Delhi District Court
Sh. Arjun Aggarwal S/O Late Sh. Roshan ... vs Sh. Vijay S/O Sh. Ranjit Singh Rajpur on 6 January, 2016
1
IN THE COURT OF MS. BARKHA GUPTA : JUDGE : MOTOR
ACCIDENT CLAIMS TRIBUNAL : NORTHWEST DISTRICT
ROHINI COURTS: DELHI
MACT No. : 691/09
UNIQUE ID No. : 02404C0343022009
Sh. Arjun Aggarwal S/o Late Sh. Roshan Lal Aggarwal
R/o B4, Panchwati Colony,
Indra Nagar, Azadpur, Delhi. ....(Injured/Petitioner)
Versus
1. Sh. Vijay S/o Sh. Ranjit Singh Rajpur,
R/o H.No. 253, Malik Colony, Near P.G.I.,
Chandigarh. .....(Driver/Respondent No. 1)
2. Sh. Sumit Sharma S/o Sh. Mukesh Sharma, R/o H.No. 3258/2, Sector41D, Chandigarh. .....(Owner/Respondent no. 2)
3. The New India Assurance Company Ltd., SCO, 104106, Sector34A, Chandigarh. ....(Insurer/Respondent No.3) MACT No.691/09 Arjun Aggarwal Vs. Vijay 1 of 31 2 Other details: DATE OF INSTITUTION : 23.11.2009 DATE OF RESERVING ORDER : 04.01.2016 DATE OF PRONOUNCEMENT :06.01.2016 AWARD/JUDGMENT
1. The petition under sections 166 & 140 of the Motor Vehicles Act, 1988 has been filed by the petitioner/injured namely Sh. Arjun Kumar Aggarwal whereby he has claimed compensation to the tune of Rs. 20 lacs alongwith interest at the rate of 18% per annum from Sh. Vijay/R1, Sh. Sumit Sharma/R2, who were the respectively the driver and owner of the offending vehicle at the relevant time and from The New India Assurance Company Ltd./R3, who was the insurer of the offending vehicle from the date of filing of petition till realisation of compensation amount.
2. Brief facts of the case as revealed from the petition are that on 29.01.2009, the petitioner/injured Sh. Arjun Kumar Aggarwal alongwith his wife namely Smt. Kamlesh Aggarwal, their daughter Ms. Neetu Aggarwal and their son was going to Panchkula in their car bearing registration No.DL4CAG3978, MACT No.691/09 Arjun Aggarwal Vs. Vijay 2 of 31 3 which at the relevant time was driven by their driver namely Sh. Rampreet. When at about 3:304:00 pm, they reached at GTK Road near Kumaspur Mor, Omax City, PS Murthal, Sonipat, Haryana, suddenly, an Innova car bearing registration No. CH022408 (hereinafter referred to as the "offending vehicle") which at the relevant time was driven by Sh. Vijay/R1 in a rash and negligent manner came from the opposite side at high speed which hit the car of the petitioner due to which the accident occurred wherein apart from his wife and daughter Ms. Neetu Aggarwal, the petitioner and their driver Sh. Rampreet also sustained injuries. They were initially admitted in General Civil Hospital, Sonipat, Haryana by the officials of traffic mobile van which arrived at the spot soon after the accident, however, on the way to hospital, the driver of their car succumbed to his injuries and expired. It is further submitted that the petitioner and his other family members were also treated at Maharaja Agrasen Hospital, Delhi.
The petitioner has further submitted that at the relevant time he was 50 years old and was self employed as he used to run a MACT No.691/09 Arjun Aggarwal Vs. Vijay 3 of 31 4 shop from which he used to earn Rs. 10,000/ per month. The petitioner has further submitted that due to various injuries sustained by him in the said accident, he had suffered from fractures and has become permanently disabled. He has also contended that he had spent a huge amount on his medical treatment etc. and has suffered from physical pain, mental torture and huge financial loss as he could not attend to his work for a considerably long time. It is further submitted that with respect to the said accident, FIR No.31/2009 U/s 279/337/338/304 IPC was registered at PS Murthal, District Sonipat, Haryana against R1, wherein he was prosecuted.
