Delhi District Court
Reena Sawhney And Others (Lrs Of ... vs Tarsem Singh And Ors on 19 March, 2024
MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
IN THE COURT OF MS. RICHA MANCHANDA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT, ROHINI COURTS, DELHI
MAC Petition No.848/17
UID/CNR No. DLNT01-011127-2017
1. Smt. Reena Sawhney
W/o Sh. Rohit Sawhney
(Mother of deceased)
2. Sh. Rohit Sawhney,
S/o Sh. Govardhan Lal Sawhney
(Father of deceased)
Both R/o B-21, Sai Apartments,
Sector - 13, Rohini,
Delhi.
.......Petitioners
VERSUS
1. Sh. Tarsem Singh,
S/o Sh. Mukhtar Singh,
R/o Village & Post Fatehabad,
District Tarn Taran,
Punjab.
(Driver)
2. Sh. Hardeep Singh,
S/o Sh. Sawinder Singh,
R/o Village Teja Khurd,
Tehsil Batla, District Gurdaspur,
Punjab.
(Registered owner)
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 1 of 48
MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
3. National Insurance Co. Ltd.
3rd Floor, Bhandari Nagar,
Nehru Place, Delhi.
(Insurer) ........Respondents
AND
MAC Petition No.846/17
UID/CNR No. DLNT01-011128-2017
Smt. Reena Sawhney
W/o Sh. Rohit Sawhney
R/o B-21, Sai Apartments,
Sector - 13, Rohini,
Delhi.
.......Petitioner
VERSUS
1. Sh. Tarsem Singh,
S/o Sh. Mukhtar Singh,
R/o Village & Post Fatehabad,
District Tarn Taran,
Punjab.
(Driver)
2. Sh. Hardeep Singh,
S/o Sh. Sawinder Singh,
R/o Village Teja Khurd,
Tehsil Batla, District Gurdaspur,
Punjab.
(Registered owner)
3. National Insurance Co. Ltd.
3rd Floor, Bhandari Nagar,
Nehru Place, Delhi.
(Insurer) ........Respondents
AND
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 2 of 48
MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
MAC Petition No.847/17
UID/CNR No. DLNT01-011129-2017
Sh. Rohit Sawhney
S/o Sh. Govardhan Lal Sawhney
R/o B-21, Sai Apartments,
Sector - 13, Rohini,
Delhi. .......Petitioner
VERSUS
1. Sh. Tarsem Singh,
S/o Sh. Mukhtar Singh,
R/o Village & Post Fatehabad,
District Tarn Taran,
Punjab.
(Driver)
2. Sh. Hardeep Singh,
S/o Sh. Sawinder Singh,
R/o Village Teja Khurd,
Tehsil Batla, District Gurdaspur,
Punjab.
(Registered owner)
3. National Insurance Co. Ltd.
3rd Floor, Bhandari Nagar,
Nehru Place, Delhi.
(Insurer) ........Respondents
Date of Institution: 06.10.2017
Date of Arguments:
Date of Award:
APPEARENCES
Sh. Gaurav Sood, Ld. Counsel for petitioner(s).
None for driver and owner(already exparte vide order dated
22.08.2019).
Sh. V.K. Gupta, Ld. Counsel for insurance co.
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 3 of 48
MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
Petition under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD:-
1. Vide this common order, I shall dispose of three claim petitions
with regard to fatal injuries suffered by child Divyankaa (aged about 1 year
& 10 months) and grievous injuries suffered by Smt. Reena Sawhney and
Sh. Rohit Sawhney (injured in MACP Nos. 846/17 & 847/19 respectively)
in Motor Vehicular Accident which took place on 31.10.2016 at about 3:30
am, near Thana, Pakbara Jila, Moradabad, UP, involving Truck bearing
registration no. PB06-K-2817 (alleged offending vehicle) being driven in a
rash and negligent manner by its driver (Respondent no.1 herein).
2. All these three claim petitions were consolidated for the purpose
of recording evidence vide order dated 22.08.2019 and MACP No. 848/17
titled as " Reena Sawhney & Anr. Vs. Tarsem Singh & Ors" was treated as
the leading case. Accordingly, the evidence was led on behalf of both the
sides in the leading case for the purpose of these matters.
FACTS IN THE CLAIM PETITIONS
3. According to the claim petitions filed in all these three cases, on 31.10.2016, Baby Divyankaa (deceased in MACP No. 848/17) and her parents were travelling in a car bearing registration no. UK04-R-9414 and they were sitting on the rear seat of the aforesaid car. The said car was being driven by Sh. Dhiraj and Sh. Kamal was sitting with Dhiraj at front seat of the car. The said car had started from Rohini at about 12:15 AM and was Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 4 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 heading towards Haldwani, Uttrakhand. At about 3:30 AM, when the said car reached near PS. Pakbara, Jila Moradabad, UP, one truck bearing registration no. PB06-K-2817 came at very high speed and hit against the said car from the side, as a result of which the said car got smashed and all the five passengers of the car sustained injuries. They were immediately taken to Govt. Hospital, Moradabad, UP, where Divyankaa was declared dead by the doctors. FIR No. 433/16 u/s. 279/338/304A IPC was registered at PS. Pakbara, UP with regard to the said accident. It is claimed that said offending vehicle was owned by respondent no. 2 and it was insured with National Insurance Co Ltd./respondent no. 3 during the period in question.
4. In their joint written statement, the respondents no. 1 & 2 i.e. driver and registered owner have raised preliminary objections that they have been falsely implicated in the present case and thus, they are not liable to pay any compensation to the petitioners. They have claimed that respondent no. 1 was not driving the offending vehicle on the date of accident but he possessed a valid driving licence on the date of accident. However, they have admitted that their vehicle bearing no. PB06-K-2817 was insured with respondent no.3 at the time of accident. They have further claimed that respondent no. 2/registered owner had duly seen the driving licence of the driver before allowing him to drive the alleged offending vehicle and he also took the driving test of the driver/R1 and found that he was driving the vehicle perfectly. On merits, they have denied the averments made in the claim petition and prayed for its dismissal.
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 5 of 48MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
5. In its WS, the respondent no.3 i.e. insurance company has not taken any statutory defence, as available U/s 149(2) MV Act. It has admitted that the vehicle bearing no. PB06-K-2817 was insured with it in the name of Sh. Hardeep Singh, having validity from 29.04.2016 to 28.04.2017. On the basis of these averments, it has prayed for dismissal of all the claim petitions.
6. From pleading of the parties, the following issues were framed separately in MACP Nos. 848/17, 846/17 and 847/17 by Ld. Predecessor vide order dated 27.09.2018 :-
1) Whether the deceased Ms. Divyankaa suffered fatal injuries and injured Reena Sawhney and Rohit Sawhney suffered injuries in road traffic accident on 31.10.2016 at about 3:30 am, near Thana Pakbara, Jila Moradabad, UP, within the jurisdiction of PS. Pakbara, Jila Moradabad, U.P, due to rashness and negligence on the part of the driver Tarsem Singh who was driving truck bearing registration no. PB06-K-2817, owned by Hardeep Singh and insured with National Insurance Co. Ltd.? OPP.
