Bablu S/O Madan Lal vs Amzad S/O Sher Ali on 4 January, 2019

[Cites 16, Cited by 0]

Delhi District Court

Bablu S/O Madan Lal vs Amzad S/O Sher Ali on 4 January, 2019

                 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court)
                                  Karkardooma Courts, Delhi.


                        In the Court of Sh. G. N Pandey
                  Motor Accident Claims Tribunal(Pilot Court)
                           Karkardooma Courts, Delhi.

                         DAR Nos. 215/18, 216/18 & 217/18

                                                  DAR No. 215/18
IN THE MATTER OF :

                 Bablu S/o Madan Lal
                 r/o Pawan Ka Hotel,
                 Gali No. 6, Karawal Nagar, Delhi.
                                                             ............ Petitioner
                                        VERSUS

        1.       Amzad S/o Sher Ali
                 R/o 25 Futa Road, Gali No. 9,
                 Gautam Budh Nagar,
                 Sector63, Noida, UP

        2.       OLA FLEET Technologies Pvt. Ltd.
                 Office at: 86, PhaseI, Udyog Vihar,
                 Gurgaon, Haryana

        3.       Bajaj Allianz General Insurance Co. Ltd
                 Office at: Block No. 4, 7th Floor,
                 DLF Tower, 15 Shivaji Marg, Delhi.
                                                     ........ Respondents

Date of Institution of petition : 17.07.2018 Date of Judgment/Order : 04.01.2019 DAR No. 216/18 IN THE MATTER OF : Soma Devi W/o Bhajan Lal R/o H. No. F33, Street No. 2, Near MCD School, Ankur, Enclave, Karawal Nagar, Delhi.

                                                             ............ Petitioner
DAR Nos. 215/18, 216/18 & 217/18                              1 of 34

Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

VERSUS

1. Amzad S/o Sher Ali R/o 25 Futa Road, Gali No. 9, Gautam Budh Nagar, Sector63, Noida, UP

2. OLA FLEET Technologies Pvt. Ltd.

Office at: 86, PhaseI, Udyog Vihar, Gurgaon, Haryana

3. Bajaj Allianz General Insurance Co. Ltd Office at: Block No. 4, 7th Floor, DLF Tower, 15 Shivaji Marg, Delhi.

........ Respondents Date of Institution of petition : 17.07.2018 Date of Judgment/Order : 04.01.2019 DAR No. 217/18 IN THE MATTER OF : Sher Singh S/o Bhajan Lal R/o H. No. F33, Street No. 2, Near MCD School, Ankur Enclave, Karawal Nagar, Delhi.

............ Petitioner VERSUS

1. Amzad S/o Sher Ali R/o 25 Futa Road, Gali No. 9, Gautam Budh Nagar, Sector63, Noida, UP

2. OLA FLEET Technologies Pvt. Ltd.

Office at: 86, PhaseI, Udyog Vihar, Gurgaon, Haryana

3. Bajaj Allianz General Insurance Co. Ltd DAR Nos. 215/18, 216/18 & 217/18 2 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

Office at: Block No. 4, 7th Floor, DLF Tower, 15 Shivaji Marg, Delhi.

........ Respondents Date of Institution of petition : 17.07.2018 Date of Judgment/Order : 04.01.2019 A W A R D:

1. By this common award, three DAR petitions for grant of compensation U/s 166 and 140 of the MV Act, 1988 is disposed off.

2. Briefly facts of all three cases are that on 03.06.2018 at about 8:30 AM, in the morning, injured Bablu was crossing the road in the correct side of the road and other injured Sher Singh and Soma Devi were going on scooty and whey they reached near Nala road Karawal Nagar, suddenly a car No. HR 55 AC 5695 which was being driven by its driver at a very high speed rashly and negligent came and hit from back side. As a result of which, they sustained serious and grievous injuries; immediately taken to GTB Hospital, Delhi where their MLC was done and thereafter petitioner Bablu was discharged on 06.06.2018. FIR No. 256/18 was registered at PS Karawal Nagar regarding the accident and thereafter the petitions for comp ensation under MV Act, 1988. The respondents in all the petitions are common.

