Delhi District Court
7/2 vs Himachal Road on 29 September, 2016
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
CASE-A
Old Suit No.607/10
New Suit No.357150/16
1. Pallavi Arora W/o Late Sh.Gulshan Arora, (Wife)
2. Sumedha Arora D/o Late Sh.Gulshan Arora, (Daughter)
Petitioner No.1&2 earlier R/o:
7/21, Subhash Nagar, New Delhi
Also at:
C/o Sh.S.K.Gulati (Father of petitioner no.1)
N-97, Ground Floor, Kirti Nagar, Delhi.
Presently at:
78/9, R.A. Kidwai Road, Krishna Vihar, Lijjat Papad Building,
2nd Floor, Wadala West, Mumbai-400031
3. Sh.Satpal Arora S/o Sh. Lachhman Dass (since deceased-
amended memo of parties placed on record)
4. Smt. Harsh Arora W/o Sh. Satpal Arora
Petitioner No.3 & 4 R/o:
7/21, Subhash Nagar, New Delhi
(Petitioner No.2 being minor represented through petitioner no.1,
mother/natural guardian)
........PETITIONERS
Versus
1. Sh.Harpal Singh S/o Sh.Sukhdev Singh,
R/o H.No.454, Sadhour, Tehsil Malerkotla,
District Sangrur, Punjab (Driver of Truck)
2. Sh.Sukhwinder Singh S/o Sh.Bhan Singh,
R/o Street No.9, Block-B,
Bhai Himamt Singh Nagar, Uchhi Colony Dugri,
Ludhiana, Punjab. (Owner of Truck)
3. ICICI Lombard General Insurance Company Ltd.
Through Officer Incharge at:
Space No.315, 2nd Floor, Aggarwal City Mall,
Plot No.4, Road No.44, Pitam Pura, Delhi
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.1 of 83
(Insurer of Truck)
4. Sultan Singh S/o Sh. Surjit Singh,
R/o Mohalla Santokhpura,
Near Gupta Mobile, G.T.Road,
Phagwara, Distt. Kapurthala, Punjab (Owner of mini bus)
5. National Insurance Company Ltd.
At:3, Middleton Street, P.B. No.9229,
Kolkatta-700 071
Also at:
Jeewan Bharti Building, Tower II,
5th Floor, 124, Connaught Place, (Insurer of mini bus)
...........RESPONDENTS
Date of filing of Claim Petition :02.12.2010
********************
CASE-B
Old Suit No.608/10
New Suit No.357155/16
Sumedha Arora D/o Late Sh.Gulshan Arora,
Erlier R/o:
7/21, Subhash Nagar, New Delhi
Also at:
C/o Sh.S.K.Gulati (Father of petitioner no.1)
N-97, Ground Floor, Kirti Nagar, Delhi.
Presently at:
78/9, R.A. Kidwai Road, Krishna Vihar, Lijjat Papad Building,
2nd Floor, Wadala West, Mumbai-400031
(Petitioner being minor represented through her mother/natural
guardian Smt. Pallavi Arora)
........PETITIONER
Versus
1. Sh.Harpal Singh S/o Sh.Sukhdev Singh,
R/o H.No.454, Sadhour, Tehsil Malerkotla,
District Sangrur, Punjab (Driver of Truck)
2. Sh.Sukhwinder Singh S/o Sh.Bhan Singh,
R/o Street No.9, Block-B,
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.2 of 83
Bhai Himamt Singh Nagar, Uchhi Colony Dugri,
Ludhiana, Punjab (Owner of Truck)
3. ICICI Lombard General Insurance Company Ltd.
Through Officer Incharge at:
Space No.315, 2nd Floor, Aggarwal City Mall,
Plot No.4, Road No.44, Pitam Pura, Delhi
(Insurer of Truck)
4. Sultan Singh S/o Sh. Surjit Singh,
R/o Mohalla Santokhpura,
Near Gupta Mobile, G.T.Road,
Phagwara, Distt. Kapurthala, Punjab (Owner of mini bus)
5. National Insurance Company Ltd.
At:3, Middleton Street, P.B. No.9229,
Kolkatta-700 071
Also at:
Jeewan Bharti Building, Tower II,
5th Floor, 124, Connaught Place, (Insurer of mini bus)
...........RESPONDENTS
Date of filing of Claim Petition : 02.12.2010
********************
CASE-C
Old Suit No.609/10
New Suit No.357153/16
Pallavi Arora W/o Late Sh.Gulshan Arora,
Erlier R/o:
7/21, Subhash Nagar, New Delhi
Also at:
C/o Sh.S.K.Gulati (Father of petitioner no.1)
N-97, Ground Floor, Kirti Nagar, Delhi.
Presently at:
78/9, R.A. Kidwai Road, Krishna Vihar, Lijjat Papad Building,
2nd Floor, Wadala West, Mumbai-400031
........PETITIONER
Versus
1. Sh.Harpal Singh S/o Sh.Sukhdev Singh,
R/o H.No.454, Sadhour, Tehsil Malerkotla,
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.3 of 83
District Sangrur, Punjab (Driver of Truck)
2. Sh.Sukhwinder Singh S/o Sh.Bhan Singh,
R/o Street No.9, Block-B,
Bhai Himamt Singh Nagar, Uchhi Colony Dugri,
Ludhiana, Punjab (Owner of Truck)
3. ICICI Lombard General Insurance Company Ltd.
Through Officer Incharge at:
Space No.315, 2nd Floor, Aggarwal City Mall,
Plot No.4, Road No.44, Pitam Pura, Delhi
(Insurer of Truck)
4. Sultan Singh S/o Sh. Surjit Singh,
R/o Mohalla Santokhpura,
Near Gupta Mobile, G.T.Road,
Phagwara, Distt. Kapurthala, Punjab (Owner of mini bus)
5. National Insurance Company Ltd.
At:3, Middleton Street, P.B. No.9229,
Kolkatta-700 071
Also at:
Jeewan Bharti Building, Tower II,
5th Floor, 124, Connaught Place, (Insurer of mini bus)
...........RESPONDENTS
Date of filing of Claim Petition : 02.12.2010
********************
CASE-D
Old Suit No.610/10
New Suit No.357154/16
Pallavi Arora W/o Late Sh.Gulshan Arora,
Also at:
C/o Sh.S.K.Gulati (Father of petitioner no.1)
N-97, Ground Floor, Kirti Nagar, Delhi.
Presently at:
78/9, R.A. Kidwai Road, Krishna Vihar, Lijjat Papad Building,
2nd Floor, Wadala West, Mumbai-400031
........PETITIONER
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.4 of 83
Versus
1. Sh.Harpal Singh S/o Sh.Sukhdev Singh,
R/o H.No.454, Sadhour, Tehsil Malerkotla,
District Sangrur, Punjab (Driver of Truck)
2. Sh.Sukhwinder Singh S/o Sh.Bhan Singh,
R/o Street No.9, Block-B,
Bhai Himamt Singh Nagar, Uchhi Colony Dugri,
Ludhiana, Punjab (Owner of Truck)
3. ICICI Lombard General Insurance Company Ltd.
Through Officer Incharge at:
Space No.315, 2nd Floor, Aggarwal City Mall,
Plot No.4, Road No.44, Pitam Pura, Delhi
(Insurer of Truck)
4. Sultan Singh S/o Sh. Surjit Singh,
R/o Mohalla Santokhpura,
Near Gupta Mobile, G.T.Road,
Phagwara, Distt. Kapurthala, Punjab (Owner of mini bus)
5. National Insurance Company Ltd.
At:3, Middleton Street, P.B. No.9229,
Kolkatta-700 071
Also at:
Jeewan Bharti Building, Tower II,
5th Floor, 124, Connaught Place, (Insurer of mini bus)
...........RESPONDENTS
Date of filing of Claim Petition : 02.12.2010
*************************
CASE-E
Old Suit No.636/10
New Suit No.357273/16
Preeti Manchanda W/o Sh.Kamal Kumar Manchanda,
R/o BH-19, East Shalimar Bagh, Delhi
........PETITIONER
Versus
1. Sh.Harpal Singh S/o Sh.Sukhdev Singh,
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.5 of 83
R/o H.No.454, Sadhour, Tehsil Malerkotla,
District Sangrur, Punjab (Driver of Truck)
2. Sh.Sukhwinder Singh S/o Sh.Bhan Singh,
R/o Street No.9, Block-B,
Bhai Himamt Singh Nagar, Uchhi Colony Dugri,
Ludhiana, Punjab (Owner of Truck)
3. ICICI Lombard General Insurance Company Ltd.
Through Officer Incharge at:
Space No.315, 2nd Floor, Aggarwal City Mall,
Plot No.4, Road No.44, Pitam Pura, Delhi
(Insurer of Truck)
4. Sultan Singh S/o Sh. Surjit Singh,
R/o Mohalla Santokhpura,
Near Gupta Mobile, G.T.Road,
Phagwara, Distt. Kapurthala, Punjab (Owner of mini bus)
5. National Insurance Company Ltd.
At:3, Middleton Street, P.B. No.9229,
Kolkatta-700 071
Also at:
Jeewan Bharti Building, Tower II,
5th Floor, 124, Connaught Place, (Insurer of mini bus)
...........RESPONDENTS
Date of filing of Claim Petition : 21.12.2010
********************
CASE-F
Old Suit No.637/10
New Suit No.357272/16
Prayanka Manchanda D/o Sh.Kamal Kumar Manchanda,
R/o BH-19, East Shalimar Bagh, Delhi
........PETITIONER
Versus
1. Sh.Harpal Singh S/o Sh.Sukhdev Singh,
R/o H.No.454, Sadhour, Tehsil Malerkotla,
District Sangrur, Punjab (Driver of Truck)
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.6 of 83
2. Sh.Sukhwinder Singh S/o Sh.Bhan Singh,
R/o Street No.9, Block-B,
Bhai Himamt Singh Nagar, Uchhi Colony Dugri,
Ludhiana, Punjab (Owner of Truck)
3. ICICI Lombard General Insurance Company Ltd.
Through Officer Incharge at:
Space No.315, 2nd Floor, Aggarwal City Mall,
Plot No.4, Road No.44, Pitam Pura, Delhi
(Insurer of Truck)
4. Sultan Singh S/o Sh. Surjit Singh,
R/o Mohalla Santokhpura,
Near Gupta Mobile, G.T.Road,
Phagwara, Distt. Kapurthala, Punjab (Owner of mini bus)
5. National Insurance Company Ltd.
At:3, Middleton Street, P.B. No.9229,
Kolkatta-700 071
Also at:
Jeewan Bharti Building, Tower II,
5th Floor, 124, Connaught Place, (Insurer of mini bus)
...........RESPONDENTS
Date of filing of Claim Petition : 21.12.2010
********************
CASE-G
Old Suit No.638/10
New Suit No.357271/16
Kamal Kumar Manchanda S/o Ravi Kumar Manchanda,
R/o BH-19, East Shalimar Bagh, Delhi
........PETITIONER
Versus
1. Sh.Harpal Singh S/o Sh.Sukhdev Singh,
R/o H.No.454, Sadhour, Tehsil Malerkotla,
District Sangrur, Punjab (Driver of Truck)
2. Sh.Sukhwinder Singh S/o Sh.Bhan Singh,
R/o Street No.9, Block-B,
Bhai Himamt Singh Nagar, Uchhi Colony Dugri,
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.7 of 83
Ludhiana, Punjab (Owner of Truck)
3. ICICI Lombard General Insurance Company Ltd.
Through Officer Incharge at:
Space No.315, 2nd Floor, Aggarwal City Mall,
Plot No.4, Road No.44, Pitam Pura, Delhi
(Insurer of Truck)
4. Sultan Singh S/o Sh. Surjit Singh,
R/o Mohalla Santokhpura,
Near Gupta Mobile, G.T.Road,
Phagwara, Distt. Kapurthala, Punjab (Owner of mini bus)
5. National Insurance Company Ltd.
At:3, Middleton Street, P.B. No.9229,
Kolkatta-700 071
Also at:
Jeewan Bharti Building, Tower II,
5th Floor, 124, Connaught Place, (Insurer of mini bus)
...........RESPONDENTS
Date of filing of Claim Petition : 21.12.2010
********************
CASE-H
Suit No.639/10
New Suit No.357274/16
1.Kamal Kumar Manchanda S/o Ravi Kumar Manchanda,
2.Preeti Manchanda W/o Sh.Kamal Kumar Manchanda,
R/o BH-19, East Shalimar Bagh, Delhi
........PETITIONER
Versus
1. Sh.Harpal Singh S/o Sh.Sukhdev Singh,
R/o H.No.454, Sadhour, Tehsil Malerkotla,
District Sangrur, Punjab (Driver of Truck)
2. Sh.Sukhwinder Singh S/o Sh.Bhan Singh,
R/o Street No.9, Block-B,
Bhai Himamt Singh Nagar, Uchhi Colony Dugri,
Ludhiana, Punjab (Owner of Truck)
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.8 of 83
3. ICICI Lombard General Insurance Company Ltd.
Through Officer Incharge at:
Space No.315, 2nd Floor, Aggarwal City Mall,
Plot No.4, Road No.44, Pitam Pura, Delhi
(Insurer of Truck)
4. Sultan Singh S/o Sh. Surjit Singh,
R/o Mohalla Santokhpura,
Near Gupta Mobile, G.T.Road,
Phagwara, Distt. Kapurthala, Punjab (Owner of mini bus)
5. National Insurance Company Ltd.
At:3, Middleton Street, P.B. No.9229,
Kolkatta-700 071
Also at:
Jeewan Bharti Building, Tower II,
5th Floor, 124, Connaught Place, (Insurer of mini bus)
...........RESPONDENTS
Date of filing of Claim Petition : 21.12.2010
********************
JUDGMENT
1. Vide this award, I shall dispose of eight separate claim petitions bearing Suit No.607/10, 609/10, 610/10, 608/10, 638/10, 637/10, 636/10 and 639/10 arising out of a motor vehicular accident on 02.06.2010 within jurisdiction of PS:
Ambala Sadar, Haryana.
i. Suit No.607/10 is in respect of compensation claim of Shri Gulshan Arora since deceased (husband of Pallavi Arora).
ii. Suit No.608/10 is in respect of compensation claim of injuries suffered by Ms. Sumedha Arora (daughter of Pallavi Arora).