2) Whether the Lrs of deceased and injured persons are entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 6 of 48
MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
7. In order to establish their claim, the petitioners have examined five witnesses i.e. PW1 Smt. Reena (mother of deceased as well as injured in MACP No. 846/17), PW2 Sh. Prakash Sahu, Medical Record Clerk, Max Hospital, Saket, Delhi, PW3 Sh. Rohit Sawhney(father of deceased as well as injured in MACP No. 847/17), PW4 Sh. Vikas Dosaj and PW5 Dr. Sadre Alam, BPT, Physiotherapist. On the other hand, no evidence was adduced by respondents no. 1 & 2. However, the respondent no. 3/insurance company has examined one witness i.e. R3W1 Sh. Raj Kumar, Assistant, National Insurance Co. Ltd and closed its evidence on 08.10.2021.
8. This Tribunal has carefully perused DAR/claim petition, evidence led by parties has been duly appreciated. All documents and material relied upon & proved considered. Arguments addressed by respective counsels considered. Legal position, both statutory and binding applicable precedents, has been appreciated. The issue wise determination is as under:-
ISSUE NO. 1 ( IN ALL THE THREE CASES)
9. The onus to prove, the said issue was placed on the petitioners.
To prove the said issue petitioners examined PW1 Smt. Reena (mother of deceased baby Divyankaa as well as injured) and PW3 Sh. Rohit Sawhney (one of the injured) by way affidavits of evidence Ex. PW1/A, Ex. PW3/A & Ex. PW3/B. In their respective evidence, both the aforementioned witnesses have deposed on the lines of averments made in the claim petition(s).
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 7 of 48MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
10. PW1 Smt. Reena, mother of deceased as well as injured relied upon the following documents:-
S.No. Description of documents Remarks
1. Copy of Birth Certificate of Ex PW1/1
deceased Divyankaa Sawhney
2. Copy of Death Certificate of Ex. PW1/2
deceased Divyankaa Sawhney
3. Her original medical bills Ex. PW1/3(colly)
4. Copy of her discharge summary Mark A
of Max Hospital
5. Copy of her Aadhaar Card Ex. PW1/4
11. PW1 (injured herself) in her testimony, by way of affidavit of chief-examination (PW1/A) deposed that on 31.10.2016, she alongwith her husband Sh. Rohit Sawhney and daughter Baby Divyankaa were travelling in a car bearing registration no. UK04-R-9414 and they were sitting on the rear seat of the aforesaid car. She further deposed that the said car was being driven by Sh. Dhiraj and Sh. Kamal was sitting with Dhiraj at front seat of the car. She also deposed that the said car had started from Rohini at about 12:15 AM and was heading towards Haldwani, UK. She deposed that at about 3:30 AM, when the said car reached near PS. Pakbara, Jila Moradabad, UP, one truck bearing registration no. PB06-K-2817 came at very high speed and hit against their car from the side, as a result of which their car got smashed and they all sustained injuries. She further deposed that they were immediately taken to Govt. Hospital, Moradabad, UP, where Divyankaa was declared dead by the doctors.
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 8 of 48MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
12. PW1/Injured was cross-examined on behalf of insurance company during which she deposed that she alongwith her husband and deceased daughter were sitting on the rear side of the car while there was one other person sitting besides the driver on the front seat. She further deposed that their car was being driven for some time in the middle of the road and some time in the right side lane of the road. She deposed that their car was being driven at a speed of 60-70 kmph. She further deposed that the offending truck came from their right hand side and the accident took place at the crossing. She deposed that there was no traffic signal at the said crossing and she had seen the offending truck coming from a distance of about 10-15 feet. She deposed that the road was quite visible towards the side from where the said offending truck came and there were some vehicles nearby their vehicle at the time of accident. She further deposed that no other vehicle struck against the said offending truck. She deposed that she herself had noticed the registration number of the offending truck as PB06-K-2817 and it was a big truck, however she did not remember its colour. She further deposed that she herself had lodged the police report regarding the accident from the spot of accident immediately after the accident. She further deposed that police reached at the spot within 5-10 minutes and police removed us to the hospital. She denied the suggestion that no such accident took place with said offending truck or that said offending vehicle has falsely been implicated in the present case. She further denied the suggestion that the accident took place due to sole rash and negligent driving of car in which they were Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 9 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 travelling or that the said car was being driven in gross violation of traffic rules and regulations without caring for the other traffic on the road.
13. PW3 Sh. Rohit Sawhney, injured relied upon the following documents:-
S.No. Description of documents Remarks
1. His original medical bills to the Ex PW3/1(colly) tune of Rs. 65,900/-
2. Copy of his Aadhaar Card Ex. PW3/2
3. Copy of discharge summary of Mark A Max Hospital
4. Certified copies of criminal Ex. PW3/X(colly) case record
14. PW3 (injured himself) in his testimony, by way of affidavit of chief-examination (PW3/A) deposed that on 31.10.2016, he alongwith his wife Smt. Reena Sawhney and daughter Baby Divyankaa were travelling in a car bearing registration no. UK04-R-9414 and they were sitting on the rear seat of the aforesaid car. He further deposed that the said car was being driven by Sh. Dhiraj and Sh. Kamal was sitting with Dhiraj at front seat of the car. He also deposed that the said car had started from Rohini at about 12:15 AM and was heading towards Haldwani, Uttrakhand. He deposed that at about 3:30 AM, when the said car reached near PS. Pakbara, Jila Moradabad, UP, one truck bearing registration no. PB06-K-2817 came at very high speed and hit against their car from the side, as a result of which Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 10 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 their car got smashed and they all sustained injuries. He further deposed that they were immediately taken to Govt. Hospital, Moradabad, UP, where Divyankaa was declared dead by the doctors.
15. PW3/Injured was cross-examined on behalf of insurance company during which he deposed that he was sitting on the rear seat of car bearing no. UK04R-9414 at the time of accident. He further deposed that the aforesaid car was being driven by its driver on the left side of the road at the speed of about 55-60 kmph and the offending truck came from their left hand side. He further deposed that he did not know as to which portion of the truck had struck against the car. However, the car was damaged from its left side. He deposed that he did not notice the truck before the accident. He further deposed that there was no crossing at the spot of accident. He deposed that their car was going on the straight side of the road and there was a kachha road towards left side of the road, however, he did not know the width of the said Kachha road. He deposed that the metal road was a two lane road and there was a divider on the said road and the width of the metal road was such that two cars could pass side by side. He further deposed that the offending truck came from their back side. He further deposed that he did not know whether any other vehicle was near by their vehicle at the time of accident as it was night time. He deposed that he noticed the number of the offending truck as PB04K, however, he did not remember its complete registration number, when he was being taken to the hospital after the accident. He deposed that he did not know the description and colour of the offending Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 11 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 vehicle. He denied the suggestion that no such accident took place with the said offending vehicle. He further denied the suggestion that offending vehicle has been falsely implicated in the present case. He denied the suggestion that the accident took place due to rash and negligent driving of car in which they were travelling or that the said car was being driven in gross violation of traffic rules and regulations without caring for the other traffic on the road.
