Delhi District Court
Sh. Lalan Rai vs Sh. Sanjay Kumar on 15 October, 2018
MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 5100/16 (Old MACP No. 328/14)
Sh. Lalan Rai,
S/o Sh.Sat Narayan,
R/o Village Bankner,
Narela, Delhi. ..........Petitioner
VERSUS
1. Sh. Sanjay Kumar,
S/o Sh. Puran Chand,
R/o Kutwasi,
PS. Fatehpur,
District Kangra,
Himachal Pardesh (Driver)
2. Smt. Harpreet Kaur,
W/o Sh. Balwinder Singh,
R/o H.No. 4, Beveiwala Bagh,
Village Khuda Jassu,
Chandigarh (Registered Owner)
3. The Oriental Insurance Co. Ltd.
A25/27, Asaf Ali Road,
Delhi (Insurer)
........Respondents
AND
Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 1 of 33
MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018
MAC Petition No. 5099/16 (Old MACP No. 327/14)
Sh. Monu,
S/o Sh. Lalan Rai,
R/o Village Bankner,
Narela, Delhi. ..........Petitioner
VERSUS
1. Sh. Sanjay Kumar,
S/o Sh. Puran Chand,
R/o Kutwasi,
PS. Fatehpur,
District Kangra,
Himachal Pardesh (Driver)
2. Smt. Harpreet Kaur,
W/o Sh. Balwinder Singh,
R/o H.No. 4, Beveiwala Bagh,
Village Khuda Jassu,
Chandigarh (Registered Owner)
3. The Oriental Insurance Co. Ltd.
A25/27, Asaf Ali Road,
Delhi (Insurer) ........Respondents
Date of Institution : 31.07.2014
Date of Arguments : 29.09.2018
Date of Award : 15.10.2018
APPEARENCES
Sh. K.R. Sharma, adv for injured persons.
Respondents no. 1 & 2 are exparte.
Sh. M. Awasthi, adv for respondent no. 3.
Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 2 of 33
MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018
Petition under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD:
1. Vide this common order, I shall dispose of both these claim
petitions with regard to grievous injuries sustained by Lalan Rai(MACP No.
5100/16) and by Monu (MACP No. 5099/16) in Motor Vehicular Accident
which occurred on 19.01.2012 at about 2:15 pm near R.T. Cut Piyau
Maniyari, Kundli, District Sonepat, Haryana, involving Tata Indigo Car
bearing registration no. CH022561(alleged offending vehicle) being driven
in rash and negligent manner by its driver namely Sanjay Kumar (R1
herein).
2. Both these claim petitions were consolidated for the purpose of
recording evidence vide order dated 02.09.2016 passed by my Ld.
Predecessor and MACP No. 5100/16 titled as " Lalan Rai Vs. Sanjay
Kumar & Ors" was treated as the leading case. Although, claimants led
their respective evidence in both the matters, however, common evidence
was led on behalf of insurance company in the leading case for the purpose
of both these matters.
FACTS OF THE CASES
3. According to the claim petitions filed in both these cases, on 19.01.12 the petitioner/injured namely Lalan Rai was driving motorcycle no.
Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 3 of 33MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 HR10J2374 and another injured/his son namely Monu was sitting on pillion seat of it. They were going to Kundli Border. At about 2:15 pm, when they reached near Crossing R.T. Cut Piyau Maniyari, Kundli, District Sonepat, Haryana, one Tata Indigo Car bearing registration no. CH02 2561 which was being driven by its driver in rash and negligent manner, came from Delhi side and hit against the aforesaid motorcycle with great force. As a result thereof, they both fell down on the road and sustained grievous injuries. They were removed to Parnami Hospital, wherefrom they were referred to SRHC Hospital, Narela, Delhi. Thereafter, they were referred to LNJP Hospital, Delhi. FIR No. 41/12 U/s 279/337/338 IPC was registered at PS. Kundli with regard to the accident in question. The aforesaid vehicle i.e. Tata Indigo Car was found to be owned by respondent no. 2 and it was insured with The Oriental Insurance Company Ltd /respondent no. 3 during the period in question.
4. It is averred in MACP No. 5100/16 that the petitioner/injured was aged about 35 years old; he was self employed(Electrician) and was earning Rs. 10,000/ per month at the time of accident in question. It is further averred that he had sustained grievous injuries i.e. fracture in his right leg and serious head injury apart from other injuries due to the accident in question. The petitioner has claimed compensation to the tune of Rs. 20,00,000/ (under pecuniary as well as non pecuniary heads) alongwith interest against all the respondents on the ground that they are jointly and severally liable to pay the compensation amount.
Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 4 of 33MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018
5. It is averred in MACP No. 5099/16 that the petitioner/minor injured namely Monu was aged about 14 years old and he was a student at the time of accident in question. It is further averred that he had sustained grievous injuries i.e. fracture right femur and fracture right leg apart from other injuries due to the accident in question. The petitioner has claimed compensation to the tune of Rs. 10,00,000/ (under pecuniary as well as non pecuniary heads) alongwith interest against all the respondents.
6. Although, the respondents no. 1 & 2 i.e. driver and registered owner put their appearance before Claims Tribunal on 22.01.2015 after service of notice of claim petition upon them, however they filed to file their WS despite grant of sufficient opportunities. Consequently, their defence was struck off vide order dated 10.04.15. It may also be noted that both the said respondents stopped appearing during the course of inquiry and consequently, they were also proceeded exparte vide order dated 10.03.2017.
7. Respondent no. 3 i.e. insurance company has filed separate but identical written statements in both the claim petitions raising preliminary objections that the petition is bad for nonjoinder of owner and insurer of the motorcycle allegedly involved in the accident. It has also raised statutory defence as provided in Section 149(2) M.V. Act. However, it has admitted that Tata Indigo Car No. CH022561 was insured with it in the name of Mrs. Harpreet Kaur(R2), vide policy no. 231100/31/2012/7584, Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 5 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 having validity from 17.08.2011 to 16.08.2012. On merits, it has denied the averments made in the claim petitions and has prayed for their dismissal.
8. From pleading of the parties, the following issues were framed in MACP No. 5100/16 by Ld. Predecessor vide order dated 10.04.2015 :
1) Whether the petitioner Lalan Singh suffered injuries in road traffic accident on 19.01.2012 at about 2:15 pm near RP Cut, Paio Maniyari, Kundli, District Sonepat, Haryana, within the jurisdiction of PS. Kundli due to rashness and negligence on the part of the R1 who was driving TATA Indigo car bearing registration no.
CH022561, owned by R2 and insured with R3?
OPP.
2) Whether the petitioner is entitled to any compensation, if so to what amount and from whom? OPP.
3) Relief.
9. From pleading of the parties, the following issues were framed in MACP No. 5099/16 by Ld. Predecessor vide order dated 10.04.2015 :
1) Whether the petitioner Monu suffered injuries in road traffic accident on 19.01.2012 at about 2:15 pm near RP Cut, Paio Maniyari, Kundli, District Sonepat, Haryana, within the jurisdiction of PS. Kundli due to rashness and Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 6 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 negligence on the part of the R1 who was driving TATA Indigo car bearing registration no.
CH022561, owned by R2 and insured with R3?
OPP.
2) Whether the petitioner is entitled to any compensation, if so to what amount and from whom? OPP.
3) Relief.
10. In order to establish their claim, the petitioners have examined common two witnesses in both the claim petitions i.e. PW1 Sh. Lalan Rai(injured in MACP No. 5100/16 as well as father of injured Monu in MACP No. 5099/16) and PW2 Dr. Ashutosh Gupta. They closed their respective evidence on 18.09.15. On the other hand, no evidence was adduced by respondents no. 1 and 2, the defence of respondents no. 1 & 2 being already struck off and both being exparte passed by my Ld. Predecessor. However, respondent no. 2 has examined herself as R2W1 and closed her evidence on 27.05.2016 in both the claim petitions. The respondent no. 3 has examined two witnesses i.e. Ms. Neelam Rani, Assistant, The Oriental Insurance Company Limited as R3W1 and R3W2 Sh. Pawan Kumar, Steno, Office of Secretary, RTA, Amritsar, Punjab and closed its RE on 13.07.2018 through its counsel in both the claim petitions.
11. I have already heard the arguments advanced by Ld counsels for the parties. Both the sides were directed to submit their respective Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 7 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 submissions in Form IV B vide order dated 23.03.2018 but they have not submitted the same on record till date. My findings on the issues are as under: ISSUES NO. 1 ( IN BOTH THE CASES)
12. For the purpose of this issue, the testimony of PW1 Sh. Lalan Rai (petitioner/injured in MACP No. 5100/16) is relevant. In his evidence by way of affidavit (Ex. PW1/A), he has deposed on the identical lines of claim petitions that on 19.01.12, he was driving motorcycle no. HR10J2374 and injured/his son namely Monu was sitting on the pillion seat of it and they were going to Kundli Border. At about 2:15 pm, when they reached near Crossing R.T. Cut Piyau Maniyari, Kundli, District Sonepat, Haryana, one Tata Indigo Car bearing registration no. CH022561 which was being driven by its driver in rash and negligent manner, came from Delhi side and hit against the aforesaid motorcycle with great force. As a result thereof, they both fell down on the road and sustained grievous injuries. They were removed to Parnami Hospital, wherefrom they were referred to SRHC Hospital, Narela, Delhi. Thereafter, they were referred to LNJP Hospital, Delhi. He has relied upon the following documents: Serial Description of Remarks No. documents
1. His as well as his son's Ex. PW1/1(colly) treatment record Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 8 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018
