Delhi District Court
Laxmi Devi vs Pramod Kumar on 7 December, 2024
IN THE COURT OF MS. MAYURI SINGH
PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL, EAST,
KARKARDOOMA COURTS, DELHI
____________________________________________________
In the matters of:
(i) MACP No.841/19
CNR No. DLET01-009098-2019
Laxmi Devi vs. Pramod Kumar & Ors.
(ii) MACP No.842/19
CNR No. DLET01-009099-2019
Laxmi Devi & Ors. Vs. Pramod Kumar & Ors.
MACP No.841/19
1. Laxmi Devi
W/o late Sh. Rohtash Goyal
R/o H. No.18/126, Trilok Puri,
Delhi-91 ......Petitioner
Versus
1. Pramod Kumar (Driver)
S/o Sh. Ram Chander
R/o Village Bhudiya Bhud (Karhola)
P.S. Jalalabad, District Sahjanpur, U.P.
2. Kaval Kant Hasij (Owner)
S/o Sh. Shiv Dayal Hasija
R/o H. No.1D-32A, (near Hardware Chowk)
NIT-1, Faridabad, District-Faridabad, Haryana.
3. M/s National Insurance Co.Ltd.
302, Mangalam Place, Sector-3, Rohini,
Delhi-85 ....Respondents
_____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 1 of 30 MACP No.842/19
1. Laxmi Devi (wife) W/o late Sh.Rohtash Goyal
2. Ravi Kumar Goel (son) S/o late Rohtash Goel Both R/o H. No. 18/126, Trilok Puri, Delhi.
3. Smt. Poonam (daughter) D/o late Rohtash Goel W/o Vinod Aggarwal
4. Smt. Pooja Goel (daughter) D/o late Rohtash Goel W/o Kamal Aggarwal
5. Ms. Meenakshi Goyal (daughter) D/o late Rohtash Goyal R/o H. No. 18/126, Trilok Puri, Delhi. ......Petitioner Versus
1. Pramod Kumar (Driver)
2. Kaval Kant Hasij (Owner)
3. M/s National Insurance Co.Ltd.
(Details mentioned as above) ....Respondents
Date of Institution : 17.10.2019
Date of Reserve of order : Not reserved
Date of pronouncement : 07.12.2024
AWAR D
1. By this common award, two claim petitions bearing MACP Nos.841/19 and MACP No.842/19, filed on behalf of the petitioners seeking compensation under Section 166 of Motor Vehicles Act, 1988, arising out of the same accident, would be decided. _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 2 of 30
2. Briefly stated the facts as narrated by the petitioners are that on 24.09.2018 at about 10:30 p.m., deceased Rohtash Goel alongwith his wife injured Laxmi, one Om Prakash, Smt. Beena and Ravi Goel were coming from Shri Shyam Khatu (Ringus), RajAshthan to Delhi by car and when they reached at Kapdivas Chowk, Gurugram, Haryana, the car was stopped due to heavy traffic ahead. Meanwhile, the offending truck bearing No. HR-38W-2665 came from back side, being driven by R-1 in a rash and negligent manner and hit behind the car of Ravi Goel. Due to this, all occupants in the car sustained grievous injuries and Rohtash and Om Prakash expired on spot, due to multiple grievous injuries sustained by them. Deceased Rohtash was taken to Civil Hospital, Gurugram and injured Laxmi Devi was taken to a local hospital. Deceased was declared brought dead. FIR bearing No. 313/18 u/s 279/ 338/304A IPC was registered on 25.09.2018 at police station Bilaspur. It has been alleged that the accident occurred due to rash and negligent driving of offending vehicle by Respondent No.1. With these submissions, the petitioner in MACP No. 841/19 has claimed compensation of Rs.50 Lakhs while petitioners in MACP No. 842/19 have claimed compensation of Rs. 80 lakhs by way of the present claim petitions.
3. In response to the notice of petition, the Respondent No.3 / insurer appeared and filed its reply/ written statement. R-2 appeared before the Tribunal on 24.02.2020 and sought time to file written statement during the course of the day and also informed the Tribunal that notice has been received by R-1 as well but he could not appear for some unknown reason. Vide order dated 24.02.2020, petitioner(s) were directed to file postal track report for service qua R-1 and same was _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 3 of 30 filed and reflects that the process was served to the addressee/R-1. Vide order dated 08.01.2021, opportunity of R-1 and R-2 to file reply was finally closed. One written statement of R-2 is found on judicial file in both cases but next date of hearing is mentioned on 05.06.2020 but there is no noting made over this written statement and there is nothing on the judicial record to reflect that when was this filed on record. Perusal of order-sheet dated 24.02.2020 reflects that R-2 had submitted before Tribunal that he shall file written statement during the course of the day. Hence, the only conclusion that can be drawn is that Written Statement was filed by R-2 on 24.02.2020 itself.