16. The facts of the case, arguments of the Ld. Counsels, evidence, material on record and duly verified documents of the criminal case, have been carefully examined and scrutinized. Respondent no. 1 namely Tarsem Singh has been charge sheeted for offences punishable U/s 279/338/304A IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question has taken place due to rash and negligent driving of offending vehicle. A case U/s 279/338/304A IPC was registered at PS. Pakbara vide FIR No. 433/16 on 02.11.2016 (accident being caused on 31.10.2016 at about 3:30 AM).
17. Perusal of the mechanical inspection report dated 03.11.2016 (which is the part of criminal case record) of the offending vehicle would show fresh damages i.e. scratches on the left side middle tyres. Likewise, copy of mechanical inspection report dated 03.11.2016 (which also part of criminal case record) of Car of victims would show that it was almost completely damaged as mentioned in the mechanical inspection report. Both Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 12 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 these reports would also corroborate the testimony of PW1 & PW3 to the effect that offending vehicle had hit their car. The site plan annexed with the criminal case record has been prepared during the investigation. Perusal of the same clearly reveals that offending vehicle came from front side after changing its lane. The spot of accident at point A as per site plan shows that due to change of lane by offending vehicle despite best efforts of the driver of the victim's vehicle to save the collision of his car with the offending vehicle, he could not have averted the collision and got collided with the offending vehicle. The rash and negligent driving of the offending vehicle may be proved, either by direct evidence or by circumstances including principle by applying the res-ipsa loquitur. The nature and manner of damage to the car of victims and the offending truck due to collision clearly points out to rash and negligent manner of driving of offending vehicle by respondent no. 1/driver, thereby causing injuries to the victims.
18. It is pertinent to note that the respondent no.1/driver of offending vehicle was the other material witness to throw light by testifying as to how and under what circumstances, the accident has taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question has taken place due to rash and negligent driving of the offending vehicle bearing registration no. PB06-K-2817 by the respondent no. 1. There is nothing on record to show that the petitioners had any enmity with the driver of the offending vehicle so as to falsely implicate him in this case. Reliance placed Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 13 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 on Cholamandalam MS General Insurance Co. Ltd. V. Kamlesh & Ors, MAC APP. No. 530/2008 passed by Hon'ble Delhi High Court on 11.11.2008.
19. Copy of MLCs (Which are also part of criminal case record) of injured persons namely Smt. Reena and Sh. Rohit filed would show that they had been removed to Government Hospital, Moradabad, UP immediately after the accident on 31.10.2016. They are shown to have sustained multiple injuries as mentioned therein. As per the supplementary reports (which are also part of criminal case record), petitioners namely Reena and Rohit had sustained grievous injuries. Not only this, postmortem was got conducted on the body of deceased child Divyankaa. The certified copy of PM Report (which is also part of criminal case record) of deceased, would show that cause of death of deceased has been opined due to antemortem head injury. All the injuries were ante-mortem in nature. The external injuries as mentioned in the relevant column correspond with the injuries which occur in Motor Vehicular Accident. These documents have not been disputed from the side of respondents.
20. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of preponderance of probabilities that Divyankaa has sustained fatal injuries, whereas petitioner Reena Sawhney and Rohit Sawhney have suffered grievous injuries in the Motor Vehicular Accident which occurred on 31.10.2016 at about 3:30 am, near Thana, Pakbara Jila, Moradabad, UP, due Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 14 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 to rash and negligent driving of offending vehicle(truck) bearing registration no. PB06-K-2817 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO.2
21. In case bearing MACP No. 848/17, the petitioners who are claimants are the parents of deceased Baby Divyankaa (age about 1 year 10 months) where petitioner no. 1 namely Smt. Reena Sawhney is the mother of deceased and petitioner no. 2 Sh. Rohit Sawhney is the father of deceased. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The death of a child of any age is a profound, difficult, and painful experience. The greatest agony of the parents is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. Why I am saying so, because the case in hand involves fatal injuries suffered by a 1 year 10 months old girl child namely Divyankaa in Motor Vehicular Accident, which took place on the fateful day of 31.10.2016 at about 3:30 am, near Thana, Pakbara Jila, Moradabad, UP, involving vehicle(truck) bearing registration no. PB06-K-2817 allegedly being driven by respondent No.1 in a rash and negligent manner on the date and time of accident. The petition shall accordingly is being adjudicated as per applicable law in case of death of a minor child.
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 15 of 48MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
22. MACP No. 846/17 has been filed in respect of injuries sustained by Reena Sawhney and MACP No. 847/17 has been filed in respect of injuries sustained by Rohit Sawhney, seeking compensation for injuries sustained by them .
23. Section 168 of the Motor Vehicle Act 1988 enjoins upon the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. The guiding principles for assessment of "just and reasonable compensation" in fatal case has been laid down by Hon'ble Supreme Court of India, in case titled as Smt. Anjali & Ors., Vs. Lokendra Rathod & Ors, in Civil Appeal No. 9014 of 202, decided on 06.12.2022 that: -
"The provisions of the Motor Vehicles Act, 1988 (for short, "MV Act") gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr.3, this Court has laid down as under:
"16."Just compensation" is adequate compensation which is fair and equitable, on the facts and Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 16 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit."
24. It has been duly established as per findings of issue no.1 that deceased Baby Divyankaa, injured namely Reena Sawhney and Rohit Sawhney sustained fatal and grievous injuries respectively on 31.10.2016 at about 3:30 am, near Thana, Pakbara Jila, Moradabad, UP, due to rash and negligent driving of the respondent no. 1/driver, as discussed herein-above, in Issue no.1. Accordingly, claimant(s) are entitled for just and fair compensation in the present case.
25. The intent and objective of the Beneficial Legislation is to grant equitable compensation to the vulnerable victims of road accidents and dynamic law has evolved towards grant of just and fair quantum of awards and has brought consistency and uniformity towards the desired goal. The Hon'ble Apex Court in "Sarla Verma v. Delhi Transport Corporation"
(2009) 6 SCC 121, which was affirmed by a bench of three Hon€ble Judges in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013) 9 SCC 65, held as under:
"16. "Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 17 of 48
MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
17. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation..."
26. These guiding principles for assessment of "just and reasonable compensation" have been torch bearer in injury cases also as laid down by Hon'ble Delhi High Court, in III (2007), ACC 676 titled as Oriental Insurance Co,. Ltd., Vs. Vijay Kumar Mittal & Ors, wherein it has been held:-
"10. The possession of one's own body is the first and most valuable all human rights and while awarding compensation for bodily injuries this primary element is to be kept in mind. Bodily injury is to be treated and varies on account of gravity of bodily injury. Though it is impossible to equate money with human suffering, agony and personal deprivation, the Court and Tribunal should make an honest and serious attempt to award damages so far as money can compensate the loss. Regard must be given to the gravity and degree of deprivation as well as the degree of awareness of the deprivation. Damages awarded in personal injury cases must be substantial and not token damages....."
11. The general principle which should govern the assessment of damages in persons injury cases is that the Court should award to injured persons such a sum as will put him in the same position as he would have been in the same position as he would have been in if he had not sustained injuries".