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.9 of 83 iii. Suit No.609/10 is in respect of compensation claim of injuries suffered by Ms. Pallavi Arora.
iv. Suit No.610/10 is in respect of compensation claim of Parth Arora aged about 10 years since deceased (son of Pallavi Arora).
v. Suit No.636/10 is in respect of compensation claim of injuries suffered by Preeti Manchanda wife of Kamal Kumar Manchanda.
vi. Suit No.637/10 is in respect of compensation claim of injuries suffered by Priyanka Manchanda daughter of Kamal Kumar Manchanda.
vii. Suit No.638/10 is in respect of compensation claim of injuries suffered by Kamal Kumar Manchanda. viii. Suit No.639/10 is in respect of compensation claim of Karan Manchanda aged about 14 years since deceased (son of Kamal Kumar Manchanda).
The aforesaid claim petitions arise out of accident of mini bus no. PB-01-9103 in which the petitioners were travel- ling from Delhi to Dharamshala, Himachal Pradesh on 02.06.2010. As per the case of petitioners, mini bus no. PB-01- 9103 was hired from Delhi to Dharamshala (Himachal Pradesh) which was driven by Sonu. The accident was caused as the mini bus No.PB-01-9103 was driven by the driver in a rash and neg- ligent manner and when it reached near Village Devi Nagar, G.T. Road, Ambala the driver lost control over the wheels of the bus and was further hit by a truck bearing registration No. PB-
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.10 of 83 10CK-5038 driven by Respondent No.1 Harpal Singh in a rash and negligent manner coming from the opposite direction.
Further, as per statement of Smt. Preeti W/o Kamal Manchanda recorded during the course of investigation of crimi- nal proceedings arising out of the accident, 'Kusum, Honey, Parth, Sonu, Gulshan and Karan' expired during course of treat- ment in the accident while six ladies and a male member suf- fered injuries. Vijay Kumar @ Sonu S/o Jairam/driver of mini bus expired in the accident and FIR No.96 dated 02.06.2010 u/s 279/337/338/304A IPC PS: Sadar Ambala was registered re- garding the accident.
2. In the written statement filed on behalf of Respondent No.2 Sukhwinder Singh/owner of truck bearing registration No. PB-10CK-5038, negligence on the part of the driver of the truck was denied. It was further submitted that vehicle was duly insured with Respondent No.3 ICICI Lombard General Insurance Company Ltd. The accident was further alleged to have been caused due to negligence of the driver of mini bus and the compensation claimed was stated to be exaggerated.
In the written statement filed on behalf of Respondent No.3 ICICI Lombard General Insurance Company Ltd./insurer of truck bearing registration No.PB- 10CK-5038, It was submitted that Respondent No.3 was not liable to pay compensation since vehicle No. PB-10CK-5038 Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.11 of 83 was driven by a person without permission or authority of the insured and the vehicle was used contrary to the terms & conditions of the insurance policy, permit and the driver was not holding a proper & valid driving licence. The petition was stated to be bad for non-joinder of driver, owner and insurer of mini bus No.PB-01-9103. It was further denied that the accident was caused due to negligence of drivers of both the vehicles as alleged by the petitioners. However, it was admitted that vehicle No. PB-10CK-5038 was insured in the name of Sukhwnder Singh vide policy No. 3003/55598340/01/000 valid for the period 03.12.2009 to 02.12.2010. The amount of compensation claimed was further stated to be excessive and exaggerated.
In the written statement filed on behalf of Respondent No.4 Sultan Singh/owner of mini bus No. PB-01- 9103, negligence on the part of driver of mini bus was denied. It was submitted that the accident had been caused due to rash and negligent driving by Respondent No.1 Harpal Singh (driver of Canter No. PB-10CK-5038). It was further claimed that Vijay Kumar (deceased driver of tempo traveller/mini bus) was holding a valid and effective driving licence at the time of accident and the vehicle was comprehensively insured with Respondent No.5 National Insurance Company Ltd. vide policy no. 401801/31/10/6300000287 for the period 17.04.2010 to 16.04.2011. Further, the compensation claimed by the petitioners was stated to be excessive and exorbitant.
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.12 of 83 In the written statement filed on behalf of Respondent No.5 National Insurance Company Ltd./insurer of mini bus No.PB-01-9103, it was admitted that insurance policy no. 401801/31/10/6300000287 for the period 17.04.2010 to 16.04.2011 was issued in respect of vehicle No.PB-01-9103 (mini bus) in the name of Sultan Singh. The accident was further stated to have been caused due to negligence of Respondent No.1/driver of offending truck in view of final report filed in the court of AJCM, Ambala and as Respondent No.1 had been chargesheeted for the offence. Contributory negligence on the part of driver of tempo traveler no. PB-01- 9103 was further denied and compensation claimed by the petitioner was stated to be excessive and exorbitant.
3. Vide order dated 22.12.2011 the claim petitions were consolidated by ld. Predecessor as noticed below:
"22.12.2011 ....................................... .................................
It has been revealed that all the nine claim petitions bearing nos. 607/10, 608/10, 609/10, 610/10, 618/10, 636/10, 637/10, 638/10 and 639/10 arise out of the same vehicular accident and involve the common issue of rashness and negligence. It will be convenient to try all the cases together. Hence, all the nine cases are hereby consolidated. Suit bearing no.607/10 shall be the lead case and evidence shall be led in suit bearing no.607/10 which shall also be read in other eight claim petitions bearing no.608/10, 609/10, 610/10, 618/10, 636/10, 637/10, 638/10 and 639/10."
............................."
However, counsel for parties clarified that Suit No.618/10 as referred in aforesaid order does not relate to the present accident and accordingly only eight petitions are pend- ing for disposal.
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.13 of 83 It may further be observed that vide order dated 12.07.2013 the cases were again deconsolidated by ld. Predeces- sor and the issues stand separately framed vide order dated 22.02.2013 after filing of written statement on behalf of Re- spondent No.5 National Insurance Company Ltd.
The first issue in all the claim petitions is common on the point of rash and negligent driving of vehicle bearing registration No. PB 10C K5038 by Respondent No.1. The same is hereinafter dealt with in the lead case bearing Suit No.607/10 titled as Pallavi Arora & Ors. vs. Harpal Singh & Ors., dealing with common evidence on aforesaid issue.
Issue No.2 relating to assessment/computation of compensation in the respective cases has been thereafter sepa- rately dealt with under the respective suits along with the rele- vant evidence.
Thereafter, the common issue on the point of liability of the payment of compensation has been dealt with.
***************************
4. CASE -A Old Suit No.607/10 New Suit No.357150/16
1. Pallavi Arora W/o Late Sh.Gulshan Arora, (Wife)
2. Sumedha Arora D/o Late Sh.Gulshan Arora, (Daughter)
3. Sh.Satpal Arora S/o Sh. Lachhman Dass (Father-since deceased)
4. Smt. Harsh Arora W/o Sh. Satpal Arora (Mother) Versus Harpal Singh & Ors.
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.14 of 83 It may be noticed that claim petitions bearing Nos.607/10, 608/10, 609/10 & 610/10 pertain to the same family wherein late Shri Gulshan Arora and Master Parth Arora (i.e. husband and son of Pallavi Arora) had expired and further injuries were suffered by Pallavi Arora herself along with her daughter Sumedha Arora. Evidence of Pallavi Arora has been led in respective Suit No.607/10, 608/10, 609/10 & 610/10.
In Suit No.607/10, the case of the petitioners is that the deceased Shri Gulshan Arora aged about 35 years was running his own business and earning about Rs.50,000/- per month. The deceased is stated to be survived by Smt. Pallavi Arora (wife), Sumedha Arora (minor daughter), Shri Saptal Arora (father of deceased) and Smt. Harsh Arora (mother of deceased).
It may be further noticed that Shri Satpal Arora is stated to have expired during the course of proceedings.
5. On the pleadings of the parties, following issues were framed for consideration vide order dated 22.02.2013 by ld. Predecessor:
1. Whether the deceased Shri Gulsan Arora had died due to injuries sustained by him in an accident which took place on 02.06.2010 at about 06.30 AM within the jurisdiction of PS Ambala Sadar, Haryana due to rash and negligent driving of vehicle bearing Regn.
No. PB 10C K5038 by respondent No.1?
2. Whether the petitioners are entitled to any com- pensation, if so, to what amount and from whom?
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.15 of 83
3. Relief.
6. In support of the claim petition, petitioner no. 1 Smt. Pallavi Arora was examined as PW1.
PW1 Smt. Pallavi Arora (wife of deceased) testified on the lines of claim petition and proved certified copy of crimi- nal record Ex.PW1/1 (colly 32 sheets); copy of her voter's iden- tity card (Ex.PW1/2); copy of Aadhar Card of petitioner no. 2 Ms. Sumedha daughter of deceased (Ex.PW1/3) and photo- copies of acknowledgment sheets of Income Tax Return of de- ceased for the years 2007-08, 2008-09, 2009-10 & 2010-11 re- spectively (Mark A1 to A4). She further testified that her hus- band late Shri Gulshan Arora (aged about 35 years Date of Birth-08.07.1974) was engaged in business and running a gas and stove spare parts shop in the name and style of M/s Sangam Light House and earning Rs.50,000/- per month. She also testi- fied that deceased was assessed to income tax.
On cross-examination by counsel for insurance company she clarified that she is 12th pass and a housewife. Further, her father-in-law was running a factory of manufactur- ing of spare parts for gas stoves and after the death of her hus- band, her brother-in-law Pankaj Arora is looking after the busi- ness of M/s Sangam Light House. She further stated that she was not aware whether her father-in-law, mother-in-law and husband were partners in aforesaid business. She further de- posed that she did not have the complete computation of Income Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.16 of 83 Tax Returns which might have been filed by her husband and denied the suggestion that her husband was not earning Rs.50,000/- per month. She further denied the suggestion that she was not financially dependent upon her husband or that she was earning.
She further clarified that due to rash and negligent driving of the bus, passengers had requested the driver to drive carefully but he kept on driving rashly and negligently. She de- nied the suggestion that the accident had taken place only due to negligence of driver of the bus.
On cross-examination by counsel for Re-
spondent No.4 Sultan Singh/owner of mini bus, she denied the suggestion that the accident had taken place solely due to rash and negligent driving of the truck. She stated that both the driver of mini bus as well as truck were responsible for the acci- dent.
On cross-examination by counsel for Respondent No.5 National Insurance Company Ltd., she stated that it was a head-on collision and denied the suggestion that the accident was caused entirely due to the negligence of driver of the of- fending truck.
7. Respondent No.4 Sultan Singh was examined as R4W1 and his testimony is common in all the eight claim petitions.
R4W1 Sulatan Singh testified on the lines of writ- ten statement and proved attested copy of RC of vehicle bearing Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.17 of 83 registration no. PB-01-9103 (Ex.R4W1/1), attested copy of death report of driver Vijay (Ex.R4W1/2), verification report of DL of driver Vijay bearing No.PB09-4603/NDL/07-08 dated 20.11.2007 issued by District Transport Officer, Kapurthala, Punjab (Ex.R4W1/3), photocopy of DL of driver Vijay (Mark A), report of the State Transport Authority, Chandigarh, Punjab (Ex.R4W1/4), copy of contract carriage permit (Mark C) and copy of permit authorization (Mark D). He further stated that the vehicle had a valid fitness certificate valid upto 07.04.2011 and proved copy thereof as Mark E. He also stated that he had received Rs.4,18,500/- from respondent no.5 towards 'own damage claim' of his insured vehicle and proved the docket of claim from National Insurance Company Ltd. policy no. 6300000287 (Ex.R4W1/5).
On cross-examination by counsel for petitioners, he clarified that he was not travelling in the mini bus at the time of accident and, as such, could not depose as to the negligence in driving on the part of truck driver. He denied the suggestion that he had deposed falsely in respect of absence of negligence on the part of the driver of mini bus for saving himself from paying the compensation to the petitioners.
On cross-examination by counsel for Respondent No.5 National Insurance Company Ltd., he stated that driver of mini bus Vijay was driving the mini bus for three years prior to the accident and had expired at the spot due to injuries sus- tained in the accident.
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.18 of 83
8. I have heard arguments addressed by counsel for parties, perused the record and my issue-wise findings are as under :-
Issue No. (i) Whether the deceased Shri Gulsan Arora had died due to injuries sustained by him in an accident which took place on 02.06.2010 at about 06.30 AM within the jurisdiction of PS Ambala Sadar, Haryana due to rash and negligent driving of vehi- cle bearing Regn. No. PB 10C K5038 by respondent No.1?