2. Disharge Summary and Ex.PW1/2(colly) medical bills
3. Certified copy of criminal Ex.PW1/3(colly) case record.
4. Copy of his Aadhaar Card Ex. PW1/4
5. Copy of Aadhaar Card of Ex. PW1/5 his son Monu
13. During his crossexamination on behalf respondent no. 3, he deposed that on the date of accident, he was holding DL to drive the motorcycle but said DL had been lost. He denied the suggestion that he was not holding any DL authorizing him to drive the motorcycle. He deposed that there was no traffic signal at the place from where he was crossing the road. He was hit by the offending car at left side of his motorcycle. He had not seen the offending car prior to the accident. He denied the suggestion that the accident had taken place due to his own negligence while driving the motorcycle. Respondents no. 1 & 2 did not crossexamine this witness at all.
14. It is evident from the testimony of PW1 Sh. Lalan Rai that the respondents could not impeach his testimony through litmus test of cross examination and said witness is found to have successfully withstood the test of crossexamination. On the other hand, none of the respondents examined any witness in order to rebut the testimony of this witness during the course of inquiry. Hence, there is no reason to disbelieve his uncontroverted testimony on the point of accident in question being caused Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 9 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 by respondent no. 1 while driving Tata Indigo Car. CH022561 in rash and negligent manner.
15. Apart from PW1, the respondent no. 1/driver of offending Car was the other material witness, who could have thrown sufficient light as to how and under what circumstances, the accident in question took place. However, he preferred not to enter into the witness box and to stay away from the proceedings during the course of inquiry. Thus, an adverse inference is liable to be drawn against him for not entering into the witness box, to the effect that the accident occurred due to his rash and negligent driving of offending vehicle i.e. Car bearing registration no. CH022561.
16. The very fact that the police has filed chargesheet (which is part of criminal case record Ex. PW1/3 colly) before the Court of Magistrate claiming therein that it was due to rash and negligent driving of offending vehicle no. CH022561 by its driver namely Sanjay Kumar/R1 (accused in State case) that the accident in question had occurred, due to which Lalan Rai and Monu had sustained grievous injuries, also points out towards the rash and negligent driving of aforesaid vehicle on the part of respondent no.
1.
17. Not only this, the MLC (which is part of criminal case record Ex. PW1/3 colly) of injured Lalan Rai prepared at SRHC Hospital, Narela, Delhi, would reveal that he had been removed to said hospital on 19.01.2012 at Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 10 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 3:15 pm with alleged history of Road Traffic Accident (RTA). The MLC (which is also part of criminal case record Ex. PW1/3 colly) of injured Monu prepared at Parnami Ortho & Spine Hospital, Kundli, Sonepat, would reveal that he had been removed to said hospital on 19.01.2012 at 3:30 pm with alleged history of Road Traffic Accident (RTA). It is mentioned in their respective MLCs that they had sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the aforesaid documents from the side of respondents including insurance company.
18. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner(s) have been able to prove on the basis of pre ponderence of probabilities that they had sustained grievous injuries in the road accident which took place on 19.01.2012 at about 2.15 pm , near R.T. Cut Piyau Maniyari, Kundli, District Sonepat, Haryana, due to negligence on the part of driver of Car No. CH022561. Thus, issue no. 1 is decided in favour of the petitioners and against the respondents.
ISSUE NO.2
19. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 11 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
Compensation in MACP No. 5100/16(Injured Lalan Rai) MEDICAL EXPENSES
20. PW Lalan Rai has deposed in his evidence by way of affidavit (Ex. PW1/A) that he was removed to SRHC Hospital, Narela, Delhi, where he was examined. Thereafter, he was referred to LNJP Hospital. He had sustained fracture of right leg and serious head injury and raw area foot frontal E.D.H besides other injuries. He deposed to have spent Rs. 8,546/ on his medical treatment. He also deposed that he had suffered 51% permanent disability in relation to his right lower limb. He has relied upon his treatment record and medical bills as Ex. PW1/2(colly). During his crossexamination on behalf of respondent no.3, he denied the suggestion that he had not spent Rs. 8,546/ on his medical treatment as claimed. Respondents no. 1 & 2 did not crossexamine this witness, both being already exparte.