3(ii). In the written statement filed by the respondent no.2 in both the cases, it is stated that the petitioner has been filed without any basis and same is based on false and frivolous ground and same is filed just to extort money from the respondent No.2. It is further stated that respondent No.2 is the registered owner of the vehicle No. HR-38W-2665 and the vehicle in question was duly insured with the insurance company. Rest of the averments of the petitions are denied by respondent No.2.
3.2 In the written statement filed by the respondent no.3/ insurance company, it is contended that claim amount of Rs.50 Lakhs is highly excessive and when no accident took place due to negligence of the driver of bus or the respondent No. 2, then the question of compensation to be paid jointly and severally by respondents does not arise at all.
4. Upon completion of pleadings of the parties, vide order dated 04.05.2022, following issues were framed:-
_____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 4 of 30 In MACP No. 841/19 (In re: Laxmi Devi Vs. Pramod Kumar & Ors)
i). Whether the petitioner Laxmi Devi suffered grievous injuries in a motor vehicular accident happened on 29.04.2018 at about 10:30 p.m., at Kapdivas Chowk, Gurugram, Haryana, within jurisdiction of PS Bilaspur, due to rash and negligent driving of offending vehicle bearing registration No. HR-38W-2665 (truck), driven by respondent No.1/ Pramod Kumar ? (OPP)
ii). Whether the petitioner is entitled to any compensation, on account of said injuries and if yes, to what extent and from whom? (OPP)
iii). Whether the petitioner is entitled to interest on the award amount, if so, at what rate of interest and for which period?
iv). Relief In MACP No. 842/19 (In re: Laxmi Devi & Ors. Vs. Pramod Kumar & Ors)
(i). Whether husband of petitioner No.1 and father of petitioner No.2 to 5, namely Rohtash Goel, died in a motor vehicular accident happened on 29.04.2018 at about 10:30 p.m., at Kapdivas Chowk, Gurugram, Haryana, within jurisdiction of PS Bilaspur, due to rash and negligent driving of offending vehicle bearing registration No. HR-38W-2665 (truck), driven by respondent No.1/ Pramod Kumar ? (OPP)
(ii) Whether the petitioners are entitled to compensation, on account of said death and if yes, to what extent and from whom? (OPP)
(iii)Whether the petitioners are entitled to interest on the award amount, if so, at what rate of interest and for which period?
(iv) Relief.
5. Both of these two claim cases, arising out of the same accident, were consolidated by learned predecessor vide order dated 29.07.2022 and it was directed that common evidence in both two cases _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 5 of 30 would be recorded and kept in the main case i.e. MACP no. 842/19 titled as Laxmi Devi & Ors. Vs. Pramod Kumar & Ors.
6. In order to prove their cases, the petitioners examined two witnesses as under:
6.1 PW1/Smt. Laxmi, wife of deceased, being an eye-witness as well as victim, examined herself as PW1 and deposed on the strength of her affidavit Ex. PW1/A regarding manner of accident, sustained grievous injuries and fatal injuries suffered by her husband Rohtash Goel and relied upon the following documents:-
• Photocopy of Aadhar card of Petitioner No.4 Pooja is Ex.PW1/1 • Photocopy of Aadhar card of Petitioner No.3 Poonam is Ex.PW1/2 • Photocopy of Aadhar card of Petitioner No.5 Meenakshi Goel is Ex.PW1/3 • Photocopy of Aadhar card of Petitioner No.1 Laxmi Devi is Ex.PW1/4 • Certified copy of criminal case record is Ex.PW1/5 • Photocopies of ITRs filed on behalf of deceased for the AY-2016 and 2017-18 are Ex.PW1/6 • Original medical bills of petitioner No.1 Laxmi is Ex.PW1/8 6.2 PW2 Ravi Goel also examined himself, being eye-witness of the accident and deposed by way of his affidavit Ex.PW2/1 with respect to the manner of accident; his occupation and income at the time of accident and relied upon the following documents:-
• Copy of his aadhar card is Ex.PW2/1 _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 6 of 30 • Copy of GST deposited by deceased is Ex.PW2/2 • Copy of GST deposited by Petitioner No.2 is Ex.PW2/3 All the aforesaid witnesses were duly cross examined by the learned counsel for Respondent No.3.
7. Respondents side did not examine any witness in their defence.
8. I have heard the final arguments advanced by Sh. R.N. Singh, learned counsel for the petitioners; Sh. Ashok Kumar, Ld. Proxy Counsel on behalf of main counsel Kumar Alok, Ld. Counsel for R-3/Insurer. I have perused the materials placed on record.
9. My findings on the issues are as under:-
ISSUE No.1 (in both cases):
In MACP No. 841/19 (In re: Laxmi Devi Vs. Pramod Kumar & Ors.) In MACP No. 842/19 (In re: Laxmi Devi & Ors. Vs. Pramod Kumar & Ors.)
