Delhi District Court
Ravi Kumar vs Jagtar Singh on 22 January, 2016
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No.531/11
Unique Case Identification No.02401C-1264532008
1. Ravi Kumar
S/o Shri Vijay Kumar Sehdev
R/o WZ-84, Gali No.27, MBS Nagar,
Tilak Nagar, Delhi.
........PETITIONER
Versus
1. Jagtar Singh, S/o Shri Jagjit Singh,
R/o Dhobinala Road, Dimapur, Nagaland
Also at :
Through its Incharge Station Supervisor,
Punjab Roadways, Taran Taran Depot, Punjab.
(Driver/Bus)
2. Punjab Roadways
Through its Principal Officer
Office at:
Taran Taran Depot, Punjab
Also at: MGMT Co. Ltd. Chandigarh, Punjab
(Owner/Bus)
3. National Insurance Company Ltd.
Regional Office at :
124, Level 4, Jeevan Bharati Building,
Tower-2, Connaught Place, Delhi.
(Insurer/Tavera)
.......RESPONDENTS
Date of filing of claim petition : 24.03.2007
Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 1 of 42
Arguments heard on : 21.01.2016
Award passed on : 22.01.2016
JUDGEMENT
1. Present claim petition has been preferred by the petitioner under Section 166 and 140 of Motor Vehicles Act 1988 (hereinafter referred to as 'the Act') claiming compensation of a sum of Rs.10,00,000/- (Rupees Ten Lakh only) in respect of injuries sustained by him in a motor vehicular accident.
In brief, on 31.01.2007 Rohit Arora (since deceased- represented through LRs in Suit No.535/11) along with his friends Sher Singh (petitioner in Suit No.525/11), Ashish Sharma (petitioner in Suit No.526/11), Pawan Raghav (petitioner in Suit No.533/11), Dinesh Chand (petitioner in Suit No.534/11), Avinash Chopra (petitioner in Suit No.520/11), Lakhbir Singh (petitioner in Suit No.532/11), Satish Kumar (petitioner in Suit No.529/11) were going to Jammu from Delhi for Darshana of Mata Vaishno Devi in Tavera car bearing No.DL-4CAD-1252 driven by Ravi (petitioner in present Suit No.531/11). Tavera was hit near Delhi Morh on Jammu-Lakhimpur road by a Punjab Roadways bus bearing No. PB-02S-9939 coming from the opposite side from Jammu which was driven by Respondent No.1 in a rash and negligent manner at a high speed. Consequently, Rohit Arora suffered fatal injuries in the accident while the other occupants of Tavera including petitioner sustained simple/grievous injuries. FIR No.27/2007 Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 2 of 42 dated 31.01.2007 u/s 279/337/304A IPC, PS: Katua, District Katua, J&K was registered regarding the accident.
2. It may be noticed that nine separate claim petitions arising out of the same accident were separately preferred as under:
1. Suit No. 535/11 Harish Arora vs. Jagtar Singh & Ors. (date of filing 28.02.2007)
2. Suit No.520/11- Avinash Chopra vs. Jagtar Singh & Ors.
(date of filing 01.03.2007)
3. Suit No.525/11 - Sher Singh vs. Jagtar Singh & Ors. (date of filing 01.03.2007)
4. Suit No.529/11 - Satish Kumar vs. Jagtar Singh & Ors.
(date of filing 02.03.2007)
5. Suit No.532/11 - Lakhbir Singh vs. Jagtar Singh & Ors.
(date of filing 02.03.2007)
6. Suit No.533/11 - Pawan Raghav vs. Jagtar Singh & Ors.
(date of filing 02.03.2007)
7. Suit No.534/11 - Dinesh Chand Sati vs. Jagtar Singh & Ors.
(date of filing 02.03.2007)
8. Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors.(date of filing 24.03.2007)
9. Suit No.526/11 - Ashish Sharma vs. Jagtar Singh & Ors.
(date of filing 30.04.2007) In the eight suits referred to above (except Suit No. 531/11 filed by petitioner titled as Ravi Kumar vs. Jagtar Singh & Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 3 of 42 Ors.), Respondent No. 1 Jagtar Singh (driver of offending bus), Respondent No.2 Punjab Roadways (owner of the offending bus), Respondent No.3 Ravi Kumar (driver of Tavera car), Respondent No.4 Vineet Kumar (owner of Tavera car) were initially impleaded as respondents. Subsequently vide application u/o 1 Rule 10 r/w Section 151 CPC, National Insurance Company Ltd. (insurer of Tavera car) was also impleaded as one of the respondents vide order dated 30.04.2007 passed in Suit No.520/11 (Avinash Chopra vs. Jagtar Singh & Ors) and the same has been followed in the remaining seven suits except for present Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. Further, all the suits were consolidated vide order dated 09.03.2010 whereby evidence was directed to be led in the lead case bearing no. 847/08- Harish Arora & Anr. vs. Jagtar Singh & Ors. and a copy of order was accordingly placed in the respective suits.