3. The respondent No. 2 filed WS denying the averments made in the petition contending that this petition is not maintainable and there is no cause of action for filing of the same. As contended, answering respondent has nothing to do with the alleged accident. It is further contended that offending vehicle is insured with insurance company. While denying rest of the claim of the petitioner in the petition, the respondent No. 2 prayed to dismiss the petition with cost.

Insurance company has filed WS of the claim petition contending DAR Nos. 215/18, 216/18 & 217/18 3 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

that claim petition is not maintainable but admitted the insurance policy.

4. In view of the records, following issues were framed on 16.11.2018 in Petition No. 215/18:

1. Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle No. HR 55 AC 5695 at near Aalok Punj School, Nala Road, Karawal Nagar, Delhi by respondent No. 1 on 03.06.2018 within the jurisdiction of PS Karawal Nagar?OPP

2. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP

3. Relief.

5. Following issues were framed in petition No. 216/18 on 16.11.2018 :

2. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP

3. Relief.

6. Following issues were framed in petition No. 217/18 on 16.11.2018 :

within the jurisdiction of PS Karawal Nagar?OPP

2. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP

3. Relief.

The evidence were recorded in the matter for disposal of the petitions.

Evidence in Petition No. 215/18

7. Injured examined himself as PW1 by way of affidavit of evidence Ex. PW 1/A. Witness has relied upon the documents i.e. Ex. PW 1/1 to Ex. PW 1/ 3. PE was thereafter closed.

8. Respondent No. 3 examined the witness i.e. ASI Rohtash Kumar, No. 2210, PS Karawal Nagar, Delhi as R3W1 deposed that he is the IO of the case FIR No. 256/18 PS Karawal Nagar and he investigated the matter and filed the chargesheet. He received the information from PCR call vide DD No. 14B at about 8.30 a.m. regarding accident. The offending vehicle was found at the distance about 50 yards from the spot but driver of the vehicle was not found at the spot and could not be traced till today. When during investigation he contacted with OLA, it was informed by them that vehicle has been stolen. OLA company had informed that they provided this vehicle to Mr. Amzad to drive the vehicle on behalf of OLA but no agreement was handed over to him. During investigation it was found that offending vehicle bearing no. HR55AC5695 has been stolen and PCR call has been made in this respect on 03.06.2018 at 4.00 a.m. in the morning vide eFIR No. 019006 which came under PS Civil Lines and e FIR was lodged by Amzad S/o Sh. Sher Ali with whom OLA has concern for driving.

Respondent No. 3 examined the witness i.e. Sh. Udyan Gautam as DAR Nos. 215/18, 216/18 & 217/18 5 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

R3W2 by way of affidavit Ex. R3W2/A. Witness has relied upon the documents i.e. Ex. R3W2/1 to Ex. R3W2/2 and DAR Ex PW 1/ 3. RE was thereafter closed.

Evidence in Petition No. 216/18

9. Petitioner examined herself as PW1 by way of affidavit of evidence Ex. PW 1/A. Witness has relied upon the documents i.e. Ex. PW 1/1 to Ex. PW 1/3. PE was thereafter closed.

10. Respondent No. 3 examined the witness i.e. ASI Rohtash Kumar, No. 2210, PS Karawal Nagar, Delhi as R3W1 deposed that he is the IO of the case FIR No. 256/18 PS Karawal Nagar and he investigated the matter and filed the chargesheet. He received the information from PCR call vide DD No. 14B at about 8.30 a.m. regarding accident. The offending vehicle was found at the distance about 50 yards from the spot but driver of the vehicle was not found at the spot and could not be traced till today. When during investigation he contacted with OLA, it was informed by them that vehicle has been stolen. OLA company had informed that they provided this vehicle to Mr. Amzad to drive the vehicle on behalf of OLA but no agreement was handed over to him. During investigation it was found that offending vehicle bearing no. HR55AC5695 has been stolen and PCR call has been made in this respect on 03.06.2018 at 4.00 a.m. in the morning vide eFIR No. 019006 which came under PS Civil Lines and e FIR was lodged by Amzad S/o Sh. Sher Ali with whom OLA has concern for driving.