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 18 of 48MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
27. The Hon'ble Apex Court has held that the compensation should be just and is not expected to be a windfall or a bonanza nor it should be niggardly or a pittance. Reliance is placed on 2012 (8) SLT 676 titled K. Suresh Vs. New India Assurance Co. Ltd. The aforesaid Principle of law has also been reiterated by a landmark judgment of the Hon'ble Supreme court in 2017 (13) SCALE 12 : 2017 XI AD (SC) 113 titled National Insurance Co. Ltd. Vs. Pranay Sethi and Ors. Accordingly, the quantum of appropriate and adequate compensation to the victims of road accident is to be derived after assessment of various relevant parameters, as per law. Hereinafter, assessment is divided into several criteria, as applicable to the facts of the present case.
Compensation in MACP No. 848/17 (Deceased Divyankaa) LOSS OF DEPENDENCY
28. The claimants/petitioners are the parents of deceased. PW1 (mother of deceased) has deposed in her evidence by way of affidavit (Ex. PW1/A) that deceased Baby Divyankaa was her only child; she was 1 year and 10 months old at the time of accident. Said portion of the testimony of PW1 has gone unchallanged and unrebutted from the side of respondents. Even otherwise, the respondents have nowhere disputed the age of deceased throughout the inquiry. Hence, it is accepted that deceased was aged about 1 year and 10 months old at the time of accident.
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 19 of 48MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
29. Now, the question arises as to how the compensation has to be calculated in case of death of minor person. Hon'ble High Court of Delhi in the celebrated judgment delivered in the case titled as " Chetan Malhotra Vs. Lala Ram & Ors." passed in MAC. APP. No. 554/10 decided on 13.05.2016, has held that compensation on account of death of children in Motor Vehicular Accident cases ought to be dealt with by considering the claim towards pecuniary damages (towards loss of estate), in accordance with the age group wise categories as laid down by Hon'ble Apex Court in the matter titled as " R.K Malik Vs. Kiran Pal" reported at 2009 (14) SCC 1; the first category being of children less than 10 years' in age, the second category being of children more than 10 years' and upto 15 years' in age, and the third category of children more than 15 years' but not having attained the age of majority (18 years).
30. In the above cited decision, Hon'ble High Court of Delhi further held in para 68 of the judgment that since in the claims arising out of death of children, generally speaking, (non-earning hands), the income is to be notionally assumed on the basis of the Second Schedule of the M.V Act, the general practice of deduction of one-half (50%) towards personal and living expenses, as applied in case of bachelors above the age of 18 years would be unfair. Pertinently, the notional income specified for non-earning persons in the Second Schedule is very low as compared to the rates of Minimum Wages. Therefore, the deduction of one-third ( 1/3rd ) on this account, as Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 20 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 provided by the first note below the Second Schedule would only be appropriate.
31. Now, reverting back to the facts of the present case. As already stated above, baby Divyankaa was aged about 1 year and 10 months old at the time of accident. By applying the dictum of law laid down by Hon'ble Delhi High Court in Chetan Malhotra's case mentioned supra, the value of notional income in respect of deceased would be Rs. 39,600/- (15,000/- x 264 divided by 100)( The date of accident being 31.10.2016). After making deduction of one third towards personal and living expenses of deceased, annual loss to estate would come to Rs. 26,400/- (39,600/- x 2/3). The total loss of estate would be Rs. 2,64,000/- (26,400 x 10). Accordingly, the amount of Rs. 2,64,000/- is awarded as pecuniary damages on account of death of baby Divyankaa. Similarly, amount of Rs. 2,64,000/- is awarded as composite non pecuniary damages on account of death of said child. Thus, the total compensation amount is assessed as Rs. 5,28,000/-(Rs. 2,64,000/- plus Rs. 2,64,000/-) for the fatal injuries sustained by baby Divyankaa.
Compensation in MACP No. 846/17 (Injured Reena Sawhney) MEDICAL EXPENSES
32. PW1 Smt. Reena Sawhney i.e. injured herself, has deposed in her evidence by way of affidavit (Ex. PW1/A) that she has sustained grievous injuries in the accident. She further deposed that after the accident, she was removed to Government Hospital, Moradabad, UP. Thereafter, she was Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 21 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 referred to Cosmos Hospital, Moradabad, UP, where she was treated for her grievous crush injuries and thereafter, she was also treated for her right knee and left ankle at Max Hospital, Saket. She further deposed that she had incurred Rs. 1,54,350/- on her medical treatment. During her cross- examination on behalf of insurance company, she deposed that she was holding a medi-claim policy at the time of accident. She further deposed that she got reimbursed her medical bills under her medi-claim policy. She deposed that she had not filed on record her medi-claim policy. She further deposed that she had not filed on record any communication letter received from her mediclaim insurance company to show that she had not received full reimbursed of her medical bills. She denied the suggestion that she got full reimbursement of all her medical bills or that she intentionally and deliberately has not filed copy or details of her mediclaim policy to conceal the facts from the court to claim false compensation. She denied the suggestion that she had filed the false medical bills on record to claim false compensation. Respondents no. 1 & 2 did not cross-examine this witness being exparte.
33. PW2 Sh. Prakash Sahu, Medical Record Clerk from Max Smart Super Spceciality Hospital, Saket, Delhi has deposed that their hospital has raised bill dated 03.11.2016 (Ex. PW2/1 colly) of Rs. 2,40,675.27 paise to Smt. Reena Sawhney for her treatment, out of which their hospital received an amount of Rs. 2,02,590/- from IFFCO Tokio General Insurance Co. Ltd under mediclaim policy. He further deposed that a sum of Rs. 25,000/- was Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 22 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 deposited but it was not clear as to who had deposited the said amount. He also deposed that balance amount of Rs. 13,085.27 paise was to be paid by the patient. He deposed that as per record, their hospital raised another bill dated 05.03.2017 (Ex. PW2/2 colly) of Rs. 85,660.29 paise to Smt. Reena Sawhney for her treatment, out of which their hospital received an amount of Rs. 79,330/- from Parak Medi Claim TPA Pvt. Ltd, under mediclaim policy. He further deposed that a sum of Rs. 6,330/- was deposited but it was not clear as to who had deposited the said amount. He also deposed that balance amount of Rs. 29 paise was to be paid by the patient. He deposed that as per record, their hospital raised bill dated 01.03.2019 (Ex. PW2/3 colly) of Rs. 84,159/- to Smt. Reena Sawhney for her treatment, out of which their hospital received an amount of Rs. 80,277/- from Medsave Healthcare under mediclaim policy. He further deposed that a sum of Rs. 5,000/- was deposited but it was not clear as to who had deposited the said amount. He deposed that discount of Rs. 1562/- was given to the patient and ultimately, an amount of Rs. 2680/- was refunded to the patient.