It may be reiterated that the first issue in all the claim petitions is common on the point of rash and negligent driving of vehicle bearing registration No. PB 10C K5038 by Respondent No.1. The same is hereinafter dealt with in the present case dealing with common evidence on aforesaid issue.
In Bimla Devi and Ors. V. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, it was held that in a petition u/s 166 of the Motor Vehicles Act, 1988 the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition. In New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), it was observed that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.19 of 83 inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence. The relevant portion of the report is extracted hereunder:
".......that tribunals exercising quasi-judicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources, and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts."
Reference may also be made to observations in Ranu Bala Paul & Others vs. Bani Chakraborty 1999 ACJ 634 Gauhati wherein the claim was allowed after consideration of FIR before the Tribunal.
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accident 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 Motor Accident Claim Tribunal the standard of proof is much below than what is Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.20 of 83 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 enquiry and this is a legislation for the welfare of the society. In N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), the Supreme Court pointed out that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter."
In the instant case, counsel for insurance company of the offending truck has vehemently disputed the point of neg- ligence. It was contended by Shri R.K. Gupta, Advocate (in- surer for the offending truck) that as per the case of the petition- ers in the petition itself as well as evidence on record, the bus was being driven by Vijay Kumar (since deceased in the acci- dent) in a rash and negligent manner and lost control over the bus at the time of accident and, further, the same was hit by truck No. PB-10CK-5038 coming from opposite direction in a rash and negligent manner. As such, it is submitted that the ac- cident had been contributed by the negligence of drivers of both the vehicles and it would have not been necessary to apportion the negligence had both the vehicles not been impleaded in the present proceedings but once the driver/owner/insurer of both the vehicles have been impleaded, it may be prudent to appor- tion the liability though from the perspective of petitioners for Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.21 of 83 the purpose of composite negligence, the compensation may be recovered from either of the vehicles.
However, counsel for owner as well as insurer of mini bus have vehemently contended that driver of the offend- ing truck was rash and negligent in driving the vehicle and stands chargesheeted for the offence punishable u/s 279/304A IPC and the same cannot be attributed to the driver of mini bus.
9. To appreciate the contentions raised by counsel for the parties, observations of the Hon'ble Apex Court in Munici- pal Corporation of Greater Bombay v. Laxman Iyer, 2004 ACJ 53 (SC) are apt to be noted:
"(6) ........Where an accident is due to the negligence of both parties, substantially there would be contributory neg-
ligence and both would be blamed. In a case of con- tributory negligence, the crucial question on which the liability depends would be whether either party could, by exercise of reasonable care, have avoided the conse- quence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the acci- dent or other circumstances by which the injury was caused would not afford a defence to the other. Con- tributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materi- ally contributed to the damage, the act or omission be- ing of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. [See Charesworth on Negligence, 3 rd Edn., para 328]. It is now well settled that in case of contributory negligence, courts have power to appor- tion the loss between the parties as seems just and eq- uitable. Apportionment in that context means that dam-
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.22 of 83 ages are reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the part of victim, the question of apportionment does not arise."
It may also be observed that in case of 'composite negligence', each wrongdoer is jointly and severally liable to the petitioner for payment of entire damages and the petitioner has the choice of proceeding against all or any of the tortfeasors. The petitioners need not establish the extent of responsibility of each wrongdoer separately, nor is necessary for the court to de- termine the extent of liability of each wrongdoer separately. Ob- servations of the Hon'ble Supreme Court in T.O. Anthony v. Karvarnan, 2008 ACJ 1165 (SC) are apt to be noted.
"(6) 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is in-
jured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of composite negligence of those wrongdo- ers. In such a case, each wrongdoer is jointly and sev- erally liable to the injured for payment of the entire damages and the injured person has the choice of pro- ceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately. On the other hand, where a person suffers injury, partly due to negligence on the part of another person or persons, and partly as a re- sult of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for dam- ages is not defeated merely by reason of negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his con- tributory negligence."
In the instant case, as per statement of Smt. Preeti Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.23 of 83 W/o Shri Kamal Manchanda recorded during investigation, it was alleged that on 02.06.2010 when the mini bus no. PB-01- 9103 was proceeding from Ambala to Rajpura, the vehicle got unbalanced and in the meanwhile was hit by canter no. PB- 10CK-5038 driven by the driver in a rash and negligent manner in a head on collision. Consequently, Kusum, Honey, Parth, Sonu, Gulshan and Karan expired in the accident while injuries were sustained by 06 females and a male member.
It may be observed that the accident was categorically alleged to have been caused due to rash and negligent driving of canter no. PB-10CK-5038 but in the petition and in the affidavit filed in examination-in-chief, the negligence has been also stated to be on the part of driver of mini bus no. PB-01-9103 and the case has been made of composite negligence.
It may further be noticed that on cross-examination by counsel for insurer of truck, PW1 Pallavi Arora (in Suit No.607/10) clarified that she was seated in back portion of the mini bus and as a result of rash and negligent driving the passengers had requested the driver of the bus to drive carefully but he resented by saying that he knew his job and kept driving rashly and negligently. She further stated that she noticed the truck colliding with the bus only on accident. Further, on cross- examination by counsel for owner of mini bus, she denied the suggestion that accident had taken place due to rash and negligent driving of the truck and stated that driver of mini bus as well as truck were both responsible for the accident.
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.24 of 83 In the aforesaid context, statement of PW1 Kamal Kumar Manchanda (in Suit No.639/10) is also on similar lines. He also clarified on cross-examination by counsel for owner of truck no. PB-10CK-5038 that he was seated on the second seat of the bus at the time of accident and as a result of rash and negligent driving of the bus, passengers had requested the driver to drive carefully but he continued driving in the same manner. Further, he had noticed the truck colliding with the truck only on accident.
Statement of PW2 Smt. Preeti W/o Kamal Manchanda (in Suit No.636/10) is also on similar lines wherein negligence has been attributed to both the drivers of the offending truck as well as driver of mini bus.
It may be noticed that so far as the driver of the mini bus is concerned, he had expired in the accident. The rough site plan prepared during the course of criminal proceedings reflects that it was a head-on collision. Testimony of PW Pallavi Arora (in Suit No.607/10), Kamal Kumar Manchanda (in Suit No.639/10) and Preeti Manchanda (in Suit No.636/10) on the manner of accident has remained uncontroverted on record. In the facts and circumstances, though the driver of truck no. PB- 10CK-5038 stands chargesheeted for the offence punishable u/s 279/304A IPC, contributory negligence on the part of driver of mini bus no. PB-01-9103 also stands proved on record.
Since negligence is to be assessed on the touchstone of preponderance of probability and a holistic view is to be taken, it is held that the accident was caused due to negligence Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.25 of 83 of driver of truck No.PB-10CK-5038 driven by Respondent No.1 Harpal Singh. However, since driver of the mini bus No.PB-01-9103 (since deceased in the accident) is also liable to for contributory negligence in head-on collision, the liability is apportioned to the extent of 50% each on the part of both the vehicles. As such, the liability to pay compensation is accordingly apportioned to 50% each on the part of the driver/owner/insurer of truck No.PB-10CK-5038 AND insured/insurer of mini bus No.PB-01-9103.
Issue No. 1 is accordingly decided.
10. Issue No. (ii) Whether the petitioners are entitled to any com- pensation, if so, to what amount and from whom?
(a) Income of Deceased Counsel for the petitioners contended that deceased Gulshan Arora aged about 35 years was running a gas and stove spare parts shop in the name and style of M/s Sangm Light House and earning about Rs.50,000/- per month. Reliance was also placed upon photocopies of Income Tax Returns for the As- sessment Years 2007-2008, 2008-2009, 2009-2010 and 2010- 2011 (Mark A1 to A4 respectively) and it was urged that income of the deceased may be assessed on the basis of aforesaid In- come Tax Returns whereby the net income for the Assessment Year 2007-08 is Rs.1,98,971/- (tax paid nil); 2008-09 is Rs.2,53,576 {i.e.Rs.2,60,366/- (gross income) - Rs.6,790/- (tax paid)}; 2009-10 is Rs.2,05,920/- (tax paid nil) and 2010-11 is Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.26 of 83 Rs.3,99,508/- {i.e. Rs.4,17,548/- (gross income) - Rs.18,040/- (tax paid)}.
However, assessment of income of the deceased on the basis of photocopies of Income Tax Returns has been vehe- mently disputed by counsel for respondents as the same have not been proved by summoning any witness from the Income Tax Department. It is also pointed out that the photocopy of In- come Tax Return for the Assessment Year 2010-11 has been filed on 05.08.2010 after the death of the deceased on 02.06.2010 and the income is exaggerated by 100% as com- pared to the returns for the preceding years. It is also submitted by counsel for insurance company that in cross-examination of PW1 Smt. Pallavi Arora, it was admitted that her father-in-law is running a factory for manufacturing spare parts of gas stoves and after the death of her husband, her brother-in-law Pankaj Arora is looking after the business of M/s Sangam Light House. As such, it was contended that the business income continues and there is no loss of dependency. It is also urged that the part- nership deed in respect of M/s Sangam Light House and other documents in support of Income Tax Returns have not been placed on record along with computation of income.
Admittedly, the Income Tax Returns (Mark A1 to A4) have not been proved by summoning any witness from the Income Tax Department and no other documentary evidence has been placed on record to prove that deceased was running the business and earning about Rs.50,000/- per month. The bald statement of petitioner no.1 cannot be accepted on the point of income of the deceased. Further, no witness has not been sum-
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.27 of 83 moned from the Income Tax Department to prove the Income Tax Returns despite being specifically inquired from the counsel if an opportunity is required to summon the witness from the In- come Tax Department to prove the returns relied by the petition- ers as the supporting documents would have revealed if the business was being run in partnership. In absence of Income Tax Returns being proved on record and considering the cross- examination of PW1 Smt. Pallavi Arora, it appears that the busi- ness of M/s Sangam Light House has continued after the death of the deceased. PW1 Smt. Pallavi Arora stated in cross-exami- nation that after the death of her husband, her brother-in-law is looking after the business. The fact whether the deceased was drawing income from M/s Sangam Light House as a partner or a proprietor cannot be concluded since the returns have not been proved in accordance with law. The Income Tax Returns, if any, filed for the period after the death of the deceased with respect to income generated from M/s Sangam Light House have also not been filed on record to ascertain the extent to which the business continued after the death of the deceased. Assuming the returns for the Assessment Years 2007-08, 2008-09 & 2009- 10 as indicative of income of the deceased, it may be observed that average income of the deceased for the concerned year would be Rs.2,19,489/- per annum or Rs.18,290.75 per month. The Income Tax Return for the Assessment Year 2010-11 need not be considered as it is exaggerated by 100% as compared to preceding returns and was filed after the death of the deceased Considering the totality of facts and circumstances since the income claimed on the basis of Income Tax Returns Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.28 of 83 has not been proved on record by summoning the witness from Income Tax Department and the continuity of the business stands established, it may be appropriate to assume the income of the deceased at Rs.12,000/- per month for purpose of assess- ment of compensation instead of average income of Rs.18,290/- per month (i.e. average income for the Assessment Years 2007- 08, 2008-09 & 2009-10).
(b) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects to the extent of 50% be made considering the fact that deceased was aged about 35 years but the same has been vehe- mently opposed by counsel for Insurance Company.
The observations in MAC Appeal No.544/07 decided on 06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI Lom- bard General Insurance Company Ltd. vs. Smt. Nagina Be- gum & Anr. on the point of addition of future prospects may be referred.
"4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was af- firmed by a bench of three Hon'ble Judges in Reshma Ku- mari & Ors. vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter- alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.29 of 83
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No.956/2012 (Sunil Kumar vs. Pyar Mohd.), this Court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No.189/2014 (HDFC Ergo General Insur- ance Co. Ltd. vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Ku- mari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court".
In the present case, since the deceased was self- employed and there is no specific evidence as to growth, ad- dition of income towards future prospects cannot be made for the purpose of compensation.
(c) Deduction towards personal and living expenses of the deceased:
As per testimony of PW1 Smt. Pallavi Arora, date of birth of the deceased was 08.07.1974 and as such he was aged about 35 years 10 months & 24 days approximately at the time of accident (i.e. 02.06.2010).
It may be noticed that as per testimony of PW1 Smt. Pallavi Arora, father of deceased was running a business and, as such, cannot be considered to be financially dependent upon the deceased. Further, it may be appropriate to mention that during the course of proceedings, Shri Satpal Arora (father of deceased) Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.30 of 83 expired on 27.12.2014 and amended memo of parties accord- ingly stands filed on record.
As per Sarla Verma (Smt.) & Ors. vs. Delhi Trans- port Corporation & Anr. (2009) 6 SCC 121, the deduction to- wards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family mem- bers is 2 to 3, 1/4th where the number of dependent family mem- bers is 4 to 6 and 1/5th where the number of dependent family member exceeds 6.
Considering the number of dependents as 3 for the purpose of assessment of compensation, the deduction towards personal and living expenses of the deceased shall be 1/3rd as held in Sarla Verma's case (supra).