Respondent No. 3 examined the witness i.e. Sh. Udyan Gautam as R3W2 by way of affidavit Ex. R3W2/A. Witness has relied upon the documents i.e. Ex. R3W2/1 to Ex. R3W2/2 and DAR Ex PW 1/ 3. RE was thereafter closed.

DAR Nos. 215/18, 216/18 & 217/18 6 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

Evidence in Petition No. 217/18

11. Injured examined himself as PW1 by way of affidavit of evidence Ex. PW 1/A. Witness has relied upon the documents i.e. Ex. PW 1/1 to Ex. PW 1/ 3 and mark A. PE was thereafter closed.

12. Respondent No. 3 examined the witness i.e. ASI Rohtash Kumar, No. 2210, PS Karawal Nagar, Delhi as R3W1 deposed that he is the IO of the case FIR No. 256/18 PS Karawal Nagar and he investigated the matter and filed the chargesheet. He received the information from PCR call vide DD No. 14B at about 8.30 a.m. regarding accident. The offending vehicle was found at the distance about 50 yards from the spot but driver of the vehicle was not found at the spot and could not be traced till today. When during investigation he contacted with OLA, it was informed by them that vehicle has been stolen. OLA company had informed that they provided this vehicle to Mr. Amzad to drive the vehicle on behalf of OLA but no agreement was handed over to him. During investigation it was found that offending vehicle bearing no. HR55AC5695 has been stolen and PCR call has been made in this respect on 03.06.2018 at 4.00 a.m. in the morning vide eFIR No. 019006 which came under PS Civil Lines and e FIR was lodged by Amzad S/o Sh. Sher Ali with whom OLA has concern for driving.

13. I have heard Ld. counsel for petitioner, counsel for respondent No. 1 and Ld. counsel for respondent No. 3 and gone through the records. I have also gone through the written submissions filed on behalf DAR Nos. 215/18, 216/18 & 217/18 7 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

of insurance company.

14. My findings on the aforesaid issues are as follows : Issue No. 1 in DAR petition No. 215/18:

15. To succeed in the petition in view of Section 166 of the MV Act, it is for the claimant to prove that vehicle which caused the accident was being driven rashly and negligently by its driver. Issue No. 1 in all the cases is taken up together. Petitioner Bablu, Soma Devi and Sher Sing were examined as PW1 and deposed about the facts of the case. They were crossexamined by ld. Counsel for respondents and during cross examination nothing has come forward in their testimony to disbelieve the DAR Nos. 215/18, 216/18 & 217/18 8 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

version of PW. On the other hand, the testimony of RW did not rebut the testimony of PW to deny the claim of the petitioner and mere denial is not sufficient to rebut the claim of the petitioner. No witness was produced or examined by respondents as well to prove as to how accident occurred due to the negligence of the injured; the driver was not at fault and was not driving the vehicle in rash and negligent manner. There is no reason to disbelieve the testimony of witnesses. DAR filed by IO which includes copy of FIR, site plan and MLC etc. I have gone through the record and documents in respect of the accident caused to the petitioner which is prima facie suggestive of negligence of driver in driving the vehicle at the time of accident.

Relied judgment in (Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530 and the judgment in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646).

Hon'ble Supreme Court in Bimla Devi and Ors. V/s Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 held as under:

"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."

16. In judgment of Hon'ble Delhi High Court in United India Insurance Company Ltd. Vs. Deepak Goel & Ors., 2014 (2), T.A.C. 846 (Del.), it was held that in a case, where FIR is lodged, chargesheet is filed, then the DAR Nos. 215/18, 216/18 & 217/18 9 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

documents mentioned above are sufficient to establish the fact that the driver of the vehicle in question was negligent in causing the accident particularly when there was no defence available from his side. In case of Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh, 2009 (3) AD (Delhi) 310, an adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there was nothing on record to show that the Claimant had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case.

17. I have gone through the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana to examine the aspect of negligence wherein in the Hon'ble High Court held that: In case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard.

Further, in Kaushnumma Begum and others V/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary DAR Nos. 215/18, 216/18 & 217/18 10 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.

Further the Hon'ble High Court of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. V/s. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Delhi High Court, held as under:

"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit.