The petitioner has prayed that compensation in sum of Rs.20 lacs alongwith interest at the rate of 18% per annum be awarded in his favour and all the respondents are liable to pay him the said compensation amount jointly as well as severally as Sh. Vijay/R1 and Sh. Sumit Sharma/R2 were the driver and owner of the offending vehicle respectively at the relevant time and the New India Assurance Company Ltd./R3, was the insurer of the offending vehicle from the date of filing of the claim MACT No.691/09 Arjun Aggarwal Vs. Vijay 4 of 31 5 petition till realisation of the said amount.
3. As per record, R1 & R2, who were the driver and owner of the offending vehicle have filed their written statement, wherein they have interalia submitted that they are not liable to pay any compensation amount as prayed by the petitioner because R1 was neither at fault nor he was rash and/ or negligent in driving the offending vehicle.
They have further submitted that the said accident occurred due to sole negligence of driver of the car, wherein the petitioner alongwith his family members was traveling. It is also submitted that the offending vehicle was duly insured with R3 and so, R1 & R2 are not liable to pay any compensation amount to the petitioner.
4. The New India Assurance Company Ltd./R3 has also filed its written statement wherein it has interalia submitted that the driver of car in which the petitioner alongwith his family members was traveling himself was negligent and R1 was driving the offending vehicle properly and so, it is not liable to pay any compensation amount as claimed. It has also admitted MACT No.691/09 Arjun Aggarwal Vs. Vijay 5 of 31 6 that the offending vehicle was duly insured with it vide policy No.350200/31/08/01/00005149, which was valid w.e.f 18.10.2008 to 17.10.2009 in the name of Sh. Sumit Sharma/R2.
5. As per record, after completion of pleadings of parties, following issues were framed by my Ld. Predecessor vide order dt. 28.05.2011:
1. Whether on 29.01.09 at about 3:304:00 pm at GTK Road near Kamaspur Mor, Omax City, PS Murthal, Sonipat, Haryana vehicle No. CH022408 which was being driven rashly and negligently hit the car in which the petitioner was traveling and caused injuries to him?
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom?
3. Relief.
6. The petitioner has examined himself as PW1 and his wife namely Smt. Kamlesh Aggarwal, who is also one of the injured and is an eye witness as PW2. The petitioner has further examined Dr. Arun Yadav (HOD, Ortho, Hindu Rao Hospital, Delhi) as PW7 to prove his permanent disability. MACT No.691/09 Arjun Aggarwal Vs. Vijay 6 of 31 7
7. As per record, the New India Assurance Company Ltd./R3 has also examined two witnesses namely Sh. Basant Kumar Rohtagi, (Dy. Manager for New India Assurance Company Ltd.) as R3W1 and Sh. Anand Kumar Verma, (Assistant Accountant, RTO Office, Agra, U.P) as R3W2. As per record, none of the other respondents have adduced any evidence, who were proceeded exparte by my Ld. Predecessor.
8. I have heard final arguments as advanced by Advocate Sh. Yogesh Narula, Ld. Counsel for the petitioner & Advocate Sh. R.P. Mathur, Ld. Counsel for The New India Assurance Company Ltd./R3. None on behalf of R1 & R2 has advanced final arguments. Now, I proceed to discuss the issues in the succeeding paragraphs.
9. Issue no. 1 "Whether on 29.01.09 at about 3:304:00 pm at GTK Road near Kamaspur Mor, Omax City, PS Murthal, Sonipat, Haryana vehicle No. CH022408 which was being driven rashly and negligently hit the car in which the petitioner was traveling and caused injuries to him?"