21. It is quite evident that the respondents have not disputed the authenticity and genuineness of the medical bills filed by the petitioner/injured on record during the course of inquiry. Moreover, the respondents have failed to lead any evidence in rebuttal in order to create any doubt on the authenticity of the medical bills of injured as available on Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 12 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 record. The petitioner/injured has filed original medical bills total amounting to Rs. 7,029/. Accordingly, a sum of Rs. 7,029/ is awarded to the petitioner under this head.
Loss of Income
22. PW1 Lalan Rai has deposed in his evidence by way of affidavit (Ex. PW1/A) that he was working as Electrician and was earning Rs. 10,000/ per month at the time of accident. He further deposed that due to the accident, he could not do any work for about one year and had suffered complete financial loss. During his crossexamination on behalf of respondent no. 3, he deposed that he did not have any document to show that he was earning Rs. 10,000/ per month while working as an Electrician. Respondents no. 1 & 2 did not crossexamine this witness at all.
23. As noted above, the petitioner Lalan Rai has relied upon his medical treatment record in order to prove the nature of injuries sustained by him and the period till which his treatment continued. The said documents are Ex. PW1/2(colly). The Discharge Summary of LNJP Hospital (which is part of Ex. PW1/2 colly) would reveal that he had sustained compound Grade III Bimalleolar fracture right leg with raw area right foot with left frontal EDH. He is shown to h ave suffered 51% permanent disability in relation to his right lower limb due to the accident. Considering the nature of injuries sustained by the petitioner and in view of Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 13 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 ocular testimony of PW1, it is presumed that he would not have been able to work at all atleast for a period of 10 months or so.
24. During the course of arguments, counsel for injured fairly conceded that for want of any cogent evidence with regard to exact avocation or monthly income of injured/petitioner, his income has to be assessed as per Minimum Wages Act applicable during the relevant period. It may be noted here that the petitioner has failed to file any document concerning his educational qualification. In these circumstances, the minimum wages of an unskilled worker under Minimum Wages Act during the period in question, has to be taken into consideration. The minimum wages of an unskilled worker were Rs. 6,656/ per month as on the date of accident which is 19.01.2012. Thus, a sum of Rs. 66,560/ (Rs. 6,656/x 10) is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
25. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 14 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
26. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/1) that he had sustained grievous injuries i.e. compound Grade III Bimalleolar fracture right leg with raw area right foot with left frontal EDH. He has sustained permanent disability to the extent of 51% in relation to his right lower limb. Apart from the fact that the relevant portion of his testimony in this regard, has gone unchallanged and unrebutted from the side of respondents, his ocular testimony is duly corroborated by the ocular testimony of PW2 and by his medical treatment record as well as Disability Certificate (Ex. PW2/1). Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him, I hereby award a sum of Rs. 1,50,000/ towards pain and sufferings to the petitioner. (Reliance placed on ""IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.2018 by Hon'ble Delhi High Court).
Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 15 of 33MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 LOSS OF GENERAL AMENITIES AND ENJOYMENT OF LIFE
27. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered grievous injuries i.e. compound Grade III Bimalleolar fracture right leg with raw area right foot with left frontal EDH due to the accident in question. He has also sustained permanent disability of 51% in relation to his right lower limb, which is duly established from the Disability Certificate (Ex. PW2/1) issued by SRHC Hospital, Narela, Delhi. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 1,50,000/ towards loss of general amenities and enjoyment of life to the petitioner. (Reliance placed on ""IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.2018 by Hon'ble Delhi High Court).
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
28. Although, the petitioner/injured as PW1 has deposed in his evidence by way of affidavit (Ex. PW1/A) that he had spent Rs. 40,000/ PM special diet and conveyance but he has failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that he Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 16 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 had sustained grievous injuries i.e. compound Grade III Bimalleolar fracture right leg with raw area right foot with left frontal EDH due to the accident in question. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 5,000/ or conveyance charges and a sum of Rs. 10,000/ each for special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
29. As already stated above, the petitioner is shown to have sustained 51% permanent disability in relation to his right lower limb. Same is quite evident from Disability Certificate dated 11.07.2015 (Ex. PW2/1) of Medical Board of SRHC Hospital, Narela, Delhi. The petitioner has also testified in this regard while examining himself as PW1 during inquiry. He has not been crossexamined by the respondents on this aspect.