18. Therefore, in view of the criminal case record and statement of PWs, it is proved that injured Bablu, Soma Devi and Sher Singh sustained injuries on 03.06.2018 due to rash and negligent driving of offending vehicle bearing No. HR 55 AC 5695 driven by its driver. The issue is decided accordingly.

Issue No. ii in DAR petition No. 215/18 :

(ii) Whether petitioner is entitled to compensation ? If so to what amount and from whom? OPP

19. Hon'ble Supreme Court in (2011) 1 SCC 343 titled Raj Kumar V/s Ajay Kumar & Anr. examined the general principles relating to DAR Nos. 215/18, 216/18 & 217/18 11 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

compensation in injury cases. As held:

4. The provision of the Motor Vehicles Act, 1988 ( 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 of tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer V. T. Kunhikuttan Nair MANU/SC/0011/1969 : AIR 1970 SC 375, R.D. Hattangadi V. Pest Control ( India) Ltd.

MANU/SC/0146/1995 : 1995 (1) SCC 551 and Baker V. Willoughby 1970 AC 467.

5. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages ( Special Damages)

(i) Expenses relating to treatment, DAR Nos. 215/18, 216/18 & 217/18 12 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earning ( 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.
                 Nonpecuniary damages (General Damages)
                 (iv)     Damages for pain, suffering and trauma as a
           consequence of the injuries.
                 (v)      Loss of amenities ( and/ or loss of prospects of
           marriage).
                 (vi)     Loss of expectation of life ( shortening of
           normal longevity).

In routine personal injury cases, compensation will be awarded only under heads (I), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)

are easily ascertainable from the evidence. Award under the head of future medical expenses item (iii) depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non pecuniary damages items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/ disability suffered by the claimant and the effect thereof on the future life of the claimant.

Hon'ble Supreme Court further observed regarding assessment of future loss of earnings due to permanent disability that disability refers to any restriction for lack of liability to perform an activity in the manner considered normal for human being permanent disability refers to the residuary in capacity or loss of huge of some part of the body, found existing at the end of the period of treatment and recuperation, after receiving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. The percentage of permanent disability is expressed which reference to the whole body, or more often then an not, with reference to a particularly limb. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earning would depend upon the effect and impact of such permanent disability on his earning capacity. What requires to be assessed by the tribunal is the effect of the permanent disability on his earnings capacity of the injured; and after assessing the loss of earnings capacity in terms of DAR Nos. 215/18, 216/18 & 217/18 14 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

percentage of income, it has been pointify in terms of money, to arrive at the future loss of earning( by applying the standard multiplier method used to determine loss of dependency As further held, the trial has to first decide whether there is an permanent disability and if so the extent of such permanent disability. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability ( this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.

Hon'ble Supreme court laid down the principles in respect of the assessment of compensation regarding injuries as below:

(i) All injuries ( or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the DAR Nos. 215/18, 216/18 & 217/18 15 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability ( except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

(iii) The doctor who treated an injuredclaimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

(iv) The same permanent disability may result in different percentage of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.

20. I have gone through the testimony of the witnesses alongwith complete medical records. It is deposed that due to the accident, injured fell down on the road and sustained multiple injuries. The injured was taken to GTB Hospital, Delhi where MLC was done and petitioner was discharged on 06.06.2018. The petitioner claimed that at the time of accident, he was working in a hotel and was earned Rs. 15,000/ per month. No document has been filed by the petitioner regarding his income therefore petitioner is entitled to compensation as per minimum wages Act as applicable to unskilled workman while considering his monthly salary as per prevalent rate at relevant time i.e. 03.06.2018 when accident took place. The income of the injured is assessed as per the minimum wages on the date of accident i.e 03.06.2018 which was Rs. 13,896/ per month for unskilled workman.

DAR Nos. 215/18, 216/18 & 217/18 16 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

21. I have gone through the medical records of the petitioner. There is nothing on record in support of the affidavit of PW1 that he suffered any loss of earnings from his work. However, with the kind of injuries suffered by him, it can be safely assumed that he would have been under treatment for about three months. He is thus awarded Rs. 41,688/ (Rs. 13,896/ X 3) for three months for Loss of Wages.

