether the police has verified the NA documents file with DAR?
11. Whether there was any delay or NA deficiency on the part of the Investigating Officer? If so, whether any MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.34 of 36 action/direction warranted?
12. Date of appointment of the Designated NA Officer by the Insurance Company.
13. Name, address and contact number of the Designated Officer of the Insurance NA Company.
14. Whether the Designated Officer of the Insurance Company submitted his NA report within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the Insurance NA Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Designated Officer of the Insurance NA Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of Nil the offer of the Insurance Company.
18. Date of the award 28.03.2018
19. Whether the award was passed with No the consent of the parties?
20. Whether the claimant(s) were directed to open savings bank account(s) near Yes their place of residence?
21. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar 19.01.2018 Card and the direction to the bank not issue any cheque book/debit card to the claimant (s) and make an endorsement to this effect on the passbook(s).
22. Date on which the claimant(s) produced 23.02.2018 the passbook of their savings bank account near the place of their residence along with the MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.35 of 36 endorsement, PAN Card and Adhaar Card?
23. Permanent Residential Address of the R/o P-47/5, Kabul Claimant(s) Lines, Delhi Cantt.-
110010.
24. Details of savings bank account (s) of A/C No. the claimant(s) and the address of the 712210110007963 bank with IFSC Code. IFSC code :-
BKID0007122 Bank of India, B-32 Sector-62, Noida, Distt.
Gautam Budh, Uttar Pradesh.
25. Whether the claimant(s) savings bank account(s) is near his place of Yes residence?
26. Whether the claimant(s) were examined at the time of passing of the award to Yes ascertain his/their financial condition?
Main file be consigned to Records after necessary formalities and a separate file be prepared for compliance report and be put up on 04.07.2018 for reporting compliance of the award.
(M.K. Nagpal) Judge/MACT, New Delhi 28.03.2018 MACP No. 630/16 Naveen Yadav Vs. Banwari Lal Meena Page no.36 of 36