MACT No.691/09 Arjun Aggarwal Vs. Vijay 7 of 31 8
10. The petitioner has examined himself as PW1 and has also examined his wife namely Smt. Kamlesh Aggarwal as PW2. He has further examined Dr. Arun Yadav (HOD Ortho Hindu Rao Hospital, Delhi) as PW7 to prove his permanent disability.
11. It is pertinent to discuss that PWs1 & 2 are the witnesses of the said occurrence/accident as they were traveling in their car bearing registration DL4CAG3978 alongwith their children and in the said accident, they also sustained injuries.
They have adduced their evidence by way of their respective affidavits which are proved as Ex.PW1/A & Ex.PW2/A and they have also relied upon various documents, which are proved as as Ex.PW1/1 to Ex.PW1/21 as well as documents Ex.PW2/1 to Ex.PW2/8.
12. Sh. Arjun Kumar Aggarwal, who is the petitioner/injured is examined as PW1, who has testified by way of his affidavit Ex. PW1/A wherein he has deposed that at the relevant date, time and place, he alongwith his wife namely Smt. Kamlesh Aggarwal, (who is examined as PW2) and alongwith their son and their daughter Ms. Neetu Aggarwal (who later on died due MACT No.691/09 Arjun Aggarwal Vs. Vijay 8 of 31 9 to injuries sustained in the said accident) was going to Punchkula in their car bearing registration No. DL4C AG3978, which at the relevant time was driven by their driver namely Rampreet and when they reached at G.T.Road, near Kamaspur Mor, Omax City, PS Murthal, Sonipat, Haryana, suddenly the offending vehicle i.e Innova Car bearing registration No. CH022408, which at the relevant time was driven by R1 in a rash and negligent manner came from the opposite side at high speed and it hit against their car due to which the accident took place wherein he and his other family members and their driver sustained injuries. They were initially admitted in General Civil Hopsital, Sonipat by the officials of traffic mobile van, which arrived at the spot, however, the driver of their car succumbed to his injuries on the way to the hospital and expired. He has also testified that thereafter, they were also admitted in Maharaja Agrasen Hospital, Delhi, where their daughter Ms. Neetu Aggarwal expired on 31.01.2009 during the course of her treatment, due to the injuries sustained in the said accident. The petitioner has also testified that in the MACT No.691/09 Arjun Aggarwal Vs. Vijay 9 of 31 10 said accident, he also sustained severe injuries and fractures, due to which he got permanently disabled to a considerable extent and their car bearing registration No.DL4CAG3978 was also completely damaged.
13.Smt. Kamlesh Aggarwal (PW2) has also testified by way of her affidavit Ex. PW2/A wherein she has deposed about the said accident. She has testified that the accident was caused by R1 by driving the offending vehicle at a high speed and in a rash and negligent manner. It is pertinent to discuss that she has deposed on the lines of Sh. Arjun Kr. Aggarwal (PW1) and hence, her testimony is not repeated for the sake of brevity.
14. It would be pertinent to discuss here that no cross examination to any of these witnesses was offered by or on behalf of R1 & R2, who were the driver and owner of the offending vehicle on any aspect at all and accordingly, R1 & R2 have admitted in totality the entire versions of PW1 & PW2 as correct on all material aspects. It is well settled law that if a witness is not crossexamined on any aspect, then it amounts to truthfulness of the same. In the case in hand, the testimonies of MACT No.691/09 Arjun Aggarwal Vs. Vijay 10 of 31 11 PW1 & PW2 are nowhere rebutted or controverted at all by or on behalf of R1 & R2. Further, after going through their entire versions, it seems that they have testified in a straight forward , cogent and convincing manner. In the given facts and circumstances, R1 & R2 have clearly admitted that at the relevant date, time and place, R1 was driving the offending vehicle at a high speed in a rash and negligent manner and while driving so, he struck the offending vehicle against the car of petitioner wherein he was traveling alongwith his wife, daughter and son due to which the said accident took place wherein the petitioner also sustained grievous injuries.