22. The petitioner has claimed amount towards compensation from the respondent. It is also claimed that after the accident, the petitioner could not perform his routine and required attendant/ assistance for his day to day business; he also suffered financial losses due the accident and his family suffered mental pain and agony.

23. While fixing compensation for pain and sufferings, as also for loss of amenities of life, the features like the age and unusual deprivation undertaken by a person in his life generally are to be reckoned. From the overall assessment, I assess Rs. 50,000/ as compensation towards Pain, Shock and Suffering to the Claimant.

24. Ld. Counsel for petitioner submits that petitioner has spent amount for his treatment but no medical bill has been filed on record. Therefore petitioner is not awarded any amount towards medical bills.

25. The Claimant has not filed any document in support of the fact that he had incurred expenses on keeping an attendant, for conveyance and for extra nutritious diet. However, I guess he must have spent some amount for which he is awarded a lumpsum amount of Rs. 5,000/ for Special Diet and Rs. 5,000/ for Conveyance Charges.

26. Keeping in view the nature of injuries suffered by the petitioner and the fact that he was under constant treatment, he needed an Attendant to look after him and the petitioner is therefore, entitled to attendant charges. Petitioner has not filed any record to show that he has received help of DAR Nos. 215/18, 216/18 & 217/18 17 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

special attendant however, some family member must have been attending him. A victim of accident has to be compensated in terms of money even if gratuitous services are under by a family members. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of Hon'ble High Court held that there cannot be any deduction if domestic help is obtained from a family member. This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP. No. 762/11 dated 04.07.12. In the circumstances, where the injured had suffered injury, it is deemed fit that a lump sum of Rs. 10,000/ be awarded as compensation towards Attendant charges.

27. Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the Claimant :

1. Future Loss of Income Rs. 0/

2. Towards Pain Shock & Suffering Rs. 50,000/ 3 Towards Servant / Attendant Charges Rs. 10,000/

4. Towards Conveyance & Special diet Rs. 10,000/ 5 Towards medical bills Rs. 0/ 6 Towards loss of Wages( three months) Rs. 41,688/ Total= Rs. 1,11,688/ I accordingly award an amount of compensation of Rs. 1,11,688/ in favour of the Claimant and against Respondents. Issue No. ii in DAR petition No. 216/18 :

(ii) Whether petitioner is entitled to compensation ? If so to what amount and from whom? OPP

28. Hon'ble Supreme Court in (2011) 1 SCC 343 titled Raj Kumar V/s Ajay Kumar & Anr. examined the general principles relating to DAR Nos. 215/18, 216/18 & 217/18 18 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

compensation in injury cases. As held:

MANU/SC/0146/1995 : 1995 (1) SCC 551 and Baker V. Willoughby 1970 AC 467.

5. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages ( Special Damages)

(i) Expenses relating to treatment, DAR Nos. 215/18, 216/18 & 217/18 19 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earning ( 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.
                 Nonpecuniary damages (General Damages)
                 (iv)     Damages for pain, suffering and trauma as a
           consequence of the injuries.
                 (v)      Loss of amenities ( and/ or loss of prospects of
           marriage).
                 (vi)     Loss of expectation of life ( shortening of
           normal longevity).

Hon'ble Supreme Court further observed regarding assessment of future loss of earnings due to permanent disability that disability refers to any restriction for lack of liability to perform an activity in the manner considered normal for human being permanent disability refers to the residuary in capacity or loss of huge of some part of the body, found existing at the end of the period of treatment and recuperation, after receiving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. The percentage of permanent disability is expressed which reference to the whole body, or more often then an not, with reference to a particularly limb. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earning would depend upon the effect and impact of such permanent disability on his earning capacity. What requires to be assessed by the tribunal is the effect of the permanent disability on his earnings capacity of the injured; and after assessing the loss of earnings capacity in terms of DAR Nos. 215/18, 216/18 & 217/18 21 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

Hon'ble Supreme court laid down the principles in respect of the assessment of compensation regarding injuries as below:

(i) All injuries ( or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the DAR Nos. 215/18, 216/18 & 217/18 22 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

29. I have gone through the testimony of the witnesses alongwith complete medical records. Ld. Counsel for respondents argued that as the petitioner failed to prove her income, she is entitled for compensation in accordance with the minimum wages at relevant time. It is further stated that injured has not suffered any monetary loss on account of the injury and therefore, she should not be granted any amount on account of loss of income.

