Delhi District Court
) Hare Krishan Jha S/O. Late Sh. Mahavir ... vs ) Sh. Neeraj @ Khem Karan S/O. Sh. ... on 9 May, 2012
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IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT &
SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT
CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
(MACT No. 889/10/08)
1) Hare Krishan Jha s/o. Late Sh. Mahavir Jha
R/o House no. 55C, Gali no. 14, Near Holi Chowk,
Jan Vikas Samiti, A-2 Block,
West Sant Nagar, PO Burari,
Delhi-84
----------Petitioner
Versus
1) Sh. Neeraj @ Khem Karan s/o. Sh. Yogender @ Joginder
R/o. House No. E-400, E-Block, Jahangirpuri, Delhi-33.
2) Smt. Seema Jain w/o. Sh. M.P. Jain
R/o. 15/7, Sarvpriya Vihar,
New Delhi-17
---------Respondents
Date of institution---12.03.2008
Date of decision----- 09.05.2012
(Application u/s 166 and 140 of Motor Vehicles Act
for grant of compensation)
******************************************
JUDGMENT:-
1. Petitioner who is aged about 40 years filed the present claim petition claiming therein a compensation of Rs. 5 lakhs alongwith interest on the ground that on 22.02.2006 he was coming alongwith his wife on bicycle towards his residence from duty via Ring Road, Mukundpur bypass then at about 7.00 p.m. when he took right turn on the Zaroda Pushta Road -2- and hardly reached few meters near Pir Baba Dargah then offending vehicle bearing registration no. DL-4ST-7846 came from opp. direction with a very high speed rashly and negligently driven without giving horn/alarm or caring for traffic rules hit the petitioner's leg with full force which written statement so strong that the petitioner could not control himself and his cycle on which her wife was pillion rider. Further stated that due to aforesaid accident he fell down on the road and received multiple injuries all over his body. Wife of petitioner also sustained multiple injuries on her body Petitioner. The petitioner's cycle was also badly damaged. Thereafter the petitioner was taken to nearby private doctor and ESI Hospital. A criminal case under section 279/337 IPC was registered against respondent no.1 vide FIR No. 631/07 in police station Samaipur Badli.
2. Petitioner alleged that at the time of accident he was working as Forai Machine Operator in a steel factory at Wazirpur Industrial Area and drawing a monthly salary of Rs. 5,000/- per month and beside that he was earning through overtime work. He claimed sum of Rs. 5 lakhs alongwith interest as compensation from the respondents being driver and owner under various pecuniary and non pecuniary heads.
3. Respondents no. 1 filed his written statement submitting therein that he has been falsely implicated in the said accident and even the FIR was not registered on the date of accident i.e. on 22.02.2006 but on 04.08.2007 i.e. after one and half year of the accident. Whereas R-2 stated that she is an old lady and not the owner of the offending scooter as she had sold the scooter driver/R-1 and respondents tried to avoid their liability on some routine technical grounds.
4. On the basis of pleadings of the parties, following issues were framed on 20.07.2009 by my Ld. Predecessor:
-3-1. Whether the petitioner received injuries in the roadside accident occurred on 22.02.2006 at about 7.00 p.m. near Ring Road, Near Pir Baba Pul, Mukundpura, Nala Road, Delhi due to rash and negligent driving of R-1/driver of offending vehicle no. DL-4ST-7846? OPP
2. Whether the petitioner is entitled to compensation, as prayed for, if yes, to what extent and from which of the respondents? OPP
3. Relief.
5. Petitioner in support of his claim examined Sh. Naresh Kumar Jain/proprietor of Siddharth Industries as PW1 where the petitioner was Machine Operator, Sh. Kamta Prasad, Record Clerk ESI Hospital as PW2 and himself as PW3 and Dr. Rajesh Lalchandani as PW4. Whereas respondents did not produce any evidence in support of their defence.
6. I have heard counsel for parties and gone through the record. My decision on the above mentioned issues is as under:
Issue no.1:-
7. The proof required in MACT claim petition are less than the proof required to criminal offence or a civil case. The principles to be followed in the case of motor accident claims has been laid down by the Hon'ble High Court of Guwahati in case cited as Renu Bala Paul and Ors. vs. bani Chakraborty and Ors. 1999 ACJ 634 wherein it is held that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is -4- much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
In N.K.V. Bros (P) Ltd. vs. M. Karumai Ammal & Ors. AIR 1980 SCC 1354, Hon'ble Supreme Court has observed as under:-
"Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
8. The police has prosecuted the R-1 for causing the accident due to rash and negligent driving of the offending scooter by filing the charge sheet. PW3 petitioner himself in his statement specifically narrated the way and manner in which the accident took place by way of affidavit. Witness has clearly stated that the accident took place due to rash and negligent driving of offending truck. It is the case of the R-1 that he has been falsely implicated in this case. No complaint has been lodged against driver and owner of the offending vehicle before any higher authority regarding the fact that R-1 has been falsely implicated in this case at the instance of -5- injured or IO. It is not the case of R-1 that injured or IO of the case nursed grudge or enmity with owner of the vehicle or they are known to each other. No evidence is led on behalf of R-1 and R-2 in support of contention of R-1 that accident did not take place due to rash and negligent driving of the vehicle driven by R-1. Hence adverse inference has to be drawn against them. Nothing has come in cross-examination by insurance company that accident did not take place due to rash and negligent driving of R-1. Testimony of PW4 and PW5 is trustworthy and unimpeachable who deposed that accident took place due to rash and negligent driving of R-1 due to which they sustained serious and grievous injuries as mentioned above. Hence this issue is decided in favour of petitioner and against the respondents.