34. It is relevant to note that the injured Smt. Reena Sawhney got reimbursed almost entire amount of her medical bills raised by Max Hospital and only a sum of Rs. 13,085.56 paise was due to be paid by her. The petitioner has relied upon testimony of PW2 who is Record Clerk from Max Hospital from where she got the treatment. No doubt, PW2 in his evidence has deposed that Rs. 13,085.56 paise was due to be paid by the patient, however, during his cross-examination by Ld. Counsel for insurance co., he Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 23 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 deposed that he did not have any document to show whether the said balance amount to be paid by the patient was actually paid by them or not. He also deposed that he could not confirm whether the said balance amount was paid by the patients or not. In the light of aforesaid discussion, I am of the considered view that the petitioner has failed to prove that she had actually paid the aforesaid amount to the hospital for the treatment obtained by her in the said hospital. Accordingly, no amount is awarded to the petitioner Smt. Reena Sawhney under this head.
PHYSIOTHERAPY BILLS
35. During the course of arguments, Ld. Counsel for petitioners submits that petitioner Smt. Reena Sawhney and Sh. Rohit Sawhney have spent considerable amount on physiotherapy. For this, they have relied upon the testimony of PW5 Dr. Sadre Alam who deposed in his evidence that he had conducted physiotherapy on patient Reena Sawhney and Rohit Sawhney. He proved that receipts already Ex. PW1/10 to Ex. PW1/16 in respect of Ms. Reena Sawhney have been issued by him. During his cross-examination, he deposed that he did not have any office record to show that any such physiotherapy was conducted on the said patients or that any such amount was received by Total Healthsums. He further deposed that he did not have any document or prescriptions of the patients advising any physiotherapy to the patients. He volunteered that the aforesaid patients were given physiotherapy as per their Discharge Slips. The aforesaid patients were Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 24 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 given physiotherapy at their home(s), as per Discharge Summary of Ms.Reena Sawhney dated 03.11.2016 and Discharge Summary of Rohit Sawhney dated 04.11.2016. He admitted that no time period for getting the physiotherapy was mentioned on the said Discharge Summaries (Ex.PW2/Y). He further deposed that the house of aforesaid patients consists of two rooms and they reside either at first floor or third floor of the said building. He further deposed that he did not remember the total number of floors in the said building. He deposed that he used to go for physiotherapy daily of the aforesaid patients, except on some Sunday and on festival holiday(s). He further deposed that the aforesaid patients were not known to him prior to the said period. He deposed that normally, he used to take his fees on weekly basis. He further deposed that the aforesaid payments were received and appropriated by him in his own account. He further deposed that he was conducting the same physiotherapy to 7-8 patients at that time. He deposed that he did not have any record in respect of the said 7-8 patients also. He further deposed that as he was taking his fees in cash, he was not maintaining any record regarding the physiotherapy and payments. He deposed that the same physiotherapy was available free of cost in Government Hospitals and at a very lower cost in Charitable Hospitals. He further deposed that he did not see any prescription advising any physiotherapy to the aforesaid patients, except the Discharge Summaries, as aforementioned. He deposed that he used to give receipts to the patients against the payment received by him. He deposed that in the present case, he gave the receipts on month to month basis. He further deposed that usually, Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 25 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 he gives the receipts to the patients on completion of the treatment where the treatment is completed within a month. He denied the suggestion that he was not authorized person on behalf of total Healthsums. He further denied the suggestion that he did not conduct any such physiotherapy to the aforesaid patients or did not charge any such amount from them. He further denied the suggestion that he had issued the aforesaid false receipts in collusion with the aforesaid patients to favour them in the present case.
36. The testimony of PW1 is corroborated by testimony of PW5 Dr. Sadre Alam, BPT, Physiotherapist and that of PW2 i.e. Medical Record Clerk of Max Smart Super Speciality Hospital. PW5 proved relevant bills (Ex.PW1/10 to Ex. PW1/16) regarding physiotherapy treatment given by him to the petitioner herein. During his cross examination, he deposed that he did not have any office record to show that any such physiotherapy was conducted on the said patients or that any such amount was received by Total Healthsums. He further deposed that he did not have any document or prescriptions of the patients advising any physiotherapy to the patients. He volunteered that the aforesaid patients were given physiotherapy as per their discharges slips. He further deposed that the aforesaid patients were given physiotherapy at their home(s), as per discharge summary of Ms. Reena Sawhney dated 03.11.2016 and discharge summary of Rohit Sawhney dated 04.11.2016. He admitted that no time of period for getting the physiotherapy was mentioned on the said discharge summaries (Ex. PW2/Y). He deposed that he used to go for physiotherapy daily of the aforesaid patients, except on Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 26 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 some Sunday and on festival holiday(s). He further deposed that the aforesaid patients were not known to him prior to the said period.
37. It is quite evident from the aforesaid discussion that the respondents, more particularly the Insurance Company failed to create any doubt on the authenticity and genuineness of the physiotherapy bills, during the course of inquiry. It is relevant to note that the injured Reena Sawhney has relied upon physiotherapy bills to the tune of Rs. 1,47,450/- which are exhibited as Ex. PW1/10 to Ex. PW1/16. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 1,47,000/- (rounded off) is awarded to the petitioner under this head.
LOSS OF INCOME
38. Injured namely Ms. Reena Sawhney (PW1) has deposed in her evidence by way of affidavit Ex. PW1/A that she was working as a Manager at Unichem Laboratories Mumbai at Delhi and was earning Rs. 55,000/- per month at the time of accident. During her cross-examination on behalf of insurance company, she deposed that she had received full salary for her leave period. She further deposed that she had not filed on record any leave certificate. She denied the suggestion that she did not avail any leave from Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 27 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 her office due to the accident. She further denied the suggestion that she was not earning the said amount as on the date of accident. She further denied the suggestion that she had not suffered any financial loss due to the accident.
39. The treatment record i.e. Discharge Summary (Mark A) of Max Hospital, in respect of petitioner/injured Smt. Reena Sawhney, would reveal that she had admitted in the said hospital on 31.10.2016 and was discharged on 03.11.2016. As per the said discharge summary, she is found to have suffered fracture Distal femur right(with intra Articular Extension) plus fracture lateral malleolus left ankle.
40. It is an admitted fact that petitioner had received full salary for her leave period. She has also not filed on record any leave certificate. It may be noted here that petitioner has failed to led any evidence in order to prove his loss of income/leave due to the injuries suffered by her in the accident. In the absence of any cogent evidence in this regard, I am not inclined to grant any compensation to the petitioner under this head.
PAIN AND SUFFERING
41. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under:-
" It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 28 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
42. As already noted above, the medical treatment record (Mark A) of Max Hospital, in respect of petitioner/injured, would reveal that she had suffered fracture Distal femur right(with intra Articular Extension) plus fracture lateral malleolus left ankle. Thus, she would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by her, I hereby award a sum of Rs. 50,000/- towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
43. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered grievous injuries in the accident in question. Thus, she would not be able to enjoy general amenities of life after the accident in question, during rest of her life and her quality of life has been definitely affected. In view of the nature of injuries suffered by her, I award a notional sum of Rs. 50,000/- towards loss of general amenities and enjoyment of life to the petitioner.