30. PW1 / petitioner has stated in her affidavit Ex. PW1/A that at the time of accident, she was running grocery shop and earned Rs. 15,000/ per month. No documentary proof regarding the income of the injured has been placed on record. Petitioner deposed that the accident took place due to rash and negligent driving of driver.

DAR Nos. 215/18, 216/18 & 217/18 23 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

31. I have gone through the medical records of the petitioner. Nothing in support of the fact of loss of wages suffered by the petitioner is produced nor it is claimed either in the petition or in the affidavit that injured / petitioner suffered any amount towards loss of wages. Keeping in view the age of petitioner and injury as well as material on records, the petitioner failed to prove any loss of wages on records. The medical record also suggests that the petitioner's medical rest is not proved in support of her contentions.

32. As observed, the injury of the petitioner is simple. While fixing compensation for pain and sufferings, as also for loss of amenities of life, the features like the age and unusual deprivation undertaken by a person in her life generally are to be reckoned. From the overall assessment, her age and the fact and gravity of the injury, petitioner is granted the total compensation of Rs. 12,000/. As the Claimant failed to prove any grievous injuries to effect her physical discomfort, disappointment and stress for whole of her remaining life, she is not entitled for any amount towards Loss of Amenities and Enjoyment of Life.

I accordingly award an amount of compensation of Rs. 12,000/ in favour of the Claimant and against Respondents. Issue No. ii in DAR petition No. 217/18 :

(ii) Whether petitioner is entitled to compensation ? If so to what amount and from whom? OPP

33. Hon'ble Supreme Court in (2011) 1 SCC 343 titled Raj Kumar V/s Ajay Kumar & Anr. examined the general principles relating to compensation in injury cases. As held:

4. The provision of the Motor Vehicles Act, 1988 ( Act for short) makes it clear that the award must be just, which means that compensation should , to the extent possible, DAR Nos. 215/18, 216/18 & 217/18 24 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

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 of tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer V. T. Kunhikuttan Nair MANU/SC/0011/1969 : AIR 1970 SC 375, R.D. Hattangadi V. Pest Control ( India) Ltd.

MANU/SC/0146/1995 : 1995 (1) SCC 551 and Baker V. Willoughby 1970 AC 467.

5. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages ( Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earning ( and other gains) which the injured would have made had he not been injured, DAR Nos. 215/18, 216/18 & 217/18 25 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

comprising:

                          (a)       Loss of earning during the period of
           treatment;
                          (b)      Loss of future earnings on account of
           permanent disability.
                 (iii)    Future medical expenses.
                 Nonpecuniary damages (General Damages)
                 (iv)     Damages for pain, suffering and trauma as a
           consequence of the injuries.
                 (v)      Loss of amenities ( and/ or loss of prospects of
           marriage).
                 (vi)     Loss of expectation of life ( shortening of
           normal longevity).

(b), (iii), (v) and (vi) relating to loss of future earning on account of permanent disability, future medical expenses, loss of amenities ( and / or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (I) and under item (ii) (a) do not pose much difficulty as they involve reimbursement of actual and are easily ascertainable from the evidence. Award under the head of future medical expenses item (iii) depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non pecuniary DAR Nos. 215/18, 216/18 & 217/18 26 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

damages items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/ disability suffered by the claimant and the effect thereof on the future life of the claimant.

Hon'ble Supreme Court further observed regarding assessment of future loss of earnings due to permanent disability that disability refers to any restriction for lack of liability to perform an activity in the manner considered normal for human being permanent disability refers to the residuary in capacity or loss of huge of some part of the body, found existing at the end of the period of treatment and recuperation, after receiving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. The percentage of permanent disability is expressed which reference to the whole body, or more often then an not, with reference to a particularly limb. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earning would depend upon the effect and impact of such permanent disability on his earning capacity. What requires to be assessed by the tribunal is the effect of the permanent disability on his earnings capacity of the injured; and after assessing the loss of earnings capacity in terms of percentage of income, it has been pointify in terms of money, to arrive at the future loss of earning( by applying the standard multiplier method used to determine loss of dependency DAR Nos. 215/18, 216/18 & 217/18 27 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

As further held, the trial has to first decide whether there is an permanent disability and if so the extent of such permanent disability. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability ( this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.