At the stage of final arguments, cases have been de- consolidated for the purpose of fair assessment of compensation in the respective cases since Respondent No.4 Vineet Kumar (owner of Tavera car) had not been impleaded as respondent in Suit No. 531/11-Ravi Kumar vs. Jagtar Singh & Ors. Also, Ravi Kumar (driver of Tavera car) himself being the petitioner obviously could not have been a respondent in present Suit No.531/11. Also, National Insurance Company Ltd. (insurer of Tavera car) was separately impleaded as Respondent No.3 vide order dated 18.08.2007 in present Suit No.531/11 and the amended memo of parties has been directed to be accordingly placed at the stage of final arguments.
Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 4 of 42 It may also be noticed that in various orders, the presence of Respondent No.3 Ravi Kumar (driver of Tavera) and Respondent No.4 Vineet Kumar (owner of Tavera) stands reflected in routine in present case (i.e. Suit No.531/11-Ravi Kumar vs. Jagtar Singh & Ors.) as a common order was placed on the record of respective files after consolidation of the cases but the same needs to be read in the light of aforesaid factual position, as clarified above.
Further, Respondent No.3 Ravi Kumar (driver of Tavera) and Respondent No.4 Vineet Kumar (owner of Tavera) stand proceeded ex parte during course of proceedings as also reflected in orders dated 03.05.2014 and 25.07.2008 in the eight suits referred to above except the present claim petition.
3. In the separate Written Statements filed on behalf of Respondent No.1 Jagtar Singh/driver of the offending bus No.PB-02S-9939 & Respondent No.2 Punjab Roadways/owner of bus No.PB-02S-9939, it was submitted that the accident took place due to sole negligence and carelessness of the driver of Tavera car No. DL-4CAD-1252. It was denied that the accident took place due to rash and negligent driving of bus No. PB-02S-9939 by Respondent No.1 and the bus was stated to be driven by Respondent No.1 at a normal speed on the correct side. Further, the amount claimed by the petitioners was stated to be excessive and exaggerated.
Perusal of record reveals that Written Statement has not Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 5 of 42 been filed on behalf of National Insurance Company in the present suit. However, since the Written Statement was filed on behalf of National Insurance Company in other connected cases which were consolidated, it may be relevant to reflect the stand of National Insurance Company in the Written Statement filed in other cases. As per stand of National Insurance Company, it was not liable to indemnify the insured until and unless the driver of the Tavera was holding a valid and effective driving licence on the date of accident and was not disqualified from holding the same and the vehicle was being used in conformity with conditions as per proposal form/policy. However, it was admitted that vehicle bearing registration No.DL-4CAD-1252 (Tavera) was insured vide insurance cover note bearing No.361500/31/06/6100001675 from 10.08.2006 to 09.08.2007 in the name of Vineet Kumar. Further, the amount claimed towards compensation was stated to be excessive. It was also submitted that insurance company is not liable since the accident took place due to sole negligence of Respondent No. 1 Jagtar Singh who was driving the bus at a high speed in violation of traffic rules.
4. It may be observed that at the stage of final arguments, it was noticed that issues had not been framed in the present case though evidence had been led after consolidation by ld. Predecessor. In the facts and circumstances, For purpose of present proceedings, following issues were formally framed on record for disposal at the stage of final arguments. However, the counsels did not wish to lead any further evidence after the issues Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 6 of 42 were framed on record.
(i) Whether the petitioner received injuries in road side accident due to rash and negligent driving of vehicle No.PB-02S-9939 by R1?
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
5. In support of the claim, petitioner relied upon statement of PW1 ASI Najir Ahmed, PS: Kathua Kotwal, Distt. Kathua, J&K; PW2 Harish Arora (father of deceased Rohit Arora); PW3 Avinash Chopra; PW4 Lakhbir Singh; PW5 Sher Singh; PW6 Dinesh Chand Sati; PW7 Satish, PW7 Pawan Raghav (re- numbered as PW7A), PW8 Ravi Kumar and PW9 Ashish Sharma led in lead case.
PW1 ASI Najir Ahmed, PS Kathua Kotwal, Distt. Kathua, J&K on the basis of the record of the criminal case pertaining to FIR No.27/07 dated 31.01.2007 proved copy of FIR (Ex.PW1/1) and its English translation (Ex.PW1/2), copy of Site Plan (Ex.PW1/3) and its English translation (Ex.PW1/4), copy of DD entry (Ex.PW1/5) and its English translation (Ex.PW1/6), copy of receipt of dead body and belongings of deceased Rohit Arora (Ex.PW1/7) and its English translation (Ex.PW1/8), Superdaginama of bus (Ex.PW1/9) and its English translation (Ex.PW1/10), Mechanical Inspection Report of bus Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 7 of 42 No.PB-02S-9939 (Ex.PW1/11) and its English translation (Ex.PW1/12), copy of DL driver of the offending bus of Jagtar Singh (Ex.PW1/13), copy of RC of offending bus (Ex.PW1/14) and copy of postmortem report (Ex.PW1/15).