Issue no.2:-
9. Petitioner was taken to the hospital after sustaining injuries on 22.02.2006 and injuries suffered were grievous in nature.
10. Hon'ble Supreme Court in Govind Yadav vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has observed as under:
"The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term "compensation" used in section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a -6- particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses' make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under Sections 166 of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of the compensation in such cases should invariably include pecuniary and non-pecuniary damages.
In R.D. Hattangadi v. Pest Control (India) Private Limited MANU/SC/0146/1995: (1995) 1 SCC 551, this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v. James (1965) - All ER 563, Halsbury's Laws of England, 4th Edition, Volume 12 (page 446) and observed:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money;-7-
whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance, (ii) loss of earning of profit up to the date of trial, (iii) other material loss. So for non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future, (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit;
(iii) damages for the loss of expectation of life, i.e, on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life".
In the same case, the court further observed:
"In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards".
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka MANU/SC/0803/2009: (2009) 6 SCC 1, the three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs. 15 lakhs to Rs. 1 crore, the Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
"At the same time we often find that a person injured in an accident leaves his family in greater distress vis-...-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, -8- more pitiable and the feeling of hurt, helplessness, despair and often destitution ensures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity".
In Reshma Kumari v. Madan Mohan Manu/SC/1303/2009:
(2009) 13 SCC 422, this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the Judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
In Arvind Kumar Mishra v. New India Assurance Co. Limited Manu/SC/0777/2010: (2010) 10 SCC 254, the Court considered the plea for enhancement of compensation made by the Appellant, who was a student of final year of engineering and had suffered 70% disablement in a motor accident. After noticing factual matrix of the case, the Court observed:
"We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as ho was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands -9- of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered".
In Raj Kumar V. Ajay Kumar Manu/SC/1018/2010: (2011) 1 SCC 343, the court considered some of the precedents and held:
"The provision of the Motor Vehicles Act, 1988, ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as for as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and hie inability to earn as much as he used to earn or could have earned".
In our view, the principles laid down in Arvind Kumar Mishra vs. New India Assurance Company Ltd. (supra) and Raj Kumar vs. Ajay Kumar (supra) must be followed by all the Tribunals and the High Court in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident".
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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, nourising food and miscellaneous expenditure. II)Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising;
a) Loss of earning during the period of treatment;
b) Loss of future earnings on account of permanent disability.
iii)Future medical expenses.
Non Pecuniary damages (General damages)
iv)Damages for pain suffering and trauma as a consequence of the injuries.
v)Loss of amenities (and/or loss of prospects of marriage).
Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (I), Iii) (a) and (iv).
Pecuniary damages (Special damages):
Damage to property
11. It is alleged by the petitioner that at the time of accident he was riding bicycle and due to hit by the scooter his bicycle badly damaged. Since no proof of damage to his bicycle on the date of accident is filed on record but the photograph shown shows that his bicycle was damaged totally from front side and thus I grant compensation of Rs. 3000/- on account of damage to his bicycle.
Loss of income
12. Petitioner in his petition alleged that he was working as Forai Machine Operator in a steel factory at Wazirpur Industrial Area and drawing a monthly salary of Rs. 5,000/- per month and beside that he was earning
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through overtime work. In support of his plea he filed certificate issued by his employer Ex.PW1/A and Ex.PW1/B. As per Ex.PW1/A he was drawing salary of Rs. 1969/- per month during 22.02.2006 to 30.06.2006 whereas as per certificate Ex.PW1/B petitioner was drawing salary of Rs 3600/- per month in February 2006. It is not the case of the petitioner that in his absence any other person had not looked after his alleged business. Further petitioner stated that since the date of his accident he is unemployed. In such circumstances, the petitioner is presumed to be lost his earning for the sum of Rs. 3,600/- thus I am granting the loss of income of 12 months only. Petitioner is thus entitled to sum of Rs. 43,200/- (Rs. 3,600/-X12).