15. As per record, PW1 & PW2 were crossexamined on behalf of the New India Assurance Company Ltd./R3 during which they have stated that they alongwith their family had left Delhi for going to Punchkula at about 2:30 pm. They have also stated that there was a divider between the road from Delhi to Punchkula and have denied if at all, their car was on the wrong side of the road. It is pertinent to mention here that rest of their crossexamination refers to the medical treatment and regarding MACT No.691/09 Arjun Aggarwal Vs. Vijay 11 of 31 12 income and medical expenses etc. which is not relevant to discuss the issue in hand.
16. After going through the entire testimonies of PW1 & PW2, who are the most material witnesses of the occurrence/accident being eye witnesses, there is nothing on record to disbelieve their versions. In fact, both of them have testified before the court in a cogent and convincing manner and there is no reason to doubt either their presence at the spot or to doubt their witnessing the said occurrence. In fact, it is rather shown and proved on record that PW1 & PW2 were traveling alongwith their children in their car bearing registration No. DL4C AG3978 which was driven by their driver and R1, while driving the offending vehicle in a rash and negligent manner and at high speed caused the said accident as testified by PW1 & PW2 wherein the petitioner/injured sustained various injuries. The testimonies of PW1 & PW2 do not seem to suffer from any inherent infirmity or artificiality or exaggeration and there is nothing on record to raise doubt regarding the authenticity of their depositions in as far as they have come forward with true MACT No.691/09 Arjun Aggarwal Vs. Vijay 12 of 31 13 picture of the occurrence/accident.
Further, the certified copies of the criminal case are also placed on record including the copies of FIR No.31/2009, U/s 279/337/338/304 IPC at PS Murthal, District Sonipal, Haryana and charge sheet u/s 173 Cr. PC which are not challenged or disputed by any of the respondents which clearly show that R1 was prosecuted in the said case regarding causing the said accident wherein the petitioner/injured also sustained various injuries.
Admittedly R1 has not lodged any complaint to any higher authority regarding his alleged false implication in the said criminal case and has not alleged or submitted that he had any enmity with the deceased or his family members or with the investigating officer and so, the possibility of his false implication in criminal case does not exist.
17. Accordingly, in the given facts & circumstances, on the basis of material produced and proved before the court and in view of aforesaid discussion, in considered opinion of the court, the said accident was caused by R1 while driving the offending vehicle MACT No.691/09 Arjun Aggarwal Vs. Vijay 13 of 31 14 in a rash and negligent manner at the relevant date, time and place wherein the petitioner also sustained injuries and hence, Issue No.1 is decided in favour of the petitioner and against the respondents.
18. Issue No.2 Qua Quantum of Compensation "Whether petitioner is entitled to compensation, if so, to what amount and from whom?"
19. Loss of earning capacity As per record, Dr. Arun Yadav (HOD, Ortho Hindu Rao Hospital, Delhi) is examined as PW7, who has proved the permanent disability certificate No.779, dt. 06.03.2010, pertaining to the petitioner as Ex.PW1/2, bearing his signature at point A. He has further deposed that as per Ex.PW1/2, the petitioner had suffered from permanent disability in relation to both his upper limbs and right lower limb.
As per record, he was not at all crossexamined on behalf of R1 & R2 and they have not disputed his version at all.
During his crossexamination on behalf of insurance company/R3, he has stated that for assessing the disability of the MACT No.691/09 Arjun Aggarwal Vs. Vijay 14 of 31 15 petitioner, he had followed the guidelines of Equal Opportunities, Protection of Rights and Full Participation Act, 1995.
20. After going through the entire testimony of PW7, as such, there is nothing on record to disbelieve the version of Dr. Arun Yadav (PW7) or to doubt the extent of permanent disability as suffered by the petitioner as nothing is shown during cross examination of PW7 if he has deposed falsely or the petitioner did not suffer the said permanent disability.