PW1 further proved discharge card in respect of injured Ashish Sharma (Ex.PW1/16) and prescription slip issued by the treating physician (Ex.PW1/17).
PW2 Shri Harish Arora, father of deceased Rohit Arora (petitioner in Suit No.535/11) testified on the lines of claim petition bearing Suit No.535/11 and proved the photocopy of ration card (Ex.PW2/1), photocopy of I-card of deceased issued by the employer (Ex.PW2/2), photocopy of educational certificates of deceased (Ex.PW2/3) and photocopy of Voter's I-card of deceased (Ex.PW2/4).
During cross-examination, he clarified that he was not an eyewitness to the accident. He further deposed that deceased Rohit Arora was unmarried and aged about 21 years at the time of accident. He further admitted that he had no documentary proof as to the employment and earning of the deceased though he was stated to be employed and earning Rs. 5,500/- per month.
PW3 Avinash Chopra (petitioner in Suit No.520/11 and whose affidavit is placed in Suit No.520/11) testified on the lines of the claim petition and proved copy of his Election I-card (Ex.PW3/1), copy of ration card (Ex.PW3/2), discharge card Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 8 of 42 containing 10 pages (Ex.PW3/3), OPD tickets (Ex.PW3/4), copy of MLC (Ex.PW3/5), medical bills containing 11 pages (Ex.PW3/6) and copy of education documents containing 3 pages (Ex.PW3/7).
During cross-examination, he stated that there were nine persons including the driver in the Tavera car bearing No. DL-4CAD-1252 and the same was driven by Ravi. Further, he was sitting on the front seat of the Tavera along with the driver and rest of the persons were sitting behind him. He further stated that he sustained collar bone fracture of right shoulder, grievous injuries on abdomen, abrasions on neck and upper part of the body and one of the occupants of the Tavera sustained fatal injuries. He further stated that he remained admitted from 31.01.2007 to 09.02.2007 at Government Hospital Jammu and thereafter from 12.02.2007 to 17.02.2007 at Dr. Ram Manohar Lohia Hospital.
PW4 Lakhbir Singh (petitioner in Suit No.532/11) testified on the lines of the claim petition and proved copy of his driving licence (Ex.PW4/1), observation sheet containing four pages (Ex.PW4/2), bills (colly Ex.PW4/3), medical prescription containing two pages (Ex.PW4/3A), MLC (Ex.PW4/4) and educational qualification documents (Ex.PW4/5).
During cross-examination, he clarified that he had studied B.Com, LLB and had suffered grievous injuries on the forehead which required eighteen stitches. Further, he also suffered fracture of right shoulder, fracture of right knee and abrasions on other parts of the body. He further deposed that he had undertaken treatment after preparation of MLC at Government Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 9 of 42 Hospital, Jammu and at DDU Hospital, Delhi and the treatment continued for about three to four months.
PW5 Sher Singh (petitioner in Suit No.525/11) testified on the lines of claim petition and proved copy of driving licence (Ex.PW5/1), copy of medical summary & MLC (Ex.PW5/2) and copy of educational documents (Ex.PW5/3).
During cross-examination, he stated that his treatment was carried at Government Medical College Jammu and thereafter at Verma Nursing Home at Delhi.
PW6 Dinesh Chand Sati (petitioner in Suit No. 534/11) testified on the lines of claim petition and proved copy of driving licence (Ex.PW6/1), copy of medical summary & MLC (Ex.PW6/2) and discharge card (Ex.PW6/3), medical prescription cum bill (Ex.PW6/4) and documents of educational qualification (Ex.PW6/5).
During cross-examination, he clarified that he had passed his 12th class but had not brought the certificate. He further stated that he had placed some of the bills available with him on record but the rest of the bills were not traceable and denied the suggestion that expenses of Rs.30,000/- were not incurred on medical treatment. He further stated that he had no documentary proof as to the earning of Rs.5,500/- per month.
PW7 Satish (petitioner in Suit No.529/11) testified on the lines of claim petition and proved copy of his Election I-card Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 10 of 42 (Ex.PW7/1), medical summary & MLC (Ex.PW7/2) and documents of educational qualification (Ex.PW7/3).