Hon'ble Supreme court laid down the principles in respect of the assessment of compensation regarding injuries as below:

(i) All injuries ( or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability ( except in a few cases, where the Tribunal on the basis of evidence, concludes that DAR Nos. 215/18, 216/18 & 217/18 28 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

percentage of loss of earning capacity is the same as percentage of permanent disability).

34. I have gone through the testimony of the witnesses alongwith complete medical records. It is deposed that due to the accident, injured fell down on the road and sustained multiple injuries. The injured was taken to GTB Hospital, Delhi where MLC was done and petitioner was discharged. The petitioner claimed that at the time of accident, he was running grocery shop and was earned Rs. 15,000/ per month. No document has been filed by the petitioner regarding his income therefore petitioner is entitled to compensation as per minimum wages Act as applicable to unskilled workman while considering his monthly salary as per prevalent rate at relevant time i.e. 03.06.2018 when accident took place. The income of the injured is assessed as per the minimum wages on the date of accident i.e 03.06.2018 which was Rs. 13,896/ per month for unskilled workman.

35. I have gone through the medical records of the petitioner. There is nothing on record in support of the affidavit of PW1 that he suffered any loss of earnings from his work. However, with the kind of injuries suffered by him, it can be safely assumed that he would have been under treatment DAR Nos. 215/18, 216/18 & 217/18 29 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

for about three months. He is thus awarded Rs. 41,688/ (Rs. 13,896/ X 3) for three months for Loss of Wages.

36. The petitioner has claimed amount towards compensation from the respondent. It is also claimed that after the accident, the petitioner could not perform his routine and required attendant/ assistance for his day to day business; he also suffered financial losses due the accident and his family suffered mental pain and agony.

37. While fixing compensation for pain and sufferings, as also for loss of amenities of life, the features like the age and unusual deprivation undertaken by a person in his life generally are to be reckoned. From the overall assessment, I assess Rs. 50,000/ as compensation towards Pain, Shock and Suffering to the Claimant.

38. Ld. Counsel for petitioner submits that petitioner has spent amount for his treatment but no medical bill has been filed on record. Therefore petitioner is not awarded any amount towards medical bills.

39. The Claimant has not filed any document in support of the fact that he had incurred expenses on keeping an attendant, for conveyance and for extra nutritious diet. However, I guess he must have spent some amount for which he is awarded a lumpsum amount of Rs. 5,000/ for Special Diet and Rs. 5,000/ for Conveyance Charges.

40. Keeping in view the nature of injuries suffered by the petitioner and the fact that he was under constant treatment, he needed an Attendant to look after him and the petitioner is therefore, entitled to attendant charges. Petitioner has not filed any record to show that he has received help of special attendant however, some family member must have been attending him. A victim of accident has to be compensated in terms of money even if gratuitous services are under by a family members. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of DAR Nos. 215/18, 216/18 & 217/18 30 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

Hon'ble High Court held that there cannot be any deduction if domestic help is obtained from a family member. This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP. No. 762/11 dated 04.07.12. In the circumstances, where the injured had suffered injury, it is deemed fit that a lump sum of Rs. 10,000/ be awarded as compensation towards Attendant charges.

41. Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the Claimant :

1. Future Loss of Income Rs. 0/

2. Towards Pain Shock & Suffering Rs. 50,000/ 3 Towards Servant / Attendant Charges Rs. 10,000/

4. Towards Conveyance & Special diet Rs. 10,000/ 5 Towards medical bills Rs. 0/ 6 Towards loss of Wages ( three months) Rs. 41,688/ Total= Rs. 1,11,688/ I accordingly award an amount of compensation of Rs. 1,11,688/ in favour of the Claimant and against Respondents. Liability:

42. Respondent No. 3 is the insurance company which admittedly has issued a valid insurance policy of the offending vehicle. During arguments, it is argued by Ms. Archana Kumari, ld. Counsel for insurance company that time is not mentioned in the FIR whereby intimation regarding theft of offending vehicle was made therefore FIR cannot be relied upon. It is further argued that as the offending vehicle has not been stolen and there is violation of DL therefore insurance company is not liable to pay the compensation.

DAR Nos. 215/18, 216/18 & 217/18 31 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

In this case, eFIR No. 019006 was lodged regarding theft of the offending vehicle. R3W1 i.e. IO of this case has also appeared on the witness box and deposed regarding the FIR regarding the theft of the offending vehicle at 4 AM in the morning. The driver has not been identified till today and is unknown. In these circumstances, insurance company is liable to make the payment accordingly as offending vehicle was duly insured and is at liberty to recover the amount from driver as per law in case he is arrested and there is any breach of the terms and condition of the insurance policy. Interim award if any paid to injured/ petitioner be adjusted in the award amount.

Award in DAR No. 215/18:

43. Resultantly, the DAR petition stands allowed. Insurance Company is hereby directed to pay the compensation of Rs. 1,11,688/ within one month to the Claimants. Claimant is also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC). Insurance Company is directed to deposit the amount with UCO Bank, KKD Courts Branch, Delhi.

44. Withdrawal from the said Account shall be permitted to Claimant after production of passbook of the bank account near the place of the residence with due endorsement that no debit card or cheque book has been issued or debit card / cheque book has been cancelled ( if issued).

45. The award amount alongwith interest be deposited by Insurance Company, within 30 days. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India DAR Nos. 215/18, 216/18 & 217/18 32 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Insurance Company with a cost of Rs. 10,000/.

46. FormV shall be read as a part of the judgment. Award in DAR No. 216/18:

47. Resultantly, the DAR petition stands allowed. Insurance Company is hereby directed to pay the compensation of Rs. 12,000/ within one month to the Claimants. Claimant is also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC). Insurance Company is directed to deposit the amount with UCO Bank, KKD Courts Branch, Delhi.

48. Withdrawal from the said Account shall be permitted to Claimant after production of passbook of the bank account near the place of the residence with due endorsement that no debit card or cheque book has been issued or debit card / cheque book has been cancelled ( if issued).

49. The award amount alongwith interest be deposited by Insurance Company, within 30 days. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the 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 Insurance Company with a cost of Rs. 10,000/.

50. FormV shall be read as a part of the judgment. Award in DAR No. 217/18:

51. Resultantly, the DAR petition stands allowed. Insurance Company is DAR Nos. 215/18, 216/18 & 217/18 33 of 34 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

hereby directed to pay the compensation of Rs. 1,11,688/ within one month to the Claimant. Claimant is also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC). Insurance Company is directed to deposit the amount with UCO Bank, KKD Courts Branch, Delhi.

52. Withdrawal from the said Account shall be permitted to Claimant after production of passbook of the bank account near the place of the residence with due endorsement that no debit card or cheque book has been issued or debit card / cheque book has been cancelled ( if issued).

53. The award amount alongwith interest be deposited by Insurance Company, within 30 days. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the 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 Insurance Company with a cost of Rs. 10,000/.

54. FormV shall be read as a part of the judgment.

55. Copy of this judgment be placed in the DAR petitions bearing DAR Nos. 215/18, 216/18 & 217/18.

                                              Gorakh                              Digitally signed by
                                                                                  Gorakh Nath Pandey
                                                                                  Location: Court No.69,

                                              Nath                                North East District,
                                                                                  Karkardooma Court,
                                                                                  Delhi
Announced in open Court
on this day of 04th January 2019              Pandey                              Date: 2019.01.09
                                                                                  17:02:05 +0530
                                              G. N. Pandey

Motor Accident Claims Tribunal(Pilot Court) Karkardooma Courts, Delhi.

DAR Nos. 215/18, 216/18 & 217/18                              34 of 34

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

Bablu S/O Madan Lal vs Amzad S/O Sher Ali on 4 January, 2019