21. As per the petitioner Sh. Arjun Kr. Aggarwal, he used to run a shop which is nowhere under dispute or challenged by any of the respondents and as per Dr. Arun Yadav (PW7), the petitioner had suffered from permanent disability to the extent of 54% in relation to his both upper limbs and right lower limb which is also not under dispute. Accordingly, in the given facts and circumstances and as per permanent disability suffered by the petitioner, practically the petitioner would not be able to do any work from any of his upper limbs and from his right lower limb and accordingly, the efficiency and capacity of the MACT No.691/09 Arjun Aggarwal Vs. Vijay 15 of 31 16 petitioner to work is considerably adversely effected. In the given facts and circumstances and on the basis of the aforesaid discussion, in considered opinion of the court, the permanent disability of petitioner is assessed as 50% all over body.
22. The Petitioner has also placed on record the copy of his graduation certificate which is proved Ex. PW1/5 wherein his date of birth is shown as 27.02.1959 which is not dispute and so, the petitioner was about 50 years old as on the date of said accident. Hence, in view of above, as per observations made in case of Sarla Verma and Others vs Delhi Transport Corporation Respondent 2009 ACJ 1298, the multiplier of '13' is applicable in the present case.
23. Loss of income The petitioner has examined himself as PW1 and adduced his evidence by affidavit Ex. PW1/A wherein he has also testified that he used to run a shop and was a whole seller of Rice and Edible Oils. The petitioner has also filed his income tax returns including ITRs for two years prior to the said accident and of the year in which said accident occurred and proved them as MACT No.691/09 Arjun Aggarwal Vs. Vijay 16 of 31 17 Ex. PW1/4.
The petitioner, in order to prove his income has also examined Sh. Ram Prasad Bhatia, (Office Superintendent, Income Tax Office, Delhi) as PW1A who had brought the summoned record pertaining to the assessment years 200708 (financial year 200607), 200809 (financial year 200708) and 200910 (financial year 200809). He has testified that as per record, in the assessment year 200708 (financial year 200607), the gross total income of the petitioner was Rs. 1,24,840/, further for the assessment year 200809 (financial year 200708), the gross total income of petitioner was Rs. 1,32,760/ and for the assessment year 200910 (financial year 200809) his gross income was Rs. 2,02,962/ on which he paid Rs. 2240/ as tax. He has also filed verified the copies of the said ITRs and proved them collectively as Ex. P1. He has further testified that he has been authorised to do appear and prove the said record vide letter Ex. P2 issued by the ITO.
During his cross examination on behalf of New India insurance co./R3, he has interalia stated that the prints of the MACT No.691/09 Arjun Aggarwal Vs. Vijay 17 of 31 18 said record was taken out from the office computer by the concerned ITO namely Ms. Sunita Gupta by putting user ID of petitioner and she has authorised him to produce the said document/ITRs in the court after due their verification. He has also stated that the entire DATA for whole of India is saved at Banglore and has also clarified that the said ITRs were filed in Delhi through Efiling and then, the said DATA is sent to Banglore. He has also stated that concerned ITO is authorised to take out the data by using specific user ID and except the ITO and the applicant, none else can take out or can access the DATA. He has also stated that ITR for the assessment year 200910 i.e. financial year 200809 does not bear signature of the applicant or of the officials and has further stated that the official do not put their signature and only official stamp and number of filing is affixed on the ITR which is a common practice.
As per record and from the testimony of petitioner, it is shown that he had filed ITRs for the said period and in order to prove the same, he has also examined Sh. Ram Prasad Bhatia MACT No.691/09 Arjun Aggarwal Vs. Vijay 18 of 31 19 (PW1A) who has also duly proved the said ITRs. Though, PW1A was cross examined at length on behalf of insurance co/R3, yet nothing is shown on record if PW1A has testified falsely or if the documents as proved by him which are the ITRs of the petitioner also pertaining to the year wherein the said accident occurred (i.e. 29.01.2009) and it also include the ITRs two years prior to the said accident are false or fabricated. The said ITRs show an increasing trend in the income of the petitioner as already revealed from the testimony of PW1A and from documents ExP1.