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 29 of 48MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 CONVEYANCE , SPECIAL DIET & ATTENDANT
44. Ld. Counsel for petitioner/injured argued that petitioners have incurred considerable amount on conveyance, special diet and attendant charges. Thus, appropriate amount shall be awarded to her under these heads. However, petitioner has failed to lead any cogent evidence on record in respect of amount incurred by her under the aforesaid heads. At the same time, it cannot be overlooked that her case was that of fracture Distal femur right(with intra Articular Extension) plus fracture lateral malleolus left ankle. Thus, she would have taken special rich protein diet for her speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for her regular check up & follow up during the period of her medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 10,000/- each for conveyance charges, special diet and attendant charges to the petitioner.
Thus, the total compensation is assessed as under:-
1. Physiotherapy bills Rs. 1,47,000/-
2. Pain and suffering Rs. 50,000/-
3. Loss of general amenities and Rs. 50,000/-
enjoyment of life
4. Conveyance, special diet and Rs. 30,000/-
attendant charges Total Rs. 2,77,000/-
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 30 of 48MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 Compensation in MACP No. 847/17 (Injured Rohit Sawhney) MEDICAL EXPENSES
45. PW1 Sh. Rohit Sawhney i.e. injured himself, has deposed in his evidence by way of affidavit (Ex. PW3/A) that he has suffered grievous injuries in the accident. He further deposed that after the accident, she was removed to Government Hospital, Moradabad, UP. Thereafter, he was referred to Cosmos Hospital, Moradabad, UP and thereafter, he was further treated at Max Hospital, Saket, Delhi. He further deposed that she had incurred Rs. 70,000/- on his medical treatment. During his cross- examination on behalf of insurance company, he deposed that he was holding a medi-claim policy at the time of accident. He further deposed that he had taken claim under his medi-claim policy for the injuries sustained in the present accident. However, he did not get the full claim of his medical expenses. He further deposed that he had not filed said medical policy. He further deposed that he had not filed any communication letter received from his mediclaim insurance company to show that he had not received full reimbursement of his medical expenses. He denied the suggestion that he got full reimbursement of his medical expenses under his medi-claim policy or that he intentionally and deliberately had not filed copy or details of his medi-claim policy to conceal the material facts from the court to get the false compensation. Respondents no. 1 & 2 did not cross-examine this witness.
46. PW2 Sh. Prakash Sahu, Medical Record Clerk from Max Smart Super Specialty Hospital, Saket, Delhi has deposed that their hospital has Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 31 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 raised bill dated 03.11.2016 for a total amount of Rs. 2,26,640.36 paise in respect of patient Sh. Rohit Sawhney, out of which their hospital received an amount of Rs. 1,82,809/- from IFFCO Tokio General Insurance Co. Ltd under mediclaim policy. He further deposed that a sum of Rs. 25,000/- was deposited but it was not clear as to who had deposited the said amount. He also deposed that balance amount of Rs. 18,831.36 paise was to be paid by the patient. He further deposed that as per record, their hospital raised bill dated 04.11.2016 for a total amount of Rs. 9,189.82 paise in respect of patient Sh. Rohit Sawhney. He further deposed that the patient had deposited total amount of Rs. 20,000/- and after deduction of Rs. 9,189.82 paise, the balance amount of Rs. 10,810.18 paise was refunded to the patient. During his cross- examination on behalf of insurance company, he deposed that he did not have any personal knowledge of the treatment of the aforesaid patients. He further deposed that he had deposed only as per record. He deposed that all the original bills, receipts of payment and discharge summaries were given to the patient. He further deposed that he did not have any document to show whether the said balance amounts to be paid by the patients was actually paid by them or not. He further deposed that even he could not confirm whether the said balance amount was paid by the patients or not.
47. It is relevant to note that the injured Sh. Rohit Sawhney got reimbursed almost entire amount of his medical bills raised by Max Hospital and only a sum of Rs. 18,831.36 paise was due to be paid by him. The petitioner has relied upon testimony of PW2 who is Record Clerk from Max Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 32 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 Hospital from where he got the treatment. No doubt, PW2 in his evidence has deposed that Rs. 18,831.36 paise was due to be paid by the patient, however, during his cross-examination by Ld. Counsel for insurance co., he deposed that he did not have any document to show whether the said balance amount to be paid by the patient was actually paid by them or not. He also deposed that he could not confirm whether the said balance amount was paid by the patients or not. In the light of aforesaid discussion, I am of the considered view that the petitioner has failed to prove that he had actually paid the aforesaid amount to the hospital for the treatment obtained by him in the said hospital. Accordingly, no amount is awarded to the petitioner Sh. Rohit Sawhney under this head.
PHYSIOTHERAPY BILLS
48. During the course of arguments, Ld. Counsel for petitioners submits that petitioner Smt. Reena Sawhney and Sh. Rohit Sawhney have spent considerable amount on physiotherapy. For this, they have relied upon the testimony of PW5 Dr. Sadre Alam who deposed in his evidence that he had conducted physiotherapy on patient Reena Sawhney and Rohit Sawhney. He proved that receipts already Ex. PW3/4 to Ex. PW3/6 in respect of Mr. Rohit Sawhney have been issued by him. During his cross-examination, he deposed that he did not have any office record to show that any such physiotherapy was conducted on the said patients or that any such amount was received by Total Healthsums. He further deposed that he did not have Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 33 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 any document or prescriptions of the patients advising any physiotherapy to the patients. He volunteered that the aforesaid patients were given physiotherapy as per their Discharge Slips. The aforesaid patients were given physiotherapy at their home(s), as per Discharge Summary of Ms.Reena Sawhney dated 03.11.2016 and Discharge Summary of Rohit Sawhney dated 04.11.2016. He admitted that no time period for getting the physiotherapy was mentioned on the said Discharge Summaries (Ex.PW2/Y). He further deposed that the house of aforesaid patients consists of two rooms and they reside either at first floor or third floor of the said building. He further deposed that he did not remember the total number of floors in the said building. He deposed that he used to go for physiotherapy daily of the aforesaid patients, except on some Sunday and on festival holiday(s). He further deposed that the aforesaid patients were not known to him prior to the said period. He deposed that normally, he used to take his fees on weekly basis. He further deposed that the aforesaid payments were received and appropriated by him in his own account. He further deposed that he was conducting the same physiotherapy to 7-8 patients at that time. He deposed that he did not have any record in respect of the said 7-8 patients also. He further deposed that as he was taking his fees in cash, he was not maintaining any record regarding the physiotherapy and payments. He deposed that the same physiotherapy was available free of cost in Government Hospitals and at a very lower cost in Charitable Hospitals. He further deposed that he did not see any prescription advising any physiotherapy to the aforesaid patients, except the Discharge Summaries, as Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 34 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 aforementioned. He deposed that he used to give receipts to the patients against the payment received by him. He deposed that in the present case, he gave the receipts on month to month basis. He further deposed that usually, he gives the receipts to the patients on completion of the treatment where the treatment is completed within a month. He denied the suggestion that he was not authorized person on behalf of total Healthsums. He further denied the suggestion that he did not conduct any such physiotherapy to the aforesaid patients or did not charge any such amount from them. He further denied the suggestion that he had issued the aforesaid false receipts in collusion with the aforesaid patients to favour them in the present case.