30. As per the testimony of PW2 Dr. Ashutosh Gupta, who was one of the members of Disability Board constituted at SRHC Hospital, the Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 17 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 petitioner was found to have suffered 51% permanent disability in relation to his right lower limb and eye. In his crossexamination on behalf of insurance company, he deposed that the patient never remained under his treatment. He further deposed that prior to issuance of disability certificate, the medical documents of the patient were looked into and Xray was performed in their hospital. He deposed that he could not say about the extent of permanent disability in relation to entire body. He denied the suggestion that permanent disability had not been properly assessed and they had not followed the guideline issued by government. Respondents no. 1 & 2 did not crossexamine the witness despite grant of opportunity.
31. The disability certificate (Ex. PW2/1) of injured would reveal that he had suffered 51% permanent disability in relation to his right lower limb. He was doing the work of Electrician prior to the accident in question. Thus, it would not be possible for him to engage himself in the avocation of Electrician or in any kind of employment requiring movement of lower limbs or even to do his day to day activities himself. Hence, his functional disability is taken as 30% in relation to whole body.
32. In copy of Aadhaar Card of petitioner Lalan Rai, his date of birth is mentioned as 01.01.1973. The date of accident is 19.01.2012. In view of said document, his age was about 39 years as on the date of accident. Hence, the appropriate multiplier would be 15 in view of recent pronouncement made by Constitutional Bench of Apex Court in the case Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 18 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
33. The notional monthly income of petitioner has been taken as Rs. 6,656/ per month as discussed above. Thus, the loss of monthly future income would be Rs. 1,997/ Rs. 6,656/ x 30/100 ). The total loss of future income would be Rs. 5,03,244/ (Rs. 1,997/ x 140/100 x 12 x 15). Thus, a sum of Rs. 5,03,244/ is awarded in favour of petitioner under this head. (Reliance placed on decisions of Hon'ble Delhi High Court in "National Insurance Co. Ltd. Vs. Hari Om Const. & Ors.", MAC APP No. 464/2011 decided on 03.11.17 and "ICICI Lombard General Insurance Company Limited Vs. Mahesh Kumar & Ors.", MAC APP No. 843/2011, decided on 03.11.17).
Thus, t he total compensation is assessed as under:
1. Medical Expenses Rs. 7029/
2. Loss of income Rs. 66,560/
3. Pain and suffering Rs. 1,50,000/
4. Loss of general amenities and Rs. 1,50,000/ enjoyment of life
5. Conveyance, special diet and Rs. 25,000/ attendant charges
6. Loss of future income Rs. 5,03,244/ Total Rs. 9,01,833/ Rounded off to Rs. 9,02,000/ Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 19 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 Compensation in MACP No. 5099/16(Injured Monu) MEDICAL EXPENSES
34. PW1 Sh. Lalan Rai(father/natural guardian of minor injured Monu) has deposed in his evidence by way of affidavit (Ex. PW1/A) that his son Monu had sustained fracture of right femur and fracture of right leg apart from other injuries. He was treated at Parnami Ortho & Spine Hospital, Kundli. He deposed to have spent Rs. 16, 479// on medical treatment of his son. He also deposed that his son has suffered 2 % permanent disability in relation to his right lower limb. He has relied upon treatment record and medical bills of his minor son as Ex. PW1/2(colly) and copy of his Aadhaar Card as well as Aadhaar card of his minor son as Ex. PW1/4 and Ex. PW1/5 respectively. During his crossexamination on behalf of respondent no.3, he denied the suggestion that he had not spent Rs. 16,479/ on medical treatment of his son as claimed. Respondents no. 1 & 2 did not crossexamine this witness, both being already exparte.
35. It is quite evident that the respondents have not disputed the authenticity and genuineness of the medical bills filed by the petitioner/injured on record during the course of inquiry. Moreover, the respondents have failed to lead any evidence in rebuttal in order to create any doubt on the authenticity of the medical bills of injured as available on record. The petitioner/injured has filed original medical bills total amounting to Rs. 17,996/. Accordingly, a sum of Rs. 17,996/ is awarded to the petitioner under this head.
Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 20 of 33MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 Loss of Studies
36. PW1 deposed in his evidence by way of affidavit(Ex. PW1/A)that injured/his son was studying in 6th class and he had to leave his study due to the injuries sustained by him in the accident. He also deposed that future career of his minor son was greatly affected due to the accident. During his crossexamination on behalf of insurance company, he could not produce any document to show that his minor son was studying in school at the time of accident. Respondents no. 1 & 2 did not crossexamine this witness, both being already exparte.
37. During the course of arguments, counsel for injured argued that injured Monu had suffered loss of studies as he could not attend his school for considerable period and he had to leave the school due to the accident. Therefore, appropriate compensation amount may be awarded to him. On the other hand, counsel for insurance company argued that no cogent evidence has been led on behalf of claimant to show that he was actually studying in any class at the time of accident and therefore, no amount of compensation should be awarded under this head.