10. Issue no.1, being inter-linked in both of two cases, shall be decided here together by common findings. It is pertinent to mention here that as per settled proposition of law, in an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is to be tested on the touchstone of preponderance of probabilities. Holistic view is to be taken while dealing with the Claim Petition based upon negligence. Strict rules of evidence are not applicable in an inquiry conducted by _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 7 of 30 the Claims Tribunal. Reference may be made to the judgments titled as New India Assurance Co. Ltd. v. Sakshi Bhutani & Others., MAC APP. No. 550/2011 decided on 02.07.2012, Bimla Devi & Others v. Himachal Road Transport Corporation & Others (2009) 13 SC 530, Parmeshwari v. Amirchand & Others 2011 (1) SCR 1096 & Mangla Ram v. Oriental Insurance Company Ltd. & Others 2018, Law Suit (SC) 303.
11. In order to prove the cases, petitioner/ injured Petitioner Laxmi being eye-witness of the accident, examined herself as PW1. She testified that on 24.09.2018 at about 10:30 pm, she along with her hsuband late Rohtash Goel, one Om Prakash, Smt. Veena nad Ravi Goel /P2 were coming from Shri Shyam Khatu (Ringus), RajAshthan to Delhi by car and when they reached at Kapdivas Chowk, Gurugram Haryana, the car was stopped due to heavey traffic ahead and meanwhile truck bearing No. HR-38W-2665 came from back side, while being driven by driver Pramod Kumar,/ R-1 in rash and negligent manner and the truck hit behind the car of petitioner No.2 causing grievous injuries to petitioner and death of Sh Rohtash Goel, apart from injuries or death to other occupants. PW1 categorically stated that respondent no.1 / driver was driving the offending vehicle in a rash and negligent manner. PW1 was cross-examined at length by learned counsel for the respondents. In her cross-examination, PW1 denied that the victim vehicle was parked unauthorised on road on due to negligence of driver of victim vehicle, the accident had occurred. She deposed that she could not note down the registration no. of offending vehicle as she was inside the vehicle. PW2 is other eye witness to the accident and deposed on the lines of the testimony of PW1. He _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 8 of 30 disclosed the number of offending vehicle in his testimony. FIR was registered without inordinate delay and PW2 is informant, on whose complaint FIR was lodged. The number of the offending vehicle was disclosed in the FIR itself and the offending vehicle was seized from the spot. Charge-sheet reflects that driver was produced before IO by registered owner Sh Kamal Kant Ahuja and notice u/s 133 of M.V Act was served to him and he gave in writing that offending vehicle was being driven by R-1 on the date of accident. The mechanical inspection report of the offending vehicle shows frontal damage to the vehicle.
12. It is not disputed that after detailed investigation of the case, respondent no.1 was charge-sheeted under Sections 279/337/338/304-A IPC for causing injuries to occupants of the victim car including the petitioner Laxmi Devi and fatal injury to her husband Rohtash Goyal and relative Om Prakash by driving the offending vehicle rashly and negligently. Moreover, in motor vehicular accident claims, contents of charge sheet are admissible in evidence and deemed to be correct under Rule 7 of Delhi Motor Accident Tribunal Rules, 2008. Thus, the facts that FIR has been registered and charge-sheet has also been filed against the respondent no.1 by the police, are sufficient proof to conclude that respondent no.1 was negligent. Reliance is placed upon the judgment of Hon'ble Delhi High Court in the case titled as Shabina v. Satvir & Ors. MAC. APP. 980/17 dated 24.01.2020, wherein Hon'ble Delhi High Court observed that in so far as FIR has been registered, criminal case has been initiated against driver of offending vehicle and vehicle was seized, the requirement of proving the preponderance of probability of accident having been caused by rash and negligent driving of the offending vehicle has been established. In the aforesaid case, Hon'ble _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 9 of 30 Delhi High Court referred to the judgment titled as National Insurance Company Pvt. Ltd. v. Smt. Pushpa Rana & Ors. (2008) 101 DRJ 645, wherein it was observed:
"12. The last contention of the appellant insurance company is that the respondents claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. Vs. Meena Variyal: 2007 (5) SCALE 269. On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (I) certified copy of the criminal record of criminal case in FIR No. 955/2004, pertaining to involvement of the offending vehicle, (ii) Criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304-A IPC against the driver, (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel of the appellant also falls face down. There is ample evidence on record to prove negligence on the part of driver."