49. The testimony of PW1 is corroborated by testimony of PW5 Dr. Sadre Alam, BPT, Physiotherapist and that of PW2 i.e. Medical Record Clerk of Max Smart Super Speciality Hospital. PW5 proved relevant bills (Ex.PW3/4 to Ex. PW3/6) regarding physiotherapy treatment given by him to the petitioner herein. During his cross examination, he deposed that he did not have any office record to show that any such physiotherapy was conducted on the said patients or that any such amount was received by Total Healthsums. He further deposed that he did not have any document or prescriptions of the patients advising any physiotherapy to the patients. He volunteered that the aforesaid patients were given physiotherapy as per their discharges slips. He further deposed that the aforesaid patients were given physiotherapy at their home(s), as per discharge summary of Ms. Reena Sawhney dated 03.11.2016 and discharge summary of Rohit Sawhney dated Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 35 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 04.11.2016. He admitted that no time of period for getting the physiotherapy was mentioned on the said discharge summaries (Ex. PW2/Y). He deposed that he used to go for physiotherapy daily of the aforesaid patients, except on some Sunday and on festival holiday(s). He further deposed that the aforesaid patients were not known to him prior to the said period.
50. It is quite evident from the aforesaid discussion that the respondents, more particularly the Insurance Company failed to create any doubt on the authenticity and genuineness of the physiotherapy bills, during the course of inquiry. It is relevant to note that the injured Rohit Sawhney has relied upon physiotherapy bills to the tune of Rs. 63,000/- which are exhibited as Ex. PW3/4 to Ex. PW3/6. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 63,000/- (rounded off) is awarded to the petitioner under this head.
LOSS OF INCOME
51. Injured namely Rohit Sawhney (PW1) has deposed in his evidence by way of affidavit Ex. PW3/A that he was working as Office Administrator at Zydica Healthcare, Delhi and was earning Rs. 15,000/- per month at the time of accident. He further deposed that he was on bed and was under treatment for 6 months. During his cross-examination on behalf of Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 36 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 insurance company, he deposed that he did not have any document regarding his avocation and income at the time of accident. He further deposed that he did not have any leave certificate. He denied the suggestion that he was not required any bed rest. He further denied the suggestion that he was not employed for gain at the time of accident.
52. The treatment record i.e. Discharge Summary (Mark A) of Max Hospital, in respect of petitioner/injured Smt. Reena Sawhney, would reveal that she had admitted in the said hospital on 31.10.2016 and was discharged on 03.11.2016. As per the said discharge summary, he is found to have suffered left femur shaft fracture and left 5th rib fracture and left unicortical tibial fracture. Nevertheless, it can not be overlooked that the petitioner had sustained grievous injuries as mentioned above due to the accident. It is apparent from the medical treatment record (Ex. PW3/2 colly) filed by the petitioner that his treatment continued for about three months and his last invoice is dated 24.02.2017 issued by Max Hospital. Therefore, it is established that treatment of petitioner continued for about 3 months (accident being caused on 31.10.2016). Considering the nature of injuries sustained by the petitioner, it is reasonable to consider that the petitioner would have been precluded to resume his work for a period of three months which includes period of recovery also.
53. In order to prove the employment and income of deceased, petitioners have examined PW4 Sh. Vikas Dosaj, Partner, M/s. Zydica Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 37 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 Healthcare, who deposed that Rohit Sawhney was employed with their aforesaid firm as "Office Clerk". He further deposed that he worked with them from mid august 2016 till October 2016 and exhibited the copy of his appointment letter as Ex. PW4/2. He further deposed that he was appointed at a consolidated monthly salary of Rs. 15,000/-. He exhibited the copies of his salary slip/payment advice/payment voucher for the months of August 2016, September 2016 and October 2016 are Ex. PW4/3(colly). During his cross- examination on behalf of insurance company, he deposed that he did not have any record regarding attendance of Rohit Sawhney. He admitted that Ex. PW4/3(colly) did not bear the signature of any person on behalf of the firm, bank account and PAN Card, details of Sh. Rohit Sawhney. He further deposed that he did not have any document in writing and under signature of Sh. Rohit Sawhney, except the record filed by him. He deposed that he had not brought any document to show that alleged payment to Mr. Rohit Sawhney was shown in the income tax records of M/s. Zydica Healthcare. He further deposed that no PF was deducted from the payment made to Mr. Rohit Sawhney. He further deposed that no ESI coverage was taken on behalf of Mr. Rohit Sawhney. He denied the suggestion that Sh. Rohit Sawhney was never employed with Zydica Healthcare or that no such amount was ever paid to him. He further denied the suggestion that documents filed by him were false and procured and have been prepared at the instance of the petitioner to favour him in the present case.
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 38 of 48MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
54. After referring to the testimonies of PW3 & PW4 and the documents filed by the said witnesses, Ld. counsel for petitioner vehemently argued that monthly salary of petitioner may be taken as Rs. 15,000/- as per his payslip for the months of October and November, 2016 in order to calculate the loss of income.
55. On the other hand, Ld. Counsel for the insurance company argued that there is no concrete evidence led by petitioner to establish the monthly income of petitioner at the time of accident. Thus, his monthly income should be calculated on the basis of notional income as per Minimum Wages Act applicable during the relevant period.
56. As per the the documents produced by PW4, it is apparent that injured Rohit Sawhney was working as Office Clerk at Zydica Healthcare at the time of accident. As per the documents i.e. payment advice(which is part of Ex. PW4/2 colly) produced by PW4, petitioner had withdrawn salary of Rs. 15,000/- each in the month of October & November, 2016. The date of accident in the present case is 31.10.2016. In view of the documents produced by PW3 & PW4, I deem it fit to accept the monthly salary of petitioner/injured as Rs. 15,000/- as on the date of accident. I am fortified in my view with the decision of Hon'ble Supreme Court passed in case titled "Mohammed Siddique & Anr. Vs. National Insurance Co. Ltd. & Ors.", Civil Appeal No. 79 of 2020, decided on 08.01.2020. The relevant paragraphs from S.No. 16 to 18 of the aforesaid decision are reproduced as under:-
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 39 of 48MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 xxxxx "16. But unfortunately the High Court thought that the employer should have produced salaryvouchers and other records including income tax returns, to substantiate the nature of the employment and the monthly income. On the ground that in the absence of other records, the salary certificate and the oral testimony of the employer could not be accepted, the High Court proceeded to take the minimum wages paid for the unskilled workers at the relevant point of time as the benchmark.
17. But we do not think that the approach adopted by the High court could be approved. To a specific question in cross−examination, calling upon PW−2 to produce the salary vouchers, he seems to have replied that his business establishment had been wound up and that the records are not available.
This cannot be a ground for the High Court to hold that the testimony of PW−2 is unacceptable.
18. The High Court ought to have appreciated that the Court of first instance was in a better position to appreciate the oral testimony. So long as the oral testimony of PW−2 remained unshaken and hence believed by the Court of first instance, the High Court ought not to have rejected his evidence. After all, there was no allegation that PW−2 was set up for the purposes of this case. There were also no contradictions in his testimony. As against the testimony of an employer supported by a certificate issued by him, the High Court ought not to have chosen a theoretical presumption relating to the minimum wages fixed for unskilled employment.
Therefore, the interference made by the High Court Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 40 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 with the findings of the Tribunal with regard to the monthly income of the deceased, was uncalled for.