38. No doubt, the claimant has not filed any document to show that he was actually studying in any school at the time of accident. Nevertheless, the relevant portion of the testimony of PW1 that claimant was studying in 6th class and he had to leave the study due to the accident, Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 21 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 has gone unchallenged and unrebutted from the side of respondents, more particularly the insurance company.
39. The ocular testimony of PW1 in this regard coupled with medical treatment record (which is part of Ex. PW1/2 colly) of injured Monu, would show that injured Monu had sustained compound fracture of femur and tibia and he remained admitted in Parnami Hospital from 19.01.12 till 21.01.12. Not only this, surgery was performed during the course of his admission in the said hospital. It can not be overlooked that studies of injured would h ave been definitely affected due to the injuries sustained by him on account of accident. The claimant would have to incur extra amount in order to make up for the loss of his studies during the aforesaid Academic Session. Thus, a notional sum of Rs. 25,000/ is awarded in favour of petitioner and against the respondents under this head.
CONVEYANCE & SPECIAL DIET
40. Although, PW1 has deposed in his evidence by way of affidavit (Ex. PW1/A) that he had spent a sum of Rs. 50,000/ on special diet and conveyance but he has failed to lead any cogent evidence in this regard. At the same time, it cannot be overlooked that he had sustained grievous injuries i.e. fracture of right femur and tibia. Nailing was done during the course of surgery performed on 19.01.12 as per his Discharge Summary of Parnami Hospital. Apart from this, he is shown to have sustained Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 22 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 permanent disability of 2% in relation to his right lower limb as per Disability Certificate (EX. PW2/1) issued by Disability Board of SRHC Hospital and in view of ocular testimony of PW2 Dr. Ashutosh Gupta. In these facts and circumstances, I hereby award a notional sum of Rs. 5,000/for conveyance charges and a sum of Rs. 10,000/ for special diet to the petitioner.
Compensation under nonpecuniary heads
41. PW1 i.e. father of injured deposed in his evidence by way of affidavit(Ex. PW1/A) that injured was studying in 6th class at the time of accident. He has relied upon copy of Aadhaar Card of injured, wherein his date of birth is mentioned as 01.01.1998. The accident in question occurred on 19.01.12. Hence, the age of injured was about 14 years at the time of accident in question. PW1 has deposed that due to the accident, injured had sustained 2% permanent disability in relation to his right lower limb. His testimony remained unchallanged and uncrossed from the side of respondents on these aspects.
42. The ocular testimony of PW1 is duly corroborated by the medical treatment record(Ex. PW1/1 colly) of injured as well as by the testimony of PW2 Dr. Ashutosh Gupta, who deposed that the patient Monu Kumar had sustained permanent disability to the extent of 2% in relation to his right lower limb. During his crossexamination on behalf of insurance company, he deposed that the petitioner never remained under his Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 23 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 treatment. He further deposed that the permanent disability of 2% was in relation to right lower limb. He further deposed that prior to issuance of disability certificate, the medical documents of the patient were looked into and Xray was performed in their hospital. He deposed that he could not say about the extent of permanent disability in relation to entire body. He denied the suggestion that permanent disability had not been properly assessed and they had not followed the guideline issued by government. Respondents no. 1 & 2 did not crossexamine the witness despite grant of opportunity.
43. As already noted above, the injured was of tender age of about 14 years at the time of accident. At such a tender age, he unfortunately met with an accident and has suffered 2% permanent disability in relation to his right lower limb. He was definitely ray of hope for his parents and other family members and due to those injuries, the quality of his life has definitely been affected to some extent. No amount of money would be sufficient to compensate the injured as money can not restore his childhood and the activities/functions which would have been done by him in his youth as well as in latter part of his life. Still, notional amount of compensation has to be awarded, in an attempt to alleviate his sufferings.
44. Hon'ble Apex Court in the celebrated decision in the case of "Master Mallikarjun Vs. Divisional Manager, the National Insurance Company Ltd. & Anr. (s) " in Civil Appeal No. 7139/2013 decided on Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 24 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 26.08.13, while dealing with the question of assessment of compensation in case of children suffering disability on account of motor vehicular accident, held that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is upto 10 %, to be Rs. 1,00,000/(Rupees One Lakh Only).
45. Now turning back to the facts of the present case. As already noted above, child namely Monu has suffered 2% permanent disability in relation to his right lower limb in this case, as proved in view of testimony of PW2 Dr. Ashutosh Gupta and disability certificate Ex. PW2/1. While relying upon the decision in Master Mallikarjun's case(supra), I hereby award a sum of Rs. 1,00,000/ in favour of petitioner and against the respondents under this head.