(d) Selection of multiplier:
Since the deceased was aged about 35 years 10 months & 24 days approximately at the time of accident (i.e. 02.06.2010), the relevant multiplier in view of Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 would be 15 for the purpose of assessment of compen-
sation.
(e) Loss of financial dependency In the light of aforesaid facts, loss of financial depen- dency of the petitioners comes to Rs.14,40,000/- {i.e. Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.31 of 83 Rs.12,000/- (income per month) X 12 X 2/3 (dependency) X 15 (multiplier)}.
11. Compensation under non-pecuniary heads:
Though a wide discretion in determination of com- pensation is given but the amplitude of such powers has to be exercised in consonance with settled principles and it needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
It has been held by the Hon'ble Apex Court in Ra- jesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each to- wards loss of love and affection and loss of consortium, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
However, the Hon'ble Apex Court awarded Rs.50,000/- to each parent for loss of love and affection in M. Mansoor v. United India Insurance Co. Ltd., 2013 ACJ 2849 (SC). Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corpo-
ration of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Considering the facts and circumstances, petitioners are awarded Rs.1 lakh towards loss of consortium to wife, Rs.1 lakh towards loss of love & affection to petitioner no.1 & 2, Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.32 of 83 Rs.10,000/- towards loss of estate and Rs.25,000/- towards fu- neral expenses of deceased and petitioner No.3 is further awarded Rs.50,000/- towards loss of love and affection of her deceased son in terms of M. Mansoor v. United India Insur- ance Co. Ltd., 2013 ACJ 2849 (SC).
12. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.14,40,000/- Loss of Consortium to wife (pet.no.1) Rs.1,00,000/- Loss of love & affection to wife & daughter Rs.1,00,000/- Loss of love and affection to mother Rs.50,000/-
Loss of Estate Rs.10,000/- Funeral Expenses Rs.25,000/- TOTAL Rs.17,25,000/-
(Rupees Seventeen Lakh Twenty Five Thousand Only) The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of claim petition w.e.f. 18.03.2010 till realization.
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
13. Disbursement It may be noticed that father of deceased was running a business of manufacturing of spare parts of gas stoves at the Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.33 of 83 aforesaid time and as such parents of deceased had some finan- cial support. However, wife of deceased was considerably de- pendent upon income of the deceased.
The petitioners have submitted on appearance before the Tribunal that there is no dispute as to the apportionment of the compensation and the same may be apportioned as deemed appropriate.
However, the peculiar fact in the present case is that wife of the deceased (petitioner no.1) remarried after about 03 years 08 months approximately on 23.01.2014 which has been submitted on behalf of petitioner no.1 at the stage of final argu- ments. The share due to petitioner no. 1 Smt. Pallavi Arora would be only for the aforesaid period though the daughter and mother of the deceased would be entitled to share of compensa- tion for loss of dependency as normally considered. Counsel for petitioners also fairly claimed dependency only for a period of 03 years & 08 months from the date of death of deceased till the date of remarriage of petitioner no.1. Reliance may also be placed upon MAC APP 981/2011 Oriental Insurance Co. Ltd. v. Amita Tripathi & ors. decided by Hon'ble Mr. Justice G.P. Mittal on 08.02.2012. The observations in para 5 are apt to be quoted:
"5. It is well settled that the prospects of re-marriage are not considered as a ground to deny, refuse or even reduce the award of compensation even if the widow is young. However, where a widow remarries, she is not entitled to grant of compensation af- ter her remarriage. In Vijay v. Laxmi Chand Jain & Ors., 1995 ACJ 755, a contention made on prospect of re-marriage as a ground for reduction of compensation was rejected, but it was Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.34 of 83 held that if by additional evidence, it was proved that the widow had remarried, the same could have affected the award of com- pensation. In oriental Fire and General Insurance Co. Ltd. v. Shrimati Chandrawati, AIR 1983 Allahabad 174, Allahabad High Court held that a widow is not entitled to compensation af- ter she remarries. In Nisha v. Gyanwati, ILR (2007) 2 Delhi 53, this Court held that "It would be appropriate if the loss of de- pendency is confined to the period from the date of the accident till the date of remarriage of the widow". Since, the widow had remarried, she would not be considered as a dependent after the date of her remarriage. Thus, the First Respondent would be en- titled to compensation only till the date of her re-marriage."
In the facts and circumstances, after deduction of 1/3rd towards personal and living expenses (i.e. Rs.4,000/-) of the deceased from his monthly income of Rs.12,000/-, petitioner no. 1 may be awarded (i.e. Rs.8,000/-) for a period of 03 years & 08 months approximately as loss of dependency as thereafter petitioner no.1 has since re-married on 23.01.2014 {i.e. Rs.3,52,000/- (sum of Rs.8,000/- x 44 months)} (rounded off to Rs.3,60,000/-) out of the total loss of dependency estimated at Rs.14,40,000/- with proportionate interest thereon. Petitioner no. 1 shall be further apportioned Rs.1 lakh towards loss of con- sortium, Rs.1 lakh towards loss of love and affection, Rs.10,000/- towards loss of estate and Rs.25,000/- towards fu- neral expenses along with proportionate interest thereon.
Out of the remaining amount of Rs.10,80,000/- esti- mated towards loss of dependency, petitioner no. 3 Smt. Harsh Arora (mother of deceased) may be apportioned a sum of Rs.5,00,000/- while petitioner no. 2 Sumedha Arora (daughter of deceased) is awarded a sum of Rs.5,80,000/- along with pro- portionate interest thereon. Petitioner no.3 is further appor-
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.35 of 83 tioned Rs.50,000/- towards loss of love and affection with proportionate interest thereon. The total amount appor- tioned in favour of petitioner no. 1 is Rs.5,95,000/- {i.e. Rs.3,60,000/- (loss of dependency for 03 years 08 months) +Rs.1,00,000/- (loss of consortium)+Rs.1,00,000/- (loss of love & affection)+Rs.10,000/- (loss of estate)+Rs.25,000/- (funeral expenses)}; petitioner no.2 is Rs.5,50,000/- {i.e. Rs.5,00,000/- (loss of dependency)+Rs.50,000/- (loss of love & affection of her deceased son)} and petitioner no.3 is Rs.5,80,000/- along with proportionate interest thereon.
On realization, out of the share of Smt. Pallavi Arora, 25% shall be released to her and remaining amount of 75% shall be kept in three fixed deposits of equal amount in her name with a nationalized bank for a period of one year, two years and three years respectively without the facility of advance, loan or premature withdrawal with release of quarterly peri- odical interest in her account.
Further, out of the share of Ms. Sumedha Arora, 20% shall be released to her and remaining amount of 80% shall be kept in four fixed deposits of equal amount in her name with a nationalized bank for a period of one year, two years three years and four years respectively without the facility of ad- vance, loan or premature withdrawal with release of quar- terly periodical interest in her account.
Further, out of the share of Smt. Harsh Arora, 10% shall be released to her and remaining amount of 90% shall be Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.36 of 83 kept in seven fixed deposits of equal amount in her name with a nationalized bank for a period of one year, two years, three years, four years, five years, six years and seven years re- spectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
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14. CASE-B Old Suit No.608/10 New Suit No.057155/16 Sumedha Arora D/o Late Shri Gulshan Arora Versus Harpal Singh & Ors.
Suit No.608/10 pertains to compensation claim in re- spect of injuries sustained by Sumedha Arora (minor-aged about 14 years) in the accident and the claim petition has been filed through her mother/natural guardian Smt. Pallavi Arora.
15. On the pleadings of the parties, following issues were framed for consideration vide order dated 22.02.2013 by ld. Predecessor:
1. Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 02.06.2010 within the jurisdiction of PS Ambala Sadar, Haryana due to rash and negligent driving of the vehicle bearing registration No. PB 10C K5038 by respondent No.1?
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.37 of 83
2. Whether the petitioner is entitled to any compensa-
tion, if so, to what amount and from whom?
3. Relief.
16. In support of the claim petition, Smt. Pallavi Arora was examined as PW1.
PW1 Smt. Pallavi Arora (mother of injured) testi- fied on the lines of claim petition and proved photocopy of cer- tified copy of criminal record (Ex.PW1/1), copy of her voter's identity card (Ex.PW1/2), copy of Aadhar Card of injured Sumedha (Ex.PW1/3), photograph of injured Sumedha reflect- ing her injuries (Ex.PW1/4). She further testified that her daughter Sumedha was aged about 14 years (date of birth:01.01.1996) and a student of 9th class at the time of acci- dent. Further, Sumedha sustained injuries on right ear, which were stitched at hospital in Ambala and reviewed at J.K. Hos- pitl, Janakpuri, Delhi and the dressing continued for about three weeks.
On cross-examination by counsel for Respondent No.3/ICICI Lombard General Insurance Company Ltd., she clarified that the medical expenses incurred on the treatment of Sumedha had been reimbursed under the mediclaim policy. However, nothing had been paid by the mediclaim company towards special diet and conveyance. She further clarified that she was seated in back portion of the bus and as a result of rash and negligent driving the passengers had requested the driver to drive carefully but he resented by saying that he knew his job and kept driving rashly and negligently. She further stated that Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.38 of 83 she noticed the truck colliding with the bus only on accident. Further, she denied the suggestion that accident had taken place due to rash and negligent driving of the truck.
17. Issue No.2 Whether the petitioner is entitled to any compensa- tion, if so, to what amount and from whom?
It may be observed that for the purpose of assess- ment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
Counsel for the petitioner admits that neither any medical documents in respect of the injuries sustained by Sumedha Arora nor any treatment papers have been filed on record. It is also admitted that as per testimony of PW1 Pallavi Arora the medical reimbursement of expenses incurred on treat- ment of Sumedha Arora received as per mediclaim policy. However, it was submitted by the counsel that as per the affi- davit of Pallavi Arora filed in her examination-in-chief, Sumedha Arora had suffered injuries on right ear which had to be stitched and the dressing continued for about three weeks.
Admittedly, no document reflecting the nature of in- juries sustained by Sumedha Arora has been placed on record. However, the fact of her travelling in the mini bus involved in the accident is not disputed and in view of testimony of PW1 Smt.Pallavi Arora, it cannot be doubted that some simple in-
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.39 of 83 juries were suffered by Sumedha Acora. Even if the medical documents have not been filed on record, notice can be taken of the fact that the injured must have remained under trauma and suffered pain and suffering as a result of the injuries suffered in the accident. Also expenses must have been separately incurred on conveyance from Ambala to Delhi. Considering the facts and circumstances, petitioner is awarded a compensation of Rs.15,000/- towards pain and suffering due to injuries sustained in the accident. Also, a sum of Rs.5,000/- is awarded towards diet, and conveyance.
Medicines and Medical Treatment No medical bills have been placed on record. It has been also admitted by the petitioner in her cross-examination that the medical expenses incurred on treatment of Sumedha Arora had been reimbursed by the mediclaim company. In the facts and circumstances, I am of the considered opinion that if medical expenses incurred by the petitioner on treatment of her daughter Sumedha Aora (injured) already stand reimbursed un- der the mediclaim policy, reimbursement of the bills again would amount to pecuniary benefit to petitioner which is op- posed to objective of compensation under M.V. Act as the prin- ciple governing grant of compensation is to place the claimants in almost the same financial position as they were before the ac- cident. Accordingly, petitioner is not entitled to any amount to- wards medical bills in absence of the same being proved/placed on record.
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.40 of 83 Loss of Academics There is no specific evidence regarding loss of aca- demic year or studies. Neither any documents as to period of medical treatment have been placed on record to infer loss of studies. In view of above, injured is not entitled to compensa- tion under aforesaid heading.
18. As discussed above, the overall compensation is tabulated as under:
Pain and suffering Rs.15,000/- Special Diet & Conveyance Rs.5,000/-
Medical Bills/Medical Treat- NIL (already reimbursed under ment mediclaim policy) Loss of Academics NIL Total Rs.20,000/-
(Rupees Twenty Thousand Only) The petitioner shall be further entitled to interest @ 9% from the date of filing of claim petition i.e. 02.12.2010 till realization.
19. On realization, entire compensation amount along with up-to-date interest shall be released to injured Sumedha Arora since she has attained majority, as submitted by counsel for petitioner.
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20. CASE-C Old Suit No.609/10 New Suit No.357153/16 Pallavi Arora W/o Late Sh.Gulshan Arora Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.41 of 83 Versus Harpal Singh & Ors.
Suit No.609/10 pertains to the compensation claim in respect of injuries sustained by Smt. Pallavi Arora in the acci- dent.
21. On the pleadings of the parties, following issues were framed for consideration vide order dated 22.02.2013 by ld. Predecessor:
1. Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 02.06.2010 within the jurisdiction of PS Ambala Sadar, Haryana due to rash and negligent driving of the vehicle bearing registration No. PB 10C K5038 by respondent No.1?
2. Whether the petitioner is entitled to any compensa-
tion, if so, to what amount and from whom?
3. Relief.
22. In support of the claim petition, two witnesses were examined, namely, PW1 Shri Madan Lal, X-Ray Technician, J.K. Hospital, Janakpuri, Delhi and PW2 Smt. Pallavi Arora (pe- titioner).
PW1 Shri Madan Lal, X-Ray Technician, J.K. Hos- pital, Janakpuri, Delhi deposed that petitioner Pallavi Arora was admitted in the hospital from 02.06.2010 to 06.06.2010 and again from 24.06.2010 to 27.06.2010. Further, bill no.4070 dated 06.06.2010 for Rs.14,850/- and bill no.4094 dated 27.06.2010 for Rs.27,400/- were paid by the patient. He further Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.42 of 83 proved the treatment record including bills as Ex.PW1/1 (colly 13 sheets).