Xxxxx
57. In view of the aforesaid detailed discussion, a sum of Rs. 45,000/- (Rs. 15,000/- x 3) is awarded in favour of petitioner under this head.
PAIN AND SUFFERING
58. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under:-
" It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
59. As already noted above, the medical treatment record (Mark A) of Max Hospital, in respect of petitioner/injured, would reveal that he had suffered left femur shaft fracture and left 5th rib fracture and left unicortical tibial fracture. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 41 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 medical treatment record of petitioner available on record and the nature of injuries suffered by him, I hereby award a sum of Rs. 30,000/- towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
60. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered grievous injuries in the accident in question. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries suffered by him, I award a notional sum of Rs. 30,000/- towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE , SPECIAL DIET & ATTENDANT
61. Ld. Counsel for petitioner/injured argued that petitioners have incurred considerable amount on conveyance, special diet and attendant charges. Thus, appropriate amount shall be awarded to him under these heads. However, petitioner has failed to lead any cogent evidence on record in respect of amount incurred by him under the aforesaid heads. At the same time, it cannot be overlooked that his case was that of left femur shaft fracture and left 5th rib fracture and left unicortical tibial fracture Thus, he would have taken special rich protein diet for his speedy recovery and would Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 42 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 10,000/-each for conveyance charges, special diet and attendant charges to the petitioner.
Thus, the total compensation is assessed as under:-
1. Physiotherapy Bills Rs. 63,000/-
2. Loss of income Rs. 45,000/-
3. Pain and suffering Rs. 30,000/-
4. Loss of general amenities and Rs. 30,000/-
enjoyment of life
5. Conveyance, special diet and Rs. 30,000/-
attendant charges Total Rs. 1,98,000/-
62. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Ld counsel for insurance company vehemently argued that driving licence(DL) in favour of respondent no. 1 namely Sh. Tarsem Singh, was found to be fake and thus, insurance company is not liable to pay the compensation amount to the petitioner in the present case. In order to prove its contention, respondent no.
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 43 of 48MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 3 has examined R3W1 Sh. Raj Kumar, Assistant, National Insurance Co. Ltd. He proved office copy of notice under order 12 Rule 8 CPC as Ex. R3W1/1, registered postal receipt as Ex. R3W1/2, certified copy of insurance policy as Ex. R3W1/3, copy of driving licence of respondent no. 1 as Ex. R3W1/4 and driving licence verification report filed by IO under the directions of the court as Ex. R3W1/5. The said witness was not cross-examined by driver and owner.
63. Perusal of the report issued from RTO LA-Mokokchung, Nagaland reveals that the said driving licence of R1 purportedly to be issued from Nagaland Authority, failed to disclose any genuine record and was found to be fake. Neither respondent no. 1 nor respondent no. 2 have tendered valid Driving Licence of respondent no. 1, for the relevant period. The report Ex.R3W1/5 issued from RTO LA-Mokokchung, Nagaland has not been challenged on behalf of respondents no. 1 & 2.
64. It would be relevant to discuss, in brief, the testimony of R3W1. As considered, Insurance company has claimed recovery rights against respondents no. 1 & 2 with its defence that the driving licence of respondent no.1 issued from LA-Mokokchung, Nagaland was found to be fake. As already discussed hereinabove, the respondent no.1 has not tendered any valid driving licence as on the date of accident in his favour. The Insurance company has established violation of the terms and conditions of the insurance policy for want of valid driving licence of respondent no.1 as on Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 44 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 the date of accident. Accordingly, insurance company is entitled to recovery rights against the respondents no.1 and 2 i.e. driver and registered owner, who are jointly and severally liable. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
65. In view of my findings on issues no. 1 & 2, following order is passed after relying upon judgment "United India Insurance Co. Ltd. V. Baby Raksha & Ors.", MAC APP. No. 36/2023 on 21.04.2023, on the point of interest .
a) A sum of Rs. 5,28,000/- (including interim award amount, if any) in MAC Petition No. 848/17 alongwith interest @ 7.5% per annum in favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 06.10.2017(except for the period of delay w.e.f. 02.06.2022 till 22.07.2022, from 02.09.2022 till 13.12.2023 and from 15.02.2024 till 14.03.2024 ) till the date of its realization.
b) A sum of Rs. 2,77,000/- (including interim award amount, if any) in MAC Petition No. 846/17 alongwith interest @ 7.5% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 06.10.2017(except for the period of delay w.e.f. 02.06.2022 till 22.07.2022, from 02.09.2022 till 13.12.2023 and from 15.02.2024 till 14.03.2024) till the date of its realization.
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 45 of 48MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
c) A sum of Rs. 1,98,000/- (including interim award amount, if any) in MAC Petition No. 847/17 alongwith interest @ 7.5% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 06.10.2017(except for the period of delay w.e.f. 02.06.2022 till 22.07.2022, from 02.09.2022 till 13.12.2023 and from 15.02.2024 till 14.03.2024 ) till the date of its realization.
Issue no. 3 is decided accordingly.
APPORTIONMENT
66. It is pertinent to mention here that statements of petitioner(s) in terms of Clause 29 MCTAP were recorded on 18.02.2022. Having regard to the facts and circumstances of the case, it is hereby ordered that out of total compensation amount, the petitioner no.1 Smt. Reena Sawhney shall be entitled to share amount of Rs. 3,00,000/- (Rupees Three Lakhs Only) alongwith proportionate interest and the petitioner no. 2 namely Sh. Rohit Sawhney shall be entitled to share amounts of Rs. 2,28,000/- (Rupees Two Lakhs and Twenty Eight Thousand Only) alongwith proportionate interest.
67. In MACP No. 848/17, entire respective awarded amount of petitioner no. 1 & 2 is directed to be immediately release to them through their respective bank accounts on completing necessary formalities, as per rules.
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 46 of 48MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024
68. In MACP No. 846/17, entire awarded amount of petitioner is directed to be immediately release to her through her bank account on completing necessary formalities, as per rules.
69. In MACP No. 847/17, entire awarded amount of petitioner is directed to be immediately release to him through his bank account on completing necessary formalities, as per rules.
70. Respondent no. 3/National Insurance Co. Ltd, being insurer of offending vehicle, is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 9% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective amounts of petitioners in their bank accounts, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimants. Copy of this award be also given dasti to counsel for insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of both the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV, XVI & XVII in terms of MCTAP are annexed herewith as Annexure-A. Copy of Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 47 of 48 MACP Nos. 848/17, 846/17 & 847/17; FIR No.433/16 DOD: 19.03.2024 order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP. Signed copy of this Award be placed on the judicial record of MAC Petition Nos. 846/17 & 847/17 as per the rules.
Digitally signed by RICHA RICHA MANCHANDA
Announced in the open MANCHANDA Date: 2024.03.19
15:14:44 +0300
Court on 19.03.2024
(RICHA MANCHANDA)
Judge MACT-2 (North)
Rohini Courts, Delhi
Smt. Reena Sawhney & Ors, Reena Sawhney & Rohit Vs. Tarsem Singh & Ors. Page 48 of 48