PAIN & SUFFERING CAUSED TO THE PARENTS
46. Ld. Counsel for claimant has also relied upon decision of Hon'ble Apex Court in the matter titled as "Kumari Kiran Vs. Sajjan Singh & Ors.", (2015) 1SCC 539, in support of his contention that appropriate compensation should also be awarded on account of pain and suffering caused to parents of the injured child.
47. In the above cited decision, Hon'ble Apex Court while following the view taken in Master Mallikarjun(supra), calculated the compensation Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 25 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 award able to minor children who were rendered permanently disabled to the extent of 30% and 20% respectively, added Rs. 1,00,000/ each on account of pain and suffering in addition to the amount of compensation awarded, under nonpecuniary heads of agony to parents, transportation, special diet, nutrition and future medical expenses, besides the actual expenditure under the heads of medical expenses and attendant.
48. Now reverting back to the facts of the present case. As already noted above, minor child namely Monu has sustained permanent disability to the extent of 2% in relation to right lower limb. Thus, while following the decision rendered by Hon'ble Apex Court in Kumari Kiran(supra), I hereby award compensation of Rs. 10,000/ towards pain and suffering caused to the parents of injured.
Thus, the total compensation is assessed as under:
1. Medical bills Rs. 17,996/
2. Loss of studies Rs. 25,000/
3. Conveyance & special diet Rs. 15,000/
4. Compensation under nonpecuniary heads Rs. 1,00,000/
5. Pain and suffering caused to the parents Rs. 10,000/ Total Rs. 1,67,996/ Rounded off to Rs. 1,68,000/ Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 26 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018
49. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Counsel for insurance company sought to avoid the liability of insurance company to pay the compensation amount on the ground that DL in favour of respondent no. 1 was found to be fake. For this purpose, he heavily relied upon the testimonies of R3W1 namely Ms. Neelam Rani, Assistant, Oriental Insurance Company and of R3W2 Sh. Pawan Kumar, official from the office of RTA, Amritsar.
50. R3W1 has deposed in her evidence by way of affidavit (Ex. R3W1/A) that as per DAR, the driving licence of driver/R1, on verification by IO from the concerned department, was found to be fake. She exhibited DL verification report issued by office of DTO, Amritsar as Ex. R3W1/4. She further deposed that despite service of notice u/o 12 Rule 8 CPC served upon insured, he failed to produce any valid DL in favour of R1. She further deposed that since the driver of the offending vehicle was not having valid DL at the time of alleged accident, there was breach in the terms and conditions of insurance policy on the part of insured. She exhibited office copy of insurance policy of offending vehicle as Ex. R3W1/1, office copy of notice u/o 12 Rule 8 CPC as Ex. R3W1/2 and postal receipt as Ex. R3W1/3. During her crossexamination on behalf of petitioner, she deposed that she herself did not get the DL of driver/R1 verified. She had no knowledge whether notice(Ex. R3W1/2) was served upon insured or not but denied the suggestion that insurance company has liability to pay the Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 27 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 compensation amount. Respondents no. 1 & 2 did not crossexamine the said witness, they being exparte.
51. R3W2 is the most relevant witness on this aspect. He produced relevant record in respect of DL No. 87090 and deposed that said DL, as per their record, was issued on 05.09.08 in the name of Sh. Sunil Mehra, S/o Sh.Yashpal Mehra. He exhibited attested copy of relevant page of DL Register as Ex. R3W2/1. He further deposed that on 03.11.03, DL No. 15037 was issued in the name of Sh. Mukhtiyar Singh, S/o Sh. Balbir Singh and DL No. 87090 was never issued on 29.10.03 in the name of Sh. Sanjay Kumar S/o Sh. Pooran Chand. He exhibited copy of relevant page of DL Register containing entry in respect of DL No. 15037 as Ex. R3W2/2. He also deposed that DL verification report Ex. R3W1/4 was issued by their office. He further deposed that copy of DL No. 87090 Ex. R3W2/3 was never issued from their office. Nothing material could be elicited during his crossexamination on behalf of claimants. Respondents no. 1 & 2 did not crossexamine the said witness, both being already exparte.
52. Although, the respondent no. 2 Smt. Harpreet Kaur examined herself as R2W1 during the course of inquiry and has testified that she had satisfied herself as to the driving skill of Sanjay (R1) and driving licence shown to her by R1, appeared to be genuine one but her testimony can not be considered under the law for the simple reason that she never filed any WS in both these cases and preferred to stay away from the proceedings. It Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 28 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 is well settled law that there can not be any evidence beyond pleadings of the parties. For want of any pleading in the form of WS being filed on record by respondent no. 2/insured, she was not allowed to lead any evidence under the law. Even despite the fact that her evidence was recorded by my Ld. Predecessor, same, in my opinion, can not be considered at all. Hence, the testimony of R2W1 is being discarded in toto.