On cross-examination, he clarified that petitioner Pallavi Arora had not undergone any other treatment apart from what had been reflected in the treatment record submitted by him at J.K. Hospital.
PW2 Smt. Pallavi Arora (petitioner) testified on the lines of claim petition and proved photocopy of certified copy of criminal record (Ex.PW2/1), copy of her voter's identity card (Ex.PW2/2), original prescription of J.K. Hospital (Ex.PW2/3) and her photograph showing injuries (Ex.PW2/4. She further testified that she was a housewife and sustained injuries on left eye and scalp, fracture forearm and fracture backbone (tail bone). Further, immediately after the accident, she was taken to Civil Hospital, Ambala City and, thereafter, shifted to J.K. Hos- pital, Janakpuri, Delhi wherein she remained admitted from 02.06.2010 to 06.06.2010 and again from 24.06.2010 to 27.06.2010 On cross-examination by counsel for Respondent No.3/ICICI Lombard General Insurance Company Ltd., she denied the suggestion that she had not spend Rs.50,000/- on medical treatment, conveyance and special diet. She further clarified that the medical expenses incurred by her on medical treatment had been reimbursed under the mediclaim policy. However, nothing had been paid by the mediclaim company towards special diet and conveyance. She also deposed that she had employed a maid, namely, Reena and used to pay Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.43 of 83 Rs.3,000/- per month in cash to her and denied the suggestion that she did not employ any maid to look after her or had deposed so to get the higher amount of compensation. Further, she had not placed any document on record to show that she was 12th pass.
She further clarified that she was seated in back portion of the bus and as a result of rash and negligent driving the passengers had requested the driver to drive carefully but he resented by saying that he knew his job and kept driving rashly and negligently. She further stated that she noticed the truck colliding with the bus only on accident. Further, she denied the suggestion that accident had taken place due to rash and negligent driving of the truck.
23. Issue No.2 Whether the petitioner is entitled to any compensa- tion, if so, to what amount and from whom?
It may be observed that for the purpose of assess- ment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
As per testimony of PW2 Pallavi Arora, she suffered injuries on the left eye and scalp (head), fracture of forearm, fracture of backbone and was admitted at Civil Hospital, Am- bala City from where she was shifted to J.K. Hospital, Janakpuri wherein she remained admitted from 02.06.2010 to 06.06.2010 Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.44 of 83 and again from 24.06.2010 to 27.06.2010. She further claimed that 2-3 stitches were applied on corner of right eye and her treatment continued for five months. Reliance was also placed upon statement of PW1 Madan Lal, X-Ray Technician, J.K. Hospital, Janakpuri who proved the bills for Rs.14,850/- and Rs.27,400/- (Ex.PW1/1) along with the treatment record.
It may be noticed that though the MLC has not been filed but PW1 proved the bills/treatment papers of JK Hospital whereby petitioner Pallavi Arora appears to have been treated for 'fracture ulna' and some minor injuries suffered in the acci- dent.
In the facts and circumstances, considering the nature of injuries and treatment undertaken, petitioner is awarded com- pensation of Rs.80,000/- (Rupees Eighty Thousand Only) to- wards pain and suffering due to injuries sustained in the acci- dent.
Medicines and Medical Treatment During cross-examination, petitioner admitted that the medical expenses incurred on her medical treatment had been reimbursed under the mediclaim policy. In the facts and circumstances, I am of the considered opinion that if medical expenses incurred by the petitioner already stand reimbursed under the mediclaim policy, reimbursement of the bills again would amount to pecuniary benefit to petitioner which is op- posed to objective of compensation under M.V. Act as the prin- ciple governing grant of compensation is to place the claimants Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.45 of 83 in almost the same financial position as they were before the ac- cident. Accordingly, petitioner is not entitled to any amount to- wards medical bills/medical treatment.
Conveyance & Special Diet Though conveyance bills have not been filed on record by the petitioner but it can be reasonably presumed that some amount must have been spent by the petitioner for shifting from Ambala to Delhi and, thereafter during the course of treat- ment. In view of above, an amount of Rs.15,000/- (Rupees Fif- teen Thousand Only) is awarded towards conveyance.
Also, an amount of Rs.20,000/- (Rupees TwentyT- housand Only) is further awarded towards special diet.
Attendant Charges As per testimony of PW2 Pallavi Arora, she had en- gaged a maid servant @ Rs.3,000/- per month and the charges were paid in cash. However, no document has been placed on record to show that she had engaged a maid servant at a salary of Rs.3,000/- per month towards services rendered by her.
However, Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 Delhi 558 held that the victim is entitled to compensation even if no attendant is hired as some family mem- ber renders gratuitous services.
Further, in the case of United India Insurance Co. Ltd. V/s Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.), Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.46 of 83 value of gratuitous services rendered by family member of the claimant was assessed at Rs.2,000/- per month.
I am of the considered view that even if the gratu- itous services were rendered by some or the other family mem- bers, the claimant cannot be deprived of its benefit on the gain of the tortfeasor. The period of active treatment wherein the pe- titioner must have required the continuous care and services has to be assumed for a period of three months. Considering the na- ture of injuries, the compensation of Rs.7,500/- (Rupees Seven Thousand Five Hundred Only) is awarded in lump-sum towards the attendant charges/gratuitous services rendered by the family members (i.e. Rs.2,500/- X 03 months).
24. As discussed above, the overall compensation is tabulated as under:
Pain and suffering Rs.80,000/- Special Diet Rs.20,000/- Conveyance Rs.15,000/- Medical Bills/Medical Treat- NIL (already reimbursed under ment the mediclaim policy) Attendant Charges Rs.7,500/- TOTAL Rs.1,22,500/-
(Rupees One Lakh Twenty Two Thousand & Five Hundred Only) The petitioner shall be further entitled to interest @ 9% from the date of filing of claim petition i.e. 02.12.2010 till realization.
25. On realization, out of the compensation amount along with up-to-date interest, 50% shall be released to the peti- Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.47 of 83 tioner and remaining amount of 50% shall be kept in a fixed de- posit in her name with a nationalized bank for a period of two years without the facility of advance, loan or premature withdrawal, with release of quarterly periodical interest in her account.
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26. CASE-D Old Suit No.610/10 New Suit No.357154/16 Pallavi Arora W/o Late Shri Gulshan Arora Versus Harpal Singh & Ors.
Suit No.610/10 pertains to compensation claim in re- spect of death of Parth Arora (minor-aged about 10 years & 06 months approximately) in the accident and the claim petition has been filed by Smt. Pallavi Arora being the mother/natural guardian.
27. On the pleadings of the parties, following issues were framed for consideration vide order dated 22.02.2013 by ld. Predecessor:
1. Whether the deceased Shri Parth Arora had died due to injuries sustained by him in an accident which took place on 02.06.2010 at about 06.30 AM within the jurisdiction of PS Ambala Sadar, Haryana due to rash and negligent driving of vehicle bearing Regn. No. PB 10C K5038 by respondent No.1?
1.Whether the petitioners are entitled to any compensa-
tion, if so, to what amount and from whom?
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.48 of 83
3. Relief.
28. In support of the claim petition, petitioner no. 1 Smt. Pallavi Arora was examined as PW1.
PW1 Smt. Pallavi Arora testified on the lines of claim petition and proved certified copy of criminal record Ex.PW1/1 (colly 36 sheets); photocopies reflecting the photo- graphs of medals received by deceased Parth Arora for partici- pation in sports in school (Ex.PW1/2 to Ex.PW1/4), photocopies of the identity cards of deceased Parth Arora (Ex.PW1/5 & Ex.PW1/6), photocopy of identity card issued by Hari Nagar DDA Sports Complex (Ex.PW1/7) and photocopy of her voter's identity card (Ex.PW1/8).
On cross-examination, she admitted that Ex.PW1/2 to Ex.PW1/4 did not bear the name of deceased Parth Arora. She further clarified that she was seated in back portion of the bus and as a result of rash and negligent driving the passengers had requested the driver to drive carefully but he resented by saying that he knew his job and kept driving rashly and negligently. She further stated that she noticed the truck colliding with the bus only on accident. Further, she denied the suggestion that accident had taken place due to rash and negligent driving of the bus only.
29. Issue No. (ii) Whether the petitioners are entitled to any compen- sation? If so to what amount and from whom?
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.49 of 83 The method of calculation of compensation in accident claim cases involving death of children in Motor Vehicular Ac- cident has been further clarified in MAC Appeal No.554/10 Chetan Malhotra vs. Lala Ram along with fifteen other appeals decided by Hon'ble Mr. Justice R.K. Gauba on 13.05.2016. Tak- ing note of all the relevant judgments on the issue for determi- nation of compensation in case involving death of children, the conclusions have been made in para 62 to 74 as under:
"62. The tribunals and courts will have to break free from the groove or strait-jacket of the stale, outdated and obso- lete prescription of the second schedule to M.V. Act. Time has come, and it is the obligation of this court to do so, to bring the benchmark in Second Schedule to M.V. Act upto date, in the present matters for purposes of award of com- pensation in the case of death of children so as to make it "just" and "reasonable". The issue is about the proper mode of achieving this objective.
63. As noted above, the learned single Judge of this court, sitting in appeal over the judgments of the tribunal in the case of R.K. Malik (supra) while assessing the non-pecu- niary damages had improved upon what was granted in Lata Wadhwa (supra) in relation to an accident of 1989 by applying the cost of inflation index notified by the Govern- ment of India under Section 48 of the Income Tax Act, 1961. The computation thus made was eventually approved by the Supreme Court, though with further addition to- wards future prospects. This holds the key to the predica- ment faced.
64. A similar route was taken by another single bench of this Court in a case for compensation arising out of an in- cident of terrorism in Kamla Devi v. Govt. of NCT of Delhi 2005 ACJ 216 (Delhi): 114 (2004) DLT 57, wherein the value of the conventional sum awarded in Lata Wadhwa (supra) was improved upon by applying the consumer price index for industrial workers [CPI (IW)]. The view in Kamla Devi (supra) was followed in a number of subse-
quent decisions of this Court in cases reported as Ashwani Gupta v. Government of India & Ors. 117 (2005) DLT 112; Tasleema v. State (NCT of Delhi) & Ors. ILR (2009) 6 Del 486 : (2009) 161 DLT 660 (DB); Nagrik Sangarsh Samiti & Ors. v. Union of India & Ors. ILR (2010) 4 Del 293 :
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.50 of 83 2012 ACJ 1548; Swarn Singh v. Union of India 2010 SCC Online Del 1190 and Ashok Sharma & Ors. v. Union of In- dia & Ors. ILR (2008) 1 Del 96 : 2009 ACJ 1063.
65. Having regard to the fluctuating trends in CPI (IW), this court finds the Cost Inflation Index (CII) determined and notified by the Ministry of Finance in Government of India under Section 48 of Income Tax Act, 1961 for each fi-
nancial year, to be a better method to off-set the effect of inflation on the real value of money. This approach, if fol- lowed, would ensure that there is no inconsistency in the awards of compensation in cases of death of children. [R.K.Malik (supra) and Balram Prasad v. Kumar Saha (2014) 1 SCC 384]. Since the amount which requires to be subjected to correction was determined by decision in R.K.Malik wherein cause of action had arisen on 10.11.1997, the financial year 1997-98 is taken as the "base year".
For ready reference, the rates of Cost Inflation Index (CII) notified by the government till date, to the extent necessary, are reproduced in the table given below Financial Year CII Financial Year CII Before 1/4/1981 100 2004-05 480 1981-82 100 2005-06 497 1982-1983 109 2006-07 519 XXX XXX 2007-08 551 1997-98 331 2008-09 582 1998-99 351 2009-10 632 1999-2000 389 2010-11 711 2000-01 406 2011-12 785 2001-02 426 2012-13 852 2002-03 447 2013-14 939 2003-04 463 2014-15 1024 2015-16 1081 CONCLUSIONS
67. In the considered view of this Court, the cases for com- pensation on account of death of children in motor vehicu-
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.51 of 83 lar accident cases ought to be dealt with by considering the claim towards pecuniary damages (towards loss to es- tate), in accordance with the age-group wise categories as in R.K.Malik (supra); the first category being of children less than 10 years‟ in age, the second category being of children more than 10 years‟ and up to 15 years‟ in age, and the third category of children more than 15 years‟ but not having attained the age of majority (18 years). The children in the third category would ordinarily be of such age group as is generally receiving formal school educa- tion or those that are (being) imparted special training so as to be equipped with requisite skills to be gainfully em- ployed in a variety of trades. They are after all nearing adulthood and thus, on the threshold of becoming self-re- liant. In such cases, the prospects of their employability and earnings in future or present, based on evidence ad- duced about their academic track record or training in special talents or skills, would need to be borne in mind. As in Lata Wadhwa (supra), the claim for pecuniary dam- ages arising out of death of children of this age group can- not be at par with the lower age groups falling in the first and second category. Therefore, the pecuniary loss to es- tate due to their death would deserve to be worked out by applying a higher multiplier on the notional income (of non-earning persons) unless, of course, case is properly made out for higher considerations. Noticeably, in Sarla Verma (supra) the Supreme Court specified the multiplier of 18 for cases where the deceased was in the age-group of 15 years‟ to 20 years‟ old. For the first and second cate- gory, however, the multiplier of 10 and 15 respectively, as used in R.K. Malik (supra), would hold good.