13. The petitioner/injured was a self employed person. He was aged about 40 years at the time of accident. Hon'ble Delhi High Court in Sajha Vs. National Insurance Co. 2010 ACJ 627 and New India Assurance Co. Vs. Raja Ram MAC. APP. No. 175/06 decided on 25.8.2009 held that keeping in view the trend of increase of minimum wages of semi skilled worker from time to time and rises in price index and inflation, it can be said that minimum wages of unskilled worker would get almost double over a period of next ten years and thus future prospects should be given upon minimum wages also. In this regard the petitioner has relied upon the judgment of Hon'ble High Court in case titled Shiddhi Gopal Dixit Vs Siya Ram & Others reported in 2012 ACJ 165. Thus applying the formula given in these judgments, the monthly income of the petitioner can be held at Rs. 3,600/- (3600/- + 50%).
As per the case of injured, he has suffered disability to the extent of 3%. He is not working because being not capable of working and in that very nature of the things the functional disability is 10%. In this regard reliance is taken upon the judgment passed by Hon'ble Supreme
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Court of India titled as Raviraj Udupa Vs United India Insurance Co. Ltd. & Others 2012 ACJ 286 decided on 16.08.2011.
Petitioner in the petition described his age as 40 years (though in disability certificate his age is shown as 45 years). Hence in view of decision of Hon'ble Supreme Court of India in Sarla Verma Vs. DTC 2009 ACJ 1298, multiplier of 15 has to be applied to count loss of earning capacity.
As no deduction from income has to be taken towards personal expenses in case of injury as per decision of Delhi High Court in Bimla Vs. Gopal MAC. APP No. 1028/2006 decided on 22.3.2010 so the total loss of future income or earning capacity comes to Rs. as per the formula (3600/- X 12 X 15 X 10%). Accordingly petitioner is granted loss of future income at Rs. 64,800/- (in round figure).
Special diet and conveyance charges
14. Further petitioner stated that he visited hospital several times in relation to his treatment and mentioned that he admitted in hospital w.e.f. 04.03.2006 to 13.03.2006, 25.05.2006 to 30.05.2006, w.e.f. 31.05.2006 to 08.06.2006, w.e.f. 10.10.2006 to 16.10.2006 and w.e.f. 08.11.2006 to 14.11.2006. Though petitioner has not filed any medical bills on record and all the documents are pertaining to ESI and government hospital. But no proof of spending upon conveyance and special diet is brought on record but it is a fact that normally in case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc is provided instead of or in addition to the normal food. Accordingly I am of the view that maximum petitioner can be paid lump sum Rs. 10,000/- towards special diet and Rs. 15,000/- conveyance charges.
Pain and suffering
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15. As per the case of Govind Yadav it is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person suffered permanent disability as a result of accident. Even if the victim of accident gets out of grievous injuries, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the Appellant was a young boy of 25 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, ends of justice will be met by awarding him a sum of Rs. 75,000/- in lieu of pain, suffering and frustration etc. caused due to injuries suffered in accident.
Loss of amenities and expectation of life
16. It can only be a matter of imagination that as to how he performed day to day activities as efficiently as he was. The Appellant can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs. 1,00,000/- for the loss of amenities and expectation of life as per the judgment of Hon'ble Delhi High Court given in case Oriental Insurance Co. vs. Vijay Kumar Mittal, III (2007) ACC 676 and Govind Yadav vs. The New India Insurance Company Limited.
17. In view of the above discussions, this issue is decided in favour of petitioner by holding that he is entitled to get the following total compensation from the respondent/insurance company only:
A) Pecuniary damages (Special damages):
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a) Special diet-------------------------------------------------Rs. 15,000/-
b) Conveyance charges------------------------------------Rs. 10,000/-
c) Loss of income --------------------------------------------Rs. 43,200/-
d) Loss of future income------------------------------------Rs. 64,800/-
B) Non-pecuniary damages (General damages):
a) Pain and sufferings------------------ -------------------Rs. 75,000/-
b) Loss of amenities and expectation of life--------Rs. 1,00,000/-
__________________
Total Rs. 3,08,000/-
Issue no.3 (Relief):-
18. On the basis of findings given above, present petition is disposed off and respondent no. is directed to pay sum of Rs. 3,08,000/- to the petitioner alongwith interest at the rate of 9% p.a. from the date of institution of the petition i.e. 12.03.2008 till this amount is fully paid in view of judgment of Hon'ble Supreme Court in case titled as New India Assurance Co. Ltd. vs. Bhudia Devi & Ors. Reported as 2010 ACJ 2045.
19. In addition to that Rs. 21,000/- be given to counsels for petitioner Sh. Kamlesh Jha, enrollment no. D-185/93 as per judgment of Justice J.R. Midha titled as Sat Prakash vs. Jagdish cited as II (2010) ACC 194 by insurance company by making separate cheque in the name of counsel for petitioner in addition to the award of compensation.
Copy of this judgment be given to petitioner and counsel for respondent no.3 Insurance Company and file be consigned to record room.
Announced in the open (D.K. MALHOTRA)
Court on 09.05.2012 JUDGE, MACT (OUTER-II)
DELHI