53. It is quite evident from above discussion that the respondents no. 1 & 2 could not impeach the testimonies of R3W1 and R3W2 or the record produced by both the said witnesses during the course of inquiry. It stands established from the testimony of R3W2 that DL produced by respondent no. 1 was fake as it was never issued to him as per record of DTO, Amritsar, wherefrom it was purportedly issued. They also failed to produce any other valid DL in favour of R1 on record. Had there been any valid DL in favour of respondent no. 1 to drive the type of vehicle like the present one, copy thereof would have been provided by him to the police or would have been placed on record.
54. In view of the aforesaid discussion, I find substance in the plea raised on behalf of insurance company that for want of valid and effective DL in favour of respondent no. 1 being proved on record, it would be termed as breach in the terms and conditions of insurance policy on the part of insured i.e. respondent no. 2. Thus, insurance company is entitled to recovery rights against the respondent no. 2. (Reliance placed on decision Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 29 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 dated 26.09.2017 in FAO no.7555/2015 in the matter titled as "MS Middle High School and another Vs. Usha and others" by Hon'ble High Court of Punjab and Haryana and as upheld by Hon'ble Apex Court in SLP no.31406/2017 titled as "MS Middle High School Vs. HDFC ERGO General Insurance Company Ltd. & others" decided on 22.11.2017). Issue no. 2 is decided accordingly in both these cases.
ISSUE NO. 3 RELIEF
55. In view of my findings on issues no. 1 & 2, I award a sum of Rs. 9,02,000/ including interim award amount if any) in MAC Petition No. 5100/16 and a sum of Rs. 1,68,000/ (including interim award amount if any) in MAC Petition No. 5099/16, alongwith interest @ 9% per annum w.e.f. date of filing of petitions i.e. 31.07.14 in favour of petitioner(s) and against the respondents no. 1 & 2 jointly and severally. (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016). Issue no. 3 is decided accordingly.
APPORTIONMENT
56. Statements of petitioners/injured in terms of Clause 27 MCTAP were recorded on 13.07.18. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that out of Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 30 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 total compensation amount in MAC Petition No. 5100/16, a sum of Rs. 1,00,000/ (Rupees One Lakh Only) (since a sum of Rs. 7,029/ has already been incurred by the injured on his treatment) shall be immediately released to him through his saving bank account no. 36323428252 (of Lalan Rai) with State Bank of India, District Court Rohini Branch, having IFSC Code. SBIN0010323 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 15,000/ each for a period of one month, two months, three months and so on and so forth having cumulative interest.
57. Out of total compensation amount in MAC Petition No. 5099/16, a sum of Rs. 25,000/ (Rupees Twenty Five Thousand Only) (since a sum of Rs. 17,996/ has already been incurred by the injured on his treatment) shall be immediately released to him through his saving bank account no. 36323559885 (of Monu) with State Bank of India, District Court Rohini Branch, having IFSC Code. SBIN0010323 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 5,000/ each for a period of one month, two months, three months and so on and so forth having cumulative interest.
58. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimant/petitioner. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimant/petitioner.
Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 31 of 33MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018
(ii) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
(iii) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(iv) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victim.
(v) Half yearly statement of account be filed by the Bank before the Tribunal.
59. During the course of hearing final arguments, claimants were examined in order to ascertain as to whether they were entitled to exemption from deduction of TDS or not. Both the claimants made statement on oath that they were entitled to exemption from deduction of TDS and also furnished their respective Form No. 15G on record.
60. Respondent no. 3, being insurer of offending vehicle is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amount as mentioned above in the aforesaid saving bank accounts of petitioners mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 32 of 33 MACP Nos. 5100/16 & 5099/16, FIR No. 41/12 DOD: 15.10.2018 cheques.Copy of this award be given dasti to claimants. Copy of this award be given dasti alongwith Forms no. 15G furnished by claimants (after retaining their copies on record) to counsel for insurance company. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form V in terms of MCTAP is annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP. Signed copy of this Award be placed on the judicial record of MAC Petition No. 5099/16, as per the rules.
Digitally signed by VIDYA VIDYA PRAKASH
PRAKASH Date:
2018.10.15
Announced in the open 15:57:44 +0530
Court on 15.10.2018 (VIDYA PRAKASH)
Judge MACT2 (North)
Rohini Courts, Delhi
Lalan Rai & Monu Vs. Sanjay Kumar & Ors. Page 33 of 33