It also needs to be discussed here that the said ITRs were filed by the petitioner at Delhi Office which were stored at Central Processing Centre at Banglore and all ITRs through out India are stored at office at Banglore. Further, it is also shown that the concerned ITO is authorised to use a specific user ID and password to take out the requisite data if so required and except the applicant and ITO, none else can have access to the same.
In considered opinion of the court, PW1A has testified MACT No.691/09 Arjun Aggarwal Vs. Vijay 19 of 31 20 before the court in a cogent and convincing manner and there is no reason to doubt the authenticity of documents i.e. ITRs of petitioner as proved on record and PW1A has also proved the authority letter Ex. P2 vide which Ms. Sunita Gupta, the concerned ITO has authorised him to come to the court alongwith verified copies of the said ITRs. It is also mentioned in Ex. P2 that the copies of the said ITRs are the generated copy of the returns filed by petitioner. As such there is nothing on record to show if the said documents as proved by PW1A are false or fabricated or if they are not the true copies of the ITRs as filed by the petitioner for the said years. During lengthy cross examination of PW1A, there is nothing on record to disbelieve his version or to doubt the authenticity of ITRs of the petitioner. From the said ITRs, it is shown that income of the petitioner was rising and it needs to be discussed that in the income tax returns pertaining to financial year 200809, his income is shown as Rs. 2,02,962/. It also needs to be discussed here that the said return was filed by him on 28.07.09 and the accident occurred on 29.01.09 i.e. about six months after the accident. It MACT No.691/09 Arjun Aggarwal Vs. Vijay 20 of 31 21 is also considered that in the financial year 200708, the income of petitioner was Rs. 1,32,760/ which ITR was filed on 07.07.08 i.e. much before the said accident. The possibility that the petitioner had shown an exaggerated income in financial year 200809 (ITR filed on 28.07.09) cannot be ruled out. Hence, the income of petitioner in the financial year 200708 is taken into consideration for calculating loss of income as per which the annual income of petitioner was Rs. 1,32,760/ and accordingly monthly income of the petitioner thus comes to Rs. 11,063/ per month.
Further, as per documents Ex. PW1/1 to Ex. PW1/3 which are the prescriptions slips, discharge summary, disability certificate, OPD card and medical bills which show that treatment of the petitioner/injured had continued upto the month of June, 2010 and he has not filed other document of his further treatment on record. Therefore, in the given facts and circumstances and on the basis of material as placed on record, the petitioner would be entitled for loss of income for 18 months and accordingly, he is granted an amount of Rs. MACT No.691/09 Arjun Aggarwal Vs. Vijay 21 of 31 22 1,99,134/ (Rs.11,063 x18) towards loss of income for 18 months.
24. It would be pertinent to discuss that in the case of Rajesh & Others v. Rajbir Singh & Others 2013(6) SCALE 563, the deceased was around 33 years of age at the time of accident and was survived by his widow and minor children. He was working as a clerk in a Government School. The claims Tribunal had awarded total compensation of Rs. 8,96,500/. On appeal, Hon'ble High Court had enhanced the total compensation to Rs. 10,17,000/. On further appeal to Hon'ble Apex Court, total compensation was further enhanced to Rs. 22,81,320/. Hon'ble Apex Court had observed that compensation under section 168 has to be "just, fair and equitable" to make good the loss suffered as a result of the wrong as far as money can do.
25. The Hon'ble Apex Court referred to case of Santosh Devi v. National Insurance Company Ltd. & Others 2012(4) SCALE 559 in which it was observed that even in absence of any evidence as to future prospects an increase of 30% in the MACT No.691/09 Arjun Aggarwal Vs. Vijay 22 of 31 23 income has to be provided where the victim had fixed income or was a self employed person. Relevant extract of the order is as follows: "18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verm's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is selfemployed or who is paid fixed wages.
Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
However, to make compensation just fair and equitable, Hon'ble Apex Court has also observed that:
11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified MACT No.691/09 Arjun Aggarwal Vs. Vijay 23 of 31 24 that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter".
26. Accordingly, in the case in hand, in the given facts and circumstances and on the basis of material as placed on record, as such the petitioner is entitled to addition of 30% while MACT No.691/09 Arjun Aggarwal Vs. Vijay 24 of 31 25 computing the loss of future earnings on account of permanent disability. Thus, the amount of Rs.11,21,718/ (11,063/+30%x12 x13x50%) is granted towards loss of earning capacity of the petitioner to him.
27. Attendant Charges In the case in hand, the petitioner has also examined Sh. Prithvi Nath, (Administrator, Adarsh Nagar Sewa Sabha Parmarth Hospital) as PW4 who has not stated anything regarding the attendant charges given by petitioner. During his cross examination, he has clearly stated that the attendants provided to Sh. Arjun Aggarwal were not his employees. As such, the petitioner has not examined any attendant who looked after him or any other person, whom he engaged to attended him and the petitioner has not been able to prove the amount given to attendant as attendant charges. However, it cannot be lost sight off that his family members must have attended him during his treatment for about 1 ½ years and therefore, in the case in hand, a lump amount of Rs. 70,000/ is granted towards attendant charges to the petitioner.
MACT No.691/09 Arjun Aggarwal Vs. Vijay 25 of 31 26
28. Pain, Suffering, Conveyance and Special diet.
For this purpose, the nature of injuries, the parts of the body where the injuries were sustained, surgery if any, under went by the victim, his confinement in the hospital and the duration of the treatment are to be considered. As per record and as already discussed, the petitioner had suffered from 54% permanent disability and he remained under treatment for about 1 ½ years and during this period, he was unable to look after himself. As such, the testimony of the petitioner to this effect has not been challenged in his crossexamination and nothing is shown on record to the contrary and there is no reason to disbelieve his version.
In view of the nature of injuries sustained by the petitioner in the present case, an amount of Rs. 50,000/ is granted to him towards his pain and sufferings and further, an amount of Rs. 40,000/ is also granted to the petitioner towards his conveyance and special diet. Keeping in view the permanent disability suffered by the petitioner, it is clear that both his upper limbs and right lower limb are permanently effected and MACT No.691/09 Arjun Aggarwal Vs. Vijay 26 of 31 27 hence, an amount of Rs. 70,000/ towards loss of enjoyment of amenities of life is also granted to him. It also needs to be discussed that the petitioner has also relied upon the documents which are Ex. PW1/1 to PW 1/3 which are the discharge summary, prescriptions slip, disability certificate, OPD card and medical bills and as per the same, he has also incurred medical expenses to the tune of Rs.3,17,000/ which is not disputed by either of the respondents and there is no reason to disbelieve the same accordingly, the said amount be also given to the petitioner towards medical expenses as per rules.
29. The over all compensation is tabulated as below: Sl. No Compensation under various heads Amount awarded
1. Loss of income Rs. 1,99,134/ 2 Loss of future earning capacity Rs. 11,21,718/
3. Pain and suffering Rs. 50,000/
4. Loss of enjoyment of amenities of life Rs. 70,000/
5. Conveyance and special diet Rs. 40,000/
6. Medical expenses Rs. 3,17,000/
7. Attendant charges Rs. 70,000/ Total Rs. 18,67,852/ MACT No.691/09 Arjun Aggarwal Vs. Vijay 27 of 31 28 Accordingly the over all compensation to be paid to the petitioner thus comes to Rs.18,67,852/
30. Issue no. 3Relief It needs to be discussed that ld. counsel for New India Assurance company/ R3 with whom the offending vehicle was insured had submitted that R3 is not liable to pay any compensation amount because the driver of offending vehicle/R1 was not having the valid driving licence to drive the offending vehicle. In this regard, R3 has also examined two witness namely Sh. Basant Kr. Rastogi (Dy Manager, New India Assurance Co) as R3W1 and Sh. Anand Kumar Verma, (Assistant Accountant, RTO Office, Agra, UP) as R3W2.
Sh. Basant Kumar Rastogi (R3W1) has testified that on the instructions of R3, its advocate had issued the notices under Order 12 Rule 8 CPC to R1 and R2 through post for producing the driving licence of R1 Which are proved on record as Ex. R3W1/A and the postal receipts, vide which they were sent to R1 and R2 are proved as Ex. R3W1/B to Ex. R3W1/C. Further, the said insurance co./R3 has also examined MACT No.691/09 Arjun Aggarwal Vs. Vijay 28 of 31 29 Sh. Anand Kumar Verma, (Assistant Accountant, RTO Office, Agra, UP), as R3W2 who has testified that driving licence no. 2108/AG/04 was issued to one Sh. Hori Lal which is not in the name of Vijay/R1 and has further testified that the said driving licence was issued in the year 2004 and not in the year 2003. He further stated that the driving licence already Ex. R3W1/D was not issued by the said office.
It is pertinent to mention here that R1 and R2 have not cross examined any of the said witnesses on any aspect and they have accordingly not disputed the testimonies of any of these witnesses. Accordingly, in the given facts and circumstance, there is nothing on record to falsify the testimonies of these witnesses and it is rather shown on record in the given facts and circumstances that as such, R1 did not possess a valid driving license of the offending vehicle at the relevant time.
31. It is not out of place to discuss here that in the case of Prem Kumari & Ors. Vs Prahlad Devi & Ors. II (2008) 477 (SC), the Hon'ble Apex Court has laid down that even if the license of driver is fake, still the insurer would continue to MACT No.691/09 Arjun Aggarwal Vs. Vijay 29 of 31 30 remain liable to pay the compensation to the petitioner and the insurer is entitled to recover the said amount from the owner and the driver of the offending vehicle as per rules.
32. In the present case, though, it is shown on record that Vijay/R1 was not having a valid driving licence to drive the offending vehicle on the date of accident, at the relevant time, yet the New India Assurance Company Ltd./R3 is under statutory obligation to pay compensation amount to the petitioner/claimant and it can very well recover the said amount from driver Sh. Vijay/R1 and owner Sumit Mishra/R2 as per rules as per procedure established by law.
33. Accordingly, in the case in hand, The New India Assurance co. Ltd./R3 is directed to deposit with this Tribunal within 30 days from today the awarded amount of Rs.18,67,852/ alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposit of award amount to be given by Insurance co/R3 to the petitioner and his counsel and recover the same from R1 and R2 as per rules.
34. I have heard petitioner regarding his financial needs. In MACT No.691/09 Arjun Aggarwal Vs. Vijay 30 of 31 31 view of the submissions made and further in view of observations in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, following arrangements is hereby ordered: An amount of Rs.10,00,000/ be released to the petitioner in cash as per rules and remaining amount with interest be kept in FDR in his name for a period of 3 years in any nationalised bank as per rules.
35. It is further directed that interest on the aforesaid fixed deposits shall be paid quarterly by automatic credit of interest in the Saving Accounts of the petitioner as per rules. Further, the petitioner shall not have any facility of loan or advance on the FDR, however, in case of emergent needs, he may approach this Tribunal for premature encashment of FDR's as per rules.
36. The Petition is accordingly disposed of. File be consigned to record room as per rules after compliance of necessary legal formalities as per rules. (Barkha Gupta) Announced in the open Court Judge MACT/NW District today i.e.06.01. 2016 Rohini Courts, Delhi MACT No.691/09 Arjun Aggarwal Vs. Vijay 31 of 31