During cross-examination, he denied the suggestion that expenses of Rs.15,000/- were not incurred on medical treatment along with expenses on conveyance, special diet and nursing, as claimed. He further admitted that he had no documentary proof as to the earning of Rs.6,000/- per month. He also denied the suggestion that he had not remained bed ridden for about five months due to accidental injuries.
PW7 Pawan Raghav (re-numbered as PW7A vide order dated 22.12.2015) (petitioner in Suit No.533/11) testified on the lines of claim petition and proved copy of his driving licence (Ex.PW7/1), patient observation sheet (Ex.PW7/2), attested copy of medical summary (Ex.PW7/3), copy of I-card issued by his employer (Mark X), original salary/appointment letter running into 4 sheets (Ex.PW7/4 colly) and documents of educational qualification (Ex.PW7/5).
PW8 Ravi Kumar (petitioner in Suit No.531/11) testified on the lines of claim petition and proved copy of driving licence (Ex.PW8/1), copy of Election I-card and ration card (Mark X & Y), copy of document of educational qualification (Mark Z), copies of some original medical prescriptions and observation sheets (Ex.PW8/2 colly) and original medical bills(Ex.PW8/3 colly).
During cross-examination, he proved permanent Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 11 of 42 disability certificate (Ex.PW8/DA). He denied the suggestion that medical record produced on record is fake and fabricated and he was not employed and earning as stated in his affidavit.
PW9 Ashish Sharma (petitioner in Suit No.526/11) testified on the lines of claim petition and proved copy of his PAN card (Ex.PW9/1), original medical treatment record (Ex.PW9/2- colly 2 sets), original estimate of future medical expenses (Ex.PW9/3) and copy of documents of educational qualification running into two sheets (Ex.PW9/4 colly).
During cross-examination, he admitted that he had not placed on record any proof of salary @ Rs.8,000/- per month. He further admitted that he had no other bills for treatment except which had been placed on record.
Respondent No.1 driver of the offending vehicle Jagtar Singh examined himself as R1W1 and testified on the lines of written statement.
During cross-examination, he stated that he could not tell as to what had been written in his affidavit which was filed by way of evidence for purpose of examination-in-chief. He admitted that he was driving the bus on the date of accident and FIR No. 27/07 is pending adjudication at Katua Courts. Further, he had been named as accused in the chargesheet being the driver of the offending bus. He further clarified that the offending bus was seized by the police in FIR No.27/07 and admitted that he had not filed any protest petition against the FIR in question.
Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 12 of 42 Evidence was not led on behalf of remaining respondents.
6. I have heard arguments addressed by the counsel for the parties and perused the record.
My Issue-wise findings are as under :-
(i) Whether the petitioner received injuries in road side accident due to rash and negligent driving of vehicle No.PB-02S-9939 by R.1?
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 inquiry to determine compensation which must appear to it to be just. Strict rules of Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 13 of 42 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 Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 14 of 42 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 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, testimony of PW3 to PW9 who were occupants of Tavera car and suffered injuries in the accident is categorical to the effect that Punjab Roadways bus No. PB-02S-9939 coming from opposite side in violation of lane driving abruptly jumped to the lane of Tavera without any signal Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 15 of 42 resulting in unfortunate accident and injuries to the occupants of Tavera car. The testimony on the point of rash and negligent driving on the part of offending bus could not be dented during cross-examination of any of the witnesses and has remained uncontroverted on record.
It may further be noticed that though Respondent No. 1 Jagtar Singh led his evidence as R1W1 but during cross- examination he admitted that he was even not aware as to what had been written/testified in the affidavit which was tendered in examination-in-chief. He also admitted that the chargesheet had been filed against him with reference to FIR No.27/07 which is pending adjudication at Kathua Courts. It is also pertinent to observe that Respondent No.1 did not file any complaint regarding false implication by the police. In the facts and circumstances, it appears to be a last ditch effort by Respondent No.1 to shift the liability and I do not find any cogent grounds to rely upon his testimony.
Since the negligence is to be determined on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition, it has been proved on record that the accident was caused due to rash and negligent driving by driver of offending bus bearing registration no. PB-02S-9939. Issue No. 1 is accordingly decided in favour of the petitioner.
7. Issue No. (ii) Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 16 of 42 Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
In a petition u/s 166 Motor Vehicles Act, 1988, the Claim Tribunal is to award full and fair compensation.
In Raj Kumar v. Ajay Kumar & Anr., 2011 Volume 1, ACJ 1, Hon'ble Supreme Court of India observed that the object of awarding damages is to make good the loss suffered as a result of the wrong done as far as money can do in a fair, reasonable and equitable manner. Paras 4 and 5 of the judgment are further extracted below as the same explains the various heads under which the compensation is to be assessed:-
"4. The provision of the Motor Vehicles Act, 1988 ('the Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 17 of 42 as he used to earn or could have earned. [See C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, R.D. Hattangadi v. Pest Control (India) (P) Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467.
5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 18 of 42 medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
Now the important factors relevant for calculation of compensation consequent to accidental injuries sustained by the petitioner may be considered.
LOSS OF EARNING CAPACITY For purpose of assessing the loss of earning capacity, the income of the petitioner/injured needs to be assessed along with the functional disability suffered by him due to the injuries sustained in the accident.
(a) Criteria for taking income of the petitioner Counsel for petitioner claimed that petitioner was working as a skilled driver and earning about Rs.4,500/- per month.
Admittedly, no document has been placed on record to prove that petitioner was earning an amount of Rs.4,500/- per month as a driver. However, it cannot be disputed that petitioner was skilled to drive a vehicle since he was possessing a valid and effective driving licence for LGV. Though the petitioner has also claimed that he was a matriculate but the documents have not been proved in accordance with law. In the facts and circumstances, I am of the considered view that notional income of the petitioner for the purpose of assessment of compensation is to be assessed on the basis of minimum wages of a skilled worker @ Rs.3,736/- per Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 19 of 42 month as notified by Government of NCT of Delhi for the relevant period.
(b) If addition in income towards future prospects is to be made Counsel for petitioner urged that addition towards future prospects be made by 50% while assessing the income of petitioner but the same has been opposed by counsel for insurance company.
It may be observed that in Shashikala & Ors. v. Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC), separate judgements were passed by Hon'ble Mr. Justice R. Banumathi and Hon'ble Mr. Justice V. Gopala Gowda on the point of assessment of addition to the income of the deceased towards the future prospects in case of salaried persons vis-a-vis where the deceased was self employed or on fixed wages. The case was directed to be placed before the Hon'ble Chief Justice of India for appropriate orders towards constitution of a suitable larger Bench since the issue already stood referred to a larger Bench in the case of National Insurance Company Ltd. v. Pushpa S.L.P. (C) No. 16735/2014. Hon'ble Apex Court in aforesaid case adverted to the judgements passed in Reshma Kumar & Ors. v. Madan Mohan & Anr., VII (2013) S.L.T. 489 (rendered on 2nd April, 2013) and Rajesh vs. Rajbir Singh, (2013) 9 S.C.C. 54 (rendered on 12th April, 2013 in which the judgement passed in Reshma Kumari's case was not noticed). Reference was also made to Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 20 of 42 the judgements passed in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., 162 (2009) D.L.T. 278, Santosh Devi v. National Insurance Co. Ltd. & Ors., 2012 6 S.C.C. 421, Sanjay Verma v. Haryana Roadways, (2014) 3 S.C.C. 210, National Insurance Co. Ltd. v. Pushpa, S.L.P. (C) No. 16735/2014 (whereby the matter in relation to future prospects was referred to larger Bench). It may further be noticed that Hon'ble Apex Court in Shashikala's case did not provide addition towards future prospects pendente lite the aforesaid issue, wherein the deceased was an income tax payee carrying business of newspapers and had relied upon Income Tax Returns for the Assessment Years 2005-06 and 2006-07.
In the aforesaid context, reliance may be further placed upon MAC 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court) wherein the judgements passed by the Hon'ble Apex Court in Munna Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors., Civil Appeal No.4497 of 2015 decided on 15.05.2015 {II (2015) ACC 806 (SC)} was also duly referred but the addition towards future prospects was denied in the absence of any evidence of bright future prospects. Reliance was therein placed upon Reshma Kumari & Others vs. Madan Mohan & Anr. (2013) 9 SCC 65 and HDFC Ergo General Insurance Company Ltd. vs. Smt. Lalta Devi & Others MAC APP No.189/2014 decided on 12.01.2015.
The observations made by the Hon'ble High Court on the aspect of addition of future prospects as discussed in para 21 to Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 21 of 42 23 of MAC No. 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 (supra) may be beneficially quoted:
21. As far as future prospects are concerned, there is no evidence on record that the deceased had bright future prospects. The question of grant of future prospects was dealt with by this Court at great length in HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors., MAC APP No. 189/2014, decided on 12.01.2015. Paras 8 to 21 of the report in Lalta Devi (supra) are extracted hereunder:
8.It is no gainsaying that in appropriate cases some addition towards future prospects must be made in case of death or injury of a person pursuing a professional course. At the same time, it cannot be laid down as a uniform principle that every person pursuing professional course will have a bright future. There may be a student pursuing engineering from the reputed engineering colleges like Indian Institute of Technology (IIT), Regional Engineering College or any other reputed college. At the same time, a number of engineering Colleges have mushroomed where an engineering graduate may find it difficult to secure a job of an engineer. In the instant case, deceased Aditya, as stated earlier was a student of an unknown engineering college, i.e. Echelon Institute of Technology, Faridabad which is claimed to be affiliated to Maharshi Dayanand University, Rohtak. The Claimants have placed on record result-cum-detailed marks card of First and Second Semester. It may be noted that the deceased had secured just ordinary marks in seven subjects and he had to re-appear in papers 1002 (Mathematical-
Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 22 of 42 I), 1006 (Foundation of Computer & Programming) and 1008 (Basics of Mechanical Engineering). Similarly, in the Second Semester the deceased was absent in one of the 12 papers and out of 11 subjects for which he had taken examination, he was to re-appear in four subjects. Thus, it will be difficult to say that the deceased was a brilliant student or that he was pursuing engineering from a well known or even mediocre college.
"7. As far as addition towards future prospects is concerned, the issue has been examined at great length by this Court in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. (supra). Paras 9 to 21 of the report in Lalta Devi are extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench decision of the Supreme Court in Rajesh & Ors. v. Ra-
jbir Singh & Ors., (2013) 9 SCC 54 to con-
tend that the future prospects have to be added in all cases where a person is getting fixed wages or is a seasonal employee or is a student.
10. It is urged by the learned counsel for the Claimants that the law laid down in Sarla Verma (Smt.) & Ors. v. Delhi Transport Cor- poration & Anr., (2009) 6 SCC 121 was extended in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extended in all cases.
11. On the other hand, the learned counsel for the Insurance Company refers to a three Judge Bench decision of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while ap-
proving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors.
(supra) and relying on General Manager, Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 23 of 42 Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; Sarla Dixit v. Bal-
want Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geologi- cal Survey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under:-
"38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v.
DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002], this Court has noted the earlier deci-
sions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002] , SCC p.
134):
"24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addi- tion of 50% of actual salary to the ac- tual salary income of the deceased to- wards future prospects, where the de- ceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words „actual salary‟ should be read as „actual salary less tax‟). The ad- dition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 24 of 42 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standard- ise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-em- ployed or was on a fixed salary (with- out provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circum- stances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We ap-
prove the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 25 of 42
12. The learned counsel for the Insurance Company relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr.
v. State of Maharashtra & Anr., (2005) 2 SCC 673; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 to contend that in case of divergence of opinion in judgments of benches of co-equal strength, earlier judgment will be taken as a binding precedent.
13. It may be noted that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a reference made by a two Judge Bench (S.B. Sinha and Cyriac Joseph, J.J.). The two Hon'ble Judges wanted an authoritative pro- nouncement from a Larger Bench on the ques- tion of applicability of the multiplier and whether the inflation was built in the multipli- er. The three Judge Bench approved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selection of multiplier. It further laid down that addition towards future prospects to the extent of 50% of the actual salary shall be made towards future prospects when the deceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 40-50 years. No addition towards fu- ture prospects shall be made where the de- ceased was self-employed or was getting a fixed salary without any provision of annual increment.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Rajesh relying on Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (6) SCC 421 ob-
served that there would be addition of 30% and 50%, depending upon the age of the de-
Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 26 of 42 ceased, towards future prospects even in the case of self-employed persons. It may, how- ever, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lord- ships.
15. The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under:-
"14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 : (2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044], a two-Judge Bench of this Court while consider- ing the following questions took the view that the issue(s) needed resolution by a larger Bench: (SCC p. 425, para 10) "(1) Whether the multiplier specified in the Second Schedule appended to the Act should be scrupulously ap-
plied in all the cases?
(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards determination of future prospects?"
15. Answering the above reference a three- Judge Bench of this Court in Resh-
ma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 :
(2013) 3 SCC (Cri) 826] (SCC p. 88, para 36) reiterated the view taken in Sar- la Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002] to the effect that in respect of a person who was on a fixed salary without provision for annual increments or who was self-employed the actual income at the time of death should Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 27 of 42 be taken into account for determining the loss of income unless there are extraordi-
nary and exceptional circumstances.
Though the expression "exceptional and extraordinary circumstances" is not ca- pable of any precise definition, in Shakti Devi v. New India Insurance Co. Ltd.
[(2010) 14 SCC 575 : (2012) 1 SCC (Civ) 766 : (2011) 3 SCC (Cri) 848] there is a practical application of the aforesaid principle. The near certainty of the regular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of income by taking into account the possi-
ble future earnings. The said loss of in-
come, accordingly, was quantified at double the amount that the deceased was earning at the time of his death."
16. Further, the divergence of opinion in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v.
Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another lat- est judgment in National Insurance Company Ltd. v. Pushpa & Ors., CC No.8058/2014, de- cided on 02.07.2014 and in concluding para- graph while making reference to the Larg- er Bench, the Supreme Court held as under:-
"Be it noted, though the decision in Resh- ma (supra) was rendered at earlier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as regards the manner of addition of in-
come of future prospects there should
be an authoritative pronouncement.
Therefore, we think it appropriate to
refer the matter to a larger Bench."
Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 28 of 42
17. Now, the question is which of the judg- ments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18. In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under:-
"12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having ex- amined the law laid down by the Consti- tution Benches in the abovesaid deci- sions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2) [Ed.: Para 12(2) corrected vide Official Corrigendum No. F.3/Ed.B.J./21/2005 dated 3- 3-2005.] A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, where-
upon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) [Ed.: Para 12(3) corrected vide Official Corrigendum No. F.3/Ed.B.J./7/2005 dated Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 29 of 42 17- 1-2005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previ- ous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghu- bir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as under:-
"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judicata, we are to observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a co-
ordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regard-
ing the interpretation of Section 2(c) of the Act and its application to the peti- tion schedule property, judicial disci- pline and practice required them to re- fer the issue to a larger Bench. The learned Judges were not right in over- ruling the statement of the law by a co- ordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 30 of 42 considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the de- cision of the Co- ordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Co-ordinate strength can only make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under:-
"9. It may be noted that the decision in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] . It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the sub- sequent Bench of equal strength. Since, the decision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98] , the latter de-
cision is a judgment per incuriam. The decision in S.N. Narula case [(2011) 4 SCC 591] was binding on the subse-
quent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court."
21.This Court in New India Assurance Co.
Ltd. v. Harpal Singh & Ors., MAC APP.
138/2011, decided on 06.09.2013, went into this question and held that in view of the re- port in S.K. Kapoor (supra), the three Judge Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 31 of 42 Bench decision in Reshma Kumari & Ors.
(supra) shall be taken as a binding prece- dent."
21.In the instant case, the deceased's actual or potential income is taken as Rs.20,000/- per month. Even if it is taken that the deceased was working with 'Dainik Janwani Samachar Patra', there was no evidence with regard to his good future prospects or that the deceased was in permanent employment.
22.Thus, in absence of any evidence of good future prospects, no addition towards future prospects ought to have been made by the Claims Tribunal."
In view of the legal position as discussed by the Hon'ble High Court and in absence of any evidence with regard to good future prospects of petitioner, addition of income towards future prospects cannot be made for the purpose of compensation.
(c) Functional Disability Counsel for petitioner urged that for purpose of assessment of compensation, functional disability may be assessed at 15% as assessed by the Medical Board as per Ex.PW8/DA.
It may be observed that in certain cases the permanent disability may not impact the earning capacity of the injured/victim and in such cases the victim may not be entitled to compensation towards loss of capacity on account of disability. However, in other cases even on account of less permanent disability, an injured may be completely incapacitated to carry out his vocation and as such the functional disability may be more than the actual Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 32 of 42 disability suffered by the injured/victim. The Hon'ble Supreme Court of India has elucidated with an example that if the left hand of claimant, who is driver by profession is amputated, the actual loss of earning capacity may be virtually 100%.
The observations of the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar, (supra) whereby the methodology for determining the functional disability has been discussed in paragraph 14 may be quoted:-
"14. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 33 of 42 is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical function; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 34 of 42 under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."
In the instant case, petitioner has relied upon Disability Certificate (Ex.PW8/DA) issued by Medical Board, Deen Dayal Upadhyay Hospital, New Delhi whereby it has been observed as under:
"A case of post traumatic stiffness at right shoulder & right wrist with scarring wit 15% (Fifteen) of permanent physical disability in relation of right upper limb. This disability is permanent in nature."
Admittedly, the petitioner was a skilled driver prior to accident and in possession of a valid and effective driving licence. Amputation of finger and disability suffered by him as stated above has considerably affected his ability to work as a professional driver. However, at the same time it needs to be considered that despite aforesaid disability, petitioner may be able to carry any other job and is not completely disabled to perform some other job and earn his livelihood. In the facts and circumstances of the present case, the functional disability is assessed at 15%.
As per copy of Driving Licence placed on record, the date of birth of petitioner is reflected as 01.05.1983 which has not Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 35 of 42 been disputed by counsel for insurance company. As such, the age of petitioner on the date of accident was about 23 years 09 months approximately. In view of Sarla Verma & Ors. v/s Delhi Transport Corporation 2009, ACJ 1298, the relevant multiplier of 18 is applicable for the purpose of assessment in the present case.
The compensation is accordingly assessed towards loss of earning capacity at Rs.1,21,046.40 {i.e. Rs.3,736/- (minimum wages of a skilled worker) X 12 (months) X 15% (functional disability) X 18 (applicable multiplier according to age) (rounded off to Rs.1,21,046/-)}.
(d) Loss of Income on account of accident Counsel for petitioner contended that immediately after the accident, petitioner remained admitted from 31.01.2007 to 04.02.2007 at Medical College Hospital, Jammu and thereafter from 05.02.2007 to 10.02.2007 at Sehgal Nursing Home, Meera Bagh, Outer Ring Road. Further, consequent upon the accidental injuries, petitioner could not attend his work for a period of about six months.
Considering the nature of injuries and disability suffered by petitioner as stated above, it can be reasonably presumed that on account of fracture and disability the petitioner may not have been in a position to carry any work for a period of about 05 months.
In the facts and circumstances, petitioner is accordingly awarded damages of Rs.18,680/- for the period of 05 months for Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 36 of 42 which he was not able to perform his job i.e. [Rs.3,736/- (notional income for one month) X 05 months= Rs.18,680/-].
(e) Loss of amenities of life and Deformity due to Permanent Disability The amount of compensation towards amenities should be to bring amenities and restoration of health to the petitioner. In the facts and circumstances, considering the injuries/permanent disability of 15% suffered by the petitioner in right upper limb, he is awarded a sum of Rs.80,000/- (Rupees Eighty Thousand only) on account of loss of amenities, expectation of life and deformity.
(f) Pain and Suffering & Mental Agony As the petitioner suffered permanent disability of 15% in respect of his right upper limb, he remained incapacitated from performing normal activities. In view of above, petitioner is entitled to a sum of Rs.80,000/- towards pain and suffering and mental agony.
(g) Medicines and Medical Treatment Counsel for petitioner submits that a sum of Rs.41,877/- was spent towards medical expenses which is not disputed on behalf of the respondents. Therefore, a sum of Rs. 41,877/- is awarded to the petitioner towards medicines and medical treatment.
(h) Conveyance & Special Diet Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 37 of 42
Though no conveyance bills from Jammu to Delhi have been filed on record but it can be presumed that petitioner must have spent some amount for purpose of conveyance for shifting from Jammu to Delhi after the accident. In view of above, an amount of Rs.4,000/ is awarded towards transportation charges from Jammu to Delhi. Petitioners is further awarded an amount of Rs.15,000/ towards conveyance during the period of treatment.
Petitioner is also awarded an amount of Rs.20,000/- towards special diet.
(i) 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 gratuitous services were rendered by some or the other family members, the claimant cannot be deprived of its benefit on the gain of the tortfeasor. Considering the nature of injuries, the compensation of Rs.12,500/- is awarded in lump-sum towards the attendant Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 38 of 42 charges/gratuitous services rendered by the family members (i.e. Rs.2,500/- X 5 months).
8. As discussed above, the overall compensation is tabulated as under:
Loss of Earning Capacity Rs.1,21,046/- Loss of Income on Account of accident Rs.18,680/- Loss of amenities of life and deformity Rs.80,000/-
Pain and Suffering Rs.80,000/-
Medicines & Medical Treatment Rs.41,877/-
Transportation from Jammu to Delhi Rs.4,000/-
Conveyance Rs.15,000/-
Special Diet Rs.20,000/-
Attendant Charges Rs.12,500/-
-----------------
Total Rs.3,93,103/-
-------------------
(Rupees Three Lakh Ninety Three Thousand One Hundred & Three Only) The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 24.03.2007 till realization.
9. For the purpose of disbursement, on realization, an amount of Rs.1,50,000/- shall be released to petitioner and the remaining amount along with up-to-date interest shall be kept in five fixed deposits of equal amount in his name for a period of Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 39 of 42 one year, two years, three years, four years and five years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in his account.
10. Liability On the point of contributory negligence, observations of the Hon'ble Apex Court in Municipal 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 negligence and both would be blamed. In a case of contributory negligence, the crucial question on which the liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence 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 accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory 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 materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. [See Charesworth on Negligence, 3rd Edn., para 328]. It is now well settled that in case of contributory negligence, courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damages 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."
Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 40 of 42 However, in the present case, it has not been established if there was any contributory negligence on the part of the petitioner. The accident has been proved to be caused due to sole negligence of the offending bus.
Accordingly, in the present case it is held that the liability to satisfy the claim shall be jointly and severally on the part of Respondent No.1 & 2 who are the driver and owner of the offending bus.
10. Relief In the facts and circumstances, Respondent No.1 & 2 are directed to deposit the award amount of Rs.3,93,103/- with interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 24.03.2007 till realization with Nazir of this Court within 30 days under intimation to the petitioner, failing which they shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
A copy of this judgement be sent to Respondent No.1 & 2 for compliance within the time granted.
Respondent No.1 & 2 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 claimant and complete details in respect of calculations of interest etc. in the court within 30 days from today.
Nazir is directed to place a report on record in the event Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 41 of 42 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 22nd January, 2016 Judge MACT-1 (Central), Tis Hazari Courts, Delhi.
Suit No.531/11 - Ravi Kumar vs. Jagtar Singh & Ors. 42 of 42