68. Since in the claims arising out of death of children, generally speaking, (non-earning hands), the income is to be notionally assumed on the basis of the second schedule to the MV Act, the general practice of deduction of one- half (50%) towards personal & living expenses, as applied in case of bachelors above the age of 18 years would be unfair. Pertinently, the notional income specified for non- earning persons in the second schedule is very low as com- pared to the rates of minimum wages. Therefore, the de- duction of one-third (1/3rd) on this account, as provided by the first note below the second schedule would only be ap- propriate.
69. The award of compensation must necessarily take into account non-pecuniary damages. In R.K. Malik (supra), 75,000/- awarded by this Court as the "conventional com-
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.52 of 83 pensation" was enhanced by the Supreme Court by further similar amount ( 75,000/-) as the "compensation for future prospects". For the reasons set out earlier, in the context of pecuniary loss to estate, the composite sum of non-pecu- niary damages of 1,50,000/- [as awarded in R.K. Malik (supra)] would deservedly be added, but with suitable cor- rection so as to ensure that the deficiency in the real value of money is made good. As noted (in para 46) earlier, the Supreme Court justified the addition of `75,000/- towards compensation for "future prospects" by noting that the said amount was "roughly half of the amount given on ac- count of pecuniary damages". Since the court had also up- held the award of similar sum (`75,000/-) by this court as "conventional compensation", both amounts of non-pecu- niary damages, put together, account for roughly an amount equivalent to the sum computed as pecuniary loss to estate. Thus, this court is of the view that a composite sum equal to the amount computed as pecuniary loss to es- tate may be added as non-pecuniary damages (inclusive of conventional compensation and for future prospects), in such cases as at hand to arrive at the appropriate figure of „just compensation‟.
70. It has been noticed by this Court that the tri- bunals have been assessing the compensation and award- ing it to the last rupee, at times even in the fraction of a ru- pee, not bothering to follow the practice of rounding off. Awards in at least two of the cases from which the appeals at hand arise provide ready illustration. This seems to be not correct. It must be added here that human misery can- not be calculated with such mathematical precision. Even otherwise for convenience of accounting, it is desirable that the amount of award is rounded off to the nearest (if not next) thousands of rupees.
71. Subject to all other requisite conditions being fulfilled, for the foregoing reasons, in order to bring about consistency and uniformity in approach to the issue, it is held that claims for compensation on account of death of children shall be determined as follows :
(i). Till such time as the law is amended by the legislature, or the Central Government notifies the amendment to the Second Schedule in exercise of the enabling power vested in it by Section 163-A (3) of the Motor Vehicles Act, 1988, and except in cases wherein the prospects of employability and earnings (in future or present) of the deceased child are proved by cogent and irrefutable evidence, this having regard, inter alia, to the academic record or training in Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.53 of 83 special talents or skills, for computing the pecuniary dam-
ages on account of the loss to estate, the notional income of non-earning persons (`15000/-p.a.) as specified in the Second Schedule (brought in force from 14.11.1994), shall be assumed to be the income of the deceased child, and taken into account after it is inflation-corrected with the help of Cost Inflation Index (CII) as notified by the Gov- ernment of India from year to year under Section 48 of the Income Tax Act, 1961, by applying the formula indicated hereinafter.
(ii) For inflation-correction, the financial year of 1997- 1998 shall be treated as the "base year" and the value of the notional income relevant to the date of cause of action shall be computed in the following manner :-
` 15,000/- x A ÷331 [wherein the figure of „`15,000/-‟ represents the notional income specified in the second schedule requiring infla- tion-correction; „A‟ represents the CII for the financial year in which the cause of action arose (i.e. the accident / death occurred); and the figure of „331‟ represents the CII for the „base year‟]
(iii). After arriving at an appropriate figure of the present equivalent value of the notional income (i.e. inflation-cor-
rected amount), it shall be rounded off to a figure in next thousands of rupees.
(iv). The amount of notional income thus calculated shall be reduced to two-third, the deduction to the extent of one- third being towards personal & living expenses of the de- ceased, the balance taken as the annual loss to estate (hereinafter also referred to as "the multiplicand").
(v). For assessment of the pecuniary damages on account of the death of children upto the age of 10 years, the loss to estate shall be calculated, capitalizing the multiplicand, by applying the multiplier of ten (10).
(vi). For children of the age-group of more than 10 years upto 15 years, the loss to estate shall be calculated by ap- plying the multiplier of fifteen (15).
(vii). For children of the age-group of more than 15 years but less than 18 years, the loss to estate shall be calculated by applying the multiplier of eighteen (18).
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.54 of 83
(viii). After the pecuniary loss to estate has been worked out in the manner indicated above, an amount equivalent to the amount thus computed shall be added to it as the composite non-pecuniary damages taking care of not only the conventional heads but also towards future prospects as awarded in R.K. Malik v. Kiran Pal (2009) 14 SCC 1.
(ix). The final sum thus arrived at, appropriately rounded off, if so required to the nearest (if not next) thousands of rupees, shall be awarded as compensation for the death of the child.
72. The ruling in National Insurance Company Ltd. v. Farzana (2009 ACJ 2763) was rendered by a learned single Judge of this Court on 14.07.2009. Though it had built upon the dispensation in R.K.Malik (supra), given the effect of inflation elaborately discussed above, it has outlived its utility for cases relating to later years. At the same time, it must be noted, that the view in Farzana (supra) has governed the field till date, inasmuch as it has been followed by other single benches of this Court as also by tribunals in various cases. Given the modified method of calculation as is being determined by this judgment, it is possible that in some of the earlier decided cases, the com- pensation computed on revised lines may fall below the amount of 3,75,000/-computed in Farzana (supra). Since the awards in such earlier decided cases were granted with reference to the ratio in Farzana (supra), it will not be fair to order any modification in cases that relate to the period on or after 10.05.2000 (the date of cause of action in Farzana) so as to reduce the awards below the said amount of 3,75,000/-, particularly as some of such awards may already have been satisfied, including on account of interim orders of this Court.
73. Thus, in cases founded on cause of action arising on or after 10.05.2000, the amount of compensation shall not in any case be less than 3,75,000/- which was awarded in the case of National Insurance Co. Ltd. v. Farzana (2009 ACJ 2763).
74. Case-wise decisions taken hereinafter shall provide necessary illustrations for applying the above-directed method of computation."
30. It may further be observed that MAC Appeal No.250/13 decided along with MAC Appeal No.554/10 Chetan Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.55 of 83 Malhotra vs. Lala Ram (supra) involved death of a 11 years old child namely Mukesh in an accident on 24.09.2007. Para 82 of the judgment referred to above gives a clear illustration for cal- culation of compensation and may be beneficially quoted.
" There is no case for any higher consideration. The death had occurred on 24.09.2007 and therefore, the CII for the financial year 2007-2008 (i.e. 551) would apply. As the age of the deceased child will 11 years, the multiplier of 15 would be appropriate. The inflation-corrected notional in- come thus comes to (Rs.15,000/- X 551/331) Rs.24,969/-, rounded off to Rs.25,000/-. After deducting 1/3 rd and on the multiplier of 15, the pecuniary loss to estate is computed as (Rs.25,000/-X 2/3 X 15) Rs.2,49,999/- rounded off to Rs.2,50,000/-. Adding the similar amount towards compos- ite non-pecuniary damages, the total compensation payable in this case comes to Rs.5,00,000/-. Following the reasons set out in the context of the preceding cases, the rate of interest is increased to 9% p.a."
31. It may be noticed that the present case is not a case for assessment of higher consideration in respect of deceased Master Parth Arora on account of any exceptional qualifications though photocopies reflecting some medals stated to be awarded by the school in sports (Ex.PW1/2 to Ex.PW1/4) have been filed. The death had occurred on 02.06.2010 and therefore, the CII for the financial year 2010-2011 (i.e. 711) would apply. The age of the deceased was 10 years 06 months & 10 days approxi- mately as reflected in the identity card issued by the school (Ex.PW1/6). The same is not disputed by counsel for respon- dents and the multiplier of 15 would be appropriate as applica- ble in cases for children in between bracket of 10 to 15 years. The inflation-corrected notional income thus comes to Rs.32,220.54 (i.e. Rs.15,000/- X 711/331) (rounded off to 33,000/-). After deducting 1/3rd and on the multiplier of 15, the Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.56 of 83 pecuniary loss to estate is computed as Rs.3,30,000/- (i.e. Rs.33,000/-X 2/3 X 15). Adding the similar amount towards composite non-pecuniary damages, the total compensation payable in this case comes to Rs.6,60,000/-. The petitioner shall be further entitled to interest @ 9% from the date of filing of claim petition i.e. 02.12.2010 till realization.
32. On realization, out of the compensation amount along with up-to-date interest, 25% shall be released to the peti- tioner and remaining amount of 75% shall be kept in five fixed deposits of equal amount in her name with a nationalized bank for a period of one year, two years, three years, four years and five years respectively without the facility of ad- vance, loan or premature withdrawal, with release of quar- terly periodical interest in her account.
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33. CASE-E Old Suit No.636/10 New Suit No.357273/16 Preeti Manchanda W/o Shri Kamal Kumar Manchanda Versus Harpal Singh & Ors.
It may be observed that claim petitions bearing Nos.636/10, 637/10, 638/10 & 639/10 pertain to the same family wherein Karan Manchanda (son of Kamal Manchanda & Preeti Manchanda) had expired and further injuries were suffered by Kamal Manchanda, Preeti Manchanda and their Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.57 of 83 daughter Priyanka Manchanda. Evidence of Kamal Manchanda has been led in Suit No.639/10 pertaining to death of Karan Manchanda and Suit No.638/10 pertaining to the injuries sustained by him.
Suit No.636/10 pertains to the compensation claim in respect of injuries sustained by Smt. Preeti Manchanda in the accident.
34. On the pleadings of the parties, following issues were framed for consideration vide order dated 22.02.2013 by ld. Predecessor:
1. Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 02.06.2010 within the jurisdiction of PS Ambala Sadar, Haryana due to rash and negligent driving of the vehicle bearing registration No. PB 10C K5038 by respondent No.1?
2. Whether the petitioner is entitled to any compensa-
tion, if so, to what amount and from whom?
3. Relief.
35. In support of the claim petition, two witnesses were examined, namely, PW1 Shri Madan Lal, X-Ray Technician, J.K. Hospital, Janakpuri, Delhi and PW2 Smt. Preeti Man- chanda (petitioner).
PW1 Shri Madan Lal, X-Ray Technician, J.K. Hos- pital, Janakpuri, Delhi deposed that petitioner Preeti Manchanda was admitted in the hospital from 02.06.2010 to 06.06.2010 vide registration No.78/2010 and bill no.4072 dated 06.06.2010 Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.58 of 83 for Rs.15,400/- was paid by the patient. He further proved the treatment record including bills as Ex.PW1/1 (colly 06 sheets).
On cross-examination, he clarified that petitioner had not undergone any other treatment at J.K. Hospital apart from the treatment that had been reflected in the treatment record submitted by him.
PW2 Smt. Preeti Manchanda (petitioner) testified on the lines of claim petition and proved copy of her election I- card (Ex.PW2/1), copy of MLC (Ex.PW2/2), photocopy of first page of Income Tax Return filed on 26.03.2011 (Ex.PW2/3A), acknowledgment of Income Tax Return (Ex.PW2/3B), her pho- tographs prior to the accident and after the accident (Ex.PW2/4 & Ex.PW2/5) respectively.
She further testified that she sustained multiple wound injuries in the accident and was taken to Civil Hospital, Ambala City, Haryana from where she was shifted to Govt. Medical College Chandigarh. Thereafter, she was admitted at J.K. Hospital, Delhi on 02.06.2010 and discharged on 06.06.2010 though the treatment continued for about two months. Further, prior to the accident, she was engaged in sell- ing ladies suits & dress material and earning about Rs.20,000/- per month and was an income tax assessee.
On cross-examination by counsel for Respondent No.3 ICICI Lombard General Insurance Company, she stated that she had not placed on record copy of Income Tax Re- turn filed before the accident. She admitted that the amount of Rs.15,400/- which had been spent on her medical treatment had Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.59 of 83 been reimbursed by The New India Assurance Co. Ltd. under the mediclaim policy. She denied the suggestion that she had not spent a sum of Rs.34,600/- on conveyance and special diet or that the scar visible on her left arm was not caused by the ac- cident. Further, she had not filed any document to show that she was 12th pass.
She further clarified that she was sitting on the rear most seat of the bus at the time of accident and as a result of rash and negligent driving the passengers had requested the driver to drive carefully but he resented by saying that he knew his job and kept driving rashly and negligently. She further stated that she noticed the truck colliding with the bus only on accident. Further, she denied the suggestion that accident had taken place due to rash and negligent driving of the truck. She further denied the suggestion that even prior to the accident her left arm was in the same position as was after the accident.
On cross-examination by counsel for Respondent No.5 National Insurance Company Ltd., she clarified that it was a head on collision and her statement was recorded by the police. She denied the suggestion that the accident was caused entirely due to the negligence of the driver of the offending truck. Further, she had not filed on record any proof of income for the period prior to the accident.
36. Issue No.2 Whether the petitioner is entitled to any compensa- tion, if so, to what amount and from whom?
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.60 of 83 It may be observed that for the purpose of assess- ment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
Counsel for the petitioner contended that immedi- ately after the accident, petitioner was taken to Civil Hospital, Ambala City, Hayana and, thereafter, shifted to Govt. Medical College, Chandigarh. Thereafter, she remained admitted at J.K. Hospital, Janakpuri, Delhi from 02.06.2010 to 06.06.2010 though the treatment continued for about two months. It was claimed that petitioner was engaged in selling ladies suits & dress material and earning about Rs.20,000/- per month and could not carry her vocation for about a period of four months. Reliance was further placed upon Income Tax Return for the As- sessment Year 2010-2011 for purpose of assessment of income of the petitioner.
As per carbon copy of MLC prepared at Civil Hospi- tal, Ambala City (Ex.PW2/2) wherein petitioner was taken im- mediately after the accident, she suffered abrasions/lacerations on various parts of the body. Further, the treatment record of J.K. Hospital, Janakpuri, Delhi reflects that petitioner remained admitted therein from 02.06.2010 to 06.06.2010 and suffered in- juries as reflected below:
"wound over the head of IInd M.C.
-Ext tendon exposed tissue around crushed"
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.61 of 83 Considering the nature of injuries as pointed above, there does not appear to be a case of loss of income. However, considering the fact that the petitioner remained under trauma and suffered injuries in the accident, she is awarded a sum of Rs.40,000/- (Rupees Forty Thousand Only) towards pain and suffering for the injuries sustained by her in the accident.
Special Diet & Conveyance Also, a sum of Rs.10,000/- is awarded towards diet and conveyance.
Medicines and Medical Treatment It has been admitted by the petitioner in her cross-ex- amination that medical expenses of Rs.15,400/- incurred on her treatment had been reimbursed by the mediclaim company. In the facts and circumstances, I am of the considered opinion that if medical expenses incurred by the petitioner already stand re- imbursed under the mediclaim policy, reimbursement of the bills again would amount to pecuniary benefit to petitioner which is opposed to objective of compensation under M.V. Act as the principle governing grant of compensation is to place the claimants in almost the same financial position as they were be- fore the accident. Accordingly, petitioner is not entitled to any amount towards medical bills/medical treatment.
37. As discussed above, the overall compensation is tabulated as under:
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.62 of 83 Pain and suffering Rs.40,000/-
Special Diet & conveyance Rs.10,000/-
Medical Bills/Medical Treat- NIL (already reimbursed under ment the mediclaim policy) Total Rs.50,000/-
(Rupees Fifty Thousand Only) The petitioner shall be further entitled to interest @ 9% from the date of filing of claim petition i.e. 21.12.2010 till realization.
38. On realization, out of the compensation amount along with up-to-date interest, 50% shall be released to the peti- tioner and remaining amount of 50% shall be kept in a fixed de- posit in her name with a nationalized bank for a period of two years without the facility of advance, loan or premature withdrawal, with release of quarterly periodical interest in her account.
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39. CASE-F Old Suit No.637/10 New Suit No.357272/16 Priyanka Manchanda D/o Shri Kamal Kumar Manchanda, Versus Harpal Singh & Ors.
Suit No.637/10 pertains to the compensation claim in respect of injuries sustained by Priyanka Manchanda D/o Kamal Kumar Manchanda.
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.63 of 83
40. On the pleadings of the parties, following issues were framed for consideration vide order dated 22.02.2013 by ld. Predecessor:
1. Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 02.06.2010 within the jurisdiction of PS Ambala Sadar, Haryana due to rash and negligent driving of the vehicle bearing registration No. PB 10C K5038 by respondent No.1?
2. Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
3. Relief.
41. In support of the claim petition, two witnesses were examined, namely, PW1 Shri Gaurav Malhotra, Sr. Medical Record Technician, Sir Ganga Ram Hospital, New Delhi and PW2 Priyanka Manchanda (petitioner).
PW1 Shri Gaurav Malhotra, Sr. Medical Record Technician, Sir Ganga Ram Hopital, New Delhi deposed that Priyanka Manchanda was admitted in the hospital vide registra- tion No.0766677 on 03.06.2010 and discharged on 06.06.2010. Further, the bill for Rs.84,033/- was paid by E-Meditek Solu- tions Ltd. and proved the photocopy of final bill (Ex.PW1/1 colly 6 sheets).
On cross-examination, he clarified that petitioner had not undergone any other treatment at Sir Ganga Ram Hospi- tal.
PW2 Priyanka Manchanda (petitioner) testified on the lines of claim petition and proved carbon copy of MLC Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.64 of 83 (Ex.PW2/1), discharge summary of Sir Ganga Ram Hospital (Ex.PW2/2), medical bills (Ex.PW2/3 colly), her photographs prior to the accident and after the accident (Ex.PW2/4 & Ex.PW2/5) respectively.
She further testified that she sustained fracture of pelvic bone, fracture of both forearms, injuries on chest besides blunt injuries over the body and was unable to pass urine after the accident. Further, after the accident she was taken to Civil Hospital, Ambala City, Haryana and was thereafter shifted to Govt. Medical College Chandigarh. Thereafter, she was admit- ted at Sir Ganga Ram Hospital, New Delhi on 03.06.2010 and discharged on 06.06.2010 wherein she was operated upon and plating was done in arm. Further, for treating the fracture of pelvic bone, traction was applied for four months. She testified that she had finished her 10th class exams and was awaiting the result at the time of accident and due to the injuries sustained in the accident could not continue with her studies for about 06 months.
On cross-examination by counsel for Respondent No.3 ICICI Lombard General Insurance Company, she clar- ified that an amount of Rs.71,532/- spent on her medical treat- ment had been reimbursed by The New India Assurance Com- pany Ltd. under the mediclaim policy but balance amount of Rs.13,468/- had not been reimbursed. She denied the sugges- tion that the entire amount spent on her medical treatment had been reimbursed under the mediclaim policy. She denied the suggestion that she had not spent a sum of Rs.15,600/- on con-
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.65 of 83 veyance and special diet or that the scar visible on her left arm was not caused by the accident. Further, there was no loss of academic year on account of the injuries suffered in the acci- dent. She further denied the suggestion that the plaster or trac- tion had not continued for about four months. However, she ad- mitted that she had not placed any document on record to show that she was advised rest for four months.
She further clarified that she was sitting on the rear most seat of the bus at the time of accident and as a result of rash and negligent driving the passengers had requested the driver to drive carefully but he resented by saying that he knew his job and kept driving rashly and negligently. She further stated that she noticed the truck colliding with the bus only on accident. Further, she denied the suggestion that accident had taken place only due to rash and negligent driving by driver of the bus.
She further denied the suggestion that even prior to the accident her left arm was in the same position as was after the accident.
On cross-examination by counsel for Respondent No.5 National Insurance Company Ltd., she clarified that it was a head on collision and her statement was recorded by the police. She denied the suggestion that the accident was caused entirely due to the negligence of the driver of the offending truck.
42. Issue No.2 Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.66 of 83 Whether the petitioner is entitled to any compen- sation, if so, to what amount and from whom?
It may be observed that for the purpose of assess- ment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
As per discharge summary of Sir Ganga Ram Hospi- tal, New Delhi, petitioner was diagnosed to have suffered "Frac- ture both bones forearm (Left) with ? fracture B/L acetabulum"
and it was further reflected therein "H/O urinary retention (not passed urine since last 12-13 hours)". Further, the petitioner re- mained admitted at Sir Ganga Ram Hospital from 03.06.2010 to 06.06.2010 wherein ORIF left forearm (radius fixed with 6-hole DCP and ulna fixed with 7-hole DCP) done on 03.06.10 under GA.
In the facts and circumstances, considering the nature of injuries, hospitalization and treatment undertaken, petitioner is awarded compensation of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) towards pain and suffering due to injuries sustained in the accident.
Medicines and Medical Treatment During cross-examination, petitioner submitted that only an amount of Rs.71,532/- had been reimbursed towards medical treatment undertaken at Sir Ganga Ram Hospital under Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.67 of 83 the mediclaim policy while an amount of Rs.13,468/- had not been reimbursed. In the facts and circumstances, I am of the considered opinion that if Rs.71,532/- towards medical ex- penses incurred by the petitioner had been reimbursed under the mediclaim policy, reimbursement of the aforesaid bills again would amount to pecuniary benefit to petitioner which is op- posed to objective of compensation under M.V. Act as the prin- ciple governing grant of compensation is to place the claimants in almost the same financial position as they were before the ac- cident. However, there is no reason to disbelieve the fact that in addition to the amount of Rs.71,532/- which was reimbursed under the mediclaim policy, petitioner also incurred an amount of Rs.14,451/- towards the medical treatment/bills which have not been reimbursed in the mediclaim policy and not disputed on behalf of respondents. Accordingly, petitioner is entitled to Rs.14,451/- towards medical bills/treatment.
Conveyance & Special Diet Though conveyance bills have not been filed on record by the petitioner but it can be presumed that some amount must have been spent during the period of treatment pe- titioner was shifted from Ambala to Delhi and, thereafter during the course of treatment. In view of above, an amount of Rs.15,000/- (Rupees Fifteen Thousand Only) is awarded to- wards conveyance for the period of treatment.
An amount of Rs.20,000/- (Rupees Twenty Thousand Only) is further awarded towards special diet.
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.68 of 83 Attendant Charges Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 Delhi 558 held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
Further, in the case of United India Insurance Co. Ltd. V/s Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.), value of gratuitous services rendered by family member of the claimant was assessed at Rs.2,000/- per month.
I am of the considered view that even if the gratu- itous services were rendered by some or the other family mem- bers, the claimant cannot be deprived of its benefit on the gain of the tortfeasor. The period of active treatment wherein the pe- titioner must have required the continuous care and services has to be assumed for a period of four months. Considering the na- ture of injuries, the compensation of Rs.10,000/- is awarded in lump-sum towards the attendant charges/gratuitous services ren- dered by the family members (i.e. Rs.2,500/- X 04 months).
Loss of Academics Though there is no specific evidence regarding loss of academic year but definitely on account of fractures suffered by the petitioner in the accident, studies of the petitioner must have been adversely affected. Petitioner is accordingly awarded a sum of Rs.30,000/- towards loss of studies.
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.69 of 83
43. As discussed above, the overall compensation is tabulated as under:
Pain and suffering Rs.1,50,000/-
Special Diet Rs.20,000/-
Conveyance Rs.15,000/-
Medical Bills/Medical Treat- Rs.14,451/- (remaining bills
ment reimbursed under the medi-
claim policy)
Attendant Charges Rs.10,000/-
Loss of Academics Rs.30,000/-
TOTAL Rs.2,39,451/-
(Rupees Two Lakh Thirty Nine Thousand Four Hundred & Fifty One Only) The petitioner shall be further entitled to interest @ 9% from the date of filing of claim petition i.e. 21.12.2010 till realization.
44. On realization, out of the compensation amount along with up-to-date interest, 25% shall be released to the peti- tioner and remaining amount of 75% shall be kept in a fixed de- posit in her name with a nationalized bank for a period of three years without the facility of advance, loan or prema- ture withdrawal, with release of quarterly periodical interest in her account.
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45. CASE-G Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.70 of 83 Old Suit No.638/10 New Suit No.357271/16 Kamal Kumar Manchanda S/o Ravi Kumar Manchanda Versus Harpal Singh & Ors.
Suit No.638/10 pertains to the compensation claim in respect of the injuries sustained by Kamal Kumar Manchanda in the accident.
46. On the pleadings of the parties, following issues were framed for consideration vide order dated 22.02.2013 by ld. Predecessor:
1. Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 02.06.2010 within the jurisdiction of PS Ambala Sadar, Haryana due to rash and negligent driving of the vehicle bearing registration No. PB 10C K5038 by respondent No.1?
2. Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
3. Relief.
47. In support of the claim petition, two witnesses were examined, namely, PW1 Shri Madan Lal, X-Ray Technician, J.K. Hospital, Janakpuri, Delhi and PW2 Shri Kamal Kumar Manchanda (petitioner).
PW1 Shri Madan Lal, X-Ray Technician, J.K. Hos- pital, Janakpuri, Delhi deposed that petitioner Kamal Kumar Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.71 of 83 Manchanda was admitted in the hospital from 02.06.2010 to 06.06.2010 vide registration No.80/2010 and bill no.4071 dated 06.06.2010 for Rs.13,600/- was paid by the patient. He further proved the treatment record including bills as Ex.PW1/1 (colly 06 sheets).
On cross-examination, he clarified that petitioner had not undergone any other treatment at J.K. Hospital apart from the treatment that had been reflected in the treatment record submitted by him.
PW2 Shri Kamal Kumar Manchanda testified on the lines of the claim petition and proved photocopy of certified copy of criminal record (Ex.PW2/1), copy of his voter's I-card (Ex.PW2/2), copy of Income Tax Returns for the Assessment Years 2009-2010 & 2010-2011 (Ex.PW2/3 & Ex.PW2/4 respec- tively) and carbon copy of MLC (Ex.PW2/5).
On cross-examination by counsel for Respondent No.3/ICICI Lombard General Insurance Company Ltd., he stated that the return for the Assessment Year 2010-2011 was filed after the accident but return for the Assessment Year 2009- 2010 had been filed prior to accident. Further, he was running a cloth trading business from the shop belonging to his deceased father. He further stated that he along with his two brothers, namely, Pradeep Manchanda and Kapil Manchanda were the partners in the aforesaid business but was unaware whether the partnership firm also filed the Income Tax Returns. He stated that there was no other income except from the aforesaid busi-
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.72 of 83 ness and denied the suggestion that he had intentionally with- held the Income Tax Returns of the partnership firm as the in- come shown therein was on a lower side or that the Income Tax Returns filed by him on record were false and fabricated. He further denied the suggestion that he did not suffer any business loss on account of continuous running of the shop despite being injured in the accident or that he had not spent Rs.1,00,000/- on treatment, special diet and conveyance. However, he clarified that the medical expenses incurred on his treatment had been re- imbursed under the mediclaim policy but nothing had been paid by the mediclaim company towards special diet and con- veyance.
He further deposed that they had started the journey at about 2.00 AM and he was seated on the second seat of the bus at the time of accident. Further, as a result of rash and negligent driving of the bus, passengers had requested the driver to drive carefully but he continued driving in the same manner. Further, he had noticed the truck colliding with the truck only on accident. He denied the suggestion that the accident had taken place only due to the negligence of driver of the bus.
On cross-examination by counsel for Respondent No.5 National Insurance Company Ltd., he clarified that it was a head-on collision but did not remember whether his statement was recorded by the police. He denied the suggestion that the accident was caused entirely due to the negligence of the driver of the offending truck. He further stated that he had not suffered any permanent disability in the accident.
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.73 of 83
48. Issue No.2 Whether the petitioner is entitled to any compen- sation, if so, to what amount and from whom?
It may be observed that for the purpose of assess- ment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
Loss of income
As per treatment papers placed on record,
petitioner/injured remained hospitalized at J.K. Hospital, Jankpuri, Delhi from 02.06.2010 to 06.06.2010 and suffered in- juries as reflected below:
"# Lat. Condyle of tibia c # Mandible c stitched wound legs c Inj. Chest"
Counsel for petitioner contended that on account of the injuries sustained in the accident, petitioner could not attend to his work for a considerable period and urged that loss of in- come may be assessed at least for a period of about four months. Reliance was further placed upon Income Tax Return for the As- sessment Year 2009-10 & 2010-11 for the purpose of assess- ment of loss of income. It was submitted that the net income of the petitioner for the Assessment Year 2009-10 was Rs.2,30,492/- {i.e. Rs.2,36,423 (gross income)-Rs.5,931/- (in-
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.74 of 83 come tax paid)} and for the Assessment Year 2010-2011 was Rs.4,26,329/- {i.e. Rs.4,54,191 (gross income) - Rs.27,862/- (income tax paid)} as filed on 15.09.2010 (i.e. after the date of accident).
However, the contentions were opposed by counsel for respondents on the ground that the return for the Assessment Year 2010-11 was filed on 15.09.2010 (i.e. after the date of acci- dent) and further the return does not reflect that there was any loss of income. It was also submitted that even otherwise the return for Assessment Year 2010-11 cannot be considered as the income is shown to have increased by almost 100% when com- pared to the preceding Assessment Year. It was also contended that the business carried by the petitioner was in partnership as submitted by PW2 in cross-examination and, as such, no finan- cial loss can be presumed as the business continued to be looked after by the other partners. The returns were stated to have not been proved by summoning the witness from the Income Tax Department.
Admittedly, the aforesaid Income Tax Returns even if not technically proved by summoning witness from the In- come Tax Department are at least indicative of the income of the petitioner. The Returns for the Assessment Year 2009-10 & 2010-11 on comparison reflect that there was no loss of income as the business continued in partnership. In the facts and cir- cumstances, the petitioner has been unable to establish the loss of income on account of injuries suffered in the accident.
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.75 of 83 Pain and Suffering As per treatment record of J.K. Hospital, Janakpuri, Delhi, petitioner remained admitted from 02.06.2010 to 06.06.2010 since he suffered 'fracture lat. condyle of tibia and mandible' as well as other injuries as reflected in Ex.PW1/1. Considering the nature of injuries suffered by the petitioner and record of treatment, petitioner is also awarded a sum of Rs.1,25,000/- (Rupees One Lakh Twenty Five Thousand Only) towards pain and suffering for the injuries sustained by him in the accident.
Special Diet and Conveyance Though conveyance bills have not been filed on record by the petitioner but it can be reasonably presumed that some amount must have been spent by the petitioner for shifting from Ambala to Delhi and, thereafter during the course of treat- ment. In view of above, an amount of Rs.15,000/- (Rupees Fif- teen Thousand Only) is awarded towards conveyance.
An amount of Rs.20,000/- (Rupees Twenty Thou- sand Only) is further awarded towards special diet.
Claim towards Medical Bills It has been admitted by the petitioner in his cross-ex- amination that the medical expenses incurred on his medical treatment had been reimbursed by the mediclaim company. In the facts and circumstances, I am of the considered opinion that if medical expenses incurred by the petitioner already stand re- Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.76 of 83 imbursed under the mediclaim policy, reimbursement of the bills again would amount to pecuniary benefit to petitioner which is opposed to objective of compensation under M.V. Act as the principle governing grant of compensation is to place the claimants in almost the same financial position as they were be- fore the accident. Accordingly, petitioner is not entitled to any amount towards medical bills/medical treatment.
Attendant Charges Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 Delhi 558 held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
Further, in the case of United India Insurance Co. Ltd. V/s Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.), value of gratuitous services rendered by family member of the claimant was assessed at Rs.2,000/- per month.
I am of the considered view that even if the gratu- itous services were rendered by some or the other family mem- bers, the claimant cannot be deprived of its benefit on the gain of the tortfeasor. Considering the nature of injuries, compensa- tion of Rs.10,000/- is awarded towards the attendant charges/gratuitous services rendered by the family members (i.e. Rs.2,500/- X 04 months).
49. As discussed above, the overall compensation is tabulated as under:
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.77 of 83 Loss of Income Rs.NIL Pain and suffering Rs.1,25,000/-
Special Diet Rs.20,000/-
Conveyance Rs.15,000/-
Medical Bills/Medical Treat- NIL (already reimbursed under
ment mediclaim policy)
Attendant Charges Rs.10,000/-
TOTAL Rs.1,70,000/-
(Rupees One Lakh Seventy Thousand Only)
The petitioner shall be further entitled to interest @ 9% from the date of filing of claim petition i.e. 21.12.2010 till realization.
50. On realization, out of the compensation amount along with up-to-date interest, 50% shall be released to the peti- tioner and remaining amount of 50% shall be kept in a fixed de- posit in his name with a nationalized bank for a period of two years without the facility of advance, loan or premature withdrawal, with release of quarterly periodical interest in her account.
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51. CASE-H Old Suit No.639/10 New Suit No.357274
1.Kamal Kumar Manchanda S/o Ravi Kumar Manchanda (Father)
2.Preeti Manchanda W/o Sh.Kamal Kumar Manchanda (Mother) Versus Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.78 of 83 Harpal Singh & Ors.
Suit No.639/10 pertains to compensation claim in re- spect of death of Karan Manchanda (minor-aged about 13 years & 04 months approximately) in the accident and the claim peti- tion has been filed by parents/LRs Shri Kamal Kumar Man- chanda and Preeti Manchanda.
52. On the pleadings of the parties, following issues were framed for consideration vide order dated 22.02.2013 by ld. Predecessor:
1. Whether the deceased Shri Karan Manchanda had died due to injuries sustained by him in an accident which took place on 02.06.2010 at about 06.30 AM within the jurisdiction of PS Ambala Sadar, Haryana due to rash and negligent driving of vehicle bearing Regn. No. PB 10C K5038 by respondent No.1?
2. Whether the petitioners are entitled to any compen-
sation, if so, to what amount and from whom?
3. Relief.
53. In support of the claim petition, petitioner no. 1 Ka- mal Kumar Manchanda was examined as PW1.
PW1 Shri Kamal Kumar Manchanda testified on the lines of claim petition and proved death report of deceased Karan Manchanda (Ex.PW1/1), death certificate of deceased Karan Manchanda (Ex.PW1/2), educational and commemora- tion certificates of deceased Karan Manchanda (Ex.PW1/3-colly Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.79 of 83 6 pages), copy of election identity card of petitioner no. 2 Preeti Manchanda (mother of deceased) Ex.PW1/4) and copy of his voter's identity card (Ex.PW1/5).
On cross-examination, he stated that he was travelling in the mini bus on the day of accident. Further, he was seated on one of the rear seats of the bus at the time of accident and as a result of rash and negligent driving of the bus, passengers had requested the driver to drive carefully but he continued driving in the same manner. Further, he had noticed the truck colliding with the truck only on accident. He denied the suggestion that accident had taken place due to rash and negligent driving of the bus only.
54. Issue No. (ii) Whether the petitioners are entitled to any compen- sation? If so to what amount and from whom?
The method of calculation of compensation in accident claim cases involving death of children in Motor Vehicles Acci- dent has been clarified in MAC Appeal No.554/10 Chetan Mal- hotra vs. Lala Ram along with fifteen other appeals decided by Hon'ble Mr. Justice R.K.Gauba on 13.05.2016 which have been quoted earlier in para 29 and are not repeated herein for sake of brevity.
55. It may further be observed that MAC Appeal No.250/13 decided along with MAC Appeal No.554/10 Chetan Malhotra vs. Lala Ram (supra) involved death of a 11 years old Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.80 of 83 child namely Mukesh in an accident on 24.09.2007. Para 82 of the judgment referred to above gives a clear illustration for cal- culation of compensation and may be beneficially quoted.
" There is no case for any higher consideration. The death had occurred on 24.09.2007 and therefore, the CII for the financial year 2007-2008 (i.e. 551) would apply. As the age of the deceased child will 11 years, the multi- plier of 15 would be appropriate. The inflation-corrected notional income thus comes to (Rs.15,000/- X 551/331) Rs.24,969/-, rounded off to Rs.25,000/-. After deducting 1/3rd and on the multiplier of 15, the pecuniary loss to es- tate is computed as (Rs.25,000/-X 2/3 X 15) Rs.2,49,999/- rounded off to Rs.2,50,000/-. Adding the similar amount towards composite non-pecuniary dam- ages, the total compensation payable in this case comes to Rs.5,00,000/-. Following the reasons set out in the context of the preceding cases, the rate of interest is in- creased to 9% p.a."
56. It may be noticed that the present case is not a case for assessment of higher consideration in respect of deceased Karan Manchanda on account of any exceptional qualifications. The death had occurred on 02.06.2010 and therefore, the CII for the financial year 2010-2011 (i.e. 711) would apply. The age of the deceased was 13 years 04 months & 12 days approximately as per the certificate issued by Goodley Public School (Ex.PW1/3). The same is not disputed by counsel for respon- dents and the multiplier of 15 would be appropriate as applica- ble in cases for children in between bracket of 10 to 15 years. The inflation-corrected notional income thus comes to Rs.32,220.54 (i.e. Rs.15,000/- X 711/331) (33,000/-). After de- ducting 1/3rd and on the multiplier of 15, the pecuniary loss to Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.81 of 83 estate is computed as Rs.3,30,000/- (i.e. Rs.33,000/-X 2/3 X 15). Adding the similar amount towards composite non-pecuniary damages, the total compensation payable in this case comes to Rs.6,60,000/-. The petitioner shall be further entitled to interest @ 9% from the date of filing of claim petition i.e. 21.12.2010 till realization.
57. On realization, out of the award amount along with up-to-date interest, petitioner no. 1 & 2 shall be apportioned 50% each. Further, out of their respective shares 25% shall be released to them and remaining 75% each of their shares shall be kept in three fixed deposits of equal amount in their names with a nationalized bank for a period of one year, two years & three years respectively without the facility of advance, loan or premature withdrawal with release of quarterly peri- odical interest in their respective accounts.
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58. Liability to pay compensation/Relief The liability to pay the compensation has been ap- portioned 50% each on the part of the driver/owner/insurer of truck No.PB-10CK-5038 AND insured/insurer of mini bus No.PB-01-9103 in Issue No.1. Since both the vehicles were insured at the time of accident, Respondent No. 3 ICICI Lombard General Insurance Company Ltd. (insurer of truck No.PB-10CK-5038) AND Respondent No.5 National Insurance Company Ltd. (insurer of mini bus No.PB-01- 9103) are directed to deposit the award amount as calculated Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.82 of 83 in respective cases above along with interest @ 9% per an- num from the date of filing of claim petitions till realization with Nazir of this Court within 30 days under intimation to the petitioner/s, failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Driver/owner/insurer of truck No.PB-10CK-5038 AND insured/insurer of mini bus No.PB-01-9103 are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount with the Tribunal to the claimants and complete details in respect of calculations of interest etc. in the court within 30 days from today.
A copy of this judgment be sent to Respondent No.3/ICICI Lombard General Insurance Company Ltd. (insurer of truck No.PB-10CK-5038) as well as Respondent No.5 National Insurance Company Ltd. (insurer of mini bus No.PB- 01-9103) for compliance within the time granted.
Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
Announced in open court (Anoop Kumar Mendiratta) on 29th September, 2016 Judge MACT-1 (Central), Tis Hazari Courts, Delhi.
Suit No.607/10, 608/10, 609/10, 636/10, 637/10, 638/10 & 639/10 Page No.83 of 83