13. The MLC of Laxmi Devi of Ashtha Hospital, Gurgaon shows against the column of name of injuries / nature of injuries, road side accident blunt injury. The final nature of the injuries sustained by Laxmi Devi is not mentioned clearly in the MLC. MLC reflects the date of admission in Ashtha Hospital as 24.09.2018 but date of discharge is not mentioned and there is nothing to reflect that petitioner Laxmi Devi remained admitted there even for a day or was discharged on the same day. There is one other document i.e. a prescription of Ashtha Hospital dated 25.09.2018 and this document also does not reflect that any _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 10 of 30 grievous injuries were sustained by the petitioner Laxmi Devi or that she sustained any fracture. As per the documents of Ashtha Hospital, petitioner had pain and swelling on left upper thigh and chest and X-ray of chest, left thigh and pelvis was advised. No X-ray Reports or any further examination document of Ashtha Hospital is filed on record. There is further treatment document of AIIMS Hospital dated 28.09.2018 which mentions over the same "alleged history of RTA with injury to left hip on Sep 28, 2018". However, the date of accident in this case is 24.09.2018 and this discrepancy over the medical document of AIIMS Hospital is not explained by the petitioner and the possibility of any injury after 24.09.2018 or any pre-existing injury, regarding which finding of fracture was given, cannot be ruled out, in absence of any finding in the document of Ashtha Hospital regarding any 'grievous injury' or any procedure done there, apart from prescribing some medications and further the gap between the treatment at Ashtha Hospital and the treatment record of AIIMS Hospital. It is seen that in the charge-sheet itself, IO has mentioned that " wa majburia Laxmi Devi patni Rohtash was Veena Aggarwal patni Om Prakash wasiyan Delhi ke isi accident me lagi choton ke karan fracture tehrir hone par mukdma haza me dhara 338 IPC izad ki gayi ". However, there is nothing to suggest that the doctors at Ashtha Hospital gave any finding of grievous injuries. No X-ray report of Ashtha Hospital or any diagnostic Centre on the recommendation of doctor at Ashtha Hospital is produced and proved on record and there is nothing to suggest that any subsequent opinion on MLC was sought by the doctor regarding nature of injuries sustained by petitioner Laxmi Devi. In the testimony of Laxmi Devi, there is reference to visit of all injured to General Hospital, Gurugram but no medical document of Laxmi Devi of any 'General hospital' is _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 11 of 30 filed and proved on record. Moving further, in her claim petition, petitioner Laxmi Devi has mentioned that injury sustained is as per MLC dated 25.9.2018 of Ashtha hospital. MLC of Ashtha hospital is dated 24.09.2018 and not 25.09.2018 and as per noting on this document, nature of injury can be said to be 'simple'. Petitioner is completely silent in her claim petition and testimony regarding the period of treatment in Ashtha hospital and whether she was admitted there even for a day. No discharge summary of Ashtha hospital is produced and proved on record either to show that petitioner was admitted there even for a day. The prescription dated 25.09.2018 of Ashtha hospital also does not give any finding of fracture and does not even reflect that petitioner was an In-patient in the hospital. This prescription again advices for same X-rays as prescribed on 24.09.2018 and no X-ray reports of Ashtha hospital or any other diagnostic Centre on such prescription of Ashtha Hospital of either 24.09.2018 and 25.09.2018 are produced and proved on record. No one from said hospital was examined either to prove any admission and discharge related documents or final bill or even to reflect that nature of injuries was contrary to the opinion as reflected in the MLC dated 24.09.2018 or that any further opinion on MLC was pending or under observation. Petitioner has nowhere mentioned that she was taken to or treated in any hospital, other than Ashtha hospital with respect to accidental injury. There is one other document of Ashtha hospital dated 25.9.2018, which is a prescription and on this document, there is reference to pain and swelling on left upper thigh as referred in the document dated 24.09.2018 and same X ray tests i.e .have been prescribed. No X ray of 24.9.2018 or 25.09.2018 on the advice of a doctor at Ashtha hospital has been proved on record. It is strange that one prescription of Dr. _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 12 of 30 Umesh Kansal (clinic at Faridabad and Ram Lal Kundan Lal Orthopedics Hospital) with overwriting in date has been filed on record, even when there is no reference in testimony or claim petition to any such visit. The date on this document is either 25.09.2019, 25.01.2019 or 25.09.2018 (it is obvious that there is overwriting in the date and the date has been changed). Further, this prescription, if is dated 25.09.2018, can only lead to a question whether, petitioner visited two hospitals on the same day, one situated in Gurugram and other one at East Delhi or Faridabad? There is no answer to it. Further, there is no recommendation of X-ray in this document and there is only observation made regarding fracture and even this is not completely legible. There is nothing to suggest that petitioner was referred from Ashtha Hospital to Dr Umesh Kansal or AIIMS Hospital. There is no document to suggest on what basis the noting regarding fracture was made on the document dated 25.09.2019 ? There is photocopy of one diagnostic report dated 25.09.2018 of Ram Lal Kundal Lal Orthopedics hospital 'on reference by Dr. U Kansal' (not relied in evidence by the petitioner but filed on record by the petitioner) which shows that 'Old # left greater trochanteric' was observed and it was further mentioned that petitioner Laxmi Devi had osteoporosis. There is no explanation as to if the prescription is of 25.09.2018 (part of document Ex. PW1/8), how could fracture be mentioned and diagnosed prior to any recommendation for X-ray? There is no prescription on record issued by Dr. U Kansal with recommendation for any X-ray. There is no answer to it from the petitioner. There is nothing on record to suggest that petitioner was referred to Ram Lal Kundan Lal Hospital from Ashtha hospital. No final bill or discharge summary of Ashtha hospital is produced to show for how many days or hours she stayed in said _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 13 of 30 hospital and what course of treatment was undertaken by her there. Further, document of Ram Lal Kundan Lal Hospital does not reflect that document at Ashtha hospital was produced there or that petitioner was referred there or visited there on discharge form Ashtha hospital on same day. There is nothing on record to suggest that any fracture was diagnosed in Ashtha hospital during treatment there. Further, document of AIIMS hospital suggests that the said hospital was visited for the first time by the petitioner only on 28.9.2018 and it is strange that history of RTA on 28.09.2018 was reported there to doctor, as suggested by document / discharge summary of AIIMS hospital of year 2018 and further medical documents of AIIMS Hospital of year 2019 and 2022. There is one other paper / OPD document of AIIMS hospital on record but it does not specify the date of preparation, name of doctor and does not bear any stamp and is doubtful and not proved. There is a slip dated 28.09.2018 pasted over it but from this superimposed slip, it can not be said that this OPD slip was prepared on 28.09.2018 and who prepared it and this document is not proved on record. In any case, once petitioner herself stated in the claim petition that injuries sustained were as per MLC of Ashtha hospital and both documents of Ashtha Hospital i e. MLC dated 24.09.2018 and further prescription dated 25.09.2018 do not show sustaining of any fracture by petitioner and further no X-ray reports on recommendations over these documents, was produced and proved, the nature of injuries has to be treated as 'simple'. The X-ray report of Ram Lal Kundan Lal Orthopedic Centre dated 25.09.2018 does not come to the help of petitioner in proving the injuries sustained in the accident as grievous. First of all, there is nothing to suggest that on 24.09.2018 any fracture was diagnosed or that any X-ray was conducted on prescription dated 25.09.2018 of Ashtha hospital. No _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 14 of 30 document of Ashtha Hospital showed any such finding of fracture. Further, no prescription of Dr. U. Kansal is placed on record to suggest that X-ray was recommended by him on 25.09.2018 and if so, of which part and on what complaint. A fracture is usually considered old when it is at least 3 weeks old(source; https://pubmed.ncbi.nlm.nih.gov) and there is nothing brought on record to suggest otherwise. Petitioner has failed to explain the occasion & reason for visit to Ram Lal Kundal Lal Orthopedic Centre on the same day i.e 25.09.2018 and how was it possible to visit two hospitals on same day and if visited, whether such visit to Ram Lal Kundan Lal Orthopedic Centre was subsequent and at what time of the day. Further, the finding of 'Old fracture' was not explained by examining any expert medical witness to suggest that it had any connection with the accident dated 24.09.2018. Document of AIIMS hospital dated 04.10.2018 suggests that date of accident was mentioned as 28.09.2018 with alleged history of injury to left hip but this is contrary to the document of Ashtha Hospital which shows pain swelling over left thigh. Diagnosis on 28.09.2018 at AIIMS Hospital does not prove or show any connection with the accident dated 24.9.2018. In the light of abovesaid discussion, the nature of injuries sustained in the accident on the basis of Ashtha Hospital document is to be treated as simple. The postmortem report of deceased Rohtash Goyal finds clear mention of death due to injuries sustained in road traffic accident.
14. Thus, in view of the above, this Tribunal is of the opinion that petitioners have been able to prove that there is sufficient material on record to establish that the accident had occurred due to rash and negligent driving of the offending vehicle by respondent no.1 and that _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 15 of 30 resulted into simple injuries to the petitioner Laxmi Devi and fatal injury to Rohtash Goyal. Therefore, issue no.1 is decided in favour of petitioners accordingly and against the respondents.
ISSUE NO.2
15. In view of the finding on Issue No.1, petitioners in both the claim cases are entitled to get compensation, however, the quantum of compensation still needs to be adjudicated.
COMPUTATION OF COMPENSATION
16. Section 168 of Motor Vehicles Act, 1988 enjoins upon the claim Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation, which appears to be just and reasonable. As per settled law, compensation is not expected to be windfall or a bonanza nor it should be pittance A man is not compensated for the physical injury, he is compensated for the loss which he suffers as a result of that injury (Baker v. Willoughby (1970) Ac 467 at page 492 per Lord Reid).
17. In death cases, the guidelines for computation of compensation have been laid down by Hon'ble Supreme Court in case of Sarla Verma and Others v. Delhi Transport Corporation & Anr. (2009) 6 Supreme Court Cases 121. Further, the guidelines have been reiterated by the Constitution Bench of Hon'ble Supreme Court in a case titled as National Insurance Company vs. Pranay Sethi & Ors., decided on 31.10.2017, laying down the general principles for computation of compensation in death cases. The relevant paras of the judgment are reproduced here as under:
"18. Basically only three facts need to be _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 16 of 30 established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
These issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/ deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
iii) the multiplier to be applied with reference to the age of the deceased.
If these determinations are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:death case Step-1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balanc expired e which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step-2 (Ascertaining the multiplier) death case Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 17 of 30 economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step-3 (Actual Calculation) The annual contribution to the family(multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs.5,000/- to Rs.10,000/- may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs.5,000 to Rs.10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added."
18. Therefore, in view of the aforesaid judgment, it is essential to take into consideration the following parameters:-
(In MACP No. 842/19 (In re: Laxmi Devi & Ors. Vs. Pramod Kumar & Ors.) PECUNIARY DAMAGES:
Age of deceased :
19. As per assertion of PW1/wife of deceased Rohtash Goel, deceased was 59 years old on the date of accident. However, no ID proof related to age of deceased was filed on record and when Tribunal raised query in this regard after arguments were addressed in part, copy _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 18 of 30 of aadhar card of deceased was filed by Ld. Counsel for petitioner. In the claim petition, the LRs of the deceased have claimed the age of the deceased to be 62 years. The claim petition is supported with affidavit of the petitioners. Further, in the postmortem report of the deceased Rohtash Goyal, his age is mentioned as 61 years. Even during final arguments, Ld. Counsel for petitioners stated on 30.09.2024 that deceased was 61 years on the date of the accident. In the copy of computation for ITR of the deceased, as filed by the petitioner for the AY 2017-18, the date of birth of deceased Rohtash Goyal is shown as 04.07.1958. Howevr, this document was not relied in evidence by the petitioners. In the Aadhar card as well (not relied in evidence by the petitioners), the date of birth of deceased is mentioned as 04.07.1958. However, in view of the claim in the petition duly supported by the affidavit of the petitioners, the age of the deceased, in absence of any age proof, is being taken to be 62 year old on the date of accident. Petitioners failed to produce the education related document, election card and any other age proof of the deceased and even Aadhar card was produced only after direction was given by the Tribunal on 28.11.2024 for filing of the same. Even PAN Card of the deceased is not filed on record, even though he is stated to be an income tax payee. In case title "Saroj & Ors. Vs. IFFCO TOKIO GIC & Ors. 2024 INSC 816 ", it has been observed by Hon'ble Apex Court that Aadhar Card should only be treated as proof of identity and not as definitive proof of date of birth. It is not the claim of the petitioners that the deceased was uneducated or that due to any mistake, his age was wrongly mentioned as 62 years in the claim petition. Hence, I am of the considered view that age of the deceased should be taken to be not less than 62 years on the date of accident.
_____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 19 of 30 Assessment of Income of deceased :
21. PW2 Ravi Goyal testified in his evidence that deceased Rohtash Goyal was running M/s Goyal Trading Company at New Kondli and due to sudden death of father, the trading company was closed. The ITR of the deceased for the AY 2017-18 Ex. PW1/7 shows his annual income as 4,98,301/- and net tax payable as 17,847/-.
Hence, his annual income tax is taken to be Rs. 4,80,454/- (Rs.4,98,301- Rs. 17,847/-).
Number of dependents :
22. The instant claim petition has been filed by five petitioners, who are wife and children of deceased. Two of the daughters namely Pooja Goyal and Poonam Goel are stated to be married at the time of filing of claim petition and there is nothing to suggest that any of them were dependent on father at the time of his demise. Hence, they cannot be considered as dependents of the deceased. As per the testimony of PW2, both he and his father were running separate shop and while he was retailer, his father was a whole seller. Ravi Goyal was major and running an independent business at the time death of his father and hence cannot be considered as dependent. There is nothing in the cross-examination of witnesses to suggest that P-1 and P-5 were not dependents of deceased. Thus, for the purpose of ascertaining the dependency of the deceased, Petitioner No.1 & 5 are considered dependents on the deceased.
Application of Multiplier:
23. As discussed above, the deceased was considered to be 62 years of age at the time of accident. An appropriate multiplier has to be determined for computation of compensation. The judgment titled as _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors.
MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 20 of 30 Sarla Verma v. DTC (2009) 6 SCC 121 is relevant to consider the multiplier. In Para 21 of the judgment, the guidelines for the multiplier were laid down in accordance with age are as under:-
MULTIPLIER AGE GROUP OF DECEASED
M-18 Age group between 15 to 20 &
21 to 25 years)
M-17 Age group between 26 to 30 yrs
M-16 Age group between 31 to 35 yrs
M-15 Age group between 36 to 40 yrs
M-14 Age group between 41 to 45 yrs
M-13 Age group between 46 to 50 yrs
M-11 Age group between 51 to 55 yrs
M-9 Age group between 56 to 60 yrs
M-7 Age group between 61 to 65 yrs
M-5 Age group between 66 and above
24. In view of the above, multiplier of 7 shall be applicable in the present case.
Future Prospects:
25. This issue was considered by the Hon'ble Supreme Court in the case of Pranay Sethi & Others (Supra). Relevant parts of the judgment are reproduced here as under:
"(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors.
MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 21 of 30 age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
26. The deceased can be considered as self-employed. In view of the above said judgment, as the deceased was 62 years of age, future prospect is not to be taken/applied.
Deduction towards Personal Living Expenses:
27. After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards his personal expenses. Hon'ble Supreme Court in case titled as Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in para 30, laid down the necessary deductions towards personal living and expenses of deceased as under :
Deductions out of earning of the Number of deceased dependents Where dependent is 1 Half Where the number of dependent family 1/3rd members is 2 to 3 Where the number of dependent family 1/4th _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 22 of 30 members is 4 to 6 Where the number of dependent family 1/5th members exceeds 6 (six)
28. Petitioner no1 and 5 are considered as dependents upon the deceased as held above. Accordingly, one-third of the income of the deceased is to be deducted towards his personal living expenses.
29. Thus, the loss of dependency is computed as Rs.22,42,119/- ( 4,80,454 x 2/3 x 7).
NON-PECUNIARY DAMAGES:
30. In case of Pranay Sethi (supra), a compensation of Rs.40,000/-, 15,000/- and Rs.15,000/- respectively has been fixed on account of loss of consortium, loss of estate and funeral expenses and further, it is required to be enhanced @ 10% in every three years. Therefore, a compensation of Rs.48,000/-, 18,000/- and Rs.18,000/- respectively on account of loss of consortium, loss of estate and funeral expenses is required to be granted. Further, in view of recent decision of Hon'ble Supreme Court in the case titled as United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors., Civil Appeal no. 2705 of 2020, decided on 30.06.2020, loss of consortium has to be fixed for each of the LRs. In this case, there are five legal heirs of the deceased. Thus, claimants are entitled to a sum of Rs.2,76,000/- (48,000x5+18,000+18,000) under this head. Claimant No. 2 to 4 are entitled to only consortium amount.
31. Considering the aforementioned factors, the total compensation is calculated as under:
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32. Thus, petitioners are entitled to a total compensation of Rs.25,18,119/- (22,42,119/-+ Rs.2,76,000/-), including interim compensation awarded vide order dated 14.12.2022. It is clarified again that P2, P3 and P4 are entitled only to the compensation towards consortium amount.
ISSUE No. 2:-
In MACP No.841/19 (In re: Laxmi Devi Vs. Pramod Kumar & Ors)
33. The scope of compensation in injury cases has been considered by Hon'ble Supreme Court in case titled as Mr. R.D. Hattangadi v. M/S Pest Control (India) Pvt. Ltd., 1995 AIR 755. The relevant extract is as under:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money-, whereas non- pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may, include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 24 of 30 shortened; (iv) inconvenience, discomfort, disappointment, hardship, frustration and mental stress in life."
34. In Raj Kumar v. Ajay Kumar & another (2011) 1 SCC 343, Hon'ble Supreme Court of India laid down general principles for computation of compensation in injury cases. The relevant paras of the judgment are reproduced as under:
4. The provisions 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 the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary Damages (special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
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(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 to 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 medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
35. In the light of the aforementioned judgments, the compensation to which the petitioners in injury cases are entitled shall be as under:-
PECUNIARY DAMAGES :
Medical Expenses :
36. Petitioner Laxmi Devi (PW1) has placed on record medical /pharmacy bills part of document Ex.PW1/8. However, all of the bills are not legible or without dates or are without corresponding and continuous medical documents in support of treatment post accident. _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 26 of 30 No doctor from the AIIMS Hospital was examined to reflect on the documents of Ashtha Hospital and diagnostic reports if any produced before the treating doctors at AIIMS Hospital and there is no mention in the documents of AIIMS Hospital that the factum of any treatment undertaken at Ashtha Hospital or with the doctor U. Kansal was disclosed to the doctors there. Rather, the document dated 28.09.2018 of AIIMS Hospital shows that even the date of accident is mentioned as 28.09.2018 and further, contrary to the document of the Ashtha Hospital,injury to 'left hip' was reported instead of 'left thigh'. No unbroken chain of medical documents is produced and proved on record by the petitioner Laxmi Devi. It is further strange that petitioner Laxmi Devi has laid claim to bills of only year 2018, as per the break up of medical bills filed by her counsel. The nature of injuries has been taken as 'simple' and hence bill only pertaining to treatment at Ashtha Hospital on 24.09.2018 and 25.09.2018 are being considered. One receipt of Ashtha Hospital for a sum of Rs.5000/- is part of document Ex. PW1/8 and is being considered.
37. Therefore, a sum of Rs.5000/- is granted to the petitioner under this head.
Loss of earning during treatment :
38. There is nothing to suggest that petitioner Laxmi Devi was working or had any loss of income due to the accident. Hence, no amount is being granted under this head.
Special Diet & Conveyance Charges :
39. The petitioner has not proved any actual expenses in relation to these heads, apart from one ambulance bill for visit to Ashtha _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 27 of 30 hospital and has not placed any material on record to substantiate the said expenses. In the given facts and circumstances of the case, I deem it fit to grant Rs.10,000/- to petitioner for conveyance and Rs.10,000/- special diet charges.
40. Thus, petitioner is granted a total compensation of Rs.20,000/- (10,000+ 10,000) under this head.
NON PECUNIARY DAMAGES :
Pain & Sufferings:
41. While discussing the criteria to ascertain the compensation for pain and sufferings by victim of vehicular accident, observations of Hon'ble High Court of Delhi in Satya Narain v. Jai Kishan, FAO No:
709/02, date of decision: 02.02.2007 can be considered:
"12. On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering.
13. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected
(c) Duration of the treatment."
42. In view of the discussion abovesaid and MLC of Ashtha Hospital, as filed on record by the petitioner,she is granted a sum of Rs.15,000/- under this head.
43. Thus, the compensation awarded to the petitioner is summarized as under:-
Sl. No. Head of compensation Amount _____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 28 of 30
1. Medical Expenses Rs.5000/-
Loss of Earnings Nil
2.
(during treatment)
3. Special Diet & Conveyance Rs.20,000/-
5. Pain & Suffering Rs.15,000/-
Total Rs.40,000/-
44. Accordingly, petitioner Laxmi Devi is entitled for a total compensation of Rs.40,000/-.
ISSUE No. 4In MACP No. 841/19 (In re: Laxmi Devi Vs. Pramod Kumar & Ors.) In MACP No. 842/19 (In re: Laxmi Devi & Ors. Vs. Pramod Kumar & Ors.)
45. Petitioner(s) in both of the cases shall also be entitled to interest @ 7.5% per annum on the award amount from the date of filing of the petition till its realization LIABILITY
46. Now, the question arises as to which of the respondents are liable to pay the compensation amount. As insurance company has contractual and statutory liability to indemnify the insured and, in this case, insurance company has not been able to prove that any term or condition of insurance policy was breached/ violated by insured, therefore, respondent no.3/ insurance company becomes liable to pay the aforesaid compensation amount.
47. In view of above discussion, respondent No. 3/ M/s National Insurance Co. Ltd. is liable to pay the compensation to the petitioners.
_____________________________________________________________ MACP No. 841/19 ; Laxmi Devi Vs. Pramod Kumar & Ors. MACP No. 842/19 ; Laxmi Devi & Ors. Vs. Pramod Kumar & Ors Page 29 of 30 RELIEF In MACP No. 841/19 (In re: Laxmi Devi Vs. Pramod Kumar & Ors.)
48. This Tribunal awards a compensation of Rs.40,000/- (rupees Forty Thousand Only) to the petitioner along with interest @ 7.5% per annum from the date of filing of petition till realization to be paid by the respondent no.3/ M/s National Insurance Co. Ltd. Amount of interim award, if any, be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case.
RELIEF In MACP No. 842/19 (In re: Laxmi Devi & Ors. Vs. Pramod Kumar & Ors.)
49. This Tribunal awards a compensation of Rs.25,18,000/- (rounded off from Rs.25,18,119/-) (rupees twenty five Lakhs and Eighteen Thousand Only) to the petitioner along with interest @ 7.5% per annum from the date of filing of petition till realization to be paid by the respondent no.3/ M/s National Insurance Co.Ltd. Amount of interim award, if any, be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case.
50. With these observations, both the claim petitions are disposed of. Copy of the Award be given dasti to the parties free of cost.
51. Files be consigned to Record Room.
Digitally signed by MAYURI MAYURI SINGH
SINGH Date:
2024.12.07
16:52:56 +0100
Announced in the open (Mayuri Singh)
Court on 07.12.2024 Presiding Officer-MACT (East)
Karkardooma Courts, Delhi
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