Delhi District Court
Baby Deepika (Aged About 4 Yrs) vs ) Sh. Kishan (Driver) on 30 October, 2013
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IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS
JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
(M-40H/12)
(Grievous Injury/Disability case)
Baby Deepika (aged about 4 yrs)
D/o Sh. Sarvan Prasad
(Through her father/natural guardian
Sh. Sarvan Prasad)
R/o. J-125, Samaipur Sanjay Colony, Gali No.9,
Delhi.
............Petitioner
Versus
1) Sh. Kishan (Driver)
S/o Sh. Bed Ram
R/o. 44/32, Sanjay Colony Gali No.9,
Samai Pur, Delhi.
2) Sh. Harish Kumar (Owner)
R/o. H.No. 71, Street No.9,
Samaipur, Delhi.
3) Future General India Insurance Company Ltd.
Flat No. 303 to 310, Kailash 26 Kasturba Gandhi Marg,
Delhi.
---------Respondents
Date of filing of DAR---26.07.2012
Date of decision-------- 30.10.2013
(Application u/s 166 and 140 of Motor Vehicles Act
for grant of compensation)
******************************************
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JUDGMENT:-
1 DAR has been filed by the police stating therein that on the unfortunate date of 13.6.2012 at about 2.30 PM baby Deepika @ Asrchana aged about 4 years was crossing the road, meanwhile a tempo bearing No. DL 1LE 6785 (Eicher) which was being driven by its driver in a high speed, without blowing any horn and without taking care of other vehicles and persons on the road, in a zig zag manner and hit the minor child and the front driver side wheel of the tempo was crushed over her foot of the minor child. The accident was witnessed by many persons besides one PW Muekesh Prasad. A criminal case bearing FIR No. 208/12 was registered by the police of PS Narela U/s 279/338 IPC.
2. Petitioner claimed compensation with interest from the respondents being driver and owner and insurance company under various pecuniary and non pecuniary heads.
3. Respondents no. 1 & 2 chose to remain absent, and hence vide order dt. 27.8.2012 they were proceeded exparte. Respondent No.3/Insurance company filed separate WS wherein it denied all allegations and evaded its liability on technicalities.
4. On the basis of pleadings of the parties, following issues were framed on 27.8.2012:-
1.Whether Ms. Deepika D/o Sh Sarvan Prasad suffered injuries due to road accident on 13.6.2012 at about 15.00 PM at Gali No.9, Fish market, Sanjay Colony, Main Road, Near Transfarmer, Samaypur, Delhi within the jurisdiction of PS Samai Pur Badli due to rash and negligent driving of tempo bearing No. DL 1LE 6785 being driven by driver ? OPP 3
2.Whether the petitioner is entitled to compensation, if so, to what an extent and from which of the respondents? OPP
3.Relief
5. In order to prove his case, petitioner examined two witnesses:-
PW1 is Sharvan Kumar. He is father of petitioner. He tendered his evidence by way of affidavit Ex. PW1/A. He further relied upon the documents Ex.PW1/1 to Ex.PW1/7( documents Ex.PW1/3 to 5 were objected to as they were not verified). The disability certificate is also proved as Ex.PW1/8.
PW2 is Mukesh Prasad, he is eye witness of the accident and he tendered his evidence by way of affidavit Ex.PW2/1. He relied upon the document Ex.PW2/2 i.e his voter identity card. Thereafter PE was closed.
No evidence was led on behalf of respondents despite opportunity being granted to them. Thereafter RE was closed.
6. I have heard counsel for parties and gone through the record. My decision on the above mentioned issues is as under:
Issue no.1:-
7. The proof required in MACT claim petition are less than the proof required to criminal offence or a civil case. The principles to be followed in the case of motor accident claims has been laid down by the Hon'ble High Court of Guwahati in case cited as Renu Bala Paul and Ors. vs. bani Chakraborty and Ors. 1999 ACJ 634 wherein it is held that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the 4 Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
In N.K.V. Bros (P) Ltd. vs. M. Karumai Ammal & Ors. AIR 1980 SCC 1354, Hon'ble Supreme Court has observed as under:-
"Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
8. The police has prosecuted the respondent no.1 for causing the accident due to rash and negligent driving of the offending vehicle by filing the charge sheet. Sh. Mukesh Prasad being eye witness of accident in his evidence as PW2 specifically narrated the way and manner in which the accident took place and corroborated his story by way of affidavit. Witness has clearly stated that the accident took place due to rash and negligent driving of offending vehicle. It is the case of the R-1 that he has been falsely implicated in this case. No complaint has been lodged against driver and owner of the offending vehicle before any higher authority regarding the fact that R-1 and R-2 has been falsely implicated in this case at the instance of injured or IO. It is not the case of R-1 that injured or IO of the case nursed grudge or enmity with owner of the vehicle or they are known to each other. No evidence is 5 led on behalf of R-1 in support of contention of R-1 that accident did not take place due to rash and negligent driving of the vehicle driven by R-1. Hence adverse inference has to be drawn against them. Nothing has come in cross-examination by respondents that accident did not take place due to rash and negligent driving of R-1. Testimony of PW2 is trustworthy and unimpeachable who deposed that accident took place due to rash and negligent driving of R-1 due to which he sustained grievous injuries as mentioned above. Moreover, respondent No.1/driver did not examine himself to the contrary of PW2, hence adverse inference is to be drawn against him. Hence this issue is decided in favour of petitioner and against the respondents.
Issue no.2:-
9. Petitioner/injured was taken to the hospital after sustaining injuries on 13.6.2012 and injuries suffered were grievous in nature.
10. Hon'ble Supreme Court in Govind Yadav vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has observed as under:
"The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term "compensation" used in section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their 6 clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses' make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under Sections 166 of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of the compensation in such cases should invariably include pecuniary andnon- pecuniary damages.
In R.D. Hattangadi v. Pest Control (India) Private Limited MANU/SC/0146/1995: (1995) 1 SCC 551, this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v. James (1965) - All ER 563, Halsbury's Laws of England, 4th Edition, Volume 12 (page 446) and observed:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance, (ii) loss of earning of profit up to the date of trial, (iii) other material loss. So for non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future, (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e, on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life".
In the same case, the court further observed:
"In its very nature whenever a tribunal or a court is required to 7 fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards".
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka MANU/SC/0803/2009: (2009) 6 SCC 1, the three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs. 15 lakhs to Rs. 1 crore, the Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
"At the same time we often find that a person injured in an accident leaves his family in greater distress vis-...-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution ensures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity".
In Reshma Kumari v. Madan Mohan Manu/SC/1303/2009: (2009) 13 SCC 422, this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the Judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be 8 compensated in monetary terms.
In Arvind Kumar Mishra v. New India Assurance Co. Limited Manu/SC/0777/2010: (2010) 10 SCC 254, the Court considered the plea for enhancement of compensation made by the Appellant, who was a student of final year of engineering and had suffered 70% disablement in a motor accident. After noticing factual matrix of the case, the Court observed:
"We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as ho was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered".
In Raj Kumar V. Ajay Kumar Manu/SC/1018/2010: (2011) 1 SCC 343, the court considered some of the precedents and held:
"The provision of the Motor Vehicles Act, 1988, ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as for as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the 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 hie inability to earn as much as he used to earn or could have earned".
In our view, the principles laid down in Arvind Kumar Mishra vs. New 9 India Assurance Company Ltd. (supra) and Raj Kumar vs. Ajay Kumar (supra) must be followed by all the Tribunals and the High Court in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident".
The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages) I)Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure.
II)Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising;
a) Loss of earning during the period of treatment;
b) Loss of future earnings on account of permanent disability.
iii)Future medical expenses.
Non Pecuniary damages (General damages)
iv)Damages for pain suffering and trauma as a consequence of the injuries.
v)Loss of amenities (and/or loss of prospects of marriage).
Loss of expectation of life (shortening of normal longevity).
Pecuniary damages (Special damages):
Medical Expenses
11. The father of petitioner has stated on her behalf that his minor injured daughter received grievous injuries on various parts of the body. Due to the accident she suffered crush injury. After the accident the injured was shifted to 10 Baba Saheb Ambedkar Hospital for her treatment where she remained upto 15.6.2012 and lateron was referred to Ram Manohar Lohiya Hospital, Delhi.
Thereafter bone and plate surgery of the minor child was conducted and she was again admitted on 28.8.2012 to 10.9.2012. The copy of Admission and Discharge Slip of BSA Hospital is proved as Ex.PW1/2. The copy of OPD cards of RML, hospital and admission and discharge slip of RML Hospital are proved as Ex.PW1/3 and Ex.PW1/4. It is further submitted on behalf of petitioner that more than Rs. 2 lakhs had been spent on her treatment, medicines doctors fees etc. and proved the same vide original bills Ex.PW1/5 (collectively) which are amounting to Rs. 9078/-. I further grant a sum of R. 4836/- towards medical bills to the to the petitioner as the same were verified by the police in the DAR proceedings and insurance company has also relied upon the same. In view of above, I grant the amount of Rs. 9078/- + Rs. 4836/- = 13,914/- as actual medical expenses to the injured.
Special diet and conveyance charges
12. No proof of spending on conveyance and special diet is brought on record but it is a fact that normally in case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc is provided instead of or in addition to the normal food. Injured must have visited hospital in some transport but in absence of any evidence in this regard and after considering her injuries, period of hospital admission and treatment etc., I am of the view that maximum petitioner can be paid lump sum of Rs. 10,000/- towards special diet and Rs. 10,000/- towards conveyance charges.
Notional Loss of studies/Future Prospectus:
13. Petitioner has suffered grievous injuries all over her body as per MLC and other medical documents proved on record. Due to the accident she suffered crush injury. After the accident the injured was shifted to Baba Saheb Ambedkar Hospital for her treatment where she remained upto 15.6.2012 and lateron was 11 referred to Ram Manohar Lohiya Hospital, Delhi. Thereafter bone and plate surgery of the minor child was conducted and she was again admitted on 28.8.2012 to 10.9.2012. The copy of Admission and Discharge Slip of BSA Hospital is proved as Ex.PW1/2. The copy of OPD cards of RML, hospital and admission and discharge slip of RML Hospital are proved as Ex.PW1/3 and Ex.PW1/4. She suffered 15% physical disability in relation to her left lower limb as per the disability certificate issued from AIIMS. The father of minor injured has deposed as PW1 that at the time of accident she was aged about 4 years and was studying in Anganwadi, but due to this accident she was compelled to leave her study. But no proof in support of his claim pertaining to the admission to any Anganwadi or loss of any studies occurred to the injured has been produced or proved on record. Admittedly in the DAR as well as in the testimony of PW1 at the time of accident the minor injured/petitioner was 4 years old and in the absence of any proof of studies or admission in any Anganwadi she is not entitled to any notional loss of studies or future prospectus.
Non-pecuniary damages (General damages):
Pain and Sufferings etc.:
14 As per the case of Govind Yadav, it is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person as a result of accident. The petitioner suffered 15 % permanent physical disability issued by AIIMS in relation to left lower limb. Even if the victim of accident gets out of grievous injuries, she will suffer from different kinds of handicaps and social stigma throughout her life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the injured was a child of 4 years. For the remaining life, she will suffer the trauma of not being able to do her normal work. Therefore, ends of justice will be met by awarding her a sum of Rs.
40,000/- in lieu of pain, suffering, inconvenience, frustration, hardship and trauma caused due to injuries suffered in accident.
12Loss of amenities, enjoyment, shortening of life etc. 15 As held above the minor injured petitioner was 4 years old at the time of accident and due to the accident she suffered permanent physical disability of 15% in relation to her left lower limb. Her routine work has also been hampered/affected badly due to this accident. Difficulty and inconvenience have arisen to her to perform even daily personal routine acts due to said accident. During the rest of her life she will not be able to live like normal human being and will not be able to enjoy the life and she has to live with the stigma of accident for the rest of her life and she might be alive 50/60 more years. Hence I award her a sum of Rs. 1,50,000/- for the shortening of life and enjoyment of life etc. as per the judgment of Govind Yadav's case (supra).
Loss of marriage prospects etc. 16 As held above the minor injured petitioner was 4 years old at the time of accident and due to the accident she suffered permanent physical disability of 15% in relation to her left lower limb. Her routine work has also been hampered/affected badly due to this accident. Difficulty and inconvenience have arisen to her to perform even daily personal routine acts due to said accident. During the rest of her life she will not be able to live like normal human being and will not be able to enjoy the life and she has to live with the stigma of accident for the rest of her life and she might be alive 50/60 more years. Furthermore she has also suffered the loss of her better marriage prospects. Hence I award her a sum of Rs. 1,50,000/- for the loss of her marriage prospects as per the judgment of Govind Yadav's case (supra).
17 Admittedly, the offending vehicle was insured with the respondent No. 3/insurance company. It is submitted on behalf of insurance company that as per DAR on the date of accident the driver of offending vehicle was holding a licence 13 validity of which was expired long time ago on 3.7.2006 and there is no evidence on behalf of driver and owner that either it was renewed or was valid on the date of accident and was renewed subsequently but not even after renewal was not effective on the date of accident. Hence the insurance company is given recovery rights against jointly and severally against driver and owner.
18 In view of the above discussions, this issue is decided in favour of petitioner, by holding that she is entitled to get the following total compensation from the respondent no.3/insurance company with the right to recover the same jointly and severally from the driver and owner of the vehicle.
A) Pecuniary damages (Special damages):
a) Medical expenses-----------------------------------------Rs. 13,914/-
c) Special diet ------------------------------------------------ Rs. 10,000/-
d) Conveyance charges ------------------------------------Rs. 10,000/-
e) Notional Loss of studies---------------------------------Rs. Nil
f) Loss of future prospectus-------------------------------Rs. Nil
B) Non-pecuniary damages (General damages):
a) Pain, suffering, inconvenience-------------------------Rs. 40,000/-
frustration, hardship and trauma
b) Loss of amenities etc.-----------------------------------Rs. 1,50,000/-
c) Loss of marriage prospects----------------------------Rs. 1,50,000/-
__________________
Total Rs. 3,73,914/-
Relief
19 Petitioner is entitled to a sum of Rs. 3,73,914/- alongwith interest @
9% as per the judgment in case New India Assurance Co. Ltd Vs Bhudhia Devi 14 and others reported in 2010 ACJ 2045, from filing of DAR i.e 26.7.2012 till the payment is made by the respondent No. 3/insurance company within 30 days from the date of this award alongwith accrued interest with the right to the insurance company to recover the same jointly and severally from the driver and owner of the offending vehicle vehicle i.e. R1 and R2.
20 It is further ordered that the entire compensation amount with upto date interest be kept in the form of FDR in the name of minor petitioner till she attains the age of 21 years or the date of her marriage which ever comes earlier with Punjab National Bank, Madhuban Chowk branch, Delhi, with liberty to the mother of minor/petitioner to withdraw the monthly interest on the said FDR by way of her saving bank account and use the same for the welfare of the child. The said FDR shall not be encashed without permission of the court. No ATM facility, loan or advance shall be granted to the petitioner on the FDR. The original FDR be kept by the bank itself and only the attested copy of said FDR be handed over to the mother of petitioner.
21 It is further ordered that a photograph of injured attached in the file which shows that because of injuries she has suffered extensive congestion of blockage of the blood which has resulted into a deformity and it being a baby child it will be a serious implication for her specially in view of the status of the injured and her father. The photograph which is placed on record in open be kept in closed envelope and a copy of same would not be supplied to anybody except the prior permission of Tribunal to protect the interest of minor child on whose behalf the court has to act as a guardian of interest of minor child.
22 Copy of this judgment be given to petitioner and counsel for respondents.
1523 Put up for payment at first by the insurance company on 29.11.2013.
Announced in the open (D.K. MALHOTRA)
Court on 30.10.2013 JUDGE, MACT (NORTH